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Judgment Title: Simmonds -v- Kilkenny Borough Council

Neutral Citation: [2007] IEHC 208

High Court Record Number: 2004 19731p

Date of Delivery: 15 June 2007

Court: High Court

Composition of Court: Smyth J.

Judgment by: Smyth J.

Status of Judgment: Approved

Neutral Citation Number: [2007] IEHC 208

THE HIGH COURT

DUBLIN

[2004 No. 19731P]

TOBY SIMMONDS Plaintiff

and

KILKENNY BOROUGH COUNCIL, THE

COMMISSIONER OF AN GARDA SIOCHANA,

IRELAND AND THE ATTORNEY GENERAL Defendants

JUDGMENT OF MR. JUSTICE THOMAS C. SMYTH

DELIVERED ON FRIDAY, 15TH JUNE 2007

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS

FOLLOWS ON FRIDAY, 15TH JUNE 2007:

MR. JUSTICE SMYTH: The Plaintiff is a

wholesale and retail

merchant. He imports olives and other Mediterranean

foods from North Africa and much of Europe,

particularly southern Europe. He has been in business

for over a decade and in 1995/96 he had 25 people

working for him. His partner, the mother of his

children, runs a business in "the English Market" in

Cork as of 2007 and he attends several markets in

Ireland which are serviced by one full-time and three

part-time employees. He trades under the name of The

Real Olive Company. It is a successful, substantial

undertaking, for there are many franchises; in the year

to 2006 he imported olives alone to the value of €1m

approximately.

He was involved in the negotiation and establishment of

the Temple Bar Market in Dublin in 1997 and trades

there regularly. In the Dublin area he or his

employees or franchisees trade in Marlay Park,

Leopardstown and Dalkey, and outside the capital in

Naas, County Kildare and in Kerry at Sneen, Dingle and

Kenmare. He also operates in Limerick and in

County Cork with centres in Bantry, Skibbereen and

Macroom; also in Ennis, County Clare and in Galway. In

addition, his partner has a permanent stall or part of

3

a premises in the Cork "English Market". All trade

under the name The Real Olive Company.

The central distribution depot for the produce that the

Plaintiff puts forth and the produce he imports, is a

small farm (area unspecified in evidence), which has

been converted from a milk creamery in Macroom,

County Cork. The business of the Plaintiff, who at the

time of the hearing of the action was 34 years old, so

thrived that he sold "the business in Bantry and

Macroom" to employees. One of the employees works out

of the Plaintiff's premises and operates from there.

Indeed so busy is the Plaintiff with the wholesale and

importing side of the business, that he only personally

services a couple of markets.

The nature of the business the Plaintiff conducts (when

he does conduct his own business) is to have a stall

with wooden barrels of olives, Feta cheese and

Mozarella, basil pestos and hummus made up at base and

"various things with beans", sundried tomatoes,

artichoke hearts which have been marinated with garlic

and/or fresh herbs, a lot of which he grows at the

farm. Essentially the basis of the business is the

importation, not production of food, some of which, to

an unspecified extent is subject to marination at the

depot, and its presentation of those foods at markets.

The nature and extent of the extensive commercial

4

enterprise of the Plaintiff differs in large measure

both as to its nature and extent to that championed by

Ms. Darina Allen called in his support. Her evidence

was concerning the farmers markets which provided an

outlet for fresh produce, a lot of homemade produce of

fresh naturally-produced local food in season, and she

instanced homemade butter, maybe periwinkles and wild

garlic and her advocacy of the farmers markets was that

such products can be sold by the actual producers

directly at the time they are in season. In short,

she spoke of a facility for direct sale of local food

for local people.

The Plaintiff called in evidence a Ms. Suzanne Crampton

who had a memory of some years by of coming from the

USA to visit her grandparents, who lived at Maidenhall

some six miles outside Kilkenny, and of a wonderful

childhood, where in those visits she helped her

grandfather who depended on his market garden for his

living. She described an idyllic childhood in an Eden

of flowers, fruits and honey and going with her

grandmother in the 1970s to the Market Yard where

homemade jams, jellies, tarts and cakes and farm

produce from the surrounding area was for sale,

including some knitted garments. Specifically in

reference to the Market Yard, she referred to leaving

Maidenhall "early the next day to get into the Country

Market". In reply in cross-examination she thought the

market then was more extensive in that area than in

5

recent years.

