Michael Meade (plaintiff) v The Minister for Agriculture, Fisheries and Food : 2010 852 P, Laffoy J,

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 03 March 2010
• Neutral Citation: [2010] IEHC 105
• Court: High Court
• Date: 03 March 2010

[2010] IEHC 105

THE HIGH COURT

[No. 852P/2010]

Meade v Min for Agriculture

BETWEEN

MICHAEL MEADE

PLAINTIFF

AND

THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD

DEFENDANT

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13

SEA-FISHERIES & MARITIME JURISDICTION ACT 2006 S13(1)

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84 1998/20/7466

FISHERIES (AMDT) ACT 2003 S3(2)(B)

CURUST FINANCIAL SERVICES LTD & CURUST INDUSTRIES LTD v LOEWE-LACK-WERK OTTO LOEWE GMBH & CO & ANOR 1994 1 IR 450

MULLARKEY v IRISH NATIONAL STUD CO LTD 2004 15 ELR 172 2004/32/7390

MITCHELSTOWN CO-OPERATIVE SOCIETY LTD T/A CMP DAIRY v SOCIETE DES PRODUITS NESTLE SA & ORS 1989 ILRM 582 1988/9/2689

INJUNCTIONS

Interlocutory injunctions

Mandatory order - Strong case - Adequacy of damages - Balance of convenience - Prejudice - Quota management and allocation - Legitimate expectation - Whether applicant could show strong case - Whether damages adequate remedy - Whether granting reliefs would disturb status quo - Glencar Exploration plc v Mayo County Council [2002] 1 IR 84 applied - Maha Lingham v Health Service Executive [2005] ELR 137; Curust Financial Services Ltd v Loewe-Lack-Werk [1994] 1 IR 450 and Mitchelstown Co-Operative Society Ltd v Societe des Produits Néstle SA [1989] ILRM 582 considered - Mullarkey v The Irish National Stud Co Ltd [2004] IEHC 116 distinguished - Sea-Fisheries and Maritime Jurisdiction Act 2006 (No 8), s 13 - Fisheries (Amendment) Act 2003 (No 21), s 3(2)(b) - Application dismissed (2010/852P - Laffoy J - 3/3/2010) 2010 IEHC 105

Meade v Minister for Agriculture

Facts The plaintiff sought interlocutory relief regarding the allocation of mackerel quotas. The policy operated by the defendant meant that boats over 65 feet in length were each allocated 263 tonnes, while those under 65 feet but over 50 were allocated 32 tonnes. Originally the plaintiff's vessel had been under 65 feet in length but had since been lengthened and had been registered as an over 65 foot vessel. The defendant had originally frozen all quotas at 2009 levels and had subsequently informed owners intending to modify their vessels that this might not secure entry into the over 65 foot mackerel and other pelagic fisheries. The defendant had treated all vessels in 2010 for quota allocation purposes as they had been treated in 2009. This had occurred against the backdrop of an evaluation and review of the long-term arrangements regarding mackerel fishing. In effect the plaintiff was seeking a mandatory injunction for the granting of a further 231 tonnes of quota (in addition to the 32 tonnes already received) pending the trial of the action. The plaintiff contended that the defendant had retrospectively altered the qualifying criteria and that owing to efforts and expenditure by the plaintiff, he had a legitimate expectation to the allocation of the additional quota.

Held by Laffoy J in refusing to grant the injunctive relief sought. The defendant and officers of the department had been at pains not to raise hopes and expectations of owners contemplating modifying their vessels. No breach of statutory duty had been made and a case regarding this would more properly be met by judicial review proceedings. On the evidence before the court one could not conclude that damages would not be an adequate remedy. If the relief sought was granted, effectively the court would be ordering the defendant to impose new arrangements in respect of quota allocations. The balance of convenience favoured refusing the injunction.

Reporter: R.F.

1 Judgment of Miss Justice Laffoy delivered on the 3rd day of March, 2010.

The application

2 1. On this application the plaintiff seeks interlocutory injunctions in the following terms:

3 (1) restraining and/or prohibiting the defendant from implementing interim arrangements for the opening of Polyvalent Spring Mackerel Fishery whereby certain vessels in the over 65 foot category, and in particular the plaintiff's motor fishing vessel "Buddy M", are to be given a quota allocation for vessels in the under 65 foot category;

4 (2) restraining and/or prohibiting the defendant from discriminating against certain owners of vessels within the over 65 foot category, and in particular, the plaintiff with respect to quotas allocated to the "Buddy M"; and

5 (3) if necessary, an order directing the defendant to treat all owners of vessels over 65 foot equally with respect to the allocation of mackerel quotas in the Polyvalent Spring Mackerel Fishery.

6 The foregoing relief is sought on foot of a notice of motion which issued on 1 ^st February, 2010, the proceedings having been initiated by plenary summons which issued on the same day.

The factual background

7 2. The "interim arrangements" referred to in the notice of motion arise from a decision made by the defendant pursuant to the powers conferred on him by s. 13 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 (the Act of 2006) on 27 ^th January 2010, which was communicated to the plaintiff by letter dated 28 ^th January, 2010. Sub-section (1) of s. 13 provides that the defendant may, "for the proper and effective management and conservation and rational exploitation of fishing opportunities and fishing effort for Irish sea-fishing boats under the common fisheries policy", at his discretion grant to a person an authorisation in respect of a specific boat, authorising, subject to s. 13, "the utilisation of the boat's fishing effort for the capture and retention on board of a specified fish stock … from the boat in a specified area … and the landing or transhipment of the specified stock … during such period as is specified in the authorisation".

8 3. The decision in issue on this application relates to the mackerel quota for the year 2010 and, more specifically, for the Spring of 2010. When the defendant made his decision on 27 ^th January 2010, the final national allocation had not been agreed at EU level because bilateral negotiations between the EU and Norway had not been completed. At the December 2009 Fisheries Council an interim national quota for 2010 at 65% of the 2009 quota was set. The decision in issue related to the allocation out of that interim quota of the Spring 2010 quota. While the total allowable catch and the final quota have been subsequently agreed at EU level, following the successful conclusion of negotiations between the EU and Norway, it is important to emphasise that these proceedings and the relief claimed relate to the decision made on 27 ^th January 2010 as to the allocation of the interim national quota.

9 4. Mackerel quota is allocated between Refrigerated Sea Water (RSW) vessels and polyvalent (i.e. multi-purpose) vessels, including hand liners. A set quantity is allocated to hand liners. The balance of the polyvalent allocation is divided between vessels over 65 feet and vessels under 65 feet.

10 5. In distributing the polyvalent allocation for Spring 2010 between the two categories of vessels, the defendant's decision was to distribute the allocation of 5,505 tonnes as follows:

11 (a) 4,486 tonnes was allocated to the over 65 foot vessels, of which there are 17, each vessel receiving an allocation of 263 tonnes; and

12 (b) 1,018 tonnes was allocated to the under 65 foot vessels, distinguishing between-

13 (i) vessels of over 50 foot, of which there are 16, each of which got an allocation of 32 tonnes; and

14 (ii) vessels under 50 foot, of which there are 32, each of which was allocated 16 tonnes.

15 I would observe that the distribution does not tally mathematically with the available allocation, but nothing turns on that.

16 6. The manner in which the defendant's decision affected the plaintiff was that, as he was informed in the letter dated 28 ^th January, 2010 from the defendant's department, a fishing authorisation in respect of the "Buddy M" was issued to him with an allocation of 32 tonnes of mackerel in respect of the period to 28 ^th February, 2010. He was informed that a "re-allocation" of mackerel was planned after 28 ^th February, 2010 for vessels in his mackerel quota allocation category (under 65 foot) for the period to run to 7 ^th April, 2010. What was meant by "re-allocation" in that context is explained in the replying affidavit sworn on 18 ^th February, 2010 by Josephine Kelly, a principal officer in the defendant's department. Ms. Kelly averred that it is planned to have two fishing periods for the Spring season in respect of the under 65 foot category. Vessels which have not landed a minimum of 10% of the mackerel allocation in the first period, i.e. up to 28 ^th February, 2010, will not be eligible for an allocation in the second period. As I understand it, the unfished quota will be "re-allocated", which, in reality, means re-distributed between the vessels in the relevant category who have exceeded the threshold and the distribution will be on a pro-rata basis, although that has not been averred to on behalf of the defendant.

17 7. The plaintiff fished his entire allocation of 32 tonnes on 3 ^rd February, 2010, so that he has crossed the threshold for a further distribution. His complaint is that, for allocation purposes, the "Buddy M" should have been allocated 263 tonnes as a vessel over 65 feet, because-

18 (a) since 11 ^th December, 2009 the "Buddy M" has been registered in the Register of Fishing Boats with a registered length of 19.83 metres, which brings it within the over 65 foot category, and

19 (b) the Sea-fishing Boat Licence in respect of the "Buddy M" has been renewed by the Licensing Authority for Sea-fishing Boats with effect from 1 ^st January, 2010 without pelagic preclusion in relation to mackerel,...