Supreme Court refuses agriculture minister’s bid for review of judgment

Men incorrectly advised by department that vessels could lawfully fish in Bay of Biscay

The men were advised the vessels could lawfully fish for scallops in an area of the Bay of Biscay. File photograph: Getty Images

The men were advised the vessels could lawfully fish for scallops in an area of the Bay of Biscay. File photograph: Getty Images

 

The Supreme Court has dismissed an unusual application by the Minister for Agriculture and Fisheries to review its decision upholding a € 49,600 damages award to the owners of two fishing vessels.

The award was made over negligence by department officials in incorrectly advising the vessels could lawfully fish for scallops in an area of the Bay of Biscay.

The damages were awarded by the High Court in 2011 after the vessels owned by Eugene Bates and Brendan Moore, business partners in scallop fishing, were arrested by the French Navy.

Both men claimed damages of almost € 912,000 but the High Court ruled the only sustainable claims were those directly consequent on the arrest of the vessels – the MFV William Joseph and MFV Alicia – conviction, and penalties.

In February 2018, a three judge Supreme Court dismissed the Minister’s appeal over the High Court decision. Six weeks later, as the court was about to make final orders, the Minster applied for a review of its findings, alleging error in the judgment.

It was claimed the judgment contained an incorrect narrative of events of August 18th and 19th, 2003 which account was central to the decision to dismiss the appeal and uphold the High Court judgment.

The events over those two days related to the two boats having been observed as engaging in scallop fishing about 4.30am on August 18th and being arrested at 2.30am on August 19th.

‘Proximate assurances’

The Minister claimed the Supreme Court effectively held there had been “proximate assurances” by his officials when that was not part of the owners’ case.

The owners argued the Supreme Court judgment accurately reflected the description of events as set out in the High Court judgment.

In a unanimous 75-page judgment on Thursday, Mr Justice John MacMenamin, with whom Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed, refused the review application.

The judge noted the High Court judgment in this case was given before the Supreme Court ruled, in the separate ‘Cromane’ fishing case, the executive should not be held liable for negligent misstatement except in limited circumstances, a relationship of close proximity or conduct tantamount to misfeasance in public office.

That meant the Supreme Court, when considering the appeal in the Bates case, had to consider the proximity issue.

The judge said the transcript of the High Court case did not actually disclose the precise times when the Minister’s officials were said to have given misinformation to the owners. The owners’ reply to particulars had identified a number of such occasions between 1999 and 2002, he noted.

In fairness to the Minister, what seemed to have occurred here is that issues not considered central in the High Court became “highly relevant” to the appeal and the Minister’s application for review.

Submissions

The Supreme Court’s description of events in its 2018 judgment, including identification of the place of arrest of the vessels, was informed by what it was told orally and in submissions, he said.

What a court is told in oral submissions as to fact “must be accurate” but, unfortunately, these obligations were not fulfilled, he said.

Stressing there was no reflection on the competence or integrity of counsel and no suggestion counsel on either side acted mala fides or sought to mislead the court, he said what occurred here could only be described as “a most unfortunate series of mishaps”.

However, having examined all the relevant material, he said the indications now available are that the narrative in the Supreme Court judgment is in fact a “fair reflection” of evidence on proximity as adduced in the High Court and as found in the High Court judgment.

An analysis of the material leads to the conclusion there was evidence of proximate reassurance or advice to the owners which evidence was not rebutted, he said.

The narrative part of the judgment is “integral” to it and forms part of the courts reasoning and decisions of the Supreme Court are final and conclusive, the judge stressed.

The Minister’s application, if successful, could only have the effect of a reassessment of the outcome or merits, he said.

The court cannot simply vacate parts of a judgment in the absence of a constitutional basis for doing so, no constitutional want of fairness arose here and there was “no defect” in procedure.