Bates v Minister for Agriculture Fisheries and Food

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 23 May 2019
• Neutral Citation: [2019] IESC 35
• Date: 23 May 2019
• Court: Supreme Court
• Docket Number: [Record No. IESC 2012/096

BETWEEN:

EUGENE BATES

AND

BRENDAN MOORE

PLAINTIFF/RESPONDENTS

AND

THE MINISTER FOR AGRICULTURE, FISHERIES & FOOD, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANT/APPELLANTS

[2019] IESC 35

MacMenamin J.

MacMenamin J.

Dunne J.

Charleton J.

[Record No. IESC 2012/096

IECA 2014/000394]

THE SUPREME COURT

Negligence – Damages – Fair procedures – Appellants seeking review of Supreme Court judgment – Whether there had been error in the Supreme Court judgment

Facts: The Supreme Court, in a judgment delivered on the 7th February, 2018, dismissed an appeal brought by the appellants, the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General (the Minister), against a judgment and order of the High Court (Laffoy J) made on the 15th November, 2011, awarding the respondents, Mr Bates and Mr Moore, the sum of €49,600 in damages arising from negligence by the Minister’s officials in tendering incorrect advice to them. On appeal, the Supreme Court upheld the High Court judgment of Laffoy J, holding that the narrative of the events and representations contained in the High Court judgment allowed for the narrower approach to the question of proximity relating to negligent misstatement by government officials as identified in Cromane Seafoods Limited v Minister for Agriculture [2016] IESC 6. The Minister applied to seek a review of the findings, alleging there had been error in the Supreme Court judgment. The Minister claimed that the judgment contained an incorrect narrative of events which took place on the 18th and 19th days of August, 2003, and that this account was central to the Court’s decision to dismiss the appeal, thereby upholding the High Court judgment. The Minister claimed that, acting within jurisdiction, the Court may lawfully review its judgment in the appeal. He submitted the judgment did not reflect the findings of the High Court judge which, in turn, were derived from the evidence adduced before her. The respondents submitted that this application was without precedent and not consistent with the terms of Article 34.4.6 of the Constitution. They submitted the judgment of the Court accurately reflected the description of events contained in the High Court judgment.

Held by MacMenamin J that the application must fail. He held that the Court cannot simply “vacate” parts of a judgment in the absence of a constitutional basis for adopting such a course of action. He held that no constitutional want of fairness arose and that there was no defect in procedure. He held that what occurred was not something extrinsic or extraneous to the judgment; in fact, the narrative part of the judgment was integral to it, and formed part of the reasoning. He held that it was not open to the Court to direct that the appeal be remitted to the High Court to make further findings. He noted that the judgment of the Court was unanimous and that no member of the Court felt it necessary to express any different view of the narrative, or took any issue with it. He held that the delay had been adverted to and that a court is entitled to, and must, proceed on the basis of what it is told by counsel. He held that fair procedures were observed and that the Court gave ample opportunity for the parties to consider the position prior to delivering this judgment.

MacMenamin J held that the application would be dismissed.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 23rd day of May 2019

1 In a judgment delivered on the 7th February, 2018, this Court dismissed an appeal brought by the appellants (now referred to in this judgment as ‘the Minister’) against a judgment and order of the High Court (Laffoy J.) made on the 15th November, 2011 ( [2011] IEHC 429; [2012] 1 I.R. 247). Laffoy J. awarded the two plaintiffs (‘the respondents’) the sum of €49,600 in damages arising from negligence by the Minister's officials in tendering incorrect advice to them. The High Court judge found those officials had acted negligently in advising the respondents that it was lawful for their two vessels to fish in an area of the Bay of Biscay, close to the French coast, known as Area VIII(a), when, in fact, it had been unlawful for them to do so. As a consequence, the vessels were arrested and the skippers fined, causing losses to the respondents.

