Inland Fisheries Ireland v O'Baoill

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 18 November 2022
• Neutral Citation: [2022] IECA 266
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/133

Between/

Inland Fisheries Ireland

Respondent

and

Peadar Ó Baoill, John Gerard Boyle and John Boyle

Appellants

[2022] IECA 266

Murray J.

Whelan J.

Faherty J.

Appeal Number: 2020/133

THE COURT OF APPEAL

CIVIL

Summary judgment – Injunctions – Costs – Appellants seeking to set aside the injunctions granted and/or the costs order made – Whether the trial judge erred by determining the matter in a summary manner

Facts: The appellants, Mr O'Baoill and Messrs Boyle, appealed to the Court of Appeal against a judgment delivered by Pilkington J in the High Court on the 12th December, 2019 together with consequential orders perfected on the 10th June, 2020 granting orders and reliefs sought by the respondent, Inland Fisheries Ireland, on foot of a motion seeking summary judgment which issued on 31st January, 2018. The proceedings were instituted in June 2009. They concerned fishing rights on the Gweebarra River, a spate river which entered the sea in north Donegal near Doochary Bridge. The appellants’ notice of appeal essentially sought to set aside the judgment and order of Pilkington J and that the matter be remitted to the High Court or in the alternative, an order varying the orders made and: (i) setting aside the injunctions granted and/or (ii) setting aside the costs order made and/or (iii) substituting an order for costs of the proceedings including the costs of the interlocutory injunction to the defendants and further seeking the costs of the appeal. The appellants contended that the trial judge erred as follows: (a) by determining the matter in a summary manner in light of the jurisprudence including Abbey International Finance Ltd v Point Ireland Helicopters Ltd [2012] 2 I.R. 694; (b) the substance of the decision was erroneous “in so far as she determined that no issue had been raised in relation to title to the relevant sections of the Northern & Southern Banks of the Gweebarra”; (c) by making the declaratory orders which the appellants sought to set aside; (d) in granting injunctive relief “in circumstances where no wrong doing of any kind has been established against the Defendants or any of them”; and (e) in making the order for costs “where it had been established that the Northern Regional Fisheries Board had no locus standi to bring the proceedings when initiated in 2009”.

Held by Whelan J that there was ample evidence before the trial judge that entitled her to reach the conclusions that she did. Whelan J held that infelicities and some factual errors appearing in the judgment did not detract from the substantive conclusions. She held that the orders including the interlocutory orders made by the trial judge were warranted in all the circumstances, in particular, having regard to the sustained position adopted by the appellants throughout which ultimately in substance amounted to a jus tertii stance advanced without probative evidence and furthermore, irrespective of the latter fact, constituted no defence whatsoever to the respondent’s action. Whelan J held that no basis had been identified to warrant interfering with the trial judge’s judgment or conclusions or the orders she consequently made. Whelan J held that the appeal fell to be dismissed on all grounds. She held that the general principle that costs follow the event obtained. She held that the provisions of O. 99 of the recast rules and ss. 168 and 169 of the Legal Services Regulation Act 2015 were applicable. She held that the respondents were entirely successful in the proceedings and as such by virtue of s. 169(1) of the 2015 Act were entitled to an award of costs against the appellants who were not successful in the proceedings. She held that the unsustainability of the jus tertii point was clearly raised by the respondent and ought to have been constructively engaged with by the appellants. She held that no basis had been identified for interfering with a costs order made by the High Court.

Whelan J’s provisional view was that the respondent was entitled to the costs of the appeal having due regard to s. 169 and Order 99 Recast. She held that the respondent had been entirely successful in its opposition to the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 18th day of November 2022

Introduction

1 . This is an appeal against a judgment delivered by Ms. Justice Pilkington in the High Court on the 12 ^th December, 2019 together with consequential orders perfected on the 10 ^th June, 2020 granting orders and reliefs sought by the respondent on foot of a motion seeking summary judgment which issued on 31 ^st January, 2018. The proceedings were instituted in June 2009. They concern fishing rights on the Gweebarra River, a spate river which enters the sea in north Donegal near Doochary Bridge.

