Murphy v Minister for the Marine (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris,Mr. Justice Peter Shanley
• Judgment Date: 11 April 1997
• Neutral Citation: [1997] IEHC 62
• Court: High Court
• Docket Number: 11,263p/1991
• Date: 11 April 1997

[1997] IEHC 62

THE HIGH COURT

No. 11263P/1991

MURPHY v. MIN MARINE

BETWEEN

JOSEPH MURPHY

PLAINTIFF

AND

THE MINISTER FOR THE MARINE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

FISHERIES (CONSOLIDATION) ACT 1959 S222B

FISHERIES (AMDT) ACT 1983 S2

FISHERIES (AMDT) ACT 1983 S5

FISHERIES (CONSOLIDATION) ACT 1959 S224B

CONSTITUTION ART 29.4.5

EUROPEAN COMMUNITIES ACT 1972 S2

TREATY OF ROME ART 189

TREATY OF ROME ART 5

TREATY OF ROME ART 38

TREATY OF ROME ART 39

TREATY OF ROME ART 40

TREATY OF ROME ART 41

TREATY OF ROME ART 42

TREATY OF ROME ART 43

EEC REG 2908/83

EEC REG 2909/83

EEC DIR 83/515

EEC REG 4028/86 ART 3

EEC REG 4028/86 ART 4.3

DECISION 88/142

DECISION 91/543

DECISION 92/364

DECISION 92/594

WILEY V REVENUE COMMISSIONERS 1989 IR 350

CARRAGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241

DUFF V MIN FOR AGRICULTURE UNREP SUPREME 4.3.97

TREATY OF ROME ART 47

Synopsis:

European Community Law

Challenge to Minister's decision not to grant sea fishing licence; relationship between Community and national law; Common Fisheries Policy; circumstances in which court will set aside exercise of a discretionary power; legitimate expectation, estoppel Held: Claim dismissed; Minister's decision upheld (High Court: Shanley J 11/04/1997)

Murphy v. Minister for the Marine

[1997] 2 ILRM 523

1 Judgment delivered the 11 day of April 1997 by Mr. Justice Peter Shanley

2 In January, 1989 Joseph Murphy applied to the Minister for the Marine for sea fishing licence in respect of his fishing vessel. Under the Fisheries Acts a licence is required from the Minister before a sea fishing vessel can fish. In November 1991, the Minister refused to grant Mr. Murphy a licence on the ground that he had failed to demonstrate that his application "involved tonnage replacement in line with the policy guidelines set out in the Department's letter of the 29th June, 1990". The Minister's decision to refuse a licence to Mr. Murphy is attacked on several grounds:-

3 1. It is alleged that in reaching his decision the Minister took into account factors which should not have been taken into account.

4 2. It is alleged that the Minister was not entitled to adopt and apply a policy towards the grant of a licence after the date on which an application for a licence was made.

5 3. It is alleged the Minister's delay in reaching a decision constituted unfairness justifying the setting aside of the decision.

6 4. It is alleged that the Minister's refusal to grant a licence constituted a breach of Mr. Murphy's legitimate expecations. It was also submitted that the Minister, having given assurances himself and by his officials as to grant of a licence, was estopped from denying the Plaintiff's entitlement to a licence.

THE EVENTS LEADING TO THE REFUSAL OF THE LICENCE

7 Mr. Murphy is a successful sea fisherman who lives in Dunmore East in Country Waterford. He is the owner of three fishing boats and the holder of two skipper certificates. He purchased his first boat in 1982 and the second in 1986. In 1988 he decided be would purchase a third boat. He went to Belgium and inspected a boat in Ostend the "Zee Adelt". He agreed a purchase price of IR £120,000 and had the boat surveyed. He then returned to Ireland. Aware that he required a licence for the boat, he contacted the Department of the Marine spoke to a Mr. John Maloney, an Executive Officer in the sea fishery section of the Department. An application form was sent by Mr. Maloney to Mr. Murphy which he filled in and returned to the Department in January, 1989. The application form has a series of notes on it for Applicants. One of those notes is to the effect that:

"Applicants are advised that the Minister may grant or refuse an application and they should not enter into financial commitment prior to a licence being granted".

