Supreme Court of Ireland Decisions

1. The case stated arose in the course of an Appeal, or series of Appeals, pending before the learned Circuit Court Judge and concerning the operation of a food business at the main Cafeteria, Hogan Stand, Croke Park, on the 28th day of July, 1996.

2. The alleged offences concerned breaches of Article 25 of the Food Hygiene Regulations 1950 [SI No. 205 of 1950] and of Section 54 of the Health Act, 1947 as amended by Statutory Instrument No. 333 of 1991 implementing the EEC directive No. 89/397/EEC.

3. The alleged offences cover a wide range of breaches of the Regulations ranging from failing to keep the ceilings of the premises in a proper state of repair, failure to provide a proper system of ventilation, to allowing clothes to be stored in a food room and failing to keep ice used in connection with the food business clean.

4. Another company, Concessions Ireland Ltd., has been convicted in respect of the same alleged offences upon the same date.

5. Cumann Luithchleas Gaedheal Teoranta (hereinafter called the Defendants) is a limited liability Company incorporated to hold the property and manage the affairs of Cumann Luithchleas Gaedheal. Being a limited liability Company it is, of course, a different person from Cumann Luithchleas Gaedheal and this led to some confusion in the present case. The Defendants, however, very properly informed the Court, that they were not taking any point on the distinction between the Company and the Unincorporated Association.

6. The Defendants substantial defence is that they were convicted as being “the proprietor of a food business, carried on in connection with a food premises situate at Main Cafeteria, Hogan Stand, Croke Park”, whereas they are not the owners of the said business and that there is no evidence that they were the owners of the business at the relevant date.

7. Article 25 of the Food Hygiene Regulations, 1950 provides as follows:-

8. It then sets out a series of matters which the proprietor must attend to.

9. Article 26 (which deals with a food business carried on from a stall) provides as follows:-

10. Article 27, which deals with a food business carried on otherwise than from a food premises or a food stall provides as follows:-

11. It should be noticed that the Regulations are primarily concerned with the obligations of the person who carries on the business whether it be carried on from a premises, a food stall or otherwise.

12. Articles 26 and 27 may, however, be different from Article 25 in that under the first two Articles the duty imposed appears to be placed exclusively upon the owner of the business whereas, under Article 25 an obligation may be placed upon the owner of the premises as well as upon the owner of the business. There are times where this distinction may be of no importance as where the owner of the business is the owner of the premises or where he holds the premises under a lease or tenancy which gives him exclusive occupation. The situation may, however, be different where the owner of the business holds merely under a licence without exclusive occupation.

13. The definitions contained in Article 2 of the Regulations hardly carry this analysis much further:-

14. It would therefore appear that the word “proprietor” when used on its own in relation to a food premises means the person who carries on the food business at the premises but the term “registered proprietor” in relation to a registered food premises would appear to mean the proprietor of the premises themselves.

15. No doubt in many cases the “proprietor” and the “registered proprietor” may be one and the same person but in some cases (of which the present case may be one) they may be different persons.

16. The evidence in the present case is that “Cumann Luthchleas Gael” was registered on the 23rd January, 1986 in the Register of Food Premises as being the proprietor of “The Main Shop, Hogan Stand, Croke Park, Dublin 3”.

17. Article 44 paragraph 1 of the Food Hygiene Regulations, 1950 provided that where the food business in a registered food premises was transferred from the registered proprietor to another person the registered proprietor should notify the Health Authority accordingly. However this provision was amended by the Food Hygiene [Amendment] Regulations, 1971 [SI No. 322 of 1971] whereby a new Article 44 was inserted in the Food Hygiene Regulations 1950 to replace the original Article 44. Under the new Article 44 the duty of notifying the Health Board of the transfer of the business is shifted from the transferor to the transferee and the Chief Executive of the Health Board may, at any time, without application from the original registered proprietor cancel the registration of a food premises if he is satisfied that there has been a transfer of the food business in the premises from the registered proprietor to another person and that that other person has failed to notify the Health Board of the transfer.

18. In the present case it does not appear that any formal notification was given to the Health Board of a transfer of the food business. It is quite clear however that, on the relevant date, the food business in the premises was being carried on by a company called Concessions Ireland Ltd. So much was admitted by Ms. Part an official of the Health Board who gave evidence before the learned Circuit Court Judge. Ms. Part did not however admit that the Defendants were not also engaged in the food business at the relevant date.

19. However Mr. Michael Lawlor a Director of Concessions Ireland Ltd. was called to give evidence on behalf of the prosecution and under cross examination he agreed that his Company, Concessions Ireland Ltd., was the person who carried on the food business in the relevant premises at the relevant time and that neither Cumann Luthchleas Gael nor Cumann Luithchleas Gaedheal Teoranta interfered or attempted to interfere with the running of the business. He went on to say that Concessions Ireland Ltd. employed all its own staff, it was their business entirely, and that he had the key to the main Cafeteria and that the GAA could not enter without his permission.

20. A natural inference to be drawn from this evidence is that Concession Ireland Ltd. had exclusive occupation of the premises and that the Defendants had no part in the running of the business.

21. However Mr. Lawlor also said that his Company had held the premises under a “written agreement” with the Defendants. He had not available to him a copy of this agreement but he stated that, under its terms, he was precluded from carrying out structural works in the premises.

22. It was this latter aspect of the case which appears to have caused concern to the Health Board and perhaps also to the learned trial Judge. But the argument appears to me to be invalid. My reasons for this opinion are:-

23. Mr. Dermot Kelly, S.C. who appeared for the Health Board, very properly drew the Court’s attention to Section 38 s.s. 4 of the Health Act, 1953 which provides as follows:-

24. I would answer the question in the negative.