Bates & anor -v- Minister for Agriculture, Fisheries & Food & ors,  IESC 5 (2018)
|Party Name:||Bates & anor, Minister for Agriculture, Fisheries & Food & ors|
An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: 2012 no 096
 IESC 000
High Court record number: 2009 no 3969P
Eugene Bates and Brendan Moore Plaintiffs/Respondents
- and -
The Minister for Agriculture Fisheries and Food, Ireland and the Attorney GeneralDefendants/Appellants
Judgment of Mr Justice Peter Charleton, delivered on Wednesday, February 7th, 2018
The main point argued on this appeal is the liability of the State defendants for economic loss resulting from negligent advice given to the plaintiffs which caused their arrest by the Marine Nationale, and consequent fine by a magistrate in Brest, on 19 August 2003, while engaged in commercial scallop fishing just outside the territorial waters of France in the Bay of Biscay.
As to the source of the error which resulted in damages being awarded to the plaintiffs, primary facts were found by Laffoy J, the trial judge, in her judgment of 15 November 2011. These were not demonstrated on this appeal to be incorrect. In addition, an inference from the primary facts as to the ultimate cause of the misinformation given to the plaintiffs was made by the trial judge. This was not a conclusion based on circumstantial evidence. This inference came within the principles enunciated by McCarthy J in Hay v O’Grady  1 IR 210 at page 217: thus it is not the case that “an appellate court is in as good a position as the trial judge to draw inferences of fact.” He cited the judgment of Holmes LJ in Gairloch The SS, Aberdeen Glenline Steamship Co v Macken  2 IR 1, in turn cited by O'Higgins CJ in The People (Director of Public Prosecutions) v Madden  IR 336 at p 339. Thus, an appellate court will:
…be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
That finding by inference, furthermore, was, in addition to fact, based on the pleadings. Whereas an explanation has now been offered in argument on this appeal as to an alternative source of the conclusion deduced from the evidence by the trial judge, this Court remains unconvinced that this has been demonstrated to have been an error by the trial judge. Hence, the inference must stand. This appeal is one of several originally sent to the Court of Appeal consequent upon the coming into force of Article 34.5 of the Constitution but taken up for hearing by this Court subsequently for administrative reasons.
For decades, the species of fish that may be taken in European Union waters, the quantities thereof and the places that may be fished have been regulated. While it may seem that every kind of commercial fishing is subject to quotas set on an annual basis, it emerged on appeal that a few species remain that may be taken without limit. Scallops are not one of these. To fish for scallops, fishermen need a licence and this specifies the species to be taken, the tonnage and, often, the areas that may be fished.
The plaintiffs, Eugene Bates and Brendan Moore, are commercial fishermen and business partners who in 1999 saw a potential benefit in moving from general trawling to fishing for scallops. Fishing is a dangerous vocation and, for safety reasons, it is better that two boats operate together, especially where waters are stormy, as in the Bay of Biscay; a good area for taking scallops. Here the relevant craft are the motor fishing vessel William Joseph and the motor fishing vessel Alicia. The licence of 27 June 2000 for the William Joseph, granted under s 222B of the Fisheries (Consolidation) Act 1959, as amended, covered the period 21 May 1999 to 30 June 2002 and was subject to a condition that it should “fish solely for aquaculture purposes and for bivalve shellfish species.” This licence was later renewed. It was subject to the same procedure as followed in respect of the Alicia.
The plaintiffs applied to license the Alicia on 29 November 2001, informing the defendant Minister that they sought an aquaculture licence. To their application, a map was attached indicating various areas in which they proposed to fish, which did not include the relevant area of the Bay of Biscay. The southernmost boundary was at latitude 48A, N. This therefore excluded the area relevant to this appeal, which in the relevant European Union legislation is called VIIIa and extends from the coast of France outwards for some 200 km in the northern area of the bay. Also accompanying the map was an economic questionnaire and a fishing plan. These documents enable the relevant Minister, acting through his officials under s 2 of the Ministers and Secretaries Act 1924, to formulate conditions for the licence pursuant to the relevant legislation. Whereas the economic questionnaire did not mention where the plaintiffs proposed to fish, the fishing plan clearly stated that the place in which the plaintiffs intended to fish for scallops included area VIIIa and other areas in the months of May and June, June and July, and September and October.
The licence for the Alicia was issued on 2 May 2002, to commence on that date and to continue up to 30 June 2004, and specifically it was a condition that the boat should fish solely in a specified segment for aquaculture purposes and bivalve shellfish. The relevant licences for the William Joseph and the Alicia were later extended. Some conversion was necessary of the boats in order to render them fit for the challenging waters of the Bay of Biscay.
Over some 22 days, in September 2002, May 2003, July 2003 and August 2003, area VIIIa was fished by the plaintiffs for scallops. On 18 August 2003, when both vessels were fishing just outside the territorial 12 mile limit of French waters, a French fishery patrol aircraft made contact with them and informed them that they were fishing illegally for scallops in that area. They were therefore ordered to proceed northwards above latitude 48A, N. They acted accordingly but decided to check on the information which they had received from the defendants: essentially, their query was whether it was lawful for them to fish where they had been fishing. The plaintiff Eugene Bates was ashore and thus in a position to contact the defendant Department when he received the query from the vessels. The information which he received from the Department was that the plaintiffs were entitled to fish...
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