2 . Certain interlocutory orders – to which I will shortly return — were made in 2009 by Charleton J., and thereafter on 21 ^st November, 2011 Murphy J. made an order providing for a modular trial of identified issues. That trial concluded after six days of hearing before the High Court and judgment was delivered by Ms. Justice Laffoy on the 19 ^th December, 2012. The appellants appealed from aspects of that decision and the Supreme Court, in a judgment reported [2015] 4 I.R. 132, declined the appellants' application to admit new evidence, whereupon the appellants abandoned their appeal.

3 . The area coloured yellow in the map annexed to this judgment represents the southern side of the fishery, the green portions represent what was styled the “McDonnell section” on the northern bank by Laffoy J. in her judgment, the balance of the fishery on the northern side is shown coloured orange on the said map. Before considering the judgment under appeal, it is necessary to review the anterior events and litigation events in some detail for context and to achieve an understanding of the state of the evidence that obtained when the motion for summary judgment came before Pilkington J. for hearing in 2019.

Background

4 . As counsel for the appellants, Mr. Ó Dúlacháin SC, outlined to this court the issues, though net, derive from the contested history of the Plantation of Ulster in the reign of King James I, including the Commission of 1609 whereby the said plantation was inaugurated and executed for the purposes of giving effect to the redistribution of the escheated lands and forfeited territories of Ulster amongst the cohort of undertakers, servitors and others designated eligible and which is comprehensively analysed in various texts, including in an academic paper “The Commission of 1609: Legal Aspects” by F.W. Harris in Studia Hibernica, no. 20 (1980), pp. 31 – 55. The determination of the issues arising in this appeal are more narrowly focused in their ambit and ultimately, in large part, turn upon whether the respondent has an entitlement to insist that the appellants may only fish the Gweebarra on foot of a daily fishing permit to be granted by it and whether the respondent, which has since 15 ^th June, 2012 demonstrated that it is in actual possession of the Gweebarra Fishery for the purposes of management of the fishery pursuant to statute for the benefit of the relevant Minister and the State as owner and thereby has sufficient possession of same to ground a claim to perpetual orders restraining acts of trespass in circumstances where the appellants no longer claim any estate, right, title or interest whether public or private in nature to same.

5 . The respondent in this appeal asserts that in light of the fact that the High Court judge, by consent of the parties, dismissed the appellants' counterclaim, it is no longer open to them to purport to set up a jus tertii asserting that third parties have a title greater than that of the respondent where they have themselves already abandoned all claims asserting title over the several fisheries in question. On this argument, the jus tertii objection raised by the respondent, if established, offers a complete answer to the appellants' current assertions as formulated in the appeal notice because trespass to land protects possession rather than title and it is immaterial and irrelevant that any third party, not being a party to the action, may have a better title than the respondent since the defence of jus tertii is not recognised in such circumstances.

6 . Given the involved history between the parties and the changes and modifications that have evolved in the respective position of the parties over time from and after the institution of the within proceedings in 2009, it is necessary to review the history and background through the prism of the litigation and various court orders and judgments to date.

The Proceedings

7 . Inland Fisheries Ireland, the respondent in these proceedings and the successor to the original plaintiff, the Northern Regional Fisheries Board, is a statutory agency charged with responsibility for the management of fisheries of freshwater and coastal fish up to 12 nautical miles off the shore. Under the terms of the Inland Fisheries Act, 2010 (the 2010 Act) the respondent (hereinafter IFI) was established in the context of the dissolution of the Central Fisheries Board and various regional fisheries boards, including the Northern Regional Fisheries Board. Section 8 of the 2010 Act effected the transfer of all functions vested in, inter alia, any regional board to IFI. Thereafter by virtue of the Inland Fisheries Act (Establishment Day) Order 2010 ( S.I. No. 262 of 2010), 1 ^st July, 2010 was appointed the establishment day for the purposes of the Act.

8 . The proceedings were instituted just over a year prior to the establishment day. Under the terms of the General Endorsement of Claim, various injunctions were sought, together with a declaration that the defendants (the appellants in these proceedings) “together with all persons acting in concert with them do not have the...