State (Batchelor & Company (Ir.) Ltd), The v D.J. O Floinn

• Jurisdiction: Ireland
• Judgment Date: 01 January 1960
• Docket Number: [1954. No. 16 S. S.]
• Date: 01 January 1960
• Court: Supreme Court

Supreme Court.

[1954. No. 16 S. S.]

The State (Batchelor & Co. (Ireland) Ltd.) v. District Justice O Floinn and Another

THE STATE (at the Prosecution of BATCHELOR & COMPANY (IRELAND) LIMITED)

and

DISTRICT JUSTICE CATHAL O FLOINN, one of the Justices of the Metropolitan District Court, and Maureen O'Carroll, and in the Matter of the Courts of Justice Act

1924.

Certiorari - Sale of goods under trade description - Issue of District Court summonses at instance of private prosecutor for alleged false description - Issue of search warrant by District Justice to search defendants' premises - Goods taken under warrant - No notice to defendants of application for warrant - Application for warrant made ex parte - Whether such notice necessary - Whether warrant reviewable on certiorari - Merchandise Marks Act, 1887, (50 & 51 Vict., c. 28), s. 12.

Certiorari.

Batchelor & Company (Ireland) Limited was a company incorporated in Ireland and had its Registered Office in the City of Dublin. It had factory premises at Cabra West, Dublin. On the 20th September, 1954, a summons was issued, in which the complainant was Maureen O'Carroll, whereby the Company was charged with selling goods, namely, a mixture of marrowfat and blue peas to which a false trade description, namely, "specially selected marrowfats,"meaning marrowfat peas, had been applied, on the 18th May, 1954, and also charged the Company with having in their possession for sale on the 18th May, 1954, a mixture of marrowfat and blue peas to which a false trade description, namely, "specially selected marrowfats," meaning marrowfat peas, had been applied. On the same date, a separate summons with the same complainant was served on the Company. This summons charged the Company on the 18th September, 1954, with having in their possession for sale goods, namely, a mixture of marrowfat and blue peas to which a false trade description, namely, "specially selected marrowfats," meaning marrowfat peas had been applied. On the afternoon of Tuesday the 21st September, 1954, the Company was visited by a number of gardaí, with a search warrant empowering them to search the premises of the Company. The detective sergeant, who was in charge of the gardaí at that time, stated to an officer of the Company that he was searching for a mixture of marrowfat and blue peas described as "specially selected marrowfats." He showed the said officer the warrant, and the officer of the Company thereupon had a copy made in the presence of one of the gardaí. The said warrant purported to have been issued by District Justice Cathal O Floinn on the 21st September, 1954, and was addressed to the Superintendant of the Garda Síochána of Green Street and his assistants. The dective sergeant carried out a search of the premises of the Company at Cabra West and was shown cases of marrowfat peas which were on the premises. During the afternoon of the same day he had 653 cases of packaged peas, each containing 36 packages, removed in two lorries from the premises of the Company. It was stated by a director of the Company that the value of these peas was approximately £1,306.

The complainant made an oral information on oath, but was required by the District Justice to make an information in writing, which she did. That information was as follows:—"The information of Maureen O'Carroll of No. 21 Kirwan Street, in said district, who being duly sworn upon oath at the Metropolitan District Courts, Inns Quay, in said district before me, one of the Justices in and aforesaid district, deposeth and saith as follows:—

