High Court of Ireland Decisions

1. The Plaintiff operates a two vessel ferry service for passengers and vehicles between Glenbrook and Carrigaloe near the mouth of the river Lee.

2. The Defendant is a company established under the Provisions of the Harbours Act, 1996 and is charged thereunder with the management, control, operation and development of Cork Harbour.

3. On the 23rd of December, 1997 the Applicant received from the Respondent a letter enclosing a Schedule of charges which were to come into effect on the 1st of January, 1998. This Schedule included a charge of 25p per tonne per day on vessels operating a passenger ferry within the port. The Applicants say that this amounts to a new charge of some £20,000.00 per annum per vessel on their ferry service: the Respondents emphasise that it approximates to 5p per vehicle or some £56.25 per day.

4. The Applicants were not consulted in advance in relation to these charges nor were they given any notice apart from the letter received on the 23rd of December. They say they were entitled to notice and they were entitled to be consulted in advance and to have their submissions attentively listened to and taken into consideration by the Respondent in calculating the new charges.

5. They say that they are the only operator in the Cork harbour area which will have to pay this particular charge and that this makes it all the more incumbent on the Respondent to have consulted them in advance.

6. Their Counsel, Mr. Paul Sreenan S.C. abjures any argument to the effect that there is no legislative authority vested in the Respondent enabling it to impose these charges or any argument to the effect that the charge is unreasonable. His single point is that there was a want of fair procedures which he submits applies to the imposition of the charges in this case which entitles him to a declaration that the charges imposed are invalid.

7. Mr. Sreenan submitted that it is a matter of general principle that an administrative procedure likely to result in a significant charge affecting the livelihood of an operator such as his client is subject to the application of the due process principles.

8. These principles apply all the more emphatically when, as in this case, the consequence of failure to pay the charge is to expose his client to criminal sanction with significant attendant penalties (including a large maximum fine, a two year maximum prison sentence and the sale of his client's vessels in certain circumstances).

9. The want of an appeals procedure made the necessity for initial fair procedures all the more emphatic.

10. In support of these propositions he relied on the fact that the earlier (1946) Harbours Act did provide for public consultation and input prior to the imposition of analogous charges and explained the disappearance, so to speak, of this feature from the 1996 Act by reference to the intervening body of Irish case law dealing with the application of natural justice principles.

11. His clients, he submitted, were exercising their common law right to navigate tidal waters and he submitted that it was inherent that any delegated power to impose such a charge under our constitution contains an implicit requirement to observe fair procedures in circumstances such as the present which specifically include a right to be notified in advance and to be heard before the charges are fixed.

12. In reliance on these submissions he referred me to a number of cases including C. W. Shipping -v- Limerick Harbour Commissioners [1989: I.R.L.M.: 416]; The State (Lynch) -v- Cooney & Another [1982: I.R.: 337]; United States Tobacco International Inc. and Anor. -v- Minister for Health and Ors. [1990: 1: I.R.: 394]; and Burke -v- Minister for Labour [1979: I.R.: 354].

13. The latter case involved a challenge on behalf of employers in the hotel industry to a Labour Court recommendation, fixing a statutory minimum wage. The mechanism under the Industrial Relations Act, 1946 was that a Joint Labour Committee could recommend a minimum wage or an amendment to a minimum wage to the Labour Court which could adopt such a recommendation. In the particular case the Joint Labour Committee had considered a motion by the employees' representative for the replacement of a previous Labour Court Order. An amendment was tabled by the employer's representatives seeking to have their submissions considered and adopted, was defeated and it became clear that the Committee would not consider the employer's submissions. The employers challenged the ultimate outcome on the basis of want of fair procedures. In the course of his judgment at page 361/2, Henchy J. said:-

14. Mr. Sreenan S.C. relied also upon the following extract from the short judgment in the same case of the then Chief Justice O'Higgins C.J., namely:-

15. Dermot Gleeson S.C. for the Respondent submitted, first of all, that the issue in the present case was a question of fundamental principle. He submitted that this application was an attempt to extend the application of the audi alteram partem principle to delegated legislation. He submitted that this principle did not apply to the making of laws, including the making of delegated legislation and contrasted Acts or decisions which involved primarily matters of fact or law on the one hand, with questions of policy on the other.

16. Here the decision of the Respondent as to what mix of charges they were to levy in order to attain what Mr. Gleeson said was their fundamental obligation under the Harbours Act, 1996, namely to operate in a cost effective manner and to ensure that they generated enough revenue to cover their costs and remunerate their capital, was a matter of policy which was not subject to the principles of due process.

