Crayden Fishing Company Ltd v Sea Fisheries Protection Authority

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 10 June 2016
• Neutral Citation: [2016] IESCDET 77
• Court: Supreme Court
• Date: 10 June 2016

[2016] IESCDET 77

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

CRAYDEN FISHING COMPANY LIMITED

APPLICANT/RESPONDENTS

AND

SEA FISHERIES PROTECTION AUTHORITY

RESPONDENT/APPLICANTS

AND

THE MINISTER FOR THE MARINE IRELAND

THE ATTORNEY GENERAL

AND

MICHAEL O'CONNOR

NOTICE PARTIES

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Respondents and Notice Parties to appeal to this Court directly from the High Court.

REASONS GIVEN:

1. Jurisdiction

1 This determination relates to an application by the respondents and the notice parties to the original proceedings (collectively, ‘the State’) for leave to appeal under Art. 34.5.4 of the Constitution directly from the judgment of the High Court (O'Malley J) delivered on the 26th January 2016. The order appealed against was made on the 9th February 2016 and perfected on the 24th February 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

3 These proceedings arise from the operation of the European Union (Common Fisheries Policy) (Points System) Regulations 2014 (‘the Regulations’). The applicant/respondent (‘Crayden’) operates a fishing vessel, the Anders Nees. In December, 2014 it is said that a large quantity of fish was found in a compartment on that vessel which was not recorded in the relevant electronic logbook. Thereafter a process of seeking to invoke the Regulation (which has the effect of imposing points for infringements) was put in place and a determination to impose 12 such points was communicated to Crayden by letter of the 19th January 2015. These judicial review proceedings were commenced with a view to establishing that the procedures specified in the Regulations are contrary to constitutional justice and that the manner in which the relevant points were imposed on Crayden should be likewise so determined.

3. The Order appealed against

4 The High Court (O'Malley J.) concluded, on a number of bases, that the manner in which points were assigned to Crayden's fishing licence in this case was contrary to fair procedures. It is against the entirety of that order that the respondent and the notice parties (‘collectively the State’) seek to appeal directly to this Court.

4. The Contentions of the Parties

5 The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

6 However, it is important to note that the State also draws attention to a separate application for leapfrog leave currently before this Court in respect of a judgment of the High Court (O'Connor J.) in O'Sullivan & anor v. Sea Fisheries Protection Authority & ors (High Court record no. 2015 no. 2900P) (‘ O'Sullivan’) in which the judgment of the High Court was delivered on the 15th January, 2016. It is said by the State that, while the issues which arise in O'Sullivan are not the same as the issues which arise in these proceedings, nonetheless both proceedings relate to the Regulations and both involve a challenge to the validity and operation of the Regulations as a result of which, for differing reasons, the Regulations are said in substances to be lawfully inoperable.

7 As appears from the State's notice of application, it is said that the decision of the High Court in this case relates to the manner in which the State has operated the Regulations which are mandated by a series of European Union measures set out in detail in that notice. It is said that the decision of the High Court is not specific to the circumstances of these proceedings but rather has the potential to affect any relevant measures adopted under the Regulations. In addition it is said that some of the criteria identified by the trial judge as being appropriate for the purposes of determining whether a ‘serious infringement’ of EU fishing law has taken place do not conform with EU law.

8 While the State does separately make reference to certain matters being sought to be dealt with by this Court under the second constitutional requirement (being that it is necessary in the public interest for an appeal to this Court to be permitted), it is clear from the text of the State's application that those matters are directed towards the question of whether a leapfrog...