High Court

The Attorney General and The Minister for Posts and Telegraphs
										(Plaintiffs)

v.

Paperlink Limited, Anthony O’Connell, Alexander Brady, Dermott V. Drum and Dermot Conliffe
										(Defendants)

No. 11515p of 1982
[15th of July, 1983]

Status: Reported at [1984] ILRM 373

Costello J. 

Introduction
Paperlink Ltd was established by the four other defendants in this action at the end of 1981 and has since then carried on a courier service in and around the city of Dublin. Mr. Conliffe (the last named defendant) is no longer associated with the company and no relief is now claimed against him. Mr. O’Connell, Mr. Brady, and Mr. Drum are shareholders in and directors of Paperlink and the Minister for Posts and Telegraphs and the Attorney General claim against them and their company a declaration that ‘the defendants by carrying on the business of collecting, receiving, forwarding, conveying, and delivering letters and packets are in breach of the provisions of the Post Office Acts 1908/1969’ and they claim injunctions restraining them and their company from conveying letters or packets and other relief.
The Minister now enjoys certain privileges conferred on the Postmaster-General by the Post Office Act 1908 (see s. 1 (ix) of the eight part of the schedule to the Ministers and Secretaries Act 1924) and the plaintiffs claim that the defendants are now trading in breach of the statutory monopoly conferred on the Paymaster-General by that Act. The defendants say they are not and in addition maintain that the relevant provisions of the 1908 Act are unconstitutional. It will help to understand the issues to be resolved in these proceedings if I turn immediately to the relevant sections which fall for consideration.
The Minister’s privileges with which this case is concerned are conferred by s. 34(2) of the 1908 Act. By virtue of that sub-section the Minister now has, subject to certain exceptions to which I will refer in a moment,

the exclusive privilege of conveying from one place to another all letters. . . and shall also have the exclusive privilege of performing all the incidental services of receiving, collecting, sending, dispatching and delivering all letters...

It is important to contrast the statutory privilege given by s. 34(2) with the statutory power given by sub-s. (1) of the same section. The statutory power is one to establish posts and post offices and to collect and convey ‘postal packets’ – a phrase defined as meaning ‘a letter, post card, reply post card, newspaper, book packet, pattern or sample packet, or parcel and every packet or article transmissible by post and includes a telegram’. The Minister’s statutory privilege is however much more limited. It relates only to the conveyance of ‘letters’. By virtue of s. 34(7) the term ‘letter’ includes ‘packets’ but nowhere in the Act is the word ‘letter’ itself defined. The first defence raised in this case is that it has not been established that the defendants are conveying ‘letters’. The American authorities to which I have been referred do not greatly help in interpreting the meaning of ‘letter’ in the 1908 Act, nor, curiously enough, do the dictionary definitions. What I must do is to give the word its ordinary meaning in everyday speech. Without purporting to give an exhaustive definition it seems to me that as used in the 1908 Act a ‘letter’ must include any communication, whether written or printed, by which the sender addresses himself in a personal way to the person with whom he wishes to communicate. This would mean that business communications such as invoices or cheques would not be ‘letters’, but that a document beginning and ending with a personal salutation probably is.
The second issue arises from an exemption clause in s. 34. The exclusive privilege of conveying ‘letters’ which this sub-section conferred on the Paymaster-General did not embrace, inter alia,,

letters sent by a messenger on purpose concerning the private affairs of the sender or receiver thereof.

But this exemption (and the other five exceptions set out in s. 34(2)) is itself subject to the following proviso:-

but nothing herein contained shall authorise any person to make a collection of those excepted letters for the purpose of sending them in the manner hereby authorised.

The defendants submit that even if they are conveying ‘letters’ (which they deny) then the letters are sent by messengers On purpose concerning the private affairs of the sender or the receiver and so are exempt letters and accordingly no breach of the Minister’s monopoly has taken place.
The proper interpretation of s. 34(2) has been the subject of some considerable debate and I think I should indicate here my conclusions on the matter. The section (a) grants an exclusive privilege to the Minister, but then (b) exempts from it certain letters (‘excepted letters’) if sent in a certain way, and then (c) abolishes the exemption if a collection of excepted letters is made for the purpose of sending them in a manner authorised by the section. It seems to me that if the sender of a letter uses his own employee for the purpose of delivering it and if the letter concerns the private affairs of the sender or the receiver then it is an excepted letter. It is also an excepted letter if the sender employs an independent contractor (such as a courier firm) to act as his messenger provided the letter concerns his private affairs or the private affairs of the recipient of the letter. But this exemption to the monopoly disappears if the messenger or courier makes a collection of excepted letter for the purpose set out in the proviso. The making of a collection within the meaning of the sub-section occurs, it seems to me, if and when a courier firm so conducts its business that it obtains letters for delivery from more than one sender at a time. I propose to examine the evidence in the case in the light of this interpretation of s. 34(2).
The third issue which the defendants raised when they asked for a non-suit at the end of the plaintiffs’ case was the right of the Attorney General to maintain these proceedings. The Minister’s monopoly is buttressed by two specific statutory sanctions. Firstly, if any person conveys a letter which is not an excepted letter or does certain specific acts incidental to the conveyance of letters or makes a collection of those excepted letters for the purpose of conveying them then ‘he shall be liable on summary conviction to a fine not exceeding £5 for every letter’ (s. 34(4)). Secondly ‘if any person is in the practice of doing any of the said things’ (i.e. those acts prohibited by subsection 4) he shall forfeit for every week during which the practice is continued £100 (s. 34(5)). This, it will be noted, is not a criminal sanction and it is expressly provided that a forfeiture or fine imposed by this section may be recovered by action in the High Court (s. 70). The defendants’ submission is that the 1908 Act is a criminal statute and that civil proceedings by the Attorney General are misconceived in the circumstances of this case. I indicated to counsel during the hearing that I did not accept this submission and I propose to defer explaining my reasons for this conclusion until after I have considered the plaintiffs’ claim and the defendants’ counterclaim.

