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1. This matter comes before the Court pursuant to an Order made on the 25 May 1998 whereby the Applicant was given leave to apply by way of an application for Judicial Review for:

(I) An Order of Certiorari quashing the Order of dismissal of the Respondent made on the 3 April 1998 in the matter of Eastern Health Board v O'Kane Foods (Ireland) and remitting the action to the Learned Judge for the purpose of stating a case for the opinion of the High Court.

(II) An Order pursuant to Section 5 of the Summary Jurisdiction Act 1857 that the Respondent do show cause why a case should not be stated for the opinion of the Court.

(III) An Order of Mandamus directed to the Respondent commanding him to state a case for the opinion of the High Court in accordance with the application of Counsel and Solicitor for the Applicant. The particulars of the case to be stated are set out in full in the Order.

There is no contest on the facts in this case. The matter was heard before the District Court on agreed facts.

The Applicant is a statutory body responsible for the maintenance of food hygiene at various retail and other outlets within the Eastern Health Board area. On the 10 July 1997 one Aileen Flynn purchased a carton of yoghurt at Crazy Prices in Bray. This was found to be contaminated with a Wood-louse and a complaint was made to a Health Officer. Proceedings were contemplated against the owners of Crazy Prices. However as they were in possession of a "warranty" within the meaning of Section 63(1)(d) of the Health Act 1947 issued to them by the second named Respondent this prosecution did not proceed as the warranty constituted a defence to the complaint by virtue of Section 63 of the said Act.

A summons was then issued against the Notice Party and came on for hearing before the Respondent on the 3 April 1998. The facts as set out in paragraph 9 of the Grounding Affidavit were agreed between the Parties and the Court was requested to determine a preliminary issue regarding the construction of Section 63(1)(d) and Section 63(2) of the Health Act 1947. The District Judge acceded to this application and having determined the preliminary issue dismissed the prosecution. Counsel for the applicant made application prior to the determination of the issue by the District Judge to state a case for the opinion of the High Court which application, for a consultative case stated, was refused.

A further application was lodged with the District Judge on the 8 April 1998 to state a case by way of appeal pursuant to Section 2 of the Summary Jurisdiction Act 1857 as amended by the Courts Supplementary Provisions Act 1961. This application was again refused on the grounds that the application was frivolous and the District Judge signed a notice of refusal.

THE ISSUE

Section 54 of the Health Act 1947 provides that the Minister may make regulations inter alia prohibiting and preventing the sale of food intended for human consumption which is contaminated or otherwise unfit for human consumption. The Act goes on to provide for penalties for breach of this provision. Article 9 of the Food Hygiene Regulations 1950 provides that:

"(9)1 No person shall sell or offer or keep for sale

(a) any article of food intended for human consumption which is diseased contaminated or otherwise unfit for human consumption

Section 63(1)(d) and Section 63(2) of the Health Act 1947 provide a potential defence to a shopkeeper facing a prosecution for breach of the regulations. It provides that:

"63(1) The following provisions shall have effect in relation to a prosecution for an offence under this part of this Act:

(d) If the Defendant in any prosecution for an offence relating to the nature, substance, quality or condition of any food proves

(i) that he purchased such food as of a nature substance or quality or in a condition which would not have contravened such regulations and with a written warranty to that effect

(II) that he had no reason to believe at the time when he sold such food that it was of a different nature or quality or in a different condition and

(III) that he sold such food in the same state as when he purchased it.

Such Defendant shall be discharged from the prosecution, but shall be liable to pay the costs incurred by the Prosecutor unless he gives due notice to the Prosecutor that he propose to rely on the said defence."

At the hearing in the District Court the Notice Party sought to rely upon, what he submitted, was a warranty for the purposes of that Sub-Section. This warranty, he submitted, was to be found in the words written on the yoghurt carton.

A warranty is defined for the purposes of the Section in Section 63(2) of the Act as follows:

"A statement by the manufacturer, importer or seller of food as to its nature, substance, quality or condition in an invoice or on a label attached to the food or on the packet or container in which the food is sold shall be deemed for the purposes of Sub-paragraph (i) of paragraph (d) of Sub-Section (i) of this Section to be a warranty.

The District Judge had before him the carton which had contained the allegedly contaminated yoghurt and embarked upon a consideration of the writing on the carton in the context of deciding whether it constituted a warranty within the meaning of the Health Act 1947. Having done so he determined that it did and dismissed the case.

