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Cite as: [2019] IEHC 677
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 677
[2019 No. 639 J.R.]
BETWEEN
IRISH COASTAL ENVIRONMENT GROUP COASTWATCH CLG
APPLICANT
AND
THE SEA FISHERIES PROTECTION AUTHORITY,
THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE,
IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
SOUTH EAST REGIONAL INSHORE FISHERIES FORUM
NOTICE PARTY
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of September,
2019
1. This application concerns the legality of dredging for razor clams (Ensis siliqua) in
Waterford estuary. What is before the court is a leave application alongside an injunction
application on notice, with a complex legal and factual background.
Legislative background to the decisions at issue
2. Regulation 3 of the Razor Clam (Conservation of Stocks) Regulations 2015 (S.I. No. 206
of 2015) provides that: “The master or person in charge of a sea-fishing boat fishing for
razor clams within the internal waters or territorial seas shall: (1) not fish for or attempt
to fish for razor clams outside of a classified production area; (2) not fish for or attempt
to fish for razor clams in more than one class of classified production area on any one
day.”
3. Regulation 2 of the regulations provides inter alia that: “‘classified production area’ means
an area classified by the Authority in accordance with Chapter II, Annex II of Regulation
(EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004” and
that “‘Authority’ means the Sea-Fisheries Protection Authority.”
4. The European legislation referred to, regulation EC No 854/2004 of the European
Parliament and of the Council of 29 April 2004 laying down specific rules for the
organisation of official controls on products of animal origin intended for human
consumption, provides in art. 6 that: “Member States shall ensure that the production
and placing on the market of live bivalve molluscs, live echinoderms, live tunicates and
live marine gastropods undergo official controls as described in Annex II.” Production in
this context obviously means harvesting, or fishing.
5. Annex II paras. A 1 – 3 onwards provide that the competent authorities shall specify the
production areas and then classify them on the basis of the “level of faecal contamination”
(para. A 2) and the amount of E. coli detected in samples (see para. A 3 onwards).
6. The “competent authority” for the purposes of the EU regulation is the first-named
respondent. This is clear from the European Communities (Hygiene of Fishery Products
and Fish Feed) Regulations 2006 (S.I. No. 335 of 2006). Regulation 3 provides that the
Minister is to be the competent authority for the purposes, inter alia, of regulation
854/2004, but reg. 18 transfers that function to the Sea-Fisheries Protection Authority on
the establishment day under s. 40 of the Sea-Fisheries and Maritime Jurisdiction Act
2006.
Facts as alleged by the applicant
7. The following is an outline of the facts as alleged by the applicant for the purposes of the
leave application. While, very helpfully and at the court’s request, some limited input has
been made to these facts from the respondents, the following statement of facts should
not be taken as necessarily being accepted by them or indeed by the court, as that must
await consideration of the respondents’ affidavits in due course.
8. On 21st August, 2009 the Marine Institute produced a document entitled “Interim
Assessment (Regulation 31) of the Impact of Clam Fishing on the Conservation Status of
Waterford Estuary SAC”. That was in the context of a proposal for fishing for surf clam,
primarily by box dredging. Regulation 31 refers to the European Communities (Natural
Habitats) Regulations 1997 (S.I. No. 94 of 1997), implementing the Habitats Directive
92/43/EEC, which required an appropriate assessment for the carrying out of certain
works. The 1997 regulations have now been replaced by the European Communities
(Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011). The applicant
contends that it is notable that this interim assessment did indicate that further
assessments of impacts on the European site, which is part of the area concerned here,
were required; and by analogy the applicant argues that similar points could be made in
the present instance in relation to razor clams. The applicant also makes the point that
the surf clam dredging considered in the 2009 assessment was apparently not within the
special area of conservation (SAC) at Waterford estuary, whereas here part of the
dredging operation is within the SAC and the remaining part is adjacent to it.
9. In April, 2011, what was described as version 1 of “Conservation Objectives - River
Barrow and River Nore SAC” was published, and a further version was published on 19th
July, 2011.
