Kielthy v Minister for Agriculture, Fisheries and Food

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 05 February 2019
• Neutral Citation: [2019] IEHC 163
• Court: High Court
• Docket Number: [2008 No. 6263 P.]
• Date: 05 February 2019

[2019] IEHC 163

THE HIGH COURT

O'Connor Tony J.

[2008 No. 6263 P.]

BETWEEN

KEVIN KIELTHY

PLAINTIFF

AND

MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Negligent misrepresentation – Legitimate expectation – Dumping at sea – Plaintiff seeking damages – Whether there was negligent misrepresentation about the potential to obtain permits for dumping at sea

Facts: The plaintiff, Mr Kielthy, claimed damages arising from the alleged negligent failure to issue a correct certificate of registration for a vessel and negligent misrepresentation about the potential to obtain permits for dumping at sea.

Held by the High Court (O’Connor J) that, concerning the certificate of registration: (i) the plaintiff’s reason not to fish from July 2000 to December 2005 had nothing to do with his fear of fishing illegally due to the incorrect engine size recorded on the certificate of registration and the sea fishing boat (SFB) licences; (ii) the authorisation to fish was not dependent on the correct engine size being recorded on the certificate of registration and the SFB licences; (iii) there was no evidence of negligence on the part of the defendants, the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General, in inserting the incorrect engine size; and (iv) in any event, the plaintiff singularly failed to establish any loss incurred by the incorrect certificate of registration and the various and intermittent inaccurate SFB licences. O’Connor J held that none of the authorities cited by counsel for the plaintiff supported the proposition that the defendants, in receiving the application to dump at sea and ultimately rejecting same on the grounds that such permits are unlawful by virtue of European Union law, breached a duty of care to the plaintiff. O’Connor J held that having had regard to the Supreme Court judgments in Cromane Seafoods Ltd v Minister for Agriculture Fisheries and Food [2017] 1 IR 119, the plaintiff had no legitimate expectation as sought to be claimed.

O’Connor J held that the plaintiff’s claims would be dismissed.

Claims dismissed.

JUDGMENT of Mr. Justice Tony O'Connor delivered on the 5th day of February, 2019

Introduction

1 This is a claim for damages arising from the alleged negligent failure to issue a correct certificate of registration for a vessel and negligent misrepresentation about the potential to obtain permits for dumping at sea.

Facts

2 The outline legal submissions for the defendants rightly identify that the Court has had for its consideration conflicting version of events. However, the statement of claim (delivered in December 2011, after the issue of the proceedings three years previously) mostly converges with the historical records taken from correspondence and contemporaneous memoranda. The following chronology is largely uncontroversial. It is worth emphasising at this stage that since 2003, sea fishing boat licences are issued by the licensing authority for sea fishing boats with an independent appeals system, while different legislation applies to the registration of fishing boats which is the focus of the plaintiff's complaint in these proceedings. In 2005 the requirements for separate fishing authorisations was introduced. All of these regulatory systems are independent of each other.

1990s A Mr. Radford owned the fishing vessel known as the MFV Morgensonne (‘ the vessel’) which was 23.77 metres in length.

28.10.1998 Following the increasing capacity for scallop fishing, the plaintiff and his then two partners applied for a sea fishing boat licence (‘ SFB licence’) for the vessel, recording an engine size of 216.3 kilowatts, which later transpired to be incorrect.

07.01.1999 The plaintiff and his two partners became the owner of the vessel by way of bills of sale.

15.04.1999 A SFB licence issued for the period 29.03.1999 to 30.06.2000 to the plaintiff and his partners for the vessel.

04.05.1999 A letter was sent to the plaintiff from the Registry of Shipping with the three bills of sale duly endorsed along with an application form to register the vessel as a fishing vessel. The form was completed and sent back on the 5th May, 1999.

15.11.1999 The Registrar of Shipping (‘ the Registrar’) wrote to the plaintiff informing him that there was a discrepancy in the engine size recorded on his application and the information that was already contained on the register. The Registrar arranged for a survey of the vessel, which was carried out on the 4th April, 2000.

06.04.2000 Following the survey, the surveyor wrote to the plaintiff and his partners about the discrepancy. The plaintiff then discovered that Mr. Radford had put a new engine into the vessel in 1990.

