Supreme Court of Ireland Decisions

1. The extensive grounds and buildings owned by the appellants (“the RDS”) at Ballsbridge include a large indoor arena known as the Simmonscourt Pavilion (“the pavilion”). This was built in the mid-1970s, principally to accommodate exhibitions such as that associated with the famous Spring Show, stabling for that show and the equally celebrated Horse Show, and bloodstock sales. When planning permission was sought for the building from Dublin Corporation, it was stated that it would also be suitable for other uses, such as

2. In or around the month of July 1993, the RDS decided to upgrade the facilities at the Simmonscourt Pavilion. This was with a view to meeting what was seen as an increased demand for the holding of concerts, ice-shows, operas and other public entertainments in the pavilion which would require large covered spaces. Permission was granted by the Corporation for the erection of a single storey meeting room, dressing rooms and toilets at the rear of the pavilion and a fire safety certificate pursuant to the relevant legislation was also granted by the Corporation. The cost of upgrading the pavilion in order to make it suitable for such purposes amounted to £691,000.

3. The pavilion could not be used for the contemplated new range of activities unless a public music and singing licence was first obtained in the District Court pursuant to s.51 of the Public Health Acts Amendment Act 1890 ("The 1890 Act”). Such a licence was duly applied for and granted by the District Court.

4. The RDS then entered into correspondence with the excise licensing section of the Respondents with a view to obtaining a licence for the sale of intoxicating liquor in the pavilion under s.7 of the Excise Act 1835 (“the 1835 Act”). This is a form of licence generally, and in this judgment, referred to as a

5. “theatre licence”. In a letter of the 8th August 1994, the deputy chief executive of the RDS, Mr. Gerry McAuliffe referred to a number of what he described as major theatrical and stage events which had already been held in the pavilion, including the Bolshoi and Kirov Ballets, the Sofia National Opera, Walt Disney’s World on Jce show (on three occasions), the Moscow State Circus, the Eurovision Song Contest, (twice), Luciano Pavarotti, Neil Diamond, John Denver and Chris de Burgh. He also referred to other entertainments which had taken place there such as Funderland, the TSB Women’s Tennis Classic, boxing matches, basketball matches and Holiday World. In their reply, the Respondents sought further details as to what the RDS had in mind and also asked for facilities for inspection by one of their officers. In particular, they required information as to the proposed events for 1995. In his reply, Mr. McAuliffe indicated that the only events in respect of which there were bookings at that stage were Funderland, Holiday World, The Farm Machinery Show, the Brighter Homes and DIY Exhibition, the “Head to Toe” Fashion Show, The Kerrygold Horse Show and Walt Disney’s World on Ice Show. On the 27th April 1995, the Respondents replied as follows:-

6. ‘‘The Revenue Commissioners have examined your clients’ application for a licence in the light of the judgment of Mr. Justice Geoghegan referred to above and having regard to the activities currently being held in your clients’ premises.”

7. On the 27th of April 1996, the Chief Executive of the RDS, Mr. Shane Cleary, wrote to the Respondents inviting them to reconsider their decision, inter alia on the following ground:-

8. In their reply of the 8th July 1996, the Respondents maintained their position that the RDS were not entitled to a theatre licence under s.7 of the 1835 Act.

9. On the 12th May 1997, the RDS were granted leave to apply by way of judicial review for, inter alia , the following relief:-

10. Leave was granted on the grounds that:-

11. A Statement of Opposition having being filed on behalf of the Respondents, the application came on for hearing before Barr J. In a reserved judgment, he dismissed the application on the ground that the Respondents were correct in law in refusing to grant a licence under s.7 of the 1835 Act in respect of the pavilion. From that decision, the RDS have now appealed to this court.

12. Before considering the submissions advanced on behalf of the RDS and the Respondents, I should set out the provisions of the relevant legislation.

13. Section 7(1) of the 1835 Act is as follows:-

14. In Ireland, the words “any theatre established under a royal patent” must be taken as a reference to the power conferred on the crown by s. 1 of the Dublin Stage Regulation Act 1786 to grant letters patent for the establishment or keeping of theatres in the City and County of Dublin.

