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Judgment
Title:
Cromane Foods Limited & anor -v- Minister for Agriculture, Fisheries & Food & ors
Neutral Citation:
[2016] IESC 6
Supreme Court Record Number:
307/2013
High Court Record Number:
2009 1374 P
Date of Delivery:
02/22/2016
Court:
Supreme Court
Composition of Court:
Clarke J., MacMenamin J., Laffoy J., Dunne J., Charleton J.
Judgment by:
Charleton J.
Status:
Approved
Result:
Appeal allowed
Details:
Dissenting judgment by Judge Clarke.
Judgments by
Link to Judgment
Concurring
Dissenting
MacMenamin J.
Dunne J.
Charleton J.
MacMenamin J., Dunne J.
Clarke J.
Laffoy J.



An Chúirt Uachtarach

The Supreme Court

Record number: 2009/1374P

Appeal number: 307/2013


Clarke J
MacMenamin J
Dunne J
Laffoy J
Charleton J
      Between
Cromane Seafoods Limited and

O’Sullivan McCarthy Mussel Development Limited

Plaintiffs/Respondents
and

The Minister for Agriculture, Fisheries and Food,

Ireland and

The Attorney General

Defendants/Appellants

Judgment of Mr Justice Charleton delivered on Monday 22nd of February 2016

1. The facts are as stated in the judgment of Clarke J. From that statement of facts, those most salient to this judgment may usefully be recalled for the purposes of this judgment, which concurs with that of MacMenamin J. As in Clarke J’s judgment, the plaintiffs/respondents will be referred to collectively as the fishermen and the defendants/appellants, being in reality the State, will be so named.

The background
2. All roads back from this litigation lead back to the decision of the Court of Justice of the European Union in Commission v Ireland (Case C-418/04) [2007] ECR I-10947, delivered on the 13th December, 2007. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, O.J. L206/7 22.7.1992, (The Habitats Directive), required that on the designation of a place as a special area of conservation (SAC), no activity could take place without an appropriate assessment first determining that such activity would not affect the integrity of the site. The Habitats Directive was transposed into Irish law by the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997). Castlemaine Harbour, together with numerous other sites in the State, was notified to the European Commission as a candidate special area of conservation in accordance with the provisions of Article 4 of the Habitats Directive as transposed by the Regulations of 1997. Part of the drive to do this came from the Europe-wide campaign to identify and protect, by the year 2000, areas for inclusion in the conservation project known as Natura 2000. Candidate sites and sites accepted by the European Commission attract the same protection in Irish, and consequently European, law. Castlemaine Harbour had earlier been designated as a special protection area for birds (SPA) under Council Directive 79/409/EEC of 2 April, 1979 on the conservation of wild birds, as transposed into Irish law by the European Communities (Conservation of Wild Birds) Regulations 1985 (S.I. No. 291 of 1985). This designated four sites listed in its schedule but not including Castlemaine Harbour, but by the European Communities (Conservation of Wild Birds)(Amendment)(No. 2) Regulations 1994 (S.I. No. 349/1994), Castlemaine Harbour was added to the Schedule of the 1985 Regulations and thereby designated an SPA. Consequently, Article 6 of the Habitats Directive applied as and from the moment of designation. A reading of the text, in its ordinary and literal sense, meant that immediately upon designation, nothing apart from conservation work, in other words work to enhance the site as an SAC or SPA, could take place within its boundaries. Article 6.1 required the State to establish “conservation measures” for the site. Article 6.2 made it an obligation that the State “take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species”. This is a matter important to the objectives of the Directive. Overall, each designated site in Europe came under the protection of Article 6.3 which reads:

      Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
3. Effectively, whether understood to do so or not, this Article requires everything apart from conservation work to stop. Pre-planned or commenced construction work may be excepted, but is not relevant here. To a degree, the absolute nature of the effect of designation was clarified by the exceptions set out in the remainder of article 6. The exceptions demonstrate how complete the prohibition in Article 6.3 is. A negative assessment did not stop a plan or project within a designated site if it “must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature”, provided there were compensatory measures to ensure the “overall coherence of Natura 2000”. Where, and this was never the case in Castlemaine, a site hosted a priority natural habitat or species, the only justificatory reasons that might be raised for a plan or project not aimed at conservation, had to be related to “human health or public safety, to beneficial consequences of primary importance for the environment” or, if not these “to other imperative reasons of overriding public interest”, agreed to by the Commission.

4. Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405, dealt with a reference for a preliminary ruling under Article 234 EC. The proceedings were concerned with the mechanical fishing of cockles in the Waddenzee. The Court of Justice of the European Union interpreted Article 6 in a literal manner, stating at para. 61, that every plan or project requires prior approval within a designated site, to determine if the proposal has any effect on that site. As the Court stated:

      [A]n appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.
5. Thus the touchstone of either the continuation, or authorisation, of any activity on such a protected site, which is not for its conservation, is that the authorities must make “certain” that there will be no impact on its ecology. Commission v Ireland (C-418/04) followed that decision. The court rejected arguments by parties to those cases that activities which existed prior to designation could continue. In particular, and most relevant here, the negative potential effects of shellfish farming were accepted as having the potential to destroy feeding areas for birds. The finding of the Court was a reiteration of the law as set out in Waddenvereniging and Vogelbeschermingsvereniging, (Case C-127/02). The national authorities, if followed, were only entitled to authorise activity on the site “if they have made certain that it will not adversely affect the integrity of that site.” That was only possible where “no reasonable scientific doubt remains as to the absence of such effects”; see para. 243. None of this is or was, as Hanna J put the matter on page 29 of his judgment in the High Court, “the discretion of the Minister” or “the annual discretion” of the Minister. On the designation of a site there is no such discretion. It is clear that nothing impacting on a site can occur unless it is certain that it will not affect the integrity of the site. Nothing could be further from any notion of discretion.

6. Three facts which are salient to the legal analysis stand out. The State in good faith had designated approximately 140 of these sites without, first of all, terminating existing activities. Examples might range from turf cutting to mussel cultivation. It is the latter here. In the result, from December 2007, after the decision in Commission v Ireland (C-418/04), emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites. This was done essentially by Irish public servants negotiating with the Commission. There was nothing about the actions of the State defendants in this case, which in any way could be characterised as obstructive of the needs of the fishermen. On the contrary, the State witnesses, in the aftermath of that judgment, were attempting to balance the competing interests of compliance with European law over several important sites, about 40 of which were sea based, and the difficulties caused to many, including these fishermen. That is the first important fact. Secondly, the State had never made any unequivocal representation that the designation of the sites as SACs or as SPAs would not change their status and thus outrule harvesting or other business activities. The identification and designation of sites was, under the Directives, an obligation on all member states. The height of the public declarations made by the State in relation to twelve sites was that it was “not envisaged that designation will restrict the current usage pattern of … fishing, watersports, sailing or game hunting or their use for shellfish culture.” The sites included Galway Bay, this site, Shannon Estuary, Cork Harbour, Shangarry, Ballymacoda, Blackwater Estuary, Tramore, Wexford Harbour, Sandymount Strand Dublin, Malahide Estuary and Dundalk Bay. Thirdly, the opening and closing of the mussel fishery at Cromane Harbour in County Kerry was done under a legal regime which required the making of delegated legislation for each such decision. Some comment is required on this since in the judgment of Clarke J, what is to be considered is not the existence of such statutory instruments but the overall policy behind, and the decisions which led to, their passing. Since the view taken here is that a statutory instrument is required to be removed from the legal landscape, before there can be any question of liability for negligence arising, some further statement is required of the background. A similar view is taken in the judgment of MacMenamin J.

