Atlantic Marine Supplies Ltd & Rogers v Min for Transport and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 104
• Court: High Court
• Date: 26 March 2010

Atlantic Marine Supplies Ltd & Rogers v Min for Transport & Ors

BETWEEN

ATLANTIC MARINE SUPPLIES LIMITED

AND

SEAN ROGERS

PLAINTIFFS

AND

MINISTER FOR TRANSPORT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2010] IEHC 104

[No. 6982 P/2008]

THE HIGH COURT

TORT

Statutory duty

Legitimate expectation - Public authority - Test to be applied - Entitlement to damages - Whether legitimate expectation can give rise to substantive benefit - Whether damages can be awarded for breach of legitimate expectation - Moyne v Londonderry Port and Harbour Commissioners [1986] IR 299 and Sweeney v Duggan [1991] 2 IR 274 considered; Abrahamson v Law Society of Ireland [1996] 1 I.R. 403, Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84, Wiley v Revenue Commissioners [1988] IR 353 and Lett & Co Ltd v Wexford Borough Corporation [2007] IEHC 195, (Unrep, Clarke J, 23/5/2007) applied - Fisheries (Amendment) Act 2003 (No 21), s 4 - Sea Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 97 - International Convention for the Safety of Life at Sea 1974 - Claim dismissed (2008/6982P - Clarke J - 26/3/2010) [2010] IEHC 104

Atlantic Marine Supplies Ltd v Minister for Transport

MERCHANT SHIPPING (LIFE-SAVING APPLIANCES) RULES 1967 SI 100/1967

MERCHANT SHIPPING (LIFE-SAVING APPLIANCES) RULES 1993 SI 380/1993

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S97

FISHERIES (AMDT) ACT 2003 S4

FISHERIES (AMDT) ACT 2003 S4(2)

FISHERIES (AMDT) ACT 2003 S4(9)(A)

FISHERIES (AMDT) ACT 2003 S4(9)(B)

FISHERIES (AMDT) ACT 2003 S4(9)(C)

DESIGN, CONSTRUCTION & EQUIPMENT OF SMALL FISHING VESSELS OF LESS THAN 15 M LENGTH OVERALL CODE OF PRACTICE S7.4

DESIGN, CONSTRUCTION & EQUIPMENT OF SMALL FISHING VESSELS OF LESS THAN 15 M LENGTH OVERALL CODE OF PRACTICE S7.4.1(iii)

DESIGN, CONSTRUCTION & EQUIPMENT OF SMALL FISHING VESSELS OF LESS THAN 15 M LENGTH OVERALL CODE OF PRACTICE S7.4.2

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

STOVIN v WISE 1996 AC 923 1996 3 WLR 388 1996 3 AER 801

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

MOYNE & ORS v LONDONDERRY PORT & HARBOUR CMRS 1986 IR 299

SWEENEY v DUGGAN 1991 2 IR 274 1991/13/3370

LETT & CO LTD v WEXFORD BOROUGH CORP & ORS UNREP CLARKE 23.5.2007 2007/34/7055 2007 IEHC 195

ABRAHAMSON & ORS v LAW SOCIETY OF IRELAND & AG 1996 1 IR 403 1996 2 ILRM 481 1996/9/2635

DELANY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION: A COMPARATIVE ANALYSIS 2ED 2009 175

WEBB v IRELAND & AG 1988 IR 353 1988 ILRM 565

WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204

1 JUDGMENT of Mr. Justice Clarke delivered on the 26th March, 2010

1. Introduction

2 2 1.1 The second named plaintiff ("Mr. Rogers") is the principal behind the first named plaintiff company ("Atlantic"). Mr. Rogers and Atlantic have been in the business of providing safety equipment for fishing boats for some considerable period of time. It is fully accepted by all involved in these proceedings that Mr. Rogers and Atlantic carry out their duties in that regard to the highest standards.

3 3 1.2 At the core of the complaint made by Atlantic in these proceedings is a contention that the first named defendant ("the Minister") has failed to enforce legally binding measures in respect of the equipment which fishing boats are required to carry for safety purposes (specifically life rafts). As a consequence it is said that a great number of fishing boats have life rafts which are not appropriate. As a consequence, in turn, it is argued that significant financial loss has been caused to Atlantic by reason of the alleged lack of enforcement to which I have referred.

