Atlantic Marine Supplies Ltd v Minister for Transport

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell
• Judgment Date: 19 July 2016
• Neutral Citation: [2016] IESC 43
• Docket Number: [2008 No. 6982 P]; [S.C. Nos. 205 & 208 of 2010],[Appeal No. 205 & 208/2010]
• Court: Supreme Court
• Date: 19 July 2016

Denham C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Laffoy J.

Dunne J.

O'Malley J.

Between

ATLANTIC MARINE SUPPLIES LIMITED

AND

SEAN RODGERS

PLAINTIFFS

AND

MINISTER FOR TRANSPORT,

IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2016] IESC 43

[Appeal No. 205 & 208/2010]

SUPREME COURT

Legitimate expectation – Damages – Liability – Plaintiffs seeking damages for breach of statutory duty – Whether plaintiffs had a legitimate expectation

Facts: The second plaintiff, Mr Rodgers, was the principal shareholder and effectively the owner of the first plaintiff, Atlantic Marine Supplies Ltd. Atlantic provided safety equipment for boats. In that capacity it was subject to inspection and approval by the Department of Transport. Atlantic perceived that, at an official level, there had been a failure of enforcement of official standards by the State defendants, the Minister for Transport, Ireland and the Attorney General, which Atlantic contended caused a substantial loss to its business. Formal proceedings were initiated in 2008. Judgment in the High Court was delivered in 2010. The trial judge took the view that the Department of Transport?s Code of Practice was to be interpreted with regard to Marine Notice No. 8 of 2005 and that in this respect, there was an ambiguity but that it should be resolved in favour of the interpretation advanced on behalf of the plaintiffs. However, the trial judge rejected the plaintiffs? claim that this conclusion was enough to establish a cause of action either in negligence or in breach of statutory duty, holding that the defendants did not owe to the plaintiffs a duty of care, and that the plaintiffs were not the object of the enactment of 2006 provisions relating to licensing and accordingly any failure to enforce the provisions could not be said to amount to a breach of statutory duty in respect of which the plaintiffs could claim damages. The trial judge did permit the plaintiffs to argue that the facts alleged and proved gave rise to a legitimate expectation on the part of the plaintiffs which furthermore entitled them to damages. The trial judge held that the expectation of reasonable enforcement had not been breached. The High Court refused to make any declaratory or other order and dismissed the plaintiffs? claim.?The High Court judgment was the subject of an appeal by the defendants, and a cross-appeal in respect of costs by the plaintiffs. The defendants contended that the judgment appealed against raised issues which transcended the particular case and raised important issues of State public body liability, and in particular relating to damages in a claim for legitimate expectation.

Held by O?Donnell J that the resolution of the trial judge was practical, and moreover one with which the parties did not fundamentally disagree; the plaintiffs obtained clarity and an assurance of enforcement, while the defendant did not suffer any finding of breach of a legal obligation, and was not subject to an award of damages or costs. O?Donnell J held that once the issue of interpretation had been resolved, it was not necessary to go further and seek to analyse the matter in terms of legitimate expectation. O?Donnell J noted that the provisions of s.4(9)(c) of the Fisheries (Amendment) Act 2003 (as inserted by the Sea Fisheries and Maritime Jurisdiction Act 2006) meant that no licence could be granted or renewed without a declaration of compliance with the Code of Practice and once the difference of interpretation had been resolved, there was no reason to doubt that this provision (as interpreted) would be enforced; however, if for whatever reason it was not enforced, then appropriate declarations and if necessary orders, could be made. O?Donnell J held that the existing law of public law remedies was adequate to deal with this. O?Donnell J held that it was superfluous, misleading and potentially dangerous to go further and seek to construct a legitimate expectation that the law as enacted would be enforced. Furthermore, and in any event, O?Donnell J did not consider that the combination of matters relied upon in this case could be said to amount to the type of representation or adoption of a position which could give rise to a legitimate expectation.

