High Court of Ireland Decisions

1. In January, 1989 Joseph Murphy applied to the Minister for the Marine for a sea fishing licence in respect of his fishing vessel. Under the Fisheries Acts a licence is required from the Minister before a sea fishing vessel can fish. In November 1991, the Minister refused to grant Mr. Murphy a licence on the grounds that he had failed to demonstrate that his application "involved tonnage replacement in line with the policy guidelines set out in the Department's letter of the 29th June, 1990" . The Minister's decision to refuse a licence to Mr. Murphy is attacked on several grounds:-

2. Mr. Murphy is a successful sea fisherman who lives in Dunmore East in County Waterford. He is the owner of three fishing boats and the holder of two skipper certificates. He purchased his first boat in 1982 and the second in 1986. In 1988 he decided he would purchase a third boat. He went to Belgium and inspected a boat in Ostend the "Zee Adelt" . He agreed a purchase price of IR £120,000 and had the boat surveyed. He then returned to Ireland. Aware that he required a licence for the boat, he contacted the Department of the Marine and spoke to a Mr. John Maloney, an Executive Officer in the sea fishery section of the Department. An application form was sent by Mr. Maloney to Mr. Murphy which he filled in and returned to the Department in January, 1989. The application form has a series of notes on it for Applicants. One of those notes is to the effect that:

3. When returning the form to the Department, Mr. Murphy also sent a copy of the written survey of the boat. The Department, seeing the survey was in the flemish language, asked for a translation which, when obtained, was regarded as inadequate: a fresh survey was done by Bureau Veritas and a written report sent to the Department. The Department also asked Mr. Murphy for some background information on his career, which he duly sent to them. Mr. Murphy recalled several conversations with Mr. Maloney of the Department at the end of February, and at the start of March 1989 during which, he says, he was positively reassured by Mr. Maloney that he was "looking pretty good, o.k. for approval" and that "but for the stroke of a pen the licence would issue". He says Mr. Maloney told him to go to Belgium to negotiate a final price for the Zee Adelt. This Mr. Murphy did, only to discover the owner now wanted £27,000 more. Mr. Murphy, faced with this increased price, decided not to complete, but looked around and found another boat, which he liked, called the "De Zwerver", which was on offer for IR £120,000. He told Mr. Maloney whom, he says, told him that he could substitute this new vessel in the application presently before the Department. He says that Mr. Maloney told him that licence approval was imminent. At the end of March 1989, Mr. Murphy sent in his revised application form accompanied by a written survey (in English, of the De Zwerver.). The Department, on receipt of the application, asked for a decommissioning certificate which was provided in the early days of May, 1989. De Zwerver was a large vessel of some 99 tonnes and some 27 metres in length. Mr. Murphy says that, when he put in the revised application, he had not concluded the purchase of the new vessel. He says he spoke to Mr. Maloney who again reassured him the application was before the Minister and it was "in the Minister's top drawer" and that the issue of the licence was imminent. Mr. Maloney told him he could safely negotiate the purchase of the vessel. When Mr. Murphy inquired as to the fact of a delay Mr.Maloney he says told him he could if he wished explore "other channels" . By this he, Mr. Murphy, understood "political channels" . In consequence, Mr. Murphy contacted a Senator Fitzgerald, an assiduous public representative, who made representations on his behalf to the then Minister for the Marine, Mr. Brendan Daly. As a result, the Senator reported to Mr. Murphy that the licence would be issued by the Minister to Mr. Murphy. Buoyed up by this assurance, and the assurances of Mr. Maloney, Mr. Murphy says he decided to purchase the boat the De Zwerver. In July 1989, he travelled to Ostend, concluded the deal and sailed the boat back to Dunmore East. There was a general election on the 28th June 1989, which resulted in a change of Minister in the Department of the Marine. Senator Fitzgerald enlisted the aid of Brendan Kenneally T.D., who met Mr. Murphy, and, in turn, made representations to the Tanaiste, the new Minister for the Marine, Mr. Wilson, and his Junior Minister Pat 'the Cope' Gallagaher. He also later canvassed Mr. David Andrews T.D. On the 31st August, 1989 the Department wrote to Mr. Murphy saying that the Minister had established a licensing review group to recommend to him the sea fishing policy that should be adopted to ensure the optimum development of the Irish sea fishing industry, "In the meantime the Minister has suspended consideration of all sea fishing boat licence applications. Your application will be considered further when the revised policy is in place" ; finally, Mr. Murphy's views in writing were invited to be sent to the Department. Mr. Murphy says that he was shocked by this letter: it was contrary, he said, to all the assurances he had received from politicians and from Mr. Maloney. On the 29th June, 1990, the Department wrote to Mr. Murphy saying that the Minister had decided that preference would be given in the grant of licences to Applicants, for boats other than for pelagic or beamer fleets, who have proposed tonnage replacement. This information reflected the policy which the Minister announced on the 31st May 1990, and to which I will return later in this judgment. The letter to Mr. Murphy asked him whether there was "a replacement element associated with your application. Accordingly I have been instructed to ask you to indicate in writing whether your application involves tonnage replacement and if so, to provide full details of same."

