About this case:

• Citation:
  [2020] IECA 186
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

The Court of Appeal agreed with the High Court that the proceedings should have been taken by way of judicial review.

Background

The then European Economic Community (EEC) sought to define characteristics for sea fishing vessels by regulation, and to that end promulgated Council Regulation (EEC) No 2930/86 determining characteristics for fishing vessels. The regulation aimed to set identical rules for determining the characteristics of fishing vessels for the purposes of the common fisheries policy.

The MFV Áine Íde fishing vessel was registered the purposes of the Fisheries (Amendment) Act 2003 as having a length of 65.5 ft, when measured according to Article 2.1 of Council Regulation (EEC) No 2930/86 which defines the length of a vessel as being “the distance in a straight line between the foremost point of the bow and the aftermost point of the stern”.

Council Regulation (EC) 3295/94 prompted the Marine Survey Office of the Department of Transport to re-measure the vessel in late 2003.

When re-measuring the tonnage of the MFV Áine Íde for the purposes of Council Regulation (EC) 3529/94, the Marine Survey Office applied the regulation 2 definition of “length” rather than the definition in Article 2.1 of Council Regulation (EEC) No 2930/86. The difference in definition gave rise a difference in measured length. The recorded length of the MFV Áine Íde following the remeasurement for gross tonnage calculation purposes was 63.97 feet.

The consequences of the change of registered length meant that Colum Browne, as owner of the MFV Áine Íde, was no longer eligible to obtain licences to fish for herring and mackerel in the over-65 ft segment of the fleet.

He commenced proceedings against the Minister, Ireland and the Attorney General by way of Plenary Summons in which he claimed various declarations and damages for alleged tort, breach of his right to earn a livelihood and to own property pursuant to Article 40.3.1 of the Constitution of Ireland and Article 1 of the First Protocol of the European Convention on Human Rights.

High Court

The Minister, relying on O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, Kildare Meats Limited & Kildare Chilling Company v Minister for Agriculture and Food [2004] 1 IR 92, Shell E&P Ireland Limited v McGrath & Ors [2013] 1 IR 247 and Express Bus Limited v National Transport Authority [2018] IECA 236, submitted that Mr Browne’s claim involved a challenge to the exercise of powers or discretions of a type which fall for review by way of judicial review, and that he was therefore precluded from pursuing the relief sought because he was well outside the time limit applicable for judicial review proceedings.

The Minister submitted that any tortious cause of action put forward on behalf of Mr Browne had long since accrued for the purpose of the Statute of Limitations. Particular reliance was placed on Supreme Court judgment in Brandley v Dean [2017] IESC 83, where it was held that the date of accrual in case of the type before it (negligence in the building of a house leading to economic damage) was when the damage is “manifest”.

Counsel for the Minister argued that the date of accrual was the date when the Áine Íde was re-measured in December 2003, or alternatively, the date of first decision deny access to the vessel to an over- 65ft segment of a fishery because of this re-measurement, which was 2006 at the latest.

Counsel for the plaintiff emphasised that under the complex regime provided for by Irish and EU law, a person does not have an automatic right to fish and that each new season brings a fresh decision of the Minister with regard to the allocation of quotas and fishing opportunities. It was argued that because of this, time did not start to run until the Minister’s Policy Directives of 2011 and 2012 shut Mr Browne out of the fisheries in question.

Ms Justice Una Ní Raifeartaigh dismissed Mr Browne’s claims. He appealed to the Court of Appeal.

Court of Appeal

Counsel for the plaintiff cited Frontini v Ministerio delle Finanze [1974] 2 CMLR 372, Amministrazione delle Finanze dello Stato v Simmenthal, Case 106/77, the Advocate General’s Opinion in Fantask A/S and Others v Ministry of Trade and Industry, Case c-188/95, 26 June 1997, R v MAAF, ex parte Hadley Lomas [1996] ECR I 2553 and Mr Justice Nial Fennelly’s obiter dictum in De Ròiste v Minister for Defence [2001] 1 IR 190, at 216, in which the judge suggested that failure to seek certiorari or mandamus expeditiously does “not bar a remedy and a party may, in an appropriate case, proceed by plenary proceedings.”

The State argued that if judicial review time limits did not in fact apply, Mr Browne’s case is time barred pursuant to s.11 of the Statute of Limitations 1957, relying on Hegarthy v O’Loughran [1990] 1 IR 148; Irish Equine Foundation Ltd v Robinson [1999] 2 IR 442; Gallagher v ACC Bank Plc [2012] 2 IR 620 and Brandley v Deane [2017] IESC 83.

Mr Justice John Edwards, with whom Ms Justice Aileen Donnelly and Mr Justice Seamus Noonan agreed, upheld the judgment of the High Court. He said that no matter how one viewed Mr Browne’s case “the essential nature of the subject matter is to do with administrative decisions/exercises of discretion about which he is dissatisfied.”

The Court found that Mr Browne’s proceedings “therefore represent a collateral attack on those administrative decisions exercises of discretion in circumstances where no application was made for leave to seek appropriate reliefs in that regard by way of judicial review.”

The judges said that judicial review was the appropriate procedure by means of which to make such challenges as is clear from decisions such as O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, and Kildare Meats Limited & Kildare Chilling Company v. Minister for Agriculture and Food [2004] 1 IR 92.

The court noted that public law decision can sometimes be challenged in proceedings other than judicial review proceedings, and in appropriate cases time may be extended if there is good reason for doing so. However, the authorities provide that even where a party seeks to challenge a public law decision other than by means of judicial review, “and it should again be stressed that judicial review is the expected and normal way of doing so”, judicial review time limits still apply “subject to the possibility of them being extended, if there is good reason for doing so.”

Mr Justice Edwards cited the judgment of Mr Justice Frank Clarke in Shell E&P Ireland Ltd v McGrath [2013] 1 IR 247 where he said that it “would make a nonsense of the system of judicial review if a party could by-pass any obligations which arise in that system (such as time limits and the need to seek leave) simply by issuing plenary proceedings which, in substance, whatever about form, sought the same relief or the same substantive ends. What would be the point of courts considering applications for leave or considering applications to extend time if a party could simply by-pass that whole process by issuing a plenary summons?”

The court dismissed the appeal.