15. Section 5 1(1) of the 1890 Act provides that:-

16. The same Act conferred a new jurisdiction on the District Court to grant public dancing licences and set out in s.2(2) a wide range of factors to which the district judge is to have regard in deciding whether to grant the licence or not. While they were referred to in the course of the arguments, it is quite clear

17. The provisions of the Intoxicating Liquor Act 1927, which were referred to in the course of argument, should also be mentioned. Under s.21(l) the provisions of the Act in relation to prohibited hours are not applied to a theatre”, which is defined in s.l(l) as

18. S.21 goes on to prohibit the sale of intoxicating liquor in a theatre at any time other than during a “permitted time” which is defined as a period beginning half an hour before the commencement of a performance in the theatre and ending half an hour after the termination of the performance. S.20(l) provided that no person is to be admitted to the theatre after half past nine in the evening unless either

19. The circumstances under which a theatre licence could be granted under s.7 of the 1835 Act were considered by Geoghegan J in The Point Exhibition Company Limited v. The Revenue Commissioners [1993] 2 IR 551 , the decision referred to by the Respondents when refusing the application by the RDS in the present case. The owners of The Point, a venue used for a range of different activities including pop concerts and exhibitions, had applied for a licence under s.7, but at the date the proceedings came before the High Court the Respondents had not made any decision as to whether it should be granted.

20. The first question which the learned judge had to resolve in that case was whether s.7 had been repealed by implication by the Licensing Act 1872 insofar as it applied to places other than “theatres”. That question was of importance because of his conclusion that The Point was not a “theatre” within the meaning of s.7 and hence could only be licensed under s.7 of the 1835 Act, if the words permitting the licensing of such “other place(s) of entertainment”

21. On the question as to whether The Point was such a “place of public entertainment”, Geoghegan J expressed his view as follows:-

22. The final question considered by Geoghegan J in that case was whether The Point was “licensed by the... Justices of the Peace” within the meaning of s.7, the owners having been granted, as have the RDS in the present case, a public music and singing licence under s.51 of the 1890 Act. He concluded

23. In the present case, Barr J held that the RDS, having obtained a music and singing licence, had complied with a condition precedent for an application under s.7 of the 1835 Act. However, he also held that the expression “theatre or other place of public entertainment” in s.7 was governed by the eiusdem generis rule of statutory interpretation. Having referred to the fact that what he described as a “substantial majority” of the events at the pavilion are trade or other exhibitions, most of which usually continue all day or even for a period of days, he went on:-

24. Having concluded that the preponderance of events in the pavilion, as envisaged by the RDS, were outside the parameters of s.7, the learned High Court judge held that the Respondents were obliged to refuse to grant the licence sought.

25. On behalf of the RDS, Mr. John Gordon, SC submitted that the ejusdem g eneris rule did not apply to the expression “theatre or other place of public entertainment”. He said that, for the purposes of that rule, a genus could be constituted only by the enumeration of a number of classes followed by the words “and other”, but could not be constituted by the mention of a single class (in this case theatres) followed by those words, citing in support Allen v. Emmerson [1944] 1 KB 362 .

26. He said that the learned High Court judge in the present case, because of a mistaken application of the eiusdem generis rule, had construed the expression “places of public entertainment” in an unduly restrictive manner and, in particular, had attached too much importance to the fact that events

27. Mr. Gordon submitted that, altogether apart from those considerations, the pavilion had been found to be a place of public entertainment by the District Court. The issue as to whether the pavilion was a place of public entertainment having been conclusively determined by a court of competent jurisdiction, the Respondent could only lawfully exercise their jurisdiction under the 1835 Act by granting the licence. He cited in support a dictum of Barron J speaking for this court in DPP v. Tivoli Cinema Limited [1999] 2 ILRM 153.

28. On behalf of the Respondents Mr. Iarflaith O’Neill, SC submitted that the ejusdem generis rule was applicable to the expression “places of public entertainment” since it was preceded by two classes, i.e. theatres established under patent and other theatres. He further submitted that the wording of s.7 of the 1835 Act, providing that it should be lawful for his clients to grant licences made it clear that the Respondents had a statutory discretion as to whether to grant the licence in any particular case. That required them to consider the circumstances of each particular case, and, unless it could be shown that their decision was irrational within the criteria laid down in The State (Keegan & Lysaght) v. The Stardust Victims Compensation Tribunal [1986] IR 642 , the court should not interfere. He also urged that any error the Respondents might have made was an error within their jurisdiction which did not appear on the face of the record and that, accordingly, certiorari did not lie, citing the judgment of Henchy J in the decision of this court in The State (Abenglen Properties Limited) v. Dublin Corporation [1984] IR 381 .

