Pierce (t/a Swords Memorials) & Andrew Pierce Monuments v Dublin Cemeteries Committee and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Macken, J.
• Judgment Date: 30 July 2009
• Neutral Citation: [2009] IESC 63
• Docket Number: 256/2006,[S.C. No. 256 of 2006] [S.C. No. 370 of 2006]
• Date: 30 July 2009

[2009] IESC 47

THE SUPREME COURT

Hardiman, J.

Kearns, J.

Macken, J.

256/2006

370/2006

Pierce (t/a Swords Memorials) & Andrew Pierce Monuments v Dublin Cemeteries Committee & Ors

Between/

DAVID PIERCE TRADING AS T/A SWORDS MEMORIALS AND ANDREW PIERCE MONUMENTS

Plaintiff/Appellant

-and-

DUBLIN CEMETERIES COMMITTEE GLASNEVIN CEMETERY MONUMENT WORKS LTD GLASNEVIN CREMATORIUM LTD

Defendants/Respondents

DUBLIN CEMETERIES ACT 1846

CAHILL v SUTTON 1980 IR 269

DUBLIN CEMETERIES COMMITTEE ACT 1970 S19

DEANE & ORS v VOLUNTARY HEALTH INSURANCE BOARD 1992 2 IR 319 1992/6/1609

COMPETITION ACT 1991 S3

PRACTICE AND PROCEDURE

Locus standi

Supreme Court appeal - Preliminary issue - Competition law - Plaintiff seeking declaration that respondent statutory body not empowered to sell headstones -Whether plaintiff had locus standi to challenge vires of defendant - Whether alternative remedy - Whether complaint to Competition Authority or European Commission viable alternative remedy - Whether plaintiff required to litigate these avenues to prove absence of alternative remedy - Whether purported change in opinion of Competition Authority of relevance - Deane v VHI [1992] 2 IR 319 considered - Competition Act 1991 (No 24), s 3 - Dublin Cemeteries Committee Act 1970 (No 1), s 19 - Plaintiff determined to have locus standi for the purposes of bringing appeal (256 & 270/2006 - SC - 28/5/2009) [2009] IESC 47

Pierce v Dublin Cemeteries Committee

Judgment delivered the

Macken, J.

1 This is the appellant's appeal from the judgment of the High Court (Laffoy, J.) delivered on the 11^th May 2006 and the order made thereon on the 23^rd May 2006.

2 This judgment however concerns only one issue oflocus standi and arises against the following background. The first defendant ("the Committee") is a body corporate established by a private Act of the Oireachtas, the Dublin Cemeteries Committee Act 1970 (the "Act of 1970"). It replaced a body corporate which had been established by the Dublin Cemeteries Act 1846, a public Act. The proceedings brought by the plaintiff seek, inter alia, a declaration that the Act of 1970 does not empower the first defendant to sell monuments or headstones, or to offer inscription services and similar activities, operated through the medium of the second defendant, and alleges that such activities are ultra vires the first defendant's powers. The plaintiff contends that the manner in which the first defendant conducts its business in the above areas, although operating in effect through the second defendant, is unfair to persons like him who are engaged in monumental sculpting and installation businesses, and is damaging to him. The defendants, and in particular the first defendant, defended these proceedings on the basis, inter alia, that the plaintiff had no locus standi to seek any of the reliefs he claims, but in particular relief by means of declaratory orders that the activities carried on are ultra vires the powers of the first defendant. This was a matter addressed by the learned High Court judge in considerable detail in her judgment.

3 In that judgment the learned High Court judge considered the relevant jurisprudence, commencing withCahill v Sutton [1980] IR 269 and the other case law following on from that case, and found that since the appellant had no other remedy in law to resolve his complaint, he had locus standi to bring the proceedings. This conclusion supported the plaintiff's contention that there was no alternative remedy available to him. The learned High Court judge, having resolved the issue of locus stand, on the above jurisprudence, then dealt with the interpretation of the Act of 1970, and found against the plaintiff/appellant, from which finding he appeals. The defendants/respondents served a Notice to Vary, and they contend that the learned trial judge erred, inter alia, "in finding that the plaintiff had sufficient locus standi to bring the proceedings".

