High Court reserves costs on preliminary issues regarding franchise market trading rights and licensing bye-laws.

Neutral Citation Number: [2012] IEHC 282

THE HIGH COURT

[2011 No. 10285 P]

BETWEEN

TOBY SIMMONDS AND BY ORDER THE REAL OLIVE COMPANY LIMITED

PLAINTIFF

AND

ENNIS TOWN COUNCIL

DEFENDANT

JUDGMENT of Mr. Justice Clarke delivered the 23rd March, 2012

1. Introduction

1.1 This judgment follows on from a previous judgment in these proceedings (Simmonds & Anor v. Ennis Town Council (Unrep., High

Court, Clarke J. 10th February, 2012)) (“the main judgment”) which arose out of a hearing relating to two preliminary issues directed

to be tried. The parties and defined terms are used in the same way in this judgment as in the main judgment.

1.2 For the reasons set out in the main judgment, I determined the first preliminary issue directed to be tried by finding that the

casual trading legislation did apply to trading at a traditional franchise market or fair so that, at the level of principle, a trader wishing

to sell goods at a traditional franchise market or fair was required to hold a licence under the provisions of the casual trading

legislation.

1.3 However, in relation to the second question with which the preliminary issue hearing was concerned, I did not feel that a definite

answer could be given. For the reasons set out in the main judgment I came to the view that there were limitations on the manner in

which a local authority, such as Ennis Council, could use its powers under the casual trading legislation to impose, by bye-law,

regulation of a franchise market or fair. At para. 6.22 of the main judgment, I held that it was clear that “there needs to be in place

valid bye-laws in order that the obligation to have a licence can come into practical effect”. In those circumstances it seems to me

that counsel for Mr. Simmonds was correct when he argued that it has already been determined that a trader, such as Mr. Simmonds,

is only required to have a licence in order to trade at a franchise market where valid bye-laws providing for the grant of a licence can

be said to be in existence. That much is explicitly stated in the main judgment. It is also implicit in that judgment that a local

authority could not, by the simple expedient of failing to adopt appropriate bye-laws and thus failing to put in place a mechanism by

which a trader could be licensed, abrogate the entitlement of such a trader to sell goods at a traditional franchise market or fair in

accordance with the terms of the relevant franchise. It follows that the question, of whether Mr. Simmonds can lawfully trade within

the parameters of the existing Ennis franchise market, is dependent on there being valid bye-laws in place such as would allow Mr.

Simmonds to seek a licence.

1.4 In the context of those findings, both sides to this litigation brought motions before the court. On behalf of Ennis Council it was

suggested that all of the claims made by Mr. Simmonds in the pleadings in this case have, as a result of the main judgment, been

determined so that the proceedings should now be dismissed. While resisting that application, Mr. Simmonds, as a fallback position,

brings a motion before the court seeking to amend his pleadings. Both motions are, therefore, concerned with where this litigation

should go now. Should it, as Ennis Council suggest, now be dismissed or should it, as Mr. Simmonds argues, go forward to a plenary

trial with or without amended pleadings?

1.5 The starting point seems to me to be a consideration of the case pleaded by Mr. Simmonds for it is against that case that both

motions need to be judged. I, therefore, turn to the pleadings.

2. The Pleadings

2.1 In his endorsement of claim, Mr. Simmonds seeks a wide range of declaratory relief. The first two reliefs claimed seek declarations

to the effect that public market rights exist at Ennis on Saturdays and that Mr. Simmonds is entitled to avail of them. I did not

understand Ennis Council to contest that, subject to whatever restrictions might legitimately be put in place under the casual trading

legislation, such rights do exist. The next two declarations sought to establish that Ennis Council was not entitled to interfere with

those market rights either generally or on foot of the 2011 Bye-laws. Those two declarations need to be seen in the light of the fifth

declaration sought which seeks to establish that Mr. Simmonds does not require a casual trading licence to engage in market trading

at Ennis market. It seems to me that, as a result of the findings in the main judgment, it is clear that none of those declarations could

be made in the form in which they are sought. It is clear that, provided valid bye-laws providing for the licensing of traders such as

Mr. Simmonds are in existence, it is permissible for Ennis Council to interfere with franchise market trading to the extent of requiring

Mr. Simmonds to hold a licence and to comply with any regulation of the market which can properly be exercised in accordance with

such valid bye-laws.

