1. The
Applicant is a fisherman and mussel farmer and the owner of a motor fishing
boat, the "Angela Madeline", a 38 ft. steel vessel, built in 1991 by Dingle
Boats Teoranta with the benefit of a grant and loan from Bord Iascaigh Mhara
("B.I.M.") and a further grant from the EU, the "FEOGA" grant.
2. Because
the Angela Madeline was less than 65 feet overall length, it was exempt from
the requirement (under Section 222B of the Fisheries (Consolidation) Act, 1959)
to have a sea-fishing licence but, notwithstanding exemption, did require a
licence if she was to be registered under the Merchant Shipping Act, 1894 and
the Mercantile Marine Act, 1955. B.I.M. required such registration as a
condition of granting the loan primarily in order to register its interest
against the vessel which could only be done if she was registered.
3. Accordingly,
the Applicant made contact with the first named Respondent's Department during
1990 and 1991 to indicate his intention to apply for such a licence.
4. The
first named Respondent is,
inter
alia
,
authorised under the Fisheries (Amendment) Act, 1983 to grant licences
thereunder and he is also the State authority charged with implementation of
relevant EU policies to which I will refer in more detail later.
5. The
second and third named Respondents appear to have been joined because the
statement grounding the application seeks at paragraph 8 a declaration that the
refusal of the first named Respondent ("the Minister") to allow the Angela
Madeline to be used as replacement capacity for the entry of another vessel
onto the fishing fleet is in breach of the Applicant's constitutional rights,
namely, the right to property and to earn a livelihood. These specific
declarations were not sought in the hearing before me.
6. Before
setting out the facts, I should explain that what is known as the
"replacement
policy"
operated by the Minister requires that new entrants to the Irish Fleet (or
replacement of existing vessels by larger ones) must demonstrate a ton for ton
withdrawal from the Register (known as the one hundred per cent replacement
policy) as a requirement of obtaining a licence. This policy was adopted in
May of 1990 as a method of controlling the size of the Irish Fleet, itself
required to be reduced by some 25% following a European Commission decision of
December 1987 (modified one year later) imposing on the second Respondent an
obligation significantly to reduce its fleet capacity in stages during the
period 1987 to the end of 1991. This decision was itself taken in light of the
conservation objectives of the Common Fisheries Policy of the European Union.
7. Pursuant
to the replacement policy, the tonnage assigned to licensed vessels became a
valuable commodity in and of itself and was something that could be
"sold"
to the owner of another vessel who required it to be licensed.
8. In
the present case the Applicant decided to
"sell"
the tonnage of the Angela Madeline towards the beginning of 1997. Through an
intermediary, one Pat Crowley, a Solicitor who regularly advertises to buy
tonnage in the "Skipper" newspaper, he came in contact with one Brian
O'Driscoll from Castletownbere and agreed to
"sell"
the
tonnage in consideration of £40,000. He did this somewhat reluctantly and
only after careful consideration because he was under considerable financial
pressure from his bank and B.I.M.
9. As
will be seen in some more detail later, it was an essential part of this
proposed transaction that the Minister gave his consent to the transfer of the
tonnage from the Angela Madeline. Accordingly, Mr. Crowley contacted the
Minister's Department. After an initial indication of agreement, on the 10th
June, 1997 the Minister, through his officials, refused to allow the Angela
Madeline to be used as replacement capacity to facilitate the entry of Brian
O'Driscoll's vessel onto the fishing fleet. It is this refusal which is the
subject of challenge in these proceedings. Whilst a statement grounding this
application, and indeed the Order giving the Applicant liberty to bring
Judicial Review proceedings, seeks a number of reliefs and declarations, in the
proceedings before me Counsel for the Applicant sought only a declaration that
the Applicant had a legitimate expectation that the Minister would allow him to
use the tonnage of the Angela Madeline as replacement capacity as aforesaid and
also damages for breach of this expectation.
