Supreme Court of Ireland Decisions

1. The applicant in these judicial review proceedings, at the date they were instituted in the High Court, had been trading in the City of Limerick in a market which was held every Saturday at the same location for more than 30 years where he had been selling costume jewellery. On the 13th July 1998, the respondents (hereafter “the Corporation” ) purported to make bye-laws under

2. The applicant made his concerns known to a body called the Irish Organisation of Market and Street Traders which was established for the purpose of protecting and representing the interests of street market traders throughout the State. They in turn took legal advice as to the power of the Corporation to make the bye-laws in question and this led to these proceedings.

3. On the 28th July 1999 the High Court (Kelly J.) gave the applicant leave to apply by way of an application for judicial review for inter alia an order of certiorari in respect of the Limerick Corporation Casual Trading Bye-laws 1998 (hereafter “the bye-laws” ) and a declaration that the making of the bye-laws, and in particular bye law 2 which provided for the designation of the area in question as a casual trading area, constituted the establishment of a market within the municipal boundaries of the County Borough of Limerick and accordingly contravened the provisions of the Limerick Markets Act 1852 (hereafter “the 1852 Act” ) as amended.

4. A statement of opposition was filed on behalf of the Corporation in which three matters were raised by way of opposition to the application, i.e.

5. The application came on for hearing in the High Court before Finnegan J. In a reserved judgment, he said that he was satisfied that the applicant had l ocus standi and that the fact that he had not pursued the appeal available to him under the 1995 Act was not a ground of itself for refusing him relief. He was also satisfied, however, that the bye-laws did not contravene the 1852 Act and accordingly refused the application. From that judgment and order, the applicant has now appealed to this court. While no notice to vary the judgment was served on behalf of the Corporation, it was argued in the written and oral submissions on their behalf that the applicant did not have locus standi and that, if he had, the High Court should have exercised its discretion to refuse the application on the ground that he had not exhausted the remedy open to him by way of appeal under the 1995 Act.

6. The relevant provisions of the 1852 Act should be referred to first. The preamble begins with the following recital:

7. The preamble goes on to recite that the Corporation were the owners of several of the markets held within the Borough and that it would be a material “accommodation and advantage” to the inhabitants of the Borough and persons resorting thereto and all persons interested in buying and selling therein, if the markets were rendered more “sufficient, fit, and convenient” and placed under proper control. It also recited that the management of the markets should be placed in the hands of trustees representing equally the interest of the Corporation, the merchants trading in the Borough and the “Agriculturists and Land Holders” of the County of Limerick.

8. The Act then goes on to appoint trustees for these purposes who are to be a body corporate known as “the Limerick Market Trustees” . Section 30 then provides inter alia that

9. As a result of an amendment effected by s. 3 of the Limerick Markets Act, 1992 the words “as are in Schedule (C) to this Act annexed respectively mentioned or referred to” are deleted and the words “as the trustees shall from time to time decide” substituted for them.

10. Four other sections of the 1852 Act should be mentioned. Section 40 preserved the rights of the owners of legal markets existing at the time of the passing of the Act. Section 41 provided that

11. Section 44 enables the trustees or the police to remove

12. Section 46 provides that

13. The relevant provisions of the 1995 Act must next be set out. Section 2(1) defines “casual trading” as

14. Unless a person comes within one of the exceptions specified in subsection (2), he is prohibited by s. 3(1) from so trading unless he holds a casual trading licence or is the servant or agent of the holder of such a licence. Such licences are to be granted under s. 4 by a local authority. Section 6 empowers the local authority to make bye-laws which may make provision inter alia for

15. In Article 2 of the bye-laws in this case, it is stated that

16. There follows a description of the area which is also delineated on a drawing attached to the bye-laws.

17. On behalf of the appellant, Mr. Alexander Owens, S.C. submitted that the wording of s. 32 of the 1852 Act was clear and unambiguous: it prohibited the establishment of any market “other than the markets to be provided and established under this Act” within the boundary of the Borough of Limerick. The 1995 Act had not, either expressly or by implication, repealed or amended that section and, accordingly, any bye-laws which had the effect of establishing a market within the boundaries of the Borough, constituting as it did an amendment by implication of the 1852 Act, was ultra vires .

18. Mr. Owens submitted that a concourse of buyers and sellers in a defined area at a time specified by law was clearly a “market” as that expression was generally understood. Hence, the provision by the Corporation of a designated area in which persons could sell goods at specific times was an attempt to provide a “market” within the Borough contrary to the terms of the 1852 Act.

