Daly v. Minister for the Marine [1999] IEHC 115 (25th February, 1999)

JUDGMENT of O'Sullivan J. delivered the 25th day of February 1999 . INTRODUCTION 1. The Applicant is a fisherman and mussel farmer and the owner of a motor fishing boat, the "Angela Madeline", a 38 ft. steel vessel, built in 1991 by Dingle Boats Teoranta with the benefit of a grant and loan from Bord Iascaigh Mhara ("B. I. M.") and a further grant from the EU, the "FEOGA" grant. 2. Because the Angela Madeline was less than 65 feet overall length, it was exempt from the requirement (under Section 222B of the Fisheries (Consolidation) Act, 1959 ) to have a sea-fishing licence but, notwithstanding exemption, did require a licence if she was to be registered under the Merchant Shipping Act, 1894 and the Mercantile Marine Act, 1955 . B. I. M. required such registration as a condition of granting the loan primarily in order to register its interest against the vessel which could only be done if she was registered. 3. Accordingly, the Applicant made contact with the first named Respondent's Department during 1990 and 1991 to indicate his intention to apply for such a licence. 4. The first named Respondent is, inter alia , authorised under the Fisheries (Amendment) Act, 1983 to grant licences thereunder and he is also the State authority charged with implementation of relevant EU policies to which I will refer in more detail later. 5. The second and third named Respondents appear to have been joined because the statement grounding the application seeks at paragraph 8 a declaration that the refusal of the first named Respondent ("the Minister") to allow the Angela Madeline to be used as replacement capacity for the entry of another vessel onto the fishing fleet is in breach of the Applicant's constitutional rights, namely, the right to property and to earn a livelihood. These specific declarations were not sought in the hearing before me. 6. Before setting out the facts, I should explain that what is known as the "replacement policy" operated by the Minister requires that new entrants to the Irish Fleet (or replacement of existing vessels by larger ones) must demonstrate a ton for ton withdrawal from the Register (known as the one hundred per cent replacement policy) as a requirement of obtaining a licence. This policy was adopted in May of 1990 as a method of controlling the size of the Irish Fleet, itself required to be reduced by some 25% following a European Commission decision of December 1987 (modified one year later) imposing on the second Respondent an obligation significantly to reduce its fleet capacity in stages during the period 1987 to the end of 1991. This decision was itself taken in light of the conservation objectives of the Common Fisheries Policy of the European Union. 7. Pursuant to the replacement policy, the tonnage assigned to licensed vessels became a valuable commodity in and of itself and was something that could be "sold" to the owner of another vessel who required it to be licensed. 8. In the present case the Applicant decided to "sell" the tonnage of the Angela Madeline towards the beginning of 1997. Through an intermediary, one Pat Crowley, a Solicitor who regularly advertises to buy tonnage in the "Skipper" newspaper, he came in contact with one Brian O'Driscoll from Castletownbere and agreed to "sell" the tonnage in consideration of £40,000. He did this somewhat reluctantly and only after careful consideration because he was under considerable financial pressure from his bank and B. I. M. 9. As will be seen in some more detail later, it was an essential part of this proposed transaction that the Minister gave his consent to the transfer of the tonnage from the Angela Madeline. Accordingly, Mr. Crowley contacted the Minister's Department. After an initial indication of agreement, on the 10th June, 1997 the Minister, through his officials, refused to allow the Angela Madeline to be used as replacement capacity to facilitate the entry of Brian O'Driscoll's vessel onto the fishing fleet. It is this refusal which is the subject of challenge in these proceedings. Whilst a statement grounding this application, and indeed the Order giving the Applicant liberty to bring Judicial Review proceedings, seeks a number of reliefs and declarations, in the proceedings before me Counsel for the Applicant sought only a declaration that the Applicant had a legitimate expectation that the Minister would allow him to use the tonnage of the Angela Madeline as replacement capacity as aforesaid and also damages for breach of this expectation. THE FACTS 10. On or about the 13th March, 1990 the Applicant applied to the Minister for a licence to fish the Angela Madeline naming mussels, crab, lobster and shrimp as the species of catch. On the 16th March he received a reply from the Minister stating that the Minister had established a Licensing Review Group to recommend licensing policy to be adopted to ensure optimum development of the fishing industry and in light of this, the Minister had suspended consideration of all licence applications and he was told that his application would be considered further when the new policy was in place. By further letter of the 6th June, 1990 he was told that preference would be given to applicants who proposed "tonnage replacement" . Applicants would have to demonstrate that they intended removing a significant level of active tonnage from the Fishing Boat Register to facilitate the entry of new entrants to avail of this new policy. Boats removed from the Register would be required to be de-registered under the Merchant Shipping Act, 1894 and the Mercantile Marine Act, 1955 ( "e.g. scrapped or sold outside the State" ). That letter pointed out to the Applicant that the information provided did not allow the Minister to assess whether or not there was a replacement element associated with his application and he was asked to indicate whether his application involved tonnage replacement. 11. The Applicant wrote back on the 25th June, 1990 pointing out that the vessel would not be fishing for quota species of fish, that the vessel would be harvesting mussels during the season (November to May) but it was imperative that it pay its way during the summer months when he intended to pot for crab. He specifically answered "No" to the question "Is a replacement element associated with your application?" . 12. The Applicant sent in a new licence application on the 7th February, 1991 specifying mussels (only) as the intended catch. This application was accompanied by a letter (dated the 4th February, 1991) requesting licensing and registration of the Angela Madeline, indicating how the boat was being financed and the anticipated income and specifying that "the boat will be used exclusively for mariculture" . The terms "mariculture" and "aquaculture" are inter-changeable: they relate to mussel fishing and fishing for "bivalve molluscs" (clams, scallops, razor clams) which comprise a segment of the fishing market denoted by the word "specific" so that a licence for the "specific" segment of the market authorised mussel and bivalve fishing only. This should be distinguished for the purposes of this case from a licence for the "demersal" segment of the market which would authorise fishing for white fish (whiting, cod, sole, hake and skate), prawns, crab, lobsters and the like and monkfish. 13. In response to the application, the Minister wrote on the 26th April, 1991 stating that he was "Prepared in principle, to offer you a licence in respect of the boat subject to the following conditions:- (i) The provision prior to issue of the licence, of a conditioned (sic) survey report ...; (iii) the tonnage in question is to be used for aquaculture purposes only and you will not be allowed dispose of the tonnage for general fishery purposes; ..... The granting of a licence on foot of this offer is dependant on full and complete compliance with the conditions as set out above within twelve months of the date of this letter. I must also emphasise that if the licence on offer is not so taken up, then any further request by you for a licence would fall to be considered as a new application and subject to whatever policy criteria which may then be in force for such applications. ..." 14. In response to that letter the Applicant wrote on the 1st May, 1991 referring to those conditions and saying "I agree to comply with these conditions". 15. It will be recalled that the Angela Madeline was exempt from the requirement of obtaining a sea-fishing licence for fishing purposes and that the need for the licence was in order to become registered under the Acts to which I have already referred because, pursuant to Section 8 of the Fisheries (Amendment) Act, 1983 , such registration could only be effected if the ship was the subject of a licence. 16. The view of the Minister, and I think it was a correct view, was that he did have power to grant licences not only for the purpose of authorising fishing but also for the purposes of facilitating registration. Accordingly, the licence that issued to the Applicant on the 28th August, 1991 was a licence for three months only ending on the 30th November, 1991. It had attached to it three conditions, none of which was a condition specifying that "the tonnage in question is to be used for aquaculture purposes only and you will not be allowed dispose of the tonnage for general fishery purposes" , to quote the language of the offer letter of the 26th April, 1991. 17. The Applicant said in evidence that it was the view of B. I. M., even before he received this licence, that he would be entitled to fish in the demersal sector notwithstanding the contents of the letter of the 26th April, 1991. They were adamant and insistent on this point and convinced the Applicant that they were correct. He further said that on receipt of the licence in August 1991 the terms thereof confirmed him in his agreement with the B. I. M. interpretation and he was satisfied that the Minister had changed his mind and that the condition attaching to the offer letter no longer applied. 18. He gave further evidence that he fished openly in the demersal sector and that the local Department of Marine Fisheries Officers knew this. 19. The Minister wrote to him on the 1st October, 1993 concerning the categorisation of sea-fishing vessels and referring to a discussion document on the management of the fleet. He said the Angela Madeline was being "Provisionally assigned to the specific and demersal (other than the Irish Sea) categories. This means that the vessel will be allowed to be used only for aquaculture purposes including fishing for bivalve molluscs and for demersal species in all areas other than the Irish Sea. ... For replacement capacity purposes your vessel will be acceptable for the introduction of a new or second-hand vessel into the demersal (other than the Irish Sea) category on a one-to-one basis. If you consider that the vessel has been incorrectly categorised, you may appeal the provisional categorisation .... A further letter will issue to you either confirming your categorisation or adjusting it in the light of the current consultation process or a successful appeal". 20. The Applicant said in evidence that he took this as further confirmation that he was entitled to fish in the specific and demersal (other than the Irish Sea) categories. He also stated that he took no action on foot of it either to his detriment or to his advantage and its impact on him was that it confirmed his understanding to which I have just referred. 21. In addition to the foregoing, the Applicant gave evidence that the Minister's Sea Fishery Officer, Dominic Gallagher, not only knew that he was openly fishing in the demersal sector, but gave him a log book which was relevant only to the demersal category and the pelagic category, that six of the eight species of fish listed therein were included in the demersal category, the other two being in the pelagic category. The log book therefore had no relevance to the aquaculture sector and he presumed that it was given to him to record his demersal catch. 22. Moreover, after a long period of bad weather the Minister announced an emergency aid scheme and he filled out an application form and submitted it to the B. I. M. Area Officer, Bob Cooke. He was required to state the species of fish he was landing on the application and he filled in white fish, prawns, crabs and mussels. This form was submitted on his behalf by Bob Cooke of B. I. M. to Jim Condon, the Senior Fishery Officer of the Minister, Southern Region, who stamped the application, it so happens, in the box on the application form setting out these four categories of catch. He was duly in receipt of financial assistance under the emergency scheme based on the application so described. 23. When it was put to the Applicant in cross-examination that he knew from the very beginning that the offer of a licence was always on the basis that "the tonnage" could only be used for aquaculture purposes and he would not be allowed dispose of it for general fishery purposes, he agreed that initially he fully accepted these conditions but that when he received the licence without them, he concluded, particularly under the insistent urgings of B. I. M., that the whole initial basis had "unravelled" not only because B. I. M. took this view but because the relevant conditions were not attached to the licence, and because he fished openly under the noses of the authorities including the Minister's representatives without complaint, he got a letter on the 1st October, 1993 which confirmed his interpretation and six months later he was in receipt of emergency scheme funding on the basis of an application which disclosed fully his catch in the demersal sector. 24. When he applied, through the agency of Patrick Crowley, Solicitor, to have the tonnage of the Angela Madeline transferred for use in the wider sector, this view appeared to have been initially accepted but it was subsequently rejected and the Minister's reasons were ultimately set out in a letter of the 10th June, 1997 signed by Dr. C. Beamish of the Sea Fisheries Division. This letter pointed out that:- "Vessels such as mussel dredgers which were licensed to fish solely for bivalve molluscs or to engage in aquaculture are not considered to be eligible to be used as replacement capacity other than in respect of another aquaculture vessel". 25. The letter pointed out to the Applicant that in his application for a licence he had indicated that the vessel would be used "exclusively for mariculture" and that no replacement capacity had been withdrawn in association with its introduction to the fleet. "For these reasons the licence offer which issued from the Department on the 26th April, 1991 (copy attached) explicitly stated that the vessel was to be used exclusively for aquaculture purposes and that the capacity of the vessel could not be disposed of as replacement tonnage for general fishery purposes. In addition, your letter of the 1st May (copy attached) indicated that you agreed to the conditions under which the licence was offered. It is acknowledged that in 1991, vessels under 65 feet in length were exempt from the requirement to hold a current sea-fishing licence, and licences were only issued in respect of vessels under 65 feet to facilitate registration. Consequently, the licence issued in respect of the MFV Angela Madeline did not contain conditions relating to the vessel being used solely for fishing for bivalve molluscs. The Department's letter of the 1st October, 1993, provisionally assigned the vessel to the specific and demersal segment of the Irish Fleet. However, the letter did not purport to be definitive and envisaged the issue of a further letter if the provisional assignment was to be confirmed. In the event the provisional assignment was not confirmed. In light of the above and having reviewed the case, it has been decided that the capacity of the MFV Angela Madeline cannot be accepted as replacement capacity for the following reasons:- (a) the vessel was introduced to the fleet exclusively for aquaculture purposes, and was not required to withdraw replacement capacity as aquaculture vessels are not taken into account in the calculation of EU fleet targets; (b) it was made clear to you in the licence offer that the capacity of your vessel was to be used for aquaculture purposes only and that 'you will not be allowed to dispose of the tonnage for general fishery purposes'; (c) your letter of the 1st May, 1991 indicated that you accepted the conditions under which the licence issued". 26. Mr. Joe Ryan gave evidence for the Minister's Department. He is a Principal Officer in the Sea Fisheries Administration Division which deals with sea-fishing licences and also for the past 1½ years has been Register General of Fishing Boats. He said that there had been a fundamental change in policy between the Applicant's two licence applications. The policy of equivalent capacity replacement was promulgated in May of 1990. Under this policy the Applicant would have had no realistic prospect of getting a licence for the demersal sector unless he demonstrated de-registration of equivalent tonnage. There was indeed an exemption for small boats such as the Angela Madeline but this came to an end on the 1st January, 1995 when the Department automatically issued licences to such boats in what they considered to be the appropriate sector. At the hearing, but not before, the Minister produced a copy of the licence for the Angela Madeline which issued on the 13th July, 1995 (although the date on its face appears as 1998 due to a computer error). The licence authorises fishing in the "specific" (only) segment. This authorised fishing in the aquaculture (fish farming and ancillary harvesting) and bivalve mollusc (clams, scallops, razor clams) sector only. The tonnage would not be available for replacement outside of this sector. He conceded that there were some exceptions to the general one hundred per cent replacement policy. On the 3rd February, 1998, the Minister promulgated a policy for the registration of some one thousand smaller fishing vessels comprising approximately five thousand tonnes' capacity to the fleet. This was pursuant to a special deal worked out with EU approval. The majority of these could only be offered for sale as replacement tonnage after 12 months on the register. The Applicant's boat was similar physically (in size) to these smaller fishing vessels but not in legal status in the sense that the Angela Madeline was registered but these were not. Only those who had never been registered were entitled to apply. Moreover, the Angela Madeline had not operated prior to 1989 which was another pre-condition for benefitting from this scheme. 27. A second partial exception related to some twenty licences in the Dingle area for larger boats. This scheme operated in the Dingle area in the early 1990s and whilst replacement tonnage was envisaged (albeit after registration) at the commencement of the scheme, during its implementation this was relaxed due to the financial circumstances of the boat owners and the replacement requirement was substituted by a requirement that the owners pay cash to the Minister. Mr. Ryan accepted that B. I. M. acted as the Minister's agent for the processing of grant applications and appeared to accept initially that the loan from B. I. M. came from "the fisheries side" as distinct from the aquaculture side but later he withdrew from this. An examination of the Department's discovery documents indicated that there was considerable hesitation not to say confusion amongst the personnel in the Minister's Department as to the extent or existence of their powers to attach to a licence conditions relating to tonnage replacement. Mr. Ryan found himself in disagreement on a number of occasions with opinions expressed on the Departmental file and offered his own view that the Minister had an implied power under Section 222B(3) of the Merchant Shipping Act, 1894 to attach conditions to the letter of offer of a licence. He said that it would not have been possible to put the conditions in the licence but because the Minister wanted to create a situation whereby the undertakings to be given by the Applicant would be permanent, he included these conditions in the letter of offer of the licence and these were accepted freely by the Applicant. 28. With regard to the letter of the 1st October, 1993 he said that this letter was issued in error. I note in passing that this explanation differs from that given by Dr. Beamish in the letter referred to above who said that the letter was provisional. It emerged on examination of the Minister's discovered documentation that an initial draft of Dr. Beamish's letter did indeed allude to the fact that the letter had issued in error but this was excluded from the version that was sent to the Applicant. Mr. Ryan said that he would have included a reference to error in the letter sent to the Applicant. He disagreed with the Applicant's view that the initial basis of the offer in principle letter had "unravelled" . Some little attention was paid at the trial to the Department's discovered documentation leading up to the decision to refuse the Applicant agreement to treat the Angela Madeline's tonnage as replacement tonnage. In particular reference was made to a schedule apparently assembled by a Ms. Toner setting out seven vessels which were initially acceptable as replacement capacity (for another vessel the "Achilles" in that case). However, a manuscript note was appended against the Angela Madeline and another vessel the "Maid of Erin" on the schedule to the effect that they were "aquaculture" and accordingly unacceptable as replacement. The reference to "aquaculture" indicated that both of these were licensed in the "specific" sector only. Subsequently, however, the Maid of Erin was accepted as replacement capacity. Mr. Ryan was queried about this and he indicated that there was a practice in the Department of indicating, by reference to the Department's knowledge of the boat's fishing history, that it was acceptable for replacement by attaching to the file a note to that effect. In the case of the file referable to the Maid of Erin, such an indication did appear but there was no background information beyond this. This explained why the Maid of Erin was accepted as replacement tonnage, unlike the Angela Madeline. He denied that the Maid of Erin was treated more favourably than the Angela Madeline by Mr. Wright who was the official who would have made the decision because he would have taken this marginal note inside the cover into account. The differences between the two vessels were policy differences relating to their fishing history, as available in the Department's records, and, I gathered, by reference to whether on initial registration equivalent tonnage had been de-registered. Decisions were made by the officials not by the Minister on the basis of a practice, explicable by reference to the foregoing principles, but it was not a promulgated policy as such. 29. Mr. Ryan referred in addition to some thirteen boats that were added to the fleet in March of 1991 (pursuant to earlier applications) and accepted that the Applicant's boat could have been added but this would have been contrary to the policy requirement of replacement tonnage which applied to the Applicant's boat but not to the majority (if not all) of these other boats because they had made applications before the replacement policy was in place. The Applicant's boat was in a clearly distinct category from others which were registered as exceptions to the general replacement policy because the Applicant's boat was always understood to be specifically for mussel farming and not to be entitled to fish in the demersal sector. The Applicant had given an undertaking to this effect even though his boat was exempt for sea-fishing purposes so that the acceptability or otherwise of his tonnage for replacement was governed by that agreement. STATUTORY FRAMEWORK 30. The Merchant Shipping Act, 1894 provided for the registration of British ships unless exempted. The Mercantile Marine Act, 1955 provided for the registration of Irish-owned ships unless exempted. The Fisheries (Consolidation) Act, 1959 provided for the Consolidation of the Fisheries Acts 1842-1958 and in Part XIII, which deals with sea fisheries, made provision applicable to the exclusive fishery limits of the State. The Fisheries (Amendment) Act, 1983 inserted a new Section 222B into Part XIII of the Fisheries (Consolidation) Act, 1959 giving the Minister power to grant sea-fishing licences and prohibiting certain unlicensed sea-fishing. The section applied to any sea-fishing boat registered or registerable under the Merchant Shipping Act, or the Mercantile Marine Act, 1955 . 31. I will set out in a moment relevant extracts from Section 222B but before doing so, I note that by Section 8 of the Fisheries (Amendment) Act, 1983 a ship may not be registered under either the Irish or the UK Act unless it is licensed. This provision explains why the Applicant in the present case applied for a licence: it was not to authorise sea-fishing for the Angela Madeline (she was exempt for this purpose until the 1st January, 1995) but simply to enable her to be registered under the foregoing Acts because registration was a condition of the loan made by B. I. M. Section 222B 32. As stated this section applied to a fishing boat registerable under the Act of 1894 or a ship registerable under the Act of 1955. Where relevant it provides as follows:- "(2) Subject to subsection (4)(b) of this section, a sea-fishing boat to which this section applies shall not be used for sea-fishing (whether within the exclusive fishery limits of the State or otherwise) nor shall a person on board such a boat fish or sea fish or attempt so to fish, save under and in accordance with a licence granted for the purposes of this section and in relation to the boat by the Minister. (3)(a) The Minister may grant licences for the purposes of this section. (b) An application for a licence for the purposes of this section shall be in such form, shall contain such particulars as the Minister may reasonably require and shall be made to the Minister by or on behalf of the owner of the boat in respect of which the application is made. (c) Where an application is made for a licence for the purposes of this section, subject to subsection (4)(a) of this section, the Minister may allow or refuse the application. (4)(a) The Minister shall not grant a licence for the purposes of this section unless the sea-fishing boat in relation to which the licence is granted is wholly owned by an Irish citizen or a body corporate established under and subject to the law of the State and having its principal place of business in the State. (b) The Minister may by regulations provide that sea-fishing boats which are of a class or description specified in the regulations shall be exempt from the provisions of subsection (2) of this section, and in case regulations after this subsection are for the time being in force, subsection (2) of this section shall be construed and have effect subject to the terms of the regulations. (5)(a) The Minister may attach to a licence granted for the purposes of this section such terms (including terms specifying the period during which the licence is to remain in force or an event or other circumstance on the occurrence of which the licence is to come into force) and conditions (including conditions precedent to the licence's becoming operative) as he shall think fit and he may also attach further conditions to or vary the conditions already attached to such a licence or remove any such condition. (b) Without prejudice to the generality of paragraph (a) of this subsection, a condition attached to a licence granted for the purposes of this section may - (i) restrict sea-fishing by the boat to which the licence relates in a manner specified in the condition, (ii) require that for so long as the licence is in force the members of the crew of such boat, or of any proportion of such members specified in the condition, shall be of a nationality specified in the condition, (iii) specify an event or other circumstance on the occurrence of which the licence shall cease to be in force. (c) Where the Minister is satisfied that a person has fished in contravention of a condition attached to a licence granted for the purposes of this section or that a person has attempted so to fish, he may, if he thinks fit, revoke the licence". 33. The above section was amended by the Fisheries (Amendment) Act, 1994 , which came into effect on the 12th July, 1994 (the effect of such amendment being to enable the Minister to take account of economic considerations and EU policy) but this amendment post-dated the issue of the licence in the present case and accordingly did not apply to it. 34. By regulation made on the 17th August, 1983 sea-fishing boats of 65 feet or less were exempted from the provisions of subsection (2) of Section 222B (prohibiting fishing otherwise than under licence) and this exemption continued in force until a revoking regulation came into operation on the 1st January, 1995. The effect of this was that the Angela Madeline could engage in sea-fishing without a licence until the 1st January, 1995 but not thereafter. LEGAL ISSUES Is the Expectation Legitimate? Counsel's submissions 35. A significant amount of the debate at the hearing before me concerned whether the Applicant's expectation is legitimate. It is clear and not disputed that any relief granted on the basis of legitimate expectation is an equitable remedy. It was submitted that it was appropriate, therefore, to look at the surrounding circumstances including the behaviour of the parties. 36. In addition, Mr Brady S. C. for the Respondents made the following points:- 1. It was the clear understanding of the Applicant that the Angela Madeline's tonnage could not be transferred for general fishing purposes and that this situation was to continue indefinitely as long as he held the boat. That was his understanding of the position at the time of his making the application for the licence and when he, by letter of the 1st May, 1991, specifically agreed to the Minister's terms of offer of licence. Furthermore, this understanding, and indeed the application for the licence itself, which specified that the boat would be used exclusively for mariculture must be seen against the background of the Applicant's first licence application and the fact that the Minister had made it clear to him that he would not get a licence for the demersal sector unless he was prepared to offer replacement tonnage. This understanding which could not have been clearer, survived beyond the lifetime of the temporary licence which was indeed given not to authorise fishing because the Angela Madeline was exempt, but to enable her to be registered. 2. After the 1st January, 1995 under the law the Applicant needed a licence to fish because the exemption was revoked. The Minister had issued several hundred licences to the owners of boats which had been exempt and the Applicant's licence appears, from the Minister's computer, to have been issued sometime in the middle of 1995. The Applicant says he never received it. Either way, says Mr Brady, he was in default if he fished in the demersal sector because the issued licence restricted him to the specific sector. Whilst no point is being taken by the Minister against the Applicant in regard to the late issuing of the licence, Mr Brady says that his request for the Minister now to consent to the transfer of the Angela Madeline's tonnage on the basis of general fishing is entirely inconsistent with her status since the 1st January, 1995 as a boat registered to fish merely in the specific sector. Mr Brady says that to the extent that the application for the Minister's consent implies a use or a right to use the boat in the demersal sector, this is something which implies a breach of the law or at least an inconsistency with it and should, of itself, disentitle the Applicant to relief. 3. With regard to the letter of the 1st October, 1993 Mr Brady says that this was issued in error and therefore should not, for this reason, support the Applicant's claim for legitimate expectation; secondly he says that the Applicant did not rely on it as the Applicant himself made quite clear in evidence. The Applicant's evidence was that the only relevance of that letter was that it confirmed his previous understanding that the Angela Madeline's tonnage would have been available for replacement in the general fisheries sector. Thirdly Mr Brady says that the letter was provisional and could therefore be withdrawn. It was not an absolute assurance or a representation which was unqualified such as would entitle the Applicant to expect that legal consequences would follow from it. 37. Mr Clarke S. C. for the Applicant made the following submissions:- 1. Certainly the letter of application accompanying the licence gave an undertaking that the Angela Madeline would be used exclusively in the mariculture sector but it was reasonable for the Applicant to infer, upon receipt of the licence which did not include any condition relating to transferability of the tonnage, that the Minister had changed his mind from his stated conditions contained in his letter of the 26th April, 1991. It was reasonable, given that the Minister had not included the conditions which admittedly he had said he would impose, to infer that they no longer applied and therefore that the tonnage was available for transfer in the general fisheries sector. The drawing of such an inference by the Applicant was all the more reasonable given the questionable legal basis for the imposition of conditions on the Applicant which were not contained in the licence itself. 2. With regard to the change in the law from the 1st January, 1995 the Court should bear in mind the relaxed attitude of the Department to breaches of the Fisheries Acts generally. There was evidence that some 1,000 small boats which had fished illegally were registered as part of a general policy decision approved by the EU. There was evidence of a number of categories of boats that were licensed otherwise than in strict compliance with the Minister's policy of requiring an equivalent tonnage de-registration in the appropriate category. On the assumption that the Applicant had a legitimate expectation on the 31st December, 1994 that the Angela Madeline's tonnage would be available for general replacement purposes it would take more than this relaxed attitude on the part of the Minister in regard to non-compliance with the Fisheries Acts to remove such a legitimate expectation from the Applicant by reason only of a change in the law on 1st January, 1995. 3. To some extent, at least, the activity of fishing, can be separated from the tonnage replacement issue because the link between the two was not a link required by the strict provisions of the licensing sections but as a matter of administration by the Minister whereby he implemented an EU policy requiring a reduction in the national fleet. The Minister's decision to administer such a policy by imposing conditions requiring de-registering of equivalent tonnage in the appropriate sector in licences was just that: an administrative decision. Accordingly, any non-compliance with the strict requirements of the licensing provisions should be regarded as separable from the entitlement to the tonnage replacement issue and should not adversely affect the Applicant's expectation in regard to the latter. 4. With regard to the letter of the 1st October, 1993 Mr Clarke submitted that the fact that the letter was in error (as now claimed by the Minister who initially had claimed only that it was provisional) was irrelevant in the context of legitimate expectation. In this context he made reference to the observation of Lord Denning M R in Amalgamated Property Company Limited -v- Texas Bank (1982: QB: 84) where he said at page 122:- "When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or law - whether due to mis-representation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow them to do so. If one of them seeks to go back on it, the Courts will give the other such remedy as the equity of the case demands." 38. If the parties proceed on the basis of an underlying assumption that the tonnage is transferable the fact that such an assumption is an error (albeit stated formally in the Minister's letter of 1st October, 1993) does not matter for the purposes of this doctrine. Secondly, Mr Clarke says that the fact that the Applicant did not rely on this letter does not mean that it cannot create a legitimate expectation in the Applicant. In this respect he refers to the observation of McCracken J. in Abrahamson -v- The Law Society of Ireland (1996: 1: IR: 403) where he says at page 423 :- "Insofar as it may be necessary for the Applicants to show that they relied on these representations, and I think it is questionable whether reliance is necessary, I am also satisfied that these representations would be a matter which persons wishing to become Solicitors would have taken into account when deciding what courses to study, and indeed, in which Universities they would be studying." 39. Furthermore it is submitted that the letter of the 1st October, 1993 was not provisional in any way that was relevant to the issue between the parties. It was expressed to be provisional in the event that the Applicant appealed (which he did not) and in the event that the categories referred to in that letter were altered (which they were not in any way which was relevant to the status of the Angela Madeline's tonnage). Accordingly, the letter was unqualified and absolute to a degree sufficient to satisfy the requirements of the doctrine. CONCLUSIONS Error in Representations 40. For the purpose of deciding whether the Applicant is entitled to the benefit of a legitimate expectation I do not consider that I am directly or primarily concerned with whether or not a representation is erroneous or indeed with whether or not the Minister could have attached to the licence the condition which he set out in his offer of the licence in relation to tonnage. I note that the citation above from Lord Denning M. R. refers to the fact that the underlying assumption could be either due to a misrepresentation or to a mistake and that this makes no difference. Provided the assumption if carried into effect would not entail the unlawful trammelling of a ministerial power or discretion then I think that the fact that the letter of the 1st October, 1993 was in error or the fact that the conditions set out in the Minister's offer of a licence may have been conditions which were not directly related to sea fishing does not necessarily preclude the application of the doctrine of legitimate expectation. The error in the case of the letter was an error as to the application of an administrative practice (or at best a policy) of the Minister's and is therefore distinguishable from the erroneous basis of the Applicant in Wiley -v- The Revenue Commissioners (1994: 2: IR: 160) in regard to which error McCarthy J. was able to say (at page 168):- "Expressed somewhat differently, it may be said that having wrongly persuaded the licensing authority to exempt him under Section 43, subsection (1) and consequently recouped from the general body of tax payers the excise duty and the V. A. T. that he had paid on his new car in 1983 and in 1985, that when the Revenue Commissioners became alerted to possible abuses of the scheme, he should have been notified of their change of heart." 41. Earlier the same judge has said:- "It is argued that he had a legitimate expectation that when he bought the new car he would get the rebates because he had got them in the past on that extra-statutory frame and that before he was to lose that right, he should be notified before he purchased the new car." 42. As will be seen in Wiley the Applicant had got what he was not entitled to get and what the Revenue Commissioners were not entitled to give. The whole basis of his claimed legitimate expectation was a claim for something which was precluded by statute. That is not the situation with the Applicant here; he claims merely that the transaction between himself and the Minister was conducted upon the basis that he was reasonably entitled to infer that the Minister resiled from his initial limitation on the transferability of tonnage and that he was confirmed in this, albeit erroneously from the point of view of the Minister, in a later letter from the Minister. 43. If I am correct that error or mistake may not necessarily preclude the application of the doctrine, this is a consideration which in the present case cuts both ways. The erroneous letter can be a representation for the purposes of the doctrine despite its error; by the same token, however, the imposition of the conditions in the letter of offer even if such imposition were (and I will return to this later) ultra vires the powers of the Minister when dealing with a fishing licence application, would be something which would bind the Applicant who would not be entitled to say that part of his reason for assuming the Minister had changed his mind was that they were indeed, ultra vires and that the Minister should not or could not have made them. 44. To the foregoing I would add, however, that given that the doctrine of legitimate expectation is an equitable remedy it would be open to the Court to have regard to the fact that the Minister's letter was indeed an error and to the fact that the reason for the Minister's initial conditions was to implement European policy on fleet reduction notwithstanding, if it be the case, that those conditions could not have been included in the licence. These are matters which the Court should, in my view, take into account when considering the overall equity of the Applicant's case even if their erroneous character would not automatically mean that they disentitled the Applicant to assert a legitimate expectation. Was the Expectation Reasonable ? 45. I turn now to consider whether it was reasonable for the Applicant to infer that the Minister had resiled from his initial conditions by reason of the fact that they were not contained in the licence. It must be remembered that the relationship up to then had included the fact that the Applicant had made an initial licensing application which was followed by communication between the parties to the effect that he would not be entitled to a demersal licence unless he was able to satisfy the Minister on equivalent tonnage, that the application stated that the boat would be used exclusively for aquaculture, that the letter of offer stated that the granting of the licence on foot of the offer was dependant on full and complete compliance with the conditions restricting tonnage disposal and that the Applicant said in evidence that he clearly understood at the time that these conditions applied for as long as he held the boat. Furthermore, no tonnage was in fact de-registered at the time of licensing the Angela Madeline. The license itself was only for three months and was clearly for the purpose for enabling registration of the Angela Madeline rather than to entitle her to fish as indeed she was exempt. 46. In this regard it might even be said that if the Minister was indeed insisting on the policy in relation to tonnage the one thing he would not have done would have been to include that condition in a licence which was only going to be in operation for three months. If he had done this the Applicant might have been able to argue that at the end of the three months the restricting condition no longer applied. 47. In my view, taking all of the above into account, I do not consider that it was reasonable for the Applicant upon receipt of the licence to conclude that the Minister had changed his requirement in relation to tonnage. I consider that the Applicant may at that time have perceived an opportunity and taken advantage of it. I cannot see how it could be regarded as equitable or fair however, to conclude that on the basis of the relationship thus far the Applicant must be entitled as a matter of law to expect that his tonnage be now available for general replacement purposes. 48. With regard to the fact that he fished "under the noses" of the authorities, that he got a log book from the Minister's representative which was consistent only with fishing in the demersal sector, that his application for emergency relief was based, approved and successful in part on the basis of a declaration of fishing in that sector, these are all elements in the relationship between the parties which have more to do with the Applicant's activity of fishing than with the restriction on his tonnage replacement prospects. I acknowledge, however, that as a matter of practice the Minister did link the two and indeed as Shanley J. accepted in Murphy -v- The Minister for the Marine and Ors. (unreported: 11th April, 1997) at page 19:- "The Minister, in exercising his discretionary power in 1991 relating to Mr Murphy's application, was, in my view, bound to have regard to the State's obligations to the EU under the Common Fisheries Policy, and, accordingly, was entitled to take into account the replacement tonnage policy." 49. It may well be that in light of this the Minister could indeed have included the tonnage replacement conditions in the licence itself; I agree with the above views of Shanley J. and for his reason for them to the effect that the requirements of European legislation oblige the Irish Courts to interpret Irish legislation in a way that is consistent therewith. That being the case I think it is too artificial to separate completely the fishing and tonnage aspects of the relationship between the parties. This conclusion, also, cuts both ways from the point of view of the Applicant. On the one hand it operates against the Applicant to the extent that it supports the validity of the Minister's initial conditions relating to tonnage; on the other, it supports the Applicant to the extent that he says that his fishing activities done with full knowledge and to some extent the co-operation of the Minister fixes the Minister to that extent with knowledge that he was indeed fishing in the demersal sector. 50. But even if this be so, are these incidents in the relationship between the parties consistent only with an inference that the Minister had decided to abandon his requirement that the tonnage of the Angela Madeline would not be available for general replacement purposes? They are equally consistent I think with lack of communication between the various representatives of the Minister, some confusion and perhaps even a relaxed attitude. 51. The strongest point made by the Applicant is, clearly, the letter of the 1st October, 1993. I have already expressed the view that the fact that it may be in error does not mean that it cannot be part of the transaction or course of dealing between the parties to which the Court will have regard in the context of legitimate expectation. 52. In my view prior to receiving that letter the Applicant was not entitled to demand and was not in a position legitimately to expect the Minister to consent to his tonnage for replacement. On the contrary, he had presented an unqualified application limiting the fishing of the Angela Madeline to the mariculture sector, and nothing in the interim had amounted to an entitlement for him legitimately to infer that the Minister had changed his policy or requirements in that regard. On receipt of the letter of the 1st October, 1993 he, therefore, received something which was contrary to the course of dealing up to then. On the one side was his undertaking that the boat would be used exclusively for mariculture; the "advantage" of such undertaking that had accrued to him, namely licensing without providing replacement tonnage: this in turn enabled him to be registered and to finalise his loan with BIM. On the other side is the letter of the 1st October, 1993 which is at odds with the hitherto stated tonnage replacement requirements of the Minister. I cannot see how this could be regarded as an unqualified or unambiguous promise or assertion. Certainly it would not amount to a course of dealing. It may well have looked like a gift from the Gods to the Applicant and indeed it was entirely gratuitous and if it is to be enforced it would mean that he would gain the value of the Angela Madeline's tonnage at the cost of an equivalent loss to the Irish fleet. Unfair or Unjust ? 53. Can it be said that "it would be unfair or unjust" to allow the Minister to go back on the letter? Where is the injustice? It is not as if the Applicant had mistakenly or otherwise paid for equivalent tonnage as a price for getting the licence; on the contrary, if he is to be granted the Minister's consent, the loss would be to the national fleet and the gain for the Applicant would be entirely gratuitous. He would have been the beneficiary of an unpaid for advantage which cost him nothing due to an error on the part of the Minister. Even accepting that the letter was not provisional in the sense contended for by the Minister, I could not agree that it amounted to an unconditional promise or assurance as contemplated in the doctrine of legitimate expectation. Set against the clear and intentional self-limitation of the second licensing application, the unqualified and unambiguous conditions contained in the Minister's letter of offer, I consider that it would be straining language and common sense to treat the Minister's letter of the 1st October, 1993 as an unqualified assurance with the consequences in law which the Applicant now seeks the Court to enforce. Such a result would be the contrary of equity, in my view, because it would mean that the Applicant would become the gratuitous beneficiary of an erroneous letter which was out of character with the dominant and constituent elements in the relationship between the parties, namely the terms and conditions upon which that relationship was freely and deliberately set up. 54. In those circumstances I must refuse the reliefs sought by the Applicant. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII