Browne v Minister for Agriculture, Fisheries and Food
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ni Raifeartaigh |
| Judgment Date | 13 February 2019 |
| Neutral Citation | [2019] IEHC 237 |
| Court | High Court |
| Docket Number | [2012 No. 9729 P.] |
| Date | 13 February 2019 |
AND
[2019] IEHC 237
[2012 No. 9729 P.]
THE HIGH COURT
Preliminary issues – Time limits – Damages – Plaintiff seeking damages and declaratory reliefs – Whether the plaintiff’s causes of action were time-barred
Facts: The plaintiff, Mr Browne, in plenary proceedings, sought damages and declaratory reliefs, arising out of certain policy decisions made by the first defendant, the Minister for Agriculture, Fisheries and Food, in relation to fishing policy. The preliminary issues which came before the High Court (Ní Raifeartaigh J) prior to the hearing of the substantive case included: (1) whether the plaintiff’s alleged cause or causes of action as against the defendants was or were time-barred pursuant to s. 11 of the Statute of Limitations Act 1957; and/or (2) whether the plaintiff’s claim, in reality, was a challenge to the legitimacy of the exercise of powers and/or discretions in years as far back as 2003 on public law grounds in circumstances where the plaintiff failed to make any such challenge or challenges by way of judicial review within the applicable time limits for judicial review. There was also a preliminary issue concerning delay on the part of the plaintiff but this was not pursued by the defendant at the hearing before Ní Raifeartaigh J. The overall context was that the plaintiff owned a fishing vessel called the MFV Áine Íde and complained that various decisions and policies on the part of State authorities had removed his ability to fish for herring and mackerel due to the fact that, he contended, his vessel was erroneously re-categorised as an under-65 foot vessel instead of an over-65 foot vessel in 2003.
Held by Ní Raifeartaigh J that: (i) the issue of whether the plaintiff’s alleged cause or causes of action as against the defendants was and/or were time barred pursuant to s. 11 of the 1957 Act was not applicable by virtue of her finding on issue (iii) below; (ii) the issue of whether the plaintiff was guilty of prolonged, inordinate and inexcusable delay such that the defendants would have been or would now be prejudiced and unable to get a fair trial was not pursued, therefore it was not necessary for her to make a finding on same; and (iii) regarding the issue of whether the plaintiff’s claim in substance and truth involved a challenge to the legitimacy of the exercise of powers and/or discretions, and, whether, insofar as the plaintiff had not sought to challenge the decisions listed in the submissions on public law grounds, he accordingly was precluded from pursuing the relief in respect of same, the answer to both questions was yes and that the plaintiff was precluded from pursuing the reliefs described. In respect of whether the plaintiff had failed to make such challenge or challenges promptly and/or within the applicable time limits and in that regard should be accordingly dismissed, Ní Raifeartaigh J found the answer to be yes.
Judgment approved.
This judgment involves a ruling on a number of preliminary issues set down for determination prior to the hearing of the substantive case. The substantive proceedings are plenary proceedings in which the plaintiff seeks damages and declaratory reliefs, arising out of certain policy decisions made by the defendant Minister in relation to fishing policy. The preliminary issues which came before me included: (1) whether the plaintiff's alleged cause or causes of action as against the defendants is or are time-barred pursuant to s. 11 (as amended) of the Statute of Limitations Act 1957; and/or (2) whether the plaintiff's claim, in reality, is a challenge to the legitimacy of the exercise of powers and/or discretions in years as far back as 2003 on public law grounds in circumstances where the plaintiff failed to make any such challenge or challenges by way of judicial review within the applicable time limits for judicial review. There was also a preliminary issue concerning delay on the part of the plaintiff but this was not pursued by the defendant at the hearing before me. The overall context is that the plaintiff owns a fishing vessel called the MFV Áine Íde and complains that various decisions and policies on the part of State authorities have removed his ability to fish for herring and mackerel due to the fact that, he contends, his vessel was erroneously re-categorised as an under-65 foot vessel instead of an over-65 foot vessel in 2003.
The MFV Áine Íde was built in 1978 and was registered as having a length of 65.5ft. After 1983, the Irish fishing fleet was divided into vessels over and under 65ft for licensing purposes. The Áine Íde obtained licences and fished in the over-65 ft segment of the fleet for herring and mackerel. In 1993, the plaintiff purchased the Áine Íde. The fishing licences and authorisations issued to him after his purchase of the vessel referred to the vessel being in the over-65ft segment of the fleet.
In 2003, the Marine Survey Office of the Department of Transport re-measured the Áine Íde in accordance with Council Regulation (EC) 3529/94 and recorded the vessel's length as 63.97ft.. This was notified to the plaintiff on the 30th December 2003 and the change of registered length was entered on the register on 21st April 2004.
From (at the latest) 2006 onwards, the Áine Íde was not granted a quota authorisation in either the mackerel or herring fishery for over-65ft vessels, but was apparently granted authorisation in the under-65 ft category. It appears that, on foot of a complaint by the plaintiff, the Minister referred the matter to the Marine Survey Office and that on the 3rd October, 2006, the latter informed the Minister that the change in registered length was a national change for the calculation of tonnage and there had been no physical change in the actual length of the vessel. Thereafter, the vessel was never granted any licence or entitlement to fish for herring or mackerel in the over-65ft category.
In 2010, the Minister introduced a policy which involved categorising vessels into ‘Tier 1’ and ‘Tier 2 vessels’ and allocating quotas in respect of mackerel and herring fisheries on the basis of the vessel's track record of fishing for those species in particular years. This policy was given effect to in the subsequent Policy Directives referred to below.
On the 26th January 2011, the Minister issued a Policy Directive under s.3(2) of the Fisheries Amendment Act 2003, as amended, that his Department would determine which vessels would qualify for Tier 1 and Tier 2 for the purpose of mackerel fishing; allocations were to be based on track record of the vessel between the years 2007 to 2009. Tier 1 vessels were those which had landed 275 tonnes per year. The Áine Íde did not qualify for Tier 1 or Tier 2.
On the 19th September 2012, the Minister issued a Policy Directive under s.3(2) of the Fisheries Amendment Act 2003, as amended, that his Department would determine which vessels would qualify for Tier 1 and Tier 2 for the purpose of herring fishing, which involved a ring-fencing of certain vessels, again based on track record. A subsequent Policy Directive dated the 11th October 2012 made minor amendments to the first Policy Directive. The Áine Íde was not placed in the ring-fenced portion of either the North West or Celtic sea herring fisheries.
A plenary summons issued on 28th September, 2012. A statement of claim was delivered on 18th December, 2015. There was an exchange of particulars and a defence was delivered on 8th March, 2016.
In his plenary proceedings, the plaintiff including the following among the reliefs sought:
(a) a declaration that the plaintiff was entitled in the year 2006 to the full renewal of his sea-fishing boat licence for a boat of more than 65ft in length in circumstances where there had been no actual change in the length of the boat and notwithstanding that the method of the Marine Survey Office of measuring length for their purposes had changed;
(b) a declaration that the Minister was not entitled to give an inflexible sea fishing policy directive in or about the year 2010 which had or would have the effect of excluding the plaintiff from the mackerel fishery thereafter because he had not held the licence of which he had been deprived in prior years and, therefore, could not meet the history of landings or other requirements of the 2010 Policy Directive;
(c) a declaration that the Minister was not entitled to give an inflexible sea fishing policy directive in or about the year 2011which had or would have the effect of excluding the plaintiff from the herring fishery thereafter because he had not...
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