Parsons v Kavanagh

JurisdictionIreland
CourtHigh Court
JudgeO'Hanlon J.,
Docket NumberRecord No. 24/1987
Date01 January 1990

1990 WJSC-HC 2217

THE HIGH COURT

THE CIRCUIT COURT

ON APPEAL FROM/

SOUTH-EASTERN CIRCUIT

COUNTY OF KILKENNY

Record No. 24/1987
Parsons v. Kavanagh
BETWEEN/
CHRISTINA PARSONS t/a Princess Bus & Coach Service
Plaintiff
(Respondent)
-and-
BERNARD KAVANAGH, THO.AS KAVANAGH BERNARD KAVANAGH & SONS LIMITED EDMUND G'ILFOYLE all trading as Quantabus Travel Club
Defendants
(Appellants)

Citations:

ROAD TRANSPORT ACT 1932 S7

ROAD TRANSPORT ACT 1932 S8

ROAD TRANSPORT ACT 1932 S9

ROAD TRANSPORT ACT 1932 S10

ROAD TRANSPORT ACT 1932 S11

ROAD TRANSPORT ACT 1932 S23

ROAD TRANSPORT ACT 1933

PHILLIPS V BRITANNIA HYGIENIC LAUNDRY CO LTD 1923 2 KB 832

HALSBURY'S LAWS 4ED V44 PARAS 941 & 961

CUTLER V WANDSWORTH STADIUM LTD 1949 AC 398

DOE V BRIDGES 1 B & A 847

GROVES V LORD WIMBORNE 1898 2 QB 402

ISLAND RECORDS LTD, EX PARTE 1978 3 AER 824

BETTING & LOTTERIES ACT 1934

LONRHO V SHELL PETROLEUM 1981 2 AER 456

RCA CORPORATION V POLLARD 1982 3 AER 771

AG V PAPERLINK LTD 1984 ILRM 373

MURTAGH PROPERTIES LTD V CLEARY 1972 IR 330

RYAN V AG 1965 IR 294

YEATES V MIN FOR POSTS & TELEGRAPHS UNREP HIGH 21.2.1978 1981/8/1406

MURPHY V STEWART 1973 IR 97

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 6

SLIGO CORPORATION V GILBRIDE 1929 IR 351

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22

COURTS ACT 1971 S21

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S22(8)

CCR O.5 r2

WALSH V KILKENNY CO COUNCIL 1978 ILRM 1

COURTS OF JUSTICE ACT 1924 S48

SINEY V DUBLIN CORP 1980 IR 400

Synopsis:

ACTION

Cause

Existence - Statute - Provisions - Infringement - Damage - Defendant's unlawful act causing plaintiff to suffer loss - Defendant's unlicensed passenger transport service competing with plaintiff's licensed business - (1987/24 - O'Hanlon J. - 17/7/87) - [1990] ILRM 560

|Parsons v. Kavanagh|

CONSTITUTION

Personal rights

Livelihood - Citizen - Interference - Legality - Commercial competition - Passenger transport services - Plaintiff's service licensed - Defendant's service unlawful - Statute - Provisions - Breach - Whether person aggrieved has cause of action - Circuit Court - Jurisdiction - Transport Act, 1932, s. 7 - Courts (Supplemental Provisions) Act, 1961, s. 22 - Constitution of Ireland , 1937, Article 40 - (1987/24 - O'Hanlon J. - 17/7/87) - [1990] ILRM 560

|Parsons v. Kavanagh|

STATUTE

Terms

Infringement - Damage - Action - Cause - Defendant's unlawful act causing plaintiff to suffer loss - Defendant's unlicensed passenger transport service competing with plaintiff's licensed business - (1987/24 - O'Hanlon J. - 17/7/87) - [1990] ILRM 560

|Parsons v. Kavanagh|

1

Judgment delivered by O'Hanlon J., the 17th day of July, 1987.

2

The Plaintiff brought proceedings in the Circuit Court, seeking an injunction to Aestrain the Defendants from operating a passenger bus service on the Dublin/Clonmel, Clonmel/Dublin route, while not in possession of the appropriate passenger licence granted in accordance with the provisions of the Road Transport Acts, 1932and 1933.The Equity Civil Bill also included a claim for £15,000 for alleged wrongful interference with a passenger bus service which the plaintiff claimed she was lawfully operating between the said termini pursuant to the terms of a licence granted under the provisions of the said Acts.