10. On
or about the 13th March, 1990 the Applicant applied to the Minister for a
licence to fish the Angela Madeline naming mussels, crab, lobster and shrimp as
the species of catch. On the 16th March he received a reply from the Minister
stating that the Minister had established a Licensing Review Group to recommend
licensing policy to be adopted to ensure optimum development of the fishing
industry and in light of this, the Minister had suspended consideration of all
licence applications and he was told that his application would be considered
further when the new policy was in place. By further letter of the 6th June,
1990 he was told that preference would be given to applicants who proposed
"tonnage
replacement"
.
Applicants would have to demonstrate that they intended removing a significant
level of active tonnage from the Fishing Boat Register to facilitate the entry
of new entrants to avail of this new policy. Boats removed from the Register
would be required to be de-registered under the Merchant Shipping Act, 1894 and
the Mercantile Marine Act, 1955 (
"e.g.
scrapped or sold outside the State"
).
That letter pointed out to the Applicant that the information provided did not
allow the Minister to assess whether or not there was a replacement element
associated with his application and he was asked to indicate whether his
application involved tonnage replacement.
11. The
Applicant wrote back on the 25th June, 1990 pointing out that the vessel would
not be fishing for quota species of fish, that the vessel would be harvesting
mussels during the season (November to May) but it was imperative that it pay
its way during the summer months when he intended to pot for crab. He
specifically answered
"No"
to the question
"Is
a replacement element associated with your application?"
.
12. The
Applicant sent in a new licence application on the 7th February, 1991
specifying mussels (only) as the intended catch. This application was
accompanied by a letter (dated the 4th February, 1991) requesting licensing and
registration of the Angela Madeline, indicating how the boat was being financed
and the anticipated income and specifying that
"the
boat will be used exclusively for mariculture"
.
14. In
response to that letter the Applicant wrote on the 1st May, 1991 referring to
those conditions and saying
"I
agree to comply with these conditions".
15. It
will be recalled that the Angela Madeline was exempt from the requirement of
obtaining a sea-fishing licence for fishing purposes and that the need for the
licence was in order to become registered under the Acts to which I have
already referred because, pursuant to Section 8 of the Fisheries (Amendment)
Act, 1983, such registration could only be effected if the ship was the subject
of a licence.
16. The
view of the Minister, and I think it was a correct view, was that he did have
power to grant licences not only for the purpose of authorising fishing but
also for the purposes of facilitating registration. Accordingly, the licence
that issued to the Applicant on the 28th August, 1991 was a licence for three
months only ending on the 30th November, 1991. It had attached to it three
conditions, none of which was a condition specifying that
"the
tonnage in question is to be used for aquaculture purposes only and you will
not be allowed dispose of the tonnage for general fishery purposes"
,
to quote the language of the offer letter of the 26th April, 1991.
17. The
Applicant said in evidence that it was the view of B.I.M., even before he
received this licence, that he would be entitled to fish in the demersal sector
notwithstanding the contents of the letter of the 26th April, 1991. They were
adamant and insistent on this point and convinced the Applicant that they were
correct. He further said that on receipt of the licence in August 1991 the
terms thereof confirmed him in his agreement with the B.I.M. interpretation and
he was satisfied that the Minister had changed his mind and that the condition
attaching to the offer letter no longer applied.
18. He
gave further evidence that he fished openly in the demersal sector and that the
local Department of Marine Fisheries Officers knew this.
19. The
Minister wrote to him on the 1st October, 1993 concerning the categorisation of
sea-fishing vessels and referring to a discussion document on the management of
the fleet. He said the Angela Madeline was being
20. The
Applicant said in evidence that he took this as further confirmation that he
was entitled to fish in the specific and demersal (other than the Irish Sea)
categories. He also stated that he took no action on foot of it either to his
detriment or to his advantage and its impact on him was that it confirmed his
understanding to which I have just referred.
21. In
addition to the foregoing, the Applicant gave evidence that the Minister's Sea
Fishery Officer, Dominic Gallagher, not only knew that he was openly fishing in
the demersal sector, but gave him a log book which was relevant only to the
demersal category and the pelagic category, that six of the eight species of
fish listed therein were included in the demersal category, the other two being
in the pelagic category. The log book therefore had no relevance to the
aquaculture sector and he presumed that it was given to him to record his
demersal catch.
22. Moreover,
after a long period of bad weather the Minister announced an emergency aid
scheme and he filled out an application form and submitted it to the B.I.M.
Area Officer, Bob Cooke. He was required to state the species of fish he was
landing on the application and he filled in white fish, prawns, crabs and
mussels. This form was submitted on his behalf by Bob Cooke of B.I.M. to Jim
Condon, the Senior Fishery Officer of the Minister, Southern Region, who
stamped the application, it so happens, in the box on the application form
setting out these four categories of catch. He was duly in receipt of
financial assistance under the emergency scheme based on the application so
described.
23. When
it was put to the Applicant in cross-examination that he knew from the very
beginning that the offer of a licence was always on the basis that
"the
tonnage"
could only be used for aquaculture purposes and he would not be allowed dispose
of it for general fishery purposes, he agreed that initially he fully accepted
these conditions but that when he received the licence without them, he
concluded, particularly under the insistent urgings of B.I.M., that the whole
initial basis had
"unravelled"
not only because B.I.M. took this view but because the relevant conditions were
not attached to the licence, and because he fished openly under the noses of
the authorities including the Minister's representatives without complaint, he
got a letter on the 1st October, 1993 which confirmed his interpretation and
six months later he was in receipt of emergency scheme funding on the basis of
an application which disclosed fully his catch in the demersal sector.
24. When
he applied, through the agency of Patrick Crowley, Solicitor, to have the
tonnage of the Angela Madeline transferred for use in the wider sector, this
view appeared to have been initially accepted but it was subsequently rejected
and the Minister's reasons were ultimately set out in a letter of the 10th
June, 1997 signed by Dr. C. Beamish of the Sea Fisheries Division. This letter
pointed out that:-
25. The
letter pointed out to the Applicant that in his application for a licence he
had indicated that the vessel would be used
"exclusively
for mariculture"
and that no replacement capacity had been withdrawn in association with its
introduction to the fleet.
26. Mr.
Joe Ryan gave evidence for the Minister's Department. He is a Principal
Officer in the Sea Fisheries Administration Division which deals with
sea-fishing licences and also for the past 1½ years has been Register
General of Fishing Boats. He said that there had been a fundamental change in
policy between the Applicant's two licence applications. The policy of
equivalent capacity replacement was promulgated in May of 1990. Under this
policy the Applicant would have had no realistic prospect of getting a licence
for the demersal sector unless he demonstrated de-registration of equivalent
tonnage. There was indeed an exemption for small boats such as the Angela
Madeline but this came to an end on the 1st January, 1995 when the Department
automatically issued licences to such boats in what they considered to be the
appropriate sector. At the hearing, but not before, the Minister produced a
copy of the licence for the Angela Madeline which issued on the 13th July, 1995
(although the date on its face appears as 1998 due to a computer error). The
licence authorises fishing in the
"specific"
(only) segment. This authorised fishing in the aquaculture (fish farming and
ancillary harvesting) and bivalve mollusc (clams, scallops, razor clams) sector
only. The tonnage would not be available for replacement outside of this
sector. He conceded that there were some exceptions to the general one hundred
per cent replacement policy. On the 3rd February, 1998, the Minister
promulgated a policy for the registration of some one thousand smaller fishing
vessels comprising approximately five thousand tonnes' capacity to the fleet.
This was pursuant to a special deal worked out with EU approval. The majority
of these could only be offered for sale as replacement tonnage after 12 months
on the register. The Applicant's boat was similar physically (in size) to
these smaller fishing vessels but not in legal status in the sense that the
Angela Madeline was registered but these were not. Only those who had never
been registered were entitled to apply. Moreover, the Angela Madeline had not
operated prior to 1989 which was another pre-condition for benefitting from
this scheme.
27. A
second partial exception related to some twenty licences in the Dingle area for
larger boats. This scheme operated in the Dingle area in the early 1990s and
whilst replacement tonnage was envisaged (albeit after registration) at the
commencement of the scheme, during its implementation this was relaxed due to
the financial circumstances of the boat owners and the replacement requirement
was substituted by a requirement that the owners pay cash to the Minister. Mr.
