Michael Bridgman (applicant/appellant) v The Mayor Alderman and Burgesses of Limerick (respondents).Judicial Review - Local government - Definition of casual trader - Intention of the legislature - Whether bye-laws reflects the intention as contained in the preamble of the Act - Whether said bye-laws in contravention of the relevant statutory provisions - Limerick Markets Acts 1852- 1992 - Casual Trading Act 1995, section 6.

The Supreme Court (The Chief Justice, Mr Justice Keane; Mr Justice Murphy and Mrs Justice McGuinness); judgment delivered 15 June 2001.

When considering the 1852 Act one is entitled to have regard to the preamble as being a guide to the legislative intention. The recitals cannot be called in aid to override the plain language of the enactment. In respect of the said Act the phrase "no market" alone is used and the statutory context makes abundantly clear that it was a market in agricultural produce that was contemplated. That being so, there is no reason to suppose that the legislature intended to prohibit any other form or market in the Borough of Limerick. It was plainly the intention of the legislature in enacting the 1852 Act that licensed hawkers were not to be affected by its provisions. They, accordingly, were still entitled to sell agricultural produce after the establishment of the market. The scheme of casual trading licences established under the 1995 Act provided for the continuing regulation of persons who would previously have 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.

The Supreme Court so held in dismissing the appeal and refusing the reliefs sought.

Alexander Owens SC and Angus Buttanshaw BL for the applicant/ appellant; Daniel O'Keeffe SC and Gerard Kiely BL for the respondents.

The Chief Justice outlined the facts of the case. The applicant in these proceedings, at the date they were instituted in the High Court, had been trading in Limerick City on a weekly basis every Saturday at the same location for more than thirty years selling costume jewellery. On 13 July 1998, the respondents porported to make bye-laws under section 6 of the Casual Trading Act 1995 which were to come into operation on 13 August 1998. These provided for the designation of a casual trading area at the same location which was to be divided into 99 trading spaces measuring 10 feet by 6 feet or 6 feet by 6 feet. The applicant claimed that these spaces were not capable of accommodating the vehicle from which he had been trading which would seriously affect his ability to earn a livelihood.

The applicant made his concerns known to the Irish Organisation of Market and Street Traders which had been established for the purpose of protecting and representing the interests of street market traders throughout the country. They in turn sought legal advice as to the corporation's power to make the bye-laws in question.

On 28 July 1999 leave was obtained in the High Court to apply by way of judicial review for an order of certiorari in respect of the Limerick Corporation Casual Trading Bye-Laws 1998 and also a declaration that the making of these bye-laws providing for the area designations, constituted the establishment of a market within the municipal boundaries within Limerick County Borough in contravention of the provisions of the Limerick Markets Act 1852 as amended. In opposition to the application, the Corporation raised three matters which it intended to rely on: (1) the applicant had no locus standi to make the said application; (2) the casual trading area proposed was not a market within the meaning of the Limerick Markets Acts 1852-1992 and accordingly was not created in breach of any provision of the 1852 Act; and (3) the applicant, having failed to avail of the procedures for challenging the bye-laws under section 6(7) of the 1995 Act, the court should, in its discretion, refuse to extend time for bringing the application and/or should refuse the application.

The Chief Justice noted that the matter came on for hearing before Mr Justice Finnegan who, in a reserved judgement, said that he was satisfied the applicant did have locus standi and the fact he had not used the appeal procedure available to him under the 1995 Act was not a ground of itself for refusing the relief sought. Mr Justice Finnegan was also satisfied, however, that the bye-laws did not contravene the 1852 Act and accordingly refused the application. It was from this order that the applicant sought leave to appeal and while the Corporation did not serve notice to vary the order, it was argued in written and oral submissions on their behalf, that the applicant did not have locus standi and, if he had, the High Court should have exercised its discretion to refuse the application for failure to exhaust the statutory appeal procedure available to him under the 1995 Act.

The Chief Justice went on to deal with the relevant provisions of the 1852 Act and its preamble which stated that the Corporation were the owners of several of the markets held within the borough of Limerick and that it would be a material accommodation and advantage to the inhabitants of the Borough and persons resorting thereto and persons interested in buying and selling therein, if the markets were rendered more sufficient, fit and convenient and placed under the proper control in accordance with the contents of the preamble of the Act. The management of the markets was also to be placed in the hands of trustees representing the Corporation, the traders in the Borough and local landowners and farmers in the County of Limerick. Section 30 provided for the appointment of the trustees who were to be known as "the Limerick Market Trustees" and it also dealt with their powers. These included the right to enter and take possession of the relevant lands for the purposes of constructing and establishing a new market place with the necessary buildings and appurtenances, for the sale of agricultural produce and other marketable commodities referred to in Schedule C of the 1852 Act. The trustees, by virtue of section 30 of the 1852 Act stipulated that the markets provided for under the act were to be established within the Municipal Borough of Limerick and no other market was to be held within that same boundary or within one mile of same, subject to the provisions of the Act. As a result of an amendment by section 3 of the 1992 Act, the reference to the contents of Schedule C was replaced with the words "as the trustees shall from time to time decide". The Chief Justice also noted that section 40 of the Act preserved the rights of the owners of legal markets existing at the time of enactment of the 1852 Act and under section 41, with the exception of such private legal markets, the markets to be established under the Act were to be only markets within the limits of that Act. Section 44 enabled the trustees or the police to remove "any cart, booth, stall, stand, bulk, block, tressel or the obstruction erected, placed or used, in any street, square, road, lane, passage or other public place within the said Borough, other than such private legal market as aforesaid for the sale or display of any stock, goods, provisions, articles or commodities specified in the schedule C to this Act annexed." Where an individual purported to sell goods outside the appropriate market area or his own dwelling shop/house in respect of which rent was payable under the Act, he would be liable to a penalty of up to forty shillings under section 46.

