SUPREME COURT
[Appeal No. 205 & 208/2010]
Denham C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Laffoy J.
Dunne J.
O’Malley J.
ATLANTIC MARINE SUPPLIES LIMITED
AND SEAN RODGERS
PLAINTIFFS
AND
MINISTER FOR TRANSPORT,
IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS
Judgment of Mr. Justice O’Donnell delivered the 19th of July 2016
1 Mr. Sean Rodgers, the second named plaintiff, is the principal shareholder, and effectively the owner of the first named plaintiff company, Atlantic Marine Supplies Ltd (“Atlantic”). The plaintiffs (and it is not necessary to distinguish between the corporate and individual plaintiffs) have been in the business of providing safety equipment for boats since 1982. The dispute between the parties has been simmering for some considerable time, since at least 2000, but finally erupted with formal proceedings being initiated in 2008. Both the factual and legal positions in this case are quite complex and the arguments made in these proceedings have ranged very broadly indeed. Judgment in the High Court was delivered in 2010 and has been the subject of an appeal by the defendants, and a cross-appeal in respect of costs by the plaintiffs. The defendants/appellants (who I will refer to as the “State parties”) contend furthermore that the judgment appealed against raises issues which transcend the particular case and raise important issues of State public body liability, and in particular relating to damages in a claim for legitimate expectation. However, at the hearing of the appeal, it appeared possible to reduce the issues in contention considerably, leaving a relatively narrow issue to be determined by this Court. In those circumstances, it is only necessary to give sufficient detail of the facts and law to place in context the legal issue which requires to be resolved by this Court.
2 Atlantic provides safety equipment for boats. In that capacity it was subject to inspection and approval by the Department of Transport. It is not necessary to identify the precise basis of such regulation or indeed its precise status in law. No issue relates to Atlantic’s performance of its own business, and it is accepted that it has at all times complied with regulations and best practice. Atlantic’s complaints relate however to its perception that, at an official level (to use a generalisation), there has been a failure of enforcement of official standards (to use a neutral term) by the State defendants (and in particular the Minister for Transport), which Atlantic contends caused a substantial loss to its business.
3 The protection of life at sea is a matter of national and indeed international concern and has been the subject of international agreements. One such agreement is the International Convention of the Safety of Life at Sea of 1974 (“the Convention”) which entered in to force in 1980. Among the matters dealt with by the Convention were standards for equipment. Of particular relevance to this case is the specification of SOLAS (Safety Of Life At Sea) life rafts, and emergency packs: SOLAS A Packs which are appropriate for larger vessels, and SOLAS B Packs which are a scaled down version appropriate for smaller vessels. The Convention operates at the level of international law. However much, if not all of the regulations, rules and guidance offered by the State authorities either refers to, or seeks to implement in domestic law, provisions of the Convention. No issue arises in respect of the interpretation of the Convention. The issue in this case relates only to issues of domestic law, albeit provisions which make reference to SOLAS standards.
The Code of Practice
4 As of 2004 the Department of Transport issued a Code of Practice governing the design, construction, equipment and operation of small fishing vessels of under 15 metres in length overall. Chapter 7 of the Code deals with life saving equipment and in particular Chapter 7.4 provides for inflatable life rafts:
“7.4 Inflatable life rafts
Where carried, inflatable life rafts must be of a capacity to accommodate all persons on board. The life raft must be stowed in a GRP container and be fitted in a position to enable it to float free if the vessel sinks, and be fitted with an approved HRU. If this is not practicable, for example, in an open vessel, it is recommended that the life raft should be stowed in an accessible place; it may be contained within a valise. While it may not be capable of floating free it must be readily accessible to throw overboard. If it goes down with the vessel it will not operate. Life rafts must be equipped with a “SOLAS ‘B’ Pack”.
7.4.1 The requirements for the carriage of life rafts are as follows:
(i) All vessels with four or more persons on board must carry one or more life rafts, regardless of their area of operation.
(ii) All vessels operating beyond five miles from a safe haven must carry a life raft.
(iii) All vessels operating less than five miles from a safe haven with fewer than four persons on board are recommended to carry a life raft.
7.4.2 Vessels of Loa greater than 12 metres and vessels carrying more than four persons must carry an approved MED/SOLAS life raft.
Vessels of Loa 12 metres or less or carrying four persons or less may carry non-SOLAS/non-MED life rafts. Guidance on the carriage of non-SOLAS type inflatable life rafts is given in Marine Notice No. 2 of 2003.”
5 Before considering the interpretation of these provisions it is necessary to observe that as of 2004 when it was introduced, the Code of Practice can properly be considered as “soft law”. It was not introduced pursuant to any statutory provision and not given any specific legal status. That does not mean that it was without effect, or had no impact in law. It appeared that it published standards and provided for declarations of conformity with those standards to be provided by surveyors. The practical effect of this may have been to create a momentum towards improvement of standards on a voluntary basis. It is also probable that it was envisaged that compliance with the Code of Practice could have indirect legal effect, insomuch as compliance with the Code might become required by purchasers and/or lenders, (in which case it might be enforceable by contract) and it seems likely the Code established or was evidence of standards of practice which could be referred to in any proceedings, in claims of negligence for example. However, these are matters of private law and on its face in 2004, failure to comply with the Code of Practice did not have direct legal consequences, or any consequences as a matter of public law of its own force. No proceedings could be brought to enforce it, and breaching the Code did not incur any sanction, or other administrative consequence.
6 Clauses 7.4.1 and 7.4.2 do not sit entirely easily together. Clause 7.4.1 is directed towards numbers on board, distance and safe haven. Clause 7.4.2 introduces provisions relating to length and in particular refers to vessels under 12 metres in length. In broad terms however it can be said that under Clause 7.4.1, one category of vessel was not required (by the Code) to carry a life raft (although a life raft was recommended). That is vessels less than 15 metres in length and operating less than five miles from a safe haven, and with less than four people on board. Any other vessels under 15m, that is those operating with four or more persons on board or more than five miles from a safe haven were required to carry a life raft (at least for the purposes of compliance with the Code). However, Clause 7.4.2 addresses 2 different categories not previously mentioned: vessels over 12 metres (and under 15 meters since the Code only applies to vessels under 15 metres) and those under 12 metres. In that respect there was a further subdivision: vessels greater than 12m or vessels carrying more than four persons were required to carry an approved MED/SOLAS life raft. On the other hand, vessels of less than 12m or carrying four persons or less were permitted to carry non-SOLAS non-MED life rafts. Guidance in respect of the particular life raft was to be found in Marine Notice No. 2 of 2003. There is also no consistency in the numbers: Clause 7.4.1 refers to 4 or more persons and Clause 7.4.2 to four persons or less. This is all extremely, and arguably unnecessarily, complex. It is not clear if Clause 7.4.2 is intended to be understood as qualifying the otherwise general terms of Clause 7.4.1, and indeed Clause 7 more generally, or instead to refer only to those vessels required under Clause 7.4.1 to carry a life raft. This complexity is considerably increased by the terms of the Marine Notice referred to in Clause 7.4.2, and by the fact that it was itself superseded by a later notice without corresponding amendment of the Code.
The Marine Notices
7 Marine Notice No. 2 of 2003 was issued by the Director General of Maritime Safety Directorate of the Department of Communications Marine and Natural Resources on the 18th of February 2003. It is headed “Guidance on the Voluntary Carriage of non-SOLAS Inflatable Life rafts on-board small Fishing Vessels”. It provided as follows:
“The Department of Communications, Marine and Natural Resources wishes to remind skippers and those working on board registered fishing vessels that inflatable life rafts should be approved and comply with the Marine Equipment Directive and SOLAS Convention. However, the Department recognises that for small fishing vessels, less than 40 feet, that such vessels are not required by statute to carry inflatable liferafts. The Department also recognises that the smallest approved MED/SOLAS inflatable life rafts are for six persons. This may discourage the voluntary carriage of inflatable liferafts on such small fishing vessels. In this regard the Department wishes to encourage the voluntary carriage of inflatable liferafts on small fishing vessels and it has accepted the following non-SOLAS/non-MED inflatable liferafts for such vessels.
