THE SUPREME Court has ruled by a 2/1 majority that a charity which operates five Dublin graveyards was entitled to set up a company to make and sell headstones despite claims by monumental sculptors it was putting them out of business.
The court yesterday rejected an appeal by David Pierce, trading as Swords Memorials and Andrew Pierce Monuments, against a High Court finding the Dublin Cemeteries Committee was permitted to set up the wholly owned subsidiary company, Glasnevin Cemetery Monuments Works Ltd, to manufacture and sell headstones.
Mr Justice Adrian Hardiman agreed with a judgment by Ms Justice Fidelma Macken that the cemeteries had power under the Dublin Cemeteries Committee Act 1970 to construct monuments or tombstones and to sell these.
The judge said the objects of the 1970 Act were clear and did not place any limitation on the power of the cemeteries relating to constructing and operating cemeteries.
If there was a power to construct monuments or tombstones, and she found there was, it would be tautologous to suggest that could not be done on a commercial basis given there was a power of sale in the 1970 Act, she also said.
The judge also said she sympathised with Mr Pierce’s failure to persuade the Competition Authority to investigate complaints the cemeteries had engaged in anticompetitive behaviour in how it operated sales outlets at the entrances to its cemeteries.
However, the only issue the Supreme Court had to decide was whether the Dublin Cemeteries Committee had power under the 1970 Act to construct and sell headstones, she added.
In his dissenting judgment, Mr Justice Nicholas Kearns said the cemeteries committee is a charity and the 1970 Act does not permit it to carry on business at all.
He said the 1970 Act establishing the Dublin Cemeteries Committee was a Private Act and bodies established under such Acts are rarely authorised to be in business in the ordinary sense and usually follow charitable purposes and that was so for the Dublin Cemeteries Committee.
He also said the parliamentary notice published prior to the 1970 Act made no reference to any intention to engage in the commercial selling or exploitation of headstones.
There was also no provision in the 1970 Act specifically authorising the committee to engage in commercial enterprises. Prior to the 1970 Act, it did not do so and it also had no such power under the 1846 Act previously governing it.
In her High Court decision, Ms Justice Mary Laffoy found the Dublin Cemeteries Committee has power under the 1970 Act to sell any property it owns, including, subject to certain conditions, land and also had power to construct or manufacture specified items, including headstones, and to sell them.
The judge noted the manner in which the cemeteries committee operates a sales outlet at the entrance to each of its cemeteries and regulates inscriptions on tablets recording communal burials, such as at the Garden of Remembrance at Glasnevin Cemetery, gave it a competitive advantage over other monumental sculptors.
Unless that was otherwise illegal, for example under competition law, it was permissible, she said.
