The Gazette 1983

JANUARY/FEBRUARY 1983

GAZETTE

1927 Act to be a Restaurant. Whether such services are sufficiently available to the public within permitted hours to indicate that the premises are bona fide and mainly used for supplying substantial meals to the public is a matter of inference from evidence of use. A court might take the view that there are special circumstances of the location and pattern of public resort thereto which might justify the Licensee as a matter of prudence not to keep his premises continuously open during all permitted hours for supplying substantial meals to the public. On the other hand the Court might take the view, taking all the circumstances into consideration, that members of the public resorting to the premises have insufficient opportunity to avail of the services of substantial meals and consequently the premises are not bona fide or mainly used as a Restaurant. The Court answered the queries of the District Justice as follows:— 1. It is not obligatory on the court to grant the Application with no more than the absence of objection by the officer in charge of the Garda Siochana for the Licensing area. 2. The supply of substantial meals at p r i v a te f u n c t i o ns or in circumstances provided for by exemption orders should not be taken into account. 3. The Supply of substantial meals to racegoers on race days should be taken into account. 4. As the circumstances relating to the supplying of meals as set out in paragraph 4 differs significantly as between exempted and non exempted functions it is not possible to answer this query in the form posed. Regard should be had to the reference in the foregoing opinion to the opportunities available to the public as a matter of their choice as against restrictive qualifications imposed by the user of the premises. 5. As some of the relevant evidence in this case was adduced after the questions were submitted the Court left the final question unanswered and remitted the case to the District Justice with the Courts opinion as aforesaid and the answers to the other queries. In the matter of Section 12 of the Intoxicating Liquor Act 1927 (Patrick Walsh Applicant). (The High Court) (per Gannon J.) — 30 November 1981 — unreported. Thelma King

whether a restaurant business is carried on for the purpose of the said section. 4. Are the meals supplied as set out in paragraph 4 hereof supplied to the public within the meaning of the said section. 5. On the facts stated in paragraph 4 hereof is the Applicant entitled in law to the Certificate sought." In the High Court, Counsel for the Applicant argued that in this case the principal difficulty was as to whether or not the meals supplied were supplied to the public. No question arose in this case as to whether or not the premises were structurally adapted for use as a restaurant but a question did arise as to whether it was ^ bona fide and mainly used for such purpose. The Court Held that an application for a renewal of an On Licence with a Certificate under Section 12 of the 1927 Act, the Applicant must be able to show, if so required, that apart from lawfully exempted occasions or events he has used his premises bona fide and mainly for supplying sub- stantial meals to the public. Normally the assurance by the officer in charge of the Garda Siochana of the Licensing area that there has been no departure by the Licensee in the use of his premises from the qualifica- tions prescribed by the statute should suffice. In case of doubt, as for example, if meals are supplied only in circumstances provided for by Exemption Orders and private func- tions and not otherwise, evidence should be offered on behalf of the Applicant, with the assistance of the Garda Superintendent by observa- tion. Explanation or evidence should be given to the Court. It is not sufficient for the Superintendent to say "I am leaving it to the Court" as happened in this case. The District Justice has no investigative function and is dependent entirely upon the evidence adduced before him. Court. It is not sufficient for the Superintendent to say "I am leaving it to the Court" as happened in this case. The District Justice has no investigative function and is dependent entirely upon the evidence adduced before him. In relation to the premises the subject matter of this application it appears to have been constructed at a site where it is reasonably anticipated that members of the public will attend in large number for race meetings and will require substantial meals and other refreshments. If members of the public attend for other reasons they should be able to find the services of a licensed premises certified under the

PRACTICE — SOLICITOR'S COSTS It is not the function of the Taxing Master to assess the nature, quality or value of work done by Council in relation to the conduct of a case. The Taxing Master's rulings on Solicitor's costs in High Court proceedings are sub- ject to review by the Court whether for error in principle or not. The matter came before the High Court by way of Application pursuant to Order 99 rule 38 of the Rules of the Superior Courts by the Solicitor for the prosecutor for a review by the Court of the Certificate of the Taxing Master in respect of the taxation of costs awarded to the prosecutor. The prosecutor had obtained a conditional order of certiorari quashing an order discharging him from the Defence forces upon the alleged grounds that his military service was unsatisfactory. The prosecutor had also been successful in making the conditional order absolute. The first named respondent appealed unsuccessfully to the Supreme Court and that Court affirmed the High Court Order and awarded the prosecutor the costs of his appeal. In due course the prosecutor's Solicitor proceeded for the taxation of his costs before the Taxing Master. The Taxing Master made certain dis- allowances in relation to (A) the Solicitor's own charges which resulted in reductions of the Solicitor's instructions fees and disallowances for attending certain consultations, for attending on Counsel in Court on two unsuccessful ex-parte applica- tions, for attending Counsel for the settling of draft notices of motion and certain affidavits and, (B) reductions in disbursements made by the Solicitor which consisted of dis- allowances of fees paid to Counsel for attending certain consultations, for settling draft affidavits, for settling a draft notice of motion, fees on briefs, the preparation of a list of Authorities for Court reference and postal charges. In ruling on the application the Court held that (1) It is not the function of the

Taxing Master to assess the nature or value of the quality of the work done or required to be done by Counsel in preparing for Court hearing or in the conduct of cases in Court. The case of Dunne-v-O 'Neill [ 1974] IR 180 applied.

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