SEA-FISHING BOAT LICENCE APPEAL
In the matter of the MFV “Rachel D” SO976 and the Lost at Sea Application for
the MFV “Kreis An Avel” SO842
Thomas Doyle and Thomas Byrne
Appellants
and
The Licensing Authority in Relation to Sea Fishing Boats
Respondent
Appeal Decision
1.1
Mode of Appeal
This appeal was heard by way of oral hearing on 9 December 2013 in the Harbour
Authority Offices, Killybegs, Co. Donegal.
The Appellants were represented by Darren Lehane B.L. instructed by D.P. Barry,
Solicitors of Killybegs and the Respondents were represented by Conor O’Mahoney
B.L, legal advisor to the Licensing Authority.
1.2
Documents
Appeal papers
Correspondence between this Appeal Officer and the parties
File as furnished by the Licensing Authority
Legal Submissions on behalf of the Appellant
Legal Submissions on behalf of the Respondent
Documents furnished during the appeal hearing
Documents obtained by Appellants under a Freedom of Information request
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1.3
Background to this Appeal
This is the third appeal brought by the Appellants in relation to the decision of the
Respondent, to attach to their fishing licence a skippering preclusion, under the Lost
at Sea Scheme. As such this appeal will be considered by this Appeals Officer under
section 16 (4) (5) Fisheries (Amendment) Act (hereafter referred to as the 2003 Act)
in that the appeal relates only to a condition…to which the licence shall be subject.
The present appeal, instituted on 28 June 2013, was issued together with a Freedom of
Information Act bundle, obtained by the Appellants. The same bundle had been
furnished at the Second Appeal but after the appeal was instituted and this Appeal
Officer found that she had no jurisdiction to consider any documentation unless it
accompanied the appeal. After receipt of the present appeal papers (which were
accompanied by the FOI documents) this Appeals Officer requested the Respondents
to file written submissions on two issues; firstly whether an Appeals Officer could
consider the Freedom of Information Act bundle and secondly whether the matter was
res judicata. This request was made in October 2013 under section 14 of 2003
Fisheries Amendment Act. Written submissions were duly filed by both sides.
1.4
Freedom of Information Act Documentation
Section 7(3) of the 2003 Act states:
The notice of appeal shall be accompanied by such documents, particulars or other
information relating to the appeal as the appellant considers necessary or
appropriate.
As the wording is unfettered there is nothing preventing an Appeals Officer
considering this documentation in the 2003 Act. Therefore I have duly considered
those documents that the Appellants have sought to rely upon to advance their case.
These primarily relate firstly to internal e mail correspondence between the SFPA
(Sea Fisheries Protection Authority) staff members, secondly, e mail correspondence
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between the SFPA and Messrs Boohig Solicitors and lastly and most pertinently
internal e mail correspondence within the Licensing Authority between Adrian
Hosford and Paschal Hayes.
I will return to the import of these documents later however I find that as there is
nothing to prevent a consideration of the FOI bundle within the Act and no other
argument has been raised to prevent me from so doing, I will proceed to consider
same for the purposes of this appeal.
1.5
Res Judicata
Section 7 of the 2003 Act states inter alia that “ a person aggrieved by a decision of a
licensing authority on an application for a licence may …appeal to an Appeals
Officer.”
It would appear therefore that each time a decision is made by the Licensing
Authority on an application for a licence and that a right to appeal is triggered.
Again, the wording is unfettered and as a decision was taken by the Respondents on
13 June 2013 to issue a licence encumbered with a condition (which is the subject
matter of this appeal) this represents a fresh decision. Therefore, subject to a finding
of res judicata, this appeal is valid.
On the res judicata point, the Appellants submits that the FOI papers shows that the
decision of the Respondent not to put the skippering preclusion as a condition on the
face of the licence was a conscious decision as opposed to something that occurred by
mistake. They submit that this is a new feature of the case which supports the
Appellant and therefore the case is not already fully adjudicated upon. I accept this
point and therefore, I dismiss the contention of the Respondents that the matter is res
judicata. In doing so I apply the principles of Henderson v. Henderson [1843] 3
Hare 100 as applied in the Irish case of Woodhouse v. Consignia Plc [2002] 1 WLR
3
2258 and as applied by Denham J in Bula Limited (in receivership) & Ors v.