29. Mr. O’Neill further submitted that the grant by the District Court of a public music and singing licence, while undoubtedly a condition precedent to the granting of a licence under s.7 of the 1835 Act, did not conclusively determine the question as to whether the pavilion was a “place of public entertainment”. That determination was reached by the District Court under an entirely different code and did not affect the clear discretion conferred on the

30. Respondents by the earlier Act to determine whether a particular premises was a “place of public entertainment” within the meaning of s.7.

31. In considering these submissions, I think it is probably convenient to deal first with the question as to whether, assuming the decision of the Respondents to have been based on a mistaken view of the law, relief by way ofjudicial review is available to the RDS.

32. The activity which the RDS wish to carry on, i.e. the sale of intoxicating liquor to the public, is regulated in these islands by a licensing code, stretching back over the centuries, of labyrinthine complexity. It is not, however, an activity of so essentially anti-social a nature that of its nature it demands regulation to that degree and in other civilised societies, including many of the member states of the European Union, it is far less rigorously controlled. While the Oireachtas and its predecessors, as they were entitled to, have taken the view that it should be severely restricted, it would seem to me that, in the case of provisions such as that under consideration in the present case, a citizen who wishes to carry on the activity in question and appears to meet the requirements of the particular provision, should not be deprived of his right to carry it on because the authority from whom he must obtain the licence acts on an erroneous view of the law. That is a consideration of particular importance where, as here, the statute provides no appeal machinery and, unless the wrongful adjudication can be set aside by the High Court in the exercise of its

33. The Respondents also sought to rely, as already indicated, on the judgment of Henchy J in The State (Abenglen) Properties Limited) v. Dublin Corporation . That was a case in which this court refused to quash a planning

34. In the remainder of his judgment, the learned judge adduced other reasons which, in his view, disentitled the developers to the relief which they sought and this passage in his judgment did not form part of the ratio of the decision of the majority of the court. However, for the purposes of this case, it is sufficient to say that, first, for the reasons I have already explained, there was no question of the Respondents in this instance being entitled to err within jurisdiction as there was in the Abenglen case. Secondly, the “record” in that case was the decision of the planning authority pursuant to the terms of the statute which contained no error of law on its face: the “record” in this case was the letter of the 27th April 1995 containing their decision that a licence could not be granted and expressly stating that the reason was that the pavilion was not a “place of public entertainment” within the meaning of s.7. In the present

35. The next question, accordingly, is as to whether that determination was erroneous in point of law. Barr J was satisfied that it was not so erroneous because, applying the ejusdem generis rule, the pavilion could not be said to be a “place of public entertainment”.

36. It would appear from his judgment that the learned High Court judge was not referred to the decision of the King’s Bench Division in England in Allen v. Emmerson . That was a case in which the court was concerned with the construction of the words “ theatres and other places of public entertainment ” in a local Act which prohibited their being opened without having being first licensed by the local authority. The proprietors of a fun fair were prosecuted for not having such a licence but the case was dismissed by the justices on the ground that the fun fair was not a “place of public entertainment” within the meaning of the Act.

37. Giving the judgment of a divisional court, Asquith J said that the e!usdem generis rule did not apply to the expression in question and gave three reasons for so holding. The first was referable to certain words in brackets which do not appear in s.7. The other reasons were as follows:-

38. In that case, the divisional court concluded that the fun fair was a “place of public entertainment” within the meaning of the local Act.

39. The law is thus stated in Bennion on Statutory Interpretation 2nd edition, 1992, at pp 860/3:

40. In the case referred to by Asquith J in Allen v. Emmerson, (Anderson v. Anderson) Rigby LJ said (at p. 755) :-

41. I am satisfied that the decision in Allen v. Emmerson is applicable to the present case and should be followed. It is correct in principle and is in accordance with the principles of statutory interpretation set out in the authorities to which I have referred.

