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;

Lyon

[1898]

14TLR357;R. v.

Jones[\S95]

59 J.P.

87;

The King (Cottingham)

Justices

of Co. Cork

[1906] 2.I.R. 415; and the

State (John Hennessy and Chariot

Inns Limited) Applicant

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: