Omega Leisure Ltd v Superintendent Barry and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 January 2012
• Neutral Citation: [2012] IEHC 23
• Court: High Court
• Date: 12 January 2012

Omega Leisure Ltd v Superintendent Barry & Ors

BETWEEN

OMEGA LEISURE LIMITED

PLAINTIFF

AND

SUPERINTENDENT CHARLES BARRY, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2012] IEHC 23

[No. 9676 P/2011]

THE HIGH COURT

LICENSING LAW

Gaming and lotteries

Bingo - Company with bingo premises - Agency agreements with charitable organisations with benefit of licences to conduct bingo - Raiding of premises by An Garda Síochána - Declaratory and injunctive relief sought by company - Role of High Court - Licences granted by District Court - Whether appropriate for High Court to make declarations concerning regime - Whether plaintiff company had standing where operated only as agent of licensee - Lawfulness of activities of plaintiff - Whether unlawful for private profit-making company to operate bingo sessions on behalf of charitable organisations - Whether pongo machines gaming machines requiring separate licence - Whether superintendent guilty of misfeasance of public office - Legal standard for misfeasance of public office - Applicable test for misfeasance of public office - Objective recklessness - Claim for trespass and detinue - Ward v Kinahan Electrical Ltd [1984] IR 292; R(E) v R(D) [1984] IR 296; RD Cox Ltd v Owners of MV Fritz Raabe [2002] ILRM 532; Tormey v. Ireland [1985] IR 289; Stiúrthora Ionchúiseamh Poiblí (DPP) v Norris (Unrep, SC, 26/7/1979); Transport Salaried Staffs' Association v Coras Iompair Éireann [1965] IR 180; Vine v The National Dock Labour Board [1957] 2 WLR 106; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; State (Lynch) v Cooney [1982] IR 337; Shannon v McGuinness [1999] 3 IR 274; East Donegal Co-operative v Attorney General [1970] 1 IR 317; O'Brien v Personal Injuries Assessment Board (No 2) [2007] 1 IR 328; PV (a minor) v The Courts Service [2009] 4 IR 271; Imperial Tobacco Ltd v AG [1981] AC 718; Thames Launches Ltd v Trinity House Corporation [1961] Ch 197; Barrett v Flynn [1916] 2 IR 1; Bolger v Doherty (Unrep, Davitt P, 16/12/1963); Kennedy v Law Society of Ireland (No 4) [2005] 3 IR 228; Osborne v Minister for Justice [2009] 3 IR 89 and People (Attorney General) v O'Brien [1965] IR 14 considered - Constitution of Ireland 1937, Art 34 - Gaming and Lotteries Act 1956 (No 2), ss 2, 10, 26, 27, 28, 29 and 31 - Finance Act 1975 (No 6), s 43 - Declaration granted that conduct not unlawful (2011/9676P - Clarke J - 12/1/2012) [2012] IEHC 23

Omega v Superintendent Barry

FINANCE ACT 1975 S43

KENNEDY v LAW SOCIETY OF IRELAND & ORS (NO 4) 2005 3 IR 228

CONSTITUTION ART 34

CONSTITUTION ART 34.2

CONSTITUTION ART 34.3.1

CONSTITUTION ART 34.3.4

WARD v KINAHAN ELECTRICAL LTD 1984 IR 292

R (E) v R (D) 1984 IR 296 1984/5/1655

TORMEY v IRELAND & AG 1985 IR 289 1985/6/1565

GAMING & LOTTERIES ACT 1956 S26(1)

GAMING & LOTTERIES ACT 1956 S27

GAMING & LOTTERIES ACT 1956 S28

GAMING & LOTTERIES ACT 1956 S28(2)

LOTTERY PRIZES REGS 2002 SI 29/2002

GAMING & LOTTERIES ACT 1956 S28(2)(E)

GAMING & LOTTERIES ACT 1956 S29

GAMING & LOTTERIES ACT 1956 S29(2)

GAMING & LOTTERIES ACT 1956 S31

GAMING & LOTTERIES ACT 1956 S31(2)

DPP v NORRIS UNREP SUPREME 26.7.1979 (EX TEMPORE)

CHANCERY (IRL) ACT 1867 S155

RSC O.19 r29

TRANSPORT SALARIED STAFFS ASSOCIATION & ORS v CORAS IOMPAIR EIREANN 1965 IR 180

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301 1990/8/2084

LYNCH, STATE v COONEY & AG 1982 IR 337

SHANNON v DISTRICT JUDGE MCGUINNESS & DPP 1999 3 IR 274 1997/12/3623

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (NO 2) 2007 1 IR 328 2007 1 ILRM 304 2006/44/9395 2006 IESC 62

V (P) (A MINOR) v COURTS SERVICE & ORS 2009 4 IR 264 2009/56/14351 2009 IEHC 321

IMPERIAL TOBACCO LTD & ANOR v AG 1981 AC 718 1980 2 WLR 466 1980 1 AER 866

THAMES LAUNCHES LTD v TRINITY HOUSE CORP (DEPTFORD STROND) (NO 1) 1961 CH 197 1961 2 WLR 16 1961 1 AER 26

BARRETT v FLYNN 1916 2 IR 1

BOLGER v DOHERTY 1970 IR 233

GAMING & LOTTERIES ACT 1956 S2

FINANCE ACT 1975 S43(2)

GRUBB THE LAW OF TORT 1ED 2002 PARA 17.54

GAMING & LOTTERIES ACT 1956 S10

WARD & DALY THE GARDA SIOCHANA GUIDE 7ED 2008

OSBOURNE v MIN FOR JUSTICE & ORS 2009 3 IR 89 2006/47/10044 2006 IEHC 117

AG, PEOPLE v O'BRIEN 1965 IR 142

1. Introduction

2 2 1.1 The plaintiff ("Omega") is a company whose principal proprietor is Mr. James Barber. Mr. Barber devised a plan to establish a significant bingo hall in Cork City. The proposal followed a model which appears to operate in a number of other cities in Ireland. The plan was that Omega would enter into agency agreements with charitable organisations who had the benefit of a licence under the Gaming and Lotteries Act 1956 (the "1956 Act"), permitting such organisations to conduct bingo sessions. Omega would then act as an agent on behalf of the charitable organization concerned. It is clear that Omega spent significant sums in fitting out a premises owned by the Barber family for the purposes of conducting such bingo sessions.

3 3 1.2 Some preliminary discussions took place with the first named defendant ("Superintendent Barry") regarding the nature of Omega's business and its lawfulness in particular. Superintendent Barry is the Superintendent for the relevant district in Cork. However, when the business was ready to open, significant difficulties were encountered with An Garda Síochána not least when, on foot of a warrant issued by the District Court, the relevant premises was raided. In those circumstances proceedings were commenced by Omega seeking a range of declaratory and injunctive reliefs against both Superintendent Barry and the other defendants (collectively "the State", unless the context indicates otherwise). Interlocutory injunctions were sought although nothing now seems to turn on the issues which arose at that stage. An early trial of the issues was directed and the matter came on for hearing before me in Cork.

4 4 1.3 I felt that it was appropriate to give at least some indication of the legal position at the earliest possible date and, with that in mind, I listed the case for a partial ruling on the 9 ^th December last. The ruling delivered on that occasion is annexed to this judgment ("the earlier ruling"). As appears from that ruling I was of the view that Omega had standing to pursue at least some of the forms of declaratory relief sought. I was further of the view that Omega was, at a minimum, entitled to the two declarations set out in the earlier ruling. I further indicated that I was not satisfied on the evidence that Superintendent Barry was guilty of misfeasance of public office or that the claim made by Omega for trespass and detinue could succeed. I indicated on the occasion in question that I would deliver a written reasoned judgment setting out the basis on which I felt it appropriate to make that ruling. This judgment is directed to that end. It should also be noted that I made an order, on the 9 ^th December, granting the two declarations sought and refused the application of counsel for the State for a stay on that order. I also indicated that I would, in this written judgment, also deal with the question of whether any other declaratory or injunctive orders were appropriate.

5 5 1.4 In the course of the hearing before me I had suggested that there appeared to be five broad issues which arose. Counsel agreed that those issues represented the areas of dispute. I should start, therefore, by setting out those issues.

2. The Issues

2 2 2.1 The first issue concerned the appropriate role of this court in determining the questions of controversy which had arisen between the parties. The basic statutory regime for the licensing of lotteries is to be found in the 1956 Act. Licences are granted, under that Act, by the District Court. Counsel for the State argued that it would be inappropriate for this court to interfere with the normal exercise by the District Court of its jurisdiction to deal with licensing matters in relation to lotteries. I did not understand counsel for Omega to differ in principle with that proposition. However, it was argued on behalf of Omega that the issues which it sought to have clarified in these proceedings were not issues, at least in the main, which could come to be considered by the District Court in the exercise of its statutory jurisdiction. There was, therefore, an issue between the parties as to the extent, if any, to which it was appropriate for this court to make declarations concerning the regime that applies in relation to lotteries having regard to the fact that, at least at the level of principle, it is undoubted that the District Court has a jurisdiction in that area.

3 3 2.2 Second, the State contested whether Omega had standing to raise the issues which arose in these proceedings. There can be no doubt but that the licensee in respect of any lottery licence granted by the District Court under the provisions of the 1956 Act must be a charitable organisation. Omega is not such an organisation and operates only as an agent of such a licensee. On that basis it was said that Omega lacked standing in the absence of having a licensed charitable organisation at least stand as a co-plaintiff. In addition, there were some factual questions concerning the precise status of certain of the agency agreements relied on by Omega to which it will be necessary to refer in due course. There were, therefore, issues between the parties as to Omega's standing. In addition, under this heading, a connected question as to whether the proceedings were moot arose out of a question over the current status of agency agreements between Omega and relevant charitable licence...