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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Eastern Health Board v. Cumann Luithchleas Gaedheal Teoranta  IESC 3 (7th July, 1999)
Cite as:  IESC 3
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case stated arose in the course of an Appeal, or series of Appeals, pending
before the learned Circuit Court Judge and concerning the operation of a food
business at the main Cafeteria, Hogan Stand, Croke Park, on the 28th day of
alleged offences concerned breaches of Article 25 of the Food Hygiene
Regulations 1950 [SI No. 205 of 1950] and of Section 54 of the Health Act, 1947
as amended by Statutory Instrument No. 333 of 1991 implementing the EEC
directive No. 89/397/EEC.
alleged offences cover a wide range of breaches of the Regulations ranging from
failing to keep the ceilings of the premises in a proper state of repair,
failure to provide a proper system of ventilation, to allowing clothes to be
stored in a food room and failing to keep ice used in connection with the food
Luithchleas Gaedheal Teoranta (hereinafter called the Defendants) is a limited
liability Company incorporated to hold the property and manage the affairs of
Cumann Luithchleas Gaedheal. Being a limited liability Company it is, of
course, a different person from Cumann Luithchleas Gaedheal and this led to
some confusion in the present case. The Defendants, however, very properly
informed the Court, that they were not taking any point on the distinction
between the Company and the Unincorporated Association.
Defendants substantial defence is that they were convicted as being
proprietor of a food business, carried on in connection with a food premises
situate at Main Cafeteria, Hogan Stand, Croke Park”,
they are not the owners of the said business and that there is no evidence that
they were the owners of the business at the relevant date.
25 of the Food Hygiene Regulations, 1950 provides as follows:-
26 (which deals with a food business carried on from a stall) provides as
27, which deals with a food business carried on otherwise than from a food
premises or a food stall provides as follows:-
should be noticed that the Regulations are primarily concerned with the
obligations of the person who carries on the business whether it be carried on
from a premises, a food stall or otherwise.
26 and 27 may, however, be different from Article 25 in that under the first
two Articles the duty imposed appears to be placed exclusively upon the owner
of the business whereas, under Article 25 an obligation may be placed upon the
owner of the premises as well as upon the owner of the business. There are
times where this distinction may be of no importance as where the owner of the
business is the owner of the premises or where he holds the premises under a
lease or tenancy which gives him exclusive occupation. The situation may,
however, be different where the owner of the business holds merely under a
licence without exclusive occupation.
definitions contained in Article 2 of the Regulations hardly carry this
analysis much further:-
would therefore appear that the word
when used on its own in relation to a food premises means the person who
carries on the food business at the premises but the term
in relation to a registered food premises would appear to mean the proprietor
of the premises themselves.
evidence in the present case is that
was registered on the 23rd January, 1986 in the Register of Food Premises as
being the proprietor of
Main Shop, Hogan Stand, Croke Park, Dublin 3”.
44 paragraph 1 of the Food Hygiene Regulations, 1950 provided that where the
food business in a registered food premises was transferred from the registered
proprietor to another person the registered proprietor should notify the Health
Authority accordingly. However this provision was amended by the Food Hygiene
[Amendment] Regulations, 1971 [SI No. 322 of 1971] whereby a new Article 44 was
inserted in the Food Hygiene Regulations 1950 to replace the original Article
44. Under the new Article 44 the duty of notifying the Health Board of the
transfer of the business is shifted from the transferor to the transferee and
the Chief Executive of the Health Board may, at any time, without application
from the original registered proprietor cancel the registration of a food
premises if he is satisfied that there has been a transfer of the food business
in the premises from the registered proprietor to another person and that that
other person has failed to notify the Health Board of the transfer.
the present case it does not appear that any formal notification was given to
the Health Board of a transfer of the food business. It is quite clear
however that, on the relevant date, the food business in the premises was being
carried on by a company called Concessions Ireland Ltd. So much was admitted
by Ms. Part an official of the Health Board who gave evidence before the
learned Circuit Court Judge. Ms. Part did not however admit that the
Defendants were not also engaged in the food business at the relevant date.
Mr. Michael Lawlor a Director of Concessions Ireland Ltd. was called to give
evidence on behalf of the prosecution and under cross examination he agreed
that his Company, Concessions Ireland Ltd., was the person who carried on the
food business in the relevant premises at the relevant time and that neither
Cumann Luthchleas Gael nor Cumann Luithchleas Gaedheal Teoranta interfered or
attempted to interfere with the running of the business. He went on to say
that Concessions Ireland Ltd. employed all its own staff, it was their business
entirely, and that he had the key to the main Cafeteria and that the GAA could
not enter without his permission.
Mr. Lawlor also said that his Company had held the premises under a
with the Defendants. He had not available to him a copy of this agreement but
he stated that, under its terms, he was precluded from carrying out structural
works in the premises.
was this latter aspect of the case which appears to have caused concern to the
Health Board and perhaps also to the learned trial Judge. But the argument
appears to me to be invalid. My reasons for this opinion are:-