2.2 Leaving aside the claim for damages and for interlocutory relief, the final two orders are designed to prevent interference by Ennis

Council with Mr. Simmonds’ activities. Those orders could not, of course, be granted in the form in which they are sought for the very

reasons just addressed in respect of similar declaratory relief.

2.3 It is then important to turn to the statement of claim which, as counsel for Ennis Council correctly pointed out, was filed after the

main judgment had been delivered. The reliefs claimed are exactly the same as those set out in the endorsement of claim. The

assertions contained in the statement of claim relate principally to the existence of a franchise market at Ennis and an allegation,

which is, at least so far as the factual element of same is concerned, correct to the effect that Ennis Council sought to interfere with

Mr. Simmonds trading by asserting that he required a casual trading licence.

2.4 A reply was filed on the 11th January of this year. That reply does not seem to be material save that there is, in para. 8, an

assertion that the fee imposed by the 2011 Bye-laws is ultra vires.

2.5 It seems to me that any fair reading of the pleadings as a whole can lead only to the conclusion that there is no direct challenge

to the validity of the 2011 Bye-laws other than the oblique challenge contained in the reply to the scale of fees charged for a licence

under the terms of those bye-laws. While it is true to say that the reliefs sought by Mr. Simmonds in the pleadings do raise the

question of the extent to which his entitlement to trade at the Ennis franchise market can be interfered with, there is nothing in the

pleadings as they currently stand which could, in my view, be reasonably interpreted as suggesting that part of the grounds on which

it is said that Mr. Simmonds is entitled to trade without interference by Ennis Council is that the 2011 Bye-laws are invalid. For the

reasons set out in the main judgment, I am satisfied that, provided there be valid bye-laws, Ennis Council is entitled to interfere with

Mr. Simmonds’ activities at a franchise market within the terms of those bye-laws including requiring that Mr. Simmonds hold a

licence. It seems to me that it logically follows that Mr. Simmonds’ claims must necessarily fail unless he is in a position to

successfully quash the 2011 Bye-laws to the extent either that no bye-laws can be said to be validly in existence or, at a minimum,

that there are no valid bye-laws providing for the grant of a licence. For the reasons already addressed, I am satisfied that unless

there are bye-laws which permit the grant of a licence then Ennis Council cannot seek to interfere with the exercise of franchise

market rights at the Ennis Market.

2.6 It seems to me to follow, in turn, that, because there is no real attack on the validity of the 2011 Bye-laws contained in the

pleadings to date, the situation has been reached where, unless it is appropriate to allow an amendment of the pleadings, Ennis

Council is entitled to succeed. I am not satisfied that the oblique reference to the level of fees charged in respect of licences

contained in the reply and not reflected in any specific relief directed towards quashing all or part of the 2011 Bye-laws, is anything

other than an impermissible collateral attack on those bye-laws. It follows, therefore, that these proceedings must be dismissed

unless it is appropriate to grant an amendment. I, therefore, turn to that question.

3. Should there be an Amendment?

3.1 What Mr. Simmonds seeks to do is to file an amended reply which would include a new para. 4 in the following terms:-

“4. Further or in the alternative, the Ennis Casual Trading Bye-laws, 2011 do not vindicate the public right to buy and sell

at Ennis Market, and are unreasonable, repugnant to the general law and ultra vires for the following reasons:-

(i) The Bye-Laws purport to limit the lawful sale of goods at Ennis Market to such goods as are approved by Ennis

Town Council and which can be sold in the manner envisaged by the Bye-Laws.

(ii) The Bye-Laws do not designate a casual trading area encompassing the entirety of the existing franchise market

area at Ennis, and thus unlawfully purport to restrict the exercise of that public right.

