Power, Flynn a Ltd v Minister for Fisheries & Forestry

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1986
• Date: 01 January 1986
• Docket Number: [S.C. No. 93 of 1985]

Pesca Valentia Ltd v. Minister for Fisheries

Pesca Valentia Limited

Plaintiff

and

The Minister for Fisheries and Forestry, Ireland and The Attorney General

Defendants

[S.C. No. 93 of 1985]

Supreme Court

Injunction - Interlocutory - Offshore fishing licences - Issued pursuant to statute - Conditions of nationality attaching to licences - Plaintiff seeking to restrain enforcement of conditions pending hearing of action - Effect of such injunction to prevent Executive from exercising powers vested by statute - Balance of convenience - No special principles applicable - Case made out for interlocutory relief - Plaintiff granted interlocutory injunction - Fisheries (Consolidation) Act, 1959 (No. 14), s. 222B - Fisheries (Amendment) Act, 1983 (No. 27), s. 2 - Constitution of Ireland, 1937, Article 29.

The plaintiff company was the owner of three sea-fishing vessels formerly registered in Spain, but since May of 1981, registered in the State. In December, 1983, the first defendant, issued licences in respect of the plaintiff's boats, pursuant to the provisions of s. 222B of the Fisheries (Consolidation) Act, 1959, inserted by s. 2 of the Fisheries (Amendment) Act, 1983. The licences contained a condition that the boats should not be used for sea-fishing within the exclusive fishing limits of the State, or otherwise, unless 75 per cent or more of the members of the crew were Irish citizens, or nationals of another Member-State of the E.E.C. The operation of this condition became effective on the issue of the licences in 1984, following an initial postponement. On the 11th September, 1984, one of the plaintiff's boats was arrested and the master thereof charged with the offence of fishing otherwise than in accordance with the licence in that the entire crew of the boat were Spanish nationals. The master was returned for trial in the Cork Circuit Court and the vessel was released from detention upon the lodgment of a security.

On the 12th March, 1985, in the High Court, Lardner J. granted an interlocutory injunction to the plaintiff, restraining the defendants, pending trial of the action, inter alia, from enforcing the condition attaching to the licences. The defendants appealed to the Supreme Court against the order of Lardner J. and it was

Held by the Supreme Court (Finlay C.J., Walsh, Griffin, Hederman and McCarthy JJ.), in dismissing the appeal, 1, that the application for an injunction fell to be decided in accordance with the ordinary principles governing interlocutory injunctions.

2. That no special principle applied with regard to an application for an interlocutory Injunction where the consequence arising from the granting of the injunction was to postpone the bringing to trial of a criminal charge or was to prevent the Executive from carrying out powers vested in them by a statute which enjoyed a presumption of constitutional validity.

The State (Llewellyn) v. Ua Donnchadha [1973] I.R. 151, considered.

3. That accordingly; (i) (McCarthy J. dissenting) the presumption of constitutionality which applied to the impugned statute was material as to whether the plaintiff had established a fair question to be tried, and; (ii) the consequences arising from the granting of the interlocutory injunction, (the prevention of the Executive from carrying out powers vested by the statute enjoying such a presumption and the postponing of the bringing to trial of a criminal offence created by such a statute), were matters for consideration on the balance of convenience.

Per McCarthy J.: The constitutional presumption attaching to the impugned statute is irrelevant since the Constitution itself, by sub-s. 3 of s. 4 of Art. 29, envisages some freedom from constitutional scrutiny of laws enacted, acts done or measures adopted by the European Economic Communities or institutions thereof.

4. That, notwithstanding the presumption of constitutionality which attached to the statute, the plaintiff had clearly established that there was a fair question to be tried and that the balance of convenience lay in favour of the plaintiff, notwithstanding also that the operation of the statute was suspended.

5. That, accordingly, the plaintiff was entitled to an injunction pending trial of the action, but that it was inappropriate that the injunction be granted against the second defendant; Ireland.

Cases mentioned in this report:—

The State (Llewellyn) v. Ua Donnchadha [1973] I.R. 151.

Campus Oil Limited v. Minister for Industry & Energy (No. 2) [1983] I.R. 88; [1983] I.L.R.M. 258 (High Court); [1984] I.L.R.M. 45 (High Court & Supreme Court).

Electricity Supply Board v. Gormley [1985] I.R. (129); [1985] I.L.R.M. 494.

Case 185 to 204/78 Van Dam [1979] E.C.R. 2345.

Case 61/77 Commission v. Ireland [1978] E.C.R. 417.

Case 63/83 R. v. Kirk [1985] 1 All E.R. 453.

Case 141/78 French Republic v. United Kingdom [1979] E.C.R. 2923.

Case 88/77 Minister for Fisheries v. C.A. Shonenberg & Ors. [1978] E.C.R. 473; (1977) JISEL 22 (District Court decision and request for a preliminary ruling).

Case 82/79 Commission v. United Kingdom [1980] E.C.R. 2403.

Case 287/81 Anklagemyngighed v. Jack Noble Kerr [1982] E.C.R. 4053.

Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. [1978] E.C.R. 629.

Pigs & Bacon Commission v. McCarren [1981] I.R. 451; [1981] I.L.R.M. 237; [1979] E.C.R. 2161; (1978) JISEL 77 (High Court decision and request for a preliminary ruling); (1980) JISEL 87 (preliminary ruling); (1981) JISEL 31 (Supreme Court).

Case 804/79 Commission v. United Kingdom [1981] E.C.R. 1045.

Educational Company of Ireland Limited v. Fitzpatrick No. 1 [1961] I.R. 323; (1960) 96 I.L.T.R. 161.

Esso Petroleum Company (Ireland) Limited v. Fogarty [1965] I.R. 531.

Irish Shell v. Elm Motors [1984] I.R. 200; [1982] I.L.R.M. 519 (High Court); [1984] I.L.R.M. 595 (Supreme Court).

Notice of Motion.

The facts have been summarised in the headnote and appear in the judgment of Finlay C.J. post. This was an interlocutory application for an injunction in proceedings in which the plaintiff issued a plenary summons, (issued the 30th November, 1984, amended the 16th January, 1985), and statement of claim, dated 30th April, 1985, seeking, inter alia, a declaration that s. 222B, sub-s. 5 (a) of the Fisheries (Consolidation) Act, 1959, as inserted by s. 2 of the Fisheries (Amendment) Act, 1983, was unconstitutional. The plaintiff also sought a declaration that the condition of nationality attaching to the licences to fish granted to the plaintiff by the first defendant, was contrary to the Constitution, the Treaty of Rome, 1957 and the law of the E.E.C.

On the 17th January, 1985, the plaintiff issued a notice of motion seeking,inter alia, an interlocutory injunction restraining the defendants from enforcing the condition attaching to the licences to fish, granted to the plaintiff. On the hearing of the motion on the 12th March, 1985, Lardner J. granted an interlocutory injunction restraining all three defendants from enforcing, or attempting to enforce the condition attaching to the licences, pending trial of the action. The defendants appealed this order of the High Court. The appeal was heard by the Supreme Court on the 3rd May, 1985.

Section 222B of the Fisheries (Consolidation) Act, 1959, as inserted by s. 2 of the Fisheries (Amendment) Act, 1983...