Title: Cavankee Fishing Co. Ltd. & Ors v. Minister for Communications, Marine and Natural Resources & Ors [2004] IEHC 43 (4 March 2004)
Author: Micheal O Dowd
Last saved by: Law1
Company: UCC

THE HIGH COURT
(COMMERCIAL)

2004/No 1543p

BETWEEN

CAVANKEE FISHING COMPANY LIMITED, BRENDELEN LIMITED, ATLANTEAN LIMITED ANTARCTIC FISHING COMPANY LIMITED, EILEEN OGLESBY AND AINE FISHING COMPANY LIMITED
PLAINTIFFS
AND
THE MINISTER FOR COMMUNICATION, MARINE AND NATURAL RESOURCES, THE REGISTRAR GENERAL OF FISHING BOATS IRELAND AND THE ATTORNEY GENERAL
DEFENDENTS

JUDGMENT of Mr. Justice Kelly delivered the 4^th day of March, 2004. 

Background 
All of the plaintiffs are the owners of fishing vessels and are members of the Killybegs Fishermen’s Organisation. The vessels in question have fished within the Refrigerated Sea Water (RSW) Pelagic Segment of Ireland’s fleet.  They have done so with licences issued under the Fisheries (Consolidation) Act 1959 as amended from time to time.  
	The licensing of sea fishing boats is now governed by s. 222B of the Fisheries (Consolidation) Act, 1959 as inserted by s. 4 of the Fisheries (Amendment) Act, 2003.  Under the 2003 Act the second defendant is given jurisdiction in the first instance to grant a sea fishing boat licence.
	 On the 20^th December, 2002 the Council of the European Communities adopted a Regulation No. 2371/2002 on the conservation and sustainable exploitation of fishery resources under the Common Fisheries Policy.  Amongst other things that regulation provided for the transfer to Member States of responsibility for the details of the adjustment of fishing capacity of their respective fleets. The Commission subsequently prepared and published implementing rules in respect of that Council Regulation.  These rules were subsequently contained in Commission Regulation 1438/2003 laying down implementing rules on the Community Fleet Policy as defined in chapter 3 of Council Regulation 2371/2002.  
	The plaintiffs contend that these regulations give greater responsibility and flexibility to Member States to achieve overall EU objectives within its own fleet.  This it is said marks a new departure in the Common Fisheries Policy as it provides for the transfer to member states of responsibility for the details of the adjustment of fishing capacity of their respective fleets. 
	The Fisheries Amendment Act, 2003 provides at s. 3 that the Licensing Authority in relation to sea fishing boats shall be the second named defendant.  That defendant is to be independent in the exercise of his functions subject to inter alia such policy directives in relation to sea fishing boat licensing as the Minister may give in writing from time to time.  Such a policy directive may require certain prohibitions or conditions to be imposed in relation to sea fishing for the purposes of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species.
	Section 4 of the 2003 Act substitutes for s. 222B of the 1959 Act the new s. 222B.  Subsection 3(d) of the new s. 222B provides inter alia that in deciding on the grant or refusal of a sea fishing boat licence or the attachment of conditions to licences, the  Licensing Authority may take account of economic and social benefits which the operation of a boat would be likely to contribute to the coastal communities and regions which the quotas within the meaning of Regulation 2371/2002 are designed to benefit including the protection, conservation and sustainable exploitation of living marine aquatic species and requirements of the Common Fisheries Policy of the European Community.
  	In accordance with s. 3 of the Act of 2003 the Minister has given a written Policy Directive to the second named defendant.  The plaintiffs question the legality of one part of that Directive set forth at paragraph H thereof.  In a few moments I will consider the case which they make in that regard but before doing so I ought to set out the overall objectives of the policy directive.  
As stated by the Minister, the key objective of the new licensing policy is to create a new, open and transparent policy which will facilitate the achievement of a sustainable and viable livelihood for fishermen operating in the various types of fisheries taking account of available fishing opportunities and fishing resources.  The policy must also deliver the required fleet capacity targets set down in EU Fleet Policy.  In addition, the introduction of a transparent and settled licensing policy will give stability and certainty to the industry.  The policy proposals being proposed take account of the current situation and the policies and structures inter alia for the fleet and fisheries management that have evolved since 1990 and seek to achieve these objectives.
Reasons are given for this new policy and they include the Government Programme, the Council Regulation 2371/2002 and a comprehensive review of the situation of the Irish fishing fleet and related capacity.