3

It was pleaded, and not contested, that the Plaintiff's husband had obtained the necessary licence for this purpose, and had carried on a passenger transport business between Clonmel and Dublin from the year 1969, and that on his death the plaintiff succeeded to his entitlement to operate the said business. A rival concern, in the shape of the Defendants, came on the scene towards the end of the year 1986, and commenced to provide a bus service in competition with the Plaintiff between Clonmel and Dublin, charging lower prices than the Plaintiff. It was alleged by the Plaintiff, and once again not seriously disputed by the Defendants, that the Defendants did not have, at any material time, the necessary licence under the Road Transport Acts which would have entitled them to provide the said passenger bus service.

4

In these circumstances the plaintiff, being apprehensive of the impact the Defendants" competition would have on her business, sought and was granted an injunction to restrain the Defendants from continuing with their bus service, and from that decision the Defendants have appealed to the High Court. No damages were awarded by the learned President of the Circuit Court, who dealt with the case, the competing bus service having been in operation only during the months of December, 1986 and January, 1987.

5

Two grounds of appeal were relied on by the Defendants. It was contended that the Plaintiff was not entitled in her personal capacity to seek an injunction for the purpose of enforcing the provisions of the Road Transport Acts against the Defendants. Secondly, the Defendants claimed that even if this legal issue were decided in favour of the Plaintiff, the Circuit Court had no jurisdiction to deal with the claim as no facts had been pleaded or established which would bring the claim within the Equity jurisdiction of that Court. Apart from these issues of strict law which were raised by the Defendants, they also claimed that the Plaintiff had failed to produce any or any adequate evidence to show that any loss or damage had been caused to her by reason of the operations carried on by the Defendants.

6

Dealing first with the question whether it is open to the Plaintiff to take proceedings to enforce the provisions of the Road Transport Acts concerning the licensing of passenger carriers by road, it may be noted that the long title of the Road Transport Act, 1932(No.2) is as follows:-

"An Act to provide for the regulation and control of the carriage of passengers by road and to confer on certain companies authority to carry passengers and merchandise by road and to make provision for other matters connected with the matters aforesaid."

7

It is provided in Secs. 7 to 11 of the Act that on and after the appointed day no person shall carry on a passenger road service save under and in accordance with a licence granted to him under the Act; that a person carrying on a passenger road service in contravention of the Act shall be guilty of an offence and liable on summary conviction thereof to a fine not exceeding £50, together with - in the case of a continuing offence - a further fine not exceeding £5 per day for everyday during which the offence continues; that any person may apply to the Minister for a passenger licence, the grant of which is in the absolute discretion of the Minister save in the case of a pre-existing service; and the Minister may attach conditions to a licence as to frequency of service, type of vehicle to be used and other matters. Under Sec. 23 of the Act the Minister may Prescribe maximum charges for the service to be provided.

8

Whether, and under what conditions, a duty imposed by statute may be enforced at the suit of a private individual, is a topic which has been discussed in many previous cases. Some of general principles which have emerged as a result of these decisions may be stated as follows:-

9

1. Whether or not an individual can bring a common law action in respect of a breach of a duty imposed by statute depends upon whether the intention of the statute considered as a whole and in the circumstances in which it was made and to which it relates was to impose a duty which is a public duty only, or to impose in addition a duty enforceable by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue. ( Philips v Britannia Hygienic Laundry Co Ltd, (1923) 2 KB 832/841; Halsbury, Laws of England, 4 edn, Vol 4 pars. 941, 961).

10

2. The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the existing law, in which it was enacted. In answering the question it is relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole; whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent; whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute; the nature of the obligation imposed, and the general purview and intendment of the statute.

11

If a statute on its true construction is intended to protect a particular class it is some indication that members of that class are intended to have a right of action, as for example, in the case of statutes for the protection of factory workers.( Cutler v Wandsworth Stadium Ltd, (1949) AC 398

12

3. Where a statutory remedy by way of criminal proceedings is provided for the breach of a statutory duty there is a strong implication that no civil action for breach of that duty lies. The imposition by a statute of a penalty for breach of a statutory duty is generally a ground for holding that no common law action for damages lies for breach of that duty. (Lord Tenterden CJ in Doe v Bridges, 1 B & Ad. 847,859). It may be relevant to consider whether the penalty...

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