If you found BAILII useful today, could you please make a contribution?
Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
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.