Supreme Court of Ireland Decisions

1. This matter comes before the Court by way of a Consultative Case stated by Kearns J pursuant to the provisions of s. 38 (3) of the Courts of Justice Act, 1936. The questions raised by the Case concern the proper interpretation of the Licensing (Ireland) Act, 1902, s.6 as amended by the Intoxicating Liquor Act, 1960, s.4.

2. The history of the matter is set out fully in the case as stated but the material facts may be summarised as follows. Hannigan Holdings Ltd (Hannigan Holdings) applied to the Circuit Court at Naas by notice dated the 8th day of April, 1988, pursuant to s.6 of the Act of 1902 for, inter alia, a certificate entitling them to receive a new seven day publicans on licence in respect of certain premises therein described as comprising:- [*2]

3. The application was opposed by a number of residential objectors, certain licensed vintners and the Garda Siochana. The application was refused by His Honour Judge Raymond Groarke for the reasons set out in a reserved judgment dated the 14th day of December, 1998. The order and judgment of the learned Circuit Court Judge was appealed to the High Court and in the course of hearing that appeal Kearns J decided to state a Consultative Case and to pose for the consideration of this Court the questions raised therein.

4. The premises in respect of which the new licence is sought are delineated on the plans annexed to the Case Stated. They comprise the premises on the said plans coloured blue (the blue buildings) and the premises coloured yellow (the yellow buildings). An underground tunnel connects the blue buildings to the yellow buildings. The tunnel is identified on the ground floor plan by two red broken lines. The blue buildings represent the original licensed premises together with a substantial extension to the rear which was constructed during the year 1990/1991 and licensed by the Circuit Court as so extended in that year pursuant to s.6 of the said Act of 1902. In October, 1996, planning permission was obtained by Hannigan Holdings to replace derelict buildings with what are now the yellow buildings. A tunnel was [*3] then constructed from the blue buildings to the yellow buildings and planning permission obtained for that development. The Case Stated records that the tunnel was constructed in pursuance of legal advice. In my view that is not a material consideration.

5. What is apparent from the plans exhibited in the Case Stated, and more particularly from an aerial photograph handed into Court for the purposes of illustration, is that the blue buildings are separated from the yellow buildings by a roadway leading to a substantial private car park to and from which there is no other vehicular access or egress. The roadway separating the premises is of considerable width. It permits motor cars to be parked perpendicular to the blue buildings and yet allows ready access to the car park. The nature, purpose and effect of the relationship between the blue buildings and the yellow buildings and the connection between them is set out in three paragraphs of the Case Stated as follows:-

6. In these circumstances the learned High Court Judge posed nine questions; eight of which related directly to the phrase "premises attached to or adjoining premises licensed for the sale of intoxicating liquors" (and the component parts thereof) as it occurs in s.6 of the Act of 1902 as amended by the Act of 1960 s.24. That Section (as amended) reads as follows:-

7. The Gardai had opposed the application for the new licence in the Circuit Court on the ground that the yellow buildings were not premises "attached to or adjoining premises licensed for the sale of intoxicating liquor " and also for reasons connected with the manner in which the licensee carried on his business in his existing premises (the blue buildings). However, the argument specifically recorded in the Case Stated on behalf of the Gardai was based on the layout of the two buildings and the entrances and exits thereto as a result of which it was contended on behalf of the Gardai that:-

8. The other objectors argued that the yellow buildings and the blue buildings were separate and distinct buildings and that the yellow buildings could not be regarded as “ attached to or adjoining" the existing premises. In particular it was argued that the words "attached to or adjoining" in s.6 of the Act of 1902 (as amended) could not be construed in isolation from the terms of the proviso to that Section. The questions posed by the learned trial Judge at the request of the parties were as follows:- [*6 ]

9. Yellow Building pursuant to Section 6 of the said Act constitute one distinct whole capable of being licensed as one unit?

10. The learned trial Judge recognised that the proviso would be fundamental in any event in determining whether or not a licence should be granted in the present case. He dealt with the matter in the following terms:

11. In fact Counsel appearing for both sets of objector conceded that the words "attached to or adjoining" should be read disjunctively. In my view that concession was necessarily and properly made and I would answer the questions raised on that issue accordingly. [*8 ]

12. Before turning to the propositions of law which have been established by successive decisions of Courts in this country. I think it would be helpful to record that s.6 of the Act of 1902 as originally enacted provided that:-

13. Nothing was said by the other judges of the Kings Bench Division or by the Court of Appeal to cast doubt upon the correctness of that analysis.

14. The applicant sought and obtained a conditional order of certiorari. Cause was shown on behalf of the Circuit Court Judge and the Attorney General and also on behalf of two [*12] objectors. The cause shown was unanimously allowed by the Divisional Court. O'Byrne J expressed his judgment succinctly as follows:-

15. The judgment of the High Court was unanimously reversed by the former Supreme Court for the reasons explained by Fitzgibbon J in the following terms:-

16. In his judgment Murnaghan J stated:- [*13]

17. That indeed was the rule of construction applied by O'Higgins J (as he then was) in McElvaney v. The Licensing Acts (Unreported delivered on 2nd April, 1974). In that case the [*14] applicant sought a declaration under a. 15 of the Intoxicating Liquor Act, 1960, that certain premises at Dawson Street in the town of Monaghan would be fit and convenient to be licensed pursuant to s.6 of the Act of 1902. The applicant was at the time of application the owner of licensed premises known as the Courthouse Bar in Church Street, Monaghan. The application was to extend the then existing licence to premises of the applicant in Dawson Street, Monaghan. No part of the premises in Church Square were attached to the premises in Dawson Street and the two buildings were separated from each other by other buildings and by two open spaces or gardens. The argument on behalf of the applicant appears to have been that the open spaces which adjoined the two buildings bordered one on the other. It was submitted that this was sufficient compliance with s.6. Having considered the legislation as a whole and the relationship of the word "attached" to the word "adjoin” the learned Judge went on to express his view in the following terms:-

18. Later in his judgment the learned Judge made the following helpful observation:-

19. Before attempting to apply to the present case of the principles established by the decisions cited above it is important to consider one further issue of law, namely, the extent to which recourse may be had to a proviso for the purpose of interpreting terms contained in the substantive part of a section of an Act. Counsel on behalf of Hannigan Holdings relied on the decision of the House of Lords in The Guardians of the Poor of the West Derby Union v. The Metropolitan Life Assurance Societ y [1897] AC 647 to preclude reliance on a proviso for the purpose. Counsel on behalf of the Gardai relied on the decision in the House of Lords in Jennings v. Kell y [1940] AC 206 to permit it. In the West Derby Union Case, the House of Lords were considering the proper interpretation of s.2 of the Poor Law Loans Act of 1871 and in particular whether that section permitted the Poor Law Board to redeem a security as against an unwilling creditor. The Section itself gave no such power and the proviso thereto was, at best, ambiguous. Lord Watson explained (at page 652):-

20. Whilst that part of the sentence supports the argument propounded on behalf of Hannigan Holdings the sentence itself goes on to say:- [*16]

21. It seems to me that the Act of 1902 as amended by the Act of 1960 provide, and the Authorities discussed above establish, the following propositions:-

22. With regard to the particular questions which were raised by the Case Stated in response to the different demands of the interested parties I would comment as follows :