Daly v Minister for the Marine, Ireland and Attorney General

CourtSupreme Court
Docket Number[S.C. No. 71 of 1999], 71/1999
JudgeFENNELLY J.
Judgment Date04 Oct 2001
JurisdictionIreland
Neutral Citation[2001] IESC 77

[2001] IESC 77

THE SUPREME COURT

Keane, C.J.

Denham, J.

Murphy, J.

Geoghegan, J.

Fennelly, J.

71/1999
DALY v. MINISTER FOR THE MARINE & ORS

BETWEEN

CARL DALY
APPLICANT

and

MINISTER FOR THE MARINE, IRELAND & THE ATTORNEY GENERAL
RESPONDENTS

Citations:

WEBB V IRELAND 1988 IR 353

GLENCAR V MAYO CO COUNCIL UNREP SUPREME 19.7.2001

FISHERIES (CONSOLIDATED) ACT 1959 S222

FISHERIES (AMDT) ACT 1983 S2

LICENSING OF SEA-FISHING BOATS (EXEMPTION) REGS 1983 SI 245/1983

LICENSING OF SEA-FISHING BOATS (EXEMPTION) (REVOCATION) REGS 1994 SI 444/1994

EEC REGS 3690/1993

FISHERIES (AMDT) ACT 1983 S8

EEC DIR 88/142

WILEY V REVENUE COMMISSIONERS 1994 2 IR 160

CANNON V MIN FOR THE MARINE 1991 1 IR 82

MURPHY V MIN FOR THE MARINE 1997 1 ILRM 523

DORAN V THOMPSON 1978 IR 222

SNELLS PRINCIPLES OF EQUITY 27ED 1973 563

Synopsis:

Fisheries

Administrative; legitimate expectations; judicial review; 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; appellant wished to sell tonnage of ship; consent of respondent was necessary for sale; letter from respondent to appellant offering licence subject to the condition that tonnage would be used for aquaculture purposes only, licence issued but did not state condition; appellant believed licence allowed demersal fishing; letter from respondent confirming view of appellant; letter issued in error; respondent refused to allow appellant to sell tonnage for replacement purposes; whether approach of trial judge that appellant did not have an expectation which was reasonable or legitimate for him to have correct; whether distinction between doctrines of legitimate expectation and promissory estoppel; whether second limb of promissory estoppel test, that other party acted upon an unambiguous promise, altering his position to his detriment, satisfied by appellant.

Held: Appeal dismissed.

Daly v. The Minister for the Marine - Supreme Court: Keane C.J., Denham J., Murphy J., Geoghegan J., Fennelly J. - 04/10/2001

- [2001] 3 IR 513

The applicant had sought a license for a fishing vessel. The applicant was offered a license by the respondent on the grounds that the license be used solely in conjunction with aquaculture. This related to mussel fishing and bi-valve molluscs. The applicant agreed to this condition and commenced fishing. The applicant eventually began fishing for demersal fish and claimed that the officials of the first respondent were aware of this activity. The first respondent subsequently wrote to applicant indicating that vessel was provisionally assigned to the specific and demersal categories of fish. The applicant sought then to sell his tonnage for general fishery purposes. However the first respondent informed the applicant that the applicant’s vessel could only be used for aquaculture purposes as originally agreed. The applicant instituted proceedings claiming that he was entitled to transfer his tonnage on the basis of legitimate expectation and promissory estoppel. In the High Court Mr. Justice O’Sullivan held that error or mistake did not necessarily preclude the operation of the doctrine of legitimate expectation when the parties proceeded on the basis of a 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 granted. 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. The applicant appealed. Mr. Justice Fennelly, delivering judgment in the Supreme Court [nem. diss.] held that all the applicant’s dealings were on the express basis that he would engage in aquaculture only. The applicant had produced no evidence that the first respondent would allow the applicant use his tonnage for replacement purposes. The quality of promise required to justify a legitimate expectation could not be found. The appeal was dismissed.

FENNELLY J.
[nem diss]
1

Cases concerning the disappointment of legitimate expectations have formed part of the regular diet of the courts in judicial review matters since at least the decision of the Supreme Court inWebb v Ireland [1988] I.R. 353. ("Webb") The law has not been comprehensively reviewed in this Court, though some remarks about it are to be found in the recent judgments in Glencar v Mayo County Council (unreported judgment of 19th July 2001), where essentially it was decided on the facts that no recognisable legitimate expectation had been established.

