Lett & Company Ltd v Wexford Borough Corportaion and Others

JudgeMr. Justice Clarke
Judgment Date23 May 2007
Neutral Citation[2007] IEHC 195
CourtHigh Court
Date23 May 2007

[2007] IEHC 195


[No. 7059 P/2004]
Lett & Co Ltd v Wexford Corporation






DALY v MIN FOR MARINE & ORS 2001 3 IR 513 2001 5 1265

WILEY v REVENUE COMMISSIONERS 1994 2 IR 160 1993 ILRM 482 1992 4 1204


ABRAHAMSON & ORS v LAW SOCIETY OF IRELAND & AG 1996 1 IR 403 1996 2 ILRM 481 1996 9 2635



DUFF v MIN AGRICULTURE & FOOD 1997 2 IR 22 1993 7 1921

WEBB v IRELAND 1988 IR 353

PHILIP v RYAN 2004 4 IR 241



Legitimate expectation

Public authority - Test to be applied - Exercise of statutory discretion - Fairness of administrative powers or actions - Differences between doctrines of estoppel and legitimate expectation - Whether public authority made statement or adopted position amounting to promise or representation - Whether promise or representation conveyed directly or indirectly to identifiable person or group of persons - Whether acts of reliance - Whether promise or representation created reasonable expectation that public authority would abide by promise or representation to extent where it was unjust to resile from it - Whether plaintiff had legitimate expectation that compensation would be paid - Assessment of damages - Standard of proof - Balance of probabilities - Loss of harvest - Calculation of future losses - Calculation of past loss - Loss of opportunity to harvest mussel beds - Whether plaintiff established any loss - Whether there were continuing losses attributable to existence of exclusion zone notwithstanding its discontinuance - Whether plaintiff mitigated loss - Daly v Minister for the Marine [2001] 3 IR 513; Wiley v Revenue Commissioners 1994] 2 IR 160; Abrahamson v Law Society of Ireland [1996] IR 403 and Glencar Exploration v Mayo County Council [2002] 1 IR 84; Duff v Minister for Agriculture (No 2) [1997] 2 IR 22; Webb v Ireland [1988] IR 353 and Philp v Ryan [2004] IESC 401 [2004] 4 IR 241 followed; Davies v Taylor [1974] AC 207 approved; Glenkerrin Homes v Dun Laoghaire County Council [2007] IEHC 298 (Unrep, Clarke J, 26/4/2007); Tara Prospecting v Minister for Energy [1993] ILRM 77; Hempenstall v Minister for Environment [1994] 2 IR 20 and Duggan v An Taoiseach [1989] ILRM 710 considered - Plaintiff awarded damages (2004/7059P - Clarke J - 23/5/2007) [2007] IEHC 195Lett & Co Ltd v Wexford Corporation

The Plaintiff was involved in mussel farming in Wexford harbour for many years. A waste treatment plant was constructed and an “exclusion zone” was imposed which had the effect of preventing mussel harvesting within a distance of 500 metres from the outfall point. The Plaintiff contended that it had a legitimate expectation that it would receive compensation and it had suffered loss as a result of the imposition of the exclusion zone.

Held by Clarke J. that the Plaintiff had a legitimate expectation and was entitled, as against the Minister, to compensation for proven losses in respect of the imposition of the exclusion zone.

Reporter: R.W.

1. Introduction

2 1.1 The plaintiff ("Letts") has been involved in mussel farming in Wexford Harbour for very many years. They were at the forefront of developments in the 1960s and 1970s which led to a more commercial approach being taken to mussel farming. Up to that time mussels were harvested in a traditional fashion from long established mussel beds within the harbour. Thereafter the process moved to one whereby mussel seed was harvested (normally in the Irish sea), transported to Wexford Harbour and left there so as to enable the mussels to grow to a size where they were saleable.


3 1.2 Letts had traditionally used a number of mussel beds within Wexford Harbour which, it is common case, were among the more productive beds within that harbour. Over the last decade or so Letts have suffered two disruptions to those mussel beds. The first occurred as a consequence of significant bridge work in Wexford which had the effect of changing the water flows around some of Letts more attractive mussel beds. The consequences of those works were the subject of previous litigation brought by Letts which was compromised between the parties to that litigation. The issues which arose in those proceedings are, therefore, not strictly speaking relevant to the case which I have to decide. However those proceedings are of some relevance to certain of the issues which do arise in these proceedings.


4 1.3 This case concerns the second intervention which has had an effect on Lett's mussel beds. There had, for many years, been a plan to engage in a significant upgrading of the sewage facilities for Wexford town and its environs. It would appear that, historically, much of the waste from Wexford town emptied directly into the harbour through a large number of separate pipes. Ultimately it was determined that a modern and sophisticated waste treatment plant should be constructed. It would appear that that waste treatment plant was intended to, and did in fact, adopt modern best practice in relation to what is described as the tertiary treatment of waste. It was, however, necessary that the waste, when treated, would have to be discharged into the sea at some point. In that context the ultimate outfall point determined on was in the middle of one of Letts mussel beds. In circumstances which it will be necessary to analyses in some detail a so called "exclusion zone" was imposed which had the effect of preventing mussel harvesting within a distance of 500 metres from the outfall point. It is in relation to what it contends are losses stemming from the imposition of that exclusion zone that Letts brings these proceedings. In substance it is contended that Letts have a legitimate expectation that they will receive compensation and that they have, in fact, suffered loss as a result of the imposition of the exclusion zone.