10. In July, 2015, the Marine Institute produced a draft art. 6.2 (Habitats Directive) risk
assessment entitled “The Effects of Fisheries on Qualifying Interests in Special Areas of
Conservation in Irish Coastal Waters, Version 2.0”. I am told that the purpose of that
document was to comply with the ongoing obligations under art. 6(2) of the Habitats
Directive and the document was not produced in the context of a specific development
consent. That document states at para. 13.1.5.1 that “Razor clam beds may occur in …,
River Barrow and Nore, …SA[C]. No surveys to identify the extent of these beds have
been undertaken. No fisheries for razor clams occur in any of these sites and these areas
are not classified for the production of razor clams.” It also states that razor clam fishing
poses a high risk to Zostera (sea grasses) and the sedimentary communities “where the
fishery footprint is substantial”. The point made by the applicant in relation to the activity
we are dealing with here is that dredging is not just a matter of removing individual
shellfish. It is, the applicant submits, a process of disturbing the whole seabed.
11. The risk assessment did envisage razor clam fishing to a limited extent by saying that
“any development of razor clam fishing or cockle fishing in sedimentary communities in
SACs in the Reen Pt to Carnsore Pt region should be balanced with the capacity of these
communities to recover from impacts caused by the fishery”. However, that appears to
be something of a general statement covering a large geographical area. It is not
altogether clear from the face of the document whether it is a draft or an adopted
document, and if an adopted one, exactly when it was adopted.
12. On 9th February, 2016 the River Barrow and River Nore SAC was apparently designated.
That includes much of Waterford estuary, and the boundary line of the SAC seems to
include some but not all of the razor clam distribution in Harrylock Bay.
13. In 2016 the Marine Institute conducted an “Assessment of the Impacts of Hydraulic
Dredging on Sedimentary Habitats in the Irish Sea”, which stated that “Preliminary
findings, from multivariate statistical analysis of the seafloor faunal data, indicated
significant differences in faunal communities in areas which had received <5hrs of fishing
compared to areas which had received >5hrs of fishing in the previous 6 months. The
preliminary findings of the study indicate that seafloor faunal communities are affected by
fishing for razor clams and that this is related to the intensity of fishing effort these areas
have received in previous months. The ecological significance of the changes, especially
with respect to conservation objectives for sedimentary habitats and bird species using
these habitats, needs to be assessed.” Reliance was placed on this document by the
applicant on the basis that the 2015 risk assessment cannot be regarded as the final word
on the question of risk.
14. On 16th March, 2018, a minute was prepared by Mr. Brian Nolan, Sea-Fisheries protection
officer, to Mr. Michael O’Mahony, authority member, proposing a decision to classify the
area as a fishing ground. This was not exhibited formally but was handed up to the court,
although no doubt the authority will exhibit it in due course. This document is headed
“Preliminary Classification of Harrylock Bay Razor Clam Fishery”. The document in itself
purports only to be a proposal for a decision and it remains to be seen precisely what
legal form any subsequent decision in fact took. The minute went on to say “it is
suggested that transmission of the decision will be via the SFPA website on the classified
shellfish production areas page and should also be communicated to the MSSC members”.
MSSC refers to the Mollusc and Sea Fish Safety Committee, which is a forum of various
interests that meets on a quarterly basis. The minute does not appear to define the areas
concerned as required by Annex II of the regulation. There is a map included in it but
that in itself is not a definition of an area, it is simply headed “razor clam distribution
within Harrylock Bay protection area”. Annex II, art. A 1 requires the competent
authority to “fix the location and boundaries of production and relaying areas that it
classifies”. This document does not appear to have been published on the authority’s
website.
15. In December, 2018, the Marine Institute published a document “Protocols and Indicators
for Opening a New Fishery for Bivalve Molluscs”, Version 1.0. Page 3 notes the need for
fishery management plans incorporating environmental objectives, particularly regarding
risks within European sites. Page 6 sets out at para. 3J that: “when sampling for
classification has been completed and the management plan has been published the SFPA
will notify the NIFF [National Inshore Fisheries Forum] BWG [Bivalve Working Group] IMG
[Inshore Management Group] and the laboratories responsible for biotoxin and
microbiological sampling, that the site has been officially classified for the relevant
species”.
16. On 25th July, 2019, a fishery management plan for Waterford estuary razor clams was
drafted by the Marine Institute and the South-East Razor Clam Association. That stated
that the Waterford estuary had been classified for the production of razor clams. Going
back to the question about the lack of definition of the boundaries, one issue raised by
the applicant was that the map of distribution of razor clams in this document is different
to that in the earlier preliminary decision. The applicant wrote to Bord Iascaigh Mhara
(BIM) stating that it had been made aware of the draft plan, but saying “At no notice we
found no appropriate assessment of this planned activity online and when we asked the
SFPA yesterday they were no aware of any. It is our belief that this dredging would be
illegal without full compliance with EU Article 6.3 [of the Habitats Directive]”. The
applicant went on to say “we also think that planning such a fishery without full public
information and participation in the decision-making process is of high concern”.