The witness's memory was of five stalls, whereas there

are now four. I attribute this difference, if of any

importance, to the effect of time on memory. It may

well be that prior to the introduction of parking fees

and the arrival of Dunnes Stores and later Superquinn

in that area, that the former activity and numbers

dealing with the producers in the Country Market was

greater and could have given the impression of a more

extensive market.

The Plaintiff made his first foray, through his

employee, one Morris, in Kilkenny in 1995. It was a

short-lived affair or experiment because there was not

enough business, and the Plaintiff and/or Mr. Morris

considered "the situation was wrong". Apparently the

1995/96 experience was centred on or took place in "the

Market Yard". This is now a public car park. The

Plaintiff in evidence stated that some weeks before the

hearing of the action, he found the old Weigh Masters

room in the Market Yard. In this regard I heard the

evidence of Mr. Donal O'Brien, Town Clerk to the

first Defendant ("the Defendant") from 1980 to 2005,

who gave evidence that the premises referred to by the

Plaintiff as the Weigh Masters room in the Market Yard

was occupied by a sergeant of An Garda Síochána who

used to check the weights and measures in the Brewery

and Avonmore and the like. Where the evidence of the

6

Plaintiff differs from that of Mr. O'Brien on any

material fact referable to the historic use of any

place in the boundaries of the Defendant, I have

preferred that of Mr. O'Brien whose detailed knowledge

and experience I found as more reliable evidence.

Indeed Mr. O'Brien was able to recall specifically the

name of the sergeant, whose original duties had their

origin in the Weights and Measures Act, 1878 (41 and 42

Vic. c. 49); "the weights and measures man" was a

feature of the lives of shopkeepers and those who sold

goods by weight to ensure that the weights were true

and accurate.

I am satisfied and find as a fact upon the evidence on

which I can rely that in the year 1980 there were no

casual trade bye-laws because there was no street or

market trading at that time in Kilkenny and had not

been for quite some time before 1980. In 1984/85,

after an incident in which a large number of traders

appeared one day on John's Green (which is adjacent to

the railway station), it was decided to regulate the

situation and bring in casual trading bye-laws. At

that time, an area generally used as a public car park

was designated as the casual trading area and bye-laws

were drawn up which survived challenge in court.

However, "the market" effectively disappeared after a

short time.

In the 1990s, notwithstanding the coming into effect of

7

the Casual Trading Act, 1980 and thereafter of 1995, no

bye-laws were brought into existence by the Defendant

because there was effectively no market or street

trading being carried on. However, all this changed

in 2002 when a group of traders began, and maintained

on a consistent basis, to hold a market or street

trading at an area known as the Parade. Then, in

consultation with the several traders, bye-laws were

drawn up and adopted on 8th December 2003 and are known

as the Kilkenny Borough Council, Casual Trading

Bye-Laws, 2003. The purpose of the bye-laws is to

permit of a controlled and orderly market for those

persons who have no fixed permanent buildings from

which they trade, at a modest charge of approximately

€5 per week. The Defendant reserved to itself the

right to vary the location, times, products for sale

and fees to be charged to reflect any decision that may

be taken in the interest of the proper planning and

development of the city.

I am satisfied and find as a fact that the Defendant

sought to arrive at a consensus with the traders, and

did so as to the location of the area for the market or

trading area and other relevant facilities and terms.

The designation of the area for trading purposes was of

importance because prior to the coming into effect of

the bye-laws, trading was taking place outside the

railings on the public road and this was causing a

certain amount of problems, not unlike those reflected

8

in the Royal Commission Report published in 1855,

referred to by Dr. O'Drisceoil in his evidence

(T. 18/04/07 q.336). While these were not expressly

stated in evidence, the city of the Kilkenny of 1608/09

or mid-19th century both as to its population and means

of transport differs significantly, if not radically,

from what exists in the 21st century. The confusion

and congestion of traffic I infer led to the safe and

sensible suggestion of allocating a paved pedestrian

area, referred to in evidence as The Mayor's Walk being

part of the Parade, inside the railings within which

the buying and selling of goods could take place

safely. All persons who applied to trade in the

designated area received licences. The Plaintiff was

the only trader who did not apply for a licence and

therefore none issued to him.