42. Mr. O’Neill sought to distinguish Allen v. Emmerson on the ground that in s.7 a second genus is mentioned i.e. “theatre established under a royal patent”. However, if one has regard, as one must, to the punctuation of the section, it is clear that the genus, if such it be, consists of the word “theatre” which immediately precedes the expression or other place of public entertainment”. In any event, the reasoning of the divisional court in Allen v. Emerson would be equally applicable where the suggested genus simply

43. I am satisfied, accordingly, that the learned High Court judge erred in law in applying the ejusdem generis rule to the construction of these words. That in turn led him to adopt what is clearly an unnecessarily restrictive view of the expression “other place of public entertainment”. Specifically, it is quite clear that a place to which the public are admitted on payment of whatever is the appropriate charge - it may be even without charge - and where activities are carried on which could be broadly described as “entertaining” is entitled to be described as a “place of public entertainment”. To confine it to premises which resemble theatres in having designated seating areas for the accommodation of audiences who view particular spectacles over a limited period of time, usually a few hours, would only be appropriate if one were applying the ejusdem generis rule. Thus, exhibitions featuring particular trades or activities, whether it be motor cars, tourism or whatever, to which the public are admitted can appropriately be described as “entertainments”: common sense suggests that they are attended by many members of the public who have no intention of buying any of the products or services on offer, but who find it a pleasantly diverting way of spending a few hours.

44. That conclusion is unaffected by the fact that the premises may also be capable of being used for purposes which could not be described as

45. It is also clear that the provisions of the Intoxicating Liquor Act 1927, to which I have already referred, are worded in a manner which would suggest that the draftsman had in mind seated audiences in a theatre of the conventional type. However, as the judgment of Barron J in DPP v. Tivoli Cinema Limited made clear, that is entirely consistent with a “place of public entertainment” within the meaning of s.7 not affording seating to its patrons for particular events.

46. In the present case, it is not in dispute that the RDS expended a substantial sum of money on adapting the pavilion so that it would be suitable for the holding of events which, beyond argument, are public entertainments, such as opera, ballet, pop concerts etc. They obtained all the appropriate permissions from the local authority under the planning and fire services code and satisfied the criteria which the District Court is obliged to apply in deciding

47. That, in my view, was a mistaken approach for the Respondents to adopt. Pressed to its logical conclusion, it would mean that an entrepreneur who had obtained all the necessary permissions, including a public music and singing licence, and then proceeded to expend large sums of money on the construction of a new building clearly capable of being described as a “place of public entertainment” could be deprived of a licence by the Respondents simply because he was not in a position to satisfy them that the building had been used in the past for “public entertainments”, which would be manifestly impossible to demonstrate since on the assumption I have made it was not yet built. Equally, he might be unable to satisfy them that it would be so used in the future until he was equipped with a theatre licence and in a position to compete

48. Counsel on behalf of the RDS indeed submitted that, once the District Court had found the pavilion to be a place of public entertainment, the Respondents were automatically obliged to grant the theatre licence sought. I do not think it is necessary to go that far. The Intoxicating Liquor Acts constitute a separate and distinct code from the code of which the 1890 Act forms part and the Respondents are entitled to satisfy themselves in every case that, having regard to the appropriate criteria to which I have referred, the premises sought to be licensed are indeed a “place of public entertainment” within the meaning of s.7 of the 1835 Act. No doubt, in practical terms, their task will be greatly simplified by the fact that the premises in question have not merely been granted all the relevant permissions by the local authority but in addition have been granted a public music and singing licence by the District Court and, by implication, designated a place of public entertainment by that court. But that is not to say that, as a matter of strict law, their jurisdiction is effectively pre-empted by the decision of the District Court. While Barron J in DPP v. Tivoli Cinema Limited said that “[a]s the holder of such a [music & singing licence] the defendant was entitled to and obtained a licence under s.7

49. I would allow the appeal and substitute for the order of the High Court an order of certiorari setting aside the decision of the Respondents to refuse to grant a licence under s.7 of the 1835 Act. I am sure that the Respondents would then proceed to grant the necessary licence and that, accordingly, an order of mandamus is not necessary in the circumstances.