Simmonds and Another v Ennis Town Council (No 2)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Clarke
• Judgment Date: 23 March 2012
• Neutral Citation: [2012] IEHC 282,[2012] IEHC 281
• Date: 23 March 2012

Simmonds & Real Olive Co Ltd v Ennis Town Council

BETWEEN

TOBY SIMMONDS AND BY ORDER THE REAL OLIVE COMPANY LIMITED

PLAINTIFF

AND

ENNIS TOWN COUNCIL

DEFENDANT

[2012] IEHC 281

[No. 10285 P./2011]

THE HIGH COURT

Trading - Markets - Olive trader - Importation and sale of olives by trader at market - Defendants contending plaintiffs required trading licence after revoking earlier Bye-laws - Casual Trading Act 1995

Facts: The plaintiffs operated a number of stalls selling olives at markets around the State. One of these was at Ennis Market ("the Market"). In 2011 the defendant revoked the earlier regulatory regime applicable to the Market, and issued new bye-laws.

The plaintiffs believed this to be an attempt to interfere with their regular trade, and had been prevented from setting up their stall on the grounds they did not possess a casual trading licence as required by the Casual Trading Act 1995 ("the 1995 Act"). The plaintiffs began litigation on the matter, and the High Court directed that two preliminary issues be tried.

Held by Clarke J, that the two issues concerned the definition of "casual trading" in relation to a common law right to trade, and the plaintiffs'' entitlement to sell olives without a licence. The plaintiffs submitted they had been engaged in market trading, which was not subject to regulation by the 1995 Act.

The issues could only be determined by a consideration of the terms of the 1995 Act itself, together with relevant case law and the legislative history. Having done so, the Court found that the defendant's submissions were to be preferred. Market trading was regulated by the 1995 Act and a trading licence was required, on the proviso valid bye-laws were enacted. Bridgeman v Limerick Corporation [2001] 2 IR 517 considered.

Any test of the validity of the bye-laws enacted by the defendant was a matter for the plenary hearing, and co comment was appropriate at this stage.

CASUAL TRADING ACT 1995 S2(1)

CASUAL TRADING ACT 1995 S3(1)

PUBLIC HEALTH (IRELAND) ACT 1878 S103

CASUAL TRADING ACT 1995 S2

LAND & CONVEYANCING LAW REFORM ACT 2009 S11(4)(G)

MARKETS & FAIRS CLAUSES ACT 1847 S42

BRIDGEMAN v LIMERICK CORPORATION 2001 2 IR 517

INTERPRETATION ACT 2005 S26(2)(E)

DPP (LONG) v MCDONALD 1983 1 ILRM 223

SKIBBEREEN UDC v QUILL 1986 IR 123

HUTCH v DUBLIN CORPORATION 1993 3 IR 551

CASUAL TRADING ACT 1995 S8

CASUAL TRADING ACT 1995 S8(1)

CASUAL TRADING ACT 1995 S8(2)

CONSTITUTION ART 43.1.2

EAST DONEGAL CO-OPERATIVE v AG 1970 1 IR 317

LOCAL GOVERNMENT ACT 1994 S4(1)

LOCAL GOVERNMENT ACT 1994 (COMMENCEMENT)(NO.4) ORDER SI 362/1995

LOCAL GOVERNMENT ACT 1994 (BYE-LAWS) REGS SI 360/1995 REG 11

LOCAL GOVERNMENT ACT 1994 (BYE-LAWS) REGS SI 360/1995 REG 4

LOCAL GOVERNMENT ACT 1994 S37(1)

LOCAL GOVERNMENT ACT 1994 S37(8)

LOCAL GOVERNMENT ACT 1994 S43

LOCAL GOVERNMENT ACT 1994 (COMMENCEMENT)(NO.4) ORDER SI 362/1995 REG 2

LOCAL GOVERNMENT ACT 2001 S5

LOCAL GOVERNMENT ACT 2001 (COMMENCEMENT ORDER) SI 361/2006

LOCAL GOVERNMENT ACT 2001 S209(1)

CASUAL TRADING ACT 1995 S2

CASUAL TRADING ACT 1995 S8

CASUAL TRADING ACT 1995 S3(2)(A)

CASUAL TRADING ACT 1995 S4(1)(A)(III)

CASUAL TRADING ACT 1995 S3(2)(B)

CASUAL TRADING ACT 1995 S4

CASUAL TRADING ACT 1995 S8

LOUGHREY v DOHERTY & ORS 1925 IR 103

CASUAL TRADING ACT 1995 S6

CASUAL TRADING ACT 1995 S7(4)

LISTOWEL LIVESTOCK MART LTD v WILLIAM BIRD & SONS LTD 2009 4 IR 631

SIMMONDS & IRISH ORGANISATION FOR MARKET & STREET TRADERS LTD v CORK CO COUNCIL & ORS UNREP Ó CAOIMH 22.2.2002 2002/26/6698