An incident occurred on 17th July 2004, upon the

details of which no case is made as such - however, the

action of the Plaintiff is alleged to arise from the

assertion of the Plaintiff that there was "a market

right" over and above and distinct from any right or

rights which may arise under the Casual Trading Acts

and/or any Bye-laws arising thereunder. The issue of

an inquiry as to the existence or abandonment of "a

market right" was taken up by the Plaintiff under the

Freedom of Information Act. I am satisfied and find as

a matter of fact that when Mr. O'Brien, who was the

Town Clerk between 1980 and 2005, was dealing with the

9

Plaintiff in correspondence and telephone enquiries, he

was under the pardonable impression that the Plaintiff

was representing the traders (T. 19/04/07 p.46/7

q.169) but upon enquiry to such traders it became clear

that the Plaintiff was representing only himself. When

Mr. Tyrell (who succeeded Mr. O'Brien as Town Clerk)

who was the official dealing with the enquiries under

the Freedom of Information Act, replied to a letter of

2nd December 2002 from the Plaintiff he did so in the

context in which it was received. The context was of a

person who was then researching historical markets and

market rights in Kilkenny. Such response as was made

is not determinative of the legal issues involved nor

does such create any form of the estoppel as against

the Defendant (Dublin Corporation V. McGrath [1978]

ILRM 208 applied).

In summary, there are now only two areas in Kilkenny

where persons who do not have shops or fixed permanent

places from which to trade do in fact trade:

1. The sheds on the edge of the courthouse area in

what was referred to in historical documents and still

known as The Market Yard; where the country market(s)

have lettings in respect of which they pay rents.

These sheds were re-roofed by the Defendant in the

1990s at a cost of approximately £30,000. Save for

these sheds at one side, the Market Yard is a

designated large car park, used as such, and is not

10

designated as a casual trading area.

2. Inside the railings on the Parade which is a

designated casual trading area.

Dr. O'Drisceoil, a professional historian whose broad

specialty is in Modern Irish History is a co-author of

a history of markets in Cork City. He embarked on a

body of research, though extensive, not exhaustive, in

relation to the evaluation of the market situation in

Kilkenny. His two preliminary sources were Royal

Commission Reports and the Minutes Books of the

Corporation and of its Markets Committee - he had

recourse to other sources such as maps and newspapers.

This fascinating evidence is unnecessary to recount in

detail save to note that the Defendant was enfranchised

and enabled by Royal Charters of 1608/09 to hold

markets. The franchise was superceded by the Kilkenny

Markets Act, 1861. The evidence of Dr. O'Drisceoil on

his examination of the archival material of the

Defendants refers over the years to "tolls" - such

argument as arose in reference to the use of the word

in my judgment is odious. In the light of the shorter

Oxford Dictionary (Ed. 1985: Onions) which records the

expression as "A general term for a definite payment

exacted by a king, ruler or lord, or by the state or

the local authority, by virtue of sovereignty or

lordship, or in the nature for protection" and

11

historically was so especially. Indeed Dr. O'Drisceoil

correctly notes in his evidence (T. 18/04/07 p.72 q.336

l.12) quoting from the Royal Commission that:

"Tolls were taken in kind, so much on a
barrel of corn; but customs were a
pecuniary charge." "

Such understanding of the word tolls is noted in the

Dictionary as obsolete or rare. Little wonder that

Mr. O'Brien saw the charges for some facilities in

terms of rents or charges and saw the expression

"tolls" as historical (T. 19/04/07 P. 50 Q. 186;

p.87/88 q.395). While some form of market may have

survived when put on a statutory basis in the early

1860s, it appears to have died out in the 1920s save

for the Country Market sheds and for some time into

1950s/1960s, tolls were collected in respect of the

selling of cattle in the Fair Green - the cesser of

which is the subject of separate litigation between the

Defendants and Kilkenny Farmers Co-op Livestock

Markets.

