Kevin Kielthy v Minister for Agriculture, Fisheries and Food, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] IECA 273 |
| Docket Number | High Court 2008/6263P |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 273
Costello J.
Noonan J.
Ní Raifeartaigh J.
High Court 2008/6263P
Court of Appeal 2019/195
THE COURT OF APPEAL
Negligence – Negligent misrepresentation – Legitimate expectation – Appellant seeking damages – Whether the respondents were negligent
Facts: The appellant, Mr Kielthy, claimed economic loss arising from a number of torts allegedly committed by the respondents, the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General, or their agents, including: (1) negligence by reason of a failure to issue an accurate certificate of registration in respect of the appellant’s fishing vessel during the period 2000-2005; and (2) negligent misrepresentation and/or breach of the principle of legitimate expectation in the context of the appellant’s proposals to re-purpose his fishing vessel for a new purpose, namely the dumping of fish offal at sea on behalf of fish processors, during the period 2001-2005. The claim was rejected in its entirety by the High Court. The appellant appealed to the Court of Appeal against that judgment and order. The trial judge rejected the claim of negligence based upon the registration certificate issue on the basis that he did simply not believe that the incorrect information on the registration certificate was the reason that the appellant had failed to engage in (much) fishing in the period 2000-2005. The appellant complained that the trial judge erred in reaching that conclusion as a matter of fact and that this question of fact was not determinative of his claim in any event, because what mattered was that it would have been unlawful for him to fish (and therefore fulfil the relevant thresholds) while the error had not been corrected. Regarding the claims based on the “dumping at sea” issue, the appellant’s complaint on appeal was essentially that the trial judge failed to properly consider the claim and failed to explain why he considered that the case was different from authorities such as Bates v Minister for Agriculture, Fisheries and Food [2020] 2 I.R. 149, where a claim of legitimate expectation sounding in damages was successful.
Held by Ní Raifeartaigh J that the appellant had fallen far short of persuading the Court to set aside the trial judge’s key factual conclusion that the appellant’s failure to fish during the relevant period had nothing to do with the clerical error on the registration certificate. Ní Raifeartaigh J agreed with the trial judge that this factual question was key to the whole claim, and that the claim failed at the first hurdle because, on the totality of the evidence (including contemporaneous documentation, the pleadings, the evidence of all the witnesses, and the appellant’s own evidence), the appellant’s narrative was not credible on this key point. Accordingly, Ní Raifeartaigh J was of the view that the first part of the appellant’s claim failed, and that the trial judge was correct so to find, simply because he failed to establish a basic ingredient, namely causation, between any loss he may have sustained and any omission on the part of the State. Ní Raifeartaigh J held that the appellant failed to establish on the balance of probabilities that the State was responsible, by reason of the registration certificate issue, for his failure to fish during the relevant time period. Ní Raifeartaigh J was of the view that the appeal concerning the “dumping at sea” part of the claim should also be dismissed as the trial judge was correct in concluding that the appellant had failed to establish either a claim based on legitimate expectation or on negligence/negligent misstatement.
Ní Raifeartaigh J held that the appeal would be dismissed. As the respondent had been successful in the appeal, Ní Raifeartaigh J’s provisional view was that the respondent was entitled to the costs of the appeal.
Appeal dismissed.
JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 22 nd day of October, 2021
. This case involves a claim for economic loss arising from a number of torts allegedly committed by the respondents or their agents, including: (1) negligence by reason of a failure to issue an accurate certificate of registration in respect of the appellant's fishing vessel during the period 2000–2005; and (2) negligent misrepresentation and/or breach of the principle of legitimate expectation in the context of the appellant's proposals to re-purpose his fishing vessel for a new purpose, namely the dumping of fish offal at sea on behalf of fish processors, during the period 2001–2005. The claim was rejected in its entirety by the High Court and this is an appeal in respect of that judgment and order. Judgment was delivered by O'Connor J. on the 5 February 2019. 1
. The chronology of events is important in this case because the appellant maintains that there are causal connections between financial losses he claims to have suffered, on the one hand, and certain actions or omissions on the part of the respondents their servants or agents, on the other. The chronology is complicated by the fact that there were two prior sets of legal proceedings involving events relevant to the present proceedings, and that there are a total of four different issues which emerge and re-emerge across the different sets of proceedings.
