Olivier Alary v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 23 March 2021
• Neutral Citation: [2021] IECA 84
• Docket Number: Record No. 2018/375
• Court: Court of Appeal (Ireland)
• Date: 23 March 2021

Between/

Olivier Alary

Appellant/Applicant

and

Cork County Council

Respondent

[2021] IECA 84

Collins J.

Binchy J.

Pilkington J.

Record No. 2018/375

THE COURT OF APPEAL

Judicial review – Casual trading – Bye-laws – Applicant seeking judicial review of an order of Bantry Circuit Court – Whether the Bye-laws made by the respondent pursuant to the Casual Trading Act 1995 were unlawful and unenforceable

Facts: The appellant, Mr Alary, was convicted at Bantry District Court, on 26th April 2017, of an offence contrary to s. 3(1) of the Casual Trading Act 1995, that of engaging in casual trading without holding a casual trading licence issued under s. 4(1)(a) of the 1995 Act. This occurred on 30th September 2016. The District Court imposed a fine of €100 on the appellant in respect of that conviction. The appellant appealed his conviction to the Circuit Court, which heard and dismissed the appeal on 21st July 2017. The appellant then sought leave to apply by way of an application for judicial review seeking the following reliefs: (1)“Judicial Review of an Order of Bantry Circuit Court (sitting at the Courthouse, Skibbereen, County Cork) made on 21st July, 2017 under Record Number2017/263CA Circuit Court Number A2017/1894”; (2) “An Order for Judicial Review of the Provisions of The Casual Trading Act 1995 and The Local Government Reform Act, 2014 and The Casual Trading Bye-Laws for Bantry Town 2014 made by Cork County Council on 7th July, 2014 pursuant to those Acts”; and (3) “An Order extending the time to apply for Judicial Review”. By order made on 22nd January 2018, the High Court (Noonan J) granted the appellant leave to apply by way of application for judicial review for the reliefs referred to above, sought in para. D of the statement of grounds. At para. E of his statement of grounds, the appellant specifically sought an order quashing his conviction. The principal ground relied upon by the appellant at para. E of the statement of grounds was that the Bye-laws made by the respondent, Cork County Council, pursuant to the 1995 Act were unlawful and unenforceable. The proceedings came on for hearing before Noonan J on 24th July 2018. The trial judge held that the appellant had failed to make out any of the grounds on which leave was granted, or the additional grounds which he pleaded out of time. The trial judge dismissed the application. The appellant appealed to the Court of Appeal from the decision of the High Court.

Held by Binchy J that the trial judge was fully correct in his conclusions, and that the appellant had failed to establish that the trial judge erred in any way in arriving at his decision. Binchy J held that the appeal would be dismissed.

Binchy J held that as the respondent had been entirely successful in this appeal, his provisional view was that it was entitled to its costs both in the Court of Appeal and the High Court.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Mr. Justice Binchy delivered on the 23 ^rd day of March 2021

1 . The appellant describes himself as an occasional artisan baker. He is a French national, and says that while he resides in Edinburgh, he sells his bread from time to time in Bantry, Co. Cork. The appellant was convicted at Bantry District Court, on 26th April 2017, of an offence contrary to s.3(1) of the Casual Trading Act, 1995 (“the Act of 1995”). The offence in question is that of engaging in casual trading without holding a casual trading licence issued under s.4(1)(a) of the Act of 1995. This occurred on 30th September 2016, a Friday. The District Court imposed a fine of €100 on the appellant in respect of that conviction.

2 . The appellant appealed his conviction to the Circuit Court, which heard and dismissed the appeal on 21st July 2017. The appellant, who is a litigant in person, then purported to appeal that decision to the High Court and, upon becoming aware that that was not the correct procedure, he instead sought leave to apply by way of an application for judicial review seeking the following reliefs:

• 1) “Judicial Review of an Order of Bantry Circuit Court (sitting at the Courthouse, Skibbereen, County Cork) made on 21st July, 2017 under Record Number 2017/263CA Circuit Court Number A2017/1894.

• 2) An Order for Judicial Review of the Provisions of The Casual Trading Act 1995 and The Local Government Reform Act, 2014 and The Casual Trading Bye-Laws for Bantry Town 2014 made by Cork County Council on 7th July, 2014 pursuant to those Acts; and

• 3) An Order extending the time to apply for Judicial Review.”