Crowley & Ors [2009] IESC 25 .
I accept the contention raised by the Appellant that not until now that the Appellant
has been in a position to present his “whole case” because it was not until the FOI Act
request was acceded to that the conscious nature of the decision of the Respondent, in
not putting the condition expressly on the face of the licence, became known. I accept
that this claim of a conscious decision is a new feature of the case and regardless of
whether it actually advances the Appellants appeal or not, it should be freshly
adjudicated upon.
1.6
Legitimate Expectation
In Glencar Exploration plc v. Mayo County Council (No.2) [2002] 1 IR 84 the
issue to be determined was the following: whether there has been a course of conduct
engaged in by the Respondent which gives rise to “a transaction…definitively entered
into..which is reasonably entertained by the Appellants to the extent that it would be
unjust for the public authority to resile from it.”
As I have already stated1 that I find that it is open to an Appeals Officer, if the
circumstances, permit, to make a finding that a right to a licence may be acquired on
appeal if the Appellant can show that as a result of representations made, or as a result
of the conduct of the Respondent, he/she has been led to rely on these representations
to reasonably believe that he will receive a licence.
However the issue for this appeal is whether the test in Glencar has been met.
The uncontested facts are as follows:
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November 2011 [First Appeal] at page 7
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1. In 2000 the Minister of Marine and Natural Resources made assurances to the
Appellants on Killybegs pier, that they would receive a licence which they
understood to mean that they would receive a licence free from any
encumbering condition.
2. On 21 June 2001 what appears to be the first letter was written to the
Appellants by Dermot Doogan of the Sea Fisheries Administration Division,
(SFAD) of the Department of the Marine and Natural Resources. In that letter
Mr. Doogan explained that a Lost at Sea Scheme was being established and
invited the Appellants to complete a questionnaire in order to determine their
eligibility under the scheme. The letter states that a condition of the scheme is
as follows:
“The capacity of a fishing vessel lost at sea will be accepted as replacement
capacity for licensing purposes only if it is to be used for the purposes of
sustaining or maintaining a family tradition of sea fishing. Any capacity
accepted as replacement capacity must therefore be used for the purpose of
introducing a replacement for the lost vessel which will be owned and
skippered by the applicant or by an immediate relation of the applicant.”
3. On 11 July 2001 the Appellants signed a declaration in their application for
replacement capacity under the Lost at Sea Scheme. The declaration reads
under (ii) “The new vessel must be owned and skippered by me, or by one of
my immediate relatives.”
4. As part of the resolution of Judicial Review proceedings an open letter, dated
24 February 2003, was written to the Appellants via Sean O’Donoghue of
Killybegs Fishermen Association (representing the Appellants) by James
Moloney, (SFAD). In this letter Mr. Moloney makes reference to the Lost at
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Sea Scheme and states that “In the event that the court proceedings initiated by
Messrs Byrne and Doyle in relation to the “Kreis an Avel” are struck out with
no order, the Department would be in position to decide on the application
under the “lost at sea scheme” and would be prepared to grant half of the
capacity of the Kreis and Avel (28 GT and 160 kW) to Mr. Doyle under the
lost at sea scheme, for use as replacement capacity in accordance with the
terms of that scheme. Mr. Byrne does not qualify under the scheme as he
acquired a replacement vessel.” (my italics added)
5. On 7 March 2003 a further letter was written to the Appellants, via Sean
O’Donoghue of Killybegs Fishermen Association, by James Moloney (SFAD)
stating that the Lost at Sea Scheme would apply to the Appellants. The letter
points out that under the scheme the replacement vessel would have to be
skippered by Mr. Doyle.
6. On 5 December 2003 the Appellants received a letter from James Moloney
(SFAD). The function of this letter was two fold. Firstly to set out the terms
upon which the Lost at Sea Scheme would apply to the Appellants and
secondly to set out the terms of the licence offer for the Rachel D.
