High Court of Ireland Decisions

1. This is an application pursuant to leave granted by the High Court on 22nd April, 1996 for judicial review in the form of an Order of Certiorari quashing an Aquaculture Licence issued by the First named Respondent in favour of the Second named Respondent on 3rd August, 1995 in respect of a particular part of Carlingford Lough. The leave was granted upon the grounds set out in paragraph (E) of the grounding statement. Those grounds read as follows:-

2. It is clear that there are not really nine grounds despite the numbering. Essentially, the application has been made and argued in Court on three grounds. These are:-

3. Statements of grounds of opposition have been filed on behalf of each Respondent. The Minister, in his statement of opposition, denies that the Applicants or any of them have exercised any alleged right of fishing in the licensed area prior to the grant of the licence or, alternatively, that if they have done so, it has been without a licence or without a permit under a 1987 Statutory Instrument. The Minister admits that officers of the Department did state in February 1993 that an application for an Aquaculture Licence could only be made by a co-operative and he asserts that this was based on legal advice received by the Minister at the time. It is asserted that there was a change of advice in February 1995 to the effect that a private individual could apply for a licence over an area which was known as a public fishery if rights of public fishery had not been exercised in respect of that area within recent memory. In the statement of opposition, the Minister goes on to admit and fully defend the system of chronological dealing with applications for Aquaculture Licences. It is pointed out in the statement that there was an opportunity given to lodge objections to Mr. McCarthy's application and that although objections were received and considered, there was no objection lodged by the Applicants themselves. Finally, the Minister contests the Applicants' entitlement to an extension of time for bringing the application. I do not know whether it is fair to attach any significance to the fact that the time point in the Minister's statement of opposition is at the end rather than at the beginning of the grounds of opposition. But as will become apparent when I move to deal with Mr. McCarthy's statement of opposition the time aspect looms large in his statement and of course it would be he, in particular, who would be concerned about the delayed application.

4. I turn now to the statement of opposition of Mr. McCarthy. His original statement of opposition was dated 28th June, 1996 but an amended statement of opposition is now the operative statement and it is dated 18th October, 1996. In Mr. McCarthy's amended statement, as indeed in his original statement of opposition, the time point is raised ahead of all other grounds. It is pointed out that leave to apply for judicial review was made some eight and a half months after the granting by the Minister of the Aquaculture and Foreshore Licences. I will return to this matter after I have outlined the other grounds of opposition. These are essentially the same grounds as raised by the Minister. It is disputed that the Applicants have exercised a right of fishing in the relevant area prior to the grant of the licence. Mr. McCarthy claims and, presumably correctly, that he is a stranger to the representations (if any) made by the officers of the Minister and in that situation he disputes that his legal rights ought to be in any way affected by same. He claims that there was nothing improper or arbitrary about dealing with the applications in a chronological way and he asserts that the Applicants had the opportunity of being heard by way of objection. Finally, Mr. McCarthy refers to circumstances set out in affidavits used in High Court proceedings which he brought and which related to alleged interference with his aquaculture activities and to the delay in bringing the application and the expenditure which has been incurred by him and that in those circumstances the Court should at any rate, as a matter of discretion, refuse Certiorari.

5. I return now to the time issue raised. In recent years, the Courts have been reluctant to adopt an over-strict application of the time limit rule under Order 84 of the Rules of the Superior Courts and, indeed, there were dicta of Mr. Justice McCarthy in the Supreme Court to the effect that delays should not be regarded as relevant if fundamental constitutional rights were involved. It is probably not that often, therefore, that an application is refused on the grounds simply of the time limit under Order 84. I am absolutely satisfied, however, that this is a case where the delay point has been well and truly taken and where there are no good reasons for extending the time. Even after the Applicants discovered about the chronological system adopted by the Department, the application was not brought promptly. The only conceivable point in favour of extending the time is the assertion of pre-existing exercise of fishing rights and presumably it might be argued that interference with those rights constituted interference with a right of livelihood to some extent. But I do not think that any unconstitutional interference with right of livelihood has been established in this case. It seems inconceivable that there were any wild stocks of mussels and if and in so far as there were any aquaculture activities carried out by the Applicants or any of them in this particular area (and I rather doubt that there were), they were done without an aquaculture licence required by Statute. The statutory provisions effectively permit interference with public fishery rights. There is no attack on the constitutionality of any of the statutory provisions. The most that the Applicants might be able to argue would be that if there had been extensive fishing rights exercised in the particular area by the Applicants and that the Minister was aware of this, there might be an argument that it was an unconstitutional exercise of his power to grant a licence. But none of the evidence before me suggests that any constitutional rights of the Applicants to fish were in issue. Mr. McCarthy lodged his application in accordance with correct procedure. The proper notice inviting objections was lodged. The Applicants, as such, did not object though some of them are members of the co-operative which did object. The objections which were lodged appear to have been duly considered. Under the legislation, there is then a procedure for an appeal to an Arbitrator. Mr. McCarthy was at all times happy to submit to all these correct procedures. He was granted a licence and then spent a very considerable sum of money investing in the aquaculture project. The Applicants would have been well aware of this likely expenditure and indeed, as we know from the earlier injunction proceedings, some of the Applicants at least were fully aware of some aquaculture activities. In those circumstances, it was absolutely vital that any judicial review application be brought as promptly as possible and it would have been wrong even to wait for the six month period. Under the rule, the application has to be brought promptly and even if it had been brought within the six month period, it might have been brought too late if it was not considered to have been brought promptly. As it is, the application was brought outside the maximum specified period and I can find no good reasons for extending the time. Strictly speaking of course, under Order 84, r. 21, it is the application for leave which has to be brought promptly. An argument might be made that once Kelly J. granted leave, it must be assumed that he extended the time. It must be pointed out that there is no express extension of time included in the Order of Kelly J. but irrespective of whether there was or was not or whether some implication of extension could be raised, it has always been understood to be the position that a respondent may raise a time issue because otherwise it would effectively mean that the time issue would be dealt with finally at an ex parte application in which the Respondents would have no hearing. That could not be a fair procedure and I am quite satisfied that the Respondents are entitled to raise the time point even if it is for renewed consideration and I am entitled to refuse judicial review on the basis that the application was not brought sufficiently promptly. For the reasons which I have indicated, I am refusing this application on that ground.