3 . By order made on 22nd January 2018, the High Court (Noonan J.) granted the appellant leave to apply by way of application for judicial review for the reliefs sought in para. D of the statement of grounds (being the reliefs referred to above). At para. E of his statement of grounds, the appellant specifically seeks an order quashing his conviction.

4 . The principal ground relied upon by the appellant at para. E of the statement of grounds is that the Bye-laws made by the respondent pursuant to the Act of 1995 (the “Bye-laws”) are unlawful and unenforceable. While the conviction of the appellant was for the offence of trading without a casual trading licence, being an offence contrary to s.3(1) of the Act of 1995, the Bye-laws designate the entire town of Bantry a “Casual Trading Area” for the purposes of the Act of 1995, and set out the detailed procedures for applications and issue of casual trading licences within the functional area of the respondent. The principal argument that the appellant advances in his statement of grounds for the proposition that the Bye-laws are unlawful is that the Bye-laws are contrary to traditional market rights subsisting under common law permitting members of the public to engage in market trading at Wolfe Tone Square, Bantry on Friday of each week. He also claims that the Bye-laws are contrary to a patent granted by King Charles II on 15th March 1679, to the Earl of Anglesey, which permits of markets or fairs in the town of Bantry on Wednesday and Saturday of each week. He also relies on a patent granted by King William III on the 10th day of the thirteenth year of his reign granting to one John Davys the right to hold one market or fair annually, on 20th November each year (both patents being hereafter referred to collectively as the “Patents”). He claims that none of the foregoing rights have been extinguished, that they are therefore all extant and that the respondent has no entitlement to interfere with or restrict these rights in any way, whether under the Act of 1995, the Bye-laws or otherwise.

5 . It is not in dispute that the Patents were granted, and that the right to carry on such activities on Wednesdays and Saturdays has its origin in the patent of 1679. As far as Fridays are concerned, the appellant claims that the same rights have their origins in common law, having been exercised for centuries.

6 . In his statement of grounds, the appellant refers to s.8 of the Act of 1995 which empowers local authorities in certain circumstances to extinguish market rights owned by them, and also to s.7(4) of the Act of 1995, which provides that rights that have not been exercised for ten years or more shall stand extinguished. He states that it is accepted by the respondent that it has never taken steps to extinguish the market rights in Bantry, and he claims that since they have always been exercised, they have not been extinguished by non-usage, under s.7(4).

7 . In its statement of opposition, the respondent agrees that the market rights in Bantry have not been extinguished, but pleads that while a market has been held in Bantry for over two decades, that market takes place on a Friday, and the respondent claims that no trading has taken place on a Wednesday or a Saturday in Bantry since at least 1989. However, the respondent further pleads that the market rights relating to trading in Bantry on Wednesdays and Saturdays may be extinguished by operation of law, pursuant to s.7 (4) of the Act of 1995, which I address below.

8 . In its statement of opposition, the respondent also sets out in some detail the background to the adoption of the Bye-laws, which it claims have been adopted in accordance with the procedures prescribed by the Act of 1995.

The Decision of the High Court

9 . The proceedings came on for hearing before Noonan J. on 24th July 2018. He firstly addressed the appellant's application to extend time within which to bring to forward the application for leave. Noting that the appellant had clearly formed the intention to bring proceedings arising out of the decision of the Circuit Court within the requisite time, Noonan J. granted the extension of time, in circumstances where this issue was not contested.

10 . Noonan J. then proceeded to address a further affidavit sworn by the appellant on 14th May 2018 whereby he purported, without the leave of the court, to introduce a new ground for seeking judicial review. This new ground concerned a claim that under the terms of Magna Carta Hiberniae 1216, the applicant has a common law right to trade without a licence. The respondent objected to the introduction of this additional ground. In addressing the issue Noonan J. referred to O.84, r.21 of the Rules of the Superior Courts (“RSC”) and also the decision of the Supreme Court in Shell E & P Ireland Limited v. McGrath & Others [2013] IESC 1 and concluded that the appellant had failed to advance good and sufficient reason, as the rule requires, such as would permit the court to exercise its discretion to grant the application to introduce this additional ground.

11 . Noonan J. noted that the new ground was introduced some nine months after the date of conviction of the appellant, and that the only reason advanced by him for his failure to raise this ground originally was that, as a lay litigant, he was unaware of...