Judgment Title: Lough Swilly Shellfish Growers Co-Operative Society Ltd & anor v Bradley & anor
Neutral Citation:  IESC
Supreme Court Record Number: 259/11
High Court Record Number: 2007 810P
Date of Delivery: 13/03/2013
Court: Supreme Court
Composition of Court: Hardiman J., O'Donnell J., Clarke J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
THE SUPREME COURT
Lough Swilly Shellfish Growers Co-Operative Society Ltd.
& Atlanfish Ltd.
Danny Bradley and Robert Ivers
1 This case presents an intriguing of point of statutory construction of apparently general application, which appears not to have arisen in any reported decision in any jurisdiction within the reach of the researches of counsel or indeed the Court. However, this issue is surrounded on this appeal by a morass of confusion, procedural complexity, and simple error.
2 On the 20th of October 1994 the first named plaintiff obtained a licence (“the foreshore licence”) in respect of a portion of the foreshore of Lough Swilly, County Donegal, for the purposes of oyster and mussel cultivation. On the same day the Minister for the Marine granted the first named plaintiff a licence (“the aquaculture licence”) to cultivate oysters and mussels at the designated place in Lough Swilly near Inch Island. The aquaculture licence was expressed to be exclusive. Both licences were for a period of 10 years and thus expired on the 19th of October 2004. However, it was provided by s.101(c) of the Sea Fisheries and Maritime Jurisdiction Act 2006 (“2006 Act”), inserting a new s. 19A(4) in the Fisheries (Amendment) Act 1997 (“1997 Act”), that a licensee who had applied for a renewal of an aquaculture licence would be entitled to continue the aquaculture in operation pending the decision on the renewal. At the time the subject matter of the proceedings, the plaintiffs’ licence had indeed expired and an application for renewal had been made but had not been determined. Accordingly the interpretation and effect of s. 19A(4) of the 1997 Act as inserted by s. 101 of the 2006 Act, was an essential element in the title of the plaintiffs and was therefore central to the legal point sought to be advanced on this appeal.
3 The defendants are fishermen who have traditionally fished for shellfish in Lough Swilly. As and from around September 2006 they began to enter the area of the plaintiffs’ foreshore licence and remove oysters. Their grievances about their exclusion from a rich source of shellfish in a traditional fishing area was complicated further by complaints made by environmental campaigners that the plaintiffs’ seeding of gigas oysters which, it was alleged, was having a detrimental effect on the existence of the native oysters in Lough Swilly. To this generalised complaint, the defendants added the claim that they were entitled to continue to harvest native oysters wherever they might be found.
4 The plaintiffs sought and obtained an interlocutory injunction, and then pursued a claim for a permanent injunction and sought extensive damages. The defendants denied any breach of the plaintiffs’ rights both by denying the plaintiffs’ entitlement as a matter of law and any breach as a matter of fact. The position is perhaps best stated in a paragraph contained in the first named defendant’s replying affidavit in the injunction proceedings:
5 The trial came for hearing in 2009 and the Court first heard the non-constitutional claims. De Valera J. held that trespass had been established and while rejecting the plaintiffs’ claims for extensive damages, awarded them €25,000 damages. The relevant provisions of the order of the 28th of May 2009 (which was only perfected on the 8th February 2010) provided as follows:
6 At this point, all the various contentions raised by the defendants against the plaintiffs’ claims had been defeated. No attempt had been made to appeal either order and no suggestion had been made that the defendants were considering any such option. However, on the 28th of February 2011 the defendants (who, it appears, had by then, having failed to pay the award of damages, been threatened with bankruptcy) attended a seminar organised by the environmental group Coastwatch and heard a contribution from a lawyer who ultimately became junior counsel herein to the effect that there was an argument that s. 19(A) of the 1997 Act was not in force. Thereafter the defendants changed lawyers and embarked upon a circuitous process in an attempt to raise this point, or appeal, or both.
