Auctioneer fails to stop prosecution for allegedly trading without a licence

An auctioneer has lost an appeal aimed at stopping his prosecution on charges of trading without a licence.

Arthur Connell Nugent, a director of the now-in-liquidation Castleblayney, Co Monaghan,livestock sales mart firm, Edward Paul Nugent Ltd, brought the challenge against the Property Services Regulatory Authority (PRSA) which issues auctioneers’ licences to regulate the business.

The company had licences between 2013 and 2015, and between 2016 and February 2017.

On February 21st, 2017, the PRSA wrote to Mr Nugent informing him the company’s licence had expired and no application to renew it had been received.

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The employees of the company, including Mr Nugent, applied to renew their individual licences but their applications were deemed withdrawn following the failure of the company to renew its licence.

Mr Nugent was summoned to appear before the District Court in early 2019 for allegedly conducting an auction of livestock without holding a licence and with holding himself out as someone available to provide property services while not having a licence.

He then brought a High Court challenge seeking to stop the prosecution claiming, among other things, the PRSA arrived at its decision to prosecute him in reliance on irrelevant considerations and/or failing to advert to relevant considerations and acted in excess of its jurisdiction.

He also claimed that notes taken by PRSA inspectors who called to the Castleblaney mart in March 2018 were not preserved for inspection by him as part of his defence. He claimed that in “deliberately destroying evidence central to its case”, his constitutional right to a fair trial was breached.

Claims denied

The PRSA denied his claims. It said, among other things, while the original handwritten notes had been destroyed, the PRSA did not deliberately destroy evidence.

It said there is no risk of an unfair trial and it will be for the trial judge to determine the significance or otherwise of the original handwritten notes being unavailable.

In September last year, the High Court dismissed the challenge after finding it was instituted out of time and Mr Nugent was not entitled to an extension of time to do so.

The court also said the case involved issues concerning the admissibility of evidence which were quintessentially issues which fell within the jurisdiction of the District Court judge who will hear the case.

Mr Nugent appealed and the PRSA opposed it.

The Court of Appeal (CoA) rejected the appeal. Ms Justice Una Ní Raifeartaigh, on behalf of the three-judge appeal court, said the High Court was correct in ruling Mr Nugent was out of time to bring his challenge within the three-month time limit for bringing judicial reviews. He was also not entitled to an extension of time, she said.

She agreed with the High Court the question of “missing evidence” was a matter for the District Court judge.