• DSB 4 Person Inflatable Liferaft, SOLAS type, B Pack
• RFD 4 Person Inflatable Liferaft, SOLAS type, B Pack
• Viking 4 Person Inflatable Liferaft, SOLAS type B Pack
• ZODIAC 4 Person Inflatable Liferaft, SOLAS type, B Pack
The Department will keep this list under review.”
8 The language of this Notice is somewhat loose and it does not fit comfortably with either the legal nature, or the specific provisions of the Code of Practice. The Notice implies that there is a statutory requirement on some boats to carry inflatable life rafts. As of 2003 this was not the case. The Notice recognises that some vessels were not required to carry inflatable life rafts, but seems to have considered that it only applied to vessels of less than 40 feet (approximately 12 metres). Again that is not necessarily consistent with the terms of the Code of Practice even assuming that the reference to a “requirement” of the carriage of life rafts was to the Code of Practice. It should be noted at this point, that the Notices are issued by a different department to that which issued the Code. Quite apart from the problems which might be created by a difference of understanding between the different authors, there is the possibility that the two relevant departments may have been pursuing slightly different objectives.
9 Marine Notice No. 2 was superseded by Marine Notice No. 8 of 2005, which compounded the confusion. Marine Notice No.8 was also issued by the Director General of Maritime Safety Directorate of the Department of Communications Marine and Natural Resources. It was addressed to all Fishing Vessel Owners, Agents, Skippers, Fishing Vessel Crew Members, Fishermen, and Chandlers.
“The Department of Communications, Marine and Natural Resources wishes to remind skippers and those working on board fishing vessels that inflatable liferafts, carried on board fishing vessels of 40 feet or more in length, must be of an approved type and comply with the Marine Equipment Directive (MED) and SOLAS Convention.
In addition, for compliance with the Code of Practice for the Design, Construction and Equipment of Small Fishing Vessels of less than 15m Length overall (Loa), the requirements for the carriage of liferafts are:
| Loa 12m(40ft) or more | Carrying more than 4 persons | Carrying4 persons or less |
| More than 5 miles from safe haven | SOLAS / MED approved | SOLAS / MED approved |
| Less than 5 miles from safe haven | SOLAS / MED approved | SOLAS / MED approved |
| | |
| Loa less than 12m(40ft) | Carrying more than 4 persons | Carrying4 persons or less |
| More than 5 miles from safe haven | SOLAS / MED approved | Non - SOLAS / MED |
| Less than 5 miles from safe haven | SOLAS / MED approved | Recommended Non - SOLAS / MED |
10 This table is very useful insomuch as it recognises that there are distinct categories of vessels created. It seems to proceed on an assumption that Clause 7.4.2 cuts down or qualifies the general terms of Clause 7.4.1. It asserts that the only vessels under 15 metres in length required to have a life raft, but not required to have a SOLAS/MED life raft, are those under 12 metres in length and operating more than five miles from safe haven; and the only vessels which are not required to have any life raft, but which nevertheless are recommended to have a non-SOLAS/MED life raft, are those under 12 metres carrying four persons or less and operating less than five miles from a safe haven. This leaves a category of vessels, those between 12 and 15 metres operating less than 5 miles and with 4 persons or less on board, which the Code of Practice in Clause 7.4.1 seems to state, are not required to carry a life raft, but which the Notice states are so required. However, the Notice cannot itself require the carriage of a life raft, even for the purposes of the Code. Instead, in this regard, it is at best an interpretation of the Code. The difficulty and confusion in this regard is greatly increased by the remaining text. That provides:
“The Department recognises that small fishing vessels of length overall less than 40 feet are not required by statute to carry inflatable life rafts and that the smallest approved MED/SOLAS inflatable life rafts are for six persons. To facilitate compliance with the Code of Practice and to encourage the voluntary carriage of inflatable life rafts the Department has accepted the following non-SOLAS / non-MED inflatable life rafts. Only these life rafts listed will be accepted on fishing vessels, which are either:
(a) not required to carry a SOLAS / MED approved life raft or
(b) recommended to carry a life raft.