04.05.2000 The Registrar advised the plaintiff that he had amended the register to show the correct details of the engine, endorsed the application to register the vessel and had forwarded it to the Registrar General of Fishing Boats. The plaintiff was also advised to contact the licensing section of the first named defendant's department (‘ Department’) to have the engine capacity amended in the licence due to the discrepancy arising.

11.05.2000 The application form, showing an engine power of 216.43 kilowatts but 500 horsepower, which equated to 373 kilowatts (the correct engine power), was forwarded by the Registrar to the Registrar General of Fishing Boats.

23.05.2000 An internal Department note issued in respect of the error.

25.05.2000 A handwritten internal Department note issued indicating that ‘an amended licence and registration should issue in this case.’

26.05.2000 A SFB licence was issued to the plaintiff and his partners for the vessel which had the correct engine size details.

22.06.2000 An identical SFB licence was issued except that it referred to the old incorrect engine size.

10.07.2000 The Registrar issued a certificate of registration of the vessel as an Irish Fishing Boat with the incorrect engine details.

July 2000 The plaintiff and his partners stopped fishing. The plaintiff said that he and his partners did not draw down a grant approved to fund the purchase of safety equipment prior to the 30.06.2000 deadline.

09.09.2000 Another certificate of registration was issued, also with the same incorrect engine details.

2000 – 2002 It was less profitable for boats like the vessel to fish for scallops because of their limited range. Contributing to this was the depletion of resources and the dramatic increase in the number of vessels fishing for scallops.

Early 2001 The plaintiff was named by fish factories in applications for a dumping at sea permit under the Dumping at Sea Act 1996.

March 2001 The plaintiff acquired the shares of his partners in the vessel and became the sole owner.

23.11.2001 Meeting between the Minister of State at the Department of the Marine, Department officials, the plaintiff and one of the processors, discussing the dumping at sea project. It noted, inter alia, that the location of a dumpsite had not yet been determined.

17.12.2001 The plaintiff wrote to the Coastal Zone Management Division of the Department of the Marine and, after referring to the hard time for the scallop fishing sector, said ‘[t] he result is that a boat of this size [i.e. the vessel ] is no longer viable’ and enclosed a proposal to use the vessel for a dumping at sea project.

25.06.2002 A SFB licence was issued to the plaintiff and his partners which referred to the incorrect engine capacity.

15.07.2002 Coastal Zone Management Division of the Department wrote to the plaintiff notifying him that a location for the dumping had been agreed.

14.08.2002 A SFB licence was issued to the plaintiff and his partners which referred to the correct engine capacity.

12.11.2002 Coastal Zone Management Division wrote to the plaintiff informing him that legal advice had been sought from the Attorney General's Office due to the disparity between the Dumping at Sea Act 1996 and EU legislation which indicated that ‘ the disposal of fish waste at sea may not be allowed.’

20.11.2002 The plaintiff wrote to the Department requesting a correct certificate of registration.

2002 The vessel had been fitted out for dumping at sea.

January 2003 Mr. Shine from Coastal Management Division gave evidence that he phoned the plaintiff telling him that he would not be getting a permit to dump at sea. The plaintiff claimed that he never received this phone call.

21.01.2003 Mr. Shine emailed his boss in the Department stating that he had ‘ advised both K. Kielthy … that dumping at sea is no longer allowed and given them the basic details of new EU Regs.’

2002 – 2003 The plaintiff was in receipt of invalidity pension. He remains in receipt of a social welfare type payment.

23.12.2003 A SFB licence was issued to the plaintiff with the correct engine capacity.

12.10.2004 The plaintiff claimed that he wrote a letter to Mr. Ryan of the Department requesting an update in relation to the application for dumping at sea. Mr. Ryan gave evidence that he never received this letter.

03.11.2004 Dumping at Sea (Amendment) Act 2004 was enacted. It specifically amended the 1996 Act to remove the possibility of authorising dumping at sea.

18.05.2005 SI 245 of 2005 was signed into force, providing that the Minister could restrict through individual allocation to an Irish sea fishing boat the number of days that such boat could fish for scallops.

20.06.2005 The plaintiff wrote to the Department in relation to the decommissioning scheme (see [18.10.2005]) explaining: ‘as you will be aware the impact of larger vessels being introduced in the scallop fleet has had the effect of diminishing local scallop beds on which [the vessel] was clearly dependent … a special case could be made to include [the vessel] in [the decommissioning scheme] as her lack of 75 fishing days per year in the last two years is a direct result of the delay in processing the dump at sea...