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

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 11 May 2006
• Neutral Citation: [2006] IEHC 182
• Court: High Court
• Date: 11 May 2006

[2006] IEHC 182

THE HIGH COURT

No. 2000/8719 P

PIERCE T/A SWORDS MEMORIALS & ANDREW PIERCE MONUMENTS v DUBLIN CEMETERIES COMMITTEE & ORS

BETWEEN/

DAVID PIERCE TRADING AS SWORDS MEMORIALS AND ANDREW PIERCE MONUMENTS

PLAINTIFF

AND

THE DUBLIN CEMETERIES COMMITTEE GLASNEVIN CEMETERY MONUMENT WORKS LIMITED AND GLASNEVIN CREMATORIUM LIMITED

DEFENDANTS

DUBLIN CEMETERIES COMMITTEE ACT 1846 SLIII

DUBLIN CEMETERIES COMMITTEE ACT 1846 SI

DUBLIN CEMETERIES COMMITTEE ACT 1846 SXVIII

DUBLIN CEMETERIES COMMITTEE ACT 1846 SXIX

DUBLIN CEMETERIES COMMITTEE ACT 1846 SXXV

DUBLIN CEMETERIES COMMITTEE ACT 1846 S3

DUBLIN CEMETERIES COMMITTEE ACT 1846 S4(2)

DUBLIN CEMETERIES COMMITTEE ACT 1846 S5

DUBLIN CEMETERIES COMMITTEE ACT 1846 S6

DUBLIN CEMETERIES COMMITTEE ACT 1846 S4(1)

DUBLIN CEMETERIES COMMITTEE ACT 1970 S16

DUBLIN CEMETERIES COMMITTEE ACT 1970 S15

DUBLIN CEMETERIES COMMITTEE ACT 1970 S20

DUBLIN CEMETERIES COMMITTEE ACT 1970 S24

DUBLIN CEMETERIES COMMITTEE ACT 1970 S29

CAHILL v SUTTON 1980 IR 269

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419

PARSONS v KAVANAGH 1990 ILRM 560

ROAD TRANSPORT ACT 1932

ROAD TRANSPORT ACT 1933

CONSTITUTION

LOVETT TRANSPORT v GOGAN 1995 3 IR 132 1995 1 ILRM 12

MESKELL v CIE 1973 IR 121

IRISH PERMANENT BUILDING SOCIETY & ANOR v CAULDWELL 1981 ILRM 242

BUILDING SOCIETIES ACT 1976

AG v METROPOLITAN SUPPLY COMPANY LTD 1905 1 CH 24

PLANNING & DEVELOPMENT ACT 2000 S48

RSC O.84 r20(4)

KEANE & NAUGHTON v BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS 1997 1 IR 184

HALSBURY'S LAWS OF ENGLAND 4ED VOL 9 212

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004 CHAPTER 12

MORGAN CONSTITUTIONAL LAW IN IRELAND 103

MAY TREATISE ON THE LAW PRIVILEGES PROCEEDINGS & USAGE OF PARLIAMENT 22ED

BENNION STATUTORY INTERPRETATION 4ED

BOURNEMOUTH-SWANAGE MOTOR ROAD & FERRY COMPANY v HARVEY & SONS 1929 1 CH 686

BOURNEMOUTH-SWANAGE MOTOR ROAD & FERRY ACT 1923 S56

R (CORPORATION OF LONDON) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS & COVENT GARDEN MARKET 2005 1 WLR 1286 27.12.2004 TLR

COVENT GARDEN MARKET ACT 1961 S18(1)(f)

DUBLIN CEMETERIES COMMITTEE ACT 1970 S17(k)

HAZEL v HAMMERSMITH & FULHAM LBC 1990 3 ALL ER 33

HAZEL v HAMMERSMITH & FULHAM LBC 1991 1 ALL ER 545

LOCAL GOVT ACT 1972 S111

AKUMAH v HACKNEY LONDON BOROUGH COUNCIL 2005 1 WLR 985 4.3.2005 TLR

DUBLIN CEMETERIES COMMITTEE ACT 1970(i)

DUBLIN CEMETERIES COMMITTEE ACT 1970(b)

CONSTITUTIONAL LAW

Personal rights

STATUTORY INTERPRETATION

Construction

Right to earn livelihood - Infringement - Remedy - Whether plaintiff having locus standi - Irish Permanent Building Society v Cauldwell [1981] ILRM 242, Lovett v Gogan [1995] 3 IR 132 and Parsons v Kavanagh [1990] ILRM 560 applied; Attorney-General v Metropolitan Electric Supply Company Limited [1905] 1 Ch 24 and Construction Industry Federation v Dublin City Council [2005] IESC 16, [2005] 2 IR 496 considered- Plaintiff allowed locus standi (2000/8719P- Laffoy J - 11/5/2006) [2006] IEHC 182 Pierce v Dublin Cemeteries Committee

The plaintiff, who was engaged in the business of designing, constructing and selling headstones and monumental sculpting in the Dublin area sought declarations that the first named defendant, either by itself or through the second named defendant, was not entitled to engage in the commercial sale of headstones. The plaintiff submitted that the defendant was acting ultra vires its statutory powers by selling monuments, headstones and inscription services and sought damages for breach of his constitutional right to earn a livelihood.