Ryan accepted that B.I.M. acted as the Minister's agent for the processing of
grant applications and appeared to accept initially that the loan from B.I.M.
came from
"the
fisheries side"
as
distinct from the aquaculture side but later he withdrew from this. An
examination of the Department's discovery documents indicated that there was
considerable hesitation not to say confusion amongst the personnel in the
Minister's Department as to the extent or existence of their powers to attach
to a licence conditions relating to tonnage replacement. Mr. Ryan found
himself in disagreement on a number of occasions with opinions expressed on the
Departmental file and offered his own view that the Minister had an implied
power under Section 222B(3) of the Merchant Shipping Act, 1894 to attach
conditions to the letter of offer of a licence. He said that it would not have
been possible to put the conditions in the licence but because the Minister
wanted to create a situation whereby the undertakings to be given by the
Applicant would be permanent, he included these conditions in the letter of
offer of the licence and these were accepted freely by the Applicant.
28. With
regard to the letter of the 1st October, 1993 he said that this letter was
issued in error. I note in passing that this explanation differs from that
given by Dr. Beamish in the letter referred to above who said that the letter
was provisional. It emerged on examination of the Minister's discovered
documentation that an initial draft of Dr. Beamish's letter did indeed allude
to the fact that the letter had issued in error but this was excluded from the
version that was sent to the Applicant. Mr. Ryan said that he would have
included a reference to error in the letter sent to the Applicant. He
disagreed with the Applicant's view that the initial basis of the offer in
principle letter had
"unravelled".
Some
little attention was paid at the trial to the Department's discovered
documentation leading up to the decision to refuse the Applicant agreement to
treat the Angela Madeline's tonnage as replacement tonnage. In particular
reference was made to a schedule apparently assembled by a Ms. Toner setting
out seven vessels which were initially acceptable as replacement capacity (for
another vessel the "Achilles" in that case). However, a manuscript note was
appended against the Angela Madeline and another vessel the "Maid of Erin" on
the schedule to the effect that they were
"aquaculture"
and accordingly unacceptable as replacement. The reference to
"aquaculture"
indicated that both of these were licensed in the
"specific"
sector only. Subsequently, however, the Maid of Erin was accepted as
replacement capacity. Mr. Ryan was queried about this and he indicated that
there was a practice in the Department of indicating, by reference to the
Department's knowledge of the boat's fishing history, that it was acceptable
for replacement by attaching to the file a note to that effect. In the case of
the file referable to the Maid of Erin, such an indication did appear but there
was no background information beyond this. This explained why the Maid of Erin
was accepted as replacement tonnage, unlike the Angela Madeline. He denied
that the Maid of Erin was treated more favourably than the Angela Madeline by
Mr. Wright who was the official who would have made the decision because he
would have taken this marginal note inside the cover into account. The
differences between the two vessels were policy differences relating to their
fishing history, as available in the Department's records, and, I gathered, by
reference to whether on initial registration equivalent tonnage had been
de-registered. Decisions were made by the officials not by the Minister on the
basis of a practice, explicable by reference to the foregoing principles, but
it was not a promulgated policy as such.
29. Mr.
Ryan referred in addition to some thirteen boats that were added to the fleet
in March of 1991 (pursuant to earlier applications) and accepted that the
Applicant's boat could have been added but this would have been contrary to the
policy requirement of replacement tonnage which applied to the Applicant's boat
but not to the majority (if not all) of these other boats because they had made
applications before the replacement policy was in place. The Applicant's boat
was in a clearly distinct category from others which were registered as
exceptions to the general replacement policy because the Applicant's boat was
always understood to be specifically for mussel farming and not to be entitled
to fish in the demersal sector. The Applicant had given an undertaking to
this effect even though his boat was exempt for sea-fishing purposes so that
the acceptability or otherwise of his tonnage for replacement was governed by
that agreement.