The Plaintiffs’ Claim
The plaintiffs’ evidence relating to the operation of the Minister’s monopoly was given by Mr. Warren, the director of the postal unit in the Department of Posts and Telegraphs. He established that the postal service employs directly about 9,500 persons and indirectly under contract, approximately 2,000 sub-Postmasters. The postal service is a nation-wide one and the Department’s policy is to provide a uniform service throughout the State, which means that the price charged for a letter is uniform notwithstanding the fact that in areas of high population density the cost of delivering each item of mail is appreciably less than in rural areas. His evidence established that in recent years there has been considerable growth of private courier firms and there are now about fifty of such firms in operation in different parts of the country. None of these firms operate on a nation-wide basis but are locally based and carry out deliveries in a limited area and not all infringe the Minister’s monopoly. Because these firms are able to offer lower rates than those charged by the Department (benefiting as they do from delivering mail in areas of high population density) they have taken business from the Department’s postal service. If the activities of these firms are not curtailed the Department would be forced to take steps to cut expenditure by, for example, reducing the number of their staff and/or to increase their charges. In relation to the services provided by Paperlink in the city of Dublin the Department did not provide a ‘fast pick-up and delivery service’ as Paperlink does, nor does the Department provide a delivery service on Saturday which Paperlink provides. The activities of the defendants first came to the notice of the Department in January 1982 as a result of the delivery to the Department of envelopes which bore the ‘Paperlink’ sticker. The first of these envelopes was marked ‘private and confidential’ and was addressed to Mr. O.J. Fehily an assistant secretary in the Department. It was from a newly formed institute of accounting technicians. The communication was on headed notepaper and began ‘Dear Sir’. It then referred to an information brochure relating to the new institute and went on:-

any of your staff who fit into one or other of these categories would find it greatly to their benefit to find out more about the new body.

The last paragraph went on: ‘A poster is enclosed which I would ask you to display’ and the communication ended with the customary salutation ‘Yours Sincerely’ which in turn was followed by a signature which had obviously been reproduced by some mechanical means and the printed name of the secretary of the institute.
There can be no doubt but that this communication was a ‘letter’ within the meaning of the Act.
In March 1982 an envelope was received by Mr. Daniel J. McCarthy, inspector of service of the postal branch, General Post Office. The envelope had the same ‘Paperlink’ sticker affixed to it. Its contents were clearly an advertisement sheet and could not be regarded as a ‘letter’. A further envelope was obtained about this time addressed to the Bank of Ireland Finance Company. It was marked ‘Private and Confidential’. I am unaware of its contents but the envelope bore the Paperlink sticker.
As a result of the receipt of these documents enquiries were made about the Paperlink firm and it was ascertained that Paperlink Ltd had been registered as a company on 16 December 1981. Investigations into the activities of the company were then carried out and following these the Minister’s solicitor wrote on 12 July 1982 stating that the defendants were acting in contravention of s. 34 of the 1908 Act and requesting an assurance that the company would desist from offering the services it was then providing and threatening legal proceedings if the requested assurance was not forthcoming. Paperlink replied on 13 July 1982. The letter arrived in the plaintiffs’ solicitors office in an envelope with the Paperlink sticker and the enclosed letters stated:-

It is impossible for my company to consider complying with the request in the second paragraph of your letter since we do not know what you are alluding to in the first paragraph of your letter. When you are more specific we can consider the matter further.

On 14 July the plaintiffs’ solicitor wrote enclosing a copy of s. 34 of the 1908 Act and stating:-

You will note from the provisions of this section the exclusive privileges of the Postmaster General (now the Minister for Posts and Telegraphs) in relation to letters and packets.
I await the assurance sought by me in the second paragraph of my letter of the 12th inst. which should reach me by the 22nd inst.