Held by Laffoy J. in dismissing the plaintiff’s claim: That by virtue of the combined operation of paragraphs (i) and (b) of section 17 of the Act of 1970, the first named defendant did have an express power to sell headstones and that power was not limited to cemeteries owned and operated by the defendant. Consequently, in manufacturing and selling headstones the first named defendant was not acting ultra vires its statutory powers.

Reporter: L.O’S.

1 Judgment of Miss Justice Laffoy delivered on 11th May, 2006 .

The factual background

2 Since 1988 the plaintiff has been engaged in the business of designing, constructing and selling headstones and monumental sculpting in the Dublin area. Initially the business was conducted in partnership with his brother. However, in 1999 he acquired his brother's interest. From the start, the business was carried on from Swords, County Dublin and that is the current position, although for a period in the late l990s the plaintiff also carried on the business from a premises in Capel Street in the city of Dublin. The plaintiff's business services cemeteries in the city and county of Dublin.

3 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). The Committee replaced a body corporate, which had been established under the name the Dublin Cemeteries Committee (the 1846 Committee), by the Dublin Cemeteries Act, 1846 (the Act of 1846), which is described in s. LIII thereof as a public Act. The Committee is a registered charity for tax purposes. It currently owns and manages the following cemeteries situated in the City and County of Dublin:

4 (1) Goldenbridge Cemetery;

5 (2) Glasnevin (formerly Prospect) Cemetery;

6 (3) Palmerstown Cemetery, which was established in 1978;

7 (4) Dardistown Cemetery, which was established in 1990; and

8 (5) Newlands Cross (also referred to as Ballymount) Cemetery, which was established in 1999.

9 Goldenbridge and Glasnevin Cemeteries were in existence when the Act of 1846 was passed. The enactment of the Act of 1970 enabled the establishment of the cemeteries at Palmerstown, Dardistown and Newlands Cross. Goldenbridge Cemetery is full, which I understand to mean that interments rarely, if ever, occur there now.

10 The second defendant (the Company) is a company limited by shares, which was incorporated in 1971 with the primary object of carrying on the business of manufacturing and selling tombstones and monuments. It is wholly owned and controlled by the Committee. The decision of the Committee to conduct the business of providing monuments through a company was explained by the defendants as having been motivated by caution to ensure that the Committee's exemption from rates was not jeopardised. A secondary motivation, according to the evidence, was to ensure that the Committee would not have an unfair tax advantage over competitors; the Company is liable for Corporation Tax and Value Added Tax. However, nothing turns on that.

11 What provoked these proceedings is the manner in which the Company conducts its business. It operates a sales outlet at the entrance to each of the operating cemeteries under the remit of the Committee, Glasnevin, Palmerstown, Dardistown and Newlands Cross Cemeteries, and the officer of the Committee at each Cemetery, the Registrar, is effectively a salesman for the Company's products and services. The plaintiff contends that this gives the Company a competitive advantage over other monumental sculpting businesses which operate in the Dublin area. I accept on the evidence that that contention is correct. The Company also sells headstones for use in other cemeteries in the Dublin area, for example, cemeteries under the aegis of local authorities.

12 The third defendant, which is also wholly owned and controlled by the Committee, was incorporated in 1982 to operate the crematorium at Glasnevin Cemetery. While the plaintiff has a specific complaint against this defendant arising out of the fact that the Company has a virtual monopoly in relation to inscription in the Garden of Remembrance at Glasnevin where cremated remains are interred and elsewhere within Glasnevin Cemetery, a practice which the Committee justifies on the necessity for consistency of inscriptions recording communal interments, I am satisfied that it is not necessary to consider the position of the third defendant separately.

13 The plaintiff contends that the manner in which the Company conducts its business is unfair to persons like him who are operating monumental sculpting businesses and is damaging to their businesses. Prior to embarking on these proceedings, he sought to have these issues addressed by making representations to politicians and representations to the Revenue Commissioners and to the Competition Authority, without success.

The proceedings

14 The nub of the plaintiff's case in these proceedings is that the Act of 1970 does not empower the plaintiff to sell monuments, headstones, inscription services and such like and that its activities, through the medium of the Company, in those areas of enterprise are ultra vires. He seeks declarations that, inter alia, the Committee, either by itself or through the Company, is not entitled to engage in the commercial sale of headstones, and that the Committee is not entitled to prohibit the engaging of monumental sculptors, including the plaintiff, for the purposes of placing inscriptions on, inter alia, the Garden of Remembrance at Glasnevin Cemetery. He seeks injunctions to prohibit the Committee engaging in such activity. He also seeks damages for breach of constitutional rights, breach of statutory duty and misfeasance in public office. The constitutional right which he invokes and which he alleges has been unlawfully interfered with is his right to earn a livelihood.

15 The plaintiff's case raises a broader question: whether the Committee is entitled to perform any of its functions or exercise...