SIMMONDS v KILKENNY CO BOROUGH & ORS UNREP SUPREME 8.6.2011 2011 IESC 20

NEW WINDSOR CORPORATION v TAYLOR 1899 1 AC 41

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

WORLDPORT IRELAND LTD (IN LIQUIDATION) v COMPANIES ACTS UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

O'LEARY & ORS v BORD PLEANALA & ORS UNREP MCCARTHY 18.2.2008 2008/50/10705 2008 IEHC 34

BRADY v DPP UNREP KEARNS 23.4.2010 2010/5/1016 2010 IEHC 231

ENVIRONMENTAL PROTECTION AGENCY v NEIPHIN TRADING LTD 2011 2 IR 575

CASUAL TRADING ACT 1995 S8(3)(A)

1 JUDGMENT of Mr. Justice Clarke delivered the 10th February, 2012

1. Introduction

2 2 1.1 The first named plaintiff ("Mr. Simmonds") and the second named plaintiff ("Real Olive"), a company of which he is the proprietor, are involved in the importation and sale of olives principally at markets held in various parts of the country. The term "market" or "fair" has a specific legal meaning. Not all markets, as the term might be used in general discussion, are actually markets or fairs in the legal sense of the term. The law of markets and fairs relates to the entitlement of persons or bodies to conduct a periodic market subject to the terms set out in the legal instrument which confers the right in the first place. That right is typically conferred by royal charter or by statute. The right is, therefore, often referred to as a franchise right. In addition to the rights conferred on the operator of the market, it is well established as a matter of common law that parties have a right to trade at such markets subject again to the terms of the instrument creating the market right including, for example, an obligation to pay for that right in accordance with the terms of the relevant instrument.

3 3 1.2 As will be seen from that definition, a market which is organised on an entirely private basis does not qualify as a franchise market in the sense in which that term developed at common law. For example, farmers' markets are organised on a variety of bases in recent times and are, indeed, a growing phenomenon. Some such markets are, for example, organised by the owners of shopping centres as an added attraction for their customers. However, the entitlement of any trader to conduct business at such a market is dependent on the owners of the shopping centre in question giving them permission.

4 4 1.3 However, despite their ancient historical lineage, franchise markets still continue to exist as a matter of law and the common law rules, which developed in relation to the rights and obligations of all concerned, remain largely operational today.

5 5 1.4 On the other hand, the casual trading legislation of recent years (the Casual Trading Act 1980 ("the 1980 Act") and the Casual Trading Act 1995 ("the 1995 Act")) has sought to regulate a type of trading in public places that was formerly, at least in part, regulated by a range of older legislation, much of which has since been repealed. It will be necessary to analyse the casual trading legislation in due course. However, at a simple level, and in its current form under the 1995 Act, that legislation permits local authorities to designate casual trading areas and to license traders to conduct their business within such casual trading areas. The core issue which I have to decide concerns the interaction between those two schemes, that is the common law market, and the rights and obligations of those who might wish to trade at such, and the regulatory scheme provided for by the casual trading legislation and, in particular, the 1995 Act. The issue arises between the parties because Mr. Simmonds asserts that the 1995 Act has no application to persons who wish to trade on foot of their common law rights at an established franchise market while the defendant ("Ennis Council") asserts that it is entitled to regulate, under the 1995 Act, the conduct of such markets and that, in particular, in the light of the bye-laws adopted by Ennis Council, Mr. Simmonds is obliged to hold a licence under the 1995 Act in order to be able to trade in the historical Ennis Market.

6 6 1.5 At an early stage it was directed by the court (Laffoy J.) on the 15 ^th December, 2011, that two preliminary issues be tried, which are in the following terms:-

7 (1) Whether the exercise of a common law right to trade at a market or fair comes within the definition of "Casual Trading" in section 2(1) of the Casual Trading Act 1995 so as to disentitle a member of the public from exercising such right unless he holds, and trades in accordance with, a Casual Trading Licence as required pursuant to section 3(1) of the Act of 1995?

8 (2) Is [Mr. Simmonds] lawfully entitled to sell produce at the market held in Ennis at Market Street, Market Place and the immediate environs thereof, without holding and trading in accordance with a current Casual Trading Licence under the Casual Trading Act 1995?

9 7 1.6 Those preliminary issues were tried before me and this judgment is, therefore, directed to those issues. I should also note that Real Olive was, at the commencement of the hearing, joined as a co-plaintiff, without objection, as a result of a motion in that regard moved by Mr. Simmonds and Real Olive.

10 8 1.7 The question for decision is, therefore, a net one. On its proper construction does the 1995 Act have any application to franchise markets and, perhaps, if so, to what extent? One might like to think that the answer to that question would be fairly obvious from a reading of the 1995 Act. It would have been easy enough for the Oireachtas to make plain, one way or the other, what its intention was. However, sadly, that is not the case. In order to understand the reasons why it proved possible for both Mr. Simmonds and Ennis Council to put forward credible and realistic arguments for their respective positions it is, perhaps, appropriate to commence this judgment by setting out the arguments of the parties. I, therefore, turn first to the arguments advanced by Mr. Simmonds.

2. Mr. Simmonds' Case

11 2 2.1 Mr. Simmonds suggests, as a starting point, that there are a number of significant areas of common ground between the parties, from which proposition I did not understand Ennis Council to demur. It was submitted that the...