Fitzpatrick v Minister for Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 11 January 2018
• Neutral Citation: [2018] IEHC 77
• Docket Number: [RECORD NO. 2017 884 JR]
• Court: High Court
• Date: 11 January 2018

[2018] IEHC 77

THE HIGH COURT

Ní Raifeartaigh J.

[RECORD NO. 2017 884 JR]

BETWEEN

PAT FITZPATRICK

AND

MICHAEL FLANNERY

APPLICANTS

AND

THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE

AND

THE SEA FISHERIES PROTECTION AUTHORITY

RESPONDENTS

Fisheries & Wildlife – Injunction – Methodology for catching fishes – Fisheries management notice – Fair procedures

Facts: The applicants sought an order of certiorari for quashing the decision of the first named respondent wherein the first respondent had refused to permit the fishing of certain species of fishes. In the present application, the applicants sought an interlocutory injunction against the second respondent from publishing its conclusions to the European Commission in respect of the exploitation of the fishing opportunities in the relevant Functional Area 16 during the currency of the substantive proceedings.

Ms. Justice Ní Raifeartaigh refused to grant the interlocutory reliefs to the applicants. The Court noted that the grant of injunction would cause great injustice to the respondents. The Court found that the impugned decisions of the respondents were taken in the public interest keeping in lieu the EU duties and principles. The Court noted that if the respondents were compelled to adopt its policies in relation to the methodology of catching fishes, which would result in the alteration of figures being submitted to the EU Commission, the respondents would be vulnerable to the adverse measures from the EU.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 11th day of January 2018

Nature of the case

1 The question before the court at this time is whether the applicants should be granted interlocutory injunctions pending the resolution of a dispute between the applicant fishermen and the respondents. At the heart of the dispute is the question of the methodology by which figures are arrived at which represent fish catch in respect of the species Nephrops. Both applicants are engaged in the business of fishing and maintain that fishing for the species Nephrops, more commonly known as Dublin Bay Prawns, in a particular fishing area off the west coast of Ireland is an important part of their business. The particular sea area in question is known as Functional Area 16 (hereinafter 'FU 16'). The respondent Minister closed this area in respect of fishing for Nephrops Norvegicus for September, October and November 2017. This was done on the basis of information furnished by the second respondent, which is the authority responsible for coordinating the collection of information on fishing activities and for reporting to and transmitting data to the European Commission and the Minister. The core of the applicants' complaint is that the Authority reached a conclusion, and transmitted information, both to the Minister and to the EU Commission, about the extent of the 2017 Nephrops quota which had been fished as of that time by a methodology which is not authorised by the fishing control regime established by EU law. They maintain that the primary method of calculating fish catch or 'outtake' is and should be with reference to the information contained in each vessel's fishing logs. The second respondent, for its part, says that there was a serious problem of fishermen underreporting in their fishing logs the amount of Nephrops actually caught in FU 16, and that this problem was of such a proportion that the Authority, in order to comply with its statutory and European law duty to transmit accurate information, had to employ other methodology in order to reach a more accurate estimate as to the actual amount of Nephrops being fished in the relevant area. The Authority says that, having done so, it became clear that the European quota for fishing Nephrops in 2017 had already been exceeded by July 2017. The figures disclosed by the fishing logbooks and the methodology employed by the respondent Authority are 773 tonnes and 1991 tonnes of Nephrops caught in FU16 respectively. The difference between the two figures is therefore substantial, and its implications for the national annual quota for Nephrops fishing in FU16 is far-reaching.

2 The precise terms of the mandatory injunctions sought are set out below, but in broad terms it can be said the purpose of the interlocutory relief sought is to enable the applicants to resume fishing for Nephrops in FU 16 as soon as possible, and core to this is the contention that the respondents are not entitled to calculate, or make decisions based on calculations, fish catch or outtake with reference to the methodology described by the Authority; they contend, indeed, that this is not a scientific methodology at all but rather a 'guesstimate'. They maintain that they will suffer irreparable damage to their livelihoods by reason of what they say is an unauthorised modification of the fishing control regime by the Irish authorities and which applies only, and unfairly, to Irish fishermen.

