McMahon v Murtagh Properties Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1982
• Neutral Citation: 1982 WJSC-HC 1203
• Court: High Court
• Docket Number: No. 106 S.S./1980
• Date: 01 January 1982

1982 WJSC-HC 1203

THE HIGH COURT

No. 106 S.S./1980

MCMAHON v. MURTAGH PROPERTIES

CASE STATED

Pursuant to Summary Jurisdiction Act, 1857, Section 2 and TheCourts (Supplemental Provisions) Act, 1961, Section 51.

IN THE MATTER of Summonses wherein Sergeant

Bernard McMahon

was Complainant:

-and-

Murtagh Properties Ltd. and ThomasWright

were Defendants.

1 Judgement of Mr. Justice Barringtondelivered the 20th day of October 1981

2 This matter first came before me on Monday, May 5th, 1980, in an Appeal by way of Case Stated from a decision by District Justice Thomas Donnelly dismissing two Summonses against the above-namedDefendants.

3 There was no Appearance before me for the Respondents.

4 After, I had written, but before I had delivered, my judgement, it emerged that the respondents had, through an error, missed the case in the list, and the case was, on consent, put back in the list to be reargued. A series of mishaps then ensued, including changes in the Counsel appearing for the respondents, with the result that the case was not finally argued until July 16th, 1981.

5 The facts of the matter, as set out in the Case Stated, are asfollows:-

6 On the 9th January, 1980, Murtagh Properties Ltd. (hereinafter called "the Company") appeared before District Justice Donnelly at Court No. 1,Metropolitan District Courthouse, Morgan Place, Dublin, as Defendants on a Summons (Coolock No. 3500) in the usual six part form alleging breaches of the Licensing Acts at its public house "The Sheaf o'Wheat", Coolock, Co. Dublin. This Summons, in which Sergeant Bernard McMahon was Complainant, recited a complaint that between 1 a.m. and 2 a.m. on the 12th April, 1979, the Company, being the holders of an On-Licence in respect of the premises, did unlawfully -

7 (1) Sell intoxicating liquor.

8 (2) Open said premises for the sale of intoxicating liquor.

9 (3) Keep open said premises for the sale of intoxicatingliquor.

10 (4) Expose intoxicating liquor for sale.

11 (5) Permit intoxicating liquor to be consumed on said premises.

12 (6) Permit persons to be on said premises contrary to the form of the Statute in such case made and provided.

13 At the same Court, Thomas Wright appeared before the learned District Justice on another Summons (Coolock 3511), wherein Sergeant McMahon was Complainant and "Thomas Wright (Nominee) of Murtagh Properties Ltd.)" was named Defendants, which Summons recited a complaint that this Defendant aided and abetted the Company in the Commission of the offences alleged above. The facts proved were that the Company was incorporated on the 21st March, 1963, and was since 1972, and is, theowner and occupier of "The Sheaf o'Wheat", a public house in Coolock; that Thomas Wright, a nominee of the Company, is and at all material times was, the licensee; that at 1.10 a.m. on the 12th April, 1979, Sergeant McMahon, seeking a light in the Loughe at the rear of the premises, observed through a glass panel of the rear door, at least four persons seated at the bar and saw the barman behind the bar, James H. McKeown, serving beer and spirits; that, after some time, he saw the barman depart and return with plates of food which he served to persons at the counter; that the Sergeant knocked but got no reply; that eventually he telephoned the Garda Station to telephone the public house; that at 1.40 a.m. the barman departed and returned saying, "It's McMahon alright"; that the barman called to the Sergeant that he was going to get the key; that he went to the bar, removed bottles and glasses, washed them and cleaned the counter; that the persons in the bar went in behind the counter and through a door; that the Sergeant continued knocking and was admitted at 1.55 a.m.; that he found on the premises, Thomas Wright, who said he was the Manager of the premises, two barmen and a Mr. and Mrs. Grainger.

14 The learned District Justice raised the point that on Coolock Summons No. 3500, the complaint was against the Company "as holders of an on-Licence in respect of the said premises", whereas in fact,ThomasWright was the holder of the Licence as nominee of the Company, and suggested that the scheme of the Intoxicating Liquor Acts was such, more particularly with regard to the indorsement of Licences, that in the circumstances the Company might properly have been prosecuted as a principal party since it was Beneficial Owner in possession of the premises and the business and that Thomas Wright would then properly be prosecuted for aiding and abetting, the words in the Title of his Summons "Nominee of Murtagh Properties Ltd." being treated as surplusage, in which event no conviction could be recorded on the Licence, or alternatively, that the Company might properly have been prosecuted as a principal party, and that Thomas Wright as holder of the Licence, might also have been prosecuted as a principal party, and in the latter event, a conviction or convictions against him would, in an appropriate case, be recorded on the Licence.

15 Mr. McLaughlin, Solicitor acting for the Complainant, submitted that if Mr. Wright could be described as holder of the Licence (which Mr. McLaughlin, notwithstanding the third word of Section 28 of the 1960 Act, did not admit) he held the licence for the Company and that therefore the Company was rightly prosecuted as holder.

16 There being no Application to amend Summons No. 3500 against the Company by striking out the words "being the holder of an on-Licencein respect of the said premises", the learned District Justice dismissed both Summonses.

17 There is no formal question raised in the Case Stated, but by agreement of Counsel, the Appeal proceeded on the basis of whether the learned District Justice was right in dismissing the Summonses for the grounds stated. This issue in turn raises other issues of practical importance concerning the right of a Limited Liability Company to hold an Intoxicating Liquor Licence, and the practice of such Companies holding their Licences through nominees, and the complications which this practice may create in the prosecution of offenders against the Licensing Code and in the administration of Part 3 of the Intoxicating Liquor Act, 1927.

18 It was at one time thought that an incorporated Company could not itself hold an Intoxicating Liquor Licence, and that it required a nominee to hold the Licence on its behalf. It is hard to find the logical basis for this theory.

19 On incorporation, a Limited Liability Company becomes a body corporate capable of exercising all the functions of an incorporated Company and having a perpetual succession and a Common Seal. (See Section 18. of the Companies Act, 1963). If the powers contained in the Memorandum of Association include power to carry on the business ofselling intoxicating liquor by retain for consumption on or off the premises, the Company has power to carry on that business on obtaining the appropriate Licence and complying with other relevant legal requirements. One of these requirements is that the Company should own an appropriate Estate in premises in which to carry on the business, but it is well established that there is no property or goodwill in a Licence itself apart from the ownership of the premises to which the Licence is attached. (See Kelly -v- Montague, 16 L.R.I., page...