McDowell and Others v Sea Fisheries Protection Authority

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 03 November 2023
• Neutral Citation: [2023] IEHC 603
• Court: High Court
• Docket Number: [Record No. 2020/ 999JR]

Between:

Noel McDowell, Killybegs Fishing Enterprises Limited, Killybegs Seafoods Unlimited, and The Killybegs Fishermen's Organisation Limited

Applicants

and

Sea Fisheries Protection Authority

Respondents

[2023] IEHC 603

[Record No. 2020/ 999JR]

THE HIGH COURT

Judicial review – Sea fisheries – Weighing – Applicants seeking judicial review – Whether the applicants had established infirmity with the selection of the vessel for a monitored weighing on landing

Facts: The first applicant, Mr McDowell, was one of the Masters of the MFV Atlantic Challenge (the Vessel). The second applicant, Killybegs Fishing Enterprise Limited, was the registered owner of the Vessel. The third applicant, Killybegs Seafood Unlimited, was engaged in the business of buying, processing, and marketing fishery products and was one of the shareholders in the second applicant. The fourth applicant, the Killybegs Fishermen’s Organisation Limited, was formed to represent and defend the interests of the fishing industry operating out of Killybegs and fishing the waters around the island of Ireland. The High Court (Meenan J), by order ex parte made on the 1st of February, 2021, gave leave to apply by way of an application for judicial review for the following reliefs including separate orders of certiorari quashing: (i) the “Notice to Weigh on Landing” on 12th October, 2020; (ii) the Official Pelagic Weighing Record required by the respondent, the Sea Fisheries Protection Authority (the Authority), to be completed by the third applicant on 12th and 13th of October, 2020; (iii) the decision made by the Authority on or after the 12th of October, 2020 requiring the first and third applicants to adjust the landing declaration incorporated in the electronic logbook and the sales note previously completed by the first and third applicants; (iv) the inspection report made by the Authority with regard to the first, second and third applicants on 3rd of November, 2020; (v) the report of the Authority to the European Commission (the Commission) made on or about 15th November 2020 in purported compliance with Article 33(2) of Council Regulation (EC) No 1224/2009 of 20th November 2009 (the Control Regulation) and a broad range of related declaratory relief. The applicants’ position was that the Authority did not have the right to suspend the operation of its own control plan and once the distinct administrative regime of the Irish Control Plan was put in place under Article 61 of the Control Regulation, and Masters of fishing vessels and operators were permitted to organise their weighing systems in accordance with it, it could not be the case that the Authority could vary or suspend that administrative scheme to require a monitored weighing on landing in individual cases notwithstanding the provisions of the Control Plan.

Held by Phelan J that no infirmity with the selection of the Vessel for a monitored weighing on landing had been established. In circumstances where she had found that the buyer/operator applicants were subject to a duty to submit to a requirement for a monitored weighing on landing under Article 60(6) of the Control Regulation notwithstanding the then existence of a derogation but failed to comply with that duty through a refusal to dewater and sort the species of fish for weighing, the applicants could not legitimately complain about any consequential inaccuracy in the information submitted arising from the weighing on landing. She held that any such inaccuracy arose directly from the actions taken by or on behalf of the first to third applicants and it would not be an appropriate exercise of discretion to grant the relief sought in the circumstances. She held that the official weights which required to be recorded were the weights obtained on landing; those were the weights obtained prior to transportation to a factory premises where the first weighing occurred before transportation. She held that where the first weighing occurred post transport to an authorised premises in reliance on a derogation lawfully agreed with the Commission, it was permissible to use the factory weights.

Phelan J held that the applicants had failed to establish that they were entitled to any relief by way of judicial review. Accordingly, she dismissed the application.

