Simmonds v Kilkenny Borough Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 08 June 2011
• Neutral Citation: [2011] IESC 20
• Court: Supreme Court
• Docket Number: Record No 19731P
• Date: 08 June 2011

[2011] IESC 20

THE SUPREME COURT

Fennelly J.

Finnegan J.

O'Donnell J.

Record No 19731P

Simmonds v Kilkenny Borough Council

BETWEEN:

TOBY SIMMONDS

PLAINTIFF /APPELLANT

-and-

KILKENNY BOROUGH COUNCIL

DEFENDANT/RESPONDENT

KILKENNY MARKETS ACT 1861 S14

KILKENNY MARKETS ACT 1861 S2

KILKENNY MARKETS ACT 1861 S5

KILKENNY MARKETS ACT 1861 S26

KILKENNY MARKETS ACT 1861 S27

KILKENNY MARKETS ACT 1861 S18

KILKENNY MARKETS ACT 1861 S28

KILKENNY MARKETS ACT 1861 SCHED C

KILKENNY MARKETS ACT 1861 S31

KILKENNY MARKETS ACT 1861 S32

KILKENNY MARKETS ACT 1861 S33

KILKENNY MARKETS ACT 1861 S35

KILKENNY MARKETS ACT 1861 S30

CASUAL TRADING ACT 1995 S7(4)

HALSBURYS LAWS OF ENGLAND 4ED VOL 29(2) PARA 1024

LONG, DPP v MCDONALD & ORS 1983 ILRM 223 1982/12/2263

CASUAL TRADING ACT 1995 S7

CASUAL TRADING ACT 1995 S8

MANCHESTER CORP v LYONS 1883 22 CH D 287

NEW WINDSOR CORP & ANOR v TAYLOR 1899 AC 41

KILKENNY MARKETS ACT 1861 S8

MANCHESTER CORP v PEVERLEY & ORS UNREP 24.4.1876 (TRANSCRIPT UNAVAILABLE)

LOCAL GOVERNMENT

Market rights

Wholesale and retail merchant - Assertion of market right -- Application for declaration that public right of concourse of buyers and sellers existed - Refusal to apply for casual trading licence - Historical evidence of markets in town - Common law nature of right to trade in market - Statutory code - Whether valid claim to exercise market right - Effect of statute - Discontinuing and extinguishing of old markets - Whether markets moved following Act - Distinction between market trading and casual trading - Manchester Corporation v Lyons [1882] 22 Ch D 287; Windsor v Taylor [1899] AC 41 and DPP (Long) v McDonald [1983] ILRM 223 considered - Kilkenny Markets Act 1861 (24 & 25 Vic c 49) ss 27 and 30 - Casual Trading Act 1980 (No 43) - Casual Trading Act 1995 (No 19) s 17 - Appeal dismissed; declaration refused (2004/19731P - Fennelly J - 8/6/2011) [2011] IESC 20

Simmonds v Kilkenny Borough Council

Mr. Justice Fennelly

Judgment delivered by Fennelly [nem diss] Finnegan O'Donnell

1 This case is about market rights in the City of Kilkenny. The legal claim involves the examination of ancient charters, nineteenth century legislation and the practice of markets at the Market Yard and the Parade respectively. The Market Yard, established after 1861 seems to have ceased to operate as an open market in any real sense. It is now principally used as a car park. The respondent (whom I will call the Borough Council, formerly Kilkenny Corporation) has designated an area on the Parade under the Casual Trading Act,1995. The appellant (whom I will call Mr Simmonds) campaigns for the recognition of market rights. He wishes to trade on the Parade but does not wish to apply for a casual-trading licence.

2 Mr Simmonds has been running a market business since some time in the early 1990's. He sells olives, mozzarella and fetta cheese, pesto, hummus, beans, sun-dried tomatoes and the like, in short, a wide range of Mediterranean and other European foods. He prepares them freshly for the market. He prepares marinades; he uses his own herbs. He imports from southern Europe and North Africa. Clearly, Mr Simmonds has built a successful business in high-quality products.

3 He operates directly or through franchises, partnerships or other arrangements. He started out at the English Market in Cork and has traded at markets on the relevant market days in Galway, Bantry, Macroom and Ennis among other towns. He has licences under the Casual Trading Act in Macroom and Galway. He also trades at Temple Bar and other markets in the Dublin area.

4 In 1995, Mr Simmonds sent an employee, a Mr Danny Morris to set up in the Market Yard in Kilkenny. Mr Morris, who did not give evidence, appears to have been approached by a traffic warden who permitted him to remain that day but, as I read the very brief evidence, suggested that he could not come back. By that time, the Market Yard had been converted into a car park, apart from a part of it which had been let to the Irish Countrywoman's Association. Mr Simmonds understood that he had been told not to be there.

