Bates & Moore v Min for Agriculture and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 15 November 2011
• Neutral Citation: [2011] IEHC 429
• Court: High Court
• Docket Number: [2009 No. 3969P]
• Date: 15 November 2011

[2011] IEHC 429

THE HIGH COURT

[No. 3969 P/2009]

Bates & Moore v Min for Agriculture & Ors

BETWEEN

EUGENE BATES AND BRENDAN MOORE

PLAINTIFFS

AND

THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

FISHERIES (CONSOLIDATION) ACT 1959 S222(B)

FISHERIES (AMDT) ACT 1994 S5

FISHERIES (CONSOLIDATION) ACT 1959 S222(B)(3)

EEC REG 2027/95

DUFF v MIN FOR AGRICULTURE (NO.2) 1997 2 IR 22

CONSTITUTION ART 43

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

PINE VALLEY v IRELAND 1991 14 EHRR 319

ABRAHAMSON v LAW SOCIETY OF IRELAND 1996 1 IR 403

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

WILEY v REVENUE COMMISSIONERS 1994 2 IR 160

IMPOSITION OF DUTIES (NO 236) (EXCISE DUTIES ON MOTOR VEHICLES TELEVISIONS & GRAMOPHONE RECORDS) ORDER 1979 SI 57/1979 ART 12

DALY v MIN FOR THE MARINE 2001 3 IR 513

GLENCAR EXPLORATIONS v MAYO CO COUNCIL (NO.2) 2002 1 IR 84

EMERALD MEATS LTD v MIN FOR AGRICULTURE (NO.2) 1997 1 IR 1

EEC REG 4024/89

FRANCOVICH, BONIFACI & ORS v ITALY 1991 ECR I-05357

BEATTY v RENT TRIBUNAL 2006 2 IR 191

W v IRELAND (NO.2) 1997 2 IR 151

WARD v MCMASTER 1988 IR 337

DONOGHUE v STEVENSON 1932 AC 562

ANNS v MERTON LONDON BOROUGH 1978 AC 728

SINEY v DUBLIN CORPORATION 1980 IR 400

HOUSING (PRIVATE RENTED DWELLINGS) ACT 1982

M (L) v CMSR OF AN GARDA SIOCHANA & ORS UNREP HEDIGAN 20.1.2011 2011 IEHC 14

L (B) v IRELAND & ORS 2011 1 IR 374

X (MINORS) v BEDFORDSHIRE CC 1995 3 AER 353

HOUSING ACT 1966

BINCHY LAW OF TORTS 3ED PARA 10.141

WILDGUST v BANK OF IRELAND 2006 1 IR 570

EEC REG 1954/2003

EEC REG 1415/2004

NEGLIGENCE

Duty of care

Legitimate expectation - Negligent misstatement - Duty of care owed by public authority - Whether expectation legitimate or reasonable - Whether public authority liable for damages for negligent misstatement - Whether public authority owes same duty as private body for statement made - Wiley v Revenue Commissioners [1994] 2 IR 16, Wildgust v Bank of Ireland [2006] IESC 19, [2006] 1 IR 570 and Glencar Explorations v Mayo County Council (No 2) [2002] IR 84 applied; W v Ireland (No 2) [1997] 2 IR 141, Ward v McMaster [1988] IR 337 and Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 465 followed; Emerald Meats Ltd v Minister for Agriculture (No 2) [1997] 1 IR 1 distinguished - Damages of €49,600 awarded (2009/3969P - 15/11/2011) [2011] IEHC 429

Bates v Minister for Agriculture, Fisheries and Food

Facts: The plaintiffs were Irish nationals involved in fishing for scallops and held licences accordingly and had been informed by French authorities that they were fishing illegally. They had received assurances from Irish authorities that the position was to the contrary. The plaintiffs claimed damages for expenditure loss resulting from misinformation and assurances arising from the failure of the Minister to ensure the plaintiffs had access to an accurate copy of Council Regulation (EC) No. 2027/95 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources, giving the plaintiffs incorrect assurances about their entitlement to fish off the French coast, making inaccurate representations and breaching their legitimate expectations.

Held by Laffoy J. that some official of the Department for whom the defendants were vicariously liable must have been negligent in failing to ensure that the version of the translation of the 1995 Regulation which was available correctly reflected the Regulation as implemented. The plaintiffs had established an entitlement to damages to compensate them for the economic loss which they incurred as a result of acting on incorrect information given by officials. The plaintiffs would be awarded Eur 40,000 for expenditure and loss incurred as a result of the arrest of two vessels, the confiscation of the catch and the criminal and civil proceedings in France. They would be awarded Eur 9,600 for the loss of earnings for being unable to fish for four days at Eur 1,200 per day. The claim for capital loss was not sustainable.

Reporter: E.F.

