Public Markets
Cases
Bridgeman v. Limerick Corporation
[2000] IEHC 121
THE CASUAL TRADING ACT, 1995
4. The Casual Trading Act, 1995, Section 6(6), requires a local authority before making bylaws under the section to publish notices in at least two newspapers circulating in the area to which the proposed bylaws relate indicating the times at which, the period (being not less than one month) during which and the place within their functional area where a copy of the proposed bylaws may be inspected and stating that the local authority will consider any submissions in relation to the proposed bylaws which are submitted to the authority in writing by any person within two weeks after the end of the period during which the proposed bylaws may be inspected. The subsection further provides that a person may within two weeks after the end of the period for inspection of the proposed bylaws make submissions in writing to the local authority in relation thereto and that the local authority shall before deciding whether to make the bylaws take into consideration any submissions duly made to it and not withdrawn. Finally, the subsection provides that a person who is aggrieved by any proposed bylaws may within a period of 21 days beginning on the date of compliance by the local authority with the requirements as to notice and inspection of the proposed bylaws appealed to the District Court against the proposed bylaws and that Court may on hearing the appealed prohibit the proposed bylaws or authorise them subject to such conditions, if any, as it may deem appropriate. An appeal lies to the Circuit Court from a decision of the District Court. The Applicant did not avail of the facility for making representations to the Respondents nor did he appeal to the District Court.
THE LIMERICK MARKETS ACT, 1852
5. The issues raised on this application can be resolved by a consideration of the terms of the Limerick Markets Act, 1852 with a view to the determining whether the bylaws contravene or purport to authorise the contravention of the provisions thereof.
6. The relevant portion of the preamble to the Act provides as follows:-
“Whereas the present markets for the sale of corn and other agricultural produce in the Borough of Limerick are insufficient: and whereas there are not at present established in the said Borough or in the suburbs thereof any fit or sufficient markets for the sale of live cattle or other livestock, or of dead pigs, or of corn, butter, hay, straw, green food for cattle, vegetables, or other agricultural produce, or of eggs, fowl, fish or such like articles in consequence of which the same are sold in the public streets to the great inconvenience and annoyance of the inhabitants of the said borough and of persons resorting thereto,
And whereas it would be a material accommodation and advantage to the inhabitants of the said Borough, and to persons resorting thereto, and to all persons interested in buying and selling therein, if all the markets within the said Borough were rendered more sufficient, fit and convenient, and placed under better control, and proper rules and regulations were made for the government thereof:”
7. The relevant sections of the Act are as follows:-
“30. Whereas plans and sections of the market places, and of the approaches thereto, and of the other works in connection therewith to be authorised by this Act and also a book of reference containing the names of the owners or reputed owners, lessees or reputed lessees, and of the occupiers of the lands in, through, by, near, or along which the same are proposed to be executed, have been deposited with the Clerk of the Peace for the County of the City of Limerick: be it enacted, that subject to the provisions in this Act and the Acts incorporated therewith contained, it shall be lawful for the trustees, upon the lands delineated in the said plans and sections and described in the said book of reference, to enter and the same to take and appropriate for the purposes of this Act, and upon the lands so entered upon, taken, and appropriated to make, construct, provide, and establish a new market place or market places with all necessary buildings and works, conveniences and appurtenances thereto, for the sale respectively of corn and all other agricultural produce, cattle and other livestock, dead pigs, butter, fish, fowl, eggs, potatoes, fruit and vegetables, hay, straw and green food for cattle, and of all such other marketable commodities as are in Schedule C to this Act annexed respectively mentioned or referred to, and to make, execute and maintain the same, and the approaches thereto, and other works in connexion therewith, upon the lands delineated and described in the said plans and sections: provided always that it shall not be lawful for the trustees to take any land for the purposes of making more than one of the new markets delineated on the said plans in the first instance; provided also that the land shall only be taken for the second of the said new markets when and so soon as the first thereof shall have been opened and established.
32. The markets to be provided and established under this Act shall be held within the municipal boundaries of the said Borough; and, subject to the provisions of this Act, no market, other than the markets to be provided and established under this Act, shall be held within the said boundary and within a circuit of one mile therefrom.
44. After the said market places shall be open for public use, every person (except an auctioneer selling by auction in any place other than the public street, or a licensed hawker, or a person hawking or selling eggs or fruits, or a person bringing by water carriage any corn, grain, pulses, or seeds,) who shall sell or expose for sale in any place within the limits of this Act other than in some one of the said markets places, or of such private legal markets, or in his own dwellinghouse, shop, warehouse, yard, or store, any cattle or livestock, or any corn or anything whatever in respect of which rents or tolls are by this Act authorised to be taken shall for every such offence be liable to a penalty not exceeding 40 shillings to be recovered in the same manner as penalties are recoverable under the Markets and Fairs Clauses Act, 1847.”
8. The Act in Schedule C sets out the rents and tolls chargeable, payable and recoverable under the Act in the markets established under the Act. The produce mentioned in the Schedule is as follows – wheat, oats, barley, bere, beans, peas, rye, rape seed, flax seed, grain, corn, other seeds not enumerated, flax, hemp, wool, bark, butter, hay, straw, clover, grass, rapesrye, vetches or other green food for cattle, mangold wurzel, turnips, other agricultural produce whatever, save and except potatoes, fish, eggs, coal, iron, lead, copper or other mineral, hides or skins, and livestock.
9. The recital to the Act is a guide to the legislative intention – “a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress” Stowel -v- Lord Zouch , (1569) 1 Plowd. 353 per Dyer CJ at p. 369 cited in Imperial Tobacco Limited -v- A.G., (1979) QB 555 at p. 575. The mischief which the Act intended to redress is the sale of livestock and agricultural produce of the specified type in the streets of Limerick to the inconvenience of the city’s inhabitants and to furnish the Respondents with powers of compulsory purchase to enable them to acquire lands and to develop the same as markets for the sale of livestock and the specified agricultural produce. The Act did not restrict a licensed hawker or a person selling eggs or fruits from selling otherwise than in a market established pursuant to the Act. The sale of anything other than livestock and the specified agricultural produce elsewhere than in a market established under the Act was not prohibited.
10. The word “market” at common law bore a number of meanings –
(a) A franchise conferring a right to hold a concourse of buyers and sellers to dispose of commodities in respect of which the franchise is given: Marquis of Downshire -v- O’Brien, (1887) 19 LR IR 380 at p. 390.
(b) The like right conferred by Act of Parliament.
(c) The concourse of buyers and sellers.
(d) The market place.
(e) The time of holding the market.
As used in the Act the word “market” when it is intended to refer to the market place is coupled with the word place: elsewhere where not coupled with the word place it is intended to refer to a concourse of buyers and sellers and it is in this sense that the word “market” is used in the second sub-clause of Section 32 of the Act. The effect of the section accordingly is to prohibit the holding of a concourse of buyers and sellers within the municipal boundaries and within a circuit of one mile therefrom. However, having regard to the scheme of the Act and in particular the preamble thereto, the same does not prohibit a concourse of buyers and sellers in relation to goods, products or produce other than livestock and specified agricultural produce. The bylaws do not create a market in livestock and the specified agricultural produce. The provisions of the Casual Trading Act, 1995, Section 4, with regard to licences will enable the Respondents to ensure that no market which will infringe the provisions of Section 32 of the Act of 1852 will be held within the casual trading area. Accordingly, the creation of a casual trading area per se does not infringe the provisions of Section 32 of the Act of 1852. The application fails on both grounds relied upon by the Applicant.
11. The Respondents in their grounds of objection raise two matters with which I propose to deal, namely:-
1. whether the Applicant has locus standi, and
2. whether having regard to the circumstance that the Applicant failed to avail of the right of appeal granted to him by the Casual Trading Act, 1995, Section 6(8), the reliefs sought which are discretionary should be granted.
LOCUS STANDI
In Lancefort Limited -v- An Bord Pleanala , (1998) 2 ILRM at page 440, Keane J said:-
“It is clear, as was held by this Court in Chambers -v- An Bord Pleanala, (1992) 1 IR 234 that the fact that a person affected by a proposed development did not participate in the appeals procedure is not of itself a reason for refusing locus standi.”
12. Again, at p. 435 he said:-
“The authorities reflect a tension between two principles which the Courts have sought to uphold: ensuring, on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the Courts because of the absence of indisputably qualified objectors and, on the other hand that the critically important remedies provided by the law in these areas are not abused….
Nevertheless the requirement that, as a general rule, a locus standi must be established where a person seeks to challenge the decision of a public body remains, although the criteria have changed over the years, a ‘sufficient interest’ in the matter having replaced the somewhat more restrictive concept of a ‘person aggrieved’. In the particular case of challenges by way of Certiorari with which these proceedings are concerned, the insistence on the party having such an interest reflects the policy of the Courts which is intended to ensure that the most potent and valuable of legal remedies is not resorted to by the merely officious or men or women of straw who have nothing to lose by clogging up the Courts with ill-founded and vexatious challenges.”
13. In this case even applying the more restrictive criterion of a person aggrieved, it is clear that the Applicant has locus standi. He is severely affected in his business as a market trader who habitually traded within the Borough of Limerick. He has made a no doubt substantial investment in a vehicle from which to trade which cannot be accommodated in the trading spaces which it is proposed by the Respondents to provide and his investment is thereby being rendered futile to that extent and he is thereby affected in earning his livelihood. Having satisfied the more stringent criterion of an aggrieved person he clearly qualifies as having a sufficient interest and so has locus standi.
DISCRETION
14. While facts relevant to determining whether an applicant has locus standi and facts relevant to the exercise of the Court’s discretion may overlap, it is clear that the existence of an appeal procedure and whether or not the Applicant availed of the same are relevant in determining whether the Court should exercise its discretion in favour of the Applicant. In The State (Abenglen Properties Limited) -v- The Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin, (1984) IR 381 and 393, O’Higgins CJ dealt with the matter as follows:-
“The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the Court’s discretion. It is well-established that the existence of such right or remedy ought not to prevent the Court from acting. It seems to me to be a question of justice. The Court ought to take into account all the circumstances of the case, including the purpose for which Certiorari has been sought, the adequacy of the alternative remedy and, of course the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then normally, the existence of a right of appeal or failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved the existence of such ought not to be a ground for refusing relief. Other than these grounds there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such questions while retaining always the power to quash a Court should be slow to do so unless satisfied that for some particular reason, the appeal or alternative remedy is not adequate.”
15. In the present case the Applicant seeks to challenge the jurisdiction of the Respondents to make bylaws. The appeal provided for in the Casual Trading Act, 1995, Section 6(8)(a) is unrestricted in that the District Court and the Circuit Court on appeal may prohibit the proposed bylaws or authorise them subject to such conditions as are deemed appropriate. Accordingly, the alternative avenue of appeal was available to the Applicant. Unlike the situation which existed in The State (Abenglen Properties Limited) -v- The Lord Mayor Aldermen and Burgesses of Dublin, however, there was not here a deliberate choice not to avail of the remedy of appeal. It appears from the Applicant’s affidavit that submissions on behalf of the traders as a body were made to the Respondents and an appeal taken to the District Court on their behalf but not by the Applicant in his own name. The appeal was dismissed on the basis that it was out of time and while an appeal to the Circuit Court against the decision of the District Court was contemplated it was not pursued. Applying the dicta of O’Higgins CJ to the circumstances of this case, had I construed the Act in the manner contended for by the Applicant as the issue raised goes to the jurisdiction to make the bylaws it would have been appropriate to exercise my discretion in favour of the Applicant and grant the relief which he seeks.
16. The relief sought is refused.
Hand v. Dublin Corporation
[1991] 1 IR 409, [1991] IESC 1
Griffin J.
1. This appeal is taken by the plaintiffs against the order of the High Court made by Barron J. on the 28th October, 1988, dismissing the plaintiffs’ claim for a declaration that such of the provisions of ss. 4 and 5 of the Casual Trading Act, 1980, as purport to empower the first and second defendants to refuse to grant respectively to the plaintiffs (a) a casual trading licence and (b) a casual trading permit are invalid having regard to the provisions of the Constitution, and for ancillary relief by way of injunction and damages.
The statutory provisions
2. In its long title the object of the Act of 1980 is described as being “TO PROVIDE FOR THE CONTROL AND REGULATION OF CASUAL TRADING AND TO PROVIDE FOR CONNECTED MATTERS”. “Casual trading” is defined in s. 2, sub-s. 1 as meaning “selling goods by retail at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area”. “Casual trading area” is defined in s. 1 as meaning land standing designated [by a local authority in its functional area] under s. 7 of the Act of 1980 as an area where casual trading may be carried on.
3. Restrictions on casual trading are provided for in s. 3 of the Act of 1980, the relevant provisions of which are:-
“(1) A person shall not engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that are for the time being in force and the casual trading is in accordance with the licence and the permit.
(2) A person shall not engage in casual trading in an area other than a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and the casual trading is in accordance with the licence.
(3) (a) Where there is a casual trading area in the functional area of a local authority, a person shall not engage in casual trading
(i) in that functional area other than in that casual trading area…
(4) A person who contravenes this section shall he guilty of an offence.
(5) (a) In a prosecution for an offence under subsection (1) of this section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as a servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force or of a casual trading permit for the time being in force.
(b) In a prosecution for an offence under subsection (2) of this Section, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or any person of whom he was at that time acting as servant or agent in relation to such trading, was not the holder of a casual trading licence for the time being in force.”
4. The grant of casual trading licences is provided for in s. 4 of the Act of 1980 which is central to this case. The relevant sub-sections are as follows:-
“( 1) Subject to the subsequent provisions of this section the Minister shall, on
the application in writing of a person therefore and on payment of a fee of £100, grant to the person a licence (referred to in this Act as ‘a casual trading licence’), in such form and specifying such matters as the Minister may determine, authorising the person to engage in casual trading.”
“(3) (a) A casual trading licence may contain such conditions (if any) as the Minister determines and specifies in the licence.
(b) A person who holds a casual trading licence shall comply with the conditions of the licence.
(c) A person who contravenes paragraph (b) of this subsection shall be guilty of an offence.”
“(5) The Minister may refuse to grant a casual trading licence to a person who has been convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under this Act.
“(6) The Minister shall not grant a casual trading licence to a person who was convicted of two or more offences (each offence being either an offence in relation to the importation, possession or sale of goods committed while the person was the holder of a casual trading licence or an offence under this Act) if the latest conviction occurred less than five years before the first day on which the person proposes to engage in the casual trading to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence.”
5. A casual trading licence remains in force for a period of twelve months and then expires (section 4, sub-section 7).
Section 5 of the Act of 1980 provides for the grant of casual trading permits. The effect of this section is that where there is a casual trading area in its functional area, a local authority shall, on the application in writing of a person who is the holder of a casual trading licence for the time being in force, grant a casual trading permit authorising such person to engage in casual trading at one place only in one specified casual trading area in its functional area on specified days. The local authority has, therefore, no power to grant such a permit unless the applicant is at that time the holder of a licence granted under section 4.
Section 6, sub-s. 1 of the Act of 1980 requires a person engaging in casual trading in a casual trading area to display the casual trading permit relating to the trading in such a position as to be clearly visible and easily legible to members of the public at that place. Section 6, sub-s. 2 has a similar provision requiring the display of the licence where the casual trading is being carried on other than in a casual trading area. It is to be noted that these provisions are for the benefit of members of the public.
Section 6, sub-s. 3 provides that a person who contravenes the section shall be guilty of an offence.
Section 11, sub-s. 1 (b) of the Act of 1980 enables a local authority to appoint officers of the authority to be “authorised officers” for the purpose of the Act and such an authorised officer or any member of the gardaí may, in the functional area of the authority, exercise the powers conferred by section 11. The powers granted by that section are very wide but for the purposes of this appeal it is not necessary to set them out. It is sufficient to say that under s. 11, sub-ss. 3 and 4 (a) a person shall not obstruct or interfere with or give false information to an authorised officer or a member of the Garda Siochána in the performance of his functions under the Act, nor fail, refuse or neglect to comply with a requirement of an authorised officer or a member of the Garda Siochána under section 11. A person who contravenes these provisions is guilty of an offence.
Section 15 of the Act of 1980 provides for penalties. Under that section offences contravening s. 3 of the Act are triable on indictment, and a person guilty of an offence under s. 3 on conviction on indictment is liable to a fine not exceeding £5,000 together with, in the case of a continuing offence, a fine not exceeding £250 per day after the first day, or to imprisonment for a term not exceeding 6 months, or to both fine or fines and imprisonment. Offences under s. 3 are triable summarily if a justice of the District Court is of opinion that the facts proved or alleged constitute a minor offence fit to be tried summarily, and if the Director of Public Prosecutions consents and the defendant does not object to being tried summarily. In such event the penalty is a fine not exceeding £500 . All other offences under the Act are triable summarily, the penalty for which is also a fine not exceeding £500.
6. The Act came into force in the City of Dublin in 1983 (the date is not stated in the papers before us) and thereupon the first defendant designated the south side of Henry Street from the junction of Liffey Street Upper to the junction of O’Connell Street Lower as a casual trading area in the month of December to facilitate Christmas trading there – the distance between Liffey Street and O’Connell Street would be approximately 250-300 yards. A current licence and a current permit are necessary to enable a casual trader lawfully to trade in that area during the month of December in any year.
The facts
7. All fourteen plaintiffs are street traders who have been engaged in that activity for varying periods of years. During most of such time, as the learned trial judge found in his judgment (see:- [1989] I.R. 26), and as was admitted in the action, they have been trading in Henry Street in contravention of the relevant provisions of the Act of 1980. In respect of trading in the month of December in Henry Street, four of the plaintiffs have at no time had a casual trading permit; three of them were not granted a permit in respect of December, 1984, or December, 1985; five of them were not granted a permit in respect of December, 1985, and the remaining two had a permit in respect of December, 1985. In the period from the 1st December to the 24th December in each year each of them would earn approximately £50 to £60 per week. There are 85 “places” in Henry Street, and these have been allocated to traders who have both a licence and a permit. There are upwards of 900 applicants each year for these 85 places, with the result that there is a huge waiting list of those seeking permits in respect of Henry Street, including a large number who have never been convicted of any offence under the Act.
8. Towards the end of November, 1985, each of the plaintiffs applied to the Minister for a licence for the twelve months commencing the 1st December, 1985. As each of them had been convicted of two or more offences under s. 3 of the Act, each of these applications was refused pursuant to s. 4, sub-s. 6 of the Act of 1980. None of them was therefore able to apply for or obtain a permit for Henry Street for the month of December, 1985. That did not however deter them from trading in Henry Street in that month though without a licence or permit to do so. As was admitted in evidence at the trial, when trading without a licence or permit is carried on, they “keep a wary eye out for the guards”. When a garda or authorised officer approaches the area in which they are trading, they run away.
9. They again traded in Henry Street in the month of December, 1986. On the 9th of December in that year each of them was informed by Miss MacInerney, an authorised officer under the Act of 1980, that as they had no licence or permit, they could no longer trade in Henry Street and that any of them who attempted to do so would be removed by the gardaí. These proceedings were commenced on the following day.
10. In the High Court the action was tried by Barron J. It was accepted on behalf of the plaintiffs that the kernel of the case was the provisions of s. 4, sub-s. 6 of the Act of 1980. It was submitted in the High Court that
(a) the wording of the sub-section is so uncertain that it is not possible to ascertain, from the language used, the intention of the Oireachtas;
(b) furthermore, that if it is capable of construction, the effect of the sub-section is to deprive the plaintiffs of their means of livelihood and that the deprivation of the licence is a punishment out of proportion to the nature of the offences committed and is therefore invalid having regard to the provisions of the Constitution.
11. The learned trial judge dismissed the plaintiffs’ claim and refused the relief sought. In so doing, he concluded
(a) that s. 4, sub-s. 6 of the Act of 1980 was capable of construction and construed it, and that it applied to the plaintiffs as each of them had at least two relevant convictions and in no case had five years elapsed since the last of such convictions;
(b) that even if the principle of proportionality were to be adopted in this jurisdiction it could apply only in the exercise of administrative powers and could not apply to s. 4, sub-s. 6 of the Act of 1980 since it was the Oireachtas which imposed the sanction;
(c) that as the right to earn one’s livelihood by casual trading is given by the Act it is not unreasonable for the Oireachtas to deprive the person to whom it is granted of the licence for conduct directly referable to the fitness of that person to exercise that privilege (sic).
12. From that order of the High Court the plaintiffs have appealed to this Court. No appeal was taken in respect of the conclusion of the learned trial judge relative to the construction of s. 4, sub-section 6. The remaining submissions in the High Court were repeated in this Court. In addition, it was submitted on behalf of the plaintiffs that:-
(1) the decision of this Court in Conroy v. Attorney General [1965] I.R. 411 was wrong in so far as it was held
(i) that the grant of a driving licence under part III of the Road Traffic Act, 1961, was a privilege, and
(ii) that the making of a consequential disqualification order under s. 26, sub-s. 1 of the said Act upon the conviction of a person of an offence specified in the second schedule to that Act was not a punishment which could be imposed only by a court, and that Conroy’s case should not be followed;
(2) the plaintiffs had a right to earn their livelihood as street traders, and Article 40, s. 3, sub-s. 2 of the Constitution prohibited the Oireachtas from enacting legislation which deprived them of their means of livelihood as street traders.
Presumption of constitutionality
13. It is well settled that when this Court or the High Court has to consider the constitutionality of any law enacted by the Oireachtas, the impugned Act and each provision thereof is presumed to be constitutional unless and until the contrary is clearly established. That principle therefore applies in this case.
The decision in Conroy v. Attorney General
14. A large part of the argument both in the High Court and in this Court was concerned with the decision of this Court in Conroy v. Attorney General [1965] I.R. 411. In that case the plaintiff was charged in the District Court with the offence of what is commonly called driving while drunk pursuant to s. 49 of the Road Traffic Act, 1961. If convicted he was liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both fine and imprisonment. Pursuant to s. 26 of that Act, in the case of a first offence there was a consequential disqualification for holding a driving licence for not less than one year, and for not less than three years in the case of a second or subsequent offence. It was contended on his behalf that, by reason of the gravity of the offence and the severity of the punishment, the offence charged was not a minor offence fit to be tried summarily and that the provisions of that Act providing for summary trial were invalid having regard to the provisions of the Constitution.
15. Whilst in that case the Court considered the nature and effect of the statutory “right” to a driving licence (“right” in that context being used in contrast to “privilege”), and of the consequential disqualification from holding a driving licence pursuant to s. 26 of the Act of 1961, the ratio of the decision was that a punishment of 6 months imprisonment and a fine of £l00, which the offence under s. 49 attracts, does not remove that offence from the category of minor offences triable summarily, and that the consequential disqualification from holding a driving licence is not part of the punishment for the offence.
16. No issue as to mode of trial of any offence under the Act of 1980 arises in this case.
17. Accordingly, the Court, as it ruled at the conclusion of the submissions made on behalf of the plaintiffs, is satisfied that the issues which arose in that case, are not relevant to any of the issues which arise in this case.
The case made under Article 40, s. 3, sub-section 2
18. The plaintiffs submitted that they have a right to earn a livelihood as street traders and that the provisions of s. 4, sub-s. 6 of the Act of 1980 effectively deprive them of that right. They claim that such deprivation is out of proportion to the nature of the offences committed by them or which might be committed by them under the Act, and that s. 4, sub-s. 6 is an unjust attack by the State on their right to earn a livelihood.
19. As to proportionality, they relied on what was said by the Court of Appeal in England in Reg. v. Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 W.L.R. 1052. In that case, a stall holder in an ancient town market under an oral licence from the Council had his licence revoked by letter from the market manager. The reason for the revocation was that, on one occasion, after the market had closed and the public toilets were locked, he had been seen urinating in a side street by some Council workers and reproved by them. The matter was reported to the market manager who terminated his licence by letter at a few days’ notice. The stall holder appealed to two Council committees. His appeals were dismissed and he was barred from trading in the market for the rest of his life. The Barnsley Corporation Act, 1969, and the bye-laws made under that Act, which regulated the conduct of the market, contained no provisions in relation to the determination or revocation of a stall holder’s licence or the terms on which it was held. The stall holder applied for an order of certiorari.
20. It was held by the Court of Appeal that:-
1. when the Council was exercising its discretionary power, under the Act of 1969, to regulate the common law public right to buy and sell in a market, it was dealing not only with the contractual situation but also with the common law right of a man to earn his living in the market and it was under a duty to act judicially;
2. that the appeal hearings had been conducted in breach of the rules of natural justice, and their decision should therefore be quashed;
3. there was no express power in the Act of 1969 or in the bye-laws made under that Act empowering the manager or the committees of the Council to revoke the stall holder’s licence;
4. the punishment for trivial conduct unconnected with the market was excessive.
21. In the opinion of the Court, none of the issues which arose in that case are of any relevance to the issues which this Court has to determine in the instant case.
22. In this case, the Oireachtas, in which is vested the sole and exclusive power of making laws for the State, has expressly enacted that the Minister shall not grant a licence to a person who was convicted of two or more relevant offences. Most of the offences created by the Act of 1980 are minor offences, and the indictable offences created by s. 3 may be tried summarily in the circumstances provided for in section 15, sub-section 2. Although they are minor offences they are by no means trivial offences. In Minister for Industry, Commerce and Tourism v. Quinn (Unreported, Supreme Court, 23rd January, 1981) Henchy J. giving the unanimous judgment of this Court, said at p. 10 that:-
“The penalties fixed by s. 8 of the Prices (Amendment) Act, 1972, indicate the legislature’s opinion of the gravity of this kind of criminal offence.”
23. The offence in that case was charging 1 d. more than the permitted maximum price for a pint of draught stout. The penalties provided by s. 8 of the Act of 1972, on summary conviction, were a fine not exceeding £100 together with a fine not exceeding £10 per day in the case of a continuing offence but not exceeding £100 in total, or imprisonment for a term not exceeding 6 months or to both such fine and imprisonment. That statement of Henchy J. is equally applicable to the offences created by the Act of 1980.
24. The personal rights guaranteed by the Constitution are set out in Article 40. Article 40, s. 3, sub-ss. 1 and 2 are in the following terms:-
“1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
25. The general guarantees in these two sub-paragraphs are not confined to the rights specified in the Article, and it is now well settled that amongst the unspecified personal rights granted by Article 40, s. 3 is the right to earn a livelihood. On behalf of the plaintiffs it was alleged that their right to earn their livelihood is a property right protected by Article 40, section 3, sub-section 2. This claim however was not developed in the submissions to the Court during the hearing of the appeal – indeed no argument was addressed in support of that claim.
26. However, assuming, without deciding, that the right to earn a livelihood is a property right, the question which arises is whether s. 4, sub-s. 6 of the Act of 1980 constitutes an unjust attack on the rights of the plaintiffs to obtain a licence to enable them to trade. The right to trade and earn a livelihood is not an unqualified right. In modern times there must be few professions, occupations, trades, or industrial or commercial undertakings which are not subject to what Costello J. in Attorney General v. Paperlink Ltd. [1984] ILRM 373 referred to as “legitimate legal restraints” (p. 384). This Court in Moynihan v. Greensmyth [1977] I.R. 55 in its judgment delivered by O’Higgins C.J. at p. 71 said:-
“It is noted that the guarantee of protection given by Article 40, s. 3, sub-s. 2, of the Constitution is qualified by the words ‘as best it may’. This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good”.
27. The stated object of the Act of 1980 is to provide for the control and regulation of casual trading. In enacting the legislation, the Oireachtas, having regard to the requirements of the common good, has to strike a balance between the legitimate rights and interests of those who may be affected by the legislation. These include-
1. the members of the public, who are entitled without hindrance to pass and repass along the area in which casual trading is carried on;
2. those engaged in casual trading, including those who possess a licence and permit to trade in the designated area and who trade in accordance with the conditions of the licence and the permit;
3. the local authority which is charged with the duty of overseeing and supervising casual trading in its functional area and of ensuring that those who engage in casual trading do so in compliance with the Act;
4. those who carry on trade in business premises in the neighbourhood of the casual trading area.
28. In the opinion of the Court where the Oireachtas has to legislate for the control and regulation of casual trading in a public place to which the public have access as of right or on land occupied by and in the functional area of a local authority, and designated by that authority as a casual trading area, it is open to the Oireachtas to provide for strict control and regulation of that trading having regard to the exigencies of the common good. This the Oireachtas has done. In the Act of 1980 the Oireachtas has made provision for how and where casual trading may take place, for the restrictions imposed on those engaged in such trading, for the grant of licences and permits, and for the offences that may be committed by those engaged in such trading both with and without a licence or permit. These are all matters which are peculiarly within the competence of the Oireachtas, in whom the legislative power of Government is vested by the Constitution, and the courts cannot intervene at the behest of casual traders who have temporarily lost the right to obtain a licence unless an injustice is thereby done to such traders. Section 4, sub-s. 6 of the Act of 1980 makes perfectly clear the circumstances in which the licence granted in pursuance of that section may be lost, and those engaged in casual trading can be under no misapprehension as to the consequences of failure to comply with the provisions of the Act, and of conviction of two or more offences under the Act. In respect of such convictions the Oireachtas has provided what amounts to a statutory disqualification for obtaining a licence for the period fixed by that sub-section.
29. In the opinion of the Court, where a person engaged in casual trading has been convicted of an offence under the Act of 1980, it is neither unjust nor unreasonable to deprive that person of the right to obtain a licence under the Act by reason of his having been convicted of a second or further offences under the Act. The Court is therefore satisfied that the plaintiffs have failed to establish that the impugned provisions of s. 4, sub-s. 6 of the Act of 1980 are an unjust attack on their rights protected by Article 40, s. 3, sub-s. 2 of the Constitution.
30. This action accordingly fails and the appeal stands dismissed.
Simmonds v Kilkenny County Borough & ors
[2011] IESC 20
Supreme Court Fennelly J
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.
Facts
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 17th 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 3rd 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 31st 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 8th 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 27th March 2004, the Gardaí intervened and seized his stall and produce.
13. In a letter dated 26th 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 11th 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 8th December. If I receive no reply I will assume that I am free to trade as I wish.”
14. The Borough Council replied on 29th 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 paying per diem. He also disliked the designated area at Mayor’s Walk because it was separated from the Parade.
16. Mr Simmonds issued his proceedings on 13th December 2004. He relies on a market right created by the Kilkenny Markets Act, 1861 and/or by Crown Grant of franchise and/or by virtue of the doctrine of lost modern grant and/or as a common law right having been exercised since time immemorial. He seeks a declaration that there exists a public right of concourse of buyers and sellers for the buying and selling of vendible commodities in the Borough of Kilkenny. The essence of the dispute between Mr Simmonds and the Borough Council is that he claims that he is entitled to set up his market stall at any place in Kilkenny “as he may choose in accordance with law.” In fact, he has chosen the Parade and says that he has a legal right to sell there.
17. At a late stage of the hearing of the appeal, his counsel indicate a willingness to trade at any place in Kilkenny, in particular the Market Yard, in which the Court might find that the market right continued to exist. Nonetheless, I am satisfied that Mr Simmonds has consistently claimed the right in fact to trade at the Parade and that he had no interest in trading at any other place in Kilkenny after his unsuccessful attempts to trade in the Market Yard in or about 1995.
Markets in Kilkenny
18. The High Court heard evidence from Dr Donal O’Drisceoil, a historian and writer and lecturer in history at University College Cork. He is a specialist in the history of markets in Ireland. Dr O’Drisceoil examined historical records, including royal charters, two Royal Commission reports of the nineteenth century, minute books of the Kilkenny Corporation and its markets committee and press reports.
19. There were markets in Kilkenny from the earliest times. The earliest recorded market right was granted to the Bishop of Ossory for Irishtown in 1245. The right to hold markets and fairs in Kilkenny was granted to a new corporate body to be known as the “Sovereign Free Burgesses and Commons of the…Town or Borough of Kilkenny and to their Successors for Ever” (Kilkenny Corporation) by a charter of King James I dated 16th October 1608. The Corporation could hold weekly markets on a Wednesday and Saturday with power to hold a Court of Pye Powder. There were other royal charters. One of 1609 gave Kilkenny the status of a City. The dates on which fairs and markets were permitted were varied over the centuries and are immaterial to the present appeal. The Corporation had the monopoly of holding markets.
20. The Royal Commission on Fairs and Markets reported in 1853 and confirmed the continued existence of the fairs and markets subject to the Royal Charter, though the collection of tolls but not customs charges had fallen into desuetude. There was no market house, although the area under the Tholsel (toll house) in High Street was considered the market. There was no market accommodation; fairs and markets were held in the public streets, including the Parade; an Ouncil House was recorded as being there about 1851; there was very little regulation or order; As Dr O’Drisceoil put it, there were “markets here, there and everywhere.” The word, “ouncil” or “ouncel” is obscure. It does not appear in any dictionary even in the longest version of the Oxford Dictionary. Perhaps it is unique to Kilkenny. From context, it clearly means a weighing machine.
21. Local officials were unanimous in supporting the provision of a properly regulated market space. In 1859, the Corporation established St John’s Green for the holding of fairs, i.e., for the sale of livestock. Livestock fairs have, in more recent years been replaced by marts and are irrelevant to the present matter.
22. At a meeting of 14th November 1860 it was resolved by Kilkenny Corporation (the Mayor, Aldermen and Burgesses of Kilkenny), that steps should be taken to obtain a private Act of parliament to authorise the establishment of a new general public market at Parliament Street, which is the street beside the Market Yard. Notice was published in the Dublin Gazette on 23rd November, 1860.