17. This email described the plan as a draft, and again it is not altogether clear on its face
what its precise status is. BIM replied to the applicant on 26th August, 2019 stating “we
included the prospect of a razor fishery in Waterford in the 2015 risk assessment. We
categorised it as a low to moderate risk to fine sand habitats”. Attached was material
from Dr. Oliver Tully of the Marine Institute, noting that the risk assessment had stated
that “any development of razor clam fishing or cockle fishing in sedimentary communities
in SACs in the Reen Pt to Carnsore Pt region should be balanced with the capacity of
these communities to recover from impacts caused by the fishery. This risk is mitigated
by the limits (TAC) set out in the management plan which limits outtakes to 10 to 15% of
biomass annually”. Part of the applicant’s complaint now is that in fact not everything
was looked at in 2015. The authority has produced a code of practice for the monitoring
of biotoxins, which apparently provides that if someone wants to fish in a classified area
they have to submit samples which will then be analysed. If the samples pass muster the
site is classified as open.
18. On 26th August, 2019, the authority website was amended to include a statement that
Waterford harbour was “open” for Ensis siliqua until 30th September, 2019, although,
somewhat contradictorily, it also allowed for further samples to be submitted until 14th
October, 2019. Individual areas are only open for limited periods of time because there
has to be ongoing monitoring. The nature of the website is a rolling live website rather
than the publication of specific bulletins, so there was no specific notification of this
decision, and interested parties would have to check the website on an ongoing basis to
find out if there was going to be fishing in any given area.
Parties
19. When the ex parte application was originally made on 11th September, 2019, I directed
that the injunction application should be on notice to the respondents and the proposed
notice party. When the matter returned to court on 18th September, 2019, it emerged
that the proposed notice party is not in fact a legal entity, so I will strike out the notice
party without objection.
20. I have received helpful submissions from Mr. James Devlin S.C. (with Ms. Margaret
Heavey B.L.) for the applicant. The respondents also appeared to assist the court and to
make limited submissions on the question of the injunction and I received valuable
assistance from Mr. Donnchadh McCarthy B.L. for the authority and from Mr. Fintan
Valentine B.L. for the State respondents.
Extension of time
21. The apparent 2018 decision is not challenged in the statement of grounds as filed,
although given the new information made available to him since that point, Mr. Devlin
now applies for an amendment to include that decision. Obviously, on the face of things,
the applicant is out of time to challenge that 2018 decision. What is now alleged is that
the decision wasn’t put on the authority’s website, so it is contended that it cannot be
said that it was notified to the applicant, or that the applicant was or should have been
aware of it, even on the assumption that website publication is adequate promulgation.
Subject to the applicant properly deposing to that particular matter, one can see a strong
argument that time should be extended. One cannot have a situation where a party
cannot challenge an unpublished decision that he or she didn’t find out about until after
the limitation period for judicial review. Having said that, the applicant needs to get its
papers in order on this point, firstly by seeking to add certiorari of the (alleged) 2018
decision to relief 1, secondly, by seeking to add a ground as to the reason for the
extension of time and thirdly, by explaining the application for an extension of time on
affidavit.
Leave application
22. I now turn to the question of leave. It is clear from the previous paragraph and from
what will follow that some rewording of the statement of grounds is required. As
presented to the court, the statement runs to an intimidating 43 separate grounds, and a
certain amount of rationalisation is going to be required.
Reliefs
23. I will deal first with the reliefs. The reliefs can be grouped under a number of sub-
headings, as follows.
First set of reliefs - certiorari
24. It only emerged after the statement of grounds was filed that the decision to classify the
area was apparently made in 2018, and apparently not published, and that a second
decision in 2019 was one to declare the fishery open rather than to classify the area. As
noted above, Mr. Devlin applied to amend relief 1 to include certiorari of the apparent
decision of 2018, and that will require inclusion in a draft amended statement of grounds.
Relief 1 also refers to the 2019 decision, declaring the fishery open, as having been made
on or about 30th August, 2019. That should be apparently referable to a decision of on or
about 26th August, 2019. So again, some rewording is required in that context. I would
suggest that for simplicity both certiorari claims should be included in relief 1, if
necessary as sub-paragraphs.
