The High Court has ruled that trading under a common law right at a franchise market falls within the definition of “casual trading” in the Casual Trading Act 1995. The ruling means a trader can be required in principle to hold a licence, but the court did not decide whether Ennis Town Council’s 2011 bye-laws validly apply that requirement to Ennis Market.
Mr Justice Clarke delivered the judgment on 10 February 2012, after a trial of two preliminary issues in proceedings brought by Toby Simmonds and, by order, The Real Olive Company Limited against Ennis Town Council. The court was asked whether the 1995 Act covered trading at a franchise market and whether the plaintiffs could sell produce at Ennis Market without a current licence.
The judgment records that the market is held on Saturdays under rights granted by patents in 1610 and 1835, and that Ennis Council acquired the market rights in 1907. The council’s 2011 casual trading bye-laws came into operation on 1 October that year, replacing 1988 market bye-laws. The dispute followed an incident on 5 November 2011, when traffic wardens and gardaí prevented Mr Simmonds from setting up his stall.
Mr Simmonds argued that franchise market trading was distinct from casual trading and that licensing rules should not diminish established market rights. The council argued that the Act’s broad definition—selling goods where the public has access as of right—covered trading at the market.
The judge accepted the council’s interpretation of the definition, while finding that the Act must be read with limits on local authorities’ regulatory powers. A council cannot designate a casual trading area that excludes part of an existing franchise market unless it follows the Act’s process for extinguishing the market right and providing qualifying alternative facilities. The judgment also noted that the licensing requirement cannot operate in practice without valid bye-laws providing a mechanism for licences.
Accordingly, the court answered the first preliminary issue in the council’s favour. On the second, it said the plaintiffs were not entitled in principle to trade without a licence, but made that conclusion subject to valid bye-laws consistent with the Act as interpreted. It did not decide whether Ennis’s 2011 bye-laws met that test, saying the issue had not been argued and would require a plenary hearing. The court also left open possible limits on licence fees and on refusing licences to established market traders.