(iii) The Bye-Laws purport to prevent trading within Ennis Market at certain areas and certain hours.

(iv) The Bye-Laws purport to restrict trading to those persons who apply in advance for an annual licence.

(v) The Bye-Laws purport to impose an annual fee for market trading which amounts to an unreasonable and

disproportionate charge, is contrary to the provision of Directive 2006/123/EC of the 12th December, 2006 on

services in the internal market (“the Services Directive”) and also is related to capital value of the licence so as to

amount to a tax.

(vi) The Bye-Laws are subject to the express reservation of the right of the Defendant to grant or refuse a casual

trading licence.”

3.2 I should state firstly that I do not consider that, if an amendment along those lines were to be permitted, it would be appropriate

that it be included in a reply. The way in which counsel for Mr. Simmonds put the issue was to say that his claim amounted to an

assertion of market rights, that the defence of Ennis Council was to rely on the casual trading legislation and bye-laws made under it

and that his reply was, therefore, and thus properly, an answer to the defence being that the bye-laws are invalid. I do not,

however, accept the logic of that position. For the reasons set out in the main judgment, it seems to me that, in the ordinary way,

market rights are susceptible to any valid regulation carried out within the terms of the casual trading legislation as I have interpreted

it in that judgment. It follows that, prima facie, Mr. Simmonds’ entitlement to exercise his market rights is subject to regulation under

the casual trading legislation provided that that regulation be valid. Any assertion that Mr. Simmonds is not currently subject to

regulation necessarily involves a direct challenge to the validity of some or all of the 2011 Bye-laws, sufficient to quash the licensing

provisions of those bye-laws (including charging for such licences) and so as to remove the obligation on Mr. Simmonds to hold a

licence until (valid) bye-laws containing provision for the grant of licences are in place. It seems to me that the case which Mr.

Simmonds now wishes to make must, therefore, if it is to be permitted at all, be placed fairly and squarely in his statement of claim

and must amount to a challenge to the validity of the 2011 Bye-laws. I would not, therefore, be prepared to allow an amendment to

the reply in the manner sought by Mr. Simmonds. The question instead seems to me to come down to one of whether Mr. Simmonds

should now be permitted to amend his statement of claim to include a direct challenge to the bye-laws on the same basis as set out

in para. 4 of the proposed amendment to the reply, which I have already cited.

3.3 Against that background, two general questions seem to me to arise. The first is as whether it would be appropriate to allow an

amendment at all at this stage. Preliminary issues were, it needs to be recalled, directed by the court and have been answered.

Second, various points are made on behalf of Ennis Council which seek, in substance, to suggest that Mr. Simmonds could not

succeed on some or all of the points now sought to be raised.

3.4 So far as the first of those questions is concerned, it seems to me that it would, at least at the level of principle, be appropriate

to allow an amendment. It must be recalled that the result of the preliminary issue, so far as the key question of whether Mr.

Simmonds was entitled to trade or not, was inconclusive. While Ennis succeeded in persuading me that the casual trading legislation

applied to franchise markets it did so in a context, and only on the basis, that there were significant limitations on the power of

regulation of a franchise market for the reasons set out in the main judgment. It is clear from that judgment that had I not been

satisfied that such limitations could be implied into the 1995 Act, then I would have interpreted the legislation as not applying to

franchise markets at all. As a result of the main judgment, it follows that both parties were left with a position which was, perhaps,

not fully anticipated. In those circumstances it would not seem to me to be unreasonable, at least in general terms, to allow either

side to reconsider how they wished to formulate their case in the light of those findings. It does not seem to me that an amendment,

as such, would give rise to any prejudice subject to one issue which is, perhaps, better dealt with under the second heading, viz.

delay.

3.5 Counsel for Ennis Council raised a number of points concerning the challenge to the bye-laws which do need to be noted. First,

the question of Mr. Simmonds’ standing to raise some of the points urged was questioned. While there could be little doubt that Mr.