The life raft is to be fitted with a Hydrostatic Release Unit and stowed, if practicable, in such a position that it can be easily and quickly launched on either side of the vessel. The life raft is to be serviced at an approved life raft servicing station at intervals not exceeding 12 months.
Accepted non-SOLAS / non-MED inflatable life rafts
• DSB 4 Person Inflatable Life raft with SOLAS B Pack
• RFD Surviva 4 Person Inflatable Life raft with SOLAS B Pack
• RFD SEASAVA PRO ISO 9650 4 Person Inflatable Life raft with SOLAS B Pack
• Viking DK 4 Person Inflatable Life raft with SOLAS B Pack
• Zodiac 4 Person Inflatable Life raft with SOLAS B Pack
• EUROVINIL ISO/DIS 9650 4 Person Inflatable Life raft with SOLAS B Pack”
11 It is this latter portion of Marine Notice No. 8 in particular which led to the interpretation of the Code of Practice which underpinned the plaintiffs’ complaint and ultimately their litigation. They contended that the words “only these life rafts listed will be accepted on fishing vessels ..... recommended to carry a life raft” meant that while a category of vessel was not “required” to carry a life raft (and as we have seen there was some confusion about the definition of that category), if such a vessel did carry a life raft it had to be an approved (non-SOLAS ) life raft specified in the Marine Notice .
The Sea Fisheries and Maritime Jurisdiction Act 2006
12 The final piece of the jigsaw for present purposes occurred in 2006 with the enactment of the Sea Fisheries and Maritime Jurisdiction Act 2006. Section 97 of that Act substituted a new s.4 in the Fisheries (Amendment) Act 2003. So far as relevant that provided at s.4(9)(c):
“Where a code of practice published by the Minister for Transport relating to the safety and sea-worthiness of sea-fishing boats of a class to which paragraph (b) does not apply requires a survey to be carried out of a sea-fishing boat of such class for the purpose of establishing whether or not such boat complies with the requirements specified in the code of practice, the licensing authority shall not grant or renew a sea-fishing boat licence in respect of the boat unless a declaration of compliance with the code of practice has been provided to the licensing authority.”
13 It is accepted that vessels the subject of the Code of Practice are vessels to which paragraph (b) of s.4(9) does not apply. Accordingly, this section inserted in 2006 makes a declaration of compliance with the Code of Practice a requirement of obtaining the grant or renewal of a sea fishing boat licence. This undoubtedly means that legal consequences in public law may follow from a failure to comply with the Code of Practice, but it should be recognised that those consequences are indirect. If a declaration of compliance with the Code of Practice is not provided, then the licensing authority shall not grant or renew a sea fishing boat licence. It should also be said that the licensing authority referred to in this section is created by s.3 of the 2003 Act, and is required by statute to be an independent body, which has a general reporting requirement to the Minister for Communications, Marine and Natural Resources.
14 Although it was not explored on this appeal or it appears in the High Court, it should be noted that there are a proliferation of bodies involved in this issue. The Department of Transport publishes the Code of Practice. The Department of Communications, Marine and Natural Resources issued the two relevant marine notices in this case. The licenses are issued by a separate independent licensing authority. Finally, the declaration of compliance we were told, is required to be provided by a surveyor either employed, or perhaps it may be authorised by the Department of Transport. The proliferation of bodies and separation of functions was not discussed much in this case. It was said, rather grandly on this appeal, that the defendants did not take any point on that. In my view, there may be many cases in which it is appropriate for State authorities not to seek to deflect liability for what can properly be described as official action even when that is divided between Departments of State or perhaps State bodies. Much expense can be avoided if there is coordination and cooperation between State bodies. Nevertheless, it does seem important for the law of legitimate expectation to understand who precisely is alleged to have made the representation or adopted the position which is relied upon, and indeed the extent and limits of the statutory authority of such person. It is also relevant to know that the provision under scrutiny, and said to amount to a representation, may be a composite of documents produced by different authors with perhaps a different understanding and different objectives. However, in the light of the development of this case, it is not necessary to explore this issue further.