30. The
Merchant Shipping Act, 1894 provided for the registration of British ships
unless exempted. The Mercantile Marine Act, 1955 provided for the registration
of Irish-owned ships unless exempted. The Fisheries (Consolidation) Act, 1959
provided for the Consolidation of the Fisheries Acts 1842-1958 and in Part
XIII, which deals with sea fisheries, made provision applicable to the
exclusive fishery limits of the State. The Fisheries (Amendment) Act, 1983
inserted a new Section 222B into Part XIII of the Fisheries (Consolidation)
Act, 1959 giving the Minister power to grant sea-fishing licences and
prohibiting certain unlicensed sea-fishing. The section applied to any
sea-fishing boat registered or registerable under the Merchant Shipping Act,
1894 or the Mercantile Marine Act, 1955.
31. I
will set out in a moment relevant extracts from Section 222B but before doing
so, I note that by Section 8 of the Fisheries (Amendment) Act, 1983 a ship may
not be registered under either the Irish or the UK Act unless it is licensed.
This provision explains why the Applicant in the present case applied for a
licence: it was not to authorise sea-fishing for the Angela Madeline (she was
exempt for this purpose until the 1st January, 1995) but simply to enable her
to be registered under the foregoing Acts because registration was a condition
of the loan made by B.I.M.
32. As
stated this section applied to a fishing boat registerable under the Act of
1894 or a ship registerable under the Act of 1955. Where relevant it provides
as follows:-
33. The
above section was amended by the Fisheries (Amendment) Act, 1994, which came
into effect on the 12th July, 1994 (the effect of such amendment being to
enable the Minister to take account of economic considerations and EU policy)
but this amendment post-dated the issue of the licence in the present case and
accordingly did not apply to it.
34. By
regulation made on the 17th August, 1983 sea-fishing boats of 65 feet or less
were exempted from the provisions of subsection (2) of Section 222B
(prohibiting fishing otherwise than under licence) and this exemption continued
in force until a revoking regulation came into operation on the 1st January,
1995. The effect of this was that the Angela Madeline could engage in
sea-fishing without a licence until the 1st January, 1995 but not thereafter.
35. A
significant amount of the debate at the hearing before me concerned whether the
Applicant's expectation is legitimate. It is clear and not disputed that any
relief granted on the basis of legitimate expectation is an equitable remedy.
It was submitted that it was appropriate, therefore, to look at the surrounding
circumstances including the behaviour of the parties.
38. If
the parties proceed on the basis of an underlying assumption that the tonnage
is transferable the fact that such an assumption is an error (albeit stated
formally in the Minister's letter of 1st October, 1993) does not matter for the
purposes of this doctrine. Secondly, Mr Clarke says that the fact that the
Applicant did not rely on this letter does not mean that it cannot create a
legitimate expectation in the Applicant. In this respect he refers to the
observation of McCracken J. in
Abrahamson
-v- The Law Society of Ireland
(1996:
1: IR: 403) where he says at page 423 :-
39. Furthermore
it is submitted that the letter of the 1st October, 1993 was not provisional in
any way that was relevant to the issue between the parties. It was expressed
to be provisional in the event that the Applicant appealed (which he did not)
and in the event that the categories referred to in that letter were altered
(which they were not in any way which was relevant to the status of the Angela
Madeline's tonnage). Accordingly, the letter was unqualified and absolute to a
degree sufficient to satisfy the requirements of the doctrine.