Dr. O'Drisceoil's researches revealed that prior to the

Act of 1861 there is reference in the historical

documents "to markets here, there and everywhere"

(T. 18/04/07 p.77 q.348). It appears from the Rents

and Tolls Schedule in the accounts of the Defendant

that there was an ouncel on the Parade. In 1886 there

were charges in respect of coal [perhaps from

Castlecomer], hay and straw for every load weighed on

12

the weighing machine, and the 1891 Royal Commission

Report makes it clear that coal, hay and straw were

sold and/or weighed on the Parade, which was an

entitlement; although weighing of corn, hay and coal

giving rise to receipts in the form of tolls may have

been carried out on some undefined basis or regularity

on the Parade. The position in 1950s/1960s is as

indicated to me in the course of the evidence and in

the course of the records.

Other than sparse records up to the early 1920s, there

is no reliable evidence thereafter other than in

respect of the cattle market in the Fair Green and the

Country Market in the sheds in the Market Yard of any

clearly identifiable market existing in Kilkenny. For

the events from 1980 to 2005, I rely upon and accept

the evidence of Mr. O'Brien, not because of his title

or official position with the Defendant, but because of

his local detailed first-hand knowledge and find the

facts in accordance with his evidence.

The Casual Trading Acts and the regulations and

bye-laws thereunder were clearly designed to create a

designated area for the buying and selling of goods.

They are designed to regulate such activity. The

Plaintiff said in evidence that he welcomes regulation

and that it is better to be in a regulated market than

in a free-for-all (T. 18/04.07 p.49 q.242). The

Plaintiff's case although based on seeking "a market

13

right" had, it appears, only one real objection to the

casual trading area. He had a "feeling" that because

the designated area was off the street in a paved area

behind railings of some 5/6 feet in height which can be

clearly seen through, "it is sort of hidden" and "it

certainly removes the business" (T. 18/04/07 p.51).

The subjective "feeling" may be genuine, but the

objective fact that the demand for trading bays

increased from 20 to 25 does not give credence to the

notion that the location or its size or configuration

removes business - rather the contrary. I think it is

not unreasonable that both traders and customers might

well prefer to conduct their business off a road or

street with traffic going to and fro or parking about

them.

Legal Submissions:

The Plaintiff's submissions were that there is a legal

and factual basis for the granting of a declaration

that there is a market right in Kilkenny and that the

market right has existed by virtue of statute and that

in the absence of an express repeal or a completed

process of the extinguishment thereof. Furthermore,

the non-user or any form of desuetude is insufficient

for the right to be "lost" to the public. It was

further contended that "the market right" of the

Plaintiff has been nullified by the actions of the

Defendant on 24th March 2004 when his stall was

14

dismantled, impounded and cash taken by the Gardaí

(later returned) because he did not have a casual

trading licence. Mr. Rogers SC for the Plaintiff said

that the nub of the Plaintiff's claim was that there

was a market right in Kilkenny and it has effectively

been obliterated. He submitted that the right or

market right are such that cannot be abrogated except

by a formal withdrawal by Parliament by one of the

systems or methods arranged by Parliament in another

statute.

The Plaintiff contended that the market rights to trade

on Saturdays in the Borough of Kilkenny had its origin

in a Royal patent of 1609 and was confirmed by the

provisions of the Kilkenny Markets Act, 1861 which

created the general market of Kilkenny. The

Plaintiff's response to the invocation of the Casual

Trading Act, 1995 is to contend that this line of

argument is predicated on a misunderstanding of the

three statutory codes stated to govern the sale of

goods at places to which the public have access as a

right.