8 When returning the form of the Department, Mr. Murphy also sent a copy of the written survey of the boat. The Department, seeing the survey was in the flemish language, asked for translation which, when obtained, was regarded as inadequate: a fresh survey was done by Bureau Veritas and a written report sent to the Department. The Department also asked Mr. Murphy for some background information on his career, which he duly sent to them. Mr. Murphy recalled several conversations with Mr. Maloney of the Department at the end of February, and at the start of March 1989 during which, he says, he was positively reassured by Mr. Maloney that he was "looking pretty good, o.k. for approval" and that " but for the stroke of a pen the licence would issue". He says Mr. Maloney told him to go to Belgium to negotiate a final price for the Zee Adelt. This Mr. Murphy did, only to discover the owner now wanted £ 27,000 more. Mr. Murphy, faced with this increased price, decided not to complete, but looked around and found another boat, which be liked, called the "De Zwerver", which was on offer for IR £120,000. He told Mr. Maloney whom, he says, told him that he could substitute this new vessel in the application presently before the Department. He says that Mr. Maloney told him that licence approval was imminent. At the end of March 1989, Mr.Murphy sent in his revised application form accompanied by a written survey (in English of the De Zwerver.). The Department, on receipt of the application, asked for a decommissioning certificate Which was provided in the early days of May, 1989, De Zwerver was a large vessel of some 99 tonnes and some 27 meters in length. Mr. Murphy says that, when he put in the revised application, he had not concluded the purchase of the new vessel. He says he spoke to Mr. Maloney who again reassured him the application was before the Minister and it was "in the Minister's top drawer"and that the issue of the licence was imminent. Mr.Maloney told him he could safely negotiate the purchase of the vessel. When Mr. Murphy inquired as to fact of delay Mr.Maloney he says told him he could if he wished explore " other channels". By this he Mr. Murphy, understood "political channels". In consequence, Mr. Murphy contacted a Senator Fitzgerald, an assiduous public representative, who made represntations on his behalf to the then Minister for the Marine, Mr. Brendan Daly. As a result, the Senator reported to Mr. Murphy that the licence would be issued by the Minister to Mr. Murphy. Buoyed up by this assurance, and the assurances of Mr. Maloney, Mr. Murphy says he decided to purchase the boat the De Zwerver. In July 1989, he travelled to Ostend, concluded the deal and sailed the boat back to Dunmore East. There was a general election on the 28th June 1989, which resulted in a change of Minister in the Department of the Marine. Senator Fitzgerald enlisted the aid of Brendan Kenneally T.D., who met Mr. Murphy, and, in turn, made representations to the Tanaiste, the new Minister for the Marine, Mr. Wilson, and his Junior Minister Pat "the Cope" Gallagaher. He also later canvassed Mr. David Andrews T.D. On the 31st August, 1989 the Department wrote to Mr. Murphy saying that the Minister had established a licensing review group to recommend to him the sea fishing policy that should be adopted to ensure the optimum development of the Irish sea fishing industry, "In the meantime the Minister has suspended consideration of all fishing boat licence applications. Your application will be considered further when the revised policy is in place"; finally, Mr. Murphy's views in writing were invited to be sent to the Department. Mr. Murphy says that he was shocked by this letter: it was contrary, he said, to all the assurances he had received from politicians and from Mr. Maloney. On the 29th June, 1990, the Department wrote to Mr. Murphy saying that the Minister had decided that preference would be given in the grant of licences to Applicants, for boats other than for pelagic or beamer fleets,who have proposed tonnage replacement. This information reflected the policy which the Minister announced on the 31st May 1990 and which will return later in this judgment. The letter to Mr. Murphy asked him whether there was "a replacement element associated with your application. Accordingly I have been instructed to ask you to indicate in writing whether your application involves tonnage replacement and if so,to provide full details of same".

9 Mr. Murphy did not reply to this letter.

10 Between September 1989 and January 1991, Mr. Murphy fished with the De Zwerver boat. In January 1991, his boat was arrested. He did not thereafter use the boat to fish in Irish territorial waters. He again directed his attention to procuring a licence. In February 1991, Brendan Kenneally T.D. arranged a meeting with the then Tanaiste Mr. Wilson and the Tanaiste's private secretary, a Mr. Paul Dillon, who took a note of what was said at the meeting which followed. As against the officials in the Department, the note records that the complaint made by Mr. Murphy was one of delay in processing Mr. Murphy's application. Mr. Murphy believed that at the meeting be also recounted the assurances he got from Mr. Maloney and just the assurances from the politicians. However, Mr. Dillon's note contains no such record of any allegation against Mr. Maloney and Mr. Dillon did not recall any such allegation being made at the meeting in February 1991. On the 5th April 1991, the solicitor for Mr. Murphy wrote to the Minister alleging assurances had been made by Mr. Maloney as to the issue of a licence. Following that letter, Judicial Review proceedings were instituted by Mr. Murphy in July 1991, to compel the Minister to make a decision on foot of the application for a licence. That decision was ultimately made by the Minister by letter dated the 8th November 1991, refusing to grant a licence and it was refused, as already noted, on the grounds that he had...