The High Court has allowed Toby Simmonds to amend his claim against Ennis Town Council to directly challenge its 2011 casual trading bye-laws. The case will proceed to trial; the court did not decide whether the bye-laws are valid or whether Simmonds may trade without a licence.
The ruling, delivered by Mr Justice Clarke on 23 March 2012, followed an earlier judgment on two preliminary issues. The court had decided that casual trading legislation applied in principle to traditional franchise markets and fairs. But it also held that a trader’s obligation to obtain a licence depended on valid bye-laws providing for licences, and that a council could not avoid that requirement by failing to adopt such bye-laws.
The council argued that the earlier ruling had determined Simmonds’s claims and that the proceedings should be dismissed. Simmonds opposed dismissal and sought permission to amend his pleadings. The judge found that the existing claim did not directly challenge the validity of the 2011 bye-laws. A reference in his reply to licence fees being ultra vires was an impermissible collateral challenge, the judge said.
Simmonds proposed arguing that the bye-laws unreasonably restricted what and where traders could sell, required advance annual licences, imposed disproportionate fees contrary to the EU Services Directive, and reserved the council’s right to grant or refuse licences. The judge said any challenge had to be set out directly in the statement of claim, rather than in a reply.
The court granted leave to amend the statement of claim on those grounds and directed Simmonds to remove claims inconsistent with the earlier ruling. Any claim that he did not need a licence could continue only as a consequence of an argument that no valid bye-laws allowed licences to be granted. The judge left questions about Simmonds’s standing to raise particular grounds, delay and the merits for trial, finding only that the proposed issues were not entirely without potential merit.
The amended statement of claim was to be filed within four weeks, with the council allowed a further four weeks to amend its defence. The case was directed to proceed to trial in the ordinary way, without another preliminary hearing.
Costs of the preliminary issue were reserved to the trial judge. The council was awarded the costs of its dismissal motion; no order was made on the amendment motion.