High Court of Ireland Decisions

Judgment Title: Pierce trading as Swords Memorials & Anor v The Dublin Cemeteries Committee & Ors

Neutral Citation: [2006] IEHC 182


High Court Record Number: 2000 8719P

Date of Delivery: 11 May 2006

Court: High Court

“… the nature and constitution of the 1846 Committee and as to its power to acquire and provide burial facilities in the County and County Borough of Dublin elsewhere than in the Parish of Glasnevin aforesaid to sell or dispose of land, and to invest or deal with surplus monies.”

Section 17, insofar as it is relevant for present purposes, provides as follows:
“Subject to the provisions of this Act, the Committee shall have, in addition to any other powers vested in or conferred on it by any other provision of this Act power:-

“I take the view, accordingly, that the constitutional right to earn one’s livelihood by any lawful means carries with it the entitlement to be protected against any unlawful activity on the part of another person or persons which materially impairs or infringes that right.”

“I am satisfied therefore that the true position in this case is that the plaintiff is entitled to such an injunction if he can establish that it is the only way of protecting him from the threatened invasion of his constitutional rights. Having regard to the limitation contained in the Act of 1932 on the fine which may be imposed on a person running a road passenger service without a licence and in particular on the minimal figure of £5 in respect of a continued offence, there is in my view no doubt that if the plaintiff is entitled to an injunction it is the only remedy which can protect him.”

“Their real complaint is not that they have to face competition from the defendant building society but that the defendant building society is not a body entitled to be incorporated under the Building Societies Act and is therefore not entitled to compete with the plaintiffs at all. The position, they suggest, is made worse because the defendant building society, by reason of its close association with the Irish Assurance Company Limited, enjoys unfair advantages which, the plaintiffs suggest, can lead to and have led to abuses of building society law. In these circumstances it appears to me that it would be wrong to treat the plaintiffs as if they were mere members of the public. They come before the court as persons with a real grievance arising out of an alleged breach of the law and with a substantial interest in the outcome of the proceedings. It appears to me therefore that if these were certiorari proceedings, the plaintiffs would properly be regarded as persons aggrieved by the decision of the registrar to register the second named defendants as a building society.”

“In my view the plaintiffs come into court with the status of aggrieved persons and with a vital concern in the subject matter of the proceedings. They would therefore have had the status of aggrieved persons in certiorari proceedings and have sufficient locus standi to maintain these present proceedings.”

“Of course, the Attorney-General can maintain such an action irrespective of the fact that the Willesden Urban District Council, who join as relators for the purpose of costs, would have no right of action by themselves.”

The decision of the Supreme Court in the Construction Industry Federation, case in my view, undermines, rather than supports, the defendants’ argument on locus standi. In that case, the Construction Industry Federation brought an application by way of judicial review to quash a decision of Dublin City Council to make a Development Contribution Scheme pursuant to s. 48 of the Planning and Development Act, 2000. The issue of standing arose on the application for leave, the court having to be satisfied before granting leave that the applicant had a “sufficient interest” in the matter to which the application related (O. 84, r. 20(4) of the Rules of the Superior Courts, 1986). The decision of this Court (Gilligan J.) to refuse leave was upheld by the Supreme Court, McCracken J. stating as follows:

“In the present case, the Appellant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost all of its members in the functional area of the Respondent, and therefore the Appellant has a common interest with its members. However, it appears to me that to allow the Appellant to argue this point without relating it to any particular application and without showing any damage to the Appellant itself, means that the court is being asked to deal with a hypothetical situation, which is always undesirable. This is a challenge which could be brought by any of the members of the Appellant who are affected, and would then be related to the particular circumstances of that member. …

… I can see no justification for departing from the normal rule which requires that an applicant for judicial review must have a ‘sufficient interest’ in the outcome of the application, and I cannot see any justifiable basis upon which it can be said that the Appellant has any interest other than its individual members. In the circumstances of this case where there is no reason why one or more of such individual members should not have made this application I would refuse to allow this application and dismiss the appeal on the basis that the Appellant does not have locus standi.”

Ultra vires

The ascertainment of the powers of a statutory corporation and whether a particular activity is intra vires or ultra vires the powers of the corporation are tasks with which the courts are frequently confronted and the proper approach to be adopted by a court to such issues is well settled. In Keane v. An Bord Pleanála [1997] 1 I.R. 184, Hamilton C.J. adopted the following passage from Halsbury’s Laws of England (4th Edition) Vol. 9, para. 133 as a correct statement of the law (at

p. 212):

“The powers of a corporation created by a statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein or is necessarily and properly required for carrying into effect the purposes of incorporation or may be fairly regarded as incidental to or consequential upon those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited.”