The right to trade in a market is a common law

entitlement as propounded by the Plaintiff. That right

is subject in this case to a statutory overlay found in

the provisions of the Kilkenny Markets Act, 1861 and

the Markets and Fair Clauses Act, 1847 and the Public

Health (Ireland) Act, 1878 and other statutes. I do

15

not refer to the latter Acts which were the subject of

clear-cut submissions on behalf of the Defendant which

make it unnecessary to do so. The point, however, is

made that market trading is to be distinguished from

street trading which is governed by the Street Trading

Act, 1926. Furthermore, it is contended that the Casual

Trading Act, 1995 is a statutory code governing that

which was once described as "hawking", and was formally

governed by the Hawkers Act, 1888. The Hawkers Act,

1888 was repealed by the Casual Trading Act, 1980 which

in turn was repealed by the Casual Trading Act, 1995,

such was the submission of the Plaintiff. The

Plaintiff contends that it is a mistaken approach to

seek to apply the provisions of one code to the

activities which are governed by another and that all

three of the codes, or stated to be codes, must be

distinguished from occasional trading which is governed

by the Occasional Trading Act, 1979 which refers to

occasional trading by selling goods by retail at a

premises or place not being a public road or an area to

which the public has access as of right, and of which

the person selling has been in occupation for a

continuous period of for not less than three months.

Pease and Chitty's Law of Markets and Fairs (5th Ed) at

p.1 states as follows:

"A market at common law is a franchise
right of having a concourse of buyers
and sellers to dispose of commodities
in respect of which the franchise was

16

given. No-one can have, in law, a
franchise of a market, or 'a free
market' as it is sometimes called,
without a grant from the Crown or the
authority of Parliament. The franchise
gives the holder the sole and exclusive
right of holding markets within certain
limits: And although any person,
provided he does not interfere with the
existing market rights, may make
provisions for a concourse of buyers
and sellers upon his land, such a
concourse, if not held under franchise
or statute, is not a market in law and
will not enjoy the privileges of a
franchise market."

The right of a member of the public to attend a market

is referred to in Halsbury's Laws of England (4th Ed.)

at para. 623 as follows:

" At all times when a market ought
lawfully to be held, every member of
the public has, of common right, the
liberty to enter and frequent the
marketplace for the purpose of bringing
there and exposing for sale and
selling, or of buying, such commodities
as are vendable in the market."

In the instant case, the Defendant contends that the

enactment of the Kilkenny Market Act, 1861 removed and

extinguished any existing markets for the sale of fruit

or agricultural produce to the Market Yard. It clearly

established that the effect of a local Act for the

regulation of a market or fair originally created by

grant is to extinguish the franchise and substitute for

the parliamentary right. In this regard reliance was

placed on the case of Manchester Corporation v. Lyons

17

[1882] 22 Ch.D 287 in which under an Act of 1884

Manchester Corporation purchased the manorial rights of

the Manor of Manchester. Among those rights was an

ancient franchise to hold a market on Saturdays. The

Manchester Market Act, 1846 empowered the Corporation

to hold markets on such days as they should think fit

at a place and within the borough which they should

appropriate as marketplaces and to charge tolls.

It was held by the Court of Appeal that the effect of

the Act was to give the Corporation new rights of

holding markets in substitution for the old franchise

and that the old franchise was extinguished. Again, in

Windsor v. Taylor [1899] AC 41 by prescription the

appellants had the right to take certain tolls. A

local Act was enacted in 1734 and another in 1819 and

the House of Lords held that the prescriptive right to

take tolls had been merged in and extinguished by the

statutory rights. Treating of this topic in the course

of the judgments Lord Halsbury stated (at p.45):

"It is therefore clear to my mind
beyond question that the nature of the
right itself is completely altered by
turning it into a statutory right and
that right must continue, if it does
continue, by virtue of the statute
without any power or revival or
reverting back to its original nature."

To the like effect is the judgment of Lord Watson at

p.47 wherein he states as follows:

18

"Well, my Lords, what appears to me to
have been affected by that part of the
enacting clause of this statute is
simply to create what it was quite
competent for them to do - a statutory
authority in the form of and in
substitution for the right of franchise
which was previously available to
Mayor, Bailiffs and Burgess. The
effect of that substitution of a new
statutory authority for the authority
derived from the franchise only was, I
apprehend, on the clearest authority to
determine - to put an end to it."

This topic is also treated in Halsbury's Laws of

England (3rd Ed) at para. 308 wherein it is stated as

follows:

"A franchise market or fair or
franchise tolls may be extinguished by
an act of Parliament which creates the
like rights or larger or different
rights of the like nature or character
in favour of the grantee provided the
Act so intends...."