5 Mr Simmonds next approached what he described as "a shopping centre, the Market Yard Shopping Centre." He struck a deal and paid £20 a week for about five months in 1995 but, as he said in evidence, "it didn't work: …we didn't really do enough business and the situation was wrong." He added: "We pulled out." Mr Simmonds acknowledged that the Market Yard had been given over to a car park and that the only place where one could set up a market stall was on the surface of the car park.

6 Whatever the legal position regarding the historic market right to trade in the Market Yard, it is clear, on the evidence, that Mr Simmonds evinced no intention or wish to trade there after the desultory efforts in 1995. It is significant that he found that his trade there under the Shopping Centre agreement was unsuccessful and that, in his view, the situation was wrong.

7 Mr Simmonds had no further contact with Kilkenny until September 2002, when he wrote to Kilkenny and a number of towns enquiring generally about historical markets and market rights. In the case of Kilkenny, he stated that he understood that the County or Borough Council had acquired most market rights and that a number had been extinguished. The Borough Council replied on 17^th September 2002, stating that it had not acquired market rights and that it had no records relating to the purchase or extinguishment of market rights.

8 In July or August 2003, Mr Simmonds went to trade in Kilkenny, this time on the Parade. In evidence, he said that the Parade was"the most apparent area in Kilkenny to hold a market..; if you want to have a market that is successful it would be the most obvious place." He sought to trade on a Thursday, which he acknowledged to have been a mistake, the correct day being Saturday. On 3^rd August 2003, he wrote at some length to the Town Clerk. He noted that there were not at that date any Casual Trading bye-laws in Kilkenny. He asserted that the market rights granted to Kilkenny "over the past 800 years are alive and well." He claimed that they extended "from the Castle, down to what was Croker's Cross and up to what was the Market Cross." The Market Cross formerly stood in the High Street some distance down (in the direction of Parliament Street) from the Tholsel. He said that the Casual Trading Act could not be used to regulate market trading in Kilkenny and: "The Council will waste months maybe years trying to contest our position and in the meantime there will be a totally unregulated market all around the Parade and perhaps down and around the other market area (Dunne's Stores)." This last is a reference to the area of the Market Yard. He suggested that he meet the Council to "thrash out some form of regulation for the Parade."

9 It is material to note, at this point, that there had, at that time, been no market at the Parade, other than a market for the sale of hay, straw and coal up to about the 1920's. On some date, unspecified in the evidence, Mr Simmonds was approached by an official of the Borough Council stating that he was acting in violation of the Casual Trading bye-laws by trading at the Parade. According to Mr Simmonds, the market on the Parade grew to some seventeen traders by the end of the year 2003.

10 At this time, the Borough Council were considering the making of bye-laws under the Casual Trading Act. Mr Simmonds wrote on 31^st October 2003 claiming that "market rights exist all over the ancient Town of Kilkenny." He asked that the Borough Council "acknowledge that the Parade was at numerous times in Kilkenny's past a location for trading in the city?"

11 The Borough Council adopted Casual Trading bye-laws on 8^th December 2003 and invited Mr Simmonds to apply for a casual trading licence, which he declined to do, because, he claimed that he had market rights. The Council designated a separate railed off part of the Parade, the Mayor's Walk, containing originally fifteen bays for casual trading under the Casual Trading Act. The market day was Thursday. Almost all of those who had been trading on the Parade in 2003 applied for casual trading licences. Some twenty places, increased to twenty five, were provided. The learned trial judge found as a fact that the Borough Council sought to find a consensus with the traders in respect of location, facilities and terms.

12 Mr Simmonds returned to trade on Saturdays at the Parade in February or March 2004. Ultimately, he was prevented from trading. On 27^th March 2004, the Gardaí intervened and seized his stall and produce.

13 In a letter dated 26^th November 2004, after an interval unexplained in evidence, Mr Simmonds wrote to the Borough Council as follows:

"I am intending to trade with my market stall in the Parade, Kilkenny commencing on Saturday 11^th December and every Saturday from there on. I am entitled to do so because of the Market Rights that exist on the Parade. If you have any reason why I would be prohibited from trading under market rights, I would appreciate if you would let me know before Wednesday 8^th December. If I receive no reply I will assume that I am free to trade as I wish."

14 The Borough Council replied on 29^th November 2004 stating that casual trading on the Parade on a Saturday was in breach of the bye-laws and disputing Mr Simmonds' view about market rights.

15 The net position on the ground was that the Borough Council had established a casual trading area. Mr Simmonds, asserting a market right, was refusing to apply under the Act. He claimed that the Casual Trading legislation blocked market development all over the country. He objected, in particular, to the obligation to apply for an annual licence, as distinct from payingper...