“It has long been established as a general principle of the construction of the powers of statutory corporations that whatever may be regarded as incidental to, or consequential upon those things which the legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires (Attorney General v. Great Eastern Railway Company (1880) 5 App Cas 473 at 478).”

The court has been referred to helpful commentaries on private legislation in Collins and O’Reilly on Civil Proceedings and the State, (2nd Edition, Thomson Round Hall, 2004 at chapter 12) and Gwynn Morgan on Constitutional Law in Ireland (The Round Hall Press) at pp. 103 and 104. In both texts, the authors explain the nature of private legislation by reference to Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament Collins and O’Reilly quote the following passage from the 22nd Edition (London, 1997) in which private legislation is defined as follows:

“Private legislation is legislation of a special kind for conferring particular powers or benefits on any person or body of persons – including individuals, local authorities, companies or corporations – in excess of or in conflict with the general law. As such it is to be distinguished from public general legislation, which is applicable to the general community …”

“There are special criteria for the construction of private Acts. These arise because a private Act is essentially a derogation, for the benefit of a few, from the law generally applying. Some private Acts notably estate Acts, are little more than conveyances of land. The ‘little more’ amounts to something which the law precluded the parties from doing for themselves, hence they resort to private Bill procedure. … It follows that estate Acts, which are still passed today, are to be construed more as private conveyances than statutes. …

It has been said of private Acts generally that their wording ‘is to be treated as the language of the promoters of them’. The Act is framed by the very persons who desire that the general law shall be eased in their private favour. So where there is any doubt its language is to be construed against them. The rule is verba cartarum fortius accipiuntur contra proferentem (the words of written instruments are to be taken most strongly against those who put them forward).”

A more recent application of the strict approach to construction of a private statute cited by counsel for the plaintiff is the decision of the Court of Appeal (Civil Division) of England and Wales in The Corporation of London v. The Secretary of State for Environment, Food and Rural Affairs and Covent Garden Market [2004] EWCA Civ 1765. The Covent Garden Market Authority (CGMA) had been established by the Covent Garden Market Act, 1961, by virtue of which a common law market franchise, which had been granted by letters patent of Charles II in 1670, was converted into a statutory market dealing in bulk in horticultural produce. Section 18(1)(f) of the Act empowered the CGMA to “carry on all such other activities as it may appear to the Authority to be requisite, advantageous or convenient for them to carry on for or in connection with the discharge of their duties or with a view to making the best use of any of their assets”, but there was an added proviso that “the Authority shall not … carry on activities with a view to making the best use of their assets except with the consent of the Minister”. In May, 2003 the Minister had purported to grant consent to CGMA granting, or extending the scope of, leases for the purpose of selling fish or meat, or fish or meat products, in such a part of the market area as the CGMA considered to be surplus to its requirements for the purposes of providing market facilities for the dealing in bulk of horticultural produce. The consent was quashed at the suit of the Corporation of London, the owner of Billingsgate Market, where fish is traded, and Smithfield, where meat is traded, in the City of London. Having held that the grant of a franchise to hold a market for the buying and selling of specified commodities does not entitle the grantee to hold a market for the buying and selling of other commodities (para. 50), Sir Martin Nourse continued as follows (at para. 51):

“That having been, in law, the state of affairs subsisting at the time that the power in the second limb of section 18(1)(f) was enacted, what ought we to make of that power? In my judgment Parliament, especially in a private Act, cannot be taken to have intended, by the general words is has used, that CGMA should be able, even with the consent of the Secretary of State, to extend the ambit of their own franchise. As is stated in Maxwell on the Interpretation of Statutes, 12th ed.; p. 262:
‘Perhaps most strictly construed of all enactments are local and personal statutes which, by their very nature, create exceptions to the general law of the realm. The court is entitled to notice that such Acts are framed by those who benefit under them, and to treat them as contracts between their promoters (or that portion of the public which might be directly interested in them) and the legislature. It follows that the maxim verba cartarum fortius accipiuntur proferentem (which is ordinarily inapplicable to a statutory construction) is relevant in the context of this class of statute.’
Although a body established for public purposes, it is CGMA who are the beneficiaries of the 1961 Act. Without clear words, I decline to attribute to Parliament the intention of allowing them, even with the consent of the Secretary of State, to achieve the enhanced monopoly for which no express provision was made.”

