The Gazette 1983

GAZETTE

JULY/AUGUST

1983

District Court dismissing two sum- monses. On 9 January, 1980 Murtagh Properties Limited ("the Company") appeared before the District Court as Defendants on a Six Count Summons alleging that they being the holders of an On-Licence in respect of the premises had unlawfully: 1. Sold Intoxicating Liquor. 2. Opened the premises for sale of Intoxicating Liquor. 3. Kept open their premises for the sale of Intoxicating Liquor. 4. Exposed Intoxicating Liquor for Sale. 5. Permitted Intoxicating Liquor to be consumed on their premises. 6. Permitted persons to be on the premises contrary to the form of the Statute in such case made and provided. At the same Court, Thomas Wright appeared as a Defendant in a Summons in which he was named as Thomas Wright (Nominee of Murtagh Pro- perties Limited) alleging that he had aided and abetted the Company in the commission of the offences at the same premises. It was proved that the Company was incorporated on 21 March, 1963, and had been since 1972 and was the owner and occupier of "The Sheaf O'Wheat"; that Thomas Wright a Nominee of the Company was at all materials times the Licensee; that at 1.10a.m. on 12March, 1979 a Sergeant McMahon observed at least four persons seated at the Bar, and saw a Barman serving Intoxicating Liquors; that the Sergeant knocked and received no reply; that he observed a Barman removing bottles and glasses and washing and cleaning the Counter; that he the Sergeant continued knocking and was admitted at 1.55a.m. and found on the premises Thomas Wright, who said he was the Manager of the premises, two barmen and two other persons. The learned District Justice raised the point, that on the first Summons the complaint was against the Company "as holders of an on-licence in respect of the said premises" whereas in fact Thomas Wright was the Holder of the Licence as Nominee of the Company, and he suggested that the scheme of The Intoxicating Liquor Acts was such, more particularly with regard to Indorsement of Licences, that the Company might more properly have been prosecuted as a principal party since it was beneficial owner in possession of the premises and the business, and that Thomas Wright would then properly have been prosecuted for aiding and abetting, the words in the title of his summons "Nominee of Murtagh Properties Limited" being treated as surplusage in

which event no conviction could be recorded on the Licence, or alternatively that the Company might properly have been prosecuted as a Principal party, and that Thomas Wright as Holder of the Licence might also have been prosecuted as a Principal Party, and in the latter event, a conviction or convictions against him would in an appropriate case be recorded on the Licence. The State Solicitor for the Complainant submitted that if Mr Wright could be described as Holder of the Licence (which the State Solicitor did not admit) he held the Licence for the Company, and that therefore the Company was rightly prosecuted as Holder. There being no Application to amend the first Summons by striking out the words "being the Holder of an On- licence in respect of the said premises" the learned District Justice dismissed both Summonses. It appears the Case Stated raised no formal question, but by Agreement the Appeal proceeded on the basis of whether the learned District Justice was right in dismissing the Summonses for the grounds stated. The High Court held firstly that a Limited Liability Company is entitled itself to hold a Licence without resorting to the device ofhaving a Nominee. Secondly it is not incorrect to refer to the Nominee as being the "Holder" of the Licence, as long as it is remembered that the Company is the beneficial and real Holder of the Licence. The Nominee must comply with all legal instructions of the Company in relation to the Licence, and he is in effect no more than a peg on which the Company finds it convenient to hang its Licence. This being so, if the Company, through its Agents, breaks the law in the running of the business, it is at all times liable as the Holder of the Licence. The Nominee provided he does no more than hold the Licence commits no offence, but if the Nominee is also the Manager of the business, or if he assists in the com- mission of an offence, then he may be liable for aiding and abetting the Company as Holder of the Licence, notwithstanding that he is a nominal "Holder" himself. The learned Justice was held wrong in dismissing the Summonses against the Defendants, and the case was referred back to him to enter continuances. Kelly v. Montague 16L.R.I. 424; R. v. Lyon [1898] 14TLR357;R. v. Jones[\S95] 59 J.P. 87; The King (Cottingham) v. Justices of Co. Cork [1906] 2.I.R. 415; and the State (John Hennessy and Chariot Inns Limited) Applicant v. Super- intendent J. Commons Respondent [1976] I.R. 238 considered. Sergeant Bernard McMahon Com-

plainant, and Murtagh Properties Limited and Thomas Wright, Defen- dants, The High Court (per Mr Justice Barrington) unreported 20 October 1981. Barry O'Reilly JURISDICTION — International Law — Institution of Civil Pro- ceedings and Service of Notice thereof outside the jurisdiction — Court's Discretion. A Motion was brought by the third- named Defendants (Total) in the High Court pursuant to Order 12 Rule 26 of the Rules of the Superior Courts to set aside of discharge an Order of the High Court of 17 December, 1981 authorising the Institution of proceed- ings against the Defendants and the service of notice thereof on Total outside the jurisdiction. Total had not yet entered an appearance to the Summons notice of which had been served on it. This Motion was one of 37 Motions arising from the disaster of 18 January, 1979 at the oil terminal at Whiddy Island, Bantry Bay, Co. Cork which resulted in the deaths, of among others, the entire crew of the motor vessel Betelgeuse which was at all material times owned by Total. The terminal and jetty were owned and occupied by the first-named Defendant. The first- named Plaintiff was the Administrator of the Estate of, and the second-named Plaintiff was the widow and dependant of, a member of the crew of the Betelgeuse who died in the tragedy. The Plaintiffs were bringing their claim under the Civil Liability Act 1961 and claiming damages for negligence, nuisance and breach of Statutory Duty. Thirdy five Motions dealt with deceased crew members of the Betelgeuse, the other two dealt with the wife of a crew member and an executive of Total. Not all of the victims died aboard the Betelgeuse. The bodies of four were found on the jetty. The second-named Defendants reserved their position on the Motion. The first-named Defendants wished the matters at issue to be determined in Ireland. The Court had to decide two questions: a) Whether the Irish Courts had jurisdiction to try any of the thirty seven cases referred to and; b) even ifjurisdiction was established, whether the Irish Courts ought in their discretion to decline. As regards the first question the Court Held:

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