4 At the commencement of the hearing of this appeal this court took the view that it would be appropriate to consider the issue oflocus standi as a preliminary matter in the context of a possible alternative remedy under the Competition Act 1991, not dealt with specifically by the parties in the High Court and my judgment is confined to that single issue.

5 Essentially, on behalf of the appellants, Mr Hogan, senior counsel, contends that the learned High Court judge's finding onlocus standi was correct. He argues that the true position in the present case is that there is no other or no real alternative to the proceedings which have been instituted and certainly no real one under the Act of 1991. Because there is no other alternative by which he can have the relief he actually seeks, the learned High Court judge's reasoning cannot be faulted, as it followed an established line of jurisprudence.

6 On behalf of the defendants/respondents, Mr Allen, senior counsel, argues that the plaintiff, in order to establish that he haslocus standi was obliged first to "sue out" any possible alternative remedy and - it must be assumed - fail in doing so. He contends on the specific issue of locus standi in particular that the plaintiff had a full remedy before the commencement of these proceedings, and continues to have a remedy, under the provisions of the Competition Act 1991, submitting that because there is such an alternative remedy the case law invoked on behalf of the plaintiff/appellant in fact favours his client.

7 The possible alternative remedies in the context of this application, and as acknowledged by all parties, comprise the following:

8 (a) A formal complaint to the Competition Authority requesting the Competition Authority itself to take action against the defendants alleged to be in a dominant position or competing unfairly with the plaintiff;

9 (b) A private action by the plaintiff against the defendants pursuant to the provisions of the Competition Act1991;

10 (c) A formal complaint to the European Commission alleging impermissible or unlawful State aid.

11 In the course of the submissions it became clear that certain complaints had been made by the appellant, or by other persons loosely associated with the appellant, both to the Irish Competition Authority and to the European Commission, although the exchange of correspondence was not available during the oral hearing before this court on the 18^th day of March 2009. Mr. Hogan contended that the responses of these parties made it clear that the alternative remedy now invoked by the respondents was not, in reality, available. For the purposes of considering the attitude of those parties to the complaints made as expressed in the correspondence, the court agreed a short adjournment, a bundle of correspondence was thereafter furnished and the parties were heard further at a resumed hearing on the 25^th March 2009.

12 I can deal very simply and briefly with any possible complaint alleging State Aid in favour of the appellant, because a letter was written to the European Commission - State Aid Registry, apparently on the 12^th February 2007 and responded to on the 14^th February 2007 and on the 21^st February 2007. The court has not been furnished with the letter of 12^th February 2007 to the Commission, and the letter of the 14^th February 2007 is simply an acknowledgement of the former. However by its letter of the 21^st February 2007 the European Commission rejected the appellant's contention that the first named defendant would be cross-subsidised by unlawful State support which would harm competition in the retailing of headstones business, even if it had the vires in law to operate as it does. In the letter, the Commission stated that "on the basis of the information available the competent departments in the Directorate General for Competition have concluded that sufficient grounds do not exist for continuing the investigation". The letter points out the conditions necessary before State Aid can be considered to exist, and expresses the view that two at least of the necessary criteria are not met by the appellant's complaint. The reasons for these two criteria not being met are also set out in the letter. Clearly therefore such a complaint mechanism in the present appeal does not constitute an alternative remedy for the appellant.

13 As to complaints to the Competition Authority on grounds of alleged anti competitive activity or behaviour, or of abuse of a dominant position, the exchange of correspondence with the Authority needs more careful review as is not entirely clear. The position of the Competition Authority appears to have changed midway between 1998 when the first complaint was lodged, and 2007 when the above complaint was sent to the European Commission on the State Aid aspect. For the purposes of this judgment I make no distinction between the correspondence between the appellant and the Competition Authority, and correspondence written on behalf of another company, Fingal Memorials and Monuments Limited, or by a group called Dublin Sculptors Alliance (of which the plaintiff is and was a member). All deal with the question of complaints in relation to the activities being carried on by the first named defendant either itself or through limited companies established by it. The relevant correspondence spans the period from the 14^th July 1998 to the 8^th January 2004.

14 The initial correspondence disclosed a complaint to the Competition Authority mentioning only the first named defendant and was responded to on the 19^th August 1998 when the Authority indicated it proposed "to close this case" on the basis that the first named defendant is not "an undertaking " within the meaning of the Competition Act 1991, setting out the definition of an undertaking as being:

"A person being...