Barlow v Minister for Communications

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Meenan
Judgment Date22 March 2019
Neutral Citation[2019] IEHC 416
Docket Number[2006 No. 2687 P.]
Date22 March 2019

[2019] IEHC 416

THE HIGH COURT

Meenan J.

[2006 No. 2687 P.]

BETWEEN
PAUL BARLOW, WOODSTOWN BAY SHELLFISH LIMITED, MICHAEL CROWLEY, RIVERBANK MUSSELS LIMITED, GERARD KELLY, FRESCO SEAFOODS LIMITED, TARDRUM FISHERIES LIMITED, ALEX MCCARTHY

AND

HALCOME MERCHANTS (IRELAND) LIMITED TRADING AS ALEX MCCARTHY SHELLFISH
PLAINTIFFS
AND
MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, REGISTRAR GENERAL OF FISHING BOATS, IRELAND

AND

ATTORNEY GENERAL
DEFENDANTS

Compensation – Breach of constitutional duty – Negligence – Plaintiffs seeking compensation for financial losses – Whether there was a breach of constitutional duty

Facts: The individual plaintiffs and their associated companies were involved in fishing, harvesting and sale of mussels. The plaintiffs sought compensation for financial losses which they alleged was caused or contributed to by the defendants. The plaintiffs’ claims arose under a number of headings. Those headings were: breach of constitutional duty/rights; negligence and breach of duty (including negligent misstatement); breach of legitimate expectation; breach of statutory duty; and unlawful delegation. The plaintiffs further sought to rely upon a breach of the provisions of the European Convention on Human Rights (ECHR) and referred to a decision of the European Court of Human Rights (ECtHR) in O’Sullivan McCarthy Mussel Development Limited v Ireland (App No. 44460/16).

Held by Meenan J that, adopting Casey v Minister for Arts [2004] 1 IR 402, though the plaintiffs have a personal right to earn a livelihood this does not extend to them having a right to mussel seed which is the property of the State. On an application of Glencar Exploration PLC v Mayo County Council [2002] 1 IR 84 and Cromane Seafoods Ltd v Minister for Agriculture [2017] 1 IR 119, Meenan J was satisfied that the plaintiffs could not succeed in their action for damages in respect of the unlawfulness of the State in allowing vessels registered in Northern Ireland to fish for mussel seed in the territorial waters. Though it was desirable to manage mussel seed appropriately, Meenan J could not see that failing to do so amounted to negligence. The wording of s. 10 of Sea Fisheries and Maritime Jurisdiction Act 2006, in Meenan J’s view, did not establish that the plaintiffs, while clearly aggrieved that persons on board vessels registered in Northern Ireland fished in the territorial waters, would be entitled to damages when this occurred. It seemed to Meenan J that any remedy for a breach of the Mussel seed (Conservation and Rational Exploitation) Order 2003 (S.I. No. 241/2003) would lie in an application for judicial review rather than in a claim for damages. The other statutory instruments relied upon by the plaintiff could not be said, in Meenan J’s view, to confer on the plaintiffs an entitlement to damages in the event of the relevant provisions not being applied by the first defendant, the Minister for Communications, Marine and Natural Resources. Meenan J held that the statements made in respect of grant aid and the fishing boat licence could not amount to a promise or representation required for the first of the tests identified by Fennelly J in Glencar Exploration as necessary to succeed in a claim for legitimate expectation. Meenan J did not think it could be seriously contended that a target or aim set out in a National Development Plan would amount to a promise or representation to act in a particular way. Meenan J held that the first defendant was entitled to delegate to the Seed Mussel Advisory Committee an advisory role in the allocation of mussel seed. In Meenan J’s view, O’Sullivan McCarthy Mussel Development Limited v Ireland was of no assistance to the plaintiffs.

Meenan J held that the action must be dismissed.

Action dismissed.