3 They also maintain that the case raises a question of interpretation of EU law which will require a reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union, and that the interlocutory relief is necessary to prevent the irreparable damage that will be caused to them while time continues to elapse pending the outcome of that reference.

The reliefs sought

4 The applicants in the substantive judicial review proceedings seek the following reliefs against the respondent Minister: -

(1) An order of certiorari quashing the decision of the Minister, made on or before 17th October, 2017 by which he refused to permit the fishing of Nephrops in FU 16 on the grounds that the decision was ultra vires his powers under domestic and European law and in breach of natural justice and fair procedures;

(2) An order of certiorari quashing the refusal of the Minister by which he refused to exercise his statutory competence and discretion in making a decision not to permit the fishing of Nephrops in the fishing ground known as FU 16 by unlawfully derogating his functions to the second respondent;

(3) An order of certiorari quashing all the fisheries management notices issued by the Minister prohibiting the fishing of Nephrops in the fishing grounds known as FU 16 made on foot of or in connection with his decision of 17th October, 2017, on the grounds that this was unlawful and ultra vires his powers under domestic and European law and in breach of natural justice and fair procedures;

(4) A declaration that the Minister acted ultra vires and otherwise unlawfully under the regime provided for by European law under the Common Fisheries Policy and the implementing Irish legislation by refusing to grant the relevant authorisation or allocation of a quota and by refusing to reopen FU 16 in October and November 2017 and months thereafter;

(5) A declaration that the applicants have been deprived of the right to be heard in advance of an adverse decision being made against them, of their right to a defence, of their right or good administration and/or in the absence of an appeal on the merits, that they have been deprived of their right to an effective remedy, all in contravention of their rights under European Union law;

(6) An order of mandamus directing the Minister to perform his statutory functions under s. 12 and 13 of the Sea Fisheries and Maritime Jurisdiction Act, 2006, and Articles 34 and 35 of Council Regulation (EC) No 1224/2009 of the 20th November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (hereinafter 'the Control Regulation') by analysing all relevant data, including the manner of the collection of the data, prior to exercising his competencies under the legislation, in particular the assignment of the monthly quota allocation for FU 16;

(7) Damages in respect of losses suffered by the applicants as a result of the Ministers action and inaction together with interest under the Courts Act.

5 For the purposes of the present judgment, it is necessary to examine the specific reliefs sought by way of interlocutory relief. As against the Minister, these are as follows:

(1) An interlocutory order by way of injunction/stay, suspending the decision of the Minister by which he has refused to permit the exploitation of FU 16 by the applicants;

(2) An interlocutory order by way of injunction requiring the Minister to reopen or make a quota allocation for FU 16 based on the data for fish outtake or catch as disclosed in the fishing logbooks prepared in accordance with Article 14 of the Control Regulations pending the determination of the proceedings;

(3) An interlocutory order by way of injunction/stay restraining the Minister from relying on the methodology employed by the SFPA and the advice provided by them by way of letter dated 5th October, 2017 or otherwise regarding the calculation of fish outtake or catch from FU 16 between July 2017 and the initiation of these proceedings;

6 As regards the reliefs sought in the substantive judicial review proceedings against the Sea Fisheries Protection Authority (hereinafter 'the Authority'), the second respondent, they are as follows: -

(1) An order of certiorari quashing the decision of the Authority of the 5th October, 2017, by which it advised the Minister not to open the fishing grounds for Nephrops known as FU 16, using a methodology which was ultra vires its power, unlawful and in breach of principles of natural justice and fair procedures;

(2) An order of certiorari quashing the decision of the Authority to report to the European Commission figures for the exploitation of the fishing opportunities in FU 16 from 1st January, 2017 to September 2017 in circumstances where monthly figures had already been reported to the Commission in exercise of the Authorities' functions by reason of which the decision was unlawful;

(3) A declaration that the...