JUDGMENT delivered the 6th day of June 1989 by Mr Justice Keane
The background to this case is set out in detail in the judgment I delivered on the 14th May 1986. On the 19th January 1988, the Court of Justice of the European Communities answered the two questions which had been referred to them for a preliminary ruling in favour of the defendants.
The case was then re-entered by the defendants and came before me on the 11th August 1988. On that occasion, Mr Landy S.C. on behalf of the defendants submitted that the interlocutory injunction granted by Lardner J. and affirmed on appeal by the Supreme Court (reported in (1986) ILRM 68) which restrained the first and third-named defendants from implementing the disputed legislation until its constitutionality and/or conformity with E.C. law had been determined should be discharged. He also said that as the ruling of the European Court had resolved all the issues in the case, the proceedings should now be dismissed with costs and the court should proceed to assess the damages payable by the plaintiffs on foot of the undertaken given by them when the interlocutory injunction was granted. In reply, Mr Paul Sreenan for the plaintiffs contended that a further issue remained to be determined in the proceedings, i.e. an alternative claim by the plaintiffs based on estoppel and the doctrine of "legitimate expectation".
I was satisfied on that occasion that the interlocutory injunction should be discharged, since it had quite clearly been upheld by the Supreme Court solely in the context of the challenge to the constitutionality and/or conformity with E.C. law of the legislation. Having regard to its unusual nature, it was obvious that the injunctive relief should continue for no longer than was strictly necessary to maintain the status quo while those issues were being resolved.
However, although I had been under the impression, as appears from my earlier judgment, that the ruling of the Euorpean Court would effectively decide the case, there was undoubtedly a plea of estoppel made in the statement of claim. As to the question of legitimate expectation, although that was not expressly pleaded, it might, on one view of the law, be covered by the estoppel plea and in any event I would be naturally reluctant to exclude any party from making a case solely on a pleading point, unless justice so required. Since the defendants we: now clearly on notice of the case that was being made, I ruled on that occasion that the case should proceed to a hearing in the ordinary way so as to determine the remaining issues. The position was, of course, that both parties had completed their presentation of evidence before the reference to the European Court.
Mr Sreenan now submits that his clients are entitled to relief either because of the doctrine of "legitimate expectation" or the operation of equitable estoppel. As to the first, he says that the conduct of certain semi-state agencies, particularly the Industrial Development Authority and An Bord Iascaigh Mhara, made it reasonable for the plaintiffs to expect that if any changes were made in the general legal framework affecting their right to fish:
(a) the changes would be gradual;
(b) the changes would not preclude the plaintiffs from engaging Spanish fishermen to crew their vessels;
(c) the changes would be reasonable;
(d) the changes would take account of the special position of the plaintiffs; and
(e) the changes would, in any event, be preceded by consultations with the plaintiffs.
He relies on a number of English decisions (of which the most important are O'Reilly v Mackman and Others (1983) 2 AC 237; Attorney General of Hong Kong -v Ng Yuen Shiu (1983) 2 All ER 346; Council of Civil Service Union and Others v Minister for the Civil Service (1985) AC 374, R v Secretary of State for Transport, ex parte Greater London Council (1986) Q.B. 556, and Leech v J Parkhurst Prison Deputy Governor (1988) 1 All ER 485) as establishing that circumstances of this nature are to be treated as giving rise in J law to enforceable "legitimate expectations" on the part of the plaintiffs. In the result, he says, where none of the legitimate expectations of the plaintiffs has been met, they are entitled to relieve whether in the form of damages or otherwise. He also submits that this doctrine has been imported into Irish law by the decisions in Smith v Ireland, the Attorney General and the Pigs and Bacon Commission (1983) ILRM 300, Ahern v Kerry Councy Council and Another (1988) ILRM 300, Webb and Another v Ireland and Another (1988) ILRM 565 and Duggan and Others v An Taoiseach and Others (unreported, Hamilton P., judgment delivered 11th April 1988). He also relies on the acceptance in the law of the European Communities of a doctrine of "legitimate expectations".
While there are a number of formulations of the doctrine of "legitimate expectation" in the English decisions relied on by Mr Sreenan, I think that the following passage from the speech of Lord Diplock in Council of Civil Service Union and Others v Minister for the Civil Service usefully summarises the law in that jurisdiction:
"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision maker, although it may affect him too. It must affect such other person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (I) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational ground for withdrawing it on which he has been given an opportunity to comment or (II) he has received assurance from the decision maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn".
Lord Diplock there emphasises that the essence of the doctrine - in England at all events - is the right of the person affected to be given some rational ground for alterations in a regime to which he has become accustomed and an opportunity to be heard in relation to them before they are implemented. To the same effect is the following passage in the speech of Lord Roskill in the same case:
"As the cases show, the principle is closely connected with 'a right to be heard'. Such an expectation many take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations, especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure".
The doctrine of "legitimate expectation", in short, gives relief by way of judicial review in England to the person affected because of the manner in which a decision has been made by a public authority. Lord Roskill, indeed, emphasises that:
"It is not for the courts to determine whether a particular policy or particular decisions taken in fulfillment of that policy are fair. They are only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary greatly from case to case....."
Of the grounds relied on by Mr Sreenan in the present case, however, only that at (e), i.e. the alleged failure to consult, relates to the manner in which the decision in the present case was taken. The other criticisms he has advanced go to the nature of the decision itself.
Assuming for the moment that the principles to which I have referred are applicable in Ireland, they are, accordingly, of no assistance to the plaintiffs, since the facts in the present case do not support the contention that the regime was altered on grounds which had not been communicated to the plaintiffs and in circumstances where the plaintiffs were not heard in relation to the proposed changes. On the contrary, the evidence establishes that the plaintiffs were well aware of the initiation of the legislation as a result of the arrival of the "Spanish Armada" from England and made representations to the first named defendant. It would appear indeed that it was as a result of those representations that the offending condition was not attached to the plaintiffs' licences for the first year of the operation of the new regime so as to give them time to engage the requisite number of EC nationals in their crews. Mr John Keohane, an official of the Department of Fisheries and Forestry, gave the following evidence in this connection:
"253Q When this provision was going through the Oireachtas were there any complaints made by the plaintiff company or by any of the other companies involved in joint ventures?
A There were indications from the people who were already registered here that they would be affected by the provision. Earlier in 1983 we had discussions with them about their vessels generally. It occurred to us that the 9 boats registered here would be the first to be affected by this requirement. For that reason the Minister agreed, under pressure in the Dail, that they could have one year's grace.
"254Q Were any representations made to the Department during that year?
A The plaintiffs came to see the Minister once or twice. I was present on one occasion when they said they were experiencing difficulties and would continue to experience difficulties. The Minister pointed out that if he didn't apply the conditions to them he would be accused of discriminating against other vessels in the fleet".
I have been proceeding on the assumption that the doctrine of "legitimate expectation" is securely founded in our law. However, in Webb and Another v Ireland and Another, on which Mr Sreenan strongly relied, Finlay C.J. said:
"It would appear that the doctrine of 'legitimate expectation' sometimes described as' reasonable expectation 'has not in those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is but an aspect of the well recognised equitable concept of promissory estoppel (which has been frequently applied in our courts) whereby a promise or representation as to intention,may in certain circumstances be held binding on the representor or promisor."
As Murphy J pointed out in Garda Representative Association v Ireland (1988) ILRM 1, it may be that in his judgment in that case (with which on this aspect the other members of the court who delivered judgments agreed) the Chief Justice was expressing his reluctance to recognise "legitimate expectation" as a new or separate concept in our legal system. But it is unnecessary to consider this aspect of the matter further, since it is quite clear that it cannot in any event avail the plaintiffs in the present case.
It is clear that a decision of a public authority may also be set aside by the courts where it is "unreasonable" or "irrational" to the extent defined by Henchy J in The State (Keegan) v Stardust Victims Compensation Tribunal (1987) ILRM 202 as follows:
"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously lies in the face of fundamental reason and common sense If it does, then the decision maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction and all decision making which affects rights or duties requires, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision".
None of the grounds relied on by Mr Sreenan could be said, in my view, to constitute "unreasonableness" or "irrationality of this order. Some of them are not sustainable on the facts: the change of regime, in the case of the plaintiffs, was gradual and their particular circumstances were taken into account, as they were given a year's grace within which to comply. As to the general charge of "unreasonableness", I have already found as a fact that the effect of the disputed condition is in practice to oblige the plaintiffs to employ Irish crews. Given the background to the case, however, .I do not think that it could be seriously urged that this could render the imposition of the condition an "unreasonable" or "irrational" decision in the sense laid down by Henchy J.
It is not sufficient for the plaintiffs to establish that it affected them adversely, as indeed it did. Whether the Minister would have been entitled to exempt the plaintiffs and others in the same situation from the general law, thereby, exposing himself discrimination, is beside the point: law to arrive at the the plaintiffs cannot succeed to attack on the ground of it was plainly open to him decision which he did and,in the result, under this heading.
There remains the question of "equitable" or "promissory" estoppel. Whatever other limitations may attach to that doctrine, and it is unnecessary to consider them in this case, there must be at least a representation on the part of the defendant before the doctrine can be applicable, as indeed there was in Webb and Another v Ireland and Another.
Mr Sreenan has argued that the assurance in that case given by the director of the National Museum that the first named plaintiff would be treated honourably was not essential to the decision. I cannot agree. I have already quoted the statement of the law by the Chief Justice in that case: to it, he added the following:
"Applying the law as there stated (in the judgment of Lord Denning in Amalgamated Investment and Property and Company Limited v Texas Commerce Investment Bank Limited (1982) QB,84 1221which seems to me to accord with fundamental equitable principles, I am satisfied that the unqualified assurance given to the first named plaintiff by the Director of the National Museum that he (Mr Webb) would be honourably treated was an integral part of the transaction under which the hoard was deposited in the museum and accepted on behalf of the State, and that the State cannot now go back on the assurance."
In this case, while the plaintiffs were undoubtedly encouraged in their project by the semi-state bodies, they were not given any assurance that the law regulating fishing would never be altered so as adversely to affect them nor, if such an assurance had been given, could any legal rights have flown from it. No such "estoppel" could conceivably operate so as to prevent the Oireachtas from legislating or the executive from implementing the legislation when enacted.
It follows that the plaintiffs claim in so far as it is based on "equitable" or "promissory estoppel" must also fail. Accordingly, notwithstanding the arguments so skillfully and persuasively advanced by Mr Sreenan, I must dismiss the plaintiff s claim.
There remains the question of the plaintiffs'undertaking as to damages. Mr Landy, while conceding that it was difficult to quantify the damages sustained by his clients, submitted that they could be legitimately assessed under alternative headings. The court could assess the loss by reference to the profits which the plaintiffs had made during the period of the fishing which now transpires to have been illegal and which on their own evidence, Mr Landy suggested, would amount to £2,646,000. Alternatively, the court could assess the loss by reference to the maximum fines that would have have been imposed and the value of the catch that would have been confiscated had the prosecutions restrained by the injunction proceeded. It was agreed between the parties that the relevant figure in that context was £31,720.
If the loss sustained by the defendants as a result of the injunction having been granted is the correct measure of damage, I cannot see how the profits made by the plaintiffs during the period of the illegal fishing can be treated as the measure of that loss. If one assumes that the profits in question would have been made by another firm or individual, then the hypothetical loss was not sustained by either the first or third named defendants. Mr Landy contended that the fish which the plaintiffs caught were in some sense the property of Ireland and that Ireland was entitled to be compensated for their loss. Under the Order of the High Court, however, as varied by the Supreme Court, Ireland was not bound by the injunction. There is clearly a problem in awarding damages to a defendant on foot of an undertaking given by a plaintiff in respect of an injunction by which that defendant is not bound. But, in any event, the fish until they swam into the plaintiffs' nets were animals ferae naturae which did not belong to any one. Had they been caught by a boat fishing legitimately in these waters,- which, incidentally, need not have been an Irish vessel - they would have belonged in law to the owners of that vessel.
As to the suggested alternative method, this presents equally insurmountable problems. It is wholly unrealistic to measure the damage to the defendants by reference to the penalties which would have been imposed had the criminal prosecutions proceeded.
The primary functions of penalties imposed in respect of criminal offences are deterrence and punishment and the raising of revenue for the State is no more than an incidental by-product. The real loss suffered by the first and third named defendantsis their inability to police the fishing regime lawfully established by the Oireachtas during the period in question and were I to award damages to the plaintiffsin the form suggested by Mr Landy I would in effect be imposing a penalty on the plaintiffs rather than compensating the defendants_. Since the plaintiffs have never been tried before a judge and jury on any of these charges, such a procedure would seem to be constitutionally suspect in the highest degree. In any event, while it may well be impractical, as was indicated during the argument, to continue the prosecutions against the masters and crews who engaged in the illegal fishing, that would not seem to apply to the plaintiffs. However, precisely because this issue might still have to be determined in criminal proceedings, I think I should not discuss it any further. It is sufficient to say that, in my view, to assess the "damages" sustained by the defendants as a result of the granting of the injunction in this manner would be wholly wrong in principle.
It is unsatisfactory that an undertaking should prove incapable of implementation, since it may well be that the injunction would not have been granted in its absence. But that consideration cannot exonerate the defendants from establishing that they have in fact suffered damages which are recoverable from the plaintiffs. This they have failed to do and accordingly there will be no order in relation to the undertaking.