JUDGMENT of Mr. Justice Meenan delivered on the 22nd day of March, 2019
Introduction
1

The individual plaintiffs and their associated companies were involved in fishing, harvesting and sale of mussels. In these proceedings the plaintiffs are seeking compensation for financial losses which they allege was caused or contributed to by the defendants. The plaintiffs” claims arise under a number of headings. These headings are breach of constitutional duty/rights; negligence and breach of duty (including negligent misstatement); breach of legitimate expectation; breach of statutory duty and unlawful delegation. The plaintiffs further seek to rely upon a breach of the provisions of the European Convention on Human Rights (ECHR) and refer to a recent decision of the European Court of Human Rights (ECtHR) in O'Sullivan McCarthy Mussel Development Limited v. Ireland (App No. 44460/16).

2

These proceedings commenced in 2006, some thirteen years ago. There have been a number of earlier hearings, in particular, a decision of the Supreme Court, dated 27 October 2016, in related proceedings ( Barlow v Minister for Agriculture, Food and the Marine [2017] 2 IR 440) (the Barlow II proceedings). The statement of claim, first delivered on 10 July 2006, has undergone numerous amendments and the final amended statement of claim was delivered on 6 October 2017. The claims being made by the plaintiffs have evolved and developed over a long period of time.

Mussel fishing
3

There are only certain times of the year when the plaintiffs fish for mussel seed. Mussel fishing is not fishing in the normal sense in that what is involved is a dredging type operation whereby quantities of mussel seed are retrieved from the sea by vessels specifically designed for that purpose. Once retrieved, the mussel seed is transported to aquaculture sites where it is re-laid. Over a period of time the mussel seed matures into fully grown mussels which are then harvested and sold for commercial gain. The mussel industry is regulated by domestic legislation. These Regulations unsurprisingly cover a wide range of areas, for example the type of vessels that can be used, the locations that can be fished for mussel seed and, importantly for the instant proceedings, the amount of mussel seed that can be fished for.

4

Central to the Barlow II proceedings was the ‘Voisinage Agreement’ of 1965, set out correspondence between officials in the Ministry of Agriculture in Belfast and the Department of Agriculture and Fisheries in Dublin. This agreement provided for cross-border cooperation in the area of fisheries. The practical effect of this was that vessels registered in Northern Ireland were permitted to fish for mussel seed in the State's territorial waters (the territorial waters). The Voisinage Agreement proved to be very contentious.

5

In the Barlow II proceedings the legality of Northern Ireland registered vessels fishing in territorial waters was successfully challenged by the plaintiffs. In giving the judgment of Supreme Court, O'Donnell J. stated at p. 445:

‘[3] At first sight, the issues for resolution in this case are of much more recent origin. For the last 50 years and, it seems likely, since the foundation of the State, fishermen resident in Northern Ireland have fished waters which, from time to time, have been designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the authorities here and, it appears, in circumstances where reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of Northern Ireland. This case raises the question of the legality of the practice of what may be described in general terms at this stage, as Northern Ireland fishermen fishing in Irish territorial waters. This question arises in the context of mussel harvesting, which for a number of reasons has become much more commercially significant in recent times. For reasons which it will be necessary to set out at some length, I have concluded that the current practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State is not lawful, as it constitutes the exploitation of a natural resource which must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas. I conclude that there is no such law at present. It follows from this conclusion however that there is no insuperable constitutional objection to making provision by law for such fishing. This is the narrow conclusion of the large issue in this case.’

6

Article 10 of the Constitution provides:

‘All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.’

7

Therefore, two matters arise from the decision of the Supreme Court. Firstly, mussel seed, being a natural resource, is the property of the State. Secondly, in the absence of law enacted by the Oireachtas, fishing for mussel seed by Northern Ireland registered vessels in the territorial waters is not lawful.

8

For many years the mussel industry was undeveloped with those involved using methods and vessels that had not changed for generations. However, this was all to change in the latter years of the 1990s when the economic potential of mussel harvesting became apparent. This resulted in new vessels being purchased with mussel seed being fished and harvested at an industrial level. At the same time vessels registered in Northern Ireland were fishing for mussel seed in the territorial waters. This, together with allegations of the mismanagement of the mussel seed resource and the allocations of mussel seed, is central to the plaintiffs” claim.

The plaintiffs
9

Each of the individual plaintiffs gave evidence before the Court. Though the particular situation of each of the plaintiffs differed there...

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