Browne -v- The Minister for Agriculture Fisheries and Food

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 10 July 2020
• Neutral Citation: [2020] IECA 186
• Docket Number: Record No: 2019/183
• Court: Court of Appeal (Ireland)
• Date: 10 July 2020

COLUM BROWNE

Plaintiff Appellant

MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, IRELAND

AND

THE ATTORNEY GENERAL

Defendants/Respondents

[2020] IECA 186

Edwards J.

Donnelly J.

Noonan J.

Record No: 2019/183

THE COURT OF APPEAL

Declaratory relief – Damages – Preliminary issues – Appellant seeking to appeal against High Court’s judgment and order – Whether the High Court judge erred in law or on a mixed question of law and fact in dismissing the appellant’s claim

Facts: The plaintiff/appellant, Mr Browne, appealed to the Court of Appeal against the judgment of the High Court (Ní Raifeartaigh J) of the 13th of February 2019, and her Order consequent upon it made on the 5th of March 2019 and perfected on the 25th of March 2019, dismissing the plaintiff’s claim. It arose in the context of proceedings commenced by the plaintiff by Plenary Summons in which he claimed various declarations and damages from the defendants/respondents, the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General, for alleged tort, breach of his right to earn a livelihood and to own property pursuant to Article 40.3.1 of the Constitution of Ireland and Article 1 of the First Protocol of the European Convention on Human Rights. The High Court’s judgment ruled upon several preliminary issues that had been set down for determination prior to the hearing of the substantive case. The ruling on those issues was adverse to the plaintiff resulting in the dismissal of his claim with costs to the defendants. He appealed against the entirety of the High Court’s judgment and Order on four grounds: (1) the High Court judge erred in law or on a mixed question of law and fact (at paragraph 20 (iii) of her judgment) in holding that the plaintiff's claim in substance and truth involved a challenge to the legitimacy of the exercise of powers and/or discretions, while failing to hold that it also involved the failure of the defendants to apply a European Council Regulation to the length of the plaintiff’s boat when the Regulation did not give the defendants a power or a discretion to apply a different length to the plaintiff’s boat and/or the misfeasance of the defendants in applying a different rule; (2) the High Court judge erred in law or on a mixed question of law and fact (at paragraph 20(iii) of her judgment) in holding that in so far 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, while failing to distinguish between the relief sought by the plaintiff way of declarations, damages and reparations from the public law relief referred to by the judge; (3) the High Court judge erred in law and on a mixed question of law and of fact in failing to recognise that the plaintiff did not seek to set aside or reverse a public law decision or policy decision of the Minister (as had been the case in Kildare Meats Limited & Kildare Chilling Company v Minister for Agriculture and Food [2004] 1 1.R. 92) but sought to remedy the mis-application of that law and policy to him on the principles set out in O'Donnell v Dun Laoghaire Corporation [1991] lLRM 301, Dunlop v Woollahra Municipal Council [1982] A.C. 158 and Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; (4) the High Court judge erred in law or on a mixed question of law and fact in dismissing the whole of the plaintiff's claim.

Held by Edwards J that the High Court judge’s analysis of the reality of this case was correct and that her decision should be upheld. In his view the High Court judge’s judgment exhibited no error of principle, and she answered the questions for her determination as preliminary issues correctly.

Edwards J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr Justice Edwards on the 10 ^th day of July 2020

Introduction

1 For simplicity the plaintiff/appellant will be referred to in this judgment as the plaintiff, and the defendants/respondents will be referred to as the defendants.

2 This is an appeal against the judgment of the High Court (Ní Raifeartaigh J) of the 13 ^th of February 2019, and her Order consequent upon it made on the 5 ^th of March 2019 and perfected on the 25 ^th of March 2019. dismissing the plaintiff's claim. It arises in the context of proceedings commenced by the plaintiff by Plenary Summons in which he claims various declarations and damages from the defendants for alleged tort, breach of his right to earn a livelihood and to own property pursuant to Article 40. 3. 1. of the Constitution of Ireland and Article 1 of the First Protocol of the European Convention on Human Rights.

3 The High Court's said judgment ruled upon several preliminary issues that had been set down for determination prior to the hearing of the substantive case. The ruling on those issues was adverse to the plaintiff resulting in the dismissal of his claim with costs to the defendants. He now appeals against the entirety of the High Court's judgment and Order.