O?Donnell J held that the Court could not make any substantive order on this appeal and must therefore dismiss it.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell delivered the 19th of July 2016

1 Mr. Sean Rodgers, the second named plaintiff, is the principal shareholder, and effectively the owner of the first named plaintiff company, Atlantic Marine Supplies Ltd (?Atlantic?). The plaintiffs (and it is not necessary to distinguish between the corporate and individual plaintiffs) have been in the business of providing safety equipment for boats since 1982. The dispute between the parties has been simmering for some considerable time, since at least 2000, but finally erupted with formal proceedings being initiated in 2008. Both the factual and legal positions in this case are quite complex and the arguments made in these proceedings have ranged very broadly indeed. Judgment in the High Court was delivered in 2010 and has been the subject of an appeal by the defendants, and a cross-appeal in respect of costs by the plaintiffs. The defendants/appellants (who I will refer to as the ?State parties?) contend furthermore that the judgment appealed against raises issues which transcend the particular case and raise important issues of State public body liability, and in particular relating to damages in a claim for legitimate expectation. However, at the hearing of the appeal, it appeared possible to reduce the issues in contention considerably, leaving a relatively narrow issue to be determined by this Court. In those circumstances, it is only necessary to give sufficient detail of the facts and law to place in context the legal issue which requires to be resolved by this Court.

2 Atlantic provides safety equipment for boats. In that capacity it was subject to inspection and approval by the Department of Transport. It is not necessary to identify the precise basis of such regulation or indeed its precise status in law. No issue relates to Atlantic's performance of its own business, and it is accepted that it has at all times complied with regulations and best practice. Atlantic's complaints relate however to its perception that, at an official level (to use a generalisation), there has been a failure of enforcement of official standards (to use a neutral term) by the State defendants (and in particular the Minister for Transport), which Atlantic contends caused a substantial loss to its business.

3 The protection of life at sea is a matter of national and indeed international concern and has been the subject of international agreements. One such agreement is the International Convention of the Safety of Life at Sea of 1974 (?the Convention?) which entered in to force in 1980. Among the matters dealt with by the Convention were standards for equipment. Of particular relevance to this case is the specification of SOLAS (Safety Of Life At Sea) life rafts, and emergency packs: SOLAS A Packs which are appropriate for larger vessels, and SOLAS B Packs which are a scaled down version appropriate for smaller vessels. The Convention operates at the level of international law. However much, if not all of the regulations, rules and guidance offered by the State authorities either refers to, or seeks to implement in domestic law, provisions of the Convention. No issue arises in respect of the interpretation of the Convention. The issue in this case relates only to issues of domestic law, albeit provisions which make reference to SOLAS standards.

The Code of Practice

4 As of 2004 the Department of Transport issued a Code of Practice governing the design, construction, equipment and operation of small fishing vessels of under 15 metres in length overall. Chapter 7 of the Code deals with life saving equipment and in particular Chapter 7.4 provides for inflatable life rafts:

?7.4 Inflatable life rafts

Where carried, inflatable life rafts must be of a capacity to accommodate all persons on board. The life raft must be stowed in a GRP container and be fitted in a position to enable it to float free if the vessel sinks, and be fitted with an approved HRU. If this is not practicable, for example, in an open vessel, it is recommended that the life raft should be stowed in an accessible place; it may be contained within a valise. While it may not be capable of floating free it must be readily accessible to throw overboard. If it goes down with the vessel it will not operate. Life rafts must be equipped with a ?SOLAS ?B? Pack?.

7.4.1 The requirements for the carriage of life rafts are as follows:

(i) All vessels with four or more persons on board must carry one or more life rafts, regardless of their area of operation.

(ii) All vessels operating beyond five miles from a safe haven must carry a life raft.

(iii) All vessels operating less than five miles from a safe haven with fewer than four persons on board are recommended to carry a life raft.

7.4.2 Vessels of Loa greater than 12 metres and vessels carrying more than four persons must carry an approved MED/SOLAS life raft.

Vessels of Loa 12 metres or less or carrying four persons or less may carry non-SOLAS/non-MED life rafts. Guidance on the carriage of non-SOLAS type inflatable life rafts is given in Marine Notice No. 2 of 2003.?

5 Before considering the interpretation of these provisions it is necessary to observe that as of 2004 when it was introduced, the Code of Practice can properly be considered as ?soft law?. It was not introduced pursuant to any statutory provision and not given any specific legal status. That does not mean that it was without effect, or had no impact in law. It appeared that it published standards and provided for declarations...