Simmonds has standing, in general terms, to question the validity of bye-laws which may directly affect him, the point made is based

on an assertion that there may be limits, based on the facts, as to the extent to which it may be open to Mr. Simmonds to make

certain points. For example, one of the issues addressed in the main judgment was the question of whether a local authority could

alter the area within which a franchise market was to take place by the exercise of regulatory powers under the casual trading

legislation and without invoking the procedures set out in s. 8 of the 1995 Act to move the location of the franchise market in

question. In the main judgment I came to the conclusion that it was not open to a local authority to bypass s. 8 in that way.

However, the extent to which it may be open to any individual to make an argument as to the validity of a particular set of bye-laws,

based on such an argument, may arguably be dependent on whether the scope of the area, in which casual trading is permitted under

the 2011 Bye-laws, could be said to interfere with the rights of that individual rather than some notional individual who might wish to

trade somewhere else. Like considerations might apply in respect of limitations placed on produce or other restrictions. There are,

therefore, significant questions as to the extent to which Mr. Simmonds may have standing to raise some of the points which he now

wishes to raise. However, it seems to me that those issues are at least arguably based on facts which the court might wish to

explore in some detail. In those circumstances it seems to me that arguments as to standing are best left to a full trial.

3.6 Like considerations seem to me to arise in relation to the delay points made on behalf of Ennis Council. In that context I should

say that, for the reasons already analysed, I am satisfied that the only way in which it would be appropriate to permit Mr. Simmonds

to continue with these proceedings is if it were appropriate to allow an amendment to the statement of claim which amounted to a

direct challenge to the validity of some or all of the 2011 Bye-laws such as would be sufficient, if successful, to give rise to a

situation where there would be no licensing capacity to be found in those bye-laws which in turn would, again for the reasons already

set out, lead to a situation where Mr. Simmonds was not, at least for the time being, obliged to hold a licence. It is clear from

O’Donnell v Dun Laoghaire [1991] ILRM 301 that it is permissible in plenary proceedings to seek relief which ought ordinarily be pursued

in a judicial review application but that, where so doing, a plaintiff cannot bypass the procedural obligations and limitations which

arise in judicial review cases such as the obligation to move expeditiously and, ordinarily, and in the absence of an extension of time,

within three or six months. It follows that a challenge to the relevant bye-laws, even if brought in plenary proceedings, is at least

arguably subject to the same time constraints as would have applied had leave to seek judicial review been sought in proceedings

designed to quash in whole or material part the 2011 Bye-laws. However, it seems to me that this is the type of case where, had an

application for leave been brought, the court would have dealt with the delay question by reserving that issue to the judge who

would try the substantive application and who would then have the benefit of a more detailed understanding of the facts and

argument from both sides. For those reasons it seems to me that the delay question is, like the standing issue, one which is best left

to a full trial.

3.7 Indeed one issue which may arise is as to whether the shortened time period for judicial review arising from the amendments made

to O. 84, r. 21(1) by S.I. 691 of 2011 (and which came into operation on the 1st January, 2012) applies.

3.8 Certain other points were made on behalf of Ennis Council concerning the merits of the issues sought to be raised. It does not

seem to me to be appropriate, at this stage, and in the context of a motion to amend, that I should say anything more than that the

points raised may or may not be good ones, but they are not sufficient to persuade me that there is absolutely no potential merit to

any of the issues sought to be raised by Mr. Simmonds such as would justify excluding the issue concerned from the amendment.

3.9 It follows that I am satisfied that Mr. Simmonds should be given leave to amend his pleadings. However, the amendment should be

to the statement of claim which should now be focused on a direct challenge to the 2011 Bye-laws on the grounds set out at para. 4

of the proposed amendment to the reply and which I have already cited. It would also be appropriate that Mr. Simmonds now delete

from the statement of claim (particularly given that it was filed after the ruling on the preliminary issue) any continuing claim which is

inconsistent with that ruling. To the extent that it is appropriate for Mr. Simmonds to continue to assert that he does not need a

licence; that can only be done as an alleged consequence of there being no bye-laws validly in existence through which such a

licence can be granted.