Background to the proceedings

4 The plaintiff is a sea fisherman and sea fishing boat owner. His boat is called the MFV Áine Íde. It was built in 1978 and purchased by him in 1993.

5 Following the establishment of the common fisheries policy, the then European Economic Community (EEC) sought to define characteristics for (sea) fishing vessels by regulation, and to that end promulgated Council Regulation (EEC) No 2930/86 determining characteristics for fishing vessels. The recitals to that regulation reflect the thinking behind it, in that they note that “in the framework of the common fisheries policy reference is made to the characteristics of fishing vessels, such as length, breath, tonnage, date of entry into service and engine power”, and they go on to assert (inter alia) that “it is essential that identical rules for determining the characteristics of fishing vessels should be used in order to unify the conditions for pursuit of the activity (i.e. commercial sea fishing) in the community.” Accordingly, Regulation (EEC) No 2930/86 aimed to set identical rules for determining the characteristics of fishing vessels for the purposes of the common fisheries policy by providing common definitions of what would constitute a vessel's length, breath, tonnage, engine power and data of entry the service.

6 In so far as it was later registered as a sea fishing boat for the purposes of the Fisheries (Amendment) Act 2003 (“the Act of 2003”) the MFV Áine Íde was registered as having a length of 65.5 ft, or 19.96 m, when measured according to Article 2.1 of Council Regulation (EEC) No 2930/86 which defines the length of a vessel as being “the distance in a straight line between the foremost point of the bow and the aftermost point of the stern”.

7 In so far as its tonnage was concerned, as a boat built during the currency of the Merchant Shipping (Tonnage) Regulations 1967 (SI No 23 of 1967) (“the 1967 tonnage regulations”), the MFV Áine Íde may be presumed to have had its tomiage initially measured in accordance with those regulations. By the time the plaintiff purchased the vessel in 1993 the 1967 tomiage regulations had been replaced by the Merchant Shipping (Tomiage) Regulations 1984 (S.I. 369/1984) (“the 1984 tonnage regulations”), which implemented the International Convention on Tomiage Measurement of Ships, 1969 (“the ICTM 1969”), but only for vessels of 24 metres or more in length. Vessels of less than 24 metres in length, such as the MFV Áine Íde, were exempted from the application of the Convention.

8 However, Article 4 of Council Regulation (EEC) No 2930/86 later required the gross tomiage characteristic of all community fishing boats, regardless of length, to be measured in the manner specified in Annex 1 to the ICTM 1969. What this meant in practical terms for vessels, such as MFV Áine Íde. that were already in service prior to the coming into effect of that regulation was that such vessels needed to be re-measured for tomiage purposes using a methodology that was ICTM 1969 Annex 1 compliant. Article 4 imposed an initial deadline in that regard of 18 July 1994.

9 As that deadline approached it was recognised that member states were having technical difficulties in implementing it, particularly in the case of smaller vessels for whom the ICTM tonnage measurement methodology was considered by some to be inappropriate. The MFV Áine Íde had not been re-measured for tonnage purposes at the point at which the plaintiff purchased it in 1993.

10 Shortly thereafter, Council Regulation (EEC) No 2930/86 was amended by Council Regulation (EC) 3295/94. The circumstances giving rise to the enactment of the amending Council Regulation (EC) 3529/94 and its concern with tonnage, to which I have already alluded in general terms, are reflected in the recitals to that instrument, which merit quotation (to the extent relevant):

“Whereas reference is made to the characteristics of fishing vessels in the common fisheries policy, requiring uniform definitions of vessel characteristics; whereas Council Regulation (EEC) No 2930/86 of 22 September 1986 defining the characteristics of fishing vessels (3) was adopted for this purpose;

Whereas Community action in this field should where possible be based on recommendations already adopted by specialist international organizations;

Whereas the need for a standardized international system of tonnage measurement of ships was recognized because of widely differing tonnages for individual ships of the same length; whereas, in view of this, the International Convention on Tonnage Measurement of Ships was signed in London on 23 June 1969 (ICTM 1969) under the aegis of the International Maritime Organization (IMO);

Whereas that Convention defines gross tonnage as a function of the total volume of all enclosed...