Muldoon and Others v Minister for the Environment & Local Government and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 16 October 2015 |
| Neutral Citation | [2015] IEHC 649 |
| Court | High Court |
| Date | 16 October 2015 |
[2015] IEHC 649
THE HIGH COURT
Between:
And
Between:
And
Between:
And
Local Government – S.I. 367 of 2000 – S. 82(1) of the Road Traffic Act, 1961 – Road Traffic (Public Service Vehicles) (Amendment) Regulations, 1977 – Road Traffic (Public Service Vehicles) (Licensing) Regulations, 1978 – Licensing of taxis – Art. 40.3.2 of the Constitution– Meaning of “control”
Facts: Each plaintiff by way of separate claim sought a declaration that the respondents enacted and maintained an unlawful and illegal regime for the licensing of small public service vehicles between 1978 and 2000. The plaintiffs also sought damages arising from elimination of value in their licenses by the introduction of S.I. 367 of 2000 (the 2000 Regulations) by the first named respondent as it took away their asset value without any compensation mechanism. The plaintiffs submitted that Road Traffic (Public Service Vehicles) (Licensing) Regulations, 1978 were ultra vires as the Minister could not delegate its power derived from s. 82(1) of the Road Traffic Act, 1961 to impose quantitative restrictions on the number of taxis to the local authorities.
Mr. Justice Michael Peart dismissed the claims of all the three plaintiffs against the respondents. The Court agreeing with the dicta of Costello J. (affirmed by the Supreme Court) in The State (Kelly) v Minister for the Environment that the word ‘control’ under s. 84(1) of the Road Traffic Act, 1961 was ‘wide enough to include the powers to make regulations which would limit the number of taxis’ held that the word ‘may’ under s. 84 (2) of the said Act implied a wide degree of latitude to the Minister to make regulations for the control and operation of public service vehicles and there was nothing wrong for the Minister to delegate the performance of that task to democratically elected members of local authorities who were better placed to be aware of local needs. The Court while rejecting the contention that numerical restriction on issuance of taxi licences in a given year was violative of the right to livelihood under the Constitution and in consonance with the judgment of Carney J. in Hempenstall v Minister for Environment [1994] 2 I.R. 20 held that licenses are statutory creation for granting permission to do certain acts and it was within the powers of the executive under art. 43 of the Constitution that it could limit or withdraw that permission at its discretion for the common good. The Court held that there was no breach of statutory duty by the respondent so as to entitle the plaintiffs to claim damages as one of the plaintiff had acquired the licence prior to 1978 when the alleged regulations were not in existence and the other two plaintiffs purchased the licences from the secondary market knowing that there would always be a risk that the licence would not hold the value paid for it.
Mr Justice Michael Peart delivered on the 16th day of October 2015:
1. For decades taxis have been an essential part of the public transport infrastructure in Dublin as well as other cities and large towns throughout the country. They serve the diverse needs of both the indigenous population as well as visitors. Being the capital city, Dublin has always had a greater need than other centres of population for a taxi service at all hours of the day and night, and that need has increased as the city developed in size both in terms of geographical size, economic development, as well as in terms of population and visitor numbers. That need was never adequately met in Dublin during the period 1978 to 2000 which are the years immediately relevant to these proceedings.
2. Efforts to identify the extent of the need, and to meet it adequately were the source of much tension between successive Ministers for the Environment and representatives of what I will loosely refer to as the taxi industry. As the numbers of taxi users steadily grew over the years, so did the need to increase the number of taxi licences so that an adequate service would be available to the general public. However, and perhaps understandably from the point of view of the individual taxi owners, they, through their representatives, resisted any significant increase in the number of taxi licences year on year because of the probable effect on their incomes.
3. On the evidence available, there is no doubt that over the years the taxi industry representatives developed into a very effective and powerful lobby group, and their efforts to persuade the Minister, and in due course in particular Dublin City Council, to keep increases in the issue of new taxi plates to a bare minimum or none at all annually bore fruit in the sense that the number of new licences issued annually was never sufficient to meet the ever-increasing demand for taxis. In fact over an entire decade from 1980 to 1990 no licences whatsoever were issued in Dublin. The empirical and anecdotal evidence was that particularly at night time, queuing for a taxi was the norm and that waiting times became longer and longer, reaching unacceptable levels for a major capital city. The unmet demand meant of course that for those taxi drivers who were prepared to work longer and longer hours there was good money to be made.
4. How to tackle the problem was never easy for the Minister or the local authorities given the interest of the taxi industry in ensuring that the number of new licences being issued annually did not increase exponentially year on year. Nevertheless something had to be done, and at a political level the Minister could not be seen to do nothing in the face of increasing frustration and complaint on the part of the general public. Efforts were made by the Minister over many years to proceed cautiously and if possible by consensus. But what was possible to achieve by consensus was never a sufficient response to the problem, there being always the need for each side to concede some ground. My view from what I have heard in this case, however, is that the taxi industry certainly up to 2000 always appeared to come out on top in the negotiations, with the Minister never being able to achieve what would in an ideal world have seen the growing problem of unmet demand being resolved without running the risk of some industrial action by the industry which could with little difficulty bring the city to a standstill. Experience had shown that this was always a real possibility, and from a political perspective one that was to be avoided if possible.
5. As I will explain in more detail when dealing with the 1978 Regulations which gave rise to a secondary market in the sale of taxi plates, those consensual efforts themselves contained within them the seeds of destruction which many years later eventually, but not without much exploration of alternatives, saw the introduction by the Minister of S.I. 367 of 2000 ("the 2000 Regulations") which in effect eliminated that secondary market by an immediate deregulation or liberalisation of the taxi market whereby any adult who could pay a €5000 fee for a taxi licence could apply for a licence, and work as a taxi driver. The removal of any restriction on taxi numbers eliminated the very significant capital value which had built up in existing licences with disastrous economic consequences for many owners including the three plaintiffs who are simply representative of the different ways in which many within the industry have been affected by the 2000 Regulations. The different ways in which they have all been affected and the extent of their alleged losses, depending in part upon how, when and for how much they each purchased their licence, is not particularly germane for the moment, as it has been agreed that any questions of quantum will be left over until after the determination of the legal issues now under consideration. But it is worth saying that many of those who purchased their taxi licences in the years immediately preceding the 2000 Regulations, did so for very substantial sums (up to €100,000 in some cases) and having borrowed significant sums in order to do so, or invested their redundancy lump sums, or other savings.
6. The plaintiffs seek a declaration as to the unlawfulness of the 1978 Regulations and the 2000 Regulations under a number of headings, and a claim for damages for breach of statutory duty, breach of constitutional rights (i.e. breach of property rights, right to earn a livelihood, and right to be treated equally before the law), and, in the cases of Mr Muldoon and Mr Kelly, breaches of competition law. Claims for damages under other headings are included in the pleadings, such as negligence, negligent misrepresentation, unjust enrichment, breach of legitimate expectation, misfeasance in public office; but Counsel made it clear that the latter, while not abandoned, would rest on the written submissions provided to the Court, and would not be further expanded upon in oral submissions.
7. The starting point for any consideration of the issues raised in these proceedings is section 82 of the Road Traffic Act, 1961 which confers upon the Minister the power to make...
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