As there was no reply to this letter and no assurance was given by the defendants, their activities were again subject to investigation on 1 December 1982 and thereafter, on 13 December, these proceedings were instituted.
In addition to the three communications to which I have referred Mr. Warren produced a large bundle of envelopes which had come into the possession of the Department since the beginning of 1982 and all of which bore the Paperlink sticker. The contents of some of these envelopes were available. The envelopes had either been delivered directly to the Department or had come into the postal system by one means or another, for example by being put into a post box when the addressee had left the address to which the envelope had originally been delivered.
An examination of these communications shows that a number of the contents of these envelopes can properly be regarded as ‘letters’ within the meaning of the section. Whilst I have not been through them all in detail a random sample discloses a letter of 28 February 1983 from a Mr. Kelly to the Department, a letter of 15 February from a firm called Foley Duffy and Co Ltd to the Minister, and two more letters of 16 February 1983 to the Department.
In addition the testimony of another officer of the Department established the delivery by Paperlink of a communication which can properly be regarded as a ‘letter’. This officer received an envelope bearing the Paperlink sticker addressed to him in his capacity as secretary of his local residents association. Its contents comprised a communication from a local radio station and was, in my opinion, a ‘letter’ addressed to him from the sender of the communication.
I come now to the plaintiffs’ evidence relating to the defendants trading activities. The Department’s first investigation took place on 22 April 1982. Mr. Cullen, a member of the Department’s investigation branch and Detective Sergeant Maguire went to 79 Lower Gardiner Street where by then Paperlink was carrying on business. There they met two of the directors of the company. After a proper caution had been administered one director, Mr. Conliffe, made a written statement in which he stated ‘Paperlink Ltd operates a courier service in Dublin and the greater Dublin area’ and added ‘this is a full and accurate description of the business and there is nothing further I can add’. Before this statement had been written Mr. Conliffe had been shown a copy of the Department’s post office guide which clearly set out that the Minister’s monopoly relates to the conveyance of ‘letters’ and ‘packets’ but neither Mr. Conliffe nor his co-director suggested that Paperlink was not involved in the conveyance of ‘letters’. In the room in which the defendants’ business was carried on Mr. Cullen and Sergeant Maguire noticed about six employees at work and a number of wooden frames containing pigeon holes with envelopes in them. Mr. Cullen also produced an advertising circular bearing the Paperlink name which gave the rates for its courier service in the Dublin area, rates considerably below those charged by the Department.
The second investigation which took place on 1 December 1982 yielded further information. It is clear that by then the defendants’ business had considerably expanded. Sergeant Maguire and Mr. Graham (another official from the Department’s investigation branch) stood outside the Lower Gardiner Street premises for some hours during the morning. They observed a number of youths going into the premises carrying satchels which contained envelopes, some arriving on foot and some on motor cycles. A large lorry drew up and a man alighted carrying a bundle of envelopes in his hand. A van also arrived containing six large tin boxes. Sergeant Maguire observed the contents of these boxes and saw that they contained a large number of brown envelopes addressed to addressees in the Dublin area. The boxes were subsequently carried into the premises with the help of two men. In the afternoon of the same day between 2 and 3.45 Mr. McNally (another Departmental official) saw twenty different youths enter the premises carrying satchels which contained a considerable number of envelopes.
At the close of the plaintiffs’ case I was satisfied that the evidence established that Paperlink was operating a courier service on a substantial scale, that this service involved the collection of envelopes from different parts of Dublin, their sorting in the company’s Gardiner Street premises, and their subsequent delivery to addressees in Dublin and in the greater Dublin area. It was also established to my satisfaction that the courier service involved the delivery of envelopes which contained 'letters’ within the meaning of the 1908 Act. A prima facie breach of the 1908 Act had therefore in my opinion been established, and I refused the application for a non-suit.
After legal submissions the defendants then went into evidence. Mr. Anthony O’Connell, one of the founders and directors of Paperlink, gave evidence which in my opinion confirmed that a breach of the Minister’s monopoly had taken place and was continuing. The firm’s business began in Mr. O’Connell’s home in Clontarf but after a couple of months it moved to rented accommodation in Gardiner Street. The business expanded considerably so that by October 1982 it employed approximately forty persons. Paperlink’s service has been confined to the greater Dublin area but it delivered envelopes as far north as Baldoyle and as far south as Killiney. The firm has now approximately five hundred clients over ninety per cent of which are business firms, the balance being private persons. Clients may telephone and ask for a messenger to call to make a delivery but the more normal procedure is that a messenger from Paperlink calls on a regular daily basis to collect the clients documents and parcels. Envelopes are brought by messenger to the Gardiner Street premises where they are sorted and other messengers deliver the envelopes to the addressees. Labels are sold to customers who afix them to their envelopes.
Under cross-examination Mr. O’Connell identified a number of letters received from clients who were making complaints about the non-delivery of what these clients termed were ‘letters’. A letter of 2 July 1982 stated ‘we are anxious to trace two non-delivered letters’, and one of 9 July referred to the non-delivery of a specific letter, as did another communication of 19 August. Letters from clients to Paperlink dated 21 September and 26 November each complained about non-delivery of ‘letters’. The evidence, therefore, established quite clearly that the courier service operated by Paperlink involved the delivery of ‘letters’ and that the company made a collection of letters within the meaning of the Act and so breached the Minister’s monopoly. It would follow, therefore, that the plaintiffs would be entitled to the relief claimed unless the defendants plea that the statute was unconstitutional was to succeed. To their arguments in support of this pleas and the course of the trial in relation to it I will now turn.

The Defendants’ Counterclaim
(a)	The right to communicate
The constitutional attack on the 1908 Act is based on two distinct sets of rights which it is claimed the second, third and fourth named defendants enjoy by virtue of the Constitution. The claim, it is to be noted, is maintained by these defendants and not by Paperlink, it being accepted that the company has no constitutionally guaranteed personal rights on which to found a cause of action. The individual defendants, however, claim that they enjoy (a) rights to communicate and (b) to carry on a business which the 1908 Act infringes. I will deal with the claim to the (a) rights first.
It is pleaded in paragraph 2 of the counterclaim that the rights of citizens guaranteed by the Constitution include:-

(a)  the right of citizens to communicate freely with one another, and
(b)  the right of citizens to communicate freely with one another without being obliged to have recourse to    the State as the vehicle of such communication.

