Wexford County Council v Kevin Kielthy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] IECA 274 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/196 |
[2021] IECA 274
Costello J.
Noonan J.
Ní Raifeartaigh J.
Record Number: 2019/196
High Court Record Number: 2011/5186S
THE COURT OF APPEAL
Summary judgment – Liability – Error of law – Appellant appealing against the order of the High Court granting summary judgment to the respondent – Whether the trial judge found the appellant liable for a sum never claimed or pleaded by the respondent
Facts: The plaintiff/respondent, Wexford County Council, was a local authority with responsibility for the provision of harbour services at Kilmore Quay in County Wexford. The defendant/appellant, Mr Kielthy, was a fisherman and was the owner of a fishing vessel, the “Morgensonne”. The defendant claimed that the Minister for Agriculture, Fisheries and Food failed to correctly register the Morgensonne between July 2000 and July 2005, as a result of which the plaintiff claimed to have suffered loss and damage. The defendant sought to decommission the vessel and applied for a grant which was then available for that purpose. The defendant’s vessel was laid-up in Kilmore Quay harbour for a period of some four years between 2006 and 2009. As a result, the defendant incurred laid-up charges under the provision of the Kilmore Quay Harbour Bye-Laws 2004. The defendant appealed to the Court of Appeal against the order of the High Court of 19th March, 2019 granting summary judgment to the plaintiff in the sum of €16,352.81. The essential complaint of the defendant in his notice of appeal was that the trial judge found him liable for a sum never claimed or pleaded by the plaintiff. In its respondent’s notice, the plaintiff did not seek to cross-appeal the trial judge’s determination, which it accepted, and disputed that any error of law was made by the trial judge in finding as he did.
Held by Noonan J that the defendant placed sole reliance on a ground of appeal never raised or argued in the High Court and, in general, such an approach is impermissible. Noonan J held that the conclusions of the trial judge were correct.
Noonan J dismissed the appeal. His provisional view was that, as the plaintiff had been entirely successful, it was entitled to the costs of the appeal.
Appeal dismissed.
JUDGMENT of Mr. Justice Noonan delivered on the 22 nd day of October, 2021
. The appellant (the defendant) brings this appeal against the Order of the High Court of 19 th March, 2019 granting summary judgment to the respondent (the plaintiff) in the sum of €16,352.81.
. The plaintiff is a local authority with responsibility for the provision of harbour services at Kilmore Quay in County Wexford. The defendant is a fisherman and was the owner of a fishing vessel, the “Morgensonne”. The defendant, with two business partners, acquired this vessel in the late 1990s. In order to engage in commercial sea fishing, the vessel had to be registered on the Register of Fishing Boats and have a licence. In separate but linked proceedings, the defendant claims that the Minister for Agriculture, Fisheries and Food failed to correctly register the Morgensonne between July 2000 and July 2005, as a result of which the plaintiff claims to have suffered loss and damage.
. Thereafter, the defendant sought to decommission the vessel and applied for a grant which was then available for that purpose. This transpired to be quite a lengthy process for reasons which are not relevant to this appeal, but appear in detail in the accompanying judgment of Ni Raifeartaigh J. in Kielthy v Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General CA 2019/195. The consequence was that the defendant's vessel was laid-up in Kilmore Quay harbour for a period of some four years between 2006 and 2009. As a result, the defendant incurred laid-up charges under the provision of the Kilmore Quay Harbour Bye-Laws 2004, which came into force on the 19 th April, 2004. These Bye-Laws were made by the plaintiff in the exercise of the powers conferred on it by s. 37 of the Local Government Act, 1994, as extended by s. 89 of the Harbours Act, 1996. No dispute arises in these proceedings concerning the validity of the Bye-Laws.
. Articles 50 and 51 provide as follows:-
“50. Any vessel normally engaged in trading activities in or coming into the Harbour for non-trading purposes i.e. not engaged in the loading and/or unloading of passengers and/or livestock and/or goods, shall be deemed to be laid-up after the expiration of five days from the date of arrival of that vessel in the harbour. A vessel normally engaged in trading in the harbour shall be deemed to be laid-up after the expiration of fourteen days from the date of arrival of that vessel in the harbour when not engaged in trading activities.”
51. The master or owner of a vessel which, by virtue of Articles 49 and/or 50 of these Bye-Laws, is deemed to be laid-up in the harbour shall be liable for laid-up harbour fees as follows:
— at a daily rate of €0.63 per metre length of the vessel from the end of the relevant period as set down in Article 50. The daily rate can, under Part III, Article 84 of these bye-laws be changed”.
. Part III of the Bye-Laws provides (at Article 84(3)):-
“Harbour charges shall be recoverable by the Council from the person or persons on whom they have been imposed as a simple contract debt in any Court of competent jurisdiction.”
. The Kilmore Quay harbour master, Captain Philip Murphy, was charged with responsibility for raising and collecting fees and charges for harbour services and usage. He wrote to the defendant on the 18 th September, 2006 in the following terms:-
“Dear Mr. Kielthy,
I am writing to inform you that your vessel “Morgensonne” has been inactive in the harbour for quite some time now. The vessel was towed in by the Kilmore Quay lifeboat on 5 July, and has only left the harbour for one day since on 3 August.
Under the Kilmore Quay Harbour bye laws, a vessel shall be deemed to be laid up after a period of 14 days and will be billed at €0.70 per metre per day.
From the various conversations I have had with you I understand that you are having a problem sourcing reliable crew to put to sea, and you are also appealing your failed attempt to have the “Morgensonne” scrapped under the decommissioning scheme.
Due to these circumstances I am willing to give you until 1 st November 2006, to either have the vessel removed from the harbour, or use her on a regular basis for fishing. (Regular basis is taking that the vessel will spend approximately 1/3 of its time in port and 2/3 at sea.)
Please do not hesitate to contact me should you have any further information.
Yours etc.”
. It will be noted that the figure referred to in Captain Murphy's letter for laid-up fees is €0.70 as opposed to €0.63. This increase came about as a result of an order made by the County Manager on 18 th January, 2006. A further order made on the 1 st January, 2007 by the County Manager increased it from €0.70 to €1.00 from that date. On the 1 st July 2007, the charge was increased to €5 per day by further order of 31 st May, 2007.
. Ultimately, from the time that the vessel became laid-up in the harbour and it being scrapped in 2009, Captain Murphy raised invoices, pursuant to the charges levied by the Bye-Laws as amended from time to time, amounting in total to €106,339,85.
. A summary summons claiming this amount was issued on 22 nd December, 2011 and was followed by a motion for summary judgment grounded on Captain Murphy's affidavit. The defendant swore a replying affidavit on the 25 th February, 2014. In this affidavit, the defendant does not contest the validity of the Bye-Laws or the fact that he is liable to pay harbour charges to the plaintiff. Rather his complaint is in the main concerned with objections to the increases in the charges made by the...
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