15 The plaintiffs contended that the interpretation of the Code of Practice involved incorporating in the first place Marine Notice No. 2 of 2003, which must be understood to have been substituted by Marine Notice No. 8 of 2005. That latter Notice it was said had the effect that whatever other specifications were made in respect of fishing vessels, once life rafts were carried on such vessels, then only listed life rafts would be permitted. Indeed, this seemed to follow from the references to that “only … life rafts listed will be accepted on fishing vessels which are either: (a) not required to carry a SOLAS/MED approved life raft or (b) recommended to carry a liferaft”. It is not however clear what the legal status is of such a provision or what is meant when it is said that only such life rafts will be “accepted” on such fishing vessels.
The trial judge noted that the Department of Transport and perhaps State bodies in general, were engaged in something that might be described generously as a “creative fudge”, with a view to encouraging the adoption of higher safety standards on a voluntary basis. It is not perhaps implausible that the authorities could take the view that no life raft was better than having an unapproved life raft since that might give persons a false sense of security. As the trial judge said at page 18 of the judgment, [2010] IEHC 104 Paragraph 4.11: “it might be argued that it is better that vessels not put to sea with a form of life raft which is considered to be underspecified, thus, perhaps, leading those on board into a false sense of security”.
Lest it is ever necessary to revisit this labyrinth, either for its own terms or for the interpretation of other similar provisions, I should perhaps say that I have some doubt that this is the correct interpretation of what are admittedly difficult provisions. The most logical interpretation in my view is to read Clause 7.4.1 as identifying those vessels required to have life rafts, Clause 7.4.2 as identifying which of the vessels required to carry a life raft were permitted to carry non-SOLAS life rafts, and the Marine Notice as specifying the type of non-SOLAS life raft which was acceptable. However, it is not necessary to debate that question since the parties do not contest the interpretation in the High Court judgment.
16 The significance of the issue for the plaintiff is that as one of the few suppliers of and providers of maintenance to approved life rafts in the State, they stood to benefit from a much expanded business if the Code of Practice was interpreted as they contended. That is particularly so because the preponderance of Irish licensed fishing vessels are under 12 metres. Eighty-four per cent of all fishing vessels were under 12 metres, rising to eighty-eight per cent under 15 metres. The plaintiffs also adduced evidence of an engineer which suggested that a significant number of vessels were to be found in ports visited by him on a random basis which had life rafts which did not comply with the Code of Practice, at least as interpreted by the plaintiffs. That is to say that while they had life rafts, they were not life rafts approved either as SOLAS life rafts, or those listed in either of the Marine Notices. This was not contested by the defendants, perhaps unsurprisingly, since their principal defence on this issue was that they contested the interpretation of the Code of Practice and Marine Notice No. 8. On the State parties’ interpretation, there was no obligation on vehicles under 12 metres in length, operating within five miles of a safe haven and carrying less than four passengers to carry any life raft, and if they did carry such a life raft, it was not obliged to conform to Marine Notice No. 8. However if the plaintiffs’ interpretation was correct, then as one of the few suppliers of approved life rafts they had suffered substantial loss of profits following from the failure of the defendants, it was said, to enforce the law.
The High Court Judgment
17 The trial judge first addressed the underlying question of interpretation. He took the view that the Code of Practice was to be interpreted with regard to Marine Notice No. 8 and that in this respect, there was an ambiguity but that it should be resolved in favour of the interpretation advanced on behalf of the plaintiffs. However, the trial judge rejected the plaintiffs’ claim that this conclusion was enough to establish a cause of action either in negligence or in breach of statutory duty, holding that the defendants did not owe to the plaintiffs a duty of care, and that the plaintiffs were not the object of the enactment of the 2006 provisions relating to licensing and accordingly any failure to enforce the provisions could not be said to amount to a breach of statutory duty in respect of which the plaintiffs could claim damages. It is not necessary to review those conclusions, since these findings were the orthodox application of settled law and were not the subject of appeal or cross-appeal. The trial judge did however permit the plaintiffs to argue that the facts alleged and proved gave rise to a legitimate expectation on the part of the plaintiffs which furthermore entitled them to damages. The High Court held that although there was no explicit representation to this effect, the defendant, and in particular the Minister for Transport could be said to have “adopted a position” in the language of the judgement of Fennelly J. in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84, which amounted “at a minimum to, an implied representation, that only such sea-fishing boats which comply with the Code of Practice, at least in general terms, will be allowed to operate under licence”. (Para.7.13) Three factors were identified as giving rise to this representation which were set out at Paragraph 7.13 of the judgment:
“In assessing whether that aspect of the test is met, a number of facts need to be identified. First, Atlantic is itself certified in accordance with the SOLAS regime to provide safety equipment services to those who have to comply, under the sea-fishing boat licensing regime, with the Code of Practice and is, on the evidence, required to go to a significant effort and expense in maintaining that certification. Second, the Minister has promulgated the Code of Practice. Third, the Oireachtas has determined both that all sea-fishing boats need a sea-fishing boat licence and that a Certificate of Compliance with the Code of Practice is a mandatory requirement for the grant of any such licence.”