1 Judgment of Miss Justice Laffoy delivered on 15th day of November, 2011.

1. The factual basis of the plaintiffs' case as pleaded and proven

2 2 1.1 At the hearing of these proceedings, the plaintiffs did not pursue one aspect of their case as pleaded. Notwithstanding that the defendants in their defence had pleaded that the aspect in question was "entirely misconceived", the plaintiffs persisted in pursuing it until, on the first day of the hearing, the plaintiffs' case was being opened by their counsel. Therefore, the following summary of the factual basis of the plaintiffs' case only relates to the case as pursued at the hearing.

3 3 1.2 At the material time, that is to say, from 1999 to 2005, the plaintiffs, who were business partners, were involved in fishing for scallops. The fishing operations which are in issue in these proceedings were conducted from two fishing vessels owned by them, namely: the MFV "William Joseph" (the "William Joseph"); and the MFV "Alicia" (the "Alicia").

4 4 1.3 The first licence for a sea-fishing boat which the plaintiffs obtained from the predecessor of the first defendant (the Minister) was dated 27 ^th June, 2000. It licensed the use of the "William Joseph" for sea fishing during the period commencing on 21 ^st May, 1999 and ending on 30 ^th June, 2002. The schedule which contained the particulars of the vessel indicated that it was a "Specific" segment boat. What this meant was expressly conditioned into the licence, in that it was provided in the conditions that the vessel should "fish solely for Aquaculture purposes and for Bi-Valve Shellfish Species". On 19 ^th June, 2002 a renewal licence issued to the plaintiffs in respect of the "William Joseph" for the period from 1 ^st July, 2002 to 30 ^th June, 2005. The process leading to the grant of those licences in respect of the "William Joseph" was similar to the process which I will outline later in relation to the grant of licences in respect of the "Alicia". Both licences granted by the Minister in respect of the "William Joseph" were expressed to be granted pursuant to s. 222B of the Fisheries (Consolidation) Act 1959 (the Act of 1959), as amended.

5 5 1.4 The evidence of the first plaintiff (Mr. Bates) was that the plaintiffs commenced fishing with the "William Joseph" in June 1999. That vessel was based in Newlyn, Cornwall and fished in the English Channel and the surrounding waters. As time went on, the skipper pushed further south and east in the direction of the Bay of Biscay. Scallop fishing is regulated under EU law on an area basis by reference to areas defined by the International Council for Exploration of the Sea (ICES) and the various areas are known by the relevant ICES designation. The portion of the Bay of Biscay which was the plaintiffs' goal is ICES Area VIIIa. That area is south of latitude 48°N. Mr. Bates' evidence was that there was an abundance of scallops in Area VIIIa. In early 2000 he was assured by an officer in the Minister's Department (the Department), Michael O'Driscoll, that the plaintiffs were legally entitled to fish for scallops in Area VIIIa. Mr. Bates' evidence was that in late 2000 the plaintiffs saw the prospect of making a lot of money fishing in Area VIIIa and they decided to acquire another vessel, with the intention that the new vessel would, for safety purposes, fish in conjunction with the "William Joseph" in that area, in which weather and sea conditions can be extremely dangerous.

6 6 1.5 The application process for the licence for the "Alicia" took the following course:

7 (a) An initial application to transfer a licence from another vessel owned by Mr. Bates to the "Alicia" having been refused, on 29 ^th October, 2001 the plaintiffs informed the Department that they proposed applying for an aquaculture licence for the "Alicia". In that letter they informed the Department of the areas in which they intended to operate, being the areas in which the "William Joseph" was operating. It was indicated that in the months of May to November the area of operation would be the South English Channel and West Brittany, as highlighted on the map enclosed with the letter. The map indicated that Area VIIe/h would be fished from May to November. Area VIIIa was not depicted on it.

8 (b) The application for the licence was dated 29 ^th November, 2001. It was accompanied by a statement of the same date, which was addressed to the relevant section of the Department and was signed by Mr. Bates. It stated that the "Alicia" would fish for scallops in the area highlighted on the map attached. The map showed various areas, including Area VIIa/b/e/f/g/h/j. The map did not include Area VIIIa, the southern most boundary being latitude 48°N. However, "VIII" was written on the map, obviously by Mr. Bates, below that line. I do not think that it would be reasonable to assume that an officer of the Department would have inferred from the letter in conjunction with the map that the plaintiffs intended for fishing for scallops in Area VIIIa.

9 (c) In December 2001 a licence offer issued from the Department to the plaintiffs and it was accepted. The plaintiffs then acquired the "Alicia".

10 (d) In April 2002 the plaintiffs submitted an Economic Link Questionnaire to the Department together with a Fishing Plan as required by the Department. As to the purpose of those two documents and their relevance to the issue with which the Court is concerned, the evidence established the following:

11 (i) The Economic Link Questionnaire became part of the licensing process in 1994 when the Act of 1959 was amended by s. 5 of the Fisheries (Amendment) Act 1994) (the Act of 1994)...