Second set of reliefs – declarations
25. Reliefs 2 to 4 seek declarations relating to various alleged illegalities in the process and
again these need rewording to the extent that they refer to decisions which authorise
fishing as opposed to what appears to be the two separate decisions here, one in 2018
classifying the area and one in 2019 declaring the fishery open. I would also suggest for
simplicity that the declarations be amalgamated as sub-paragraphs of relief 2.
Third set of reliefs - declaration regarding transposition
26. Relief 5 seeks a declaration that the directive was inadequately transposed. That
warrants a distinct relief separately from declarations as to illegality in the process. In a
compacted and amalgamated amended statement of grounds that would become relief 3.
Remaining reliefs
27. The remaining reliefs (which would need to be consequently renumbered) seek a stay, an
extension of time, reliefs regarding costs and further and other reliefs.
Grounds
28. Some reconfiguration of the grounds is required, although I do not particularly blame the
applicant in this regard. The real problem with over-lengthy grounds can be traced to the
Rules of the Superior Courts (Judicial Review) 2011 (S.I. No. 691 of 2011), which
required a full statement of facts in the statement of grounds but did not specifically
provide for a separate heading for those facts in the form of the statement. That has led
to an unhelpful diversity of approaches being adopted. Some practitioners take the
approach of a separate heading and a separate numbering for facts, which is by far the
better approach, then restarting at ground 1 under a new heading for “Legal Grounds”.
Others take the course of simply continuing the numbering of facts paragraphs into the
legal grounds paragraphs, resulting in an excessive number of grounds giving the
impression of an implausible number of alleged infirmities with decisions challenged. I
would certainly encourage practitioners to take the former course and to provide the legal
grounds with a separate heading and restart the numbering at a ground 1 rather than
continuing the numbering in the section on facts, and certainly that is what the applicant
should do here when producing the draft amended statement of grounds.
29. By way of postscript on this point, it may be helpful if I draw attention to a number of
cases where comment has been made regarding the use of an excessive number of
grounds. The leading authority is Babington v. Minister for Justice, Equality and Law
Reform [2012] IESC 65 (Unreported, Supreme Court, 18th December, 2012) but see also
B.W. v. Refugee Appeals Tribunal and Others (No. 1) [2015] IEHC 725 [2015] 11 JIC
1703 (Unreported, High Court, 27th November, 2015), para. 21, RPS Consulting
Engineers Ltd. v. Kildare County Council [2016] IEHC 113 [2016] 2 JIC 1518 [2017] 3
JIC 2921 (Unreported, High Court, 29th July, 2016), para. 23, O'Mahony v. An Bord
Pleanála [2015] IEHC 757 [2015] 11 JIC 2706 (Unreported, High Court, 27th November,
2015), paras. 51-52, North East Pylon Pressure Campaign Ltd v. An Bord Pleanála
[2016] IEHC 300 [2016] 5 JIC 1215 (Unreported, High Court, 12th May, 2016), paras. 40-41,
Dennigan & Company v. Rights Commissioner Jim O'Connell [2016] IEHC 665 [2016] 4
JIC 2508 (Unreported, High Court, 25th April, 2016), para. 33, McGinley v. Minister for
Justice [2017] IEHC 549 (Unreported, High Court, 28th September, 2017), para. 8. Also
worth looking at are the comments, cited in Fordham’s Judicial Review (Oxford, 2012) at
para. 21.1.2, of Laws J. in R. v Local Government Commission for England ex p. North
Yorkshire County Council (Unreported, High Court (Queen's Bench Division), 11th March,
1994); and of Keene J. in R. v. London Docklands Development Corporation ex p. Frost
(1997) 73 P. & C.R. 199, 204: ‘The approach of “never mind the quality, feel the width”
has no application in these proceedings’. Clark J., in P.B.N. (DRC) v. Minister for Justice,
Equality and Law Reform [2013] IEHC 435 (Unreported, High Court, 16th September,
2013), noted at para. 55 that “it is "entirely counterproductive and unnecessary" to
include in one's grounds as many different, varying and wearying reformulations of the
same point as can be conceived. As [MacMenamin J.] pointed out [in Babington], a good
point does not gain force by repetition and a point actually reaching the requisite standard
for a grant of leave can be lost in a fog of reformulations.” I also discussed this subject in
O.A.B. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 142 at para. 12, noting
that the position adopted there seemed to be on the basis of throwing as much as you
can on the wall and see what will stick, reminiscent of the forensic hoopla referred to by
(Unreported, High Court, 1st February, 2011). Wilson v. Security Associates Inc. (No. 12
EDA 2016, Superior Court of Pennsylvania, 18th July, 2017) was another case in which 22
arguments were advanced, inspiring Platt J. per curiam at n. 20 to cite “the well-known
maxim that an appellate brief containing ten or twelve points raises a presumption that
none of them have any merit” (United States v. Hart, 693 F.2d 286 (3d Cir. 1982), per
Aldisert J.). One does not even have to go that far in order to take the view that
“Scattershot argument is ineffective” (Scalia J. and Bryan A. Garner, Making Your Case:
The Art of Persuading Judges (St. Paul, 2008) p. 220): see per O’Donnell J. in Y.Y. v.
