Browne v Registrar General of Fishing Boats and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 09 September 2025
• Neutral Citation: [2025] IEHC 486
• Docket Number: Record No.: 2017/11289 P

Between:

Colum Browne

Plaintiff

and

The Registrar General of Fishing Boats, The Minister for Agriculture, Ireland and the Attorney General

Defendants

[2025] IEHC 486

Record No.: 2017/11289 P

THE HIGH COURT

Strike out – Abuse of process – Re-measurement of vessel – Defendants seeking to strike out the plaintiff’s claim – Whether the defendants' proceedings were an abuse of process

Facts: The defendants, the Registrar General of Fishing Boats, the Minister for Agriculture, Ireland and the Attorney General, applied to the High Court to strike out the claim of the plaintiff, Mr Browne, pursuant to Order 19, rule 28 of the Rules of the Superior Courts (the Rules) or, in the alternative, pursuant to the court’s inherent jurisdiction. The plaintiff’s claim had, at its heart, a complaint that the method which was used to re-measure his sea-fishing vessel, the MFV Áine Íde, in 2003 was not in compliance with law, including EU law. He issued proceedings in 2012 which raised the same complaint. Those proceedings were dismissed by the High Court ([2019] IEHC 237) and Court of Appeal ([2020] IECA 186) on the basis that they involved a challenge to an administrative decision of a type capable of being challenged in judicial review proceedings but which had not been brought within the applicable time limit for such proceedings. The Supreme Court refused leave to appeal ([2023] IESCDET 35) on the basis that the Court of Appeal’s decision involved the application of well-established case law and no issue of general public importance arose. The basis of the defendants’ application to have the proceedings struck out was that the plaintiff had already brought proceedings challenging the lawfulness of the re-measurement of the vessel. The defendants argued that these proceedings, grounded in the same allegation of illegality as those earlier proceedings, were bound to fail, were an abuse of process and should, accordingly, be struck out. In their written submissions, the defendants referred to a significant body of case law addressing well established principles regarding the jurisdiction to strike out proceedings, and also the doctrine of res judicata and the related rule in Henderson v Henderson.

Held by Mulcahy J that, in circumstances where those earlier proceedings were finally determined, it was impermissible for the plaintiff to seek to advance these proceedings grounded on the same complaint save in very exceptional circumstances. Mulcahy J held that the plaintiff had not identified any basis upon which he should be entitled, exceptionally, to proceed. Mulcahy J held that, in substance, the plaintiff issued these proceedings in order to protect his position in the 2012 proceedings. Mulcahy J found that the plaintiff was unhappy, no doubt frustrated, with the outcome of those proceedings, which saw his claim dismissed on procedural grounds, the proceedings having been commenced out of time. Mulcahy J found that the plaintiff sought to use these proceedings as a vehicle to circumvent the conclusion that the earlier proceedings were out of time. Mulcahy J held that it would plainly be an abuse of process to entitle him to do so.

Mulcahy J made an order striking out the proceedings pursuant to Order 19, rule 28(1) of the Rules.

Application granted.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 9 September 2025

Introduction

1 . This judgment concerns the defendants' application to strike out the plaintiff's claim pursuant to Order 19, rule 28 of the Rules of the Superior Courts (“ the Rules”) or, in the alternative, pursuant to the court's inherent jurisdiction.

2 . In December 2017, the plaintiff issued the within proceedings seeking certain remedies arising out of the processing by the defendants of a Capacity Assignment Note relating to the capacity which attached to his sea-fishing vessel, the MFV Áine Íde (“ the vessel”). The Capacity Assignment Note was a request to the first defendant to transfer the permitted tonnage associated with the vessel from the plaintiff to a third party, the Governor and Company of the Bank of Ireland, pursuant to a fixed charge over the capacity dated 4 July 2001. By earlier decision dated 27 March 2017, the first defendant had removed the vessel from the Register of Fishing Vessels.

3 . At the same time as issuing the within proceedings, the plaintiff issued a motion seeking interlocutory relief, restraining the defendants from processing the Capacity Assignment Note and reinstating the capacity in respect of the vessel in the plaintiff's name. As appears from his affidavit grounding that motion, the plaintiff contended that the Capacity Assignment Note could not be processed as the “ entire matter of the capacity attaching to” the vessel was the subject of separate proceedings, Record No. 2012/9729P. It appears, therefore, that the plaintiff issued these proceedings in support of the 2012 proceedings. The injunction application was struck out on 19 November 2018 in circumstances where the plaintiff indicated that he did not wish to pursue it. The plaintiff took no further action in these proceedings until he delivered a Statement of Claim in December 2023.

