O'Shea Fishing Company Ltd -v- Minister for Agriculture, [2008] IEHC 91 (2008)

Docket Number:2007 1340 JR
Party Name:O'Shea Fishing Company Ltd, Minister for Agriculture
Judge:Clarke J.

THE HIGH COURTJUDICIAL REVIEWCOMMERCIAL 2007 No. 1340 J.R. BETWEENO'SHEA FISHING COMPANY LIMITEDAPPLICANTANDTHE MINISTER FOR AGRICULTURE, FISHERIES AND FOODRESPONDENTJUDGMENT of Mr. Justice Clarke delivered the 7th of March, 2008 1. Introduction1.1 This the second case to come before the Court arising out of problems involving Ireland's mackerel fishing quota which have resulted from the discovery, in Scotland, of undeclared landings of mackerel which were, at least in part, attributed to Irish boats.1.2 On the 12th July, 2007 I gave judgment in Atlantean Limited v. The Minister for Communications and Natural Resources and Others, [2007] IEHC 233. The facts which lay behind an original decision ("the original decision") on the part of the respondent ("the Minister") to reduce the mackerel fishing quota available to the applicant in those proceedings, ("Atlantean"), are fully set out in that judgment and it is unnecessary to repeat them here. The applicant in these proceedings ("O'Shea Fishing") had parallel proceedings in being at the time when I gave judgment in Atlantean. Subsequently the Minister indicated that it was not intended to appeal my judgment in Atlantean and it was ultimately accepted that the largely identical position of O'Shea Fishing required to be treated in the same way as Atlantean .1.3 For the reasons which I set out in my judgment in Atlantean, I was satisfied that the Minister had not followed fair procedures in reaching a conclusion that Atlantean had been guilty of undeclared landings and thus ought to bear an appropriate share of the reduction in Ireland's national mackerel fishing quota which resulted from those undeclared landings. I should also note that I made clear in Atlantean that there was nothing wrong, in principle, with the Minister seeking to impose the burden of the reduced Irish national mackerel fishing quota, which resulted from such undeclared landings in Scotland, on those ships which might have been shown to have been guilty of the relevant undeclared landings. My finding that the Minister's actions were unlawful was based, not, therefore, on any criticism of the principle applied by the Minister, but rather the absence of an appropriate process leading to the decision to determine the fact and amount of undeclared landings in the individual case. In the light of the fact that the Minister accepted that the decision made in respect of O'Shea Fishing was unlawful for a like reason (and by implication that any other similar decisions in respect of other boats, in respect of whom proceedings had not been maintained, were similarly tainted), it was clear that the Minister would have to take further steps to deal with the undoubted problem that existed. Ireland's national quota remained reduced as a result of decisions taken at EU level in the light of the undeclared landings in Scotland (as described in Atlantean) and it necessarily followed that some decision had to be taken as to where the burden of that national reduction was to lie.1.4 These proceedings are concerned, therefore, not with the original decision of the Minister, but what followed on from the acceptance by the Minister that the original decision was to be set aside. In those circumstances, and in order to understand the basis of the legal challenge now maintained by O'Shea Fishing, it is necessary to set out the facts as they occurred subsequent to the decision in Atlantean.1.5 However before going on to deal with those facts, it does seem to me to be appropriate to note that, at the hearing before me, it was common case that the figures relied upon by the Minister in coming to the original decision in respect of O'Shea Fishing (which was an identical decision to that reached in respect of Atlantean save that the amount of undeclared landings reported by the Scottish Authorities in respect of O'Shea Fishing differed from the amount reported in respect of Atlantean ), was based on incorrect figures. Immediately before giving judgment I was told by counsel for the Minister that it was now believed that the figures were, in fact, correct. Courts are sometimes criticised for what is said by some to be an excessive zeal in ensuring fair process when, it is said, the result is obvious. Apart from the laudable object of ensuring that justice is seen to be done as well as being done, this case is a clear illustration of the practical consequences of proper process. What appeared to be clear facts are, as a result of proper process being engaged in, now seen to be at least open to doubt. As a result of the decision in Atlantean, it is clear that the Minister sought greater details from the Scottish Authorities as to the basis upon which it was suggested that the various Irish boats which had been identified as having been guilty of undeclared landings, had those undeclared landings attributed to them. Detailed documentation was made available by the Scottish Authorities to their Irish counterparts. In fairness to the Minister and her officials a detailed analysis of the documentation received from Scotland was carried out. That original analysis suggested that the undeclared landings previously attributed to O'Shea Fishing were overstated by a not insignificant margin (of the order of 8.5%). Whether that original analysis is ultimately found to be correct does not take away from the fact that the true figure will now, at least, be arrived at as a result of a rigorous process involving those affected.1.6 It is appropriate that I draw attention to this matter because it illustrates that requiring that statutory decision makers go through proper process is no idle task designed solely for the purposes of meeting the optics of the situation. While it will not occur in every case, the facts of this case are a clear illustration of how, when a proper process is gone through, it is at least possible that a different result may well occur.1.7 Leave to seek judicial review was given, so far as part of the claim now maintained is concerned, by Peart J., on the 15th of October, 2007. In respect of certain additional reliefs and grounds Kelly J. permitted an amendment of the statement required to ground the application. As so amended, the challenge is now to the validity of two decisions made by the Minister subsequent to the judgment in Atlantian (the reason for the requirement for the amendment to which I have referred is that one of the relevant decisions occurred after the original leave had been granted). In addition the statement of grounds seeks an order of mandamus which, if granted, would require the Minister to actually allocate a mackeral quota to O'Shea Fishing. However, that relief was not pressed at the hearing before me. It was accepted that the proper course of action to adopt was that I should consider whether the ministerial decisions sought to be impugned should be quashed. If they are quashed then it will, at least initially, be up to the Minister to decide on what course of action is appropriate subject only to the overriding entitlement of the court to review any such subsequent decision if appropriate.1.8 While many grounds are referred to in the statement of ground, the substance of the claim put forward on behalf of O'Shea Fishing is that the relevant ministerial decisions had no sufficient or proper basis in law and were...

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