Under the first section of the letter headed “Lost at Sea Scheme”, it is stated
that the lost at sea scheme would be apply to 50% of the capacity which had
been lost with the MFV Kreis an Avel. This applied only to Mr. Doyle. The
capacity owned by Mr. Byrne related to the Rachel D which did not come
under the scheme. The vessel would be jointly registered but only Mr. Doyle
could skipper it – or an immediate relative of his.
Under the second part of the letter headed “Licence Offer” under paragraph
(v) it states:
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“ It is understood that it is proposed to use the 28 GT and 160kW granted to
Mr. Doyle is respect of the Kreis an Avel towards the licensing of the Rachel
D and that the terms of its use (as set out above) will be fully complied with.”
In light of this correspondence it is difficult to accept the submission by the
Appellants that the Respondent had embarked upon a course of dealing which created
a transaction which was definitively entered into and which was reasonably
entertained by the Appellants that the skippering condition would not be applied to
them.
The above correspondence repeatedly refers to the skippering preclusion. It is difficult
to see how an argument that they were not on notice of it, could succeed.
1.7
No reference on the face of licence for 6 years
An alternative argument raised by the Appellants in this appeal is that all of these
letters were sent before the licence issued and since the licence was issued in 2003, no
reference was made to a skippering preclusion and significantly, no such condition
was either put on the face of the licence or was sought to be enforced until 2009 when
for the first time, it appeared on the licence. The argument is therefore – regardless of
what was written prior to December 2003, did a course of dealing develop between
2004-2009 whereby a transaction took place between the parties to allow them believe
that this previously referred to skippering preclusion would not be enforced?
The Appellants point to the following: the Minister gave them a verbal assurance in
2000, their licence did not refer to a skippering condition on its face for 6 years and
the condition was not enforced for 6 years. In other words, regardless of the
correspondence pre-December 2003, do these three factors give rise to a transaction as
per Glencar?
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I find that if the earlier correspondence did not refer to the skippering condition then
the test in Glencar could well be met. However it does exist and cannot be ignored in
the analysis of what was known or not known to the Appellants when they accepted
the terms of the Licence Offer on 12 December 2003.
1.8
FOI e mail extracts
E mails discovered in the FOI search indicate that a decision was taken not to put the
condition on the face of licence. In particular the e mail of 16 April 2009 from Mr.
Adrian Hosford to Paschal Hayes of the Licensing Authority:
“We had decided not to add the condition until the outcome of the investigation in to
the scheme by the Ombudsman”
The Appellants submit that e mail is evidence of the fact that that it was intended that
the condition would not apply. The Respondent rejects this. At the oral hearing in the
present case, Ms. Mairin ni Dhuinn, on behalf of the Respondent, gave evidence that
the staff had known that there was a problem with the enforcement of the condition
and knew too that this was because the condition was not on the face of the licence.
This was her evidence and I found it credible. However, because there is an opinion
that the condition might not be enforceable, does this render the condition itself to be
unlawful? I do not believe that it does. If a decision was taken that in order to make
the condition enforceable, it had to be put on the face of the licence, such an act is a
lawful act. Just because the condition was unenforceable between 2004 and 2008 did
not render it to be unlawful, rather, it was unenforceable until it was put on the face of
the licence, which occurred in 2009.
It is accepted that the licence document from 2004-2009 itself did not contain a
skippering preclusion, which I have already stated is unfortunate and required
remedial action but it was necessary in order to make it enforceable, not to make it
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lawful, as it already was. From 2009 onward the enforcement difficulties no longer
existed and I believe that the Respondent was entitled to seek enforce the condition
from then.
1.9
Conclusion
As the Appellants were on notice of the fact that a skippering preclusion was a term of
the lost at sea scheme and that it was being applied to them and as I find that no
transaction occurred between the parties as per Glencar, I find that this appeal fails.
_____________
Emile Daly B.L.
11 February 2014
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