Paragraph H  
	The policy directive 2/2003 from the Minister, dated the 17^th November, 2003 contains fifteen paragraphs lettered from A to O.  
Paragraph H reads as follows

“Replacement capacity which has not been provided by vessel owners in the RSW Pelagic Segment of the fleet in respect of works claimed as “safety tonnage” (in respect of certain vessels licensed during the Fourth EU Multi-Annual Guidance Programme [MGP IV]) will be required to be provided by means of the removal of “on” or “off” register polyvalent or beam trawl capacity on the basis of a 2.2 polyvalent or beam trawl GT’s + 9kw’s for one outstanding RSW Pelagic Segment GT.  This capacity must be removed from the fleet on a phased basis – at least 30% by the 31^st January 2004, at least 70% by 30^th April 2004, and 100% by the 30^th September 2004.  Fishing licenses may only be issued where these phased requirements are met.  Licenses will not be granted for vessels replacing vessels with outstanding “safety tonnage” capacity until such time as all of the outstanding replacement capacity has been provided in the manner set out above.  Vessel owners with outstanding “safety tonnage” capacity  in respect of their existing vessels and who do not propose to introduce a replacement vessel may sell or otherwise transfer the capacity of their vessel to a third party on the basis that the outstanding “safety tonnage” debt is also transferred.  The new vessel owner will only be licensed subject, inter alia, to having provided full replacement capacity, including outstanding “safety tonnage”, in the manner set out above.  The sole situation in which polyvalent or beam trawl replacement capacity may be used towards the licensing of a vessel in the RSW Pelagic Segment is where the vessel concerned is currently licensed and has outstanding replacement capacity, and only in respect of the amount of that outstanding replacement capacity.  Any capacity awarded to the vessel owners following a successful EU court challenge in respect of the existing outstanding “safety tonnage” will be credited to the owners in the form of RSW Pelagic Segment tonnage.  The use of any such capacity awarded is subject to section E above”.  