These rights, it is said, are derived from Article 40.3.1° which provides that:-

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.

and it is claimed that these two rights, though unspecified in this Article, are personal rights of the citizen guaranteed by its provisions.
As to the assertion that there exists in the Constitution a right to communicate freely it seems to me that this submission fails to take into account the distinction between a personal right guaranteed by the Constitution and the freedom to exercise a constitutionally guaranteed personal right, a distinction which is to be found throughout the entire Constitution and which is made explicit for example, in Article 40.6.1°. I will, therefore, consider whether ‘a right to communicate’ without the qualifying adverb ‘freely’ is embraced by Article 40.3.1. It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1° (i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°.
But the right to communicate is obviously not an absolute one. Laws may restrict the nature of the matter communicated (for example, by prohibiting the communication of confidential information or treasonable, blasphemous, obscene or defamatory matter) and laws may also restrict the mode of communication (for example by prohibiting communication by advertisement contrary to the planning code or by radio contrary to wireless telegraphy regulations). It follows, therefore, that it is not correct, and indeed, can be seriously misleading, to suggest that the defendants enjoy a right to communicate ‘freely’. Along with other citizens they enjoy a right to communicate.
A constitution which guarantees personal rights imposes co-relative constitutional duties on the State. In the case of those protected by Article 40.3.1° the duty imposed on the State is to guarantee in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the right to communicate. Considering the 1908 Act from the point of view of the defendants as citizens wishing to communicate by letter I fail to see how the Act infringes their constitutional rights. The 1908 Act does not prohibit them from delivering a letter themselves nor from employing someone else to deliver it for them and in fact by making provision for a nation-wide service for the delivery of letters facilitates the exercise of their rights. The Act, as has been pointed out, prohibits the activity of making a collection of letters for delivery to others but that prohibition does not in itself involve an interference with the citizen’s right to communicate (whether it interferes with a right to do business is a question for separate consideration). Neither the enactment itself nor its mode of operation infringes in any way the basic right to communicate which the defendants enjoy.
But the defendants plead that along with other citizens they have another right, viz., a right ‘to communicate freely with one another without being obliged to have recourse to the State as the vehicle of such communication’. This right, it is said, is one of the unspecified rights accorded to them by Article 40.3.1. I am unable to agree. I cannot see that such a right inheres in the human personality. Nor is it a right which can be derived from any of the other provisions of the Constitution. It was argued that citizens may want to communicate by letter to other citizens on political matters and that they should not be beholden to the State for the provision of a postal service, but I fail to see how the political rights which citizens enjoy under the Constitution require to be protected by the right now being asserted. It was also argued that constitutionally guaranteed family rights could be interfered with unless the right now being considered existed. But here again I can find nothing in the constitutional provisions to which I was referred which would justify me in holding that there existed in Article 40.3.1° the personal right now being considered. It does not, in my opinion, exist and so no question of its infringement by the 1908 Act can arise. So this part of the attack on the Act fails.