The Chief Justice then considered the relevant provisions of the 1995 Act. Section 2(1) defines "casual trading" as the selling of goods at a place (including a public road) to which the public have a access as of right or at any other place that is a casual trading area. Unless a person comes within one of the exceptions specified in subsection (2), he is prohibited from so trading save where he holds a casual trading licence. Such licences are granted under section 4 of the Act by the local authority. Section 6 of the 1995 Act empowers the local authority to make bye-laws to designate particular areas for the purposes of casual trading. Article 2 of the bye-laws in this instance concerned such a designation by Limerick Corporation.

The Chief Justice referred to submissions by counsel on behalf of the applicant. The first of these dealt with the wording of section 32 of the 1852 Act which it was argued was clear and unambiguous in that it prohibited the establishment of any market other than those provided for by the Act within the Borough of Limerick. It was also contended by counsel that the 1995 Act had not, either expressly or by implication, repealed or amended that section and accordingly, any bye-laws establishing a market within the Borough boundary constituted an amendment by implication of the 1852 Act and was ultra vires. In addition, it was suggested that a concourse of buyers and sellers in a defined area at a time, was clearly a market as generally understood and the provision of the designated area was an attempt by the Corporation to provide a market contrary to the terms of the 1852 Act. Finally, it was submitted that the High Court judge had erred in law in placing emphasis on the preamble to the 1852 Act. Citing the House of Lords decision in AG v Prince Ernest Augustus of Hanover [1957] AC 436, counsel's submission was that the plain meaning of an Act could not be overridden by recitals to an apparently different effect. The Chief Justice then considered submissions made by counsel on behalf of the respondents where it was suggested that the intention of the legislature in enacting the 1852 Act was clear in that the effect was to put an end to the sale of agricultural produce in the streets of Limerick in an unregulated manner which included the establishment of a single market in such products under the control of the trustees. It was further suggested that, read in the context of the Act as a whole, the prohibition in section 32 on the establishment of other markets was clearly intended to ensure that the only market in agricultural produce was to be the one provided for in the Act. This was also made clear by section 44 in relation to the removal of goods for sale but only goods provided for in Schedule C. Counsel went on to argue that it was also plainly the intention of the legislature in enacting the 1852 Act that licensed hawkers were not affected by its provisions and such individuals were entitled to sell agricultural produce after the establishment of the market, as section 46 made clear. The 1995 Act casual trading licences provided for the continuing regulation of persons who had previously been categorised as hawkers and so the designated trading area for such persons was in no sense a breach of the 1852 Act provision.

The Chief Justice was satisfied that the submissions on behalf of the Corporation were correct, that one could have regard to the preamble as being a guide to the legislative intention but they cannot be called in aid to override the plain language of the enactment. In his view, it there was an express prohibition on the establishment of markets of any sort, it would be contended that such words would have to be given their literal meaning. In this instance, the phrase "no market" alone is used and it was the Chief Justice's opinion that the statutory context made it clear the market contemplated was an agricultural one. Where this was followed by the provision, for all other marketable commodities as the trustees shall decide, it was considered these words should be read ejusdem generis with the preceding words and that the intention was to establish an agricultural market alone. That being so it was decided that there was no reason to suppose the legislature intended to prohibit any other form of market within the Borough of Limerick. That was put beyond doubt by section 44. Had the intention been to prevent the sale of other goods, the Act would have done so.

The Chief Justice said that apart from these considerations, he was satisfied the legislature, in enacting the 1995 Act, was inter alia replacing in a different statutory form, the regime for control of licensed hawkers under the 1852 Act as consolidated in the Hawkers Act 1888 and now covered by the provisions of the 1995 Act. Section 46 of the 1852 Act exempted licensed hawkers from the prohibitions contained in the Act itself and it was the Court's view that, far from being in breach of the 1852 Act, the bye-laws at hand merely gave effect to the statutory regime for the regulation of activities of those previously controlled by legislative dealing with licensed hawkers. That was clearly not a breach of section 32 of the 1852 Act.

In relation to the definition of a casual trading area, the Chief Justice stated that he had been proceeding on the assumption that such an area is a "market" as understood by law, which is not always the case. In citing Halsbury's Law of England, third edition, reference was made to the definition therein which provides that a market is a franchise conferring a right to hold a concourse of buyers and sellers for the disposal of commodities in respect of which a franchise is given and where there is a gathering of such buyers or sellers, though held at regular intervals in a fixed place, if it is not held by virtue of a franchise or under statutory authority, it is not in law a market. The Chief Justice considered it was not the intention of the Oireachtas, in enacting the 1995 Act and enabling bye-laws to be made, designating areas for casual trading, to create a market as thus described. This was confirmed by reference to section 7 and section 8 in relation to acquiring and extinguishing a market right, where such a right is defined as one conferred by franchise or statute for the holding of a fair or market, that is to say, a concourse of buyers and sellers disposing of commodities. Those provisions were patently inapplicable to casual trading licenses as provided for under the Act. The Chief Justice considered that in the circumstances it was not necessary to deal with the remainder of the grounds of opposition put forward by the Corporation with regard to locus standi and failure to avail of the statutory right of appeal in relation to the making of the byelaws. It was, however, noted that in fairness to the applicant, an appeal had been taken by the organisation to which the applicant belonged but was dismissed as being out of time.

Accordingly, the Chief Justice dismissed the appeal and affirmed the order of the High Court.

Mr Justice Murphy and Mrs Justice McGuinness concurred with the judgment of the Chief Justice.

Solicitors: Ferrys Solicitors (Dublin) for the applicant/ appellant: Law Agent, Limerick Corporation (Limerick) for the respondents.

Suzanne Burke Barrister