Island Ferries Teoranta v Minister for Communications

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 15 December 2015
• Neutral Citation: [2015] IESC 95
• Docket Number: [2005 No. 3195 P]; [S.C. Nos. 25 & 391 of 2012 and Nos. 180 & 181 of 2014],Record number: 2005/3195P Appeal numbers: 25 and 391/2012 Record number: 2012/47JR Appeal numbers: 180 and 181/2014
• Court: Supreme Court
• Date: 15 December 2015

[2015] IESC 95

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O'Donnell J

McKechnie J

Dunne J

Charleton J

Record number: 2005/3195P

Appeal numbers: 25 and 391/2012

Record number: 2012/47JR

Appeal numbers: 180 and 181/2014

Between

Island Ferries Teoranta

Plaintiff/Respondent

and

The Minister for Communications, Marine and Natural Resources, Ireland and the Attorney General, and the Minister for Agriculture, Fisheries and Food

Defendants/Appellants

Between

Island Ferries Teoranta

Appellant/Applicant

and

Galway County Council

Respondent

Administrative & constitutional law – Subordinate legislation – Exercise of powers by Ministers & public bodies – Fees for use of harbours by ferries – Whether imposition and/or increase of fees legitimate

Facts: Disputes had arisen in the two cases in respect firstly of the increasing of fees for use of harbour facilities by ferries, and secondly the imposition of such fees for the first time. The journeys by the ferries ran from the mainland of the State to and from Inis Mór in the Aran Islands. The ferry company contended the state bodies had acting ultra vires by the increase and/or imposition of the fees. Further they alleged the state bodies had engaged in abuse of their dominant positions. The cases now came to the Supreme Court on a joint basis.

Held by Mr Justice Charleton, the other Justices concurring, that the orders of the High Court in both cases would be affirmed. Having heard submissions from the parties on delegated legislation, and considered the evidence in the case, the Court was in agreement with the judgments at first instance. Whilst the Minister was justified in increasing charges, he had not done so on a legitimate purpose and the ruling on damages in respect of that point would stand. In respect of the imposition of fresh charges by Galway County Council, the Court agreed that the charges were reasonable and that the Council was justified in imposing the charges. Whilst the Council was in a dominant position for supplying harbour services on the Aran islands, the evidence did not suggest that abuse of that position had taken place. Kruse v Johnson [1898] 2 QB 91 and Cassidy v Minister for Industry and Commerce [1978] IR 297 considered.

Judgment of Mr Justice Charleton delivered on Tuesday 15th of December 2015

1 This judgment in these two cases concerns the legitimacy of public charges for the use of two harbours by ferry boats. One case was taken because of an increase in such charges; 25 and 391 of 2012, that in which there are State respondents. The other arose because of the imposition of harbour charges for the first time; 180 and 181 of 2014, that in which Galway County Council is the respondent. Both sets of cases concern a journey between Ireland, or Éire, and one of her offshore islands, namely Inis Mór. This is the largest of the Aran Islands, lying to the west of Ireland in County Galway. Precisely engaged are the two harbours from which Island Ferries run a passenger service. The harbour on the mainland is located at Ros a' Mhíl on the west coast of Galway and is the responsibility of the State, through the appellant Minister. That on Inis Mór is at Cill Rónáin, the largest town on the Aran Islands, a harbour from which many boats travel on to the other Aran Islands, and is the responsibility of Galway County Council. In 2009, the designated responsibility for Ros a' Mhíl changed from the Minister for Communications, Marine and Natural Resources to the Minister for Agriculture, Fisheries and Food. References herein in respect of Ros a' Mhíl are to the designated Minister as of the appropriate time. These appeals arise from three judgments of Cooke J and the appeals therefrom were heard together: Island Ferries Teoranta v The Minister for Communications, Marine and Natural Resources, Ireland and the Attorney General [2011] IEHC 388, as to issues concerning charges for using the harbour at Ros a' Mhíl in County Galway; [2012] IEHC 256, as to damages in respect of the same case; and Island Ferries Teoranta v Galway County Council [2013] IEHC 587, as to charges for using the harbour at Cill Rónáin on Inis Mór. Effectively, therefore, there are two sets of appeals; one as to the charges on the mainland of Ireland and the other as to the charges on Inis Mór. This Court, in a determination issued on 22nd January 2015, in the Galway County Council case, invoked Article 64.3.3° of the Constitution to cancel, insofar as this appeal is concerned, the Direction given by the Chief Justice under Article 64.3.1 specifying appeals which were to be heard in the Court of Appeal; [2015] IESCDET 1. In consequence, the other related appeal where the Minister is the respondent was heard with that case on appeal rather than going separately to the Court of Appeal.