s. 16 of the Act of 1970, and its powers, such as the powers of the Committee set out in s. 17. It was emphasised that for an activity to come within the ambit of para. (k) of s. 17 it must be incidental or conducive to the attainment or advancement of an object of the Committee. In relation to the word “functions”, which appears in s. 15, to which I have already referred, and also in s. 8, in which the Committee is mandated to hold quarterly meetings and such other meetings as may be necessary for the due performance of its functions, it was submitted by the plaintiff that it applies to both the objects and the powers of the Committee, citing the decisions of the Court of Appeal and the House of Lords in Hazell v. Hammersmith and Fulham LBC [1990] 3 All E.R. 33 (Court of Appeal) and [1991] 1 All E.R. 545 (House of Lords). While the plaintiff cited the Hazell case with a view to underlining the distinction between the objects and the powers of a statutory corporation, in my view, it contains persuasive guidance as to how the interpretation of the powers of a statutory corporation should be approached.

In Hazell case, which is the leading case in the United Kingdom on the construction of the powers of a local authority, at issue were the powers of Hammersmith and Fulham LBC, which were governed by the Local Government Act, 1972, s. 111 of which provided that, subject to the provisions of that Act, a local authority should have power “to do anything (whether or not involving expenditure, borrowing or lending of money …) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. In the late 1980s Hammersmith and Fulham LBC was involved in a variety of capital market transactions, such as interest rate swaps, swap options and such like. In 1988 the District Auditor challenged the legality of the interest rate swap transactions on the ground that they amounted to speculative trading for profit, following which it ended all further participation in swap transactions and pursued an interim strategy of containment designed to limit the extent of its exposure to losses which had resulted from a rise in interest rates, while gradually extricating itself from the market. It was held by the House of Lords that a local authority had no power to enter into interest rate swap transactions, which by their nature involved speculation in future interest trends, with the object of making a profit in order to increase the available resources of the local authority, because they were inconsistent with the borrowing powers of a local authority as defined and controlled by the provisions of a schedule to the Act of 1972. Specifically it was held that the transactions were not saved by s. 111 since they did not “facilitate” and were not “conducive or incidental to” the discharge by a local authority of the borrowing functions as limited by the Act of 1972. It was also held that, since such transactions were unlawful, the fact that those entered into after the District Auditor’s challenge in 1988 were intended to eliminate or reduce the risks inherent in the earlier stock transactions, did not render them lawful. The House of Lords applied the canons of construction which Hamilton C.J. restated in the Howard case. As to the meaning of the word “functions” in s. 111, Lord Templeman stated (at p. 554):

“I agree with the Court of Appeal that in s. 111 the word ‘functions’ embraces ‘all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it’ … Those activities are its functions. Accordingly, a local authority can do anything which is calculated to facilitate or is conducive or incidental to the local authority’s function of borrowing.”

The plaintiff, in addressing the ultra vires issue, submitted that the question for the court is whether the Act of 1970 gives the Committee the power to sell headstones on a commercial basis. The defendants’ response could be described as non-technical. The Committee has power to manufacture headstones and, it was contended, it cannot have been contemplated that it would not receive payment for the headstones it erected. In any event, it was submitted that the idea of a commercial sale is tautologous.

The plaintiff accepted that, by virtue of para. (i) of s. 17, the Act of 1970 now contains an express power to manufacture headstones, suggesting that this is an innovation and that the 1846 Committee did not have express power to manufacture headstones under the 1846 Act. It is certainly arguable that a strict construction of the wording of s. XVIII of the Act of 1846 supports that last conclusion. Developing his argument, the plaintiff asserted that, because of the innovation in the Act of 1970, one does not have to look to para. (k) of s. 17 to find an incidental power to manufacture headstones, but para. (i) does not confer an express power to manufacture headstones for sale. Therefore, so the argument goes, it is necessary to consider three questions: whether the power to sell headstones –
(i) is expressly conferred by some other provision, or
(ii) is an incidental power, or
(iii) can be implied applying the normal canons of construction.

In relation to the first question, the defendants analysed para. (b) of s. 17. I surmise that para. (b) perpetuates unintended drafting errors, probably typographical errors, in that I would have expected to see the phrase “turn to account” rather than “turn into account”, and I would have expected to see a comma between the word “undertaking” and the word “property”. However, that is conjecture, and I attach no weight to it in construing para. (b). The plaintiff submitted that para. (b) does not empower the Committee to sell a headstone manufactured by the Committee under para. (i). It was submitted that the entire context of para. (b) suggests that it is essentially a power to deal with lands owned by the Committee. I do not accept that argument. In my view, under para. (b) the Committee has power to sell any property which the Committee owns, whether it is office equipment or a lawn mower or, subject to compliance with s. 18, land. The actions enumerated in para. (b) do not relate exclusively to land. Leases and mortgages of chattels are a common phenomenon. On the other hand, “hire” is not a concept which applies in relation to land. The plaintiff submitted that the words “undertaking property” means property properly held for the purposes of the undertaking, thus leading to the conclusion that under para (i) the Committee has power to manufacture headstones only for the purpose of maintaining the cemetery and not for the purpose of sale. It was suggested that this interpretation is borne out by the legislative history and the preamble to the Act of 1970 which indicates that the legislative intent was to clarify existing powers, not to extend them. It was accepted by the plaintiff, however, that in the event of any inconsistency between the operative part of the Act of 1970 and its long title or preamble, the operative part prevails.