40. For
the purpose of deciding whether the Applicant is entitled to the benefit of a
legitimate expectation I do not consider that I am directly or primarily
concerned with whether or not a representation is erroneous or indeed with
whether or not the Minister could have attached to the licence the condition
which he set out in his offer of the licence in relation to tonnage. I note
that the citation above from Lord Denning M.R. refers to the fact that the
underlying assumption could be either due to a misrepresentation or to a
mistake and that this makes no difference. Provided the assumption if carried
into effect would not entail the unlawful trammelling of a ministerial power or
discretion then I think that the fact that the letter of the 1st October, 1993
was in error or the fact that the conditions set out in the Minister's offer of
a licence may have been conditions which were not directly related to sea
fishing does not necessarily preclude the application of the doctrine of
legitimate expectation. The error in the case of the letter was an error as to
the application of an administrative practice (or at best a policy) of the
Minister's and is therefore distinguishable from the erroneous basis of the
Applicant in
Wiley
-v- The Revenue Commissioners
(1994: 2: IR: 160) in regard to which error McCarthy J. was able to say (at
page 168):-
42. As
will be seen in
Wiley
the Applicant had got what he was not entitled to get and what the Revenue
Commissioners were not entitled to give. The whole basis of his claimed
legitimate expectation was a claim for something which was precluded by
statute. That is not the situation with the Applicant here; he claims merely
that the transaction between himself and the Minister was conducted upon the
basis that he was reasonably entitled to infer that the Minister resiled from
his initial limitation on the transferability of tonnage and that he was
confirmed in this, albeit erroneously from the point of view of the Minister,
in a later letter from the Minister.
43. If
I am correct that error or mistake may not necessarily preclude the application
of the doctrine, this is a consideration which in the present case cuts both
ways. The erroneous letter can be a representation for the purposes of the
doctrine despite its error; by the same token, however, the imposition of the
conditions in the letter of offer even if such imposition were (and I will
return to this later)
ultra
vires
the powers of the Minister when dealing with a fishing licence application,
would be something which would bind the Applicant who would not be entitled to
say that part of his reason for assuming the Minister had changed his mind was
that they were indeed,
ultra
vires
and that the Minister should not or could not have made them.
44. To
the foregoing I would add, however, that given that the doctrine of legitimate
expectation is an equitable remedy it would be open to the Court to have regard
to the fact that the Minister's letter was indeed an error and to the fact that
the reason for the Minister's initial conditions was to implement European
policy on fleet reduction notwithstanding, if it be the case, that those
conditions could not have been included in the licence. These are matters
which the Court should, in my view, take into account when considering the
overall equity of the Applicant's case even if their erroneous character would
not automatically mean that they disentitled the Applicant to assert a
legitimate expectation.
45. I
turn now to consider whether it was reasonable for the Applicant to infer that
the Minister had resiled from his initial conditions by reason of the fact that
they were not contained in the licence. It must be remembered that the
relationship up to then had included the fact that the Applicant had made an
initial licensing application which was followed by communication between the
parties to the effect that he would not be entitled to a demersal licence
unless he was able to satisfy the Minister on equivalent tonnage, that the
application stated that the boat would be used exclusively for aquaculture,
that the letter of offer stated that the granting of the licence on foot of the
offer was dependant on full and complete compliance with the conditions
restricting tonnage disposal and that the Applicant said in evidence that he
clearly understood at the time that these conditions applied for as long as he
held the boat. Furthermore, no tonnage was in fact de-registered at the time
of licensing the Angela Madeline. The license itself was only for three months
and was clearly for the purpose for enabling registration of the Angela
Madeline rather than to entitle her to fish as indeed she was exempt.
46. In
this regard it might even be said that if the Minister was indeed insisting on
the policy in relation to tonnage the one thing he would not have done would
have been to include that condition in a licence which was only going to be in
operation for three months. If he had done this the Applicant might have been
able to argue that at the end of the three months the restricting condition no
longer applied.
47. In
my view, taking all of the above into account, I do not consider that it was
reasonable for the Applicant upon receipt of the licence to conclude that the
Minister had changed his requirement in relation to tonnage. I consider that
the Applicant may at that time have perceived an opportunity and taken
advantage of it. I cannot see how it could be regarded as equitable or fair
however, to conclude that on the basis of the relationship thus far the
Applicant must be entitled as a matter of law to expect that his tonnage be now
available for general replacement purposes.
48. With
regard to the fact that he fished
"under
the noses"
of the authorities, that he got a log book from the Minister's representative
which was consistent only with fishing in the demersal sector, that his
application for emergency relief was based, approved and successful in part on
the basis of a declaration of fishing in that sector, these are all elements in
the relationship between the parties which have more to do with the Applicant's
activity of fishing than with the restriction on his tonnage replacement
prospects. I acknowledge, however, that as a matter of practice the Minister
did link the two and indeed as Shanley J. accepted in
Murphy
-v- The Minister for the Marine and Ors.