(b)	The right to earn a livelihood
I now must consider the defendants as citizens wishing to carry on business as couriers and unable to do so because of the 1908 Act.
The plaintiffs have raised a preliminary objection to this part of the defendants’ counterclaim. They point to the elementary principle of company law that a company is a legal entity distinct from its shareholders and that the relationship of principal and agent does not exist between the company and its shareholders so that it cannot be said that a company is carrying on business on behalf of its shareholders (see Salomon v Salomon & Co [1897] AC p. 20). They argue that the defendants’ case is based on the alleged interference in the business of Paperlink affected by the 1908 Act and submit that as Paperlink is a distinct legal entity and as the defendants as shareholders are not themselves carrying on any business so no interference with constitutional rights resulting from the 1908 Act is established.
Counsel for the plaintiffs drew my attention to (and then sought to distinguish) a recent decision of the Supreme Court (The Private Motorist Provident Society & Moore v Attorney General)  [1984] ILRM 88. The first-named plaintiff in that case was a society registered under the Industrial and Provident Societies Acts and the second-named plaintiff was a shareholder in and a member of the society. The proceedings concerned the constitutional validity of the Industrial and Provident Societies (Amendment) Act, 1978 which prohibited societies like the plaintiffs from accepting or holding deposits after the expiration of five years from a specified date. It was alleged that the Act constituted:-
(a) an unjust attack on the second-named plaintiff’s constitutionally guaranteed property rights and
(b) his constitutionally guaranteed freedom of association.
The Supreme Court held that as a shareholder the second-named plaintiff to the extent of his investment in the society and contractual rights therefrom had property rights which were capable of being harmed by injury to the society and it rejected a preliminary submission that the second-named plaintiff had no property rights capable of being invoked for the purposes of Article 40.3 of the Constitution.
But the point in issue in the PMPA case is not the same as that in the instant case. In the PMPA case the plaintiff asserted that his constitutionally guaranteed property rights were being infringed - here the infringement alleged is that of a constitutionally guaranteed right to earn a livelihood. It would, no doubt, have been open to the defendants to have pleaded, as did the second-named plaintiff in the PMPA case, that their property rights as shareholders in Paperlink have been invalidly infringed by the unconstitutional interference with the business of Paperlink. But I do not think that their failure to rely on this argument means that their claim must fail. If the defendants have a constitutional right to earn a livelihood (as I believe they have) they can property claim that they are exercising this right by becoming shareholders and directors in a private company. If the defendants bought shares in Messrs Guinness A. Son & Co Ltd it could not be said that they were carrying on business as brewers. But if they are actively engaged in a business carried on by a private company of which they are shareholders and directors then they are not merely investors in a company but are exercising a constutitional right to earn a livelihood by means of the company.
The defendants have maintained that they have a constitutionally guaranteed right to carry on a business derived from the private property provisions of the Constitution and Article 40.3.1°. There is no doubt that the defendants have a constitutional right to earn a livelihood. It was at one time considered that the right to work could be regarded as a property right (Brendan Dunne Ltd v Fitzpatrick  [1958] IR 29) but in the light of more recent constitutional development it seems to me to be more proper to regard the right to earn a livelihood (which can be regarded as synonymous with the right to work) as one derived from Article 40.3.1°, rather than from the property rights guaranteed in the Constitution (see Murphy v Stewart  [1973] IR 92). As the Supreme Court has shown, the exercise by the citizen of his right to private property is regulated by Article 40.3.2° and not by Article 43 (see Blake & Ors. v AG  [1981] ILRM 34). And so if the right to earn a livelihood is derived from property rights it would have been to this Article that attention should be drawn. But, for reasons I will give in a moment there is, it seems to me, no difference in the protection afforded to the unspecified rights referred to in Article 40.3.1° to the protection granted to the specified personal rights referred to in Article 40.3.2°.
The right to earn a livelihood which all citizens enjoy by virtue of the Constitution is a right which in practice in modern industrial societies can be exercised in one of a myriad of different ways. It seems to me to be inaccurate and potentially confusing to state without qualification that each citizen has the constitutional right to carry on the occupation in which he is actually earning his living. The defendants like all citizens have a constitutional right to earn a living; they may choose to exercise that right by doing manual work or non-manual work, by entering a profession or by entering employment, by engaging in commerce (either alone or with others), by manufacturing goods, providing a service, or engaging in agriculture. Their freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal restrains. The nub of the issue, therefore, is whether the 1908 Act invalidly restricts the defendants freedom to exercise their constitutional right to earn a livelihood.
The defendants’ challenge to the Act depended partly on a construction of the Constitution and partly on certain facts which they sought to establish by means of expert evidence. Before examining their submissions in detail I should briefly refer to the course of events at the trial. I ruled at the outset of this case that the plaintiffs should present such evidence as they thought fit in support of the relief claimed in their statement of claim but that it was not necessary for them to call evidence at that stage in rebuttal of the defendants counterclaim; that at the conclusion of the plaintiffs’ case the defendants would be at liberty to adduce evidence both in answer to the plaintiffs’ claim and in support of their counterclaim; and that the plaintiffs, if they so wished, could then call evidence in rebuttal of the counterclaim. In the course of the cross-examination of the plaintiffs’ principal witness, Mr. Warren, questions were put to him designed to establish that the postal service operated by the department was inefficient and that its administration was defective. I decided to allow these questions on a de bene esse basis as I did not then know the basis on which it was claimed such questions were relevant and I did not wish to interrupt the cross-examination to hear what obviously would be lengthy legal argument. It was made clear, however, at the close of the plaintiffs’ case that the efficiency of the departments postal service was not an issue in defence of the plaintiffs’ claim but was, it was said, a matter relevant to the defendants’ counterclaim. Having made submissions at some length in support of the defendants’ counterclaim counsel then called Mr. O’Connell one of the founders and current directors of Paperlink to whose evidence I have already referred. At the conclusion of his evidence I was then informed that the defendants wished to call as witnesses two economists and two accountants. I was told the nature of the evidence it was proposed they would give. I ruled that their evidence was inadmissible. When expressing my conclusions on the legal arguments to which I will now refer I will explain the basis for this ruling.
As I have said, the defendants suggested that the right to carry on a business was derived partly from the property rights referred to in Article 40.3.2° and partly from the personal rights referred to in Article 40.3.1°. I have already pointed out that in my view the correct approach is to start from the proposition that the defendants have a right to earn a livelihood derived from Article 40.3.1°. Referring to the particular phraseology of Article 40.3.2° it was urged on the defendants’ behalf that the State is required by its laws to protect as best it may from ‘unjust attack’ the property rights of any citizen and that for the purpose of considering whether or not there has been an ‘unjust’ attack the notice of justice in the Article should be informed and guided by the provisions of Article 45 which sets out the directive principles of social policy.
I should explain at once that I do not think these submissions necessarily fail because the defendants’ rights to earn a livelihood are derived from Article 40.3.1° rather than Article 40.3.2°.
The Constitution is a political instrument as well as a legal document and in its interpretation the courts should not place the same significance on differences of language used in two succeeding sub-paragraphs as would, for example be placed on differently drafted sub-sections of a Finance Act. A purposive, rather than a strictly literal, approach to the interpretation of the sub-paragraphs is appropriate. I do not, therefore, think that any significance should be attached to the fact that the State’s duty towards the citizens’ unspecified personal rights in Article 40.3.1° is phrased in somewhat different language to its duty towards the citizens’ specific personal rights set out in Article 40.3.2°. Accordingly, I am prepared to hold that the State has a duty by its laws to protect as best it may from unjust attack the personal right of each of the defendants to earn a livelihood.
What then falls for consideration is whether the State monopoly established by the 1908 Act is (a) an ‘attack’ on the defendants’ right to earn a livelihood and (b) whether it is an ‘unjust’ attack on that right. As the defendants’ submissions are largely based on conclusions which they say can be drawn from Article 45 the first matter which I must consider is whether I am permitted to have regard to this Article for the purposes of this case. Article 45 has an introductory paragraph which states that the principles of social policy set forth in it are intended for the general guidance of the Oireachtas and that the application of those principles in the making of laws shall be the care of the Oireachtas exclusively ‘and shall not be cognisable by any court under any of the provisions of this Constitution’. Notwithstanding the apparently all embracing exclusion of Article 45 from the purview of the courts Kenny J considered that he could have regard to it for the purpose of ascertaining what unspecified personal rights were included in the guarantees contained in Article 40.3.1 (see Murtagh Properties v AG  [1972] IR 335) and Finlay J held that he could look at Article 45.4.2° for the purpose of ‘reaching a general conclusion as to what may fairly be embraced by the expression “the exigencies of the common good” – a phrase used in Article 43 in connection with the State’s power to delimit the exercise of private property rights (see Landers v AG 109 ILTR 16). I respectfully agree. I consider therefore, that I am not precluded by the introductory words of the Article from considering the principles of social policy set out in it for a limited purpose, namely, for assisting the court in ascertaining what personal rights are included in the guarantees contained in Article 40.3.1° and what legitimate limitations in the interests of the common good the State may impose on such rights.
The defendants’ arguments are based on Article 45.3.1° which provides that:-

The State shall favour and, where necessary, supplement private initiative in industry and commerce.

