The High Court has dismissed Olivier Alary’s application to quash his conviction for trading at a Bantry market without a casual trading licence.
In an ex tempore judgment delivered on 24 July 2018, Mr Justice Noonan refused an extension of time for Mr Alary to rely on new grounds he attempted to add in May. The court also considered those grounds on their substance and found no basis for relief.
Mr Alary, a French national residing in Edinburgh, sold baked goods at a public market at Wolfe Tone Square in Bantry on Friday, 30 September 2016. He did not hold a licence required under the Casual Trading By-Laws Bantry 2014. The District Court convicted him, and the Circuit Court affirmed the conviction and €100 fine on 21 July 2017.
In his original judicial review grounds, Mr Alary said other people trading without licences had not been prosecuted. He also relied on a claimed market right said to derive from a 1679 patent, allowing trading at Wolfe Tone Square on Wednesdays and Saturdays. The judge noted that the conviction concerned a Friday and Mr Alary conceded that this ground could not assist him in the circumstances.
Leave to seek judicial review had been granted on 22 January 2018, outside the three-month period. The respondent did not contest an extension for the original challenge, and the judge said he would grant it. The later grounds, however, were added without the court’s permission. The judge held that being unaware of the rules as a lay litigant was not a good and sufficient reason for the delay, and that the circumstances were not outside Mr Alary’s control or reasonably unforeseeable. He said the time limits under Order 84 had the same status as statutory time limits.
The new grounds included a claim that Magna Carta Hiberniae established a right to trade without a licence. The judge said the contention that it displaced the Casual Trading Act 1995 and related by-laws was unsustainable. He expressed no view on whether Magna Carta Hiberniae applied. He also said a constitutional challenge to legislation could not be entertained in proceedings where Ireland and the Attorney General were not parties.
Relying on the High Court’s earlier decision in Simmonds v Ennis Town Council, the judge said common law trading at a market or fair falls within casual trading and can require a licence. He dismissed the application, finding that none of the grounds, including the late-added grounds, entitled Mr Alary to relief.