23. The Kilkenny Markets Act, 1861 resulted. That Act recited that Kilkenny Corporation were or claimed to be the owners of all the markets in the City of Kilkenny, except the meat market and that the present markets for the sale of agricultural produce were insufficient. It recited that it was “expedient that the Sale of all such Articles on the public streets of the said City should be prohibited.” It was then recited that it would be “advantageous to the Inhabitants of the said City……….if the Corporation were empowered to erect a new General Market in the City……”
24. The declared objective of the Act was the establishment of a new single general market to be located at a designated place. Section 14 is specific as to the nature of the market which the Corporation is empowered to establish:-
“… A General Market for the sale of meat, fish, poultry, game, butter, eggs, bacon, corn, grain, turnips, fruit and all other agricultural and garden produce, goods, wares, merchandise and other marketable commodities …”
The general words “and all other agricultural and garden produce, goods, wares, merchandise, and other marketable commodities” require to be construed ejusdem generis with the particular words which precede them. This market is described throughout the Act as “the General Market”. Section 2 of the Act defines “markets” as meaning not only the General Market “but all Markets and Market Places now under the Control or from Time to Time under the Control of the Corporation.” Both section 2 and section 5 recognise that there may exist markets and market places other than the General Market. This is also clear from sections 26 and 27 of the Act.
25. The new General Market was to be completed within five years (section 18). Section 27 becomes the key provision. It provides, firstly, for the removal of all existing markets (except the meat market, which does not concern us) to the General Market as follows:
“So soon as the said General Market shall be constructed and shall be completed and opened for public Use, it shall be lawful for the Corporation to remove all the present Markets and Market Places……to the General Market, and thereupon all the several Markets or Market Places,……within the limits of this Act shall be discontinued and extinguished……”
26. Section 27 then dealt with the elimination of market tolls, “except the Rents and Tolls authorised to be taken under the provisions of this Act…” There followed a proviso, upon which the Borough Council places particular reliance and which will need further consideration. It reads:
“Provided also, that it shall be lawful for the Corporation to retain and use for the Purposes of this Act, and as a Market or Markets thereunder, any Market or Market Place now held or used by them.”
The remainder of the Act of 1861 provided, in considerable detail, for the conduct and regulation of markets in Kilkenny. The Corporation had power, after the new General Market was opened, to keep order there or in any Market Places under their control (section 28) The power conferred by section 28 is to keep order in the General Market and other market places for the sale of “stock, goods, provisions, articles or commodities specified in Schedule (C) to this Act annexed.” Schedule C sets out maximum rates of tolls and includes tolls in respect of produce not falling within the produce set out in section 14 of the Act and for the sale of which the general market was established. Thus maximum rates of tolls are prescribed inter alia for the following:
“For every cartload of hay or straw drawn by one horse or other animal 4d.
For every horse or other animal, for every additional horse or other animal 2d.
For every cartload of native coal or of iron, lead, copper or other mineral 6d.
27. Articles sold or exposed for sale were to be weighed or measured at the public weighing places provided, in accordance with precise rules and subject to penalty (section 31). The Corporation was given power to take tolls for the use of the markets (section 32) and for use of the weighing machines (section 33). The Act provided for the vesting of Tolls in the Corporation (section 35). Subsequent sections provide for the banking, application and accounting for Tolls collected.
28. Once the new General Market was opened for public use, as it was in about 1862, it was the clear intention of the Act that, subject to specified exceptions, all markets, except those retained pursuant to the proviso to section 27, would move into and take place in that Market, which was located in what became known as the Market Yard. The new markets were opened in or about 1862 by the Mayor, Alexander Colles, an event which is recorded on the City Sword.
29. A general market was held on Saturdays with a butter market on Fridays. Tolls were levied. Section 30 made it an offence to sell elsewhere. In other words, it was not lawful, subject to those exceptions, to trade outside the Market Yard, which necessarily included the Parade, unless the Corporation retained and used a market at such other places.
30. The minutes of evidence taken and recorded by the Royal Commission on Markets and Tolls, which reported in 1891, mentions that markets and lands attached, clearly meaning the Market Yard, had been established by the Corporation at a cost of £5,000, borrowed but paid off in 1882. It records:
“The Markets are held in a spacious enclosure, convenient to the principal street in the city. In the enclosure various sheds are erected for potatoes, corn, vegetables, roll butter, eggs fowl etc.”
The minutes also record:
“Marketable commodities are not allowed to be sold outside the market precincts.”
31. So far as the use of the Parade was concerned the evidence was:
“An ouncil is erected in the market place and another on the Parade, where the hay, straw and coal are sold. This “Parade” forms portion of the public thoroughfare, but is a wide space of ground, and hay, coal are exposed.”
From the accounts exhibited in the report it would appear that a considerable amount of business was transacted at the Parade. The amount received from the ouncil at the general market (which had up to five scales) for the six months to 1st March 1886 was £18 10s 5 ½d whereas the amount received from the Parade ouncil was £79 8s 9d. For the six months to 1st September 1887 the amounts were £14 12s 1d and £70 4s 10 ½d respectively.
32. There is evidence, in the form of old photographs, of hay being sold on the Parade in 1905 and of tolls being charged at least until the 1920’s. Apart from the events giving rise to the present case from 2003, there is no evidence of produce other than straw, hay and coal actually being sold there at any time since 1861. In particular, there is no evidence of a market at the Parade for produce for which the general market was intended and that would include the foodstuffs sold by Mr Simmonds. Mr Donal O’Brien, former Town Clerk (up to 2005) gave evidence for the Borough Council to the effect that there had been no trading on the Parade within his memory. The learned trial judge found as a fact that, after 1861, there was no market at the Parade for the sort of merchandise for which Mr Simmonds contends, that any market outside the Market Yard had died out in the 1920’s and that there had been no casual or street trading in Kilkenny for quite some time before 1980.
33. Two other aspects of the evidence should be mentioned. Mrs Susannah Crampton, the granddaughter of the distinguished Kilkenny writer, Hubert Butler, gave evidence of picking a wide range of fruit and vegetables at her grandparents’ home at Maiden Hall, Bennetsbridge when she was a child and taking them for sale in the Market Yard on Saturdays. The Butlers lived from the produce of the market garden. This occurred in the 1980’s, but the evidence suggests that this was a long established practice. Many other people were selling there.
34. Mr O’Brien gave evidence that the Borough Council had re-roofed a number of sheds in the Market Yard in the 1990’s. These are let to country markets where produce is sold on two days per week. Rent is paid to the Borough Council, but no tolls have ever been levied.
35. The old market yard is now covered by a car park and ancillary buildings. Part of it has been sold to Kilkenny County Council for a sewage treatment plant and part to the O.P.W. The old market buildings such as they were have now disappeared. There were at the time of the trial in the High Court five sheds adjacent to the court house where the “Country Market” is held weekly under the auspices of Country Markets Limited a company formed by the Irish Countrywomen’s Association.
36. The Borough Council initially took no action to implement the Casual Trading Acts. As Mr O’Brien explained, there was no need, as there was no casual trading until about 2003. Mr O’Brien accepted that the Borough Council made no inquiries as to the existence of market rights. Neither the Borough Council nor the Corporation have ever taken legal steps to extinguish market rights.
The High Court judgment
37. I have already referred to a number of the findings of fact made by Mr Justice Smyth in his judgment of 15th June 2007. As he summarised the matter himself, there were only two areas for trading in Kilkenny other than fixed places such as shops. They were:
• The sheds in the Market Yard let for country markets;
• The designated casual-trading area at the Parade.
38. The learned trial judge held against Mr Simmonds’ claim to have the right to trade in Kilkenny, in particular at the Parade, by virtue of a historic market right. He held:
1. Any rights under the Charter were removed to the Market Yard by virtue of the Act of 1861 and thereupon extinguished; there was, therefore, no right to trade at the Parade or at any other place in Kilkenny under the Charter of James I;
2. After 1861, there was no market at the Parade for any merchandise of the type Mr Simmonds wishes to sell; he has no market rights at that location or, indeed, at any other place in Kilkenny;
3. Even if, in the alternative, Mr Simmonds has a market right at the Parade, it is subject to regulation and requires a casual-trading licence; this is because selling at a market or fair will still require a casual trading licence if it comes within the definition of causal trading;
4. If the market rights in Kilkenny survived until the commencement of the Casual Trading Act, 1995, they were, in any event, extinguished immediately pursuant to the retrospective effect of section 17(4) because they had not been exercised for 10 years prior to that date.
The appeal
39. Mr Simmonds has submitted very extensive written submissions with reference to a wide range of authority concerning the law of markets. The following summarises the essential points.
40. The right to trade in a market is a common law entitlement. According to Halsbury’s Laws of England, 4th ed., at para 623: “At all times when a market ought lawfully to be held, every member of the public has, of common right, the liberty to enter and frequent the market-place for the purpose of bringing there and exposing for sale and selling, or of buying, such commodities as are vendible in the market.”
41. The public right of trading at markets and fairs is governed by a self contained statutory code which includes the Market and Fairs Clauses Act, 1847. Market rights are not extinguished by neglect or non-user. Any interference would be unconstitutional. (per Henchy J. in the Supreme Court in DPP (Long) –v- McDonald (1983) I.L.R.M. 223).
42. The general market of Kilkenny was a consolidation of a plethora of market rights held by the Corporation of Kilkenny into a single general market to be operated pursuant to the provisions of the Kilkenny Markets Act, 1861. The Act confirmed the right. The Act of 1861 did not effect automatic removal and extinguishment of the market right. It merely conferred the right on Kilkenny Corporation to do so. That body took no step to extinguish the Parade market right.
43. The Market Yard had been turned into a car park. Thus the public are entitled, instead, to exercise the statutory market right in the Parade: if a market owner causes a reduction in the space available to the public, the public is entitled to buy and sell in the neighbourhood of the market.
44. Furthermore, there is a fundamental distinction at law between market trading, street trading and casual trading. The Casual Trading Act, 1995 is the statutory code governing that which was once described as “hawking”, and was formerly governed by the Hawkers Act, 1888. The Hawkers Act, 1888 was repealed by the Casual Trading Act, 1980, which in turn was repealed by the Casual Trading Act, 1995. It is an error to seek to apply the provisions of one code to activities which are governed by another. It is submitted that the purpose and intention of the Casual Trading Act, 1995 is not to govern market trading except insofar as the provisions in respect of acquisition and extinguishment of market rights are to be found in Sections 7 and 8.
45. Mr Simmonds challenges the conclusion of the learned trial judge that the market right had been extinguished by non-user for ten years by virtue of the provisions of section 17(4) of the Act of 1995. Mr Simmonds and others had in fact and, in his case by the bringing of these proceedings, sought to exercise the right on a number of occasions within the ten-year period.
46. The Borough Council submits that a local Act for the regulation of a market or fair created by grant can extinguish the franchise and substitute the statutory right: Manchester Corporation –v- Lyons (1882) 22 Ch D. 287; Mayor etc. of Windsor –v-Taylor (1899) AC 41. The learned trial judge was correct to hold that as a matter of law the rights under the charter of James I of 1609 were removed to the market yard by the 1861 act and thereupon extinguished. Accordingly, there is no longer a market right to trade at the Parade or at any other place in Kilkenny under the charter.
47. After the Act of 1861, trading was confined to the market yard with the exception of licensed hawkers and pedlars and the use of the ouncel at the Parade. Trading in the old market in the Market Yard ceased in the 1920’s.
48. Although, at common law, a market right could not be extinguished by mere non user, this has changed as a result of section 17(4) of the Casual Trading Act, 1996. It is also claimed that the Borough Council has established a casual-trading area and the the Casual Trading legislation governs any exercise of a market right such as is claimed by Mr Simmonds.
Analysis and conclusion
49. It is fundamental to any examination of Mr Simmonds’ claim to ascertain whether he has any valid claim to exercise a market right in Kilkenny. For that purpose, I commence by accepting the hypothesis that a market right is a common-law right and that it is not extinguished by non-user. It is only if Mr Simmonds’ right is established that it will be necessary to consider the relationship between market rights and the operation of the Casual Trading Act, 1996.
50. To my mind the central question to examine is the effect of the Kilkenny Markets Act, 1861. Clearly there were markets and market rights in Kilkenny prior to that date. I have summarised the principal provisions of the Act above. Mr Simmonds’ main argument is that the Act did not effect any removal of market rights in Kilkenny to the Market Yard, in the absence of evidence of some decision to that effect by the Corporation. More broadly, he challenges the conclusion of the learned trial judge that the market right was extinguished and converted into a statutory right.
51. There cannot be any doubt about the general purpose of the Act. The Royal Commission Report and the action taken by the Corporation to promote a special Act of Parliament, advertised in the Dublin Gazette on 23rd November 1860, demonstrate that purpose as being to “authorize the establishing, erecting, managing and maintaining one new general public market and market-place, in the City of Kilkenny, at Parliament Street, heretofore known as the Coal Market…” The terms of the Act are consistent with this objective.
52. The preamble mentions the insufficiency of the existing markets, the expediency of the prohibition of sale of such articles on the public streets and that it would be “advantageous…………if the Corporation were empowered to erect one new General Market in the said City…”
53. Section 8 declares that “no Market other than the Markets now vested in the Corporation or to be provided by and vested in the Corporation under the provisions of this Act………shall be held within the Parliamentary Boundary of the City of Kilkenny…”
54. Section 14 confers compulsory purchase powers over lands specified by reference to a “Book of Reference” and power to construct and establish there a “General Market…” Section 18 provides that the General Market is to be completed within five years of the passing of the Act.
55. Section 27, quoted above, but now repeated, provided:
“So soon as the said General Market shall be constructed and shall be completed and opened for public Use, it shall be lawful for the Corporation to remove all the present Markets and Market Places……to the General Market, and thereupon all the several Markets or Market Places,……within the limits of this Act shall be discontinued and extinguished……”
56. Section 30 makes it an offence, after the “General Market is opened for public Use,” to sell goods for which tolls are to be paid in the General Market. The various provisions of the Act, summarised at paragraphs 24 to 27 above show that the Corporation were given extensive new powers and subjected to a wide range of duties concerning the conduct of markets in Kilkenny.
57. The effect upon the continued existence of ancient franchise rights, usually granted by royal charter, of new market legislation not dissimilar to the Kilkenny Markets Act of 1861, was considered in a number of cases in the nineteenth century, some of them cited by the learned trial judge. In some of these cases, the town corporation sought to assert its continued right under the former common-law regime.
58. In Corporation of Manchester v Peverley (decided 24th April 1876 but reported as a footnote to Manchester Corporation –v- Lyons, cited above), Little, Vice-Chancellor of the County Palatine of Lancaster, considered the effects of the Manchester Market Act, 1846 on prior manorial franchise rights and ruled (see page 294 of the report):
“But if after such a grant has been made by the Crown the three estates which conjointly constitute parliament step in, whether on the solicitation of the grantee or otherwise, and by their joint act create the same rights or larger or different rights of the same nature and character in favour of the grantee, it seems to me that of necessity these parliamentary rights, emanating as they do from a paramount authority, must supersede those which the grantee was previously holding from the Crown alone, and that, after the passing of such an Act there can be no continuing tenure by the grantee under his original title, nor a continuance of his prior accountability on foot thereof to the Crown.”
59. Little V.C. ruled that, on the proper construction of the Manchester Market Act, 1846 it had not been intended by Parliament that the new parliamentary or, as we would say, statutory rights should have “concurrent co-existence with those previously existing rights…” The Court of Appeal approved this statement in its decision in Manchester Corporation –v- Lyons, already cited, where Jessel M.R. addressed, at page 301, the question whether the “ancient franchise belonging to the lords of the manor of Manchester to hold a market [was] still an existing franchise……or whether it had been extinguished…” He concluded, at page 306, following detailed review of the terms of the Act, and approving the judgment of Vice Chancellor Little, that there was “a new market……and that the old franchise was intended to be extinguished.” Bowen L.J. agreed that “the old franchise has disappeared under the Markets Act.” The Act considered in that case did not expressly provide for extinguishment.
60. Mayor etc. of Windsor –v-Taylor, cited above is another example of a new market Act superseding the old market right. As Lord Halsbury, L.C. put it, at page 45, the result was that “the person possessed of what was the new parliamentary right might act in defiance of the lord of the franchise.”
61. Section 27 is the provision which, on Mr Simmonds’s submissions, merely provides a power for the Corporation to extinguish but which it has not exercised. It is submitted that there is no evidence whatsoever that the Council exercised its power to remove and extinguish. It should be noted that the section did not, however, confer a power on the Corporation to extinguish market rights. It conferred a power to acquire land and to construct and establish a market thereon. Then the Corporation had power to remove the market to that place. Thereupon, the extinguishment of all existing markets was, as the section provided, to “be discontinued and extinguished.” That came about by operation of the statute and did not depend for its effect on the Corporation exercising any decision-making power of extinguishment. The language used is strong, clear and unambiguous: “all the several Markets and Market Places shall be discontinued and extinguished.” These terms are, if anything, clearer than the Manchester Market Act.
