Supreme Court: State loses appeal against finding of liability for negligent advice given to fishermen



The Minister for Agriculture, Ireland, and the Attorney General have lost their appeal against a finding of liability for economic loss resulting from negligent advice given to commercial fishermen, which caused their arrest and a fine for engaging in commercial scallop fishing.

Upholding the finding of the High Court, 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.

Background

On 18 August 2003, vessels belonging to Eugene Bates and Brendan Moore were fishing just outside the territorial 12 mile limit of French waters, a French fishery patrol aircraft informed them that they were fishing illegally for scallops in that area.

Mr Bates contacted the Department for Agriculture, and was informed that they were entitled to fish legally in area VIIIa up to the limit of French territorial waters.

He thus told the skippers of the two boats to continue fishing in that area.

On 19 August 2003, the Maritime Nationale arrested the boats.

On 20 August 2003, the skippers attended a court hearing at which the vessels were released on lodging bonds totalling €27,000.

Later, answering to bail on 7 November 2003, Mr Bates and the skipper of the Alicia pleaded guilty to charges of illegal fishing at a Magistrate’s Court hearing in Brest, France.

Fines of €18,000 were imposed in addition to civil charges of €48,000 and €1,500 costs.

The High Court

In November 2011, Justice Laffoy held that the background to the arrest of the vessels in August 2003 included:

  • assurances from the Department for Agriculture that they could fish in areas VIIIa/b/c;
  • the issuance of licences based upon the fishing plan;
  • a specific assurance that a ban on scallop fishing by the British authorities in that area applied only to British-registered vessels and was not in consequence of any EU legislative action.

Prior to the trial, the State defendants accepted that these assurances had been given, and that Department of Agriculture only discovered their mistake when they were informed by the Direction des pêches maritimes et de l’aquaculture, following the arrest, that the relevant EU Regulation gave a quota for scallop fishing exclusively to French vessels in area VIIIa.

Justice Laffoy found for the plaintiffs as regards the damage flowing immediately from the arrest of the two fishing vessels.

Justice Laffoy awarded only the damages immediately consequent upon the advice given by the Department when the vessels were on the high seas in the Bay of Biscay which resulted in them staying within area VIIIa.

Hence, the sum awarded was the sum paid to the French courts and the immediate loss of fishing days.

Supreme Court

The State defendants appealed the High Court’s finding to the Court of Appeal consequent upon the coming into force of Article 34.5 of the Constitution, however it was heard in the Supreme Court “for administrative reasons”.

On appeal, the primary facts were not demonstrated to be incorrect.

In addition, an inference from the primary facts as to the ultimate cause of the misinformation given to the plaintiffs was made by the trial judge, which came within the principles in Hay v O’Grady 1 IR 210.

As such Justice Charleton stated that it was not the case that “an appellate court is in as good a position as the trial judge to draw inferences of fact.”

Justice Charleton emphasised that an appellate Court should “…be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge”. (Gairloch The SS, Aberdeen Glenline Steamship Co v Macken 2 IR 1, and The People (Director of Public Prosecutions) v Madden IR 336 considered)

Furthermore, the finding by inference was also based on the pleadings. Justice Charleton stated that the conclusion deduced from evidence by the trial judge was not made in error, and that the inference must stand.

The main point argued was the liability of the state defendants for economic loss resulting from negligent advice given to Mr Bates and Mr Moore which caused their arrest by the Marine Nationale, and consequent fine, while engaged in commercial scallop fishing just outside the territorial waters of France in the Bay of Biscay.

On the issue of liability, Justice Charleton rejected the defendants argument that this case opened the floodgates and “shattered the borders of public liability” – i.e. that the decision opened “the way to liability for every Department of State in the casual discussion of the business of those who interact with them”.

In the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, Justice Peter Charleton upheld the finding of Justice Laffoy that there was a special relationship giving rise to liability for negligent advice.

In all the circumstances, the Supreme Court upheld the reasoning and order of Justice Laffoy.

  • by Seosamh Gráinséir for Irish Legal News