4 4 1.3 It should also be noted that Atlantic is, by virtue of the services which it provides, itself the subject of a requirement to be certified to provide such services. It should immediately be noted that there has never been any suggestion that Atlantic has failed to carry out its role in full compliance with its obligations. It is, however, said that Atlantic is constrained, by virtue of the consequences of that certification, to provide and service particular types of equipment only. In circumstances where it is said that the alleged lack of enforcement, to which I have referred, permits many fishing boats to operate with a lower standard of equipment, Atlantic claims that it is deprived of the opportunity to seek to exploit the market in the supply and service of the higher standard equipment which, on Atlantic's case, many fishing boats should carry.

5 5 1.4 In any event, it is also important, at this early stage, to note that there are a series of separate legal bases on which Atlantic claims to be entitled to damages arising out of the alleged failure of regulation on the part of the Minister. Each of the relevant headings brings with it its own difficult legal questions. However, for present purposes, I should simply note that the four bases on which Atlantic claims to be entitled to damages are as follows:-

6 a A. Breach of duty;

7 b B. Breach of statutory duty;

8 c C. Breach of constitutional rights; and

9 d D. Legitimate expectation.

10 6 1.5 As there was no significant dispute as to primary facts, only a limited dispute as to inferences that might properly be drawn from those facts with, perhaps, a more significant dispute as to the proper characterisation of the situation which might be said to flow from that undisputed evidence, it is perhaps most convenient to start by setting out those facts which are not in dispute and the allegations that underlie Atlantic's case.

2. The Undisputed Facts and the Allegations

11 2 2.1 Mr. Rogers started fishing out of Killybegs in County Donegal in 1971. In 1982 he decided to start his own business in relation to life saving equipment. It would appear that, at the relevant time, there was no service station on the West Coast dealing with the sale and service of marine life saving equipment. In that context, Mr. Rogers spoke to the then Chief Surveyor of the Minister together with a number of manufacturers of life rafts.

12 3 2.2 It is clear from the evidence that the suppliers of relevant equipment maintain a rigorous certification process whereby those operating service stations in this field are required, in order to obtain an initial certification, to attend for significant training, and, as the price of maintaining certification, have further regular training requirements imposed on them, and are subjected to regular inspections. The evidence makes clear that Mr. Rogers and Atlantic have, at all material times, been in good standing with the suppliers for whom they hold certification.

13 4 2.3 In order to establish the relevant service station, Atlantic initially obtained a site from the then Department of the Marine and built an appropriate structure designed to allow for the servicing of the type of life rafts then in use.

14 5 2.4 Subsequently, larger life rafts (as required for larger vessels) came on stream which required an expanded premises capable of servicing those larger life rafts. On that basis, Atlantic bought different lands on which a larger service station was built.

15 6 2.5 In the early days it would appear that the relevant form of certification from the relevant department (the department has gone through a variety of names over the years) was in the form of a letter from the Chief Surveyor. However, from in or around 1990, it would appear that a formal certificate was issued. Atlantic has, at all relevant times, held the appropriate certification.

16 7 2.6 It, therefore, follows that Atlantic has at all times satisfied both the suppliers of its equipment and the relevant department that it is up to standard for the provision of the important services with which it is charged.

17 8 2.7 It will be necessary in due course to refer in some more detail to the relevant regulatory regimes applicable to the use by fishing boats of life rafts. However, for the purposes of this narrative it should be noted that there is a clear and unambiguous statutory obligation on all fishing vessels in excess of 12 metres to carry a specified type of life raft and other safety equipment (in fact the regime differs somewhat depending on whether the boat concerned is over or under 15 metres but nothing turns on that fact for the purposes of this case). The position in respect of fishing vessels of less than 12 metres is less clear. The statutory regime applying to larger vessels, to which I have referred, does not apply to vessels under 12 metres. However, such vessels (along with all vessels which are involved in fishing) require a licence. For reasons which it will be necessary to explore in more detail, there is a statutory precondition to the award of such a sea-fishing boat licence which is to the effect that the vessel is appropriately certified as complying with a Code of Practice published by the Minister. The interpretation of that Code of Practice is itself a matter of some debate to which it will be necessary to turn in due course. However, on the case made by Atlantic and Mr. Rogers, it is suggested that the true construction of the Code of Practice requires that any fishing vessel (including those under 12 metres) which carries a life raft is required to ensure that the relevant life raft conforms with certain international specifications.

18 9 2.8 It is the assertion by Atlantic to the effect that there is widespread non-observance of that requirement which is at the heart of these proceedings. It will be necessary to refer in more detail to SOLAS standards for life rafts which is the recognised maritime international safety standard. On Atlantic's case all fishing vessels are required, if they carry a life raft at all, to carry a SOLAS standard life raft or a...