It is urged that this principle of social policy means that the Constitution contains an ideological preference in favour of private enterprise and private initiative in commerce. The first conclusion they say to be drawn from this interpretation is that the onus is on the State to justify any interference with private initiative in matters of commerce. Having made this submission in opening the defendants’ case the defendants’ counsel at the close of the case submitted that as the plaintiffs had failed to discharge the onus on them of justifying the State monopoly contained in the 1908 Act the court should declare the Act inconsistent with the Constitution.
There are, it seems to me, two main objections to this first submission. Firstly, the defendants are, in my view, reading a great deal more into the Article than its provisions justify. Article 45 contains provisions to guide the legislature in its law-making activity and by Article 45.3.1° the Oireachtas is told that the State is required to favour and where necessary supplement private initiative in industry and commerce. This guideline is couched in most general language. Undoubtedly it demonstrates a view, found in other Articles of the Constitution, that the social order should not be based on a system in which all the means of production are owned by the State and a preference for one in which, in the main, industry and commerce are carried on by private citizens rather than by State agencies. But it does not follow from this very general guideline that the Oireachtas could not pass laws establishing State trading corporations or public utilities and I do not consider that it is proper to infer from its provision that the State is called upon in legal proceedings to justify the existence of a State monopoly either in the form of a public utility or a trading corporation.
Secondly, the submission that the onus of proof rests on the plaintiffs ignores the views of the Supreme Court as explained by the Chief Justice in Norris v AG Supreme Court 1980 No. 278. In that case the court was considering a pre1937 statute of the United Kingdom parliament. In his judgment the Chief justice, having quoted Article 50 of the Constitution, pointed out that the purpose of the Article was to continue in force the laws which had previously operated in Saorstát Éireann with as few exceptions as possible and he pointed out:-
According to the actual words used in the Article, the law or laws in question operate unless inconsistency is established and the onus of establishing such is placed on the person who challenges their continued validity. This is not to say that such pre-Constitution laws enjoy any presumption of consistency or constitutionality. They do not. Each such law must be examined to see what it purports to authorise or permit. If on such examination it emerges that the law permits what the Constitution prohibits or forbids what the Constitution sanctions, then inconsistency is established, and to the extent thereof the law would be declared to have ceased to have effect on the coming into operation of the Constitution. (See pages 9-10).

Inconsistency with the constitution of a pre-1937 statute can be shown to arise from either:-
(a) the provisions of the impugned statute or 
(b) its mode of application.

The onus is on a counterclaiming defendant to establish either (a) or (b) and there is no onus placed on the Attorney General to adduce evidence to show that the impugned statute is being administered in a constitutional way.
I come then to the substantive part of the defendants’ argument. The defendants it is said wish to exercise their rights to earn a livelihood by carrying on a courier service. They cannot do so because of the State’s monopoly. This monopoly restricts their constitutional rights and it must be shown that this restriction exists for some constitutionally justifiable purpose. The monopoly cannot be justified for reasons of State security. That leaves the economic arguments for its justification. The defendants, it was said, would show by expert evidence how in practice the monopoly was being operated and how a postal service could be operated differently. It was firstly said that the evidence would establish that it was being administered in an inefficient manner and secondly that the advantages which were claimed for the present monopoly could be achieved by a different method of organising the postal service and one which would be ‘less offensive’ to the defendants’ rights; in effect, one which would allow a courier service to be conducted by them. Because the monopoly was administered inefficiently and because it was possible to organise one less restrictive of the defendants rights the ‘attack’ on these rights was ‘unjust’. To establish this case it was proposed to call two economists and two accountants to show:-
(a)	that the level of wages paid by the department to its employees had increased at a rate higher than the rate of the cost of living,
(b) that ‘overnight’ money had not properly been invested so as to establish a maximum return,
(c) that the accounting system was a bad one,
(d) that no accounts had been published since the year 1979,
(e) that no provision was made in the accounts for the department’s 2,000 vehicles,
(f) that the Auditor and Comptroller General had criticised the department’s accounts for several years past,
(g) that the receipts from the postal services of other countries (paid to the department for handling mail from foreign countries) were less than the sums the department paid to foreign postal services, an inbalance not justified by the inward and outward movement of mail and
(h) that to achieve a national post system and a proper service in rural areas, a state monopoly in the terms of the 1908 Act was unnecessary.