Control of fishing
7. The mussel fishery in Castlemaine Harbour was only available as a mussel fishery when opened by the appellant Minister. The relevant opening dates were: 2008, from 5th October 2008 to 31st December; 2009, from 30th April to 14th May and from 15th September to 23rd December; 2010, from 29th April to 25th May and from 30th August to 2nd December. As set out in the judgment of Hanna J, acts of natural predation on mussel seed meant that the harvest on two years from 2008 and 2010 were disappointing, a circumstance the trial judge found would have been avoided by longer opening of the fishery during those two years. An important legal context in which this occurs was not argued by either side. Consequently, it is mentioned here only in passing and not with a view to giving a definitive legal ruling. Rights on the foreshore are limited as regards private citizens. With possible exceptions for grants prior to independence, the State controls the foreshore in Ireland; Attorney-General v McIllwaine [1939] IR 437. Without permission from the relevant department of State, work by way of dredging the sea bed within the limits of the exclusive competence of the State cannot take place. Thus, it was perhaps relevant in this case that what was enabled in the opening of the harbour at Castlemaine was an activity that did not seem to occur as of right but was only enabled through permission. Consequently, it is arguable that absent a finding that either permission had been given, or a legitimate expectation of such permission was engaged, any rights in respect of the use of the foreshore may not here have been present. That point can come to be important when considering whether the State has committed any tort in the closure of the relevant seabed and foreshore. The tort contended for in the judgment of Hanna J in the High Court is the loss of fishing and harvesting rights to the fishermen. It is not established that there ever was any such right. Consequently, any loss of a privilege granted year to year cannot be taken as an element of the tort of negligence.

8. Each of the four stages of mussel cultivation was subject to statutory control. In May 2008, the fishermen purchased a new vessel and this was licensed under s.4 of the Fisheries (Amendment) Act 2003, as amended by s.97 of the Sea-Fisheries and Maritime Jurisdiction Act 2006. To fish for mussel seed, the first stage in this operation, the fishermen needed, and in fact held, a mussel seed authorisation under section 13 of the Act of 2006. This entitled the taking of a limited weight of mussel seed. This was then transplanted as a first stage and, on natural growth in the nutrient rich waters, a further transplantation took place, followed by harvesting. All in all, it is a process taking 2 to 3 years. The cultivation was authorised by an aquaculture licence held by the fishermen and issued under the Fisheries (Amendment) Act 1997. Since, however, the cultivation takes place in Castlemaine Harbour, the inlet where the mussels grow in their final stages must be open to harvesting work. Section 15 of the Act of 2006 empowers the appellant Minister to open the fishery. This is done by statutory instrument. Section 15 provides:

The Minister may to supplement the common fisheries policy, as he or she thinks proper, by regulations prescribe measures for the purpose of protecting, conserving or allowing the sustainable exploitation of fish or the rational management of fisheries that restrict, or otherwise regulate, fishing or fishing gear or equipment or the buying, handling, weighing, trans-shipping, transporting, landing, processing, storing, documenting or selling of fish. Such regulations may apply to any or all of the following:

        (a) fishing boats within the exclusive fishery limits or internal waters;

        (b) an Irish sea-fishing boat, wherever it may be;

        (c) any person engaged in buying, handling, weighing, trans-shipping, transporting, landing, processing, storing, documenting or selling of fish; and

        (d) nets and their usage during any time or season or at any place within the exclusive fishery limits or internal waters.

9. No issue has been raised to the effect that this statutory power did not apply to the opening of the fishery in Castlemaine Harbour. In itself, it is central to what follows that this section of the Act of 2006, gives the purpose and policy of the actions of the appellant Minister. It is for the “protecting, conserving or allowing the sustainable exploitation of fish” as well as the “rational management of fisheries” through a power enabling the appellant Minister to “restrict, or otherwise regulate, fishing”. A separate question will arise as to whether any duty of care arose in decisions as to allowing or forbidding the use of Castlemaine Harbour for cultivation of mussels. This section does not in any way point to a duty towards those who may wish to fish within the territorial limits of the State’s waters. Instead, a clear indication is given that in considering any restriction or regulation of fishing, under that particular section of the Act of 2006, the appellant Minister is entirely concerned with conservation considerations. As in the judgment of MacMenamin J, that becomes central to any issue of where a duty of care might lie should such a duty arise in the first place.

10. The following table was adapted from that provided at the hearing of the legislative measures whereby the fishery was opened or closed on particular dates:
S.I.NameDateParent Act or MeasureEffect on Castlemaine Harbour and on other salt water fishery areasThis siteEffective date
789/07Mussel Seed (Prohibition on Fishing) 29/11/072006 ActProhibition on fishing (all areas)Shut30/11/07
162/08Mussel Seed (Prohibition on Fishing) (revocation)04/06/082006 ActRevokes 789/07 (opens fishery all areas)Open09/06/08
176/08Mussel Seed (Prohibition on Fishing)06/06/082006 ActProhibits fishing in Scheduled areas including Castlemaine HarbourShut09/06/08
194/08Mussel Seed (Prohibition on Fishing) (No. 2)18/06/082006 ActCloses entire fisheryShut01/07/08
347/08European Communities (Control on Mussel Fishing)22/08/08Birds Directive Revokes 194/08 Restricts fishing in Scheduled areas (i.e. SPAs including Castlemaine Harbour)Shut23/08/08
395/08European Communities (Control on Mussel Fishing) (Amendment)03/10/08Birds Directive Removes Castlemaine Harbour from schedule to 347/08 (opens fishery there)Open05/10/08
605/08Mussel Seed (Prohibition on Fishing) (No. 3)23/12/082006 ActCloses entire fishery (incl Castlemaine Harbour)Shut31/12/08
108/09European Communities (Control on Mussel Fishing) (Amendment)24/03/09Birds Directive Minor amendment to 347/08Shut24/03/09
150/09Mussel Seed (Prohibition on Fishing) (revocation)22/04/092006 ActRevokes 605/08 (opens fishery generally but still closed in SPAs under 347/08 except Castlemaine Harbour)Open30/04/09
186/09European Communities (Control on Mussel Fishing) (Amendment) (No. 2)07/05/09Birds Directive Reinserts paragraph (u) of Schedule in 347/08 (closes fishery in Castlemaine Harbour)Shut14/05/09
197/09Mussel Seed (Prohibition on Fishing) (No. 2)13/05/092006 ActCloses entire fisheryShut14/05/09
341/09Mussel Seed (Prohibition on Fishing) (No. 2) (Revocation)25/08/092006 ActRevokes 197/09 (opens fishery, but SPAs still closed under 347/08)Shut26/08/09
346/09European Communities (Habitats and Birds) (Sea-Fisheries)27/08/09Birds Directive and Habitats DirectiveProvides for Natura fishery plans and permits, confers various powers on authorised officers, creates offences etc.Shut27/08/09
379/09European Communities (Control on Mussel Fishing) (Amendment) (No. 2)21/09/09Birds and Habitats DirectivesRevokes 186/09 (Removes Castlemaine Harbour from Schedule to 347/08)Open15/09/09
554/09Mussel Seed (Prohibition on Fishing) (No. 3)22/12/092006 ActCloses entire fisheryShut23/12/09
174/10Mussel Seed (Opening of Fisheries)29/04/102006 ActOpens entire fishery (subject to 347/08)Open29/04/10
228/10Mussel Seed (Closing of Fisheries)24/05/102006 ActCloses entire fisheryShut25/05/10
412/10European Communities (Control on Mussel Fishing) (Amendment)26/08/10Birds and Habitats DirectivesDeletes paragraph (u) in Schedule of 347/08 (removing Castlemaine Harbour from restricted list)(duplicates 379/09)Shut30/08/10
413/10Mussel Seed (Opening of Fisheries) (No. 2)26/08/102006 ActOpens entire fisheryOpen30/08/10
572/10Mussel Seed (Closing of Fisheries) (No. 2)29/11/102006 ActCloses entire fisheryShut02/12/10
592/10European Communities (Control on Mussel Fishing) (Amendment) (No. 2)08/12/10Habitats DirectiveRe-inserts Paragraph (u) (Castlemaine Harbour) into Schedule of 347/08 Shut08/12/10