4 . As appears from that Statement of Claim, and as confirmed by Mr Browne in oral submissions at the hearing of this application, the plaintiff's complaint about the processing of the Capacity Assignment Note is entirely premised on a complaint about the re-measurement of the vessel by the second defendant, his servants or agents, in 2003. The plaintiff contends that the re-measurement, which had the effect that the vessel was re-classified from the over-65 feet category of fishing vessels to the under-65 feet category, was in breach of law, including EU law, and was therefore unlawful.

5 . The difficulty for the plaintiff, and the basis of the defendants' application to have these proceedings struck out, is that the plaintiff has already brought proceedings challenging the lawfulness of the re-measurement of the vessel, Browne v The Minister for Agriculture and Ors, Record No. 2012/9729P, the proceedings referred to in the plaintiff's application grounding his injunction application. Those proceedings were dismissed by the High Court ( [2019] IEHC 237) and the plaintiff's appeal was rejected by the Court of Appeal ( [2020] IECA 186). The Supreme Court refused leave to appeal ( [2023] IESCDET 35) on the basis that the Court of Appeal's decision involved the application of well-established case law and no issue of general public importance arose.

6 . In those circumstances, argue the defendants, these proceedings, grounded in the same allegation of illegality as those earlier proceedings, are bound to fail and are an abuse of process and should, accordingly, be struck out. I am bound to agree.

The 2012 proceedings

7 . The circumstances giving rise to the 2012 proceedings are set out at paragraphs 2 to 7 of the High Court judgment. In brief terms, the vessel was built in 1978 and was registered as having a length of 65.5 feet. The Irish fishing fleet was divided into vessels above and below 65 feet for licensing purposes. After the plaintiff purchased the vessel in 1993, he was issued with licences to fish both mackerel and herring in the over-65 feet category. It appears that very significantly higher tonnages were permitted in the over-65 feet category than in the smaller category.

8 . In 2003, the Marine Service Office (MSO) of the Department of Transport re-measured the vessel in purported accordance with Council Regulation (EC) 3259/94, and recorded the vessel's length as 63.79 feet. The plaintiff was notified of this in December 2003 and the change of registered length was entered on the register in April 2004. Following a complaint to the second defendant, the Minister, by the plaintiff, the MSO confirmed the decision to the Minister in October 2006.

9 . From, at the latest, 2006, the plaintiff was not granted any license to fish either mackerel or herring in the over-65 feet category.

10 . Certain policy directives were introduced by the Minister, in 2011 and 2012, which provided for the allocation of quotas on the basis of a track record of a vessel in previous years. In circumstances where the plaintiff had not been licensed in the over-65 feet category since, at the latest, 2006, he was not able to show a track record entitling him to a quota. Shortly after the second of these policy directives was introduced, the plaintiff issued the 2012 proceedings challenging the introduction of the policies, and seeking a declaration that he had been entitled to a renewal of his licences in 2006 in the over-65 feet category, in circumstances where there had been no change in the vessel from that previously measured.

11 . Following an exchange of pleadings, the defendants brought a preliminary application to dismiss the plaintiff's proceedings. They claimed that the relief sought by the plaintiff was a remedy more properly sought by way of judicial review, since it involved a challenge to the lawfulness of the administrative decision to re-measure the vessel, and therefore the plaintiff was bound by the time limits applicable to judicial review. The defendants contended that the proceedings had been instituted long outside the applicable time limit and should, accordingly, be dismissed.

12 . The High Court (Ní Raifeartaigh J) agreed, and determined that the proceedings had not been brought within time, and that there was no basis to extend time:

“ 17. The plaintiff, as noted earlier, sought to emphasise that each new season brings a fresh decision of the Minister/authorisations with regard to the allocation of quotas/fishing opportunity and (if I understand his argument correctly) that it was only from 2011 and 2012 that time should be deemed to run because it was only on those dates that the earlier re-measurement ‘decisions’ and the introduction of the...