Minister for Justice and Equality [2017] IESCDET 38 at para. 10 and Y.Y. v. Minister for
Justice and Equality [2017] IESC 61 [2018] 1 ILRM 109 paras. 28, 59, 79, 82. W.B.
Yeats made the point a century ago: ‘Hammer your thoughts into unity’ was the phrase
he used in “If I Were Four and Twenty”, Explorations (London, 1960), Orig. in Irish
Statesman (1919).
First set of issues - absence of an appropriate assessment contrary to the Habitats
Directive
30. Ground 25 alleges that the authorisation of the fishery requires a screening assessment
or an appropriate assessment under art. 6(3) of the Habitats Directive. Ground 26 makes
the same point in terms of domestic legislation. Ground 29 seems to be a duplication of
ground 25. Ground 31 looks at the lack of an appropriate assessment from the point of
view of an obligation to remediate any historic decision that has an impact on a European
site. Again, it needs rewording in the sense that it refers to “a decision authorising fishing
for razor clams” as opposed to the two decisions made here in 2018 and 2019. Ground
36, insofar as it relates to the authority is a general complaint regarding the Habitats
Directive and does not particularly add anything. So all of these grounds need to be
amalgamated into a new ground 1, relating to the absence of an appropriate assessment.
Second set of issues - inadequacy of steps actually taken by both respondents in
terms of compliance with the Habitats Directive
31. Ground 27 contends that the 2009 management plan is not an appropriate assessment
screening. Ground 28 makes the complaint of a lack of reasons in public consultation and
the thrust of the argument appears to be that this is non-compliant with the Habitats
Directive. Ground 35 alleges that if the Minister exercised functions in relation to
appropriate assessment he did not notify the public and ground 37 alleges that insofar as
reliance is placed on the 2015 risk assessment there was a failure to take into account all
relevant considerations and only relevant considerations. Again, all of these grounds
need to be amalgamated, if necessary under sub-paragraphs, under a new ground 2,
which deals with alleged inadequacy of the steps actually taken as amounting to
compliance with the Habitats Directive.
Third issue - the absence of an appropriate assessment is in breach of the
management plan
32. Ground 30 sets out this separate and discrete issue, which can become ground 3 in an
amended statement of grounds.
Fourth set of issues – the Minister’s failure to exercise his statutory powers
33. The essential complaint made in ground 32 (although currently not actually particularised)
is that the Minister did not exercise his power to require submission of a plan under reg. 3
of the European Union (Birds and Natural Habitats) (Sea-fisheries) Regulations 2013 and
the consequential provisions of those regulations. The other provision relied on is reg.
9(1)(c). Paragraphs (a) and (b) are consequential on reg. 3 but para. (c) is a separate
power to issue a Fisheries Natura Declaration. Reliance is also placed on alleged breach
of the corresponding provisions of the 2011 regulations. The specific provisions relied on
should be stated expressly in the grounds. Ground 33 is linked in the sense it alleges that
the Minister acted irrationally in requiring an appropriate assessment in other comparable
cases. Ground 34 alleges that he failed to give reasons for not exercising his functions
and ground 36 alleges a general breach of the Habitats Directive, which in the case of the
Minister does not add a whole lot to the more specific grounds.
34. Again all of these complaints regarding the Minister’s alleged failure to exercise his
statutory powers need to be amalgamated into a new ground 4.