2

Similarly, in the present case, the applicant, as the holder of a sea fishery licence, failed in his application for judicial review of a decision by the first named respondent ("the Minister"), to refuse him the right to use the tonnage of his vessel on de-registration as replacement capacity so as to facilitate the entry of another vessel into the fishing fleet. The learned trial judge, O'Sullivan J, held that the applicant did not satisfy the threshold requirement of being able to point to a legitimate,in the sense of a reasonably entertained, expectation that he would receive this benefit at the hands of the Minister.

The Statutory Background
3

Before recounting the relevant facts, I will advert to the few comparatively simple surrounding legal provisions, which are fully set out in the judgment of O'Sullivan J.

4

Sea fishing is governed by the Fisheries Acts and registration of boats is governed by the Merchant Shipping Acts.

5

The Minister is empowered to license boats, registered under the Merchant Shipping Acts, for sea fishing, by 222B of the Fisheries (Consolidation) Act,1959inserted by section 2 of the Fisheries (Amendment) Act,1983. The Minister may allow or refuse an application for a license and may impose terms and conditions on licenses he grants. He may also make regulations exempting classes of boats from licensing. However, it was (at the relevant time) an offence, unless exempt, to use an unlicensed sea-fishing boat for sea-fishing.

6

The applicant's boat, the"Angela Madeleine", being under 65” in length, was exempt from licensing pursuant to the Licensing of Sea-fishing Boats (Exemption) Regulation of 17thAugust 1983 ( SI No 245 of 1983). This regulation was revoked by the Licensing of Sea-fishing Boats (Exemption) (Revocation) Regulations 1994 ( SI No 444 1994) with effect from 1st January 1995 to comply with EC Regulation Council Regulation 3690/93. I will return to this issue at a later stage.

7

Despite this exemption, the applicant had to license his boat. In order for Bord Iascaigh Mhara (BIM) to be able to register a mortgage to secure their loan made to the applicant on the boat, the boat had to be registered. Section 8 of the Fisheries (Amendment) Act,1983required that, to be registered, a boat had to have a sea-fishing license.

The Facts
8

The applicant is a fisherman and mussel farmer and owner of a 35 foot sea-fishing boat, the"Angela Madeleine." He works from Kilmakillogue Harbour, Lauragh, Killarney. He had his boat built in 1991 by Dingle Boats Teoranta, with the benefit of a loan and grant from BIM as well as a grant from European Community funds (FEOGA).

9

For an appreciation of the applicant's complaint it is necessary to explain the policy background to the Minister's refusal. It is an amalgam of national and European Community policies. It is notorious that Community fish stocks are under more or less constant threat from over-fishing. Community policies include fish quotas and, what is relevant to this case, the reduction of fishing capacity. The long term objective is to achieve a balance between fishing effect and available stocks. Commission Decision 88/142/EEC of 11 December 1987 (modified on 23 December 1988) required Ireland to significantly reduce its fishing fleet in stages up to 1991. Fleet tonnage was to be cut from 58,845 tonnes to 43,941 tonnes (a 25% reduction). In August 1989, the Minister set up a review committee to examine licensing policy and to recommend measures for the control of the fleet in line with the State's obligations.

10

As it happens, the applicant made his first application for a license under section 222B, quoted above, on 13th March 1990. The vessel was not specified as it had not yet been built, but under the heading, "Methods of Fishing", he stated:"mussel farming by long line system & potting."Under "species in order of priority," he filled in:"mussels, crab, lobster and shrimp." In his accompanying letter he said that he would be "principally engaged in mussel harvesting," but that he intended to "go potting for crab, lobster and shrimp when mussels are out of season." The Minister wrote on 16th March stating that he had "suspended consideration of all sea fishing boat license applications"and that the application would be considered when a revised policy was in place, based on consideration of the report of a Review Committee.

11

In May 1990, upon consideration of the report of the committee, the Minister adopted a 100% replacement policy in respect of new entrants to the fleet. In order to license a new vessel, a tonnage equivalent to that of the new vessel would have to be withdrawn from the register. In practical terms, an applicant seeking a new sea fishing boat license would have to acquire vessels or capacity which are entered on the sea fishing boat register of capacity at least equivalent to that of the proposed new vessel. However, in view of Community regulations, aquaculture vessels and vessels engaged exclusively in bivalve fishing were exempt from this requirement.

12

To the extent that the applicant's application included crabs and lobster, he...

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