Again Pease and Chitty, to which I have referred, at

p.102 states:

"All franchises are liable to be
extinguished by act of Parliament, and
a market or fair created by statute can
only be extinguished by statute."

It is clear from the situation prevailing in Kilkenny

prior to the enactment of the 1861 Act, that the

intention of the Act, to be garnered from the

documentation available, was to construct a new general

19

market for the sale of fruit and other agricultural

produce and other matters in Kilkenny and to move the

existing markets from the streets to that market.

Furthermore, s. 28 of the Act specifically provided

that as soon as the market was constructed and open, it

was lawful for the Corporation to remove the market and

marketplaces to the general market and thereupon those

markets would be discontinued and extinguished. It is

equally clear from the evidence to the Commission in

1888 and referred to in the course of the legal

submissions and referred to also by Dr. O'Drisceoil

that this is what occurred.

I, therefore, find as a matter of law that the rights

under the Charter or otherwise were removed to the

Market Yard by the 1861 Act and were thereupon

extinguished. What the 1886 Act did was to enable the

Defendant to "set up a market" and to control it and

its location. So this is what occurred as a matter of

the fact. Accordingly, there is no longer a market

right to trade at the Parade or any other place in the

borough under the Charter of James I of 1608/09.

It was submitted by the Plaintiff that if a fair or

market becomes unfrequented and is, therefore, to that

extent discontinued, the right remains unimpaired

(Markets of Devonshire v. O'Brien [1887] 19 IR 380 at

c. 89 per Chatteron v. C). I do not see this authority

as in any way overriding the determination that once an

20

Act is enacted, the franchise right ceases and the

right (if any) is a statutory right. The real argument

in this case centred on the distinction between "a

market right" and casual trading. The Plaintiff

contending that in the Casual Trading Act, 1980, s. 1

defines-

"'A market right' means a right
conferred by franchise or statute to
hold a fair or market, that is to say a
concourse of buyers and sellers to
dispose of commodities."

Specifically s. 2(2) provides-

"Casual trading does not include-
(h) selling at a market or a fair in
pursuance of a market right."

It is this distinction that the Plaintiff submits his

market right is one derivative from the 1861 Act and in

particular the second proviso of s. 27 thereof which

provides as follows-

"Provided also that it shall be lawful
for the Corporation to retain and use
for the purposes of this Act and as a
market or markets thereunder any market
or marketplace how held or so used by
them. "

This statute is enabling and the section empowers them

to raise Rents, Tolls, Customs and Dues. The power

given in the section to construct the general market

was on the basis that all of the several markets,

21

except the meat market, would be discontinued and

extinguished. I have considered the recent English

case of R (Hayes) v. Stafford Borough Council [2007] 1

WLR 1365 which although considering the question of a

"market" does so in the context of criminal law to

specific statutory provisions. It is a case wholly

distinguishable from that of the Plaintiff in these

proceedings.

The Casual Trading Act, 1995 repealed the Act of 1980

of the same title and while it again defines "market

right" in the same terms as the Act of 1980, it very

pointedly and deliberately removes as an exclusion from

the expression casual trading in s. 2(2) selling at a

market or fair in pursuance of a market right. This

difference from the 1980 Act is fundamental and clear.

In my judgment I find as a fact that other than for the

sale of corn, hay and coal, there was post 1861 no

market at the Parade for the merchandise or the variety

of merchandise contended for by the Plaintiff in this

case and also as a matter of law that the Plaintiff has

no market right at that or any location in Kilkenny.

S. 2(21) of the Casual Trading Act, 1980 and indeed of

1995, which is the referable Act, defines both "casual

trading" as-

"Selling goods by retail at a place,
including a public road to which the

22

public have access as of right, or any
other place that is a casual trading
area."

The decision in Skibbereen UDC. v. Quill [1986] IR 126

referred to in the argument is perfectly understandable

in the context in which it was decided. That concerned

the sale of beads or baubles or other trinkets and

paraphernalia in a market designed for amenities and

commodities of quite a different character.

However, the effect of the 1995 Act is that selling at

a market or fair will still require a casual trading

licence if it comes within the definition of casual

trading, viz. selling goods by retail at a public place

or at any place which is a casual trading area.