18 The Court further held that the representation (by adopting a position) was made to an identifiable group or group of persons including the plaintiff. This was so notwithstanding the Court’s earlier conclusion that the defendant did not owe a statutory duty to the plaintiff or any group to which he belonged, because the relevant statutory provisions were not addressed to them. The Court came to this conclusion because it considered it followed that in principle, legitimate expectation arose because a court concluded that it would be unjust to permit a public authority to stand on its technical legal rights and this could arise in circumstances which did not give rise to a particular statutory duty. A statutory provision might not be addressed to a specific group but it was possible for that or a broader group to be entitled to rely on a legitimate expectation of enforcement of the provision. Therefore Atlantic was entitled to rely on an implied representation of the Minister that the Code of Practice would be reasonably enforced although that did not extend to an entitlement to expect that the Code would remain unchanged, nor to an expectation of enforcement of the Code in all circumstances. It could only extend to an expectation of reasonable enforcement having regard to resources, and proportionality so far as individual licence holders’ rights might be involved. As so defined however, there was no countervailing factor preventing a legitimate expectation arising.
19 The next issue was whether the expectation had been breached, and if so whether damages could be awarded. The trial judge held that the expectation of reasonable enforcement had not been breached. Most of the plaintiffs’ complaints related to the period before 2006 at which point the Code became indirectly enforceable through the licensing regime. Indeed it might be said that the interpretation of the Code upon which the plaintiff relied only crystallised after the issuance of Marine Notice No. 8 in 2005. In either case, most of the complaints predated that period. Furthermore, after 2006, there had been some level of enforcement and there was no evidence of breaches being brought to the attention of the Minister. Therefore there had been “no sufficient failure of enforcement on the part of the Minister”. There was evidence of spot checks to ensure that the certificate of compliance with the Code accurately reflected actual compliance. There would have to be evidence directed towards a failure of the Minister to take reasonable steps as to enforcement (particularly in circumstances where the Minister was entitled to take comfort from the certificates or declarations of compliance provided) before a finding of a breach could be made. However, one consequence of the proceedings themselves was that evidence had not been brought to the attention of the Minister of widespread failure to conform to the Code of Practice as interpreted in the High Court. There was accordingly in the trial judge’s view, a pressing obligation on the Minister to do one of two things: either review the Code of Practice and amend it so that “apparent breaches of the Code of Practice identified in the evidence in this case would no longer be a breach of the Code of Practice”, or alternatively retain it as it stood and as it was interpreted, and enforce it. (Para. 8.4-8.5)
20 The Court also concluded that no issue of damages arose as there had been no “culpable failure to enforce” the Code of Practice. However, if the Code of Practice was not amended, but was not enforced, that might well amount to such culpable failure giving rise to a claim for damages. Accordingly the proceedings were adjourned to allow the Minister to consider the position. On the adjourned date, it was indicated that it was proposed to enforce the Code as interpreted. In the event, we have also been informed on this appeal, that the regime has been altered subsequently, and accordingly these events are largely of historic interest only in the context of maritime safety, albeit that the legal issues are of broader significance. In those circumstances, the Court refused to make any declaratory or other order and dismissed the plaintiffs’ claim. However in relation to costs, the Court considered that the plaintiffs had achieved something by the bringing of the proceedings and that there had been a significant lack of clarity about the legal position. The Court made no order as to costs accordingly, notwithstanding the fact that the plaintiffs’ claim had failed and had been dismissed.