5 1.4 Against that general background I should outline the principal issues which have arisen in the proceedings and which it is necessary to determine in the course of this judgment.

2. The Issues

2 2.1 The first issue which arises is as to whether, in all the circumstances, Letts have a legitimate expectation that they will receive compensation. Clearly if no such legitimate expectation can be said to exist then nothing further arises.


3 2.2 In the event that an entitlement arises, in principle, to the payment of compensation then there is a second issue between the first named defendant ("Wexford Corporation") on the one hand, and the second and third named defendants ("The State") on the other hand as to whose obligation it is to pay such compensation. It will be necessary to analyse, again in some detail, the relationship between Wexford Corporation and, in particular, the second named defendant ("The Minister"). However in general terms it is sufficient, at this stage, to note that, in order to construct the outfall pipe, Wexford Corporation needed a licence from the Minister because a significant portion of that outfall pipe was to be constructed on the foreshore and, therefore, in the jurisdiction of the Minister. In that context discussions took place between Wexford Corporation and the Minister concerning the terms of a foreshore licence. The licence as ultimately executed makes provision for the payment of any compensation arising from losses resulting from the foreshore licence to be a matter for Wexford Corporation and also contemplates the imposition of an exclusion zone. It will be necessary to refer to the relevant provisions of the foreshore licence in due course. However while it is true to state that the foreshore licence contemplates an exclusion zone, it is argued on behalf of Wexford Corporation that the exclusion zone ultimately imposed by the Minister was not the exclusion zone contemplated by the licence. In addition, it is said, correctly so far as it goes, that the operation of the plant itself has never given rise to any practical difficulties in terms of pollution or the like. In those circumstances it is said that any losses attributable to the operation of the exclusion zone that was actually imposed by the Minister is a matter for the State rather than for Wexford Corporation. In the event, therefore, that Letts are found to be entitled to compensation, then a second issue arises as to whether that compensation should be directed as against Wexford Corporation on the one hand or the State on the other hand.


4 2.3 Again on the assumption that Letts are entitled to compensation in principle, there are very serious issues between the parties as to whether Letts have established any loss and if so the quantum of such loss. Briefly put both Wexford Corporation and the State argue that no losses have been established. Subject to that it is also common case between the parties that the question of whether there has been loss, and if so the amount of any such loss, needs, in the events that have happened, to be considered in relation to two different periods. To understand this division it is necessary to note that a significant practical change to the situation on the ground occurred in the weeks immediately before this case was due to commence hearing in the summer of 2006. At that time and, it would appear, placing reliance on reports as to water quality prepared in the context of this litigation, the Minister decided that the exclusion zone was no...

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22 cases
  • Lett & Company Ltd v Wexford Borough Council & others
    • Ireland
    • Supreme Court
    • 3 Febrero 2012
  • Lett & Company Ltd v Wexford Borough Council
    • Ireland
    • Supreme Court
    • 10 Marzo 2015
    ...compensation by the High Court (Clarke J.) as against the second defendant and costs as against the second and third defendants (see [2007] IEHC 195, [2012] 2 I.R. 198). On appeal to the Supreme Court, the award was reduced, the costs order was upheld and the costs of the appeal were awarde......
  • Lett & Company Ltd v Wexford Borough Council
    • Ireland
    • Supreme Court
    • 16 Marzo 2016
    ...compensation by the High Court (Clarke J.) as against the second defendant and costs as against the second and third defendants (see [2007] IEHC 195, [2012] 2 I.R. 198). On appeal to the Supreme Court, the award was reduced, the costs order was upheld and the costs of the appeal were awarde......
  • Barlow v Minister for Agriculture
    • Ireland
    • Supreme Court
    • 27 Octubre 2016
    ... ... on a number of occasions in recent years: Lett & Company Limited v. Wexford Borough Council and ... ...
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1 books & journal articles
  • Increasing Pension Ages in Greece and Ireland: A Question of Legitimate Expectations
    • United Kingdom
    • European Journal of Social Security No. 16-3, September 2014
    • 1 Septiembre 2014
    ...loration PLC v. Mayo County Council (200 2) 1 IR 84 at pp. 162–163 (per Fennelly J).53 Lett and Co. Ltd . v. Wexford Borough C ouncil (2007) IEHC 195 at parag raph 4.7 (per Clark J).54 Curran v. Minister for Educati on and Science (2009) 4 IR 30 0 at pp. 317–318 (per Dunne Increasing Pensio......

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