6. In case this matter goes further and that it is held that the application ought not to have been refused on the grounds of a delayed application, I think that it would be helpful if I indicated my views on the actual merits of the application. These can be put quite simply. I think that the application is without merit. First of all, to engage in aquaculture, a licence is required under the 1980 Act. A Foreshore Licence under the 1933 Act is also required. These licences are granted only in respect of areas which have already been declared to be designated areas. As I have already pointed out, there is no attack on the constitutionality of any of the relevant legislation. Under the legislative framework, the Minister can grant aquaculture licences where there may be a public right of fishery. At Common Law, there is a public right to fish in the seas unless there is either a several fishery in the relevant area, that is to say, a privately owned fishery or there are statutory provisions preventing such fishing. I must assume that the Minister was prima facie entitled to grant Mr. McCarthy this licence. The only question which could arise is whether in all the circumstances of the case the Minister exercised his power properly and constitutionally. But I can find no evidence that the Minister acted either improperly or unconstitutionally. The Applicants cannot bring judicial review applications grounded on conversations at funerals. One such conversation has been partly relied upon. It is quite true that the officials of the Department had indicated at one stage that Aquaculture Licences would not be granted to individuals but it would have been at all times highly unlikely that Mr. McCarthy, with his knowledge of the area and experience, would have made an application for an Aquaculture Licence in a climate where there was a clear policy that no such application could be granted. If the Applicants had some objection to Mr. McCarthy being granted a licence, the procedure was there for them to object. The Co-Op did object but the Applicants, as such, did not object. I do not think that any estoppel can arise against the Department because of these informal conversations. For all the Applicants knew, Mr. McCarthy might have had very good legal advice to the effect that the Department was not entitled to refuse a person merely because he was an individual. They had no reason to believe that Mr. McCarthy might not convince the Department of the correctness of his legal advice. The Applicants, therefore, could not shelter behind conversations coming from officials of the Department and particularly chance conversations at funerals. If they took the view that, as a matter of law, Mr. McCarthy was not entitled to a licence, they should have lodged the objection. As I have already indicated, under the Act, there was an appeal procedure involving an Arbitrator. Furthermore, every application has to be fully sifted by a body of experts before the Minister comes to consider it.

7. The argument contained in the statement of grounds and strongly pursued by Mr. Gageby that the granting by the Minister of the licence to Mr. McCarthy without considering the application of the Applicants already lodged was an improper exercise of his powers appeared at first sight to be attractive and at the hearing I was, to some extent, impressed by it but on reflection I think that the Department's chronological policy, of which they make no secret, is both reasonable and unobjectionable. It would be a different matter if the statutory framework provided for some kind of tendering process and the Minister had to adjudicate on the merits of different applications. But I do not think that the Minister has any role in considering the respective merits of different applications. He simply has to consider the application which is before him and if the Applicant is a suitable person to be granted the licence and the area is a suitable area he ought to grant it. I do not think it would have been intended by the Oireachtas that if, for instance, there were six or seven applications all lodged that all would have to be considered by the expert body and advices thereon given to the Minister before the Minister could consider any one of them. I think that the correct approach is to consider each application as it comes in and if the first application proves acceptable, then, of course, that may necessarily prejudice the second application but that is not improper or illegal.

8. Even if I had been prepared to extend the time, therefore, I would still have held that the Applicants were not entitled to succeed. But may I add that even if, for instance, the chronological point commended itself to me, which it does not, I would have to very seriously consider whether, as a matter of discretion, I would grant an Order of Certiorari and I am doubtful that I would, having regard to the gross hardship which would be caused to Mr. McCarthy who is in no way to blame for anything that happened. On every ground, therefore, the application must be refused.