Kennedy v The Minister for Agriculture, Food and The Marine
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murray |
| Judgment Date | 10 March 2023 |
| Neutral Citation | [2023] IECA 53 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 2020/232 |
[2023] IECA 53
Murray J.
Donnelly J.
Ní Raifeartaigh J.
Court of Appeal Record No. 2020/232
High Court Record No. 2019/316 JR
THE COURT OF APPEAL
CIVIL
Severance – Policy Directive 1 of 2019 – Order of certiorari – Applicants challenging Policy Directive 1 of 2019 issued by the respondent – Whether the measure could be severed
Facts: The Court of Appeal (Murray J, [2022] IECA 165) rejected all but one of the grounds of challenge to Policy Directive 1 of 2019 advanced in the proceedings. The Policy Directive was issued by the respondent, the Minister for Agriculture, Food and the Marine, on 5 March 2019 pursuant to the provisions of s. 3(3) of the Fisheries (Amendment) Act 2003. The ground on which the applicants, Mr Kennedy and Mr Minihane, succeeded on appeal arose from the provisions of Article 20 of Regulation 1380/2013. Although the Court determined that the Minister ought to have, but did not, comply with that provision, and while it decided that his failure to do so was such as to affect the validity of the provision, the Court invited further submissions from the parties on two related issues. The first was whether the measure could be severed, so that that part of the Policy Directive that affected Northern Irish vessels could be disentangled from the Directive insofar as it affected only Irish vessels and, if so, how such severance might be effected. The second was directed to the relief (if any) to be granted having regard to the prospect of such severance and/or (b) the fact that there was, by reason of the departure of the United Kingdom from the European Union, no requirement that the Policy Directive be notified in accordance with Article 20(2) of the Regulation.
Held by Murray J that while the fact that the extension of the Policy Directive to include Northern Irish vessels was effected by a distinct legal instrument might suggest that there was a strong argument for severing this from the Policy Directive as introduced (which, on its face, applied only to Irish vessels), he was satisfied that this was not a case in which such severance was possible. He held that the imposition by s. 10(2) of the Sea-Fisheries and Maritime Jurisdiction Act 2006, as amended, of a requirement to comply with those obligations imposed on Irish vessels referred to in s. 10(3) was an inherent part of the extension to Northern Irish vessels of the facility to fish within the six nautical mile zone effected by the Sea-Fisheries (Amendment) Act 2019. He did not see how the Policy Directive could be left in place for Irish vessels but struck down for Northern Irish vessels without disrupting the scheme envisaged by those provisions, as it would result in a situation in which one class of vessels that can fish in the 6nm zone (the Irish vessels) are subject to the requirement of the Policy Directive while the other (the Northern Irish vessels) are not. He held that the only coherent way of maintaining that scheme was to strike the Policy Directive down in its entirety. He held that to sever would have been to create an instrument and bring about a state of affairs that the Minister could never have intended to introduce, citing Maher v Attorney General [1973] IR 140. He held that the appropriate relief was an order of certiorari quashing the Policy Directive.
Murray J held that an attempt to sever the grounds of appeal for the purposes of costs would be futile in respect of a unitary and, having regard to the range of issues, tight appeal hearing. Therefore, it was his provisional view that the applicant should obtain the costs of the appeal in full. As to the hearing in the High Court, he noted that the overwhelming bulk of the time as disclosed in the transcripts was directed to grounds on which the applicants lost. He was of the provisional view that the applicants should obtain an order of one third of their High Court costs.
Costs awarded to applicants.
JUDGMENT of Mr. Justice Murray delivered on the 10 th of March 2023
. In my first judgment ( [2022] IECA 165, with which Donnelly J. and Ní Raifeartaigh J. agreed) I rejected all but one of the grounds of challenge advanced in these proceedings to Policy Directive 1 of 2019 (‘the Policy Directive’). The Policy Directive was issued by the respondent Minister on 5 March 2019 pursuant to the provisions of s. 3(3) of the Fisheries (Amendment) Act 2003 (‘the 2003 Act’). The ground on which the applicant succeeded on appeal arose from the provisions of Article 20 of Regulation 1380/2013 (‘the Regulation’). That Article requires, in certain circumstances, notification to the European Commission where conservation and management measures to be adopted by a Member State are liable to affect fishing vessels of other Member States. The provision further states that such measures shall be adopted only...
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