Issues

2 These appeals raise similar questions as to the proper exercise of jurisdiction where the Oireachtas grants powers to make subordinate legislation to the executive: a Minister, in the Ros a' Mhíl case and, in the Cill Rónáin case, a county council. Even though the legislation in both cases is different, the same points of principle and interpretation arise. Points of competition law also arise. Ports from which passenger ferries can operate to the Aran Islands are few. Doolin in County Clare, is near to Inis Oírr and there is a limited ferry service from there. In terms of convenience, however, Galway City and Ros a' Mhíl are closer to large centres of population and have other practical advantages from the point of view of tourists. Doolin has other attractions, of course. Many visitors, it appears more than 200,000 per year, although the numbers fluctuate, wish to experience the unique linguistic, cultural and archaeological heritage of the islands. In the provision of harbours for ferries operating to the Aran Islands, for the purposes of competition law, it is conceded that Galway County Council and the Minister are in a position of dominance in the relevant market and for these purposes the respondents are treated as an undertaking. Essentially, it is claimed by Island Ferries that by the Minister increasing charges for the use of the harbour at Ros a' Mhíl and by Galway County Council initiating the levying of charges for harbour services at Cill Rónáin, each were acting outside the proper boundaries of what was possible under the applicable legislative power as devolved to each respectively. In other words, it is claimed that there was an abuse of the delegated power to make legislation in each case. Island Ferries also claim that the increase in charges amount to the abuse of his dominant position by the Minister in respect of Ros a' Mhíl and the abuse by Galway County Council in respect of Cill Rónáin of that local authority's dominant position.

3 Both the Minister and Galway County Council argue that the fees, as fixed by them for the use of the two harbours, were inside the wide range of appreciation which the Oireachtas must be taken to have contemplated in giving each charge of these maritime facilities and in allowing the fixing of fees. Both respondents also deny that there has been any abuse of a dominant position by them in the relevant market. In Island Ferries Teoranta v The Minister for Communications, Marine and Natural Resources, Ireland and the Attorney General [2011] IEHC 388, Cooke J held that the Minister had acted in excess of his statutory authority to make delegated legislation in fixing the charges for use by passenger ferries at Ros a' Mhíl and further held that the Minister had thereby abused a dominant position in the market. Cooke J in his judgment at [2012] IEHC 256 fixed damages in respect thereof. The Minister has appealed those findings. Both parties have also disputed the damages award as to principle and as to amount. In Island Ferries Teoranta v Galway County Council [2013] 587, Cooke J held that Galway County Council was within the terms of its authority to make delegated legislation fixing the charges for use by passenger ferries at Cill Rónáin and he further held that there was no abuse by the council of a dominant position. Clearly, those findings meant no damages were awarded in that case. Island Ferries have appealed those findings. A claim as to the constitutional validity of the relevant legislation in the Cill Rónáin case was also made on the pleadings by Island Ferries. No constitutional issue, however, was argued on this appeal.

Background and charges: Ros a' Mhíl

4 Since the earlier decision of Cooke J is in respect of the harbour in Ireland at Ros a' Mhíl, the background to that decision should now be recounted. The O'Brien family of county Galway have been involved in services by sea to the Aran Islands since the beginning of the 20th century. As the evidence of Susan O'Brien before the High Court recounted, her grandfather was the first of the O'Brien family involved in transporting cargoes, including turf and livestock, using Galway hookers. Her father Patrick began a passenger service from Ros a' Mhíl using a relatively small vessel. With the increase in numbers wishing to visit the islands, this service prospered. While she spent some time working abroad, she returned to manage the service and as of 2003, the company was operating 6 passenger vessels. Two of these were up for sale as of the end of 2011 when Cooke J delivered his judgment. What is relevant is that from 2004 to the date of hearing this appeal, Island Ferries operated two large passenger vessels, Ceol na Farraige and Draoícht na Farraige, and that each of these had an approved compliment of 294 passengers, or 588 altogether. There are also two other smaller vessels, Banríon na Farraige and Glór na Farraige, and these are used as standby, but their compliment of passengers is 188 and 244 respectively. Thus, were full capacity to be used, Island Ferries could by using all...