The Supreme Court has dismissed Toby Simmonds’s appeal over his claim to trade at Kilkenny’s Parade under historic market rights. It affirmed the High Court’s decision that he had not established a right to sell his Mediterranean foods there.
In a judgment delivered on 8 June 2011, Mr Justice Fennelly said the Kilkenny Markets Act 1861 moved the city’s existing markets to a new general market at the Market Yard. Once that market opened, the Act provided that other markets would be discontinued and extinguished. The Court found that the markets had in fact moved to the Market Yard around 1862.
The Act allowed the Corporation to retain and use any existing market or market place for the Act’s purposes. The Court said this explained the historical sale of hay, straw and coal at the Parade. But it found no evidence that other goods had been sold there after 1861 and before Mr Simmonds began trading in 2003. The Parade trade in hay, straw and coal had also ended by the 1920s.
Mr Simmonds had traded briefly at the Market Yard in 1995 under an agreement with a shopping centre, paying £20 a week for about five months. He later said the arrangement did not work and withdrew. From 2003 he sought to trade at the Parade, where the Council had designated an area for casual trading under the Casual Trading Act 1995. He declined the Council’s invitation to apply for a licence, maintaining that historic market rights entitled him to trade there. In March 2004, Gardaí seized his stall and produce.
The Court concluded that Mr Simmonds had not established a market right to sell his goods at the Parade. It also refused to let him change his case at a late stage of the appeal to seek a declaration concerning the Market Yard, where he had not previously asserted a right to trade.
The ruling did not decide whether market rights may be regulated under the Casual Trading Act, or whether that Act applied to such rights. The Court said those questions did not arise because Mr Simmonds had failed to establish the right he claimed. It dismissed the appeal and affirmed the High Court decision.