7 The defendants brought a motion to speak to the minutes of the original order of the 28th of May 2009 pointing out that the order did not address the possibility of the constitutional claim (referred to in the order as the third party claim) proceeding and yet failing, which of course is what occurred. In the event, the judge agreed on the 1st of June 2011 to amend this order under the slip rule. This much was uncontroversial and indeed it could not have been thought to have been a matter of concern to the defendants since it only clarified, in formal terms, the order and the judgment which were already clear. However the notice of motion also sought to contend that the original decision of the 28th of May 2009 had been decided per incuriam on the basis that the Court had been unaware of the point asserted in relation to the effectiveness of s. 19A(4). This point, we were told, was apparently only mentioned to the trial judge who, while expressing the view that it was a point which should be argued, considered, not surprisingly, that he was functus officio. However, having established by this route that an order in this case was made in June 2011 – even if only amending the original order – the defendants immediately took the opportunity of appealing, on the 10th June 2011. They then brought a motion returnable for the 29th July 2011 seeking to stay the order of the 28th of May 2009 awarding damages, and extending the time for appealing that part of the order of the 29th of June 2010 refusing the defendants counterclaim but disavowing any desire to appeal the dismissal of the constitutional claim. The motion was grounded on a joint affidavit of the defendants and supported by an affidavit from the environmental campaigner Karen Dubsky. This series of manoeuvres perhaps served the purpose of forestalling any bankruptcy application, but at a cost of presenting a comprehensive procedural tangle that has enveloped this appeal.
The Appeal Point
9 In the event neither s. 11 or s. 13 was commenced. Thus the position, in 2006, when the Sea Fisheries and Maritime Jurisdiction Act was passed, and as it happened came into force, was that the 1997 Act had been commenced save for ss. 11 and 13. It should be said that the 2006 Act for its part did not contain any such commencement provisions and thus came into force on the day it was signed by the President in accordance with Article 25.4.1 of the Constitution. The point made on behalf of the appellants however, by way of a rhetorical question, was that while s. 101 came into effect on that day, and was effective to achieve the insertion of s. 19A into the 1997 Act, what commencement order under the 1997 Act commenced the new s. 19A? This argument was put in a number of ways. If the 1997 Act was read together with its amendments as a single Act, then s. 1(3) required a commencement order for each relevant provision. Section 19A was not commenced (and logically could not have been commenced) by either of the commencement orders in 1998. Looked at in another way it was said that the 1997 Act contained two types of sections: those commenced by a formal order, and those (ss. 11 and 13) which had not been commenced. While s. 101 of the 2006 Act was thus effective in inserting s. 19A into the 1997 Act, that in itself did not answer the question as to whether it inserted it in the commenced portion of the Act, or in the uncommenced portion. The bringing into force of the provisions involved, it was said, a two stage process – the commencement of s. 101 which inserted s. 19A of the 1997 Act, and then the commencement of that section in turn. All that could be demonstrated, it was argued, was the commencement, of s. 101. But s. 19A required to be brought into operation. Section 1(3) of the Act set out the mechanism for commencement. While a simple commencement order could achieve that purpose, no such order had been made in respect of s. 19A. Accordingly, there was no statutory extension of the licence, and it followed that the defendants could not have committed any trespass.
The Response of the Plaintiff and the Attorney General
11 It appears that the true issue involved in the defendants’ failure to raise and argue this specific point in the High Court is the general and repeatedly stated reluctance of the Supreme Court to permit a party to argue for the first time in the Supreme Court a point not argued and therefore not decided in the High Court. This long established reluctance was expressed perhaps most forcefully, in constitutional terms, by Henchy J. in Movie News Ltd v. Galway County Council (Unreported, Supreme Court, 25th July 1973) (“Movie News”) when he said:
12 However, for their own reasons neither party sought to invite the Court to dismiss the appeal in limine on either of these grounds. Indeed, it emerged that both parties were anxious to have the central point decided. For the Attorney General it was apparent that the particular issue was one of general application which could perhaps arise in a large number of situations, and it was therefore undesirable that there should be uncertainty over such an issue. On the plaintiffs’ part the issue was one of title and it would not be particularly beneficial to have endured this protracted litigation without settling this issue so that others could seek to maintain the point even if the present plaintiffs were restrained from trespass. Accordingly, that while the defendants formally maintained their objections, they made it clear that they did not want the Court to address the points on a preliminary basis.
13 The position therefore is that this appeal comes before the Court on a single ground, and it is resisted on the basis of the three arguments two of which are essentially procedural. While normally the Court would be entitled, and perhaps wise, to address the preliminary issues first, the administration of justice may sometimes require, or at least permit, something more. Here, I am influenced by a number of issues: the fact that the issue may recur whether in relation to this section or some other amendment: that it would be undesirable if these proceedings did no more than simply ventilate the issue and therefore increase the risk that it may recur: on the other hand, the obviously unsatisfactory nature of the proceedings to date for the defendants who now face a permanent injunction, the risk of committal in default, and the threat of bankruptcy in respect of the damages claim, and the liability for considerable costs. It would, I consider, be particularly undesirable that the defendants could face the possibility of losing this appeal, be subject to permanent restraint, and yet believe that the plaintiffs may not have been entitled to bring this action at all. Furthermore not only have the Parties not sought to have any of these issues determined in advance of the substantive issue, they have, for their different reasons, requested the Court to address the central argument. In the circumstances, I think the Court is entitled to address the points raised in whatever sequence appears best suited to the best resolution of the case, which in this case may involve addressing, albeit with some misgivings, the issue raised by the defendants.
The Respondents’ Case
15 At the hearing, counsel for the Attorney General acknowledged that this was an argument from practice rather than principle. Furthermore, he also properly brought to the Court’s attention a case which suggested that on one occasion at least the Executive had commenced, or purported to commence, an amending provision by a commencement order made under a parent Act. This was illustrated by the important case of Podger v. The Minister for Agriculture, Food and Rural Development  4 I.R. 16 (“Podger”). The facts of the case are complex but illustrate quite neatly the point which arises here. That case concerned a direction made to the appellant to move certain sheep from the Curragh where he had the benefit of grazing rights. Such a direction could be made under s. 17A of the Diseases of Animals Act 1966, which had been inserted in that Act by s. 2(1) of the Diseases of Animals (Amendment) Act 2001, which had been passed on the 9th of March 2001. The Act of 2001 did not contain any commencement provision. However, the parent Act did. As it happened, a commencement order under the 1966 Act was made on the 27th of March 2001 which purported to bring into operation the new s. 17(A). However, the relevant direction given to the applicant was given on the 26th of March and, it was argued, could not be valid if the amendment introduced in 2001 required a commencement order under the 1966 Act, since that order had only been made on the 27th of March, and a day after the relevant direction to the applicant. Thus the issue in the case was presented in a very clear way: if s. 17A of the 1966 Act as inserted by s. 2(1) of the 2001 Act came into operation on the date of passage of the 2001 Act (the 9th of March 2001) then the direction given to Mr Podger was valid and effective: if however the commencement order under the 1966 Act was necessary to bring into force s. 17A then the direction was invalid, since it had been made prior to the date of commencement pursuant to the commencement order under the 1966 Act.
16 While it might have been thought that s. 10(1)(b) of the Interpretation Act 1937 might have authorised the making of a direction order after the passage of the 2001 Act, that argument was rejected by Ó Caoimh J. However the learned judge rejected the applicant’s claim on the basis that he considered it had not been necessary to make a commencement order bringing s. 17A into operation. In this regard he said:
17 Counsel for the Attorney General also sought to argue that the appellants’ point was misconceived when a number of other examples were considered. He took the example of a parent Act with the subsequent amendment and in circumstances where the parent Act did not itself contain any commencement provision and thus came into force on the day it was signed by the President. But, if the appellants were correct, and it was not simply necessary to commence the amending Act, but also to commence the amendment being inserted into the parent Act, then the question arose when that provision was commenced. Indeed, on this argument, it could not be commenced, unless the amending provision was held to have been commenced by the Act of passage of the original (unamended) parent Act which was a logical absurdity. The only logical conclusion was that the amending section was commenced by the enactment and bringing into force of the amending legislation. But if that was so in the case of Acts which did not require a commencement order, or if one was required, where one had been made, there was no reason why the same could not apply in a case such as this. If the intention of the Oireachtas was clear in such cases that the amending provisions should come into force immediately, then the same approach was possible here. Accordingly, if these arguments were correct, then why was the coming into force of s. 101 of the 2006 Act not sufficient to bring s. 19A into operation.
19 It is perhaps surprising that this point does not appear to have been considered in any reported case or any of the major texts in this important area of the law. The closest point is perhaps that which was briefly considered in the case of Rex v. Minister of Town and Country Planning; Ex Parte Montague Burton Ltd  1 K.B. 1 which dealt with a related conundrum in relation to commencement provisions. The standard from of provision is in a form which states that the Act or its component provisions shall come into force when an order is made. However, the argument was raised that this gave rise to an impossible circularity. To have the power to commence the Act under the section, it was necessary for the Act to be commenced. This argument was robustly rejected by Tucker L.J. in a conclusion which appears to have been accepted ever since:
21 This approach is, in my view, consistent with Article 25.4.1. The Article in effect creates a presumption that unless the contrary appears, an Act comes into force on the date of signature and on the same day as it is signed by the President. The intention of the Oireachtas is to be gleaned from the Act against its legal, factual and historical background. It seems quite clear that the Oireachtas could not be said to have otherwise intended in this case. If the Oireachtas had wished to defer the coming into force of s. 19A or permit that option, it could have done so simply by making provision for commencement of s.101. There could be no sensible reason for commencing s.101, but nevertheless intending that s. 19A would remain ineffective. The passage of s. 101 has no purpose other than to secure the coming into force of s. 19A.
22 Furthermore it is worth considering why commencement orders are normally utilised. The underlying reasoning is well set out in the judgment of Lord Reed in the United Kingdom Supreme Court in M v. Scottish Ministers  1 WLR 3386:
23 In my view, the foregoing analysis is also consistent with the conclusions arrived at independently by Ó Caoimh J in Podger.
24 Has the point been made the subject of a valid appeal? It is clear in my view, that a party cannot seek to avoid the consequences of the time limits for the appeal of orders of the High Court by the simple stratagem of seeking to speak to the minutes of the order and then if a further order is obtained, to appeal that order. Logically, the only appeal which could be brought against the order made on the 1st of June 2011 is an appeal against the Court’s amendment of the order and possibly an appeal against the Court’s decision not to reopen the argument (insomuch as that was truly raised). But neither of those matters would avail the appellants in this case, or permit them to do the only thing which they wish to do, which is to argue, on this appeal, the question of the commencement of s. 19A. Accordingly, the question becomes whether the Court should grant an extension of time to permit the appellant to argue that point. Plainly, the appellants cannot bring themselves within the criteria in Éire Continental Trading Co., Ltd. v. Clonmel Foods, Ltd.  I.R. 170 even generously interpreted. Those criteria are, I accept, guidelines, and the Court retains a residual discretion. However, in litigation, and particularly litigation which has been so drawn out and bitter as this, parties are entitled to believe, and conduct their affairs, on the belief that at some stage the matter has come to an end. The only grounds for extending the time within which to appeal here is the fact that the defendants had heard it suggested that s. 19A might not have come into force. If this was a sufficient ground then logically it could arise at any time and there would never be a point at which this litigation, or any High Court case, could be said to have terminated. The situation might be otherwise if there was an extant appeal in being, and it was sought maybe to extend the grounds of appeal. That however does not arise here and would in any event raise the issue of the extent to which it is possible to argue on appeal a ground not advanced in the Court below to which I will now turn.
Argument of a New Ground of Appeal
26 The Constitution requires that there be an appeal to the Supreme Court. However it says nothing about the content or nature or procedure of that appeal. Fundamentally, what it requires therefore is that the correctness of the decision and resolution of the case in the High Court be capable of being reconsidered in a court of appeal. The appeal actually provided, which is something less than a full rehearing, is plainly compatible with the Constitution. Even an appeal in a case concerned only with a point of law is not limited to a rerun of the case heard in the High Court with the substitution of judges of the Supreme Court for the judge of the High Court. It is for example, common case of the Supreme Court to receive much more elaborate and detailed argument than that advanced in the High Court, and to be referred to case law and materials not presented to the High Court, and in some cases post-dating the High Court hearing. There is furthermore an established jurisdiction in the Supreme Court to admit fresh evidence either on interlocutory appeals, or on full appeals. See Order 58 Rule 8 of the Rules of the Superior Courts and Fitzgerald v. Kenny  2 I.R. 383. By definition this means that the Supreme Court will hear matters never advanced in the High Court. In cases where injunctions or orders are made, whether interlocutory or final, the Supreme Court may take into account matters which have occurred since the High Court hearing in considering the appropriateness of the order to be made. Again, while it is normally both desirable and helpful that the Court has the benefit of the considered views of the High Court judge in any particular point which is the subject matter of an appeal, that desirable objective cannot be said to be an absolute prerequisite to a valid appeal. In a case where a number of points are argued but the High Court considers that the case can be disposed of on only one, the Supreme Court may, if it considers necessary, consider the points which were argued, even if not decided, in the Supreme Court. See the observations of Murray J. in Dunne's Stores v. Ryan  2 IR 60 In A.A. v. The Medical Council  4 IR 302 at p.308 Keane C.J. said:
27 What the Constitution requires is an appeal which permits the Supreme Court to consider whether the result in the High Court is correct. The precise format and procedure of any such appeal is not dictated by the Constitution. While that object is often and best achieved by a careful analysis of the argument in the High Court and the High Court’s adjudication of said argument, it does not follow that the constitutional appeal must always be limited to that process. Prior to the coming into force of the 1922 Constitution, it was possible to seek leave to argue a fresh ground of appeal in the Court of Appeal but only on strict conditions. See Wylie, The Judicature Acts (Ireland): and rules of the Supreme Court (Ireland) 1905, copiously annotated, (Dublin; 1906), p.781. Nothing in the 1922 or 1937 Constitutions suggests any different understanding of the concept of an appeal form the High Court in performance of the administration of justice. There is a spectrum of cases in which a new issue is sought to be argued on appeal. At one extreme lie cases such as those where argument of the point would necessarily involve new evidence, and with a consequent effect on the evidence already given (as in K.D. for example); or where a party seeks to make an argument which was actually abandoned in the High Court (as in Movie News); or, for example where a party sought to make an argument which was diametrically opposed to that which had been advanced in the High Court and on the basis of which the High Court case had been argued, and perhaps evidence adduced. In such cases leave would not be granted to argue a new point of appeal. At the other end of the continuum lie cases where a new formulation of argument was made in relation to a point advanced in the High Court, or where new materials were submitted, or perhaps where a new legal argument was sought to be advanced which was closely related to arguments already made in the High Court, or a refinement of them, and which was not in any way dependent upon the evidence adduced. In such cases, while a court might impose terms as to costs, the Court nevertheless retained the power in appropriate cases to permit the argument to be made. Here the defendants attacked s. 19A with a blunderbuss of legal arguments, but nevertheless contrived to miss this particular point. It may be that in such cases there is no reason in principle why the Court may not properly permit the argument to be made. The question whether the Supreme Court is precluded from exercising such a jurisdiction either by the terms of the Constitution or the weight of authority, is however a matter which it is not necessary to resolve in this case, since I would not extend time for the appeal and the point which it was sought to argue on this appeal, is misconceived. Accordingly, I would dismiss the appeal.