The Court of Appeal has dismissed an appeal by Olivier Alary, upholding the High Court’s dismissal of his judicial review application concerning a conviction for trading in Bantry without a casual trading licence. The appeal court did not quash the conviction.
Alary was convicted at Bantry District Court on 26 April 2017 of an offence under the Casual Trading Act 1995, arising from trading on 30 September 2016. He was fined €100. The Circuit Court dismissed his appeal against conviction on 21 July 2017. He then sought judicial review, including an order quashing the conviction and challenges to Cork County Council’s casual trading bye-laws.
Alary argued that the bye-laws unlawfully restricted traditional market rights, including a claimed right to trade at Wolfe Tone Square on Fridays. He also relied on historic patents relating to markets on Wednesdays and Saturdays, and later raised an argument based on Magna Carta Hiberniae. The High Court refused permission to add that argument because it had been raised late without good and sufficient reason. It nevertheless addressed the point, concluding that the legislation and bye-laws could regulate any relevant rights.
On appeal, the court agreed that Alary could not introduce the Magna Carta argument without permission. It also rejected the substance of the argument, holding that any rights under the instrument did not override the Casual Trading Act or bye-laws made under it. The historic patents did not assist with a conviction arising from Friday trading.
Cork County Council accepted, for the purposes of the proceedings, that a presumption of a lawful market arose from the long-standing Friday market at Wolfe Tone Square. It argued that the right remained subject to statutory regulation, including the requirement for a licence. The Court of Appeal agreed, relying on an earlier decision that common law market trading falls within the Act’s definition of casual trading and can require a licence.
The court said complaints about whether other traders were treated differently concerned enforcement of the bye-laws and were outside the issues properly before it. It found no error in the High Court’s decision and dismissed the appeal.
On costs, the court stated its provisional view that the council should receive its costs in both the Court of Appeal and High Court. Alary may seek a brief supplemental hearing on costs within 14 days; absent such an application, the proposed costs order will be made.