Daly v Min for The Marine, Ireland &Ag

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 25 February 1999
• Neutral Citation: [1999] IEHC 115
• Docket Number: No. 327/1997
• Court: High Court
• Date: 25 February 1999

[1999] IEHC 115

THE HIGH COURT

No. 327/1997

DALY v. MIN FOR THE MARINE, IRELAND &AG

JUDICIAL REVIEW

BETWEEN

CARL DALY

APPLICANT

AND

THE MINISTER FOR THE MARINE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S222B

MERCHANT SHIPPING ACT 1894 S222B(3)

MERCANTILE MARINE ACT 1955

FISHERIES (AMDT) ACT 1983 S8

FISHERIES ACTS 1842 – 1958

MERCHANT SHIPPING ACT 1894 S222B(2)

AMALGAMATED PROPERTY CO LTD V TEXAS BANK 1982 QB 84

ABRAHAMSON V LAW SOCIETY OF IRELAND 1996 1 IR 403

WILEY V REVENUE COMMISSIONERS 1994 2 IR 160

MURPHY V MIN FOR MARINE 1997 2 ILRM 523

Synopsis

Fisheries

Judicial review; legitimate expectation; EU Common Fisheries Policy; respondent operated a "replacement policy" requiring new entrants to the fishing fleet to demonstrate a ton for ton withdrawal from the register as a requirement to obtain a licence; as a result of that policy the tonnage assigned to a licensed vessel was a valuable commodity; applicant wished to sell tonnage of ship; consent of respondent was necessary for sale; letter from respondent to applicant offering licence subject to the condition that tonnage would be used for aquaculture purposes only, licence issued but did not state condition; applicant believed licence allowed demersal fishing; letter from respondent confirming view of applicant; letter issued in error; respondent refused to allow applicant to sell tonnage for replacement purposes; whether the applicant had a legitimate expectation that respondent would allow sale of tonnage for replacement purposes; whether the expectation was reasonable; whether it would be unjust and unfair to allow the respondent to go back on letter Held: Reliefs refused Daly v. Minister for the Marine - High Court: O' Sullivan J. - 25/02/1999

Error or mistake does not necessarily preclude the operation of the doctrine of legitimate expectations when the parties proceed on the basis of the mistaken assumption. However, it was not reasonable for the applicant to presume that the first respondent had resiled from the original basis on which the license was to be granted. The High Court so held in refusing the reliefs sought and further saying that it would not be fair or equitable to allow the applicant to use the tonnage of his vessel for general replacement purposes in the Irish fleet.

JUDGMENT of

O'Sullivan J.

1 delivered the 25th day of February 1999 .

INTRODUCTION

2 The Applicant is a fisherman and mussel farmer and the owner of a motor fishing boat, the "Angela Madeline", a 38 ft. stell vessel, built in 1991 by Dingle Boats Teoranta with the benefit of a grant and loan from Bord Iascaign Mhara ("B.I.M.") and a further grant from the EU, the "FEOGA" grant.

3 Because the Angela Madeline was less than 65 feet overall length, it was exempt from the requirement (under Section 222B of the Fisheries (Consolidation) Act,1959)to have a sea-fishing licence but, not withstanding exemption, did require a licence if she was to be registered under the Merchant Shipping Act, 1894 and the Merchantile Marine Act,1955. B.I.M. required such registration as a condition of granting the loan primarily in order to register its interest against the vessel which could only be done if she was registered.

4 Accordingly, the Applicant made contact with the first named Respondent's Department during 1990 and 1991 to indicate his intention to apply for such a licence.

5 The first named Respondent is, inter alia, authorised under the Fisheries (Amendment) Act,1983to grant licences thereunder and he is also the State authority charged with implementation of relevant EU policies to which I will refer in more detail later. The second and third named Respondents appear to have been joined because the statement grounding the application seeks at paragraph 8 a declaration that the refusal of the first named Respondent ("the Minister") to allow the Angela Madeline to be used as replacement capacity for the entry of another vessel onto the fishing flect is in breach of the Applicant's constitutional rights, namely, the right to properly and to earn a livelihood. These specific declarations were not sought in the hearing before me.