4. Mr. Murphy did not reply to this letter.

5. Between September 1989 and January 1991, Mr. Murphy fished with the De Zwerver boat. In January 1991, his boat was arrested. He did not thereafter use the boat to fish in Irish territorial waters. He again directed his attention to procuring a licence. In February 1991, Brendan Kenneally T.D. arranged a meeting with the then Tanaiste Mr.Wilson and the Tanaiste's private secretary, a Mr. Paul Dillon, who took a note of what was said at the meeting which followed. As against the officials in the Department, the note records that the complaint made by Mr. Murphy was one of delay in processing Mr. Murphy's application. Mr. Murphy believed that at the meeting he also recounted the assurances he got from Mr. Maloney and not just the assurances from the politicians. However, Mr. Dillon's note contains no such record of any allegation against Mr. Maloney and Mr. Dillon did not recall any such allegation being made at the meeting in February 1991. On the 5th April 1991, the solicitor for Mr. Murphy wrote to the Minister alleging assurances had been made by Mr. Maloney as to the issue of a licence. Following that letter, Judicial Review proceedings were instituted by Mr. Murphy in July 1991, to compel the Minister to make a decision on foot of the application for a licence. That decision was ultimately made by the Minister by letter dated the 8th November 1991, refusing to grant a licence and it was refused, as already noted, on the grounds that he had failed to demonstrate that his application "involved tonnage replacement in line with the policy guidelines set out in the Department's letter of the 29th June 1990". While Mr. Maloney recalls conversations with Mr. Murphy, he does not recall giving him any assurances as to the issue of a licence. He recalls that the Murphy application came to the Department shortly after he had prepared a position paper on the licensing of sea fishing boats. He noted in that paper that:-

6. Mr. Maloney's interim recommendations for the demersal fleet had the approval of his immediate superiors. By April 1989, the then Assistant Secretary, Mr. Carroll, was advocating an interim policy based on a tonne for tonne replacement condition for demersal applications such as that of Mr. Murphy; he noted that the Department could not go on giving out new licences on a piecemeal and ad hoc basis, with little rationality as to the criteria involved. Some 40 applications for licences were submitted to the Minister on the 29th and 30th May 1989 (including Murphy's). The Minister's decision was that the Murphy application, rather than be refused, was to be "reviewed further" . It appears that the Minister considered each of the applications on the basis of the interim policy first articulated by Mr. Maloney rather than on the ad hoc basis previously followed. On the 10th August 1989, Mr. Maloney was advocating the adoption by the Department of clear guidelines on the grant of licences. Mr. Murphy's application (along with 35 others) was again placed before the Minister in the second half of August 1989. The Minister issued licences to two of the Applicants but deferred a decision on all other Applicants pending a full review of the Department's licensing policy. As already noted, Mr. Murphy was so notified by letter of the 31st August 1989. A Review Group was set up within the Department; Mr.Maloney was its secretary. It reported in February, 1990. In so far as Mr. Murphy was concerned, the key policy decision advocated by the Review Group was that, in future, licences would generally only issue on a replacement basis in the first instance. Following the report of the Review Group, the Minister decided to adopt their recommendations as policy in relation to the issue of licences, and, it is clear that this policy was applied in the decision to refuse a licence to Mr. Murpy in November 1991. Mr. Brendan Cahill, a Principal Officer in the Department of the Marine in 1989 and 1990 gave evidence of how the policy of the Minister announced in a Dail statement on the 30th May 1990, of a 100% replacement licensing policy was a policy designed to give effect to Ireland's obligations under the E.U. Common Fisheries Policy. Mr. Carroll, the present secretary of the Department, expressed the view that the ministerial policy was designed to bring good order to licensing policy, move towards E.U. targets, and away from ad hoc decision taking.