The Plaintiffs’ Contention 
	The plaintiffs contend that paragraph H of the Ministerial Policy Directive is unlawful.  The essence of their complaint is that while replacement capacity has been a feature of the Common Fisheries Policy of the European Community in recent years they object to the requirement that they have to decommission dormant off register polyvalent capacity at a ratio of 1:2.2 GT plus 9kw in an entirely different segment of the Irish fleet.  The financial consequences of being required so to do are spelled out in the affidavits and need not be rehearsed for the purposes of this ruling. 
The plaintiffs make five different contentions concerning the terms of 
paragraph H.  They say that it is unlawful because:- 
(a) 	it is penal, disproportionate and an interference with the plaintiffs property rights or legitimate expectations or is discriminatory 
(b) 	it is ultra vires s. 3 of the Fisheries Amendment Act, 2003
(c) 	it amounts a levy or charge which can only be enforced or applied by primary legislation 
(d) 	it constitutes a device to circumvent and subvert the protections and limitations provided by the European Communities Act, 1972 as amended 
and
(e) 	it cannot be used to create a similar offence or amend in a significant manner offences which are provided for under the Fisheries Act, 1959 to 2003. 
	The plaintiffs contend that they have shown a serious issue to be tried in respect of these contentions, that damages would not prove an adequate remedy for them and that the balance of convenience lies in favour of the grant rather than the refusal of the injunction.  
The Injunction
	The injunction which is sought is as follows 
“an injunction restraining the defendants, their servants or agents or anyone having knowledge of the said order from applying s. H of Policy Directive 2/2003 to the plaintiffs’ vessels  until the outcome of these proceedings”.
Although sought on behalf of all of the plaintiffs on the present state of facts it is an injunction which, in practical terms, if it be of benefit at all, will benefit the fifth and sixth named plaintiffs which own the Neptune and the Aine which have not yet been licensed and are tied up.  Indeed they cannot be licensed under the present regime unless they comply with the requirements of paragraph H. 
Serious Issue
Strong arguments were made by the defendants to the effect that the plaintiffs do not have any serious issue for trial.  If the defendants be correct in that then the plaintiffs fall at the first hurdle and no question of an injunction can arise.  Tempted as I am to adjudicate on that issue I do not think that it is necessary to do so and it is probably preferable that I should not express my views on the topic.  
For the purposes of this judgment therefore I am prepared to assume though without deciding that the plaintiffs do in fact have a serious issue for trial in relation to some at least of the arguments which they make in condemnation of paragraph H.
Damages
I turn therefore to consider whether or not damages would be an adequate remedy for the plaintiffs in the event of them succeeding at trial but without an interlocutory injunction being granted.  The plaintiffs’ case is that they will be entitled to damages which they have already suffered and will continue to suffer because of the imposition of the Ministerial Policy upon them.  I have to approach this application on the basis that that is the case which the plaintiffs make and will make successfully at trial.  I am quite satisfied having regard to the affidavit evidence that the damages suffered by the plaintiffs here can be quantified and that the loss which they allegedly suffer is quite clearly a commercial loss.  There is no doubt about the capacity of the defendants to pay any damages awarded against them.  Such being so, I am quite satisfied that damages would be an adequate remedy.  I am not convinced that it would be difficult to assess such damages but even if it were I have to bear in mind what was said by Finlay C.J in the Curust Financial Services [1994]1 I.R. 450 case that difficulty, as distinct from complete impossibility, in the assessment of damages should not be a ground for characterising the awarding of damages as an inadequate remedy.  
I am therefore quite satisfied that damages will be an adequate remedy for the plaintiffs in the event of them succeeding at trial.  
It is of course true that the defendants deny that there could be any liability on their part to pay damages even if the plaintiffs are successful in striking down paragraph H.  They contend that there is no scope for any such damages in circumstances where the defendants have acted at all times bona fide and reasonably.  But it seems to me that I have to approach the plaintiffs’ application on the basis which the plaintiffs contend for, namely that damages will be available notwithstanding the plea of the defendants in that regard.  If damages are available they will be an adequate remedy in my view.  Having so concluded no question of an injunction can arise. 
Lest however I am wrong in the conclusion which I have formed, either as to the adequacy of damages or as to the approach which I should adopt in relation to the plaintiffs who assert that damages will be available as a remedy despite the defendants plea I turn now to the question of balance of convenience.
Balance of Convenience
  I have already set forth the form of relief which is sought.  It is important to bear in mind that the plaintiffs are not seeking (nor indeed could they seek) a mandatory injunction requiring the second named defendant to register their vessels.  What they seek to do is to suspend for the purposes of an application for vessel registration, paragraph H of the policy.  If therefore they were to present themselves before the second named defendant with the benefit of such an injunction, he would be obliged to put into effect the parts of the policy which are not suspended.  In that regard paragraph C requires that the one to one replacement capacity requirement in terms of GT and kW will remain in place other than in the limited cases specified thereunder.  Paragraph H is one of the limited cases specified.  If that is suspended then the remainder of the policy remains extant.  In these circumstances I cannot see how there is any benefit to be obtained by the plaintiffs from the order which they seek.  
	I also bear in mind that apart from one other owner who is not contesting the provisions of paragraph H, the plaintiffs were alone in being granted temporary licences for their vessels without having to surrender equivalent capacity.  The reason for that was that they claimed that in contrast to the other segments of the fleet there was no capacity readily available in the RSW Pelagic Segment.  It seems to me that the plaintiffs were alive to this from in or about 1997 at which stage they made their decisions to build new larger vessels or to extend their existing vessels requiring additional capacity.  They seem to have done so in the hope that the additional tonnage would be treated as safety tonnage so that the problem which they now face is not a new one, still less one caused by paragraph H of the Policy Directive, I am of the view that I am entitled to take that into consideration on the question of balance of convenience.  It also seems to me that the plaintiffs here are being asked to extinguish tonnage in the same way as every other applicant for a fishing licence.  True, they are being asked to extinguish tonnage from a different sector of the fleet but the cost appears to me to be comparable to that applicable as if they were required to extinguish tonnage from their own sector.  In addition, I am of opinion that there is a strong likelihood that if the plaintiffs succeed in their case before the European Court, or this case, the net effect is that they would have purchased tonnage in the RSW Pelagic Sector of the fleet surplus to their needs.  It is clear that this is a valuable tradable commodity and they will be able to dispose of it thereby minimising if not eradicating any financial loss which they may suffer if the injunction is refused. 
	I also bear in mind that what is sought to be done here is to suspend a provision of a policy which is specifically provided for by the 2003 Act.  That policy has been formulated by the Minister and laid before both Houses of the National Parliament.  I am not saying that the court would be powerless to intervene to prevent the implementation of such a policy in a suitable case but I am of the view that that jurisdiction is one which has to be exercised sparingly and only in a very clear case.  It would have the effect in this case of requiring the second named defendant to effectively ignore such a policy in circumstances where it has not been condemned.  The observations of Murphy J. in Riordan v. Ireland (No. 6) 2002 41.R 404 are apposite.  There he said “this court would find it difficult to imagine any circumstances in which a public official would be directed by means of interlocutory mandatory order to carry out an act which would be in direct breach of the express terms of legislative provisions unless and until those provisions have been condemned by a court of competent jurisdiction”.  Whereas the injunction sought here is not mandatory, the effect of it would be to require the second named defendant to consider an application for registration absent the provisions of paragraph H before the court had an opportunity of considering whether that paragraph should be condemned or not.
	I am furthermore of the view that the grant of the injunction sought would have the effect of placing the State in breach of EU legal obligations and subject to censure and fines as described in the affidavit of Dr. Beamish.   
	Given these considerations I am quite satisfied that despite the losses allegedly being suffered and the inconvenience being sustained be the plaintiffs the balance of convenience lies against rather than in favour of an injunction being granted.  The injunction is refused.