Fifth set of grounds - inadequate transposition
35. Grounds 38 to 41 claim inadequate transposition and again need to be amalgamated into
a new ground 5 particularising why the transposition is alleged to be inadequate. Ground
42 is essentially comment on the facts and should be moved to the Facts section of the
statement of grounds.
36. I should perhaps add by way of postscript that certain points that appeared to have arisen
from oral submissions, particularly that there was no final adopted version of the 2018
decision, no individual promulgation of either decision (save on the rolling web page) and
that the geographical area concerned was not properly defined as required by annex II of
the regulation, only seem to arise from generic language in the statement of grounds.
That is an unsatisfactory situation and the applicant needs to clarify if it is pursuing any or
all of these points and, if so, to do so clearly and expressly in a separate and discrete
ground.
Final issue dealt with in grounds - stay
37. Ground 43 deals with the stay and this needs to be renumbered as the final ground in the
amended statement of grounds.
Injunction
38. The injunction was not hotly contested on behalf of the respondents. Mr. McCarthy
suggested there should be a lead-in time for any injunction, say for early next week, to
allow vessels that are in the area to finish their operations. Mr. Valentine was neutral on
and Campus Oil v Minister for Industry (No. 2) [1983] I.R. 88, as explained and
insofar as it relates to EU law. These decisions were recently considered by Simons J. in
Friends of the Irish Environment Ltd. v. Minister for Communications, Climate Action and
Environment [2019] IEHC 555 (Unreported, High Court, 23rd July, 2019), where at para.
55 he noted that “some limited assessment should be made of the strength of the
defence to the proceedings” in the context of an EU law claim. Assessing the present
case in Okunade terms, first of all it is clear that the case is arguable and I am satisfied to
grant leave in principle, subject to seeing and approving a properly amended statement of
grounds in line with the earlier part of this judgment and subject to a final decision on
extension of time in the light of any further affidavit on that issue.
39. Secondly, the greatest risk of injustice would clearly come about if the injunction was
refused, even allowing for giving all appropriate weight to the implementation of the
authority’s decisions. The material damage to the environment that would occur if the
injunction was refused is the dominant reason as to why the balance of justice favours
the grant of an injunction. The fact that some of the fishery is within the SAC and the
rest of it is adjacent to one intensifies that conclusion, but the proximity of an SAC is not
a necessary requirement for an injunction. Damages would not be an adequate remedy
given that we are talking about a risk to the environment.
40. Finally, an assessment of the strengths and weaknesses both of the applicant’s case and
of the defence (insofar as it can be anticipated) does not indicate at this stage that an
injunction should be refused. Obviously this is not a comment on the case ultimately and
is simply an assessment for the purposes of the injunction, as required by the
jurisprudence referred to above.
41. The test for an injunction in is manifestly satisfied here. Allowing continued fishing even
for a few days would simply perpetuate the damage to the environment that is being
challenged in the proceedings. For good measure, the association representing fishing
interests has been on at least informal notice of the proceedings for some days. Thus any
injunction should have effect immediately.
Order
42. For those reasons the order will be as follows:
(i). that the proposed notice party be struck out of the proceedings with no order;
(ii). that the applicant have liberty to prepare a draft amended statement of grounds in
the terms set out in the judgment and to file an affidavit regarding the issue of
extension of time; subject to hearing counsel I would propose to allow one week for
those steps to be taken;
(iii). in principle, I am minded to grant leave subject to firstly, approving the final form
of the amended statement of grounds and secondly, being satisfied as to the
extension of time in relation to the one particular relief to which that issue relates;
(iv). given that, one way or the other, most if not all of the reliefs sought are going to be
the subject of a grant of leave, an injunction restraining implementation of the
decision of the authority to open the fishery should be granted pending the final
determination of the action, with immediate effect;
(v). because of the unusual complexity of the matter, the proceedings would benefit
from some case management and I will hear counsel on that, and
(vi). as indicated above, in principle I would propose to adjourn the matter for one week
to allow time for the draft amended statement of grounds and an affidavit
regarding extension of time, although the amended statement of grounds should
not be filed unless and until approved by the court; and the hearing in that regard
should be on notice to the respondents in case they can assist the court further,
particularly in relation to management of subsequent steps.
43. Finally, by way of postscript, given that a fairly total re-drafting of the pleadings is
required, it could be confusing if the applicant was required to use the usual strike-
through and underlining, so subject to any views of the respondents, the applicant can
simply present the draft amended statement in the form of a clean copy.
Result: Leave granted, injunction granted