4. Procedural Directions

4.1 I, therefore, propose giving Mr. Simmonds liberty to amend his statement of claim in accordance with the terms of this judgment. I

direct that the amended statement of claim be filed within four weeks of today’s date. Ennis Council can have a further period of four

weeks to file an amended defence. It does not seem to me to be appropriate to embark on another preliminary issue hearing in this

case. It seems to me that all issues should now be set down for trial in the ordinary way. If the parties wish to park any question

concerning the calculation of damages to a second module of any such plenary hearing, then that course of action might well be

sensible. However, any further procedural applications should be made in the ordinary way in the chancery list and the case should be

set down for trial and come on for hearing as the judge in charge of that list might direct.

4.2 Finally, and subject to what either side may have to say, I am minded to deal with the costs to date of the issues with which I

have been concerned in the following way.

4.3 So far as the hearing of the preliminary issue is concerned, it seems to me that it would be appropriate to reserve the costs of

that preliminary issue to the trial judge. In saying that, I acknowledge that it is appropriate to characterise Ennis Council as having at

least succeeded in material part at the hearing of the preliminary issue. Doubtless the trial judge will take my view, as to that fact,

into account in fashioning any appropriate costs order at the end of the day. However, it equally seems to me that it cannot be said

that Ennis Council has necessarily fully succeeded for the kernel of the practical issues, which have arisen between the parties, is as

to whether Ennis Council are currently entitled to interfere in any way with Mr. Simmonds’ rights in respect of the Ennis franchise

market. If the current 2011 Bye-laws withstand challenge (or at least withstand challenge to a sufficient extent that the licensing

regime remains intact), then it seems to me that Mr. Simmonds will have failed substantially in these proceedings as a whole. He will

certainly have failed in the proceedings as they have been constituted to date and it would be difficult to see any reason why the

entire costs, at least to this point in time, should not be awarded against him. To the extent that he might succeed in some aspect of

his challenge to the bye-laws but fail to displace the bye-laws to a sufficient extent to remove the licensing regime, then it would be

a matter for the trial judge dealing with the final trial to consider how the costs from today’s date onwards should be dealt with in the

light of whatever findings might be made.

4.4 However, on the other hand, to the extent that Mr. Simmonds may displace the licensing regime, the trial judge would then need

to take into account the fact that the root cause of these proceedings was an attempt by Ennis Council to interfere with Mr.

Simmonds’ market trading rights in circumstances which would have been found to be invalid. The trial judge would then have to take

an overall view, based on that fact, of how it would be just to deal with the costs. For those reasons it seems to me that the costs

of the preliminary issue should be reserved noting my comments as to how the success of the respective parties on that preliminary

issue might ultimately be viewed.

4.5 Nevertheless, it seems to me that a different view needs to be taken of the two motions. I have, in substance, found that, in the

absence of an amendment, Ennis Council would be entitled to succeed on the proceedings as currently constituted. It follows that at

the time when Ennis Council brought its motion it was, prima facie, entitled to the relief claimed. It is only the amendment which has

prevented that order being made. It seems to me that Ennis Council must be entitled to the costs of its motion on that basis.

4.6 So far as the motion to amend is concerned, I have come to the view that no order as to costs should be made. It is true that

the necessity for the amendment has come about because of the need, for the reasons which I have set out, for Mr. Simmonds to

change his case. It follows that the need for an amendment in the first place is due to the fact that Mr. Simmonds did not formulate

the claim in the manner which he now finds it necessary so to do. However, against that needs to be set the fact that Ennis Council

opposed the amendment in circumstances where I have been satisfied to allow the amendment. To that extent the costs of the

amendment issue were more substantial than would have been the case had the application not been opposed. I have also taken into

account the fact that I have not allowed the amendment as originally sought but rather required that any amendment be to the

statement of claim. Subject to what counsel may have to say, it seems to me that those factors broadly balance each other out and

that no order as to costs should be made in respect of the motion to amend.