The Appeal
21 The State parties appealed the judgment filing a Notice of Appeal running to 78 grounds. They also delivered comprehensive and impressive written submissions dealing with the law in relation to legitimate expectation in a number of jurisdictions. The plaintiffs resisted the appeal and furthermore cross-appealed, limited to an appeal against the refusal to award costs. In particular, the plaintiffs did not seek to argue that the Court had been wrong to refuse relief on grounds of negligence or breach of statutory duty, or indeed to find there had been no breach of the legitimate expectation found to arise. It followed that the plaintiffs also did not contend that the High Court ought to have awarded damages. In essence therefore the plaintiffs stood over the Court’s decisions in its entirety, even though it dismissed their claim, save that they argued that on the logic of the High Court judgment the Court ought to have awarded the plaintiffs some or all of its costs.
22 It should be apparent that the proceedings, already themselves somewhat unusual, have taken a further twist in this Court. Although the State parties are the appellants in the case, the High Court made no order against them on any of the substantive issues in the case. Indeed it dismissed the plaintiffs’ claim against them. The plaintiffs for their part did not appeal against that dismissal. The only order made in the High Court of which the State parties could possibly complain (and therefore be the subject of appeal) was the order made in relation to costs, since they did not recover costs. But that was not the focus of the State parties’ contentions on this appeal. It is apparent from the legal submissions that the concern of the State parties was not the outcome of the particular case, but the broader implications of dicta in the judgment, not just in the field of maritime safety in particular, but also and more generally for the law of legitimate expectation. The concern of the State parties therefore was not so much what the Court did but how it did it. Counsel opening the appeal said that the appeal was directed against what he described as a contingent finding of breach of legitimate expectation and a possible future liability for damages. What made this issue even more unusual was that the State parties did not challenge the High Court’s interpretation of the Code of Practice. On the other hand, the plaintiffs only sought to stand over that aspect of the decision. In particular, the plaintiffs did not contend that there had been a breach of any legitimate expectation and/or an entitlement to damages. In other words, although the State parties launched a very far ranging appeal, and the plaintiffs resisted it and cross-appealed, the arguments, and interests, of the parties were not squarely opposed.
23 The parties’ positions were explored at the hearing of this appeal and they arrived at a precarious though incomplete truce. The State parties did not seek to disturb the interpretation of the Code of Conduct which was determined in the High Court judgment, and the plaintiffs were content to stand on that conclusion, and did not seek to advance any further arguments supporting the finding that there was legitimate expectation. This was logical since the plaintiffs did not assert on this appeal that any such legitimate expectation had been breached, or that they were otherwise entitled to damages. Accordingly, a finding of legitimate expectation was of no benefit to the plaintiffs over and above the interpretation already provided. The parties were not however able to go further and resolve their differences entirely in part and inevitably because of concerns about costs, but also because the State parties necessarily wished to have its contentions in respect of the law of legitimate expectations formally determined. It is accordingly necessary for the Court to address this issue albeit in much less detail than might otherwise have been the case.
24 The source of the original controversy was the admitted ambiguity of the Code of Practice particularly when read together with Marine Notice No. 8. Indeed, as the High Court observed there may have been an element of deliberate ambiguity on the part of the State parties since it was accepted that there was a desire to encourage the use of approved safety equipment, even on a voluntary basis.
25 It should be said that the resolution of the trial judge was practical, and moreover one with which the parties did not fundamentally disagree. The plaintiffs obtained clarity and an assurance of enforcement, while the defendant did not suffer any finding of breach of a legal obligation, and was not subject to an award of damages or costs. Insomuch as the judgment contained broader statements of the law in relation to legitimate expectation they have been largely if not wholly superseded by subsequent decisions of the High Court and this Court, not least in Lett & Co Ltd v. Wexford Borough Council & ors [2012] IESC 14, [2012] 2 I.R. 198, and the judgments delivered in this Court in Cromane Seafoods Ltd & O’Sullivan McCarthy Mussel Development Ltd v. Minister for Agriculture Fisheries and Food & ors [2016] IESC 6.
26 In my view, once the issue of interpretation had been resolved, it was not necessary to go further and seek to analyse the matter in terms of legitimate expectation. The provisions of s.4(9)(c) of the 2003 Act (as inserted by the 2006 Act) meant that no licence could be granted or renewed without a declaration of compliance with the Code of Practice and once the difference of interpretation had been resolved, there was no reason to doubt that this provision(as interpreted) would be enforced. However, if for whatever reason it was not enforced, then appropriate declarations and if necessary orders, could be made. The existing law of public law remedies is adequate to deal with this. If anything therefore it was superfluous, misleading and potentially dangerous to go further and seek to construct a legitimate expectation that the law as enacted would be enforced. Furthermore, and in any event, I do not consider that the combination of matters relied upon in this case can be said to amount to the type of representation or adoption of a position which could give rise to a legitimate expectation. This conclusion is quite apart from the fact that it appears that different, and statutorily and constitutionally distinct, bodies were responsible for the acts which cumulatively are relied on as amounting to such a representation. I do not wish to make any definitive determination in this regard, particularly in the circumstances of this case, but at a minimum it must be recognised that the different roles, functions and powers of the different bodies involved here, presents a further hurdle to the assertion that any individual defendant has made a representation or adopted a position giving rise to legitimate expectation.
Turning to the matters alleged to constitute the expectation, it seems to me that the fact that Atlantic was itself certified is irrelevant. The promulgation of the Code of Practice itself cannot give rise to a legitimate expectation of enforcement which could be relied on since in its own terms it was not enforceable and only became so, and indirectly, with the passage of the 2006 Act. Finally and perhaps most significantly the passage by the Oireachtas of the 2006 Act introducing a new s.4(9)(c) in the 2003 Act cannot in my view amount to a representation being made by the Minister that the law as enacted will be enforced. It is arguably unnecessary to add such a layer of analysis, and in any event to do so raises substantial issues of the separation of powers. The obligation on the Executive to enforce the law enacted by the Oireachtas is derived from the Constitution, and is not dependent on any concept of legitimate expectation which could be relied upon by a more limited group of citizens, to found a claim for damages. I also agree that it is, at a minimum, unlikely that the enactment of legislation which itself does not give rise to a right to sue for breach of statutory duty, could nevertheless give rise to a legitimate expectation sounding in damages in the same group. On similar reasoning it might indeed be said that if this is possible then at the level of principle, it would follow that all legislation was capable of giving rise to some such legitimate expectation on the part of interested parties, or indeed quite possibly any citizen, with a corresponding right to enforce such an expectation and to claim damages if it is possible to advance a claim in relation to them. It is not necessary to analyse the matter further: it is sufficient to conclude that the finding of legitimate expectation in this case cannot be upheld.
27 It follows from the matters outlined above however, that this conclusion does not, and cannot lead to any different order in relation to the issue (since the plaintiffs’ claim was already dismissed) nor can the Court do anything other than record its conclusions in this judgment. I also consider that it would be inappropriate to make any declaration in favour of the plaintiffs as to the interpretation of the Code of Practice. That, insomuch as it is relevant, is set out in the High Court judgment and accepted by the parties. Accordingly, I do not think the Court can make any substantive order on this appeal and must therefore dismiss it. There is in this regard a curious symmetry between the outcome in this Court and the High Court. In the High Court, the plaintiffs succeeded on the interpretation of the relevant provisions but their claim was dismissed. Here the State parties have succeeded on the argument that there was no legitimate expectation, but since nothing flows from that ruling, their appeal must also be dismissed. This leaves the question of costs. While this is a matter upon which the parties are entitled to make submissions, it may be helpful to set out my preliminary views. I would tend towards the view that the justice of the case could be met by a modest contribution towards the plaintiffs’ costs. The parties ought to be able to agree on this, and indeed the amount, but if that is not possible I would hear submissions from the parties as to costs.