Accordingly, even if the Plaintiff has or had a market

right at the Parade, which in my judgment he does not,

it is subject to regulation and requires a casual

trading licence. In this regard Mr. David Kennedy SC

for the Defendant drew my attention to the judgment of

Griffin J in Hand v. Dublin Corporation [1991] 1 IR 409

and the very lucid exposition by Finnegan J (as he then

was) in the first instant decision in Bridgeman v.

Limerick Corporation (The High Court, 2nd June 2002).

The Supreme Court decision affirmed the decision of the

High Court is reported at [2001] 2 IR 517. That case

did not have to consider many of the matters specific

to this case and in my view is quite distinguishable

from the instant case.

23

Insofar as the Market Yard is concerned, there is no

credible sustainable evidence, other than the Country

Market carrying on business in the sheds, of any market

there held since 18th July 1995, the date of the

enactment of the Casual Trading Act, and more

particularly since the coming into effect of the

provisions of s. 7(4) of the Act of 1995.

S.I. 267/1995 - Casual Trading Act, 1995 (Commencement)

Order, 1995, brings into effect all sections of the Act

save ss. 6 and 17(1)(b) on 1st May 1996. S. 17(4) of

the Act provides as follows-

"Where, after the commencement of this
section, a market right in respect of a
market or fair in the functional area
of a local authority remains
unexercised for a period of not less
than 10 years, then the market right
concerned shall stand extinguished."

Other than the colourful attempt to exercise through

one Danny Morris dependent on elements of hearsay

evidence, such market rights as may have existed in the

Market Yard at an unspecified date in 1995 when he was

challenged by a traffic warden on the attempt, no

evidence exists of the exercise of any market right in

the Market Yard.

I am satisfied and find as a fact and as a matter of

law that there was no concourse of buyers or sellers to

dispose of commodities. There is no evidence that on

the date or dates (and this was not clear on the

24

evidence) to which the Plaintiff referred that there

was any concourse or assemblage of people or crowd or

throng. The most the evidence conveyed to me was of a

single seller who sought to assert or establish some

form of market right by a token gesture of presence in

response to either the 1995 Act in 1995 or in 2003 in

response to the correspondence in 2003 which presented

itself as an enquiry referable to historical research.

The only other piece of evidence, somewhat imprecise

(T 18/04/07 p.16 q.86 et seq) was one Thursday in July

of 2003 (date unspecified - see p.17 q.74 l.14, perhaps

19th July 2003, p.17 q.77 l.29 in response to leading

question unobjected by the Defendant). In my judgment

neither of these represent a situation of the carrying

on of a market.

I therefore find as a matter of fact and as of law that

such market right as may have existed in the Market

Yard has been extinguished by operation of law and no

other market right, save such as may be said to exist

there in the sheds, does exist in Kilkenny. There is

no market right in the Parade in respect of any of the

goods sought to be referred to in these proceedings.

END OF JUDGMENT

Approved: TC Smyth J.

MR. JUSTICE SMYTH: That is the end of my

judgment. I realise it is

long. It is written from a range of manuscript notes.

25

It will available, I hope, to the parties within a few

days and I will put the matter in to enable counsel on

both sides to consider the matter, to enable the

solicitors to have a copy of it and to speak to their

clients, and return the matter to this Court for

mention on Wednesday, 27th June.

MR. KENNEDY: May it please the court.

MR. JUSTICE SMYTH: I will have the copy

literally as soon as can

be, and I would be obliged for whoever is taking

responsibility, if it is joint, to see that as soon as

it becomes available, that the stenographer's charges

are discharged for much of the assistance I gained was

from having the transcript because unfortunately so

many of these cases cannot be dealt with immediately at

the end of the hearing, and while one's impressions and

notes don't change of the hearing, the precise wording

of the evidence, which have I have referred to, is

clearly of importance.

MR. KENNEDY: The Defendants will attend

to that, and I will sort it

with Mr. Rogers then. There is the Tralee case, can

that be put in for mention?

MR. JUSTICE SMYTH: I will put it in for

mention on the 27th and see

what people wish to do about it.

THE HEARING WAS THEN CONCLUDED

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