(unreported: 11th April, 1997) at page 19:-
49. It
may well be that in light of this the Minister could indeed have included the
tonnage replacement conditions in the licence itself; I agree with the above
views of Shanley J. and for his reason for them to the effect that the
requirements of European legislation oblige the Irish Courts to interpret Irish
legislation in a way that is consistent therewith. That being the case I think
it is too artificial to separate completely the fishing and tonnage aspects of
the relationship between the parties. This conclusion, also, cuts both ways
from the point of view of the Applicant. On the one hand it operates against
the Applicant to the extent that it supports the validity of the Minister's
initial conditions relating to tonnage; on the other, it supports the Applicant
to the extent that he says that his fishing activities done with full knowledge
and to some extent the co-operation of the Minister fixes the Minister to that
extent with knowledge that he was indeed fishing in the demersal sector.
50. But
even if this be so, are these incidents in the relationship between the parties
consistent only with an inference that the Minister had decided to abandon his
requirement that the tonnage of the Angela Madeline would not be available for
general replacement purposes? They are equally consistent I think with lack of
communication between the various representatives of the Minister, some
confusion and perhaps even a relaxed attitude.
51. The
strongest point made by the Applicant is, clearly, the letter of the 1st
October, 1993. I have already expressed the view that the fact that it may be
in error does not mean that it cannot be part of the transaction or course of
dealing between the parties to which the Court will have regard in the context
of legitimate expectation.
52. In
my view prior to receiving that letter the Applicant was not entitled to demand
and was not in a position legitimately to expect the Minister to consent to his
tonnage for replacement. On the contrary, he had presented an unqualified
application limiting the fishing of the Angela Madeline to the mariculture
sector, and nothing in the interim had amounted to an entitlement for him
legitimately to infer that the Minister had changed his policy or requirements
in that regard. On receipt of the letter of the 1st October, 1993 he,
therefore, received something which was contrary to the course of dealing up to
then. On the one side was his undertaking that the boat would be used
exclusively for mariculture; the
"advantage"
of such undertaking that had accrued to him, namely licensing without providing
replacement tonnage: this in turn enabled him to be registered and to finalise
his loan with BIM. On the other side is the letter of the 1st October, 1993
which is at odds with the hitherto stated tonnage replacement requirements of
the Minister. I cannot see how this could be regarded as an unqualified or
unambiguous promise or assertion. Certainly it would not amount to a course of
dealing. It may well have looked like a gift from the Gods to the Applicant
and indeed it was entirely gratuitous and if it is to be enforced it would mean
that he would gain the value of the Angela Madeline's tonnage at the cost of an
equivalent loss to the Irish fleet.
53. Can
it be said that
"it
would be unfair or unjust"
to allow the Minister to go back on the letter? Where is the injustice? It
is not as if the Applicant had mistakenly or otherwise paid for equivalent
tonnage as a price for getting the licence; on the contrary, if he is to be
granted the Minister's consent, the loss would be to the national fleet and the
gain for the Applicant would be entirely gratuitous. He would have been the
beneficiary of an unpaid for advantage which cost him nothing due to an error
on the part of the Minister. Even accepting that the letter was not
provisional in the sense contended for by the Minister, I could not agree that
it amounted to an unconditional promise or assurance as contemplated in the
doctrine of legitimate expectation. Set against the clear and intentional
self-limitation of the second licensing application, the unqualified and
unambiguous conditions contained in the Minister's letter of offer, I consider
that it would be straining language and common sense to treat the Minister's
letter of the 1st October, 1993 as an unqualified assurance with the
consequences in law which the Applicant now seeks the Court to enforce. Such a
result would be the contrary of equity, in my view, because it would mean that
the Applicant would become the gratuitous beneficiary of an erroneous letter
which was out of character with the dominant and constituent elements in the
relationship between the parties, namely the terms and conditions upon which
that relationship was freely and deliberately set up.