The plaintiff’s approach, in my view, is to read something into s. 17 which is not there. The intention of the legislature in enacting para. (i) is quite clear: the Committee has power to construct or manufacture the specified items, including headstones. It has also power to manufacture other structures, but there is an express restriction, in that such structures must be for use or decoration in, or in connection with cemeteries or burial grounds. Because of that restriction, the Committee does not have power to manufacture, say, garden gnomes. There is no other restriction in para. (i) and I can see no basis for reading into it a proviso limiting the power to manufacture headstones for the purpose of maintaining the cemetery. Similarly, I see no basis for reading into para. (b) any limitation on the Committee’s power of sale, other than the limitation stipulated in s. 18 in relation to land. Nothing elsewhere in the Act of 1970 necessitates the implication of any limitation in para. (b) or para. (i) to avoid inconsistency.

In my view, on the plain words of s. 17, the Committee has power to manufacture headstones. Any headstones it manufactures become part of its “undertaking property”. It is entitled to sell any headstones so manufactured by virtue of para. (b). That interpretation is not so wide as to authorise the Committee to do anything, as the plaintiff suggested. The plaintiff does not have power to manufacture garden gnomes and it does not have power to sell garden gnomes. It is not necessary to consider whether, if the Committee manufactured garden gnomes acting ultra vires, it could sell them, but it is clear that, on the authority of the Hazell case, it could not continue to manufacture them with a view to exiting the garden gnome business profitably.

As regards the second and third questions which the plaintiff suggested the ultra vires issue raises, having regard to the view I have taken that, by the combined operation of paras. (i) and (b) of s. 17, the Committee has an express power to sell headstones, these questions are redundant. Nonetheless, for completeness, I will comment on the points made by the plaintiff.

The plaintiff submitted that, if the Committee were constrained to rely on para. (k) as the source of its power to sell headstones, it would have to establish that such power is incidental or conducive to the attainment or advancement of its objects as set out in s. 16. It would not be sufficient for it to establish that the power was incidental to an express power given in s. 17. That submission is undoubtedly correct. If there were no express power to manufacture headstones on the lines of para. (i) of s. 17 in the Act of 1970, in my view, para. (k) would be open to the construction that it empowered the Committee to manufacture and sell headstones for use in cemeteries owned and operated by it. I think it would be questionable whether para. (k) was open to the construction that the Committee could manufacture and sell headstones for use in, say, Lucan or Esker cemeteries. However, in conferring an express power on the Committee in para. (i) the legislature did not limit that power to cemeteries owned and operated by the Committee and I see no reason for reading any such limitation into para. (i).

If either or both para. (i) or para. (b) were not contained in s. 17, and if the issue was whether the manufacture of headstones for sale could be regarded as incidental to, or consequential upon, the objects of the Committee as set out in s. 16, a strict construction of the Act of 1970 would probably lead to the conclusion that such a power could not be implied. But that proposition is entirely hypothetical. The Committee has an express power to manufacture headstones and it has an express power to sell its “undertaking property”. On a literal interpretation of s. 17, the Committee has the power it contends for. Unlike the situations which arose in the Swanage and Covent Garden cases, the defendants are not contending for a construction that would give them a monopoly or an expanded monopoly where the words of the statute do not admit of such privileges. A consequence of the manner in which the Committee exercises its power and regulates inscription on tablets recording communal burials is that it has a competitive advantage over monumental sculptors carrying on business in the Dublin area. However, unless that is otherwise illegal, for example, under competition law, it is permissible.

By way of general observation, to construe the Act of 1970 as not empowering the Committee to manufacture and sell headstones is to insert limitations which are not to be found in the text and to ignore the plain meaning of the text. In form and style ss. 16 and 17 resemble the provisions of a memorandum of association of a company incorporated under the Companies Acts. If the Committee was incorporated under the Companies Acts with similar objects and powers, I doubt if any question would arise as to its power to manufacture headstones for sale.

Conclusion

For the reasons I have outlined, I consider that in manufacturing and selling headstones the Committee is not acting ultra vires its powers.