Supreme Court: Minister of Agriculture’s application for review of judgment on negligent misstatement dismissed

The Supreme Court has dismissed a “rare and exceptional” application from the Minister of Agriculture to review a judgment relating to negligent misstatement by government officials.

The Minister submitted that, in upholding the High Court’s finding of liability for economic loss and an award of €49,600 to fishermen who relied on statements made by the Minister’s officials, the Supreme Court judgment contained an incorrect narrative of the events.

Finding that the application must fail, Mr Justice John MacMenamin found no constitutional want of fairness and no defect in procedure.


On 18 August 2003, boats belonging to Eugene Bates and Brendan Moore were in an area of the Bay of Biscay fishing for scallops, when they were informed by a French fishery patrol aircraft that they were fishing illegally. Upon contacting the Department of Agriculture, Mr Bates was told that they were entitled to fish there legally, so he told the skippers to continue fishing. On 19 August, the boats were seized and the men were fined.

In the High Court in November 2011, Ms Justice Mary Laffoy found for Mr Bates and Mr Moore, concluding that the Minister for Agriculture’s officials had acted negligently in advising the fishermen that it was lawful to fish in the area when it had been unlawful for them to do so, and awarded €49,600 in damages arising from the Minister’s officials incorrect advice to them.


Subsequent to Ms Justice Laffoy’s judgment, the Supreme Court delivered its judgment in Cromane Seafoods Limited v Minister for Agriculture [2016] IESC 6; [2017] 1 IR 119.

In Cromane, the Supreme Court set out principles of proximity relating to negligent misstatement by government officials – holding, inter alia, that an action might lie if an official had given specific negligent advice or information at a time proximate to the reliance by the recipient.

Appeal dismissed

In the Supreme Court in February 2018, the Minister for Agriculture, Ireland, and the Attorney General lost their appeal against Ms Justice Laffoy’s finding of liability for economic loss.

Mr Justice Peter Charleton rejected arguments put forward by the state that the finding would open the floodgates, and emphasised that the Department of Agriculture had a responsibility to provide accurate information.

The Court upheld Ms Justice Laffoy’s judgment on narrower grounds, holding that the narrative of the events and representations contained in that judgment allowed for the narrower approach to the question of proximity as identified in Cromane.

Application to review

After the Supreme Court delivered its judgment dismissing the appeal, and when the Court was about to make final consequential orders, the Minister for Agriculture applied to seek a review of the findings alleging there had been error in the judgment.

Mr Justice MacMenamin said that for the application to review to succeed, or even to be made, it was necessary to establish there was actually a significant error in the judgment. He said that if the alleged error was one of fact, the Court must ascertain whether the narrative of facts in the judgment actually reflected the evidence in the case and the High Court judge’s findings.

“Incorrect narrative”

In the application to review, the Minister claimed that the Supreme Court judgment contained an incorrect narrative of the events which took place on 18 and 19 August 2003, and that this account was central to Mr Justice Charleton’s decision to uphold Mr Justice Laffoy’s judgment and dismiss the State’s appeal. The Minister submitted that the judgment did not reflect the findings of Ms Justice Laffoy which were derived from the evidence adduced before her.

In order to determine the application, Mr Justice MacMenamin said it was necessary to consider what happened in the High Court and in the appeal to the Supreme Court in some detail. As such, he considered the evidence presented and the transcripts of the hearings at length.

Mr Justice MacMenamin said that the transcript of the High Court proceedings did not actually disclose the precise times when the Minister’s officials were said to have given misinformation to the fishermen – but the fishermen’s reply to particulars identified a number of such occasions between 1999 and 2002.

Stating that it was important to maintain perspective and look at context, Mr Justice MacMenamin said “[i]n fairness to the Minister, what seems to have occurred is that issues not considered as central in the High Court, which were not disputed, or even closely analysed in the evidence, became highly relevant to the appeal, and also to this application”.

Mr Justice MacMenamin said that the State’s appeal was on a net point of law – concerning whether the facts supported the findings of negligent misstatement contained in the High Court judgment. He said that “for what may have seemed good reason at the time, [the Supreme Court] was not referred to the transcript of the High Court hearing during the appeal. There was no appeal on the High Court’s findings of fact. The submissions were confined to a consideration of the judgment, and the written and oral submissions focussing on proximity and negligent misstatement”.

Having gained a “far clearer” grasp of the factual background to the case, Mr Justice MacMenamin said it was arguable that if the transcript had been brought to the Court’s attention in the appeal, or if the appeal had been on Ms Justice Laffoy’s findings of fact, the question of there being a basis for a narrower factual analysis might have been addressed further. However, Mr Justice MacMenamin said this “would then have been subject to what the evidence actually conveyed about proximity, which was not rebutted by any of the Minister’s witnesses”.

No constitutional want of fairness

Concluding that the application must fail, Mr Justice MacMenamin said that a court must proceed on the basis of what it is told by counsel.

While emphasising that neither party acted mala fides or sought to mislead the Court, Mr Justice MacMenamin said that the “unavoidable conclusion” was that, in the appeal, the Supreme Court was “left with a clear impression as to the sequence of events which, if it was actually incorrect, might and should have been addressed. In fact, the indications now available are that the narrative contained in the Court’s judgment is a fair reflection of evidence on proximity as it was adduced in the High Court and as found in the High Court judgment”.

  • by Seosamh Gráinséir for Irish Legal News

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Other judgments by Mr Justice John MacMenamin