7. The Fisheries (Amendment) Act, 1983 amends the Fisheries (Consolidation) Act, 1959 in a number of respects. Section 2 of the 1983 Act provides as follows:

8. The effect of Section 222B of the Fisheries (Consolidation) Act, 1959 is that a sea fishing boat must be licensed under that section before it can be entered in the fishing boat register maintained under the Merchant Shipping Act 1894, and a boat which does not have a licence cannot be used for sea fishing. In allowing the Minister a discretion in granting or refusing a licence to an applicant, the only curb on that discretion appearing on the face of Section 222B is that no licence may be granted to a person who is not an Irish citizen or a body corporate established under and subject to the law of the state and having its principal place of business in the state. The section permits the Minister to attach conditions to the grant of such licences. Section 224B of the 1959 Act empowers the Minister to make regulations to give effect to any provision of the Treaties or Acts of the Institutions of the European Communities which authorise Member States to restrict or regulate fishing and waters under their respective jurisdictions. Again, on its face, Section 222B appears to be a section designed only to eliminate flags of convenience from the Irish fishing fleet in that the only expressed restriction on the grant of a licence is based on nationality. The section does not appear to have been enacted or intended as a mechanism to carry into effect any object of the Common Fisheries Policy of the European Union or any regulation or directive made to give effect to such policy. Indeed, the wording of Section 224B would suggest that such obligations, if any, of the state which has flowed from the adoption of a Common Fisheries Policy was intended by the legislature to be discharged by way of ministerial regulation rather than licence. I shall return to this aspect later.

9. The combined effects of Articles 5 and 189 of the Treaty of Rome, Article 29.4.5. of the Constitution, and the provisions of the European Communities Act, 1972 is to oblige this Court to give precedence to Community Law over National Law, and in construing national legislation, the Court is obliged to refrain from interpreting such legislation in a manner inconsistent with the provisions of Community Law. The principle of the supremacy of Community Law also involves the Member States being obliged not to do any act which offends that state's general treaty obligations and that, National Courts, in construing national legislation, must do so having regard to those same general obligations which flow from the wording of the Treaty of Rome.

10. Articles 38 to 43 (both inclusive) of the Treaty lay down the broad framework for a Common Fisheries Policy. The Articles require that a Policy should be adopted by the Council on foot of proposals from the commission after consultation with named bodies. Article 43 authorises the council to implement such a Policy within the objectives laid down by Article 39. In September 1976, the Commission made proposals to the Council. One of these proposals was of a structural nature to rationalise and reduce the EEC fishing fleet. In October 1983, the Council (Regulations 2908/83 and 2909/83 and Directive 83/515) adapted the Commission Proposals for modernising the fishing industry and the development of aquaculture. By Article 3 of Council Regulation 4028/86 of the 18th December 1986, Member States were required to submit to the Commission by a particular date " a programme concerning their fishing fleet and a programme concerning aquaculture and a provision of protected marine areas". Article 4.3. provided that the Commission "shall" acting in accordance with the procedure laid down in Article 47 decide whether or not to approve the programme thus submitted. Article 1 obliged States to include in their programmes measures for "the adjustment of fishing capacity by the temporary or permanent withdrawal of certain vessels from fishing activities" .

11. Ireland submitted such a programme to the Commission, which, by its decision of the 11th December 1987, approved the programme subject to the limitations and conditions in the annex to the decision (88/142/EEC). The objectives of the programme was to ensure a reduction in the size of the Irish fishing fleet to 43941 GRT by the 31st December 1991. Further Commission decisions (91/543/EEC; 92/364/EEC; 92/594/EEC) approved updated programmes for the Irish Fishing Fleet. It is clear from Regulation 4028/86 that, integral to the development to the Common Fisheries Policy, were the structure proposals which involved, inter alia, the elimination of excess fishing capacity.

12. The Plaintiff says that the Minister was not entitled to have regard to a policy of replacement tonnage in arriving at his decision to refuse to grant the Plaintiff a licence; the Plaintiff also submits that the Minister applied that policy of replacement tonnage across the board and failed to consider the Plaintiffs application on its own merits. The Plaintiff also complains that the Minister was not entitled to adopt a policy after the Plaintiff applied for a licence but before deciding on his application. Finally, the Minister's delay in deciding on the Plaintiff's application was, according to the Plaintiff, so lengthy as to be wholly unreasonable.