62. Subject only, therefore, to it being established that the markets were in fact moved to the Market Yard, they were otherwise discontinued and extinguished. I cannot entertain any doubt whatever that the markets were, in fact, moved to the Market Yard. The minutes of the Royal Commission and the inscription on the City Sword show that this happened in1862. The moneys raised and paid off, the old photographs and the history and memory of Kilkenny all converge to confirm this. The evidence of Ms Crampton shows that, within living memory, the market for fruit and vegetables took place in the Market Yard.
63. Section 27 also contained a proviso:
“Provided also, that it shall be lawful for the Corporation to retain and use for the Purposes of this Act, and as a Market or Markets thereunder, any Market or Markets thereunder, any Market or Market Place now held or used by them.”
64. Here, I am satisfied, lies the explanation for the trading in hay, straw and coal on the Parade. The records show that the Corporation erected and maintained an ouncel there, but, as found by the learned trial judge and, as I have already said, there is no evidence whatever of the sale on the Parade after 1861 of any other merchandise prior to the arrival of Mr Simmonds, commencing in 2003. The obvious conclusion from the facts is that the Corporation continued to provide a market but only for hay, straw and coal at the Parade until even that trade died out in circumstances about which there has been no evidence at all.
65. Mr Simmonds has not been able to establish any market right to trade in the fine foods in which he deals on the Parade. He has, of course, the right to apply for a casual-trading licence, but that is not something in which, to date, he has expressed any interest, though he has obtained such licences in other towns.
66. It emerged at a late stage of the hearing that Mr Simmonds would be willing to accept a declaration of his right to trade in the Market Yard. I am satisfied that he should not be permitted to alter his position in that way. Following early initial approaches in 1995, Mr Simmonds has never expressed the slightest interest in trading there. Indeed his principal reason seems to have been commonsense business ones. He did not do well there in 1995 and thought the location unsuitable. He has never expressed any interest in the Saturday markets which take place there, even if under a different legal regime. If it were to be the case that he had a right to trade in the Market Yard, the Corporation should have had the opportunity to respond. He has never asserted a right to trade in the Market Yard.
67. I have come to the conclusion that the appellant has not established any market right to trade at the Parade. I would uphold the decision of the learned trial judge at numbers 1 and 2 in paragraph 39 above. Thus, it is unnecessary to decide any of the other legal issues in the case. I express no view about the status of market rights in relation to the Casual Trading Act. It is unnecessary to decide whether market rights may be regulated or are subject to the Casual Trading Act, for the simple reason that Mr Simmonds has not established that he has any such right. Nor is it appropriate to consider the effect of section (17(4) of that Act on the facts of the present case.
68. I am satisfied that Mr Simmonds is not entitled to any declaration that he holds any market right. I would dismiss the appeal and affirm the decision of the High Court.
Byrne v. Tracey & Anor
[2001] IEHC 239
Mr. Justice Frederick Morris delivered on the 7th day of February 2001
This matter comes before the Court pursuant to an Order of the 18th June 1999 made by McCracken J. whereby the Applicant was given leave to apply by way of an Application for Judicial Review for a number of reliefs. These are seven in number and the reliefs which he seeks may be summarised in the following way:
(1) An Order quashing the decision of the Respondents which was communicated to the Applicant on the 3rd November 1998 refusing to permit the-Applicant to trade at “The Square”, Blessington, Co. Wicklow.
(2) An Order quashing the decision of the Applicants refusing to designate or to retain as previously designated any area at “The Square”, Blessington, Co. Wicklow as a casual trading area.
(3) An Order quashing the decision of the Respondents that the only place the Applicant could trade in or near the town of Blessington was at the Cattle Mart.
(4) An Order of Mandamus directing the Respondents to hear submissions from the Applicant regarding casual trading in Blessington.
(5) An Order quashing the Respondents’ decision to refuse to renew the Applicant’s licence to trade as a casual trader at “The Square”.
(6) An Order quashing the Respondents’ decision to designate the Cattle Mart as the sole casual trading area near the town of Blessington.
(7) An Order directing the payment of damages to the Applicant.
The grounds upon which the Applicant sought these reliefs are twelve in number but these grounds can, I believe, be summarised in the following way:
(1) That in making the decision the Respondents acted in breach of the Applicant’s Constitutional rights to work as a casual trader.
(2) That the Applicant had a legitimate expectation that the “ancient and historical trading area” at “The Square” in Blessington would be retained and so designated in the By-laws introduced by the Respondents.
(3) That the Applicant had a legitimate expectation that he would get full notice of the intention to make the By-law and that the Respondents failed to provide the Applicant with such notice.
(4) That the Respondents failed to provide reasonable notice of the introduction of the Bye-law and a reasonable period of time for the Applicant to make submissions.
(5) That the Respondents failed to give proper notice of the introduction of the By-law.
(6) That the Respondents failed to give the Applicant sufficient time to submit an appeal or to notify the Applicant of his entitlement to appeal or to consider his appeal.
(7) That the Respondents acted unreasonably in abolishing “The Square”, Blessington as a place where the Applicant could trade pursuant to ancient custom.
(8) That the newly designated area at the Cattle Mart is unsuitable.
(9) That the decision renders the occupation of the Applicant as a casual trader unprofitable and unworkable.
I am satisfied that the following are the facts of the case. The Applicant is a casual trader and has held a Casual Trader’s licence. He has traded for the past 3 years continuously at “The Square” in Blessington and occasionally for the last 15 years. Between March and September and in the month of December the Plaintiff has traded 7 days a week in “The Square” and for the remainder of the year 5 days a week.
From the photographs which have been exhibited I am satisfied that the Plaintiffs place of business is a caravan type structure with an opening flap which is parked in a convenient place in Blessington. It is by no means unsightly. His merchandise, mainly flowers and vegetables are displayed on the pavement. I do not believe that this market stall could be regarded as presenting a nuisance to the town people of Blessington and certainly from the number of signatories to the petition that he has exhibited in his Affidavit to the Court he would appear to have the wholehearted support of the people in the locality.
The hardship which the decision of the County Council may be to the Applicant or the merits of his trading are not of any relevance in the decisions of the issues before the Court.
The case concerns the adoption by the Wicklow County Council of a By-law pursuant to the Casual Trading Act 1995. This Resolution was passed on the 8th June 1998 and the By-law was signed and sealed on the 19th June 1998. Throughout the proceedings the Applicant has referred to “the Resolution which was communicated to him on or about the 3rd November 1998.” I am satisfied that this is the Resolution of the 8th June 1998 to which the proceedings relate and this is the Resolution and By-law which is being challenged.
The first issue which has arisen in this case is the failure on the part of the Applicant to comply with Order 84 of the Superior Court Rules which provides the time limit within which relief by way of Judicial Review is to be sought. Order 84 Rule 21(1) provides that “An application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when the grounds for the application first arose or six months where the relief sought is Certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.” The Notice of Motion herein is dated 26th January 1999. The Resolution of the County Council was in fact passed on the 8th June 1998 and signed and sealed on the 19th June 1998. The relief sought therefore was outside of the six month period of the time starts to run on the date of the passing of the Resolution or its signing and sealing. In his proceedings the Applicant refers to the date upon which he was notified of the making of the decision namely the 3rd November 1998. However it is clear that long before that date the Applicant was aware of the existence of the Resolution because on the 17th June 1998 the Applicant brought an appeal to the District Court as he is entitled to do under Section 6 of the 1995 Act. It is therefore suggested that the reference in the proceedings to the date upon which he was notified by letter of the making of the decision is of no relevance and is no more than a ruse to overcome the six month limitation period.
By his Order of the 18th January 1999 McCracken J. extended the time for the making of the Application. This Order was not appealed. The Respondents now seek to have that part of Mr. Justice McCracken’s Order reviewed on the grounds that the extension of time should not have been granted. For the reasons which I have set out in Florin Oirdache and the Minister for Justice, Ireland and the Attorney General and on the authorities referred to therein namely Voluntary Purchasing v Insurco Limited and Camara v Minister for Justice and Others I am of the view that it is within the capacity of this court to review an Order made ex parte in an appropriate case. However the correct practice is to apply to the Court on notice to the Applicant for an Order setting the original Order aside well in advance of the hearing of the substantive application. In this way an orderly procedure of the case may be maintained and the costs of the substantive hearing will be avoided if the original ex parte order is set aside.
In the present case in view of the overall decision which I come to in this case it is not necessary for me to deal with this preliminary point.
I am satisfied that the County Council is required to comply with Section 6 of the Casual Trading Act 1996 in the making of this By-law. It is required “as soon as may be after the commencement of the Act” to make a By-law in relation to the control, regulation, supervision and administration of casual trading in its functional area. I am satisfied that on the 20th January 1997 it was proposed to consider making a By-law by the second named Respondents and that a draft of the By-law was circulated at that meeting. On the 27th January 1997 the Baltinglass area Planning meeting was held at which the designation of casual trading in the Blessington area was discussed and it was agreed that four casual trading places would be designated at “The Mart” in Blessington. As is required by Section 6 of the 1995 Act the Respondents published notice of intention to make the By-law in the Irish Independent and in the Wicklow People of the 16th January 1998. No submission was received from the Applicant but the Blessington and District Chamber of Commerce and the Blessington Tour de France Committee both made submissions.
On the 8th June 1998 a Resolution was passed adopting the proposed By-law and a notice of the adoption of the By-law was published in Irish Oifigiuil on the 16th June 1998 and in the Irish Independent and the Wicklow People on the 1lth June 1998. I am satisfied that the By-law was signed and sealed by Order of the first named Respondent herein on the 19th June 1998.
I am accordingly satisfied that the adoption of the By-law was in accordance with the provisions of Section 6 of the Casual Trading Act 1995.
The Applicant appealed to the District Court on the 17th June 1998 against the making of this By-law. It came on for hearing in Blessington on the 16th September 1998 and was dismissed on the grounds that the Applicant had not brought the appeal within the period set out in the Act namely 21 days of the publication of the notice. This decision was appealed to the Circuit Court where it stands in the Circuit Court list at the present time under adjournment.
Turning now, on those facts, to the reliefs which the Applicant seeks and the grounds upon which he seeks them.
The Applicant complains that the affect of the Resolution is a breach of his Constitutional rights to work as a Casual Trader.
This challenge was mounted unsuccessfully in Shanley v Galway Corporation 1995 1 I.R. 369 and Hand v Dublin Corporation 19911.L.R.M. 556. In the latter case the Supreme Court in dismissing the Plaintiffs appeal noted that it was open to the Oireachtas to provide for strict controls and regulations of casual trading having regard to common good. The Constitutional right to work relied on by the Plaintiff was not an unqualified right and was one that must be controlled by considerations of the common good. In the former case McCracken J. in considering a restriction placed on the Plaintiffs right to trade said the following: “I do not consider this to be a breach of any natural or Constitutional right of the Plaintiff to earn a living. It is a condition imposed for the common good by the local authority who consider it unreasonable that casual trading in food should be allowed in Eyre Square. The condition imposed by the local authority in casual trading are imposed pursuant to a statute of the Oireachtas.”
Within the Act itself there is a machinery provided for a consideration by the courts of any such challenge to the passing of a Resolution or the making of a By-law. Where an aggrieved party questions the passing of such a Resolution the Act empowers a trader affected by the proposed Resolution to appeal to the District Court. This hearing would include a consideration of the merits of the Scheme envisaged by the Respondents. However Section 6(8)(a) provides a limitation period of 21 days beginning on the date of compliance by the local authority with Sub-section 6 for this application. In fact the Applicants sought to utilise this appeal procedure but that appeal failed as he was late in doing so.
In my view the Applicant’s present claim is an effort under the guise of Judicial Review Proceedings to make the case which should properly have been made before the District Court. His complaints include the unsuitability of the place designated for casual trading, the suitability of the “The Square” for his business and the service derived from the public by his presence in “The Square.” These are the very matters which would properly fall to be decided if the matter were to be dealt with in the District Court. In my view they play no part in determining the Applicant’s right to Judicially review the order made. The Applicant’s rights of appeal to the District Court may yet be intact in that the Order of the District Court is now under appeal before the Circuit Court.
The next challenge mounted by the Applicant is that he had a “legitimate expectation” that “the Square” in Blessington would be retained as a casual trading area since it was the ancient and historical trading area.
To succeed in a claim of this nature the Applicant clearly must advance his case beyond the mere expectation that he personally felt that the original site would be retained. Nothing in the way of conduct on the part of the Respondents is identified as giving rise to this purported legitimate expectation such as might entitle him to relief and in my view this case fails.
The next four grounds relate to the notice given to the Applicant of the various steps which were being taken by the Respondents in the passing of this By-law. In my view there has been a strict compliance with the provisions of the Act. The question of whether this notice is adequate or otherwise is not an issue for this Court and even if it were no case is made out to support this claim. In my view the claim fails.
The final ground upon which the Applicant seeks the reliefs claimed is that set out in paragraph 11 of his grounds. That is in the following terms: “The Respondents have acted unreasonably in purporting to abolish the right of the Applicant to set up his market stall as a casual trader in “The Square”, Blessington, Co. Wicklow in pursuance with ancient custom.” The Submission made is that there is evidence before the Court that a patent was granted on the 2nd August 1669 to the Archbishop of Dublin to hold a market in “The Square”, Blessington, Co. Wicklow and that it is unlawful for the Respondents to interfere with that right.
The evidence which has been submitted to the Court is a copy of a page from Logas Manuscripts entitled “Return showing the towns at which markets are held.” One entry on that page reads:
Wicklow Blessington Thursday August 2 1669
Archbishop of Dublin Thursday.
If one leaves aside all the deficiencies associated with this document and the mode of proof and if one takes the document at its best it might support the view that there was a patent granted to the Archbishop of Dublin on the 2nd August 1669 to hold a market in Blessington on Thursdays. The date of this patent then was the 2nd August 1669.
No evidence whatever is tendered to the Court beyond this one page and it leaves open for question the status of the market right since that date. It is not known whether it was ever used and if so by whom nor is there any evidence offered of the status of this right at the present time. In Skibereen Urban District Council v Patrick Quill and Others 1986 ILRM p 171 Lynch J. held that the owner of a franchise to hold a market, namely the local authority, could not destroy the traders’ livelihood simply by acquiring the market rights under Section 2 of the Casual Trading Act 1980 and the Applicants have sought to rely on this decision. However, I am satisfied that the existence of the market right in the Skibereen Urban District Council case was established to the satisfaction of the Court. This is not the case insofar as the Applicant’s case before me is concerned.
Likewise D.P.P. V McDonald & Others 1983 ILRM 223 was relied upon as authority for the proposition that providing that there is sufficient authority to establish a presumption of the existence of a market by immemorial user from which a long grant might be presumed that the Applicant’s rights to hold the market would be established and that therefore an attempt at prohibition by the Respondents would be restrained.
I am satisfied as in Long v McDonald and O’Mahoney v Briggs & Others that there is no sufficient evidence before me which would lead me to believe that such a market right exists. The Applicant has traded over a period of fifteen years in “The Square” in Blessington. I am not satisfied that that fact coupled with the evidence before me establishes a market right. In the Long v McDonald case the Supreme Court was dealing with a prosecution upon which the Defence relied upon an assertion that a market right existed. In delivering the Judgment of the Court Henchy J. said “It has been said however that the evidence was such that an onus was placed on the Prosecution to show that a lawful market was not being held on that occasion. That onus was not discharged by the Prosecution. The summonses therefore should have been dismissed.
In my view a different onus arises here. The onus is upon the Applicant to establish the existence of the market and this, in my view, he has failed to do.
Accordingly the Applicant’s claim fails and I refuse the relief claimed.
Listowel Livestock Mart Ltd -v- William Bird & Sons Ltd & Ors
[2007] IEHC 360 Clarke J.
1. Introduction
1.1 By letters patent issued by James I in 1612 Thomas Fitzmaurice, Baron of Licknawe (as it was then described) was, amongst other things, given the right to hold:
“One free market to be held at Listowell aforesaid in the said County of Kerry on every Saturday weekly forever and one fair yearly forever to be held at Listowell aforesaid in the said County of Kerry on the faist day of the Finding of the Holy Cross and on the next day following the said faist day of the Finding of the Holy Cross provided the said faist day of the Finding of the Holy Cross does not fall on a Saturday or the Lord’s Day, in which case we will that the said fair to be held there on Monday and Tuesday next following after the said faist of the finding of the Holy Cross …”
1.2 Subsequently, in 1688 by a further patent James II added to the entitlements of the Barons of Lixnaw a right to:
“Avail and be able to have and hold one free market in or about the aforesaid Listowel in the aforesaid County of Kerry on any Tuesday of each week forever and also two fairs or marts to be held in or about the aforesaid ville of Listowel annually forever viz. one of the aforesaid fairs or marts to be held in the same place upon the 15th day of July annually forever and lasting the day immediately following annually forever and one other fair or mart to be held in or about the aforesaid ville upon the 18th day of October and lasting the day immediately following annually forever unless the aforesaid days or one of them happen or happens on a Saturday or Sunday when and as so often the same days or one or other of them happen or happens on a Saturday or Sunday, then and so often we by these presents for ourselves, our heirs and successors give and grant a licence to the aforesaid William, Lord Baron of Kerry and Lixnaw, his heirs and assigns that he, his heirs and assigns have and hold and avail and shall be able to have and hold the aforesaid separate fairs and marts in or about the aforesaid ville on the Monday and Tuesday immediately following forever.”