6 Before setting out the facts. I should explain that what is known as the"replacement policy" operated by the Minister requires that new entrants to the Irish Fleet (or replacement of existing vessels by larger ones) must demonstrate a ton for ton withdrawl from the Register (known as the one hundred per cent replacement policy) as a requirement of obtaining a licence. This policy was adopted in May of 1990 as a method of controlling the size of the Irish Fleet, itself required to be reduced by some 25% following a European Commission decision of December 1987 (modified one year later) imposing on the second Respondent an obligation significantly to reduce its fleet capacity in stages during the period 1987 to the end of 1991. This decision was itself taken in light of the conservation objectives of the Common Fisheries Policy of the European Union.

7 Pursuant to the replacement policy, the tonnage assigned to licensed vessels became a valuable commodity in and of itself and was something that could be"sold" to the owner of another vessel who required it to be licensed.

8 In the present case the Applicant decided to"sell"the tonnage of the Angela Madeline towards the beginning of 1997. Through an intermediary, one Pat Crowley, a Solicitor who regularly advertises to buy tonnage in the "Skipper" newspaper, he came in contact with one Brian O'Driscoll from Castletownbere and agreed to"sell" the tonnage in consideration of £40,000. He did this somewhat reluctantly and only after careful consideration because he was under considerable financial pressure from his bank and B.I.M.

9 As will be seen in some more detail later, it was an essential part of this proposed transaction that the Minister gave his consent to the transfer of the tonnage from the Angela Madeline. Accordingly, Mr. Crowley contacted the Minister's Department. After an initial indication of agreement, on the 10th June, 1997 the Minister. throught his officials, refused to allow the Angela Madeline to be used as replacement capacity to facilitate the entry of Brian O'Driscoll's vessel onto the fishing fleet. It is this refusal which is the subject of challenge in these proceedings. Whilst a statement grounding this application, and indeed the Order giving the Applicant liberty to bring Judicial Review proceedings, seeks a number of reliefs and declarations, in the proceedings before me Counsel for the Applicant sought only a declaration that the Applicant had a legitimate expectation that the Minister would allow him to use the tonnage of the Angela Madeline as replacement capacity as aforesaid and also damages for breach of this expectation.

THE FACTS

10 On or about the 13th March, 1990 the Applicant applied to the Minister for a licence to fish the Angela Madeline naming mussels, crab, lobster and shrimp as the species of each. On the 16th March he received a reply from the Minister stating that the Minister had established a Licensing Review Group to recommend licensing policy to be adopted to ensure optimum development of the fishing industry and in light of this, the Minister had suspended consideration of all licence applications and he was told that his application would be considered further when the new policy was in place. By further letter of the 6th June, 1990 he was told that preference would be given to applicants who proposed"tonnage replacement". Applicants would have to demonstrate that they intended removing a significant level of active tonnage from the Fishing Boat Register to facilitate the entry of new entrants to avail of this new policy. Boats removed from the Register would be required to be de-registered under the Merchant Shipping Act, 1894 and the Mercantile Marine Act. 1955("e.g. scrapped or sold outside the State"). That letter pointed out to the Applicant that the information provided did not allow the Minister to assess whether or not there was a replacement element associated with his application and he was asked to indicate whether his application involved tonnage replacement.

11 The Applicant wrote back on the 25th June. 1990 pointing out that the vessel would not be fishing for quota species of fish, that the vessel would be harvesting mussels during the season (November to May) but it was imperative that it pay its way during the summer months when he intended to pot for crab. He specifically answered"No" to the question "Is a replacement element associated with your application?".

12 The Applicant sent in a new licence application on the 7th February. 1991 specifying mussels (only) as the intended catch. This application was accompanied by a letter (dated the 4th February. 1991) requesting licensing and registration of the Angela Madeline. indicating how the boat was being financed and the anticipated income and specifying that"the boat will he used exclusively for muriculture".

13 The terms"mariculture" and"aquaculture" are inter-changeable: they relate to mussel fishing and fishing for "bivalve molluses"(clams, scallops, razor clams) which comprise a segment of the fishing market denoted by the word "specific" so that a licence for the "specific" segment of the market authorised mussel and bivalve fishing only. This should be distinguished for the purposes of this case from a licence for the "demersal" segment of the market which would authorise fishing for white fish (whiting, cod, sole, hake and skate), prawns, crab, lobsters and the like and monkfish.

14 In response to the application, the Minister wrote on the 26th April, 1991stating that he was

"Prepared in principle, to offer you a licence in respect of the boat subject to the following conditions:-"

(i) The provision prior to issue of the...