13. The power granted to the Minister by Section 222B of the Fisheries Consolidation Act 1959, to grant a sea fishing licence is a discretionary power. While the power is discretionary, it may be reviewed by a Court and set aside as unlawful in certain circumstances. There is no exhaustive list of those factors or circumstances upon which a Court or will not act to set aside the exercise of a discretionary power. The following may be said to be the principal factors. A Court will set aside a decision where it is shown that the decision:-

14. Keane J. summed up the applicable principles in Carragaline Community Television Broadcasting Company Limited trading as Southcoast Community Television Broadcasting Service and Gabriel Hurley v. The Minister for Transport and Energy and Communications and Others , unreported, 10th November, 1995, at page 178 et seq when he stated:-

15. It is common case that the grounds upon which Mr. Murphy was refused a licence were that he had failed:

16. I accept the evidence of Mr. Brendan Cahill and Mr. Carroll, both officials in the Department of the Marine, that the policy adopted by the Minister (and applied to the decision to refuse a licence to Mr. Murphy) of requiring replacement tonnage was a policy designed to give effect to reduction in fleet size as set out in the multi-annual guidance programmes approved by the EU Commission. The question which arises however, is whether, in the exercise of his discretionary power, the Minister ought to have regard to such considerations. It was argued that, as the discretionary power introduced by the 1983 Act was designed to eliminate flags of convenience only, it should not be utilised as a mechanism to control the size of the Irish fishing fleet. It was also argued that any construction of Section 222B should not take account of EU Regulations or decisions post-dating the 1983 Act. Finally, it was argued that the Minister should not have had regard to what he perceived as EU obligations in deciding to grant or refuse a licence to Mr. Murphy. I am satisfied that the evolution of the Common Fisheries Policy imposed obligations on Member States, including Ireland. In particular, Regulation 4028/86 makes it clear that critical to the Common Fisheries Policy were the structural proposals involving the elimination of excess fishing capacity by Member States; as already noted, that Regulation obliged members to submit plans to the Commission, such plans to provide for the adjustment of fishing capacity by the temporary or permanent withdrawal of certain vessels from fishing activities. The plan submitted by Ireland to the Commission and thereafter approved by it in an amended form represented, not just an aspiration, but an obligation, which Ireland, as a Member State of the EU, was bound to discharge. Integral to that plan, was a reduction in gross registered tonnage of the Irish Fleet. Thus, adoption of a policy of refusing a licence to an applicant in the absence of replacement tonnage represented an appropriate measure which ensured the fulfilment of Ireland's obligations arising out of the common fisheries policy of the EU. The Minister, in exercising his discretionary power in 1991 relating to Mr. Murphy's

17. There was undoubtedly delay in dealing with the application. His revised application was submitted in March 1989 and only decided in November 1991. In the interval Mr. Murphy was made aware (August 1989) that there would be a delay in processing applications due to the establishment of the Policy Review Group; again in June 1990 he was advised on the replacement tonnage policy and asked whether his application involved such tonnage. He did not respond to this query. Despite Mr. Murphy not responding to the request to particularise his replacement tonnage, if any, the Minister did not decide on his application until November 1991, and while this delay is clearly inordinate, there is no evidence before me, that the delay in itself resulted in any prejudice to Mr. Murphy such as would warrant redress by way of setting aside the decision of the Minister.

18. For the reasons detailed above I do not accept that there is any basis for setting aside the Minister's decision to refuse a licence to Mr. Murphy.

19. Mr. Murphy contends that in his dealings with officials in the Department of the Marine between February 1989, and July 1989, he was given various assurances that a licence would issue in due course to him. He contends further that he got similar assurances from politicians, whom he canvassed in his cause, who relayed to him the Minister's intention to grant him a licence. Such assurances amount, says Mr. Murphy, to promises which estop the Minister from relying on his decision to refuse a licence, or, alternatively, that the decision to refuse him a licence did not take account of his legitimate expectation that he would be granted a licence. In Duff and Others and the Minister for Agriculture and Others unreported 4th March, 1997 Barrington J. in the Supreme Court observed (at page 32)

20. In the foregoing circumstances the Plaintiff''s claim will be be dismissed.