Application refused.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 3 ^rd day of November, 2023

INTRODUCTION

1 . These proceedings concern the lawfulness of the control measures adopted by the Respondent (hereinafter “the Authority”) in furtherance of its obligations under the Common Fisheries Policy (hereinafter “the CFP”) of the European Union at Killybegs Port in October, 2020 to weigh fish on landing. Under the control measures in issue a catch was required to be weighed (hereinafter “monitored weighing on landing”) in the presence of an official of the Authority prior to transport from the place of landing. At that time, the State had the benefit of a “ control plan” by way of derogation agreed with the European Commission (hereinafter “the Commission”) in 2012 (and since rescinded in April, 2021) which permitted the weighing of pelagic species of fish (including mackerel and herring) at authorised premises after transportation.

2 . The issues which now arise for determination concern the exercise of a power to require a monitored weighing on landing at the pier-side notwithstanding the existence of a derogation which permitted weighing at an authorised premises after transportation.

BACKGROUND

3 . The first named Applicant (hereinafter “the Master”) is a fishermen and professional fishing boat skipper or Master and he was, at the time of commencement of the within proceedings, one of the Masters of the Irish registered fishing vessel, the MFV Atlantic Challenge (hereinafter referred to as “the Vessel”). The second named Applicant is a limited liability company engaging in the business of capturing and selling fish. It is the registered owner of the Vessel, and it holds a sea fishing licence for the Vessel (hereinafter “the Owner”).

4 . The third named Applicant is an unlimited liability company engaging in the business of buying, processing, and marketing fishery products (hereinafter “the Buyer”). It is one of the shareholders in the second named Applicant, and is dependent on, inter alia, the fishery products landed by the Vessel as raw material for its business. The Buyer operates a fish processing facility based in Killybegs equipped with a flow-scales. At all material times this instrument held the required certificate confirming its compliance with national metrology requirements. The Buyer owns a factory premises equipped with an approved flow-scales. The permit which issued to the Buyer authorising the weighing of fishery products following transfer to the Factory is endorsed with conditions and recites:

“The weighing of fishery product as stated in Council regulation (EU) No 1224/2009, article 60(6) may be conducted in the course of conducting official controls.”

5 . The fourth named Applicant is a representative organisation and recognised fish producer organisation formed to represent and defend the interests of the fishing industry operating out of Killybegs and fishing the waters around the island of Ireland.

6 . Until 2020, the standard weighing practice operated in accordance with a derogation agreed with the Commission through the terms of the Irish Control Plan (hereinafter “the Control Plan”) in place from 2012 was that the catch was stored on board the vessel in refrigerated sea water (RSW) and transported, still in sea water, to a fish processing facility holding a permit under the Control Plan and equipped with a flow scale (or conveyor belt weighing system) certified as compliant with national metrology requirements. There the fish were sorted by species and weighed. The use in this way of the flow scales for the weighing of fishery products such as mackerel was said to be essential by the Applicants for the preservation of the quality, freshness and value of the fish during the weighing process as it minimised damage caused by crushing/bruising (under column of fish) or temperature variation by permitting the fish to remain in refrigerated water for the purpose of transportation to the factory premises where dewatering, sorting and weighing would occur. There is conflicting evidence as to the extent to which the Applicants are correct in this contention and it is the Authority's position that it is possible to mitigate the effects of “ de-watering” in the weighing process to minimise impact on quality, freshness and value when weighing does not take place at a factory premises.

7 . In the Irish pelagic fishing fleet, the two highest risk categories are ‘medium’ and ‘high’. Until February, 2020, the Authority met its obligations under the Commission Implementing Regulations to ensure that at least 7.5% of the quantities landed for listed pelagic species at least 5% of the landing are fully inspected, by carrying out such inspections in factories after the catch had been transported from the place of landing. Such inspections by the Authority involved the monitor of trucks transporting the catch from the vessels to the factory. At the factory, the Authority witnessed the weighing of a vessel's catch over the factory's weighing system and verified the species being weighed. From time to time a ‘carton count’ would be conducted which involved counting the cartons of fish being packed after weighing and grading.

8 . Notwithstanding the derogation provided for in the Control Plan, the Authority maintains its entitlement to weigh fish on the pier immediately on landing under supervision as a control measure. It seems to be common case, however, that until a change of practice announced in December 2019, it did not exercise this entitlement. A change in practice in relation to the...