11. In effect, every opening and every closure of the mussel cultivation operation in Castlemaine Harbour was done through subsidiary legislation. Notwithstanding that the relevant statutory instruments remain in place, although spent in terms of force by the passage of time, the fishermen sought and obtained damages in the High Court for negligence in such operation. Yet, every such decision was done through an existing and still operative enactment. That cannot be right.

Statutory powers
12. The State as appellant has argued that it was not within the competence of the High Court to find negligence as against the appellant Minister, without first of all finding that the statutory instruments which controlled the fishery were invalid. There was no warrant, the State asserted, for the finding of Hanna J that a statutory instrument was negligently signed into law; it was either valid or invalid and while valid could not be characterised as a negligent action. Since a statutory instrument was law, albeit through a delegation of legislative power, the State contended that it operated as a bar to a negligence finding as to any decision or policy that lay behind it. A statutory instrument, on the State’s submissions, could be found invalid because of the maker exceeding jurisdiction or because of a misconstruction of statutory powers or through a finding of abuse or, as an executive act, possibly where the reason for making it flew in the face of fundamental reason and common sense, thereby exceeding jurisdiction. Judicial review was the only remedy, the State contended; though this could be pursued as part of a plenary action. On behalf of the fishermen, it was contended that the statutory instruments in question were no more than the expression of executive action and as such were capable of being the expression of a negligent policy through what was called operative negligence. Damages could validly be awarded, counsel for the fishermen argued, because the object of their action in negligence and in negligent misrepresentation was the set or series of inactions that resulted in a failure by the appellant Minister to inform himself as to the environment in Castlemaine Harbour. It was also contended that mussel cultivation would not have affected the protected sites, overlapping SACs and SPAs, the consequence of which was to undermine the fishermen’s livelihood; the statutory instruments in that context being a matter of history. Both sides on this appeal also had views as to the availability in this particular context of judicial review. For the State it was argued that quashing the relevant statutory instruments was possible; time limits on action in O.84, r.1 of the Rules of the Superior Courts, 1986 of 3 months, at this time 6 months, while requiring prompt action and probably resulting in the window of fishing being past by the time of trial were liable to recur and so could not be characterised as an exercise in mootness. Counsel for the fishermen, on the other hand, contended that judicial review time limits, whether under O.84 or through the same limits applying to plenary actions, rendered the effect of the statutory instruments part of the background only.

13. Hanna J dealt with this issue by first of all reciting the arguments for the fishermen at page 16 thus:

      The blanket ban was not a matter of law but rather of poorly informed decision making on the part of the Department because it did not have any scientific information available to it and was ignoring the signs from the information that it already had, that the adverse impacts from mussel seed fishing in Cromane were nil or negligible. Furthermore, there should have been a balancing exercise on the part of the decision­ makers, weighing on one side the impact on a person's constitutional right to earn a livelihood, as against the need to protect the environment. The evolution and the preparation of scientific information in 2010 were too slow and there was no good reason why the reopening should not have been allowed much sooner than it was.
The counter argument of the State was recited at pp. 17 to 18 of the judgment of the High Court:
      The defendants were not negligent or in breach of duty in delaying the reopening of the mussel seed fishery or in delaying carrying out of tests to exclude any environmental risks. The designation of the harbour as an SPA in accordance with the Habitats Directive is a matter of law and the plaintiffs are not entitled to rely on any representation as to its effect or to hold any legitimate expectation arising from any such representation and such representations are denied. The statutory instruments opening and closing the fishery in Cromane are pieces of legislation lawfully made enjoying the presumption of constitutionality until such time as a court says otherwise. The defendants ask how could a public official be liable for negligence or breach of legitimate expectation if it is simply complying with the law? In order for the plaintiffs to succeed in a claim for negligence they must show that there is an invalidity or unlawfulness in the statutory instruments which have been lawfully made and still enjoy the presumption of lawfulness.
14. At p.23 of his judgment, Hanna J places the passing of the statutory instruments as a matter of administration, stating that “the decision of the Minister to close Cromane Harbour was an implementation of policy rather than a policy decision.” The trial judge did not specifically address any question as to the statutory instruments opening and shutting Castlemaine Harbour.

15. MacMenamin J finds it “difficult to conceive that a court could impose a legal duty in circumstances where the impugned actions of the State authority were actually carried out under law”, paragraph 52, and that view should be supported. Article 15.2.1º of the Constitution confers the “sole and exclusive power of making laws for the State” on the Oireachtas and further declares that “no other legislative authority has power to make laws for the State.” Subordinate legislation is enabled by Article 15.2.2º through provision “by law for the creation or recognition of subordinate legislatures” and for their “powers and functions”. Legislation by regulation is regularly if not consistently provided for in legislation. This form of legislative delegation is part of a reality that “the framing of rules at a level of detail” appropriate to statutory instruments “would inappropriately burden the capacity of the legislature”; Maher v Minister for Agriculture [2001] 2 IR 139 at 245 per Fennelly J. Such powers as are delegated by primary legislation cannot be exceeded; City View Press v An Comhairle Oiliúna [1980] IR 381. Delegated power is limited because law making power is exclusively vested in the legislature, which alone is subject to direct democratic control by the people and hence “may not be surrendered”; Laurentiu v Minister for Justice [1999] 4 IR 26 at 63 per Denham J. The scope of a statutory instrument must encompass what a reasonable legislature would have envisaged in delegating such powers; Incorporated Law Society of Ireland v Minister for Justice [1978] ILRM 112. Similarly, restricted articles under the Health Act 1947 could be applied to medical preparations and not to non-medical products such as tobacco; United States Tobacco International Inc. v Attorney General [1990] 1 IR 394. Cassidy v Minister for Industry and Commerce [1978] IR 297 As Fennelly J explained in Kennedy v Law Society of Ireland (No3) [2002] 2 IR 458 at 468:

      The Oireachtas may, by law, while respecting the constitutional limits, delegate power to be exercised for stated purposes. Any excessive exercise of the delegated discretion will defeat the legislative intent and may tend to undermine the democratic principle and, ultimately, the rule of law itself. Secondly, the courts have the function of review of the exercise of powers. They are bound to ensure respect for the laws passed by the Oireachtas. A delegatee of power which pursues, though in good faith, a purpose not permitted by the legislation by, for example, combining it with other permitted purposes is enlarging by stealth the range of its own powers.
16. Respect by the judicial branch of government for legislation passed by the Oireachtas, is expressed within the terms of the Constitution by reserving to the judiciary the power to condemn laws which are repugnant to the Constitution; Article 15.4.1º. There has certainly to be a judicial power to condemn delegated legislation, since many decisions have commented both on the preservation of the national parliament in its exclusive law making functions and the requirement of vigilance that delegated legislative powers are not exceeded. Hence, judicial scrutiny over delegated legislation cannot be confined to a consideration of the conformity of statutory instruments with the Constitution; instead, it extends to the limits of jurisdiction of the body or person on whom that law making power is conferred. Hence, heretofore, the grounds upon which a statutory instrument might be condemned included whether a reasonable legislature could have contemplated whether the powers delegated in the making of subsidiary legislation might have been used for the purpose impugned; whether jurisdiction was exceeded and perhaps other grounds encompassing legislative competence in relation to reasonableness; most recently see Island Ferries Teoranta -v- Minister for Communications, Marine and Natural Resources & ors [2015] IESC 95. This analysis therefore differs from any view that a legislative policy may be condemned on what are essentially negligence grounds and that extant laws may be scrutinised in negligence grounds as to the policy behind same.

17. In the judgment of Clarke J, the view is expressed that the statutory instrument could not have been condemned and that therefore it is possible to legally impugn the policy behind it. Judicial review under O.84 of the Rules of the Superior Courts, 1986, is not an impossibility in this context. Nor is a plenary action, which is subject to the same time limits as to commencement; see O’Donnell v Dún Laoghaire Corporation [1991] ILRM 301. Judicial review is, in principle, a swift remedy for the resolution of conflicts between the administration and the rights and expectations of citizens and businesses. Central to the argument put forward by the fishermen was that by the time even the swiftest of cases could come up, the period within which fishing could have taken place would have already past. This cannot be an answer to a court condemning secondary legislation on negligence grounds. In any event, judicial review would have been open. It required an order of the appellant Minister to open the fishery for mussel cultivation in Castlemaine Harbour and a failure to open the fishery could have been subject to a pre-mandamus demand letter asserting rights, accepting that a differing view might be taken as to whether there were any rights to use the foreshore in this context. In anticipation of the recurrence of that event, an obvious fact on the ground, since the State has always had an insufficient level of data on bird species and the likely impact of mussel cultivation, a demand could have been made for the opening of the harbour in the following year; allowing ample time for litigation. Unlikely as it was that any such judicial review would be met by a mootness argument on behalf of the State, even where the issue was as to the jurisdiction to, or perhaps reasonableness of, affecting an opening of the harbour at the wrong time, this was a situation likely to re-occur and where the over-riding consideration of doing justice between the parties could profitably be argued to be more important. Hence, by the time of potential litigation, the issue was not moot.

18. As Barrington J adverted to in Laurentiu v Minister for Justice [1999] 4 IR 26 at 70, judicial respect for, and restraint in respect of, legislation is an aspect of the doctrine of the separation of powers. As he put it: “the rights of the citizen will be secure only if the legislature makes the laws, the executive implements them and the judiciary interprets them.” In the context of this constitutional structure, eliding or bypassing delegated legislation and stating that either the thrust of the policy behind it was negligent, or that the necessity for the delegated legislation arose through neglect of duty, is to cross a boundary. That may be illustrated in an example. While primary legislation is not subject to challenge on the basis of jurisdiction, since the Oireachtas has ample law-making powers, where constitutional rights conflict it is for the national parliament to make a reasonable reconciliation. What if the courts were empowered to bypass such a law and to substitute, as an exercise in policy, a separate and distinct view as to which right should be primary and consequently award damages on the basis that a balance had been ill set? Another example would be to award damages on the basis that the necessity for legislation arose because of neglect, seeing fit to ignore the terms of legislation specifically barring that remedy. Depending on the circumstances, the legislature interfering in current litigation would be a trespass on such boundaries in the other direction; Buckley and Others v Attorney-General and Another [1950] IR 67. Boundaries are there to be observed where the constitutional norm separates powers.

19. The courts may go thus far: primary legislation may be unconstitutional; secondary legislation may be unconstitutional and also may be beyond the powers conferred by the parent legislation; since also secondary legislation may be an expression of administrative fiat, it could be that an improper purpose would allow the overturning of such legislation since that would go beyond delegated powers, as would a decision expressed through secondary legislation which flies in the face of fundamental reason and common sense. There can be no warrant, however, for ignoring secondary legislation and stating that the policy behind it was negligent. This sets secondary legislation at nought. In effect, it might as well not be there at all. The existing authorities suggest that secondary legislation must first be condemned before there can be any question of any analysis of negligent policy, so-called.

Duty of care
20. Negligence, of itself, does not exist in a vacuum. It is a convenient way of expressing a tortious wrong which does not simply depend upon a failure to exercise reasonable care. Before one can even go there, there has to be an analysis of, and clear definition of, the duty of care which that negligent conduct is argued to be a breach of. The trial judge in his analysis combined the issues of duty of care with negligence in deciding that by failing to have regard to the entitlements of the fishermen in opening the harbour for a shorter time in 2008 and 2010, and in not earlier conducting the study which would have enabled the hitherto normal opening season, the appellant Minister caused them loss. At pp. 32 to 33 of his decision, Hanna J expressed the matter thus:

      One must look at the scheme by which the defendant operated the management of Cromane Harbour. So between breach of legitimate expectation and common law negligence in terms of a breach of duty, the plaintiffs say that the Department failed in its duty to them in how it operated the licensing scheme in the harbour. The relevant Department failed in its duty to the second named plaintiff in how it operated the licensing scheme in the harbour. The defendants were negligent and in breach of their duty to the plaintiffs in delaying the reopening of the said mussel seed fishery, in delaying carrying out tests to exclude any environmental risks and in allowing the plaintiffs to expend substantial monies on renewing their vessel. In behaving in such a manner the plaintiffs lost the limited opportunity of obtaining the required mussel seed to be used in connection with their mussel farming business, as a result of which they have suffered loss and damage. The State did not operate the regime in an orderly way which would have allowed harmony between environmental protection and the plaintiffs continuing with their business. The sequence of events points out what should have been a necessary state of knowledge on the part of the defendants, who nevertheless decided to sit on their hands and allow matters to carry on in what appears to be defiance of the clearly stated will of the European Court of Justice. Failure to comply with obligations with European law is relevant in flavouring the state of knowledge of what the parties understood as being their modus vivendi that came to a screeching halt in June 2008.

      The Minister was negligent in failing to operate the protection of the environment in a balanced way which would allow for protection of the aquaculture business. This arose from a) failure to carry out investigations, b) inconsistency in the activities permitted and c) allowing the plaintiffs to spend huge sums of money on renewing their vessel. The result is a glaring lack of a structured approach. There is a requirement on the part of the decision maker, who has the controlling decision making in relation to the plaintiffs' ability to earn their livelihood, not to make sudden, unmeasured, haphazard and arbitrary decisions; the process should be managed in an orderly way by regularly gathering information, so that all parties can organise their affairs in an appropriate way with minimum disruption.

21. Inherent in his decision is that if there is negligence causing economic loss or other damage, there is a duty of care to prevent this and that the failure to take reasonable steps in this regard founds a cause of action. MacMenamin J’s analysis of the ingredients whereby liability had been found in this case, points up the difficulties in upholding the judgment of Hanna J. Much of this analysis seems to revert to the trial judge’s earlier acceptance of an argument on behalf of the fishermen that the opening for mussel cultivation of Castlemaine Harbour during the spring and summer months was at the “discretion of the Minister”. Upon the declaration of an SPA or SAC, in this case both kinds of protected site, and as earlier pointed out, the appellant Minister had no discretion. Instead, the protection of the environment was the only consideration open to him under Article 6 of the Habitats Directive. Timing is important here. The drive to open new areas of conservation under the European scheme known as Natura 2000, as the name implied, was to increase habitat and species protection in the run up to the millennium. In any question of negligence, the time when the acts or omissions that are to be called into question are to be analysed is at the time when whoever would be thereby affected, the neighbours on Lord Atkin’s celebrated analysis; Donoghue v Stevenson [1932] AC 562 at 580. Here, those neighbours are claimed to be the fishermen; the persons towards whom the Minister is claimed by Hanna J to have owed a duty of carefulness. The time when perhaps there might be any question of negligence is when, knowing that there are fishermen working in the harbour, and knowing that Article 6.3 forbids all work in a site that has not previously been assessed as not affecting it, apart from conservation work, a site is designated. Was that not the year 2000? Hence, in this case there is perhaps a limitation issue as well; though, this has not been pleaded in defence by the State.

22. Negligence is “conduct falling below the standard demanded for the protection of others against unreasonable risk of harm”; C Sappideen and P Vines (Eds), Fleming’s Law of Torts, 10th Ed., (Sydney, 2011) 7.10. It is impossible to analyse liability for the tort of negligence without not only examining what can be considered an unreasonable risk of harm, and what the relevant standard in guarding against that risk is, but also where that standard is demanded. The requirement to love one’s neighbour is translated in Lord Atkin’s dictum into a duty not to injure one’s neighbour. That concept as originally defined was directed towards those “persons who are so closely and directly affected by” the actions in question that the defendant “ought reasonably to have them in contemplation as being so affected when” the defendant was directing his mind “to the acts or omissions which are called in question.” The starting point to any legal analysis is to consider and decide whether a duty of care is owed by a particular defendant, towards the plaintiff who complains of that defendant’s lack of care. Absent a duty of care, the actions of a defendant which cause harm to a plaintiff are not actionable. Further, until the existence of a duty of care is established, it is impossible to elucidate what the standard is that the defendant is required to meet, a failure in which establishes liability towards the plaintiff. A duty of care does not exist in the abstract for every decision which may impact on the economic activities of others. The primary analysis must be on, whether in making decisions that could affect others, the decision maker was bound to have regard to the particular interests of the economic actors claiming prejudice to their interests.

23. That this is the starting point in any analysis of negligence was made clear by this Court’s decision in Glencar Explorations Limited v Mayo County Council (No 2) [2002] 1 IR 84 at 154-155 in the judgment of Fennelly J:

      This approach, by making findings of negligence before determining whether a duty of care exists, risks reversing the correct order of analysis. Admittedly, it was the course followed in this court in Pine Valley Developments v. The Minister for Environment [1987] I.R. 23, where it was held that the minister could not be considered negligent without pronouncing on the existence of a duty of care. The elements of the tort of negligence are the existence of a duty of care, lack of proper care in performing that duty and consequential damage. The lack of care which we commonly call negligence consists in commission or omission of acts. In order to be actionable, the acts or omissions must be such as will reasonably foreseeably cause damage to any person to whom the duty is owed. Mere causation is not enough. As a matter of principle, it seems to me that the failure to exercise due care can only be established by reference to a recognised duty. Then one can know what sorts of act are liable to cause damage for which one is liable … I agree, of course, with the Chief Justice that these findings of the learned trial judge cannot be disturbed on this appeal. I also agree with his view that the making of such findings did not mean that the trial judge was finding the respondent to be in breach of any duty of care owed to the applicants. For these reasons, the passage in question ceases to have relevance for the issues to be decided (sic) on this appeal.
24. Over decades, courts in this and other jurisdictions have grappled with the appropriate concepts whereby the imposition of liability may accord with the interests of justice and the function of the law of torts in ordering society so as to minimise harm and promote good relations between those who interact on the basis of a duty of care. As Fleming comments, Fleming’s Law of Torts, 8.20, there is no “generalisation” which “can solve the problem upon what basis the courts will hold that a duty of care exists.” While there is agreement that “a duty must arise out of some ‘relation’, some ‘proximity’, between the parties” there remains the problem that “what that relation is no one has ever succeeded in capturing in any precise formula.” Respect for precedent and its application, apart from being an obligation rooted in the certainty which the legal system owes to litigants, offers a fixed basis upon which any analysis of the duty of care can rest. What was originally the concept in Donoghue v Stevenson developed in Anns v Merton London Borough Council [1978] AC 728 at 751, through the speech of Lord Wilberforce, whereby to establish a duty of care, firstly, proximity in the relationship between the plaintiff and the defendant had to be established, so that carelessness on the part of the latter would be likely to cause damage to the former, and, secondly, to ask “whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom” that duty was owed. This approach was adopted by this court in Ward v McMaster [1988] IR 337 where McCarthy J analysed the duty of care as arising from the proximity of the parties, the foreseeability of damage and the absence of any compelling exemption based on public policy. In Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617, a new test had been introduced requiring the situation to “be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”. When Glencar Explorations Limited v Mayo County Council (No 2) came for decision before this court in 2001, the various struggles which judges in various jurisdictions had grappled with were reformulated by Keane CJ into a test which has been invariably later quoted and which was described in Breslin v Corcoran [2003] 2 IR 203 at 208 by Fennelly J as “the most authoritative statement of the general approach to be adopted … when ruling on the existence of a duty of care”. The Glencar test is thus:
      There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff.
25. As to foreseeability, it has been often remarked that almost anything may be regarded as foreseeable. What is reasonable in such foresight is a matter for judicial assessment. As to duty, if the State has exclusive rights over the foreshore and if there has been no setting of legitimate expectation of continuance of use, can it be said, in the light of the decision of the former Supreme Court in Attorney-General v McIllwaine [1939] IR 437, that there is any such duty? As a concept, proximity has been described as “artificial” by Lord Oliver in Alcock v Chief Constable of South Yorkshire [1991] 3 WLR 1057 at 411. Perhaps what is reasonably foreseeable can generate fulfilment of the test of proximity? As Fleming remarks at 8.330, there is “no simple formula that determines duty; simplicity though desirable is not to be trusted … A matrix of policy and principle will always need to be considered in the light of the particular circumstances.”

26. This appeal concerns an aspect of the liability of public authority. Perhaps because of the specific availability of the tort of misfeasance in public office, the rising tide of liability in negligence has not impacted where genuine questions of choice need to be made. The alternative is, as MacMenamin J points out, the creation of vague duties of care towards all who might be affected by public policy. As put in McMahon and Binchy, Law of Torts, 4th Ed., (Dublin, 2013) at 6.78 the functions of public authorities:

      … require them to have regard to a host of policies, interests and rights that potentially pull in different ways. If a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity. Courts are conscious of this reality when addressing the duty of care.
Here, it is the function of the department of government responsible for the implementation of both a fisheries policy that sustains limited resources and compliance with obligations to the environment. The most important is a duty in European law. In this case, there can be said to be little or nothing to be argued in the realm of choice as between the expenditure on one option in preference of another, or the pursuit of a particular aim over another that constitutes policy. Choosing one rather than the other is a fundamental function of central and of local government. It is also an area of decision making that the courts are ill equipped to make. The courts should not trespass on it. Improper conduct can be impugned through judicial review or through an action on misfeasance in public office. That supposes that public officials had some kind of a choice. Here, there was no choice. Article 6.3 of the Habitats Directive required that nothing be pursued apart from conservation measures at Castlemaine Harbour unless that alternative, here of economic exploitation, was proven beyond doubt to have no impact on either the protected site or the protected bird species. To a degree, if there was arguably any choice here at all, it very hard one at that. The unchallenged estimate on this appeal was that approximately 40 sites were affected by the need to close until any non-conservation activity was cleared through an appropriate assessment. So, which of these 40 was to be given priority? It is hard to argue that Castlemaine Harbour was in any stronger position for the allocation of resources than any other site. Further, concentration on that site would leave economic operators in other sites waiting longer. The response of the State parties was vigorous negotiation with the Commission to attempt to salvage whatever could be recovered for the benefit of users of the sites. That cannot amount to a misfeasance in public office.

27. Hanna J regarded what he saw as the failure to give priority to these fishermen over those in the multiple other sites affected by the decision in Commission v Ireland (C-418/04) and to implement, over a lightening-quick time frame as suggested by an expert witness, an appropriate assessment as operational negligence. This concept of operational negligence has not, to this point, been accepted in an Irish court. It is rightly rejected by MacMenamin J. Drawing a distinction between policy and operational errors so called is, according to Fleming at 8.400, one unwisely transported from “the very different environment of the US Federal Tort Claims Act.” This distinction Fleming describes as “largely illusory”. Were that to be adopted, and this judgment takes the view that it should not, certainly section 15 of the judgment of Clarke J in this case makes an attractive analysis; see particularly paragraph 15.11.

28. In a passage particularly relevant to this appeal, Walton (Ed), Charlesworth and Percy on Negligence, 12th Ed., (London, 2010) at 2.286, states:

      It is axiomatic that public bodies owe public law duties, enforceable by writs of certiorari, prohibition and mandamus, to give proper consideration whether to act in any particular circumstances and, if action is decided, to act within power. On occasion these duties have been seen as providing the basis for imposing a duty of care in private law. On this view the conduct of a public body must be unlawful and outside the ambit of any statutory discretion before it can come under a duty, actionable in damages, to a victim of its conduct. In particular, in X (Minors) v Bedfordshire County Council, Lord Browne-Wilkinson said that where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion; nothing which the authority does within the ambit of the discretion can be actionable at common law. But if the decision complained of falls outside the statutory discretion it can (but not necessarily will) give rise to common law liability, this depending on issues of justiciability. So on this view the initial inquiry is into the question whether the conduct was within or outside power.
29. It is not necessary to analyse the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, save to note that at 739 Lord Browne-Wilkinson commented that the analysis of whether there is a common law duty of care as between a government authority and those affected by its actions “must be profoundly influenced by the statutory framework within which the acts complained of were done.” What stands out in reading that case is the unpredictability of any of the outcomes in the joined cases in accordance with the principles enunciated. With the introduction of operational negligence, certainty of law is dissolved and public decision making becomes subsidiary to the views of experts at several removes from the pressures of government. The law has not so developed. The rationale for excluding the excise of discretionary powers is that where the statutory framework places the decision making power in the context of a choice between action on a particular issue, through the expenditure of funds that may also be needed elsewhere, or in the context of a choice between the allocation or resources insufficient to cover all needs, it is both a matter of policy and administrative choice. Further, it is also the reposing of trust by the legislature in administration and not in the litigation process. In that regard, administration should not have to look to prospective second-guessing by the courts, as this would trammel the discretionary power conferred. Instead, in any area of governmental activity it would become possible to find an expert to say that a different policy might have enhanced any contended for benefit to litigants, or not taken same away and to construct, through operative negligence, a realm where a duty of care is inventively and artificially owed to all prospective beneficiaries of whatever allocation of resources may be made. To take an example: what would there be to stop a suit which claimed that property price inflation had not been prudently controlled, thus leading to loss in the very sector where those with such responsibilities ought to have realised there was a duty of care and failed to have foreseen a crash in house prices? That development is logically a practical outcome of the adoption of operational negligence. It would be impossible both conceptually and practically. It would involve the courts in arrogating a function which has not been given to the judiciary under the Constitution. A further point might be made. Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation. If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries. In the context here under discussion, the delimitation of remedies is particularly strong. In Pine Valley Developments v Minister for Environment [1987] IR 23 at 38, Finlay CJ stated the principle thus:
      I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.
In the same case, Henchy J at page 40 had stated:
      Breach of statutory duty may occur in a variety of circumstances and with a variety of legal consequences. Here we are concerned only with a breach of statutory duty in the making of a decision which has been committed by statute to the decision-maker. The weight of judicial opinion as stated in the decided cases suggests that the law as to a right to damages in such a case is as follows. Where there has been a delegation by statute to a designated person of a power to make decisions affecting others, unless the statute provides otherwise, an action for damages at the instance of a person adversely affected by an ultra vires decision does not lie against the decision-maker unless he acted negligently, or with malice ...in the sense of spite, ill-will or suchlike improper motive), or in the knowledge that the decision would be in excess of the authorised power: see, for example, Dunlop v. Woollahra Municipal Council [1982] A.C. 158; Bourgoin S.A. v. Ministry of Agriculture [1985] 3 All E.R. 585. While the law as I have stated it may be lacking in comprehensiveness I believe it reflects, in accordance with the requirements of public policy, the limits of personal liability within which persons or bodies to whom the performance of such decisional functions are delegated are to carry out their duties.
30. The importance of the relevant statutory framework was emphasised in Glencar Explorations Limited v Mayo County Council (No 2). There, the decision to impose a mining ban was unlawful but no automatic entitlement to damages arose as a result. On no analysis of the relevant legislation did a county council in ratifying a draft development plan, owe a duty to those who held mining exploration licences. Fennelly J, quoting the statements above from the Pine Valley case, proceeded:
      I respectfully agree with those statements. I would add that the absence of the right to automatic compensation for loss caused by an ultra (sic) vires act can find further justification from the protection of individual rights afforded by the existence of the remedy of judicial review. While the sufferer of loss from a lawful but non-tortious private act is entirely without a remedy, a similarly positioned victim of an ultra vires act of a public authority, by way of contrast, has at his disposal the increasingly powerful weapon of judicial review. Thus, he may be able to secure, as in this case, an order annulling the offending act. In appropriate cases, a court may be able to grant an interlocutory injunction against its continued operation. I believe that the considered statements of the law made in Pine Valley Developments v. The Minister for Environment [1987] I.R. 23 remain the law, despite apparent inconsistency with some dicta in the majority judgments in Duff v. Minister for Agriculture (No. 2) [1997] 2 I.R. 22, which appear to treat liability for damages as automatically flowing from a mistake of law said to have been made by a minister., Pine Valley v. The Minister for Environment , though fully considered and applied in the High Court judgment of Murphy J. in that case, does not figure at any point in the judgments of the Supreme Court. I do not believe that it can have been intended to depart from such an important principle as that laid down in Pine Valley.
31. In the pursuit of a remedy in damages, it may appear that negligence as a tort has submerged other existing remedies. Hence, those pursuing damages for defamation often plead that the publication of particular facts was done negligently and those claiming false arrest may also pose as an alternative, that facts were negligently assumed prior to arrest. Tort law, however, retains the precise definition of each wrong as giving rise to an entitlement to damages and this is not to be elided to an imprecise application of proximity or reasonable care considerations. The appropriate tort for a wrong committed in the course of an administrative duty is that of misfeasance in public office. That requires malice, as defined in this context, to be actionable. Hence, since the Pine Valley case the following statement of Finlay CJ from p.673 of that decision has been applied as the law:
      The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:

      1. If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.

      2. If it is actuated by malice, e.g. a personal spite or a desire to injure for improper reasons.

      3. If the authority knows that it does not possess the power which it purports to exercise.

32. In this context, leaving any decision on the matter to an appropriate case, negligence might arise in the context of public administration, not through making a decision which allocates resources or pursues aims in a particular direction, but perhaps through failing to deal with the very task which the legislation has entrusted to the body, such as the administration of applications within a set time frame. In that regard Clarke J cites Minister for Communications, Marine and Natural Resources v Figary Water Sports Development Company Limited [2015] IESC 74. That case is, however, an example of how a duty of care can arise in an administrative body, there from a duty to process applications for regional funds under the relevant European scheme, and can be broken by simply deciding not to fulfil that duty. Of course, State parties can be negligent. The State can commit a tort. That, however, is not to incorporate a new concept into the law whereby the tort of misfeasance in public office may be by-passed through simply claiming in circumstances akin to those in Glencar Explorations Limited that a public body had been negligent in its approach. The correct analysis is confined to misfeasance in public office. Negligence as a concept would completely submerge that tort and replace it with an alternative analysis: could matters have been done better, was damage caused, were not the alleged injured parties close enough to the public authority that they should have considered their interests? Instead, the elements of the tort of misfeasance in public office are what are available to those who feel let down by an official decision. Malice is clearly not present here on the findings of Hanna J. Furthermore, there is no question here of the appellant Minister knowing that he did not possess this power. Every power was statutorily based and every decision was expressed correctly through a statutory instrument.

33. The statutory matrix came from two sources: the powers conferred on the appellant Minister under the relevant legislation, firstly, and the obligations of the State under European legislation, secondly. The Sea-Fisheries and Maritime Jurisdiction Act 2006 confers power on the appellant Minister under s.13 to grant authorisations for fishing, qualified by time, species and area to be fished. Section 14 of that Act mandates the appellant Minister to implement the common fisheries policy. Section 15, under which the relevant regulations as to opening and closing of Castlemaine Harbour were made, is quoted above. Its purpose is to enable the Minister to supplement the common fisheries policy. The statutory purposes are set out in s.13 as “the proper and effective management and conservation and rational exploitation of fishing opportunities” and in s.15 as “protecting, conserving or allowing the sustainable exploitation of fish or the rational management of fisheries”. Insofar as regulations made under s.15 might under ordinary circumstances be regarded as the exercise of a discretionary power as to how through restricting fishing, tackle, opening and closing seasons, dealing in fish and areas to be fished within the exclusive twelve mile competence of the Minister within our national waters, there is nothing in the statutory scheme which set up an obligation towards fishermen or any requirement apart from what could be regarded as the overall purpose of the sustainable and rational management of fish stocks.

34. On this structure of legislative imperatives and entitlements, one might do a tort analysis based on breach of statutory duty as giving rise to liability. That does not assist the fishermen. This is not a statutory scheme directed towards particular individuals or a class of individuals and nor is it a scheme which gives particular or special protection beyond its legislative aims in favour of an identified group. If any duty is owed at all under the Act of 2006, it is towards the furthering of the common fisheries policy of the European Union and the sustenance of fishing opportunities. Of itself, this must involve restrictions on untrammelled taking of sea stocks. Conservation is for the benefit of the community as a whole. Ministerial competence extends within the twelve mile national exclusive fishing zone and there and elsewhere for the purpose of furthering the fisheries policy worked out on a Europe-wide basis. This does not give rise to any statutory duty in favour of the fishermen. Even where that was not the case, as commented earlier in this judgment, there was no basis upon which any discretion can be exercised in favour of economic exploitation within an SAC or an SPA, since there can be no question of analysing the Habitats Directive as being concerned with anything other than the protection of the environment and species within the protected areas. There is no discretion vested in the appellant Minister to exempt either the fishermen or any other economic actor within the protected area. The duty of care is towards the wider community, expressed as the protection of the environment. Hence, there cannot be, and could not have been in this instance, any duty of care which might found an action in negligence.

34. It might also usefully be commented that such limited opening times, about which the fishermen complain, were brought about only through serious efforts on behalf of the respondent Minister in negotiation with the European Commission. What was achieved was more than the blanket ban that applied automatically as a matter of law because of Article 6.3 of the Habitats Directive.

Legitimate expectation
35. Only a brief observation is appropriate in relation to the judgment of Clarke J and the concurring judgment of MacMenamin J on legitimate expectation. As Fennelly J remarks in Glencar Explorations Limited v Mayo County Council (No 2) at 162, the doctrine of legitimate expectation is related to that of promissory estoppel as it applies in matters of contract. Essentially, for promissory estoppel to apply, there must be “clear and unequivocal promise or assurance which is intended to affect the legal relations” between parties to a transaction which is understood as such, and before it is withdrawn the party to whom the representation is made, acts upon it in such a way that “it would be inequitable to permit the first party to withdraw the promise”, that is to act inconsistently with it; McGhee (Ed), Snell’s Equity, 32nd Ed., (London, 2010). While estoppel by convention can arise through acting upon “an assumed state of fact or law, the assumption being either shared by both or made by one and acquiesced in by the other” this is not a warrant for jumping to conclusions. The common bases upon which the parties act must, on objective assessment be “unambiguous and unequivocal”; Peel (Ed), Treitel’s The Law of Contract 13th Ed. (London, 2011) at 3.094. There is nothing in the decision of this Court in Courtney v McCarthy [2008] 2 IR 376 to suggest any other test. Moving from private law into the field of a private expectation set up in consequence of a statement by a public authority, the harmony between legitimate expectation and promissory estoppel, or estoppel by convention, should be maintained. In no case is there any warrant for analysing any expectation as legitimate where it is not based upon an unambiguous and unequivocal declaration. As Clarke J states, at paragraph 10.7, that is absent in this case.

Damages
36. In the original action in the High Court there were two plaintiff companies. Cromane Seafoods Limited is a firm which buys seafood products and exports them. Whatever the nature of the memorandum of incorporation of this company, it had no direct relationship with the dredging of mussels in Castlemaine Harbour or their transplanting, nurturing and harvesting. It is not enough that both companies shared directors or had identical directors. The second-named plaintiff O’Sullivan McCarthy Mussel Development Limited held the relevant licence and the relevant aquaculture licence and the relevant permission in relation to the use of the harbour at Castlemaine and the foreshore. Hanna J assessed damages in favour of O’Sullivan McCarthy Mussel Development Limited at €275,000 and in favour of Cromane Seafoods Limited at €125,000. The trial judge held, essentially, that Cromane Seafoods Limited was entitled to that sum of damages by reason of the laws deriving from the unavailability of mussels from O’Sullivan McCarthy Mussel Development Limited. The trial judge stated:

      So, what is the loss? Apart from Mr. O'Sullivan, the Court was offered evidence on behalf of the plaintiff by Mr. Kevin Wynne, Chartered Accountant, who acts as the plaintiffs' accountant. For the defence, the court heard from Mr. Sean Bagnall, also a Chartered Accountant. Both of them dealt separately, as one would expect, with the two plaintiffs respective losses. As already noted, the defendants, through Mr. Paul McGarry, S.C. argued forcefully that the plaintiffs were not in the same position. The first named plaintiff was a buyer of mussels and could deal with any supplier, anywhere. The plaintiffs were at arms length from each other and this, in effect, extinguished sufficient proximity from the torts of the defendants to enable the first named plaintiff to recover damages. Earlier in this judgment, I recounted the discreet nature of the business conducted by the respective plaintiffs in Cromane Harbour. I also noted the fact that this ongoing modus operandi was, from the evidence which I have heard, well known to the defendants both in terms of the Department of Agriculture, Fisheries and Food and on the part of the "on the ground" Departmental officials. Cromane Seafoods Limited bought up the entire stock of the O'Sullivan McCarthy Development Limited's produce as well as others. The arrangements in Cromane Harbour were such that it is unlikely that any favourable arrangement would have been arrived at between the first named plaintiff and the second named plaintiff. It is verging on the unthinkable that, dealing as it did, with 'the other producers of mussels in Cromane harbour that the first named plaintiff would have been in a position to come to a "favourable deal" with the second named plaintiff. I am satisfied that, given the specific circumstances regarding the mussels fishing industry in Cromane Harbour, the plaintiffs were at all material times dealing at arms length. I am further satisfied that given the level of involvement and knowledge on the part of the defendants that the defendants knew or ought to have known that any damage to the local mussel industry caused by the closure of the harbour would impact, not alone upon the second named plaintiff, but also upon the first named plaintiff.

      The first named plaintiff is, in my view, in sufficient proximity, therefore, to recover damages for the reasonably foreseeable loss incurred through the abrupt closure of Cromane harbour in 2008 and, notwithstanding some degree of consultation, the late opening of same in 2010.

37. This finding must be corrected, despite there being no basis for liability. Whatever the potential argument for recovery in the case of the company having the relevant licences to exploit mussels and to grow them within Castlemaine Harbour, no possible argument for a connection based upon proximity or foreseeability could rationally bring the other company within the scope of any potential damages that might be awarded. That company could be in no special position in terms of the purchase of mussels and it is difficult to know what special arrangements would entitle a company to state that it lost in consequence of purchases being unavailable at less than market value from a related company. Further, there is no analysis of any attempt that might have been made to mitigate this loss through the purchase of mussels from other sources and the shipping of these to the main markets in France and elsewhere.

Result
38. The appeal should be allowed. Any analysis of liability in negligence must commence with the consideration of whether a duty of care exists between the plaintiff and defendant. Where the relationship is governed by statutory powers, the first point of analysis must be the legislative matrix. It must be shown that these powers expressly set up a duty of care to be exercised by the defendant in favour of the plaintiff or that such a duty of care arises by necessary implication. In the context of discretion as to the allocation of resources or as to the order in which problems might be tackled, any argued for existence of a duty of care may, depending on the context, be inimical both to the wider duty owed within that statutory context to the community at large and also to the non-application of the law of negligence even where the decision maker acted beyond the powers conferred, unless that decision maker otherwise acted wrongfully by misfeasance in public office. This requires malice, in the sense of improper motive, or knowledge by the decision maker that the decision would be in excess of the delegated powers. Otherwise, public bodies may also commit recognised torts, including negligence. Here, there was nothing to suggest that the duty of the appellant Minister under the Sea-Fisheries and Maritime Jurisdiction Act 2006 gave rise to any duty of care towards these fishermen. On the contrary, the considerations in the legislation are expressly directed towards the conservation of fish stocks, their rational exploitation, the furtherance of the common fisheries policy and the consequent benefit towards the community. Even if that were not the case, no discretion arose once Castlemaine Harbour had been declared an SPA and an SAC. Under the Habitats Directive, article 6.3, the duty of the State was clear, which was to conserve the protected sites and to not allow any non-conservation activity until it was certain that it would not impact upon the environment and the species within. Hence, any amelioration in the decisions made as to the opening of Castlemaine Harbour, were negotiated from the European Commission by the appellant Minister as a concession. All this was done in good faith.

39. The analysis in this judgment precludes any award of damages from negligence based on an underlying policy which is expressed in the application of either primary or subordinate legislation to situations without that legislative justification being removed first of all through judicial review in the case of delegated legislative powers or by a declaration of constitutionality in the case of Acts of the Oireachtas.

40. There was no basis, in terms of the press statement relied on, as founding a legitimate expectation. There was no entitlement for anyone to conclude that it was clear and unequivocal that Castlemaine Harbour would not be shut by reason of the designation of much of that area as an SPA or an SAC.

41. Finally, damages should not be awarded to related companies on the basis of any analysis that a wrong was perpetrated against one of them which was felt by the other because they shared common directors.












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