17. He submitted that at the heart of the Applicant's attitude to the imposition of this new charge was that they were not getting (any) value for their money. This was a fundamentally erroneous posture: it was not a question of the Respondent providing services appropriate to the charges levied but rather a question of them complying with their statutory obligation to "pay their way" which itself was a policy matter to be determined by the Respondent. The make up and composition of the Schedule of charges was a policy matter for the Respondent and the Applicant had no right to be consulted in regard to it.

18. Mr. Gleeson noted that the Applicant was not saying that the charge was unreasonable (in the legal sense); was not saying that the Respondent had no power to impose it; and was not basing its case either on the premise that it would cause hardship to the Applicant or that any submission which the Applicant might make would be likely to alter the charges in the Schedule (although there was correspondence in which the Applicants had expressed dissent and complaints, albeit after the event).

19. Mr. Gleeson submitted that a clear line had to be drawn between cases involving the application of established policy and statutory requirements to individual cases on the one hand (where due process and procedural justice would apply), and cases involving the making of (delegated) legislation, on the other where it did not. This was a case of the making of delegated legislation; it was a happenstance that only one operator was affected and it was a nonsense to contend in such circumstances that the mere fact of the Applicants "singularity" conferred on it a right to notice in advance and to be consulted.

20. The passage cited above from the judgment of Henchy J. in Burke -v- Minister for Labour captures the essence of the Applicant's argument. I note, however, that the statutory mechanisms under consideration in that case involved the procedures adopted by an independent body (the Joint Labour Committee) which acted as an independent agency between the employer's interests and those of the employees. Both were represented on the committee but equally the committee was in a position of "hearing" submissions from both sides. In those circumstances the application of the principles of procedural justice clearly apply so as to condemn the outcome of a process where one side is unduly favoured over another. I consider that the citation from the judgment of Henchy J. applies to delegated functions of the nature under consideration in that case, namely, of a nature analogous to the "hearing" by a third party into competing interests of two or more other parties.

21. Again the licensing cases are, to my mind, clearly distinguishable from the present case. An applicant for a license must be entitled to know the basis upon which the application will be granted or refused. It is a procedure concerning an individual and involves, or should involve, the application of criteria which stand independently of the considerations relevant to the individual application.

22. The passage cited goes on to indicate two possible reasons why the then Chief Justice considered the submission unrealistic namely (a) the Minister held a bona fide opinion on the matter and was accordingly bound, by the Constitution, to make the Order; and secondly (b) time did not allow for debate or parley.

23. Mr. Sreenan sought to rely on this passage by submitting that in the present case there was time for "debate or parley" and accordingly the Respondent's failure to give his client notice invalidated the Schedule of Charges.

24. The Minister's action under challenge in The State (Lynch) -v- Cooney , was a determination pursuant to statutory provisions already in place. As such it is to be distinguished from the present situation where the Applicant challenges - exclusively on grounds of procedural justice - the imposition of charges, pursuant to an uncontested power in that behalf, by the Respondent. If the Respondent has power to impose these charges, and if they are not unreasonable in the legal sense, then in my view there is no authority to support the proposition that the Respondent owed the Applicant a duty to give it notice of its proposed charges and an opportunity to have a say in establishing what they should be. I note, in this context, that no case was made that the Applicant's charges were discriminatory, despite an assertion that the only entity affected by the particular charge was the Applicant. Mr. Sreenan's submission was grounded on the proposition that the Respondent owed a duty to anybody affected by their charges (albeit that the implementation of such a duty might differ depending on the numbers of affected parties concerned) to give them notice and an opportunity of being heard before determining what the charges should be. Such a duty, he said, existed towards affected parties in general, and the relevance of pointing to the fact that the Applicant in this particular case was the only entity affected, was merely to emphasise the importance in the Applicant's particular case of implementing that duty by way of serving individual notice.

25. The Applicant's singularity no more gives him a right to participate in the process of making delegated legislation than does the sole elephant owner of Mr. Gleeson's analogy in respect of legislation governing animals in general. Indeed I did not understand Mr. Sreenan to rest his case on his client's "singularity". In essence the nature of legislation (including delegated legislation) remains the same whether it applies, in fact, to one or many. In the absence of arguments in relation to discrimination, jurisdiction, unreasonableness or unconstitutionality of the powers themselves, there is no case, in my opinion, for holding that the Respondent's Schedule of Charges are invalid for want of consultation with the Applicant. I therefore dismiss the application.