. I will use the following descriptions of each of the four issues as a short-hand description in this judgment:
Before addressing the relevant timeline of events in some detail, it may be helpful to give a brief overview in relation to each of these issues. The vessel in question was the MFV Morgensonne, which the appellant and two others purchased in the late 1990s, and in respect of which he became sole owner in the early 2000s, having bought out the shares of his partners.
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(1) The “registration certificate” issue;
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(2) The “dumping at sea” issue;
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(3) The “scallop-fishing permit” issue, and
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(4) The “decommissioning grant” issue.
. The “Registration Certificate issue”: Every Irish fishing vessel must be entered in a Register of Vessels (which is a separate and distinct system of registration from the licensing system in respect of fishing). Between the years 2000 and 2005, various certificates were issued to the appellant which sometimes recorded the engine power incorrectly. This error had arisen because the appellant and his then fishing partners had submitted incorrect engine details to the Registrar upon their purchase of the vessel, not knowing that the previous owner had installed a new engine some years before he sold it to them. When this came to light, they sought to have a fresh and correct Registration Certificate issued to them. There is a paper trail about this matter, and this was laid before the trial court. The appellant says that the first time he received an accurate Registration Certificate was July 2005. I will return to the significance of this later, but it is a key matter upon which the appellant relies in advancing his claims in these proceedings. I should perhaps say at this early stage that it is not in dispute that, as a matter of law, a vessel must be registered as a pre-condition to obtaining a fishing licence. The disagreements between the parties arise as to (a) whether the appellant would have been fishing illegally while his Registration Certificate had a clerical error on it; and (b) whether that is relevant to the claim he makes in these proceedings.
. The “dumping at sea” issue – From about 2001 onwards, the appellant sought to alter the vessel's business model from one of fishing to one of dumping at sea. The appellant maintains that he incurred loss and expense in refitting his vessel in anticipation that he would obtain a permit for dumping at sea, based on representations made and expectations created by the respondent. He says that this started with a meeting on the 23 November 2001 between the Minister of State at the Department of the Marine, Department Officials, the appellant and one of the fish processing companies to discuss the dumping at sea project. Ultimately it was recognised by the State that the proposed scheme would not be in accordance with EU law and it was abandoned. The appellant says he did not become aware that he would not get a permit until 2005 and that he incurred various losses and adverse consequences as a result, as we shall see.
. The scallop-fishing authorisation issue; The industry of fishing for scallops became very competitive in the late 1990s and early 2000s for a number of reasons, as described below. At a certain point, the Minister decided there would be individual allocations or authorisations in respect of scallop-fishing. The appellant sought an authorisation in this respect, and was refused authorisation in 2006. His appeal of that decision was refused in 2007. He then issued legal proceedings in respect of that refusal (Record No. 2009/9277P) in 2008, but those proceedings were discontinued by him in January 2010. Accordingly, the present proceedings do not and cannot involve alleged loss arising from a failure to grant him a scallop fishing permit, but the issue does form part of the background from a factual point of view.
. The decommissioning grant issue: In or about 2005, the Minister introduced an administrative scheme which was designed to comply with the State's obligations under EU law and was known as the Decommissioning Scheme (more fully, the “Scheme to Permanently Withdraw Capacity from the Demersal and Shellfish Sectors of the Irish Fishing Fleet”). It was administered by Bord Iascaigh Mhara (hereinafter “BIM”). The purpose of the scheme was to reduce the size of the fishing fleet and to offer compensation to certain...
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