The Gazette 1985

GAZETTE

SEPTEMBER 1985

tables with a substantial bar counter at one end and a small dance floor at the other. It was possible to close off portion of the dining area and the dance floor from the area containing the bar counter. The first floor consisted of a room containing seven snooker tables and a bar which also served tea, coffee and light snacks. It was possible to gain access to the first floor room without entering the room on the ground floor. A good restaurant trade in lunches and evening meals had been built up on the ground floor and the restaurant was considered to be the main part of the business there, particularly in the tourist season. The Restaurant Certi- ficate was required to enable the Applicant to apply for Special Exemption Orders as there was a demand in the area for function, which would avail of such exemptions. The Court reviewed the relevant legislation and went on to consider the effect of the word "mainly" as it is used in Section 12 of the 1927 Act. Section 1 of the Intoxicating Liquor Act, 1927 defines an on-licence as a licence for the sale of intoxicating liquor for consumption on or off the premises. S. 12 of the same Act provides, that where on occasion of any Application for a new on-licence or a Certificate for the Transfer or renewal of an on-licence, the Applicant requests the Court to certify that the premises in respect of which the Certificate is sought are a restaurant for the purposes of the Act, the Court, if satisfied, after hearing the officer in charge of the Garda Siochana for the Licensing Area, that such a premises are structurally adapted for use bona fide and mainly used as a restaurant, refreshment house or other place for supplying substantial meals to the public, shall grant such person a Certificate (in the section referred to as a Restaurant Certificate) certifying that such premises are a restaurant for the purposes of the Act. S.5 of the Intoxicating Liquor Act, 1927 as amended by s.6 of the 1943 Act is the section which provides that the holder of an on-licence for premises which are a hotel or restaurant may obtain from the District Justice a Special Exemption Order. The High Court in dealing with the use of the word "mainly" in s. 12, was of the view that it had to be construed in the context that a person can only apply for a Restaurant Certificate if he is already the holder of an on-licence or is applying for one. Therefore the presence of a bar, unless it is out of all proportion to the restaurant area, should not restrict the right to obtain a Restaurant Certificate. Although on a literal interpretation of the Section, the presence of the snooker room upstairs would preclude the Court from holding that the premises were used mainly as a restaurant, the fact that the snooker room is open only from 5 p.m. to

financial risk involved in proceeding with the transaction when the building company had not an unincumbered title. The Defendants having established in evidence that it was not the practice of conveyancers at the time to make pre- contract searches argued that they had discharged their duty to the Plaintiffs by following the widely accepted practice of their colleagues. The Cou rt HE L D , f o l l o w i ng O'Donovan -v- Cork County Council [1967] IR 173, that there was an inherent defect in the common practice and that the Defendants, if they had given the matter due consideration, would have realised that it was incompatible with their client's interest and (per Walsh J.) that "no solicitor can permit his client to purchase lands or to commit himself irrevocably financially in the purchase or development of lands unless he has first of all ascertained whether or not the land is free from incumbrances". The Court held the Defendants were therefore negligent. Roche -v- Peilow - Supreme Court, 17May 1985 - unreported. John F. Buckley LICENSING Issue of Restaurant Certificate for Licensed Premises — Premises struc- turally adapted for use and bona fide used as Restaurant — Contained large bar and snooker room — whether premises were "mainly" used as a Restaurant. In November, 1983, the Applicant, a Company Nominee, applied to the Circuit Court for an Ordinary Seven Days Publican's Licence for a premises adjoining another premises in respect of which he already held such a licence and, at the same time applied under the provisions of Section 12 of the Intoxica- ting Liquor Act, 1927, as amended, for a Certificate that the premises were a Restaurant for the purposes of the Intoxicating Liquor acts. The Certificate for an Ordinary Seven Days Publican's Licence was granted by the Circuit Court on 6 December, 1983 and the Certificate that the premises were a restaurant for the purposes of the Intoxicating Liquor Acts was granted by the Circuit Court on 29 February, 1984. The Superintendent of the Garda Siochana appealed against the Order granting the Restaurant Certificate on the grounds that to be entitled to such a Certificate the entire premises must be both structurally adapted for a restaurant and mainly used for such. In this case it was contended that because a large portion of the premises consisted of a bar and the upper floor consisted of a bar and snooker room with no real restaurant facilities, it could not be said that the premises was mainly used as a restaurant. The premises in question was a two story building in which a large area of the ground floor was given over to dining

Recent Irish Cases

Edited by Gary Byrne, Solicitor

SOLICITORS Negligence — Whether following accepted practice of the Profession defence to a Claim. The Plaintiffs engaged the Defendant to act as their solicitors in a house purchase transaction. The nature of the transaction was that the vendors of the site, who were also a firm of house builders, entered into an agreement for the lease of the site and into a building contract with the Plaintiffs for the erection of a house on the site. Under the term of the building contract the Plaintiffs were obliged to make payments of £1,000 by way of booking deposit, £2,500 when the house reached first floor level, £2,000 when the house reached roof plate level, £2,500 when the internal plastering was completed and £1,450 on completion. The site was part of the lands comprised in a freehold registered folio. The Defendants warned the Plaintiffs of the risk that by making periodic payments during the course of the building they were likely to lose them if the builders became insolvent. They did not, however, make any searches in the Land Registry or the Companies Office with a view to ascertaining if there were any incumbrances on the builders' interest in the site. After the Plaintiffs had paid the builders £8,000 by way of stage payments the builders went into liquidation. The site was in fact the subject of an equitable mortgage effected by the deposit of the Land Certificate with a Merchant Bank, which mortgage was registered as a charge against the builders in the Companies Office. The liquidator of the builders was willing to execute a lease of the site to the plaintiffs but the Bank sought a payment of £6,000 before they would release the site from their incumbrance. It was argued for the Plaintiffs that the financial loss incurred by them was caused by the failure to search for and discover the charge in favour of the Bank and that before they were allowed to enter into a contractual relationship with the building company the Defendants should have ascertained the Bank's interest in the site and warned the Plaintiffs of the

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