2 Subsequent to the High Court judgment, this Court delivered its judgment in Cromane Seafoods Limited v. Minister for Agriculture [2016] IESC 6; [2017] 1 I.R. 119. That judgment set out principles of proximity relating to negligent misstatement by government officials. Inter alia, this Court held that an action might lie if an official had given specific negligent advice or information at a time proximate to the reliance by the recipient. On appeal, this Court upheld the High Court judgment of Laffoy J., albeit on narrower grounds, holding that the narrative of the events and representations contained in the High Court judgment allowed for the narrower approach to the question of proximity as identified in Cromane.

3 Six weeks after this Court delivered its judgment dismissing the appeal, and when the Court was about to make final consequential orders, the Minister applied to seek a review of the findings. He alleged there had been error in the judgment. In law, and in very exceptional circumstances, there is a limited jurisdiction to review a judgment of this Court on the basis of error. The general legal principles are considered later in this judgment. But, specifically to this appeal, for such an application to succeed, or even to be made, it is necessary to establish that there is actually a significant error in the judgment. If error there is, then it will be legitimate to enquire as to its source. If the alleged error is one of fact, an appeal court must ascertain whether the narrative of the facts in its judgment actually reflects the evidence in the case and the High Court judges” findings. Article 34.4.6 of the Constitution lays down that the decision of this Court in cases shall be ‘final’ and ‘conclusive’. Thus, a question must always arise as to whether an application comes within the terms of the Constitution itself, and principles laid down in the jurisprudence of this Court considered later.

4 The Minister claims that the judgment of this Court contained an incorrect narrative of events which took place on the 18th and 19th days of August, 2003, and that this account was central to the Court's decision to dismiss the appeal, thereby upholding the High Court judgment. Counsel for the Minister claims that, acting within jurisdiction, the Court may lawfully review its judgment in the appeal. He submits the judgment did not reflect the findings of the High Court judge which, in turn, were derived from the evidence adduced before her. In order to determine whether the Minister's application can be sustained, it will be necessary to consider what transpired in the High Court, and in the appeal, in some detail. The jurisprudence establishes that an application of this type will be rare and exceptional. There is a duty on any party seeking to bring such an application to exercise great care.

5 To understand the background, it is necessary to trace the proceedings from the outset, the evidence in the High Court, Laffoy J.'s judgment, and then move to what this Court was given to understand about the sequence of events on the appeal. This requires consideration of both written and oral submissions. Thereafter, the parties” submissions in this application to review the judgment will be considered. The Court must determine whether the Minister is seeking simply to correct some error or errors in the judgment, or whether the effect of the application would, in fact, be to reopen the merits of the case. The respondents submit that this application is without precedent and not consistent with the terms of Article 34.4.6 of the Constitution. They submit the judgment of this Court accurately reflects the description of events contained in the High Court judgment. It is also necessary to refer to the transcript of evidence. This was an Article 64 appeal, originally listed before the Court of Appeal, but transferred to this Court. The appeal was heard on the 1st December, 2017. This judgment was preceded by a series of steps where before any trial, there were unfortunate errors in the pleading. It must be understood that, when drafting proceedings, counsel will proceed on the basis of instructions. So, too, in drafting a defence. But, in either instance, there is a duty on counsel to ensure that the pleadings contain a succinct and accurate account of the facts and issues to be determined.

Background

6 I gratefully adopt the background set out by Laffoy J. in the High Court judgment. At the material time between 1999 and 2005, the respondents were business partners involved in scallop fishing. The fishing operations in issue in these proceedings were conducted by the fishing vessels owned by them, namely, the MFV ‘William Joseph’ (the ‘William Joseph’), and the MFV ‘Alicia’ (the ‘Alicia’). The respondents first obtained a licence for a sea fishing boat on the 27th June, 2000. This was for the use of the William Joseph for sea fishing during the period from the 21st May, 1999, to the 30th June, 2002. The schedule to this licence contained the particulars of the vessel. It indicated that it was a ‘specific segment’ boat. What this meant was expressly conditioned into the licence, which stipulated that the vessel should ‘fish solely for aquaculture purposes, and for bivalve shellfish species’. On the 19th June, 2002, the respondents were granted a renewal licence in respect of the William Joseph for the period from the 1st July, 2002, to the 30th June, 2005. The process leading to the grant of these licences in respect of the William Joseph was similar to the process outlined in the judgment regarding the grant of...