1.3 It is accepted that the rights and obligations conferred by those letters patent remain in force today and are held by the plaintiffs (“Listowel Mart”). What is disputed between the parties is as to the precise legal consequences for this dispute which flow from the continued existence of those rights and obligations.
1.4 Listowel Mart acquired certain lands in the 1950s for the purposes of establishing a mart in the town of Listowel. At the same time Listowel Mart acquired the rights and obligations, as the successor of the Baron of Lixnaw, to the market and fair rights set out in those charters. I will describe those rights and obligations as the market rights and obligations save where the distinction between a market and a fair is relevant. Thereafter, until recent times, Listowel Mart conducted regular sales at the site in question, which is in the town of Listowel and is frequently referred to as the Market Place.
1.5 In the latter part of September horse races are run at Listowel which have developed, over the years, into a significant festival. In conjunction with that festival the Bird family have provided amusements and other facilities (the precise extent of which is an issue to which I will have to return) in the Market Place. In more recent times those amusements have been carried on by one or other of the first and second named defendants (“Birds”). It would not appear that the third named defendant has, in reality, any relevance to these proceedings. Since the 1950s a number of leases relevant to these proceedings were entered into. The initial such lease was entered into by Lloyds Bank, as Executor and Trustee of the estate of the Earl of Listowel (the then successor in title to the Baron of Lixnaw), of the one part and William Bird of the other part. Thereafter, Listowel Mart entered into similar leases with Birds. The relevant leases provided for an entitlement to occupy the Market Place (initially as to a part only but laterally the entirety) for a period of just short of two weeks, spanning the Listowel Races festival.
1.6 In recent times Listowel Mart has moved their regular sales to a new location just outside the town of Listowel. The existing Market Place was offered for sale and a contract entered into, in 2004. However, Birds have asserted that the existence of the rights and obligations, flowing from the two 17th century charters to which I have referred, continue to affect the lands in question so that, in the circumstances, the lands, it is said, cannot be sold without either providing another site which is convenient and located within Listowel or in circumstances where the lands in dispute between the parties will remain available for market and fair use.
1.7 This case raises, therefore, the issue of the extent to which two 17th century charters can affect the entitlement of a corporate entity in the 21st century to sell property which it owns with a sufficiently clean title to permit the property to be developed. However, as both counsel properly agreed, if the charters have such a legal effect then this Court must enforce it as appropriate. Within the broad parameters of the general dispute between the parties, a number of specific issues have arisen to which I should now turn.
2. The issues
2.1 It would be fair to say that the position of both parties, but in particular Birds, has evolved since the issues were first addressed in correspondence between the parties in 2006. Until written submissions were filed in these proceedings, the position adopted by Birds, both in that correspondence and in its pleadings, seemed to assert that there was an absolute entitlement to use the Market Place in accordance with the charter. However, in the course of the relevant written submissions it was accepted on behalf of Birds, that their entitlement was subject to a corresponding entitlement on the part of Listowel Mart to move the market and fair provided it was moved to a “suitable location”. By suitable location was meant a location which was within the terms of the charters and was convenient for the purposes of a market or fair.
2.2 In addition, and also in the course of written submissions, Listowel Mart raised the question of whether the market rights concerned had been extinguished by virtue of ten years non-user in accordance with the provisions of s. 7(4) of the Casual Trading Act, 1995 (“The 1995 Act”). Likewise this matter had not been pleaded. In the circumstances both counsel, quite sensibly and properly, agreed that, provided pleading points were not taken against them, they would not, themselves, seek to rely on any absence of pleading to exclude their opponent from raising either of the points to which I have referred. Though not pleaded, therefore, both of those issues fall for decision by me.
2.2 Against that background it is clear that the first and most fundamental set of issues concern the precise extent of the continuing obligations which may rest on Listowel Mart as successor in title to the original grantee of the letters patent, and, in particular, whether any such obligations effect the Market Place lands the subject of these proceedings.
2.3 As is clear from the relevant extracts from the two charters to which I have referred, the markets and fairs to be conducted in accordance with the terms of those charters were not described by reference to any specific place within Listowel. It will be necessary, in the context of one of the issues to which I will shortly refer, to deal with the precise locations described in the charter. However, for present purposes it is necessary only to note that the markets and fairs are to take place in Listowel but without any specific location within Listowel being allocated to their conduct. In that context there is an issue between the parties as to the extent to which there remains any obligation to permit markets and fairs to be conducted in the Market Place. The extent to which markets and fairs in accordance with the rights and obligations of the charters have, in fact, been conducted in the Market Place is a question of some dispute. That dispute involves both factual and legal questions.
2.4 Against that general background it is relevant to turn to the actual claims made by the respective parties in the pleadings. It is important to note that the claims brought both by Listowel Mart in its statement of claim and by Birds in its counterclaim seek declarations designed to establish the legal status of the charters insofar as they might affect the lands in question.
2.5 Listowel Mart seeks a declaration that Birds have “no estate, right, title or interest” which would entitle them to “place or conduct rides, stalls or amusements” on the relevant lands. Listowel Marts also seek a declaration that “such fair and market rights created by the 1612 letters patent and the 1683 letters patent do not bind the lands in perpetuity”.
2.6 It is, therefore, clear that what Listowel Mart seek to do in these proceedings is to establish that whatever rights, entitlements and obligations may flow from the letters patent, they do not actually bind the lands so that the lands can be sold to a purchaser who would take free from any such obligation.
2.7 Birds, in their counterclaim, seek a declaration that they, “as providers of rides, stalls and amusements are entitled for ever to enter on the lands” provided that they pay a toll and confine themselves to the dates set out in the letters patent. It is clear, therefore, that the case is concerned with the extent to which the obligations which derive from the letters patent affect these lands. If they do, then it is clear that there is at least some limitation on Listowel Mart in relation to the lands. If they do not, then it is clear that Birds cannot succeed on their counterclaim. As I noted earlier, Birds’ case, as made at the hearing, involved an acceptance that Listowel Mart was entitled to relocate the market and fair to a new location which was within the terms of the charters and was suitable. Indeed, Listowel Mart had, itself, claimed, in its statement of claim, and as a fall-back position, such an entitlement. However, it is clear that the question of the removal of the fair and market to a different location is a subsidiary issue which only arises in the event that there is an obligation relating to the fair and market which attaches to the land in question. If there is not, then whatever residual obligation Listowel Mart may have to operate a fair and market under the terms of the charters, is not one which arises in these proceedings. The relevant obligations are only material to this case if they can be said to affect the lands in question.
2.8 Therefore, the key initial question is as to whether the fair and market obligations, set out in the charters, do attach to the lands which are the subject of these proceedings in circumstances where the charters do not, of themselves, attach those obligations to any particular part of the lands of Listowel.
2.9 Thereafter, certain subsidiary issues arise in the event that Birds are successful on that principal issue.
2.10 Firstly, the question as to the precise circumstances and manner in which the obligations under the charter can be transferred to another location would, in that eventuality, arise. There are disputes between the parties as to the parameters within which such a relocation can occur. In particular, the status of the new mart operated by Listowel Mart comes into question in that context.
2.11 Secondly, issues arise as to whether Birds are estopped from asserting any entitlement by virtue of a number of factors which it will be necessary to analyse in more detail in due course. Principally, reliance is placed upon the fact that Birds have, for much of the last fifty years, been lessees of the Market Place premises (or at least some of it) in circumstances where, it is asserted on behalf of Listowel Mart, it would be inconsistent to assert that any market or fair has taken place. In addition, reliance is placed by Listowel Mart on the circumstances which surrounded the sale of their premises. It is said that Birds, notwithstanding a knowledge of a possible claim based upon the charters, allowed, to their knowledge, the premises to be offered for sale and the plans for the purchase of alternate premises to which the weekly mart was relocated, to go ahead.
2.12 Finally, the question of whether any market or fair rights have been extinguished by the provisions of the 1995 Act also arises.
2.13 However, for the reasons which I have set out, the key initial issue between the parties is as to the current status of any obligations which may derive from the letters patent. It is to that issue that I now turn.
3. The current status of the letters patent in relation to the lands
3.1 The first question to be addressed is to identify exactly what the current position is in relation to the times at which fairs and markets are to be held under the letters patent. The rights and obligations which arose from the two letters patent are, on their terms, to the effect that there was to be one free market every Saturday, one free market every Tuesday, one fair on the feast day of the Finding of the Holy Cross, one fair on 15th July and one fair on 18th October. Each of the fairs was effectively to be conducted over two days, being the date identified and the date thereafter with supplemental provisions in the event that any of the relevant dates should fall on a Saturday or a Sunday.
3.2 While there was, during the earlier part of the hearing before me, a possible issue as to the precise identification of the date of the feast of the Finding of Holy Cross, it was accepted by the close of the proceedings that the relevant date is 13th May. It is also common case that as a result of the Calendar (New Style) Act, 1750, the references to a fair taking place on or about 15th July and 18th October respectively, now refer to 26th July and 28th October.
3.3 Other than that, the only other material change in the parameters of the rights and obligations relating to the markets and fairs set out in the charters occurred in February, 1906, when an order was made by the Local Government Board under the provisions of s. 10 of the Local Government Board Act, 1872 which purports to have changed the day for the holding of markets in Listowel from Wednesday to Tuesday. It will have been seen that the original charter appeared to specify Tuesday as the market date, so it is difficult to understand how it came to be believed that the day had transferred to a Wednesday. However, be that as it may, it is absolutely clear that as and from the making of the relevant order by the Local Government Board in 1906, the market days were Tuesdays and Saturdays.
3.4 In the events that have happened it is clear, therefore, that the rights and obligations under the letters patent now refer to a market every Tuesday and Saturday and to a fair of a two-day duration on three occasions in the year, starting on, respectively, 13th May, 26th July and 28th October, with appropriate variations in these latter dates in the event that any of them should fall on a Saturday or a Sunday.
3.5 Subject to the issue raised by Listowel Mart as to whether any such rights have been extinguished by virtue of ten years non-user under the provisions of the 1995 Act, it is accepted by all parties, and I agree, that whatever rights and obligations may be said to derive from the letters patent in respect of fairs and markets still subsist. It is, therefore, necessary to start with a general consideration of the rights and obligations which arise in respect of markets and fairs created by letter patent.
3.6 The existence of markets or fairs held under charter goes back to the Middle Ages. Over the centuries, in these islands, the right to conduct a market or fair was conferred in many locations, most normally, it would appear from the many authorities, on either a local corporation or a local grandee. A market at common law has been defined as a franchise right of having a concourse of buyers and sellers to dispose of commodities in respect of which the franchise is given. See Downshire v. O’Brien [1887] 1 L.R. Ir, 380 at 390 per Chartterton V.C. As to the difference between a market and a fair, Coke commented that “Every fair is a market but every market is not a fair”. 2 Inst. 406. At common law it would appear that the principal distinction between a market and a fair was as to timing and scale. A market was a regular occurrence on a relatively modest scale. A fair was a much larger event, occurring on one, or perhaps a small number of occasions in the year. The grant of an entitlement to conduct a fair or market frequently carried with it an entitlement to exact a toll from those selling at the market or fair concerned (although certain markets and fairs were “toll-free”). It was, thus, for many centuries, a very valuable entitlement. The right of holding a market or fair is regarded as an incorporeal hereditament which not only authorised the fair to be held but gave the owner of the market rights an entitlement to prevent others from interfering with it. See, for example, A.G. v. Horner [1885] 11 APP. CAF. 66 at p. 80. While the grant of such rights was seen in English law as being derived from the royal prerogative, it was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this jurisdiction, in the continued existence of such rights and entitlements derived from pre-independence royal grant.
3.7 The principal public entitlement in respect of a fair or market would appear to be a right of coming into the place of the market and frequenting it for the purposes of buying and selling, subject to the limitation that that right can only be exercised when the market or fair is open and can be confined to a specific category of goods where the market or fair is limited, in its terms, to those goods. It is also clear that persons have, in the course of a fair or market, an entitlement to sell their goods by public auction. See Nicholls v. Tavistock Urban District Council [1923] Ch. 18 at p. 27.
3.8 Turning to the obligations of the owner of a market place, it is clear that the grant is made for the benefit of the public as well as for the benefit of the grantee and that certain obligations, therefore, lie on the grantee. It was accepted on behalf of Listowel Mart that amongst the obligations which rest on the owner of market and fair rights is one to hold the market or fair concerned. However, three key issues were raised.
3.9 Firstly, it is said that the obligation does not relate to any specified piece of land unless, perhaps, as is not the case here, the precise boundaries within which the fair or market is to be conducted are themselves specified in the grant (a so-called “metes and bounds” grant).
3.10 Secondly, it is said that the consequences of a failure to hold markets and fairs do not include an entitlement on the part of third parties to require that they be held. Rather, it is said, that the owner of the market and fair rights loses an entitlement to prevent others from holding a competing market or fair (in breach of the monopoly conferred by the patent). In addition, it is said, that a failure to hold might result in a forfeiture of the entitlement. However, it is argued that no remedy lies in the hands of a member of the public who might have wished to attend the fair, either as a buyer or a seller, to enforce its continuance.
3.11 As a combination of both of those points it is argued that, even if there remains some residual entitlement on the part of a member of the public to enforce the obligations of the owner of a market right, any such entitlement cannot extend to one affecting any particular lands owned by that person in the absence of the market rights concerned being defined by charter as being referable to specific indentified lands.
3.12 I propose to address each of the issues which I have identified in turn.
4. Attachment of market and fair rights to land
4.1 As pointed out earlier the letters patent in this case do not specify any particular land within Listowel at which the markets and fairs concerned are to be conducted. Taking the letters patent by themselves there is not, therefore, any particular reason to suggest that any market or fair has to be held in the Market Place property which is the subject of these proceedings. However Birds contend that the market and fair obligations under the letters patent have been, as they put it, “appropriated” to the lands in question in the following circumstances.
4.2 As noted earlier, it is common case that, at or about the same time the company was set up and acquired the relevant lands, Listowel Mart acquired, from the successor in title of the Baron of Lixnaw, the market and fair rights granted by the two letters patent. The only lands owned, for virtually all of the period since, by Listowel Mart would appear to have been the lands in question. There is a factual dispute between the parties, to which I will turn, as to the extent to which markets or fairs as contemplated by the charter were, in fact, conducted on the lands in question at any material time. On Birds case it is said that, at least at certain times such markets and fairs did, in fact, occur. In those circumstances, it is said that the obligations in relation to the conduct of markets and fairs now attach to the lands in question. It follows, it is said, that subject to the right of removal to a suitable location within the parameters of the grant, the obligation of Listowel Mart remains one which requires them to make the Market Place available for markets and fairs. It is implicit in the argument put forward on behalf of Birds that the obligation to allow for the holding of markets and fairs at the Market Place would continue, again in the absence of a valid removal, at that location notwithstanding a sale of the property. On that basis, it is said that Listowel Mart is not entitled to the declaration which it seeks for there exists, it is again said, a public right to have markets and fairs which now attaches to the land in question and will continue so to do unless and until a valid removal takes place.
4.3 Despite the very many authorities referred to in argument and also noted in the passages from the leading authority on the area, Pease & Chitty – Law of Markets and Fairs, to which I was referred by both counsel, there does not, it seems to me, appear to be a case dealing directly and solely with this issue. It may well be that, because market rights were, almost always, held by a local corporation or grantee, other lands in the same ownership, or otherwise available for the uses of the market, would be available. The “attachment” of general rights and obligations to a specific site did not, therefore, arise
4.4 Helpfully by the time argument had concluded there was a limited measure of agreement between the parties. It was accepted by counsel on behalf of Listowel Mart that the grant of an entitlement to hold a market or fair by letters patent, such as occurred in this case, entails a form of obligation to hold the markets and fairs concerned. Subject to the question of whether any such obligation had been extinguished by virtue of the provisions of the 1995 Act and to the question of whether the obligation is enforceable by action, the obligation in general terms is accepted. . It was not, however, accepted that the obligation could be said, in principle, to be referable to the lands in question, or, indeed, any lands. As a subsidiary argument it was suggested on behalf of Listowel Mart that even if it was, in theory, possible for market and fair obligations arising under a charter which did not specify “metes and bounds” to attach to a particular plot of land by user or “appropriation”, then, on the facts of this case, it was not accepted that any such appropriation had, in fact, occurred.