19. Mr. Owens further submitted that the High Court judge had erred in law in placing emphasis on the preamble to the 1852 Act. The plain meaning of an Act could not be overridden by recitals to an apparently different effect and he relied in this context upon the decision of the House of Lords in A.G. .v. Prince Ernest Augustus of Hanover (1957) AC 436.

20. On behalf of the respondents, Mr. Daniel O’Keeffe S.C. submitted that the intention of the legislature in enacting the 1852 Act was clear: it was to put an end to the sale of what could broadly be described as agricultural produce in the streets of Limerick in an unregulated manner and to provide for the establishment of a single market in such products under the control of trustees. Read in the context of the Act as a whole, the prohibition in s. 32 on the establishment of other markets was clearly intended to ensure that the only market in agricultural produce in Limerick was to be the one established under the Act. He said that this was also made clear by s. 44, which empowered the police to remove booths, etc. for the sale of articles, but only where they were selling the goods (almost exclusively agricultural produce) specified in

21. Mr. O’Keeffe further submitted that it was also plainly the intention of the legislature in enacting the 1852 that licensed hawkers were not to be affected by its provision. They, accordingly, were still entitled to sell agricultural produce after the establishment of the market, as ss. 46 made clear. The scheme of casual trading licences established under the 1995 Act provided for the continuing regulation of persons who would previously have been categorised as hawkers. The establishment of a designated trading area for such persons was, accordingly, in no sense a breach of the provisions of the 1852 Act.

22. I am satisfied that the submissions advanced on behalf of the Corporation are correct. As the learned High Court judge pointed out, one is entitled to have regard to the preamble as being a guide to the legislative intention. No doubt, as was urged on behalf of the appellant, they cannot be called in aid to override the plain language of the enactment. If there was an express prohibition in the Act on the establishment of markets of any sort, it could be contended that such words would have to be given their literal effect. Here, however, the phrase “no market” alone is used and I think the statutory context makes it abundantly clear that it was a market in agricultural produce that was contemplated. The market established under the Act was to be one in specified agricultural commodities, followed by the words (as amended)

23. It is clear that the words “all such other marketable commodities” must be read ejusdem generis with the preceding words and that the intention was to establish a market in agricultural produce alone. That being so, there is no reason to suppose that the legislature intended to prohibit any other form of market in the Borough of Limerick. That is put beyond doubt by the provisions of s. 44, entitling the police to remove booths etc. for the sale or display of the goods mentioned in Schedule (C). Those goods, with the exception of coal and some other minerals were all, in broad terms, agricultural produce. If it was intended to prohibit the sale from stalls, etc., of other goods, that power would clearly have extended to the removal of such structures.

24. Apart from those considerations, I am satisfied that the legislature, in enacting the 1995 Act, was inter alia replacing in a different form the statutory regime controlling the activities of licensed hawkers which existed at the time of the 1852 Act and was ultimately consolidated in the Hawkers Act, 1888. That Act had been repealed by s. 19 (1) of the Casual Trading Act, 1980 which, in turn, was repealed by the 1995 Act. Section 46 of the 1852 Act had expressly exempted licensed hawkers from the prohibitions imposed by that Act and I am satisfied that, far from being in breach of the 1852 Act, the bye-laws enacted by the Corporation in this case were doing no more than giving effect to the form of statutory regime intended to regulate the activities of persons previously controlled by the legislation relating to hawkers. That was clearly not a breach of the prohibition in s. 32 of the 1852 Act.

25. I have been proceeding on the assumption that the establishment of a casual trading area is a “market” as that expression is understood by the law. However, that is not necessarily the case. The following definition appears in Halsbury’s Laws of England, Third Edition, at p. 381:

26. I do not think that it was the intention of the Oireachtas, in enacting the 1985 Act and enabling bye-laws to be made, designating areas in which casual trading could take place, to create a “market” as thus defined. That view is confirmed by the wording of the 1995 Act which expressly empowers a local authority, in ss. 7 and 8, to acquire and extinguish a “market right” and defines such a right as

27. Those provisions are patently inapplicable to the casual trading licences which the local authority is empowered to grant under the Act and, in respect of which, a self-contained statutory scheme is provided for their grant and revocation.

28. In the circumstances, I do not find it necessary to express any opinion on the other grounds on which the Corporation sought to resist this application, i.e. that the applicant had no locus standi and that, in any event, he had not availed of the statutory right of appeal available to him in relation to the making of the bye-laws. In fairness to the applicant, however, it should be pointed out that an appeal had been taken by the organisation to which the applicant belongs but was dismissed as being out of time.

29. I would dismiss the appeal and affirm the order of the High Court.