The District Judge refused the application of Counsel to state a case to the High Court. This application was subsequently renewed and by certificate dated the 8 April 1998 the District Judge issued a certificate of refusal to state a case in the following terms:

"This is to certify that an application was made to me by the Eastern Health Board, the above named applicant to state a case for the opinion of the High Court in this matter and I refuse the said application as I considered the application was frivolous".

The Summary Jurisdiction Act 1857 provides at Section (II) as follows:

"After the hearing and determination by a Justice or Justices of the Peace of any information or complaint which he or they have power to determine in a summary way by any law now in force or hereafter to be made, either Party to the proceedings before the said Justice or Justices if dissatisfied with the determination as being erroneous in point of law, apply in writing within three days after the same to the Justice or Justices to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of one of the Superior Courts of law to be named by the Party".

The rights of the Justice to refuse to state a case are contained in Section 4 of the Act. It provides if the Justice or Justices be of the opinion that the application is merely frivolous but not otherwise he or they may refuse to state a case.

Section 5 of the Act is the Section which empowers the making of an application to the High Court. It provides:

(v) Where the Justice or Justices shall refuse to state a case as aforesaid it shall be lawful for the Appellant to apply to the Court of Queens Bench upon the Affidavit of the facts for a rule calling upon such justice or justices and also upon the Respondent to show cause why such case should not be stated and the said court may make same absolute or discharge it with or without payment of costs as to the court shall seem meet and the Justice or Justices upon being served with such rule absolute shall state a case accordingly upon the applicant entering into such recognisance as herein before provided."

I am satisfied that the Respondent, the Learned District Judge, has been served with the proceedings herein. He has not appeared. The argument supporting his decision has been made by Counsel on behalf of the Third Party.

This argument may he summarised as follows:

Firstly it is submitted by Counsel for the Third Party that the determination by the District Judge in this case was one of fact. He did not decide any issue of law and accordingly there is no basis upon which an application for a case stated can be made under Section 2 of the Act.

Secondly it is submitted that the District Judge has rightly found that the application is "merely frivolous".

With regard to the first of these arguments. The same case was made by Counsel on behalf of the District Judge in the State (Turley) v O'Floinn [1968] IR 245 when the District Judge considered the status of a tennis club in determining its obligation to comply with the provision of Section 10 of the Public Dance Hall Act 1935 when holding dances in the Club.

He declined to state a case on the basis that his findings were all findings of fact.

In his Judgment O'Keeffe P found that his determination the District Judge had to determine "real questions of law" in the case. He proceeded to set out an exhaustive list of such questions.

With this view O'Dalaigh CJ giving the Judgment of the Supreme Court agreed.

In my view the same situation arises in the present case. While it is true that the District Judge was required to make certain specific findings of fact, for instance what were the actual words which were printed on the carton, it then fell to him to consider the definition of a warranty as set out in Section 63(2) of the Health Act 1947. This involved a determination of whether the words amounted to a warranty that the food in the container would not contravene the regulations made under the Health Act. This in turn involves a consideration of these regulations. It is after this exercise has been completed and only then is one in a position to say whether the words constitute a warranty. I am left in no doubt that the carrying out of this exercise constitutes a determination of a point of law.

With regard to the second submission. It is submitted by Counsel for the Third Party that the Court is being asked to make a ruling in relation to one carton of yoghurt and one carton alone. It is submitted that the High Court would be inundated with applications if every time a prosecution was taken under the Health Act it was to result in an application for a case stated. On that basis it is submitted that the application is frivolous. It is further submitted that the penalties attached do not warrant an application of this nature.

Counsel for the applicant has submitted to the Court that most of the writing on the carton with which this case is involved is there because there is a requirement under EU Regulation it is obligatory to make disclosure of these facts on the carton. For that reason the issues to be determined in this case will rule a large number of cases. Moreover and quite apart from this it is submitted that the applicants have an obligation under the Health Act to protect the health of the people within its area from contaminated food and that this obligation requires them to prosecute complaints to the full.

I am satisfied that while much of the information on the carton or the aluminium foil is merely advertising (such as "thick and creamy") the information disclosing the ingredients of the yoghurt, the nutrition information, the energy, protein and carbohydrate and fat count and similar information is information all required to be printed on the container by EU legislation.

I am satisfied that the eventual outcome of this case will be of importance in the consideration by the District Court of future prosecutions under the Health Act and I am satisfied that the application is not "merely frivolous".

Accordingly I propose to grant the Applicant certain of the reliefs sought. While I will hear Counsel further in this regard it appears to me that the relevant relief is (III) in paragraph D of the Statement of Grounds.