4.5 However, it is clear that those factual questions only arise if it is possible for any obligations concerned to attach to the lands in principle and also if it is possible for a private entity, such as Birds, to enforce the rights and obligations concerned by action. It is therefore appropriate to turn to those issues first.
4.6 The only case cited in which a court would appear to have taken action to prevent the use of lands in a manner inconsistent with a fair or market right is Wyld v. Silver [1963] 1 Q.B. 169, a decision of the Court of Appeal in the United Kingdom. As part of the enclosure of common lands at the turn of the eighteenth and nineteenth centuries, commissioners, appointed for the purpose of such enclosure, were empowered to designate a piece of waste land near the village of Wraysbury for the purposes of holding a fair. The commissioners duly made an award in 1803 allotting certain lands to named recipients “subject to holding the same annual fair”.
4.7 By the time the case came on for hearing in the early 1960’s it was clear that no fair had been held in living memory and the last recorded occasion of such an occurrence was in 1875. The defendant had purchased some of the relevant lands as a development site and was opposed in his proposals by local interests who brought the proceedings on the basis that, it was contended, the development would, in practice, prevent the lands from being used as a fair.
4.8 A number of propositions are clear from the judgments. Firstly the right to hold the fair concerned was determined to be a public right which could not be lost by mere non user. The basis for that determination was that no individual could lose a public right which was held for the benefit of the public generally, or a section of it, and, indeed, no one generation could lose the public right which ought inure to the benefit of future generations. Wyld v. Silver is, therefore, authority for the proposition that mere non user will not, as a matter of common law, extinguish a public right to a market or fair. It does not seem to me that the fact that the market or fair in question had a slightly different provenance to that with which I am concerned (being on foot of an award of commissioners established by Act of Parliament rather than by Royal Charter) makes any difference to that proposition. Lynch J. in Skibereen Urban District Council v. Quill and Others (1986) ILRM 170 came to a similar view as to the lack of necessity of user to maintain the existence of market rights.
4.9 Secondly the fact that the defendant in Wyld v. Silver had no notice of the existence of the right concerned was not considered to be material. It would appear that the purchaser had, in accordance with normal and proper conveyancing practice, researched the title to the property for a sufficient period of time to verify the title. That did not, of course, require him to go back to the original grant of 1803 in which he would have found a reference to the entitlement to hold the fair. Similarly the absence of any active use of the fair within living memory would not have brought the possible existence of a fair entitlement to his attention thus putting him on enquiry. Notwithstanding this the rights concerned were noted as being public rights which applied notwithstanding the absence of any notice. The point to the contrary was dismissed by Lord Denning M.R. in a typically pithy passage from p. 184, which reads as follows:-
“Then it is said to be hard on the defendant because he bought the land in ignorance of the rights of the inhabitants. So be it. It is one of the risks that he must take.”
4.10 Finally the Court was persuaded that it was appropriate to grant an injunction which would prevent the defendant “from erecting any such building or doing any such other act or thing upon the said allotment as would prevent or interfere with the holding of the said fair or wake thereon or any part thereof”.
4.11 A number of propositions, relevant to these proceedings, seem to me to follow. On the basis of that authority it seems to me that, at the level of principle, an obligation to hold a fair or market conferred by Royal Charter subsists as a matter or common law, even if it has not been used. Subject to the 1995 Act question I am, therefore, satisfied that rights still subsist in relation to the markets and fairs granted by the charters in this case.
4.12 However one of the important questions which arises is as to how such rights are to be enforced and by whom. It is true that, in Wyld v. Silver the issue was raised as to whether an inhabitant or inhabitants of the relevant area had standing to bring the proceedings. Dealing with that issue, at p. 183, Lord Denning M.R. said the following:-
“Next it was said that a few of the inhabitants could not sue by themselves but that they had to relate the facts to the Attorney-General and persuade him to sue. I do not doubt that the Attorney-General could have sued. He was a competent party. But I do not think he was an essential party. One or more of the inhabitants can sue to enforce the right of all, stating that they do so on behalf of themselves and all others. Even if they are in a minority in the parish they can sue, for the majority cannot overrule the minority in such a matter. The majority cannot excuse the wrong, nor deprive the minority of their remedy by suit: see Bromley v. Smith [1826] 1SIM. 8. per Sir John Leach V.-C.”
It seems to me to follow that any person who would have an entitlement to benefit from a public right to a market or fair has an entitlement to maintain appropriate proceedings. Such a right is an incidence of the public entitlement concerned coupled with the absence of an entitlement on the part of others to excuse the wrong. I will turn, in due course, to the question of whether, in the context of the charters with which I am concerned, Birds have a right of enforcement.
4.13 In addition Wyld v. Silver also addresses the question of motive. There was significant evidence in that case to the effect that the true reason why the plaintiffs sought the injunction concerned was not that they wished that the fair take place as such but that they wished to prevent the development under contemplation going ahead. To that Lord Denning M.R. replied, at p. 184:-
“We cannot go into the motives for enforcing a legal right. If it exists, we must enforce it.”
Again, on the facts of this case, it is said that what Birds wish to do (and what they have done from, it would seem, the 1930’s), is to provide their amusements to the public during race week. It will be recalled that Listowel races take place in the latter part of September and do not, therefore, occur during any of the periods specified as a fair. Furthermore the traditional entitlement of Birds on foot of the various leases and other arrangements under which they were permitted to use the Market Place was for a period just short of two weeks which would only have included a small number of days which would have coincided with the Tuesday and Saturday market obligations arising under the charter. Finally, it is said that what has occurred, even on those days, was not a market as contemplated by the charter. This is an issue to which I will have to return in relation to the non user question. However, for the purposes of the argument now under consideration, I am satisfied, on the authority of Wild v. Silver, that the fact that Birds purpose may not, in reality, be directed towards the conduct of markets or fairs in accordance with the Charter, is not a material consideration in considering whether enforceable public rights remain in relation to those lands. If, therefore, it can be said that the market and fair rights concerned now attach to the lands in question, then it seems to me that those rights continue to subsist in the lands irrespective of the following factors.
4.14 Firstly it is not, in that context and in respect of that issue, relevant to consider whether they have in fact been used. If they attach to the lands in question then non user is irrelevant for common law purposes.
4.15 Secondly an issue arises as to who may enforce that entitlement. It is clear that the public right concerned cannot be extinguished or diminished by a majority or the like. In Wild v. Silver the right was expressly described in the Commissioners’ Award as being for the benefit of “the inhabitants”. It was, therefore, clear on the facts of that case that any one of the class of persons for whose benefit the right was created could enforce, even if in a minority. However, the letters patent in this case are not, in express terms, stated to be for the benefit of anyone in particular, though they obviously are, by implication, principally for the benefit of the inhabitants of Listowel and its surrounding areas who might wish to avail of the right to buy and sell in the market. A question does, however, arise as to whether, in such circumstances, where no express class is identified as being the beneficiaries of the entitlement, there are limits on those who might be entitled to enforce by action.
4.16 Subject to what might loosely be termed the estoppel questions, I am satisfied that Birds would have standing to bring such proceedings. It is clear that a market or fair (and in particular a fair) could involve persons travelling from quite some distance for the purposes of marketing their wares. There is, of course, an issue between the parties as to whether the amusements which Birds provide are a legal incidence of a market or fair. However, irrespective of the answer to that question, it seems to me that Birds are entitled to assert that there is a public entitlement, available to any person who wishes to sell any products, to avail of the market and fair rights in the charter. The fact that Birds might also wish to do other things and indeed that their principle interest in these proceedings might be directed towards seeking to procure that they be able to do other things, is not, in my view, relevant to this question.
4.17 Finally it seems clear that if a public right to a fair or market can be said to attach to a particular plot of land, then there is a jurisdiction in the court to enforce by injunction that entitlement. Proceedings would seem to be available even against successors in title who acquired without notice.
4.18 For those reasons it seems to me that the key question comes down to one of whether the rights and obligations in respect of the markets and fairs under consideration in this case can be said to attach to the lands in question. This raises an important distinguishing feature between the present case and Wyld v. Silver. The rights in Wyld v. Silver were specific and related to a particular piece of land rather than general and related to a district as a whole. That raises squarely the question of whether an entitlement to the type of orders made in Wyld v. Silver can be said to arise in relation to any particular piece of land within the general area described in the letters patent. In essence, Birds argue that where a particular piece of land comes to be used for the purposes of a fair or market, then the rights attach to that piece of land in perpetuity (in the absence of a valid removal to another site) even if the market falls out of use. In the phrase used by counsel for Birds it is suggested that the land in question is then “appropriated” to the use of the fair or market concerned and that obligations continue to attach to it at that location unless and until it is legitimately and properly removed to another location.
4.19 Counsel for Birds places reliance on a passage from Mosley v. Walker in the following terms:-
“I take it to be implied in the terms in which the market is granted that the grantee, if he confines it to the particular parts within a town, shall fix it in such parts as will from time to time yield to the public
accommodation, and that if the place wants a lot it ceases to give reasonable accommodation he is bound, if he had land of his own, to appropriate land on which to hold it; or, if not, to get land from other persons, in order that the market, which was originally granted for the benefit of the public, as well as for the benefit of the grantee, may be effectually held; and that the public may have the benefit which it was originally intended they should derive from it”.
4.20 However the authors of Pease and Chitty note, at p. 36, that:-
“A market or fair must be held on land in which the Lord of the market can properly perform his duties of correcting the market and protecting the rights of the public. Such duties can be most readily performed where the Lord owns both the market or fair and the land on which it is held. At no time, however, does it seem to have been thought necessary that the market owner should own the fee of the market place.”
The only requirement would seem to be that the owner of the market rights concerned has sufficient control to regulate the market.
4.21 It seems to me, therefore, that the obligation to hold a market in a general district is an obligation lying upon the owner of the market rights concerned and does not attach any particular piece of land. Such a general market right, not confined by “metes and bounds”, cannot, therefore, be said to apply to any specific piece of ground even if the lands in question have happened to be used for the purposes of the market. The fact that it is possible to confer market rights on a person who owns no land within the relevant area makes it clear that the obligations on the owner of the market does not necessarily apply to any particular piece of land. I am strengthened in that view by the decision of Lynch J. in Skibbereen where he held in answer to question (c) in the case stated in those proceedings that there was not an obligation on the owner of the market rights to hold markets and fairs in accordance with the terms of the charter but that the State could forfeit the franchise for failure to exercise it. It is important to note that Lynch J. was concerned, in that case, with a general market obligation while Wyld v. Silver was concerned with a fair on a specific piece of land. In that context it is also relevant to note that in all of the English cases cited (for example Prince v. Lewis [1826] 5 B. & C. 363), with the exception of Wyld v. Silver, the courts appear to have identified that the consequences of a failure to hold (or properly hold) markets or fairs was to the effect that the market or fair entitlement concerned could be forfeit or that the market or fair owner might be deprived of the opportunity to enforce his monopoly.
4.22 It is argued that to allow the owner of market rights to dispose of his last remaining piece of land in circumstances where the market rights are not secured would be to set the entitlements of the public to a market at naught. However it does not seem to me that argument is reconcilable with the proposition, which is clear on the authorities, that an obligation to hold a market can rest upon a person who owns no land. The rights of the public to require Listowel Mart to provide markets and fairs in accordance with the charter, (to whatever extent those rights may exist) even after Listowel Mart have sold their last portion of land within Listowel, would be no different from the rights of the public in a case where market rights were granted to a person who did not own land in the vicinity in the first place. In those circumstances I am not satisfied that any public entitlements that may exist in this case can be said to attach to the lands in question. It seems to me that in cases such as that with which I am concerned the consequence of a failure to conduct a market or fair in accordance with the obligations implied by the letters of patent concerned are not forfeiture and/or an inability to enforce. For those reasons it seems to me that it follows that Listowel Mart is entitled to an appropriate declaration in a form which I will discuss with counsel. It also seems to me to follow that Birds are not entitled to any declaration upon their counterclaim as the whole drift of that claim concerned an entitlement in respect of these lands rather than general obligations.
4.23 However lest I be wrong in relation to that conclusion there are a number of other issues which would arise which I now propose addressing.
5. Were fairs and markets under the charter conducted at the Market Place 5.1 If I am wrong in the view which I have taken, to the effect that a generalised obligation to conduct a fair or market cannot attach to a particular piece of land, then it follows that it would be necessary to consider whether, on the facts of this case, the Market Place had any relevant rights attached to it. As pointed out earlier this question involves both legal and factual issues. I propose addressing the facts first.
5.2 The first reference to the Market Place in the historical records seems to be found in a special meeting of the Magistrates, held at the court house in Listowel on the 6th September, 1854. Up to that time it would appear that fairs and markets were held in the square and on the streets and lanes of Listowel. At the relevant time the owner of the market rights was the Earl of Listowel. I am satisfied that the many resolutions passed on that occasion related not just to the fairs and markets conducted in accordance with the charter rights and obligations (being those derived from the letters patent) but also to other markets which had come to take place in Listowel. Of particular relevance is the fourth resolution which reads as follows:-
“That as the Patent and Fortnightly Fairs of the Town of Listowel, have been held in the principal Square thereof, for a period long previous to the existence of any of the present house property of the Town of Listowel, although we are of opinion that such Fairs ought to be removed therefrom, we hesitate to interfere with them further than by appointing the New Market Place, during such Fairs for the sale of pigs, until authorised by further legislation relative to Fairs, or until sufficient accommodation be provided in a Fair Green. Meanwhile the Proprietor of the Tolls and Customs of those Fairs has engaged to cause all dirt and nuisance created by them to be removed from the public thorough fares of the Town”.
It seems to me clear from that resolution that while, many regulations were adopted concerning fairs generally, it was acknowledged that it was not possible to interfere with the market rights held by the Earl of Listowel under the charter. It also seems clear that up to that time no aspect of the fairs or markets concerned would appear to have taken place in the Market Place. As a result of that resolution the sale of pigs would appear to have been the only part of the fair moved to the Market Place at that time. There was also produced in evidence a copy of “Fairs and Markets of Ireland – A Cultural Geography” by Patrick J O’Connor which includes a photograph showing both the main square in Listowel on a fair day described as being in the late nineteenth century and also Market Street, Listowel from a roughly similar time. Market Street runs along one side of Market Place. Unfortunately neither of the pictures assist with informing as to activities going on, at that time, in the Market Place itself. It is, however, abundantly clear that the main focus of the market remained in the square at the relevant time. The square, although relatively close to the Market Place, is not directly connected to it.
5.3 Listowel Mart purchased the Market Place in 1959. Also members of the Bird family would appear to have been involved in providing amusements during Listowel race week from the thirties and forties. Some of the witnesses who gave evidence on behalf of the Birds were in a position to deal, for understandable reasons without any great precision, with the position in the Market Place in the immediate run up to the acquisition of those lands by Listowel Mart. I am satisfied, on the evidence, that markets and fairs in their traditional model died out in the late 1950s and early 1960s. While I am satisfied that some of the relevant activities up to that time took place in the Market Place, I am not satisfied that there is any real or sufficient evidence to the effect that the markets or fairs had moved to the Market Place. Rather the Market Place was part of the location at which the market or fair took place and there is no evidence to suggest that the decline in activity within the Market Place was any different to the decline in activity within Listowel generally.
5.4 Save for the fact of the acquisition by Listowel Mart of the Market Place and the contemporaneous acquisition of the market rights, there is not, in my view, any basis for suggesting that any fair or market operated in accordance with the charter became allocated or attached to the Market Place in preference to any other area within Listowel over which the Earl of Listowel or his agent had control. I am not, therefore, satisfied that there is any factual basis for the suggestion that the fair and market rights and obligations had attached to the Market Place up to 1959.
5.5 In relation to the period thereafter it would appear that Listowel Mart charged tolls for a brief period after its acquisition of the market rights, with the last recorded instance being 1959. However, the company constructed a significant building covering quite a portion of what had been the Market Place for the purposes of conducting sale by auction in what is, in modern parlance, described as a mart. It would seem, on the evidence, that a small number of additional operators had, from time to time, stalls or other locations at the mart, at which they sold products to those attending the mart. In addition it would appear, as already pointed out, that there were various lease arrangements in favour of William Bird, and subsequently Birds, in which the Market Place was taken for a period spanning the Listowel Races week from, initially, the executors of the Earl of Listowel and subsequently from Listowel Mart. Those lease arrangements provide that Birds had exclusive possession of the Market Place (or initially part of it) for the relevant period. It seems to me that it is not possible to describe what occurred during races week as a market or fair conducted in accordance with the patent. Notwithstanding the evidence given on behalf of Birds to the effect that it was their understanding that they were taking over the collection of tolls from the Earl of Listowel (and subsequently on behalf of Listowel Mart), the terms of the written agreements entered into between the parties are clear and cannot, in my view, now be reneged on. On that basis Birds paid a rent and received exclusive possession. If anyone else was trading in the Market Place on foot of paying something in the nature of a license fee to Birds, then such persons were not exercising any rights which flow from the charter to engage in the sale of merchandise on payment of a toll to the charter owner. It cannot be said that Birds were collecting toll on behalf of the owner of the market rights. Birds were collecting a license fee on foot of their entitlement to exclusive possession of the property. While it was said that the rent was increased to reflect the fact that Birds could collect tolls, there was no provision in the lease providing for, nor did it in fact happen, that the amounts paid by Birds to Listowel Mart depended on the sums actually paid to Birds by any independent operators.
5.6 In those circumstances it does not seem to me that what occurred during the period of when William Bird and, subsequently, Birds were in exclusive occupation can be described as a fair or market as contemplated by the charter at all. While it is true to state that Birds had not, from the beginning, a letting of the entire Market Place it does seem that the parts not let to Birds during races week were let to other parties so that nothing turns on that point.
5.7 The next question to be considered is as to whether the fact that a small number of traders appear to the have attended at at least some of the general marts, could lead to a conclusion that markets, in accordance with the charter did, in fact, occur in the period since 1959 at the Market Place. It is clear from the judgment of Lynch J. in Skibbereen that scale is not a relevant consideration in determining whether it can properly be said that a market is conducted in accordance with a charter. At p. 173 Lynch J. noted:-
“If an owner should neglect to hold a market, it seems to me that he can have no cause of complaint if traders and customers continue to assemble at an appropriate place on the appropriate date. If they do so assemble then they would form a concourse of buyers and sellers to dispose of commodities within the meaning of the definition of ‘market right’ which I have already quoted above. Such a concourse might be big or small and might even be constituted by one trader and such potential customers as might assemble or pass by to see his wares: see s. 11(a) of the Interpretation Act, 1937 whereby the plural includes the singular”.
However, I am not satisfied that there is any acceptable evidence which suggests that there were ever any additional traders present at the mart other than on a Thursday. On the evidence the principal mart conducted by Listowel Marts was on Thursday. There were additional traders there on that occasion. No mart took place on Tuesdays or Saturdays. A smaller or subsidiary mart took place on a Wednesday but the evidence suggests that additional traders did not attend on that day, presumably because the significantly smaller scale of the mart on that occasion did not justify their presence.
5.8 The question arises as to whether the marts conducted could, in theory, be considered markets as contemplated by the letters patent. On balance I have come to the view that such a mart could, in principle, be so regarded. It is clear, for the reasons which I have earlier set out, that a sale by auction is nonetheless a sale for the purposes of a market conducted in accordance with the letters patent. While the cattle concerned were offered for sale through the auspices of Listowel Mart, in effect the sale was by the owners of such cattle to whatever purchasers happened to be interested. The mart was, therefore, in the words of Lynch J. in Skibbereen, a concourse of buyers and sellers who happened to use the medium of an auction for their buying and selling.
5.9 I am, therefore, satisfied that what occurred on Wednesday and Thursdays in the mart was, in principle, a market as contemplated by the charter. If, therefore, I had been satisfied that it was possible, in principle, for market obligations to attach to a particular location by user, and if Wednesdays and Thursdays had been market days for charter purposes, then I would have been satisfied that, those rights would have attached to the Market Place. I should also note that it seems to me that each of the market rights and obligations and the fair rights and obligations needs, in this context, to be considered separately.
6. Estoppel
6.1 Again lest I be wrong in my overall conclusion, it is necessary to consider whether Birds would have lost any entitlement which they might otherwise have had by virtue of their actions. Firstly it is said that by entering into the leases to which I have referred, Birds are now, in effect, prevented from asserting any entitlement. For the reasons which I have already set out, I am satisfied that the existence and terms of those leases has prevented any market or fair from taking place during the period spanning Listowel Race Week since the time when Birds have been involved. I came to that view not on the basis of an estoppel, but on the basis that no market could, in fact, have taken place in the manner contemplated by the charter, having regard to the leases. I do not believe that the leases are, therefore, truly an issue which raises an estoppel but rather have the effect which I have sought to analyse.
6.2 The other matters relied upon as creating an estoppel concern the conduct of Birds since the possibility of a move by Listowel Mart to their new location just outside Listowel was first mooted. There certainly was early correspondence from Birds which seemed to acknowledge an entitlement on the part of Listowel Mart to make such a move. In addition it would appear, and I am satisfied, that Birds in effect permitted Listowel Mart to act to its detriment in circumstances where Birds were already aware, at least in general terms, of the possibility that they might be able to assert rights under the letters patent. It, of course, follows from the rational of Wyld v. Silver, that a public right cannot be extinguished by an estoppel on the part of one individual for just the same reason that a public right cannot be extinguished by non user. The market and fair rights, such as they are, must, therefore, subsist notwithstanding any estoppel. The issue is as to whether Birds have lost any entitlement to assert those public rights by virtue of the estoppel contended for.
6.3 Firstly, I should state that I am satisfied that if these were ordinary proceedings involving private rights, an estoppel would arise such as would debar Birds from maintaining these proceedings. However the proceedings do not involve private rights. It would be futile to decline to declare the existence of public rights on the basis of an estoppel which operates against only one individual. In those circumstances the public rights concerned could be asserted by any other individual and, if so asserted, there would be no reason why Birds could not avail of those public rights in just the same manner as anyone else. If, therefore, I had been satisfied that there were public rights attaching to the lands in question, I would not have taken the view that it would have been appropriate to decline to declare those rights on the basis of the contended for estoppel. The rights would, in those circumstances, subsist and there would have been no barrier to Birds enjoying whatever rights might be declared to exist in common with everyone else.
7. Non user under the 1995 Act
7.1 I have already analysed the extent of the use of the market and fair rights and obligations over the last number of years. I am, therefore, satisfied that none of the fair rights nor the Tuesday or Saturday market rights have, in fact, been exercised for much longer than a ten year period. In those circumstances I would, in any event, have been satisfied that those rights have been extinguished under the provisions of the 1995 Act.
7.2 I am satisfied that, where separate markets and/or fairs are created by a charter or charters, the non user provision applies separately to each of them.
8. Removal
8.1 The final issue upon which I should also express my views, lest I be wrong in my main conclusion, concerns the entitlement of Listowel Mart to remove the market from one location to another. It is abundantly clear, on all authority, that the entitlement to remove must be exercised within the confines of the area described in the letters patent creating the market or fair in the first place. See Pease & Chitty
p. 34.
8.2 The 1612 Charter, as quoted at para. 1.1 above, refers to the Saturday market and the Feast day of the Finding of the Holy Cross Fair being held “at Listowel aforesaid.” It is accepted by both parties, and I agree, that, from the text of the letters patent, the reference to “aforesaid” is a reference to a description of Listowel by means of a series of townlands earlier set out in the charter. The very considerable diligence of Listowel Mart’s solicitor has allowed maps to be put in evidence which show those locations. It does seem clear that the new mart premises, while close to the area defined by the sequence of townlands, is not, in fact, within it. It is, perhaps, of the order of less than half a mile from the nearest point. It does not seem to me, therefore, that a relocation to that location could come within the terms of the 1612 Charter.
8.3 The 1688 Charter, as quoted at para. 1.2 above, is in slightly different terms and requires the Tuesday mart and the July and October fairs to be held “in or about the aforesaid Listowel.” In those letters patent the description of Listowel is as “The Ville of Listowel” rather than by reference to any particular townlands. I am not satisfied that the new location for the mart could come within the confines of the term “in or about the Ville of Listowel.” It is quite some distance from the historic original town of Listowel and is at least eight hundred metres from the now boundary of the town.
8.4 For these reasons I am not satisfied that any obligation on Listowel Mart could be said to have been met by a valid removal of the market to its new location.
8.5 However it does seem to me to be clear and, indeed, agreed by the parties, that any subsisting obligations (whatever they may be) can be validly removed to a suitable location. With that in mind it is important to define the parameters within which such a removal can validly take place. It is clear that, in addition to the removal being to a location within the parameters defined in the relevant charters (which would, at a minimum, require that the removal be to a location within the specified townlands and, in all probability, relatively close to Listowel town so as to satisfy the requirements of the 1688 charter), such removal must also be to a “convenient” location. However “convenience” must, in my view, be judged by reference to the needs of those who have an entitlement to use the market whether as buyers or sellers, rather than by reference to those who may carry on ancillary activities in conjunction with the market. In that context it is important to indicate I am satisfied that the carrying on of amusements in the fashion conducted by Birds is not one of the legal incidents of either a market or of a fair. Vol. 29 (2) of Hallsbury Laws of England (4th Ed.) at para. 1,003 states that:
“It seems that the legal incidents of a fair do not include the amusements which often accompany the holding of fairs, although their presence has been recognised by statute.”
The Court of Appeal in Walker v. Murphy [1914] (2) Ch. 293 seems to have taken that view by adopting the dissenting judgment of Gainsford Bruce J. in Collins v. Cooper [1893] (68) LT 450 to the effect that a fair could not be devoted solely to amusements. The fact that amusements may commonly be found at a fair or even a market does not, it seems to me, mean that amusements are one of the legal incidents of such a market or fair. The definition of a market or fair is “a concourse of buyers and sellers”. Very many other persons may, in one way of another, benefit by the existence of such a concourse. That fact does not, however, make the business of those persons a part of the market or fair concerned.
8.6 In those circumstances it does not seem to me that any removal would require, for its validity, to make provision for Birds amusements as such. It is only the concourse of buyers and sellers which needs to be accommodated. Convenience can only be judged by that criteria. In that context I should finally add that I do not accept the ingenious argument put forward by counsel on behalf of Birds to the effect that those who bought tickets from Birds which would lead either by chance or skill to them obtaining a prize could be said to be “buying” the prize. It is clear from the authorities (see for example Lambert v. Rowe [1914] K.B. 38) that the term buying is to be used in its ordinary common sense way. A person who buys a ticket which enables that person to compete for a prize by (say) knocking down skittles or by (say) their ticket being drawn from a hat, cannot be said to have “bought” the prize in any ordinary sense of the word. I am not satisfied that any such activities form any part of the legal incidence of a market or fair and I am not satisfied, it follows, that any removal has to have regard to such matters in considering the suitability of the location.
9. Conclusions
9.1 It follows that my primary conclusion is to the effect that, as a matter or law, the entitlement to have a market or fair (not defined by “metes and bound”) conducted does not attach to any particular portion of land and cannot affect the legal title to any land such as would allow a declaration to be made in any form which would impair that title. If I am wrong in that view then I am satisfied that it cannot be said that market or fair obligations were, in this case, in fact, appropriated to the Market Place and, for like reasons, I am also satisfied that each of the markets and each of the fairs specified in the letters patent with which I am concerned above have been extinguished by non user under the provisions of the 1995 Act.
9.2 Had I been satisfied that the markets or fairs concerned could have and had been appropriated to the Market Place, I would then have been satisfied that Birds had standing to assert the public entitlement involved and to obtain an injunction restraining the lands from being used in any way which would prevent the markets or fairs concerned from taking place on it. In addition I would not have been satisfied that Birds had lost any such entitlements. Any such injunction would, of course, have needed to have been couched in terms which recognised Listowel Mart’s entitlement to remove the markets or fairs concerned to another location which met the parameters which I have set out in paras 8.5 and 8.6.
Skibbereen U.D.C. v. Quill
Lynch J. [1986] IR 126
This is a consultative case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act, 1961, by the learned justice of the District Court assigned to District Number 18. The case is dated the 1st August, 1985, and came on for hearing before me in Dublin on the 2nd December, 1985.
The case sets out the facts of the matter and concludes by asking five questions. There is annexed to the case so as to form part of it copies of the District Court summonses issued against each of the defendants and also a translation of a grant of a franchise by King Charles II in the year 1675 to hold markets and fairs in the town of Skibbereen. This franchise was originally granted to William Prigg and Samuel Hale their heirs and assigns and was purchased from their successors in title by the complainant in the year 1949. The franchise authorised (inter alia) the grantees thereof to hold markets on every Wednesday and Saturday for ever “in or at the town of Newstapleton otherwise Skibbereen.” In addition it granted the right to receive tolls and other charges usually made at markets.
Since the year 1949 when they purchased the franchise the complainant has not itself held or promoted any markets although between 1968 and 1972 they collected tolls from two persons trading in Newstapleton on Saturdays. The summonses against the defendants relate to alleged offences contrary to ss. 3 and 5 of the Casual Trading Act, 1980, on various dates in the summer of 1983. All these dates are in fact Wednesdays. While some of the defendants were at the material time holders of permits to trade issued by the complainant under the Casual Trading Act, 1980, such permits did not operate to validate under the Act the trading engaged in by the defendants on the dates of the alleged offences at the places alleged.
The defendants in answer to the summonses say that they were not engaged in casual trading within the meaning of the Act of 1980 because they were selling at a market held in pursuance of a market right within the meaning of the exception to that effect in s. 2, sub-s. 2 (h) of the Act of 1980. A market right is defined in s. 1 of the Act as:”a right conferred by franchise or statute to hold a fair or market, that is to say, a concourse of buyers and sellers to dispose of commodities.”
The complainant is entitled to the market right created by the franchise of 1675 and it says that it did not hold any market at any of the places on any of the dates the subject matter of the District Court summonses. Although not availing of its market right the complainant has never sought to extinguish it pursuant to the provisions in that behalf contained in s. 9 of the Casual Trading Act, 1980.
When a franchise to hold a market is created and a market is thereafter held for many years traders may build up a goodwill in the market such that their livelihood may become substantially dependent on the holding of the market. Can it be said that the owner of the market can destroy a trader’s livelihood simply because he loses interest in the market and does not bother to hold it? In the case of Skibbereen there is no suggestion in the case stated that any set market place with facilities such as stalls, pens or weighbridges was ever provided by the owner of the market right and counsel for the complainant conceded that it had never appropriated any particular place within the area described in the franchise for the holding of the market. The complainant has designated casual trading areas within the meaning and for the purposes of the Casual Trading Act, 1980, but this does not amount in any sense to the designation of a specified part of the area for the market as being the area within which the market must be held by persons seeking to avail of it. Moreover, the franchise of 1675 is granted expressly without metes and bounds:”On condition that there exists in the present letters no express mention of the true yearly value or of the certain boundary of the premises or of any part of them.” Therefore the market may be held in any part of “the town of Newstapleton otherwise Skibbereen.”
In the foregoing circumstances the owner’s failure to hold the market amounts to no more than a neglect on its part to collect the tolls and other charges to which it would be entitled under the franchise. The non-user of a franchise to hold a market or fair does not extinguish the franchise or right to do so. Thus non-collection of tolls over a long period would not extinguish the right of the owner of the franchise to resume collecting proper tolls at any time if he thought fit. He could also, subject now of course to the planning laws, lay out a market place with appropriate stalls, pens and weighbridges at any time even though he had not exercised his rights under the franchise for a very long time. If an owner should neglect to hold a market it seems to me that he can have no cause of complaint if traders and customers continue to assemble at an appropriate place on the appropriate dates. If they do so assemble then they would form a concourse of buyers and sellers to dispose of commodities within the meaning of the definition of “market right” which I have already quoted above. Such a concourse might be big or small and might even be constituted by one trader and such potential customers as might assemble or pass by to see his wares: see s. 11 (a) of the Interpretation Act, 1937, whereby the plural includes the singular. It seems to me therefore that if a trader or traders attend at a place within the market area on a market day a market would be held in pursuance of a market right. Just because the owner of the franchise does not bother to collect his tolls could not change the fact that a market was being held pursuant to the franchise into the fantasy that it was being held wholly independently of the franchise.
This conclusion is reinforced by the provisions of s. 9 of the Casual Trading Act, 1980. This section clearly recognises that other persons besides the grantee of the franchise or owner of the market right may have an interest in the market which must be taken into account and provided for before a market right can be extinguished. The conclusion also follows from the authorities which were cited to me by counsel from which it is clear that, once a franchise to hold a market is granted, potential sellers have rights in the nature of proprietary rights to use the market apart from the proprietary right of the owner of the franchise to hold the marketsee also paras. 623, 683 and 684 of the 4th edition of Halsbury’s Laws of England, vol. 29.
It should also be remembered that non-user by the grantee of the franchise to hold a market may be a cause for forfeiture of the franchise to the Crown (now the State). However, such forfeiture does not in itself extinguish the market which remains in existence for the benefit of the locality, the tolls (if any) being payable to the Crown or the State instead of to the owner- see paragraphs 661 and 662 of vol. 29.
I find therefore that each of the defendants was on each of the occasions in respect of which a summons was issued against him or her selling at a market held in pursuance of a market right within the meaning of the exception in s. 2, sub-s. 2 (h) of the Casual Trading Act, 1980. Accordingly my answers to the five questions posed in the case stated by the learned District Justice are as follows:
Question A. “Does the franchise granted by the charter still exist, or has the lack of exercise of such franchise by the Council effectively terminated it?”
Answer: The franchise granted by the charter still exists and has not been terminated by the lack of exercise of it by the complainant.
Question B. “If it does still exist, where in Skibbereen may the Council now exercise its rights thereunder?”
Answer: Anywhere in the town of Skibbereen which is within the area covered by the description in the charter namely “in or at the town of Newstapleton otherwise Skibbereen.”
Question C. “Is there an obligation on the Council to hold markets and fairs in accordance with the terms of the charter?”
Answer: No, but the State could forfeit the franchise for failure to exercise it.
Question D. “If the Council fails to hold markets or fairs under the charter, do members of the public wishing to trade have a right to attend at the market-places on the dates specified in the charter, and to engage in trading there as if the Council was in fact holding a market or fair?”
Answer: Yes, on Wednesdays and Saturdays in the area covered by the description “in or at the town of Newstapleton otherwise Skibbereen.”
Question E. If they do have such right, is the exercise thereof ‘selling at a market or fair in pursuance of a market right’ within the meaning of s. 2, sub-s. 2 (h) of the Act and therefore outside the scope of the Act?”
Answer: Yes. Such trading is “selling at a market or fair held in pursuance of a market right” within the meaning of the exception contained in s. 2, sub-s. 2 (h) of the Casual Trading Act, 1980.
Pursuant to sub-s. 2 of s. 52 of the Courts (Supplemental Provisions) Act, 1961, I give leave to the complainant to appeal to the Supreme Court from every determination on a question of law contained in the foregoing judgment and indeed in case that there was any point on which the defendants wished to appeal to the Supreme Court I give leave to them also to do so.
Urban District Council of Newtownards v Tweedie
King’s Bench Division.
23 January 1907
[1907] 41 I.L.T.R 23
Palles L.C.B., Madden, Kenny JJ.
Palles, L.C.B., in delivering the judgment of the Court, said:—This case has been very well argued, but it does not present any difficulty to any of our minds. When the cases are properly considered I do not think there is any real inconsistency between them. In the Exeter and Torquay Cases the goods were within the limits of the city at the time the contracts were made, and therefore there was a liability to toll, and therefore an offence. This is clearly stated by Lindley, J., in the first-named case, and I do not understand the second case as going further than the first. We are bound, however, by the long course of Irish decisions, and I think it is decided in all these cases that when goods are brought within the limits of the town in pursuance of a previous contract of sale and for the purpose of delivery that delivery within the town does not amount to an offence, although that delivery, according to the contract, not only completes the contract, but is the determining moment when the property in the goods passes. This is the ground of the Neutownards Case. That seems to follow from this that the offence is the omission to do something which ought to have been done— i.e., to bring the goods into the market, and if they could not have been lawfully sold in the market there is no breach. I wish to express my entire concurrence in the case of Stretch v. White, 25 J. P. 485. It is said there *23 was no judgment, but every material point was stated by Blackburn, J., and the grounds of his decision are quite clear, that the goods were brought in under a binding contract for sale. The case here is brought down to this, was there evidence before the magistrates that the goods were brought in under a contract? Counsel seems to distinguish between contract and course of dealing, but course of dealing assented to by both parties amounts to contract, and it is simply contract or nothing. The case turns on Mr. Bailie’s evidence. He said “he did not know what quantity of eggs she (defendant) brought on Sept. 1; that he had no specified arrangement for supply on that day, but that he always took all she brought in, and paid her according to the market price of the day; and that he would have given her a week’s notice if he did not want any more eggs from her.” On cross-examination he stated that “three or four years ago he made a contract with Mrs. Tweedie for a supply of all her eggs and butter each week, and that she had supplied him ever since, he paying her the top market price.” I think the magistrates were perfectly justified in holding on that evidence that there was a contract. The result is that the goods were brought in under a contract for sale. It would have been wrong for her to have sold them in the market, and therefore the magistrates were right, and we affirm their decision with costs.
Madden, J., in delivering a short concurring judgment said that in his opinion too there was evidence to justify the finding of the magistrates, but that whether he himself would have arrived at the same conclusion on the facts was an unnecessary and irrelevant question.
Kenny, J., concurred.
Banbridge Urban District Council v Gracey
High Court of Justice.
King’s Bench Division.
3 November 1904
[1904] 38 I.L.T.R 262
Lord O’Brien, L.C.J.
[Having stated the facts as above.] This case raises a question under the Markets and Fairs Clauses Act, 1847. Now, on the facts, the defendant says the order of the Justices was wrong, as the case does not come within the Act. The owner of the house gave him an order for a quantity of potatoes. He had not the potatoes at all within the prescribed limits of the market on that day. It was proved that he delivered them four days afterwards. The price was not fixed, but that implies a reasonable price, and the potatoes should be reasonably fit for use. The magistrates held that there was a sale on 13th, the day on which they were delivered. Now, what are the words of the Act of Parliament? [Reads 10 Vict., c. 14, s. 13.] The word “sell” there is not to be construed in its strict legal meaning. I agree with the judgment of Wright, J., in the case referred to in 64 L. J. M. C. 225, that there need not be a contract in the strict legal sense; there is no necessity to have a transference of property. I think the substance of the sale took place on the 9th, and therefore Newtownards v. Woods applies. It was there held that if the bulk of the goods sold was not substantially within the prescribed limits at the time of such sale, the sale did not come within s. 13. The justices were therefore wrong.
Gibson, J.
This is a case of much importance. The question is whether a valid contract, afterwards completed by delivery, falls within s. 13. There was certainly no exposure for sale. Now, was there a sale? The completed sale consists of two parts. It seems inadmissible to consider the delivery as per se constituting a sale. The delivery and acceptance were not a sale, they were only a completion of a sale. On the 9th there was a “sale” within the Act. My decision is supported by Newtownards v Woods and Stretch v White, The Exeter and Torquay cases were decided on different facts, there being local statutes. But, even if that were not so, I prefer the reasoning in Newtownards v. Woods. “Sell” within s. 13 means sell a bulk present within the market limits, and the Act ought not to be strained to bring within it such a case as this.
Madden, J.
In my opinion the principle of Newtownards v. Woods applies. Now, what was the time of the sale within the meaning of the section? There was no transfer of property on the 9th. I adopt the suggestion of Wills, J., and declining to import niceties of law into a statute of this kind, I agree with Wright, J., that “sale” may be satisfied by agreement to sell. S. 11 of the Exeter Act provided that delivery should be *263 evidence of sale, and the Exeter case may be fairly distinguished on that ground. But if I must choose between the English cases and our Irish case, I follow the latter, not only because I am bound to do so, but because it embodies my opinion. The decision of the Justices is therefore reversed with costs.
DPP (Long) v. McDonald
[1983] I.L.R.M. 223
Henchy J
delivered his judgmnet on 22 July 1982 saying: The defendants in each of these two cases stated are street traders. They make their living by travelling around the country and selling their wares at fairs and markets, using their motor vehicles as mobile shops. Such a mode of trading is apt to cause traffic problems when it takes place in the narrow streets and congested squares of provincial towns. Parked motor vehicles, around which shoppers congregate, are usually incompatible with the need to have parking restrictions so as to have an adequately free flow of vehicular traffic. The Road Traffic Acts have recognized the need to control local traffic and parking problems by giving power to make special bye-laws designed to meet the needs of particular localities. As distinct from the power to make general bye-laws for the control of traffic and pedestrians in public places generally, these bye-laws (which are allowed to be made under s. 89, s. 90 or s. 92 of the Road Traffic Act 1961) are designed to deal with special local problems, and the relevant local authority is given a say in the making of them.
S. 89(1) empowers the Commissioner of the Garda Siochana, with the consent of (now) the Minister for the Environment and after consultation with the local authority concerned, to make in respect of any specified area bye-laws for the regulation and control of traffic and pedestrians and to facilitate the movement of traffic and pedestrians. S. 89(7) makes it an offence to contravene a bye-law thus made. A study of the section as a whole shows that it is primarily designed to control traffic on specified public roads.
S. 90(1) empowers the Commissioner of the Garda Siochana, with the consent of (now) the Minister for the Environment and after consultation with the local authority concerned, to make in respect of any specified area bye-laws for the control and regulation of the parking of vehicles on public roads. Bye-laws made under s. 90(1) are devoted exclusively to the control and regulation of parking . A contravention of such a bye-law is made an offence.
If (as happened in the instant cases) bye-laws are made under s. 89 and s. 90, they may regulate and control both traffic and parking on the specified public roads.
There is a third way provided in the Act for the resolution by bye-laws of a special kind of local traffic problem on the roads. This is to be found in s. 92. Bye-laws made under this section are designed to provide ‘free passage of vehicular traffic through public roads on the occasion of fairs or markets’. Unlike bye-laws made under s. 89 or s. 90, such bye-laws are made, not by the Commissioner of the Garda Siochana, but by the relevant local authority acting on its own. Furthermore, the scope of their operation is more limited in time and place, for they are permitted to be made only for the purpose of securing the free passage of vehicular traffic through public roads on the occasion of fairs or markets.
This limitation of the scope and application of bye-laws made under s. 92 *225 is necessary because a fair or a market is a property right. It is a franchise conferring a right to hold a concourse of buyers and sellers to dispose of commodities. The property rights involved in that franchise are required by Art. 40.3, of the Constitution to be protected as far as practicable by the laws of the State. The Legislature, by s. 92 obviously considered that the common good warranted that a fair or market held on a public road could be encroached on by bye-laws made under that section, but only to the extent of securing the free passage of vehicular traffic through the public road on the occasion of the fair or market. Such an inroad on the property right was obviously deemed by the Legislature to be constitutional.
Therefore, on a comparison of the power to make bye-laws under s. 89 or s. 90 with the power to make bye-laws under s. 92, I am satisfied that the legislative intent was that when what is to be controlled is vehicular traffic in a fair or market held in a public place (which s. 3(1) defines as ‘any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge’), the bye-laws must be made under s. 92.
The defendants in each of these two sets of cases were prosecuted in the District Court for breaches of bye-laws made under ss. 89 and 90. They were all convicted and fined. They appealed, by case stated, unsuccessfully to the High Court. They now appeal further to this Court. Their appeal is based on three main submissions: (1) that the bye-laws are bad for being unreasonable; (2) that they are bad for lack of good faith in their making, in that (it is said) they were made under pressure from local traders; and (3) that bye-laws made under ss. 89 and 90 are not applicable to the circumstances of these cases. I do not consider submissions (1) and (2) to be supported by the evidence, but submission (3) requires to be dealt with fully in the light of the circumstances of each of the two sets of cases.
I turn, therefore, to consider each set of cases separately.
THE CARLOW PROSECUTIONS
Each of the defendants in this set of cases was summonsed, convicted and fined for parking a motor van ‘where parking was permitted by means of a traffic sign, the said vehicle being used in connection with the sale of goods, contrary to bye-laws 6 (a) of the Carlow Traffic and Parking Bye-Laws, 1969’. These are bye-laws made under ss. 89 and 90 of the Road Traffic Act, 1961 (as amended by s. 6 of the Road Traffic Act, 1968). They expressly apply to the area comprising the urban district of Carlow. Bye-law 6(a) of those bye-laws prohibits parking in connection with the sale of goods on a public road within the Carlow urban district where parking is permitted or restricted by means of a traffic sign. There is no doubt that each defendant, on the date charged, parked a motor van in connection with the sale of goods at Barrack St., Carlow, a street within the urban district of Carlow where parking was permitted by means of a traffic sign. It is clear, therefore, that each conviction was good in law — that is, unless the vehicle was being used in connection with the sale of goods in a market. In that event, bye-laws made under ss. 89 and 90 would have no application.
It appears from the case stated that no evidence was adduced to show that a *226 market existed under either statute or express grant in any street in Carlow. However, there was uncontradicted evidence that from at least 1950 until 1956 a regular market was held in Tullow St., Carlow, apparently without let or hindrance from anybody, and that many of the defendants and their predecessors traded there from their vans on market days. In 1956, at the instigation of the Garda Siochana because of traffic congestion, the traders in the market in Tullow St. were asked to transfer to Barrack St. This they did, and from 1956 until 3 May 1976 (the date of the alleged offences) the market was regularly and continuously held in Barrack St.
The law would appear to be that when a market has been held for such a long period there is a presumption of immemorial usage from which a lost grant may be presumed.
What period of user will raise that presumption will vary from case to case, but the authorities show that the unexplained user of an easement or other incorporeal right for a period of twenty years is presumptive evidence of the existence of the right from time immemorial. The cases also show that the rule is not inflexible and that the period of twenty years is fixed only as a convenient guide.
I am inclined to the view that the holding of a regular market uninterruptedly in Barrack St. since 1956 raises a presumption that it is a lawful market. Further, I consider that to that prescriptive period may be added the period from 1950 to 1956, for, as the judicial authorities show, where a market or fair is granted to be held in a district, such as a borough, township, or manor, it may be held throughout that district or in any one or more places within that district, but where it is granted to be held in a place defined by metes and bounds it must be held within those metes and bounds. There is no suggestion that the Carlow market (if such exists) was defined by metes and bounds.
In these Carlow cases it does not lie with the prosecuting authorities to say that the market now held in Barrack St. since 1956 is not a lawful continuation of the market which was held before that year in Tullow St., for it was the Garda Siochana authorities who persuaded the market traders in 1956 to transfer the market from Tullow St. to Barrack St. They cannot now suggest — nor do they — that what they persuaded the traders to do in 1956 was an illegality.
My deduction from the evidence is that the conduct alleged to constitute the offences charged arose out of trading in what may be a lawful market. If it is, the control of trading in that market so as to make the conduct complained of unlawful would require the bye-laws to have been made under s. 92. Apparently no such bye-laws were made. The only bye-laws relied on by the prosecution are those made under ss. 89 and 90, but they may have no application to the conduct complained of in these prosecutions. It would be inappropriate in dealing with these District Court prosecutions (in which the only parties represented were the Gards Siochana and the defendants) to express a conclusion which might be taken to be a judgment in rem in favour of the existence of a lawful market in Barrack St. on the occasion in question. It has to be said, however, that the evidence was such that an onus was placed on the prosecution to show that a lawful market was not being held on that occasion. That onus was *227 not discharged by the prosecution. The summonses, therefore, should have been dismissed.
The District Justice who stated this case having died, I would rule that continuances should be entered in Carlow District Court so that another District Justice may order that, in lieu of the convictions entered, the several summonses should stand dismissed.
THE DUNGARVAN PROSECUTIONS
Each of these thirteen defendants was summonsed, prosecuted, convicted and fined in Dungarvan District Court on a complaint that he or she had parked a mechanically propelled vehicle, to wit, a motor van, at Grattan Square, Dungarvan, a place where the parking of vehicles is prohibited by the Dungarvan Traffic and Parking Bye-Laws 1972.
Like the Carlow bye-laws, these bye-laws are expressed to be made under ss. 89 and 90 of the Road Traffic Act 1961, (as amended by s. 6 of the Road Traffic Act 1968). Bye-Law No. 7 of those Bye-Laws had the effect of prohibiting the parking of a vehicle in Grattan Square (or the Market Square, as it is otherwise called) for more than one hour. All the defendants had contravened that prohibition by parking their vans in the Square for over one hour. But the uncontradicted evidence was that the occasion of each alleged offence was the market which is held in the Square on the third Wednesday of each month. The defendants were selling their wares in the course of the market from their parked vans.
These prosecutions differ from the Carlow prosecutions in that apparently a charter for the market in question was said to exist. However, the charter or a copy of it was not produced in the District Court, so it is not permissible to act on hearsay evidence as to its existence or contents. As against that, there was categorical and uncontradicted evidence that, so far as living memory goes, a market has always been held in the Square on the third Wednesday of each month. Prima facie at least, therefore, the occasion of each offence charged was a lawful market, for it was agreed by the prosecution that the parking objected to in each prosecution took place on the third Wednesday of each month and was for the purpose of selling goods in the course of the market held in the Square on that day.
For the reasons I have given in dealing with the Carlow prosecutions, I consider that bye-laws made under ss. 89 and 90 were not intended by Parliament to deal with the conduct complained of. If the prohibitions in these bye-laws could be said to apply to a fair or a market, they could be used to cripple or put out of existence, without any compensation, the particular fair or market. And that could be unconstitutional. Moreover, if bye-laws made under ss. 89 and 90 could be used to prevent obstruction of traffic by fairs and markets, the enactment of s. 92 would have been superfluous and pointless. Such an exercise in futility should not be imputed to Parliament. The inescapable conclusion is that, whereas local problems as to the control of traffic and pedestrians and parking may be dealt with by bye-laws made under ss. 89 and 90, the control and regulation of vehicular traffic through a public road where a fair or market is being held can *228 be effected only by bye-laws made under s. 92(1), and then only to the extent allowed by that subsection.
Accordingly, because the evidence supports a prima facie conclusion that a lawful market was being held in Grattan Square on the occasion of each of the offences charged, I would rule that the convictions made in each of the Dungarvan prosecutions should be set aside and all the summonses dismissed, on the ground that the bye-laws alleged to have been contravened were not shown to apply to the facts of these cases.
In my judgment, the appeal in each of the two cases stated should be allowed.