I am secretary of the Lower Prices Council and member of Dail Eireann. I am the complainant in a summons issued by me against Batchelor & Co. (Ireland) Ltd. in which they are charged with having in their possession for sale on the 18th September, 1954, goods, namely, a mixture of marrowfat and blue peas to which a false trade description, namely, "specially selected marrowfats," meaning marrowfat peas, had been applied, contrary to the Merchandise Marks Act, 1887. Early in the present month I purchased some packets of dried peas described on the container as"specially selected marrowfats" and bearing the name of the defendants. On examining the contents of each packet prior to the cooking of them I found that the peas were in fact a mixture of marrowfat and blue peas. Subsequently, and in the course of the present month, I visited a number of retail grocers in the city and suburbs of Dublin and county of Dublin from each of which I purchased a packet or packets of peas bearing the description "specially selected marrowfats" and bearing the defendants' name. On examination of these packets they were all found to contain a mixture of marrowfat and blue peas, the percentage of the blue peas in the mixture varying between ten per cent and twenty-two and a half per cent. I have been informed and believe that blue peas are substantially cheaper than marrowfat peas and that the admixture of blue peas with marrowfat reduces the cost to the defendants by between one penny and twopence halfpenny per packet. I am informed and believe that the defendants sell not less than three to four million packets per annum of these peas, which the defendants describe as "specially selected marrowfats," in this country and that the consuming public is thus being defrauded of between twelve thousand and fifteen thousand poundsper annum. I am informed and believe that the wholesale and retail grocery trade in the City and County of Dublin is still being supplied by the defendants with packets of peas bearing the description referred to above and containing the mixture already referred to and I believe that the defendants had on the 18th September, 1954, and still have in their possession at their premises in Cabra West, Dublin, packets of peas bearing this false description and containing the mixture already referred to.

I pray for a search warrant under s. 12 of the Merchandise Marks Act, 1887, against the defendants authorising a search of their premises at Cabra West, Dublin, for the reasons set out above.

Signed: Maureen O'Carroll

21st September, 1954.

Informant bound etc.,

Cathal O Floinn."

Mr. P. J. Loughrey, a director of the Company, stated that the Company had been advised that the description "specially selected marrowfats" was not a trade description within the definition contained in the Merchandise Marks Act, 1887, and that the Company had not committed any offence against any of the provisions of the said Act. He also said that the issue of the said search warrant resulted in publicity and the seizure of over £1,300 worth of the Company's goods and had caused the Company serious loss. He further stated that up to the time of the issue of the summonses, no complaint whatever had been received by the Company from anyone as to the goods produced or sold by it, and no intimation that summonses were contemplated had been received by the Company. The Company had sold the peas described as marrowfat peas since its inception, approximately twenty years ago. No complaint with reference to the quality of the marrowfat peas sold by the Company had been made at any time.

The Company applied to the High Court for an order ofcertiorari to quash the said warrant on the following grounds:—

"1, that the said warrant of the 21st September, 1954, was issued without notice to and in the absence of Batchelor & Co (Ireland) Ltd., and without notice to the said Company of the intention to make the said application and was issued without jurisdiction and in excess of jurisdiction.

2, that the issue of the said warrant was contrary to natural justice.

3, that the warrant is bad on its face in that it refers to a summons issued against the said Company without identifying the same, so that the said warrant is ambiguous.

4, that the said warrant is bad in that it is addressed to the superintendent and his assistants and is not in accordance with s. 12 of the Merchandise Marks Act, 1887.

5, that the information upon which the said warrant was issued does not show the grounds of the belief or the reasons why the said Maureen O'Carroll believed that the said Company had on the 18th September, 1954, or on the 21st September, 1954, at their premises at Cabra West, packets of peas bearing a false description, and was issued without jurisdiction.

6, that the said warrant was issued without and in excess of jurisdiction."

The application for the conditional order of certiorari was made to Mr. Justice Haugh, sitting as a Vacation Judge on Saturday the 25th September, 1954. It was granted by Mr. Justice Haugh and the time for showing cause was abridged to twelve o'clock noon on Tuesday, the 28th September, 1954. It was provided by the conditional order that cause would have to be shown by that time by affidavit or by notice of motion by Wednesday, the 29th September, 1954. The order was directed to the complainant and District Justice Cathal O Floinn. Cause was shown and the matter came before Mr. Justice Haugh on the 29th September, 1954.

From this judgment the complainant appealed to the Supreme Court (4).

The grounds of the appeal were as follows:—

"1, that the said warrant was good on its face.

2, that none of the grounds stated in the conditional order for quashing the said warrant were good grounds in law for so doing.

3, that the issuing of the said warrant was a matter for the discretion of the learned District Justice in a case within his jurisdiction and the exercise of such discretion is not reviewable on certiorari proceedings."

The notice of appeal was dated October, 1954.

O. took out summonses under s. 12 of the Merchandise Marks Act, 1887 against B. for selling packaged peas under a false trade description. It was alleged that the peas were described as marrowfat peas when they were not in fact such. O. then applied under the above section for a search warrant...