I ruled that the evidence which the defendants proposed to adduce was inadmissible for the following reasons. As to the evidence relating to the alleged inefficiency in the administration of the postal service, it seemed to me that the legal submissions based on the proposed evidence were unsound. Obviously, it is not in the public interest that a service supplied by a department of State is administered inefficiently. But this does not mean that the Act under which it is supplied is unconstitutional. The inefficiency of a public service may be an argument for amending or repealing the Act under which it is provided, but it cannot mean that the provisions of a statute are thereby rendered unconstitutional. If a defendant wishes to establish constitutional invalidity from the manner in which a statute is operated, then it must be shown that in some way it conflicts with the Constitution, for example by an invalid interference with guaranteed personal rights. But even if it was shown that the post office was not being administered in an efficient manner it would not follow from this that any of the defendants’ rights were being infringed. The proposed evidence, therefore, was irrelevant to any issue which I had to determine.
As to the submission that there were ways by which a national postal service could be organised which could achieve the objects of the present service without interfering with the defendants’ courier service in Dublin and that I should hear evidence by expert economists on this point it seemed to me that it would be wholly improper for me to do so as it would involve the court in an unconstitutional departure from its role as laid down in the Constitution. This court is required to administer justice. In doing so it may, of course, hear evidence which would tend to establish that the operation of a statute unconstitutionally infringed a citizen’s right to earn a livelihood. But that is not what the defendants are asking the court to do. They seek to adduce expert evidence for the purpose of establishing (presumably contrary to the views of any expert evidence which the plaintiffs might call in rebuttal) that the national postal service could be so organised as to provide the benefits of the present national system whilst at the same time permitting the defendants to operate in Dublin their courier service. They then submit that in the light of that evidence I should hold that the 1908 Act is unconstitutional because by changing the law or amending the statute in the way suggested the restriction on the defendants’ right to earn a livelihood could be raised. But this court is not the forum in which to decide whether a postal service organised on lines advocated by the defendants’ experts is one which meets the requirements of the common good. These are matters for the Oireachtas to determine. I must, of course, defend the citizens rights against any unjust attack, and hold, if necessary, that an existing law has placed an excessive limit on the citizens right to earn a livelihood. But to carry out the inquiry which the defendants ask me to perform and, thereafter, make a determination on an alternative to the existing postal service, would amount to an unwarranted and unconstitutional interference with the powers of government exclusively conferred on the executive and the Oireachtas, a point strikingly illustrated by the fact that as this case was at hearing the Dáil was itself considering a Bill to establish a different method of organising the postal system to that contained in the 1908 Act. Just as the courts must not permit the legislature to interfere with the judicial function, so too they must be astute to see that they do not themselves depart from their constitutionally defined role.
So, I disallowed the evidence. And as the defendants have been unable to establish that the 1908 Act is inconsistent wit the Constitution I must dismiss their counterclaim.

The Right of the Plaintiffs to Relief
I come now, in conclusion, to explain why the Attorney General is entitled to the relief he claims.
It was made clear when counsel opened the plaintiffs’ case that this was not a relator action in which the Attorney General was suing on the relation of the Minister as the person entitled to the exclusive privilege conferred by the 1908 Act. This, it was said, is an action which the Attorney General has brought ex officio as guardian of public rights. I heard arguments on the defendants’ behalf at the close of the plaintiffs’ case to the effect that these proceedings were misconceived. Having considered them I indicated that I could not accede to them and I will give my reasons for this conclusion now. Before doing so, however, I should record that at the end of the case during counsel’s closing submissions it was submitted on the plaintiffs’ behalf that apart from an independent right of the Attorney General to maintain these proceedings in the public interest the facts had established that a civil wrong had been committed and that the Minister in his own right had a right to protect the exclusive privilege given to him by the Act. I made no ruling on this point, save to indicate that I did not consider that the plaintiffs were estopped from making it. I should make clear, however, that the issue which I had been asked to determine (and did so in the plaintiffs’ favour) was the Attorney General’s right to the relief claimed and that had I decided this point against the plaintiffs I would have dismissed the case as the alternative argument had not then been advanced.
In opening the plaintiffs’ case counsel referred to certain passages in Halsbury’s Laws of England (4th Ed., Vol. 24. paras. 1030 and 1031) in which it was stated that when an illegal act which affects the public is committed or threatened the court has jurisdiction to grant an injunction at the suit of the Attorney General; that the public is concerned to see that Acts of parliament are observed; and that the court has jurisdiction to grant an injunction even though the right was conferred by a statute which prescribed criminal sanctions for its enforcement.
Mr. Gleeson, on the defendants’ behalf, submitted at the close of the plaintiffs’ case that the remedy now being sought by the plaintiffs was unconstitutional and furthermore that the courts had no jurisdiction in equity to grant the relief claimed. The argument proceeded as follows. It was said that the proceedings amounted to an unprecedented attempt to make a finding of criminal guilt in civil proceedings and that such a course of action infringed Article 31.1 of the Constitution which provides that no person shall be tried on any criminal charges save in due course of law. The State, it was urged, had ignored the criminal remedies available to it and had opted instead for declaratory and injunctive relief. To obtain this relief the State was required to establish that criminal offences had taken place and the State thereby had deprived the defendants of a criminal trial. The State cannot abandon the criminal code and opt for a trial in a civil action in which the level of proof is different. Counsel referred to the three English cases relied on by the plaintiffs (AG v Sharp [1931] 1 Ch 121 and AG v Premier Line Ltd [1932] 1 Ch 303 and AG v Harris [1961] 1 QB 74), and pointed out that in each of these cases criminal prosecutions had been instituted before the Attorney General had applied to the High Court for relief by way of injunction. It was conceded that in certain circumstances the Attorney General can apply for an injunction to restrain a breach of statute but it was urged that when a criminal sanction is contained in the statute the application can only be brought after it has been shown that the criminal proceedings have been ineffective.
I was also referred to the recent decision in the High Court in Campus Oil Ltd v AG [1984] ILRM 45. This was a case in which the Attorney General applied for an interlocutory order to restrain the plaintiffs from failing to comply with the provisions of the Fuels (Petroleum Oils) Order 1983 which had been made under the provisions of s. 2 of the Fuels (Control of Supplies) Act, 1971. In that case an injunction was granted on the application of the Attorney General notwithstanding the fact that breaches of the statutory order involved criminal sanctions under the 1971 Act. Counsel, however, maintained that the plaintiffs in that case had not argued that the penalty provisions of the 1971 Act were a bar to the relief claimed by the Attorney General and so it is not authority to justify the court granting relief in the present case.
The role of the Attorney General as guardian of the public interest has, I think, been correctly stated by Professor Casey in ‘The Office of the Attorney General in Ireland’ at page 149 where he writes:-

It is possible (for the Attorney General) to obtain an injunction to restrain someone from acting in breach of a statutory provision even where his action constitutes an offence.

The authority quoted for this statement is the Attorney General (O’Duffy) v Mr. Appleton, Surgeon Dentist, Ltd [1907] 1 IR 252. This was a relator action in which the Irish branch of the British Dental Association alleged that a company had been formed for fraudulent purposes contrary to the Dentists Act, 1878 and it was held that the Attorney General suing in the public interest was entitled to an injunction. In the course of his judgment the Master of Rolls said:-

The only real difficulty that has occurred to me in this case was that of jurisdiction. This is a new offence. There is a remedy provided under the Dentists Act - that is, by prosecution of the offender in a court of summary jurisdiction. Generally speaking, where there is a new offence the remedy given by the statute creating the offence is exclusive. But the existence of a power to sue for penalties does not of itself prevent the interference of the Attorney General seeking an injunction in the interests of the public by way of information. The public interests are, committed to the care of the Attorney General, as representing the Crown, and in that way he represents the public (p. 257).

The more recent authorities in England do not, in my view, alter the legal situation I have just quoted. Whilst undoubtedly there are differences between the roles and functions of the Attorney General in this country and those of the Attorney General of England and Wales none the less assistance can be found in recent English authorities in determining (a) the jurisdiction of the courts to entertain an application for an injunction at the suit of the Attorney General when breaches of statute have been established and (b) the exercise of the court’s jurisdiction in such circumstances – decisions which do not conflict with the earlier Irish authority I have quoted. Firstly, I accept as correct the following general principle:-

Whenever parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless, the High Court always has a reserve power to enforce the law so enacted by way of an injunction or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.

Per Lord Denning MR AG v Chaudry  [1971] 1 WLR 1614, 1624.
Secondly, the Attorney General as part of his general power to enforce in the public interest public rights has the right ex officio to apply for an injunction to restrain breaches of statute, even when the statute prescribes other remedies, including criminal sanction.
Thirdly, whilst the High Court has jurisdiction to grant an injunction in the circumstances just out lined the jurisdiction should only be exercised in exceptional cases (see Gouriet v UPW [1978] AC 435).
Fourthly, in deciding whether to exercise its jurisdiction the court will consider the adequacy of the alternative statutory remedy. If satisfied that these alternative remedies are inadequate then the court can properly grant relief by way of injunction. In deciding on the adequacy of the alternative remedies, however, the court must look at all the circumstances of the case and the fact that a criminal prosecution has not been brought does not in itself preclude the court from granting an injunction.
I have come to the conclusion that this is a case in which the Attorney General has established that there are exceptional circumstances and that it is one in which it would be just and convenient to grant the remedies sought. Counsel has informed me that the reason why these proceedings were instituted was that it was considered that the penalties imposed by the Act were totally inadequate and that criminal sanctions would be wholly ineffective to remedy the situation. I have no reason to disagree with the conclusions which the Attorney General had reached. A criminal offence is created by s. 34(4) of the 1908 Act which provides that if a person conveys any letter or makes a collection of excepted letters for the purpose of conveying them by post of otherwise he is liable to be fined a sum not exceeding £5 for every letter. This fine was established three-quarters of century ago and it seems to me to be totally inadequate to meet the circumstances of the present case. It seems to me that it was unnecessary for the Attorney General to consider requesting the Director of Public Prosecutions to insitute criminal proceedings and then to await to see whether if successful the defendant company would pay the fine and desist trading. It was reasonable for him to assume that in this case the deterrent effect of the sub-section was in fact negligible and so it seems to me reasonable for the court to exercise its discretion in the plaintiffs’ favour.
There is, however, another reason peculiar to the particular provisions of the 1908 Act which clearly establishes the right of the Attorney General to apply for equitable relief and justifies the court in granting it. The 1908 Act contains two different sanctions, a criminal one and also a civil remedy. S. 34(5) provides that if any person is in the practice of doing any of the acts prohibited by sub-section (4) then he shall forfeit for every week during which the practice continues £100. S. 70 provides that the fine or forfeiture imposed by the Act may be recovered by an action in the High Court. Thus the statutory remedy for breach of the Minister’s exclusive privilege is not one confined to the criminal courts and the defendants cannot complain that it is unjust that the issues in dispute between them and the Minister should be tried in a Civil Court where the onus of proof is different to that in a criminal court. Here the dispute could have been determined in a civil court if the Minister had chosen to institute proceedings in the High Court to recover the fine and/or the forfeiture to which I have referred. If the civil remedy is ineffective then there can be no objection to the Attorney General exercising in the public interest his right to apply to stop the statutory breaches by means of a High Court injunction and there is no reason why the court should not exercise its discretion and prohibit the continued breaches of the law which the evidence shows is taking place.
Once it is clear that the courts have jurisdiction to grant an injunction even in cases where criminal sanctions exist in respect of the acts complained of then no constitutional impropriety is involved if it exercises that jurisdiction as requested. The courts are not then trying a criminal charge within the meaning of Article 38 of the Constitution but are merely exercising a distinct and different jurisdiction in civil proceedings.
There will be a declaration and an injunction in the forms set out in paragraphs 12 (a) and (b) of the statement of claim except that the word ‘packet’ will not form part of the declaration or the injunction as the delivery of ‘packets’ has not been established.