Publicans who have opened despite the Government’s direction that they close for two weeks due to the coronavirus pandemic have not only put the wider public at serious risk, they have also put their licences and livelihoods on the line, one of the State’s leading barristers has warned.
Senior Counsel Constance Cassidy who specialises in liquor licence applications, told The Irish Times that although the closure guidelines issued last week "are merely directory in nature until specific regulatory legislation is introduced", publicans have been ignoring them at their peril.
On Saturday the Minister for Health Simon Harris said pubs staying open in defiance of the Government's advice would be shut down under new emergency powers signed into law on Friday. Mr Harris said he had heard rumours of pubs not following the public health advice and had seen video clips of pubs "beginning to open in various fashion".
“We will shut you down if you are a pub that is remaining open, you are letting down the people of this country, you are also letting down your fellow publicans who are helping out and complying at great difficulty to them and their staff at a very challenging time,” he said.
The Dáil was also told last Thursday that pubs were still operating in Limerick and other locations across the country despite restrictions in place to stop the spread of coronavirus.
Ms Cassidy pointed out that publicans who had opened in recent days may have already put their licences at terminal risk because exiting legislation could be sufficient to make them pay a very high price for failing “to comply with directions of the Government aimed at protecting our citizens”.
She said publicans may have been acting in the belief that there was “no effective legal sanction currently existing and that, accordingly, the guidelines are only guidelines and they can, in their view, elect to ignore them”.
She said it would “come as a shock to those publicans to learn that there exists under current legislation a means of bringing to book those who seek to flout or ignore the guidelines”.
She pointed out that every year publicans must apply for a renewal of their licence with the law making it clear “all publicans who operate must be of good, fit and proper character”.
She suggested that “a person who, in the current climate, sees fit to flout or ignore the guidelines, certainly arguably cannot be viewed as a person of good, fit or proper character”.
She added that licensing judges “would require very definite convincing from the errant publican as to why, and in what circumstances, and whether for monetary gain or even more base motives, such publican saw fit to ignore and imperil the health and wellbeing of the public at large”.
She also said publicans who opened and ignored the requirements of social distancing, isolation and proper public health constraints would be “wrongfully and negligently, at the very least, exposing all persons who enter to a public health risk”.
She said if customers subsequently contracted Covid-19 and traced the source to the premises of a specific publican, lawyers could seek “to consider whether an action properly lay in negligence”.
She said legal counsel acting for an insurance company would “certainly take the view that the public liability provision in any insurance policy did not cover deliberate, conscious and reckless conduct by the operator of a premises flouting the Government guidelines and recommendations”.
That would mean that not only would publicans expose themselves potentially to an action on the grounds of negligence “but they would most likely not be indemnified by any insurer and would be liable to pay compensation”.
Ms Cassidy described the guidelines issued by the Government as “sensible, prudent and necessary” and said those who “flout them should suffer all consequences of the law, whether that consequence can be directly or perhaps indirectly exerted”.