Court order ends Ivory Tower’s unworldly isolation from food safety laws

The Food Safety Authority of Ireland’s lawyers have been busy in recent times.  On Friday 9 December 2011 the FSAI secured an order from the High Court directing the closure of the Ivory Tower restaurant on Prince’s Street in Cork and prohibiting the establishment’s proprietor Seamus O’Connell and any other person having notice of the making of the order from continuing the operation of a food business at the restaurant premises at Exchange Buildings.

This was the second successful High Court application made by the FSAI in as many weeks:  on 29 November 2011 Mr Justice Kearns made an order directing the closure of a takeaway known as ‘Papa Sorrento’ in Finglas.

On 24 November 2011 a closure order was served on the Ivory Tower by Environmental Health Officers of the Health Service Executive under the European Communities (Official Control of Foodstuffs) Regulations 2010 (S.I. No. 117 of 2010).

Regulation 19 (9) (a) of the 2010 Regulations provides that where a prohibition order has been served and activities are carried on in contravention of the prohibition order, the High Court may, on the application of an authorised officer, by order prohibit the continuance of the activities.  The court application was necessitated after O’Connell failed to comply with the closure order which had been served on him.

The many Cork-based foodies who have faithfully patronised the premises over the years will probably have a large measure of sympathy for O’Connell’s protestations that he ran a high quality restaurant and that the reason for his run-in with the authorities was down to practical difficulties in adapting his restaurant to comply with the applicable HACCP systems having regard to the fact that he himself assumes the multiple rolls of owner, operator, chef and waiter in what is a small space.

Whether or not the serving of the closure order by the HSE in the first place was justified is no doubt a point on which O’Connell will have strong views.  But once this had been done it was inevitable that the FSAI would bring the court application which it did as soon as it became aware that the restaurant was still operating.  Not to have done so would have been to send up a flare to food business operators that they could feel free to flout food safety enforcement measures with impunity.

Regulation 19 (9) (b) of the 2010 Regulations which were relied upon by the FSAI in its application affords the High Court discretion to make an order directing the person on whom the order is served to discharge the costs incurred by the FSAI in securing the order.  The court did just that in this case, compelling O’Connell to pick up the tab.

Accordingly, while the order grants O’Connell liberty to apply to court if and when the matters which caused the Environmental Health Officers to serve the closure order have been rectified, by the time he reopens his doors he will have borne the costs of two High Court applications, a prospect that would sting even for the most profitable of restaurateurs.