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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Barlow & Ors v The Minister for Communications, Marine & Natural Resources & Ors (Approved) [2025] IESC 14 (11 April 2025) URL: https://www.bailii.org/ie/cases/IESC/2025/2025IESC14.html Cite as: [2025] IESC 14 |
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AN CHÚIRT UACHTARACH
THE SUPREME COURT
Supreme Court Appeal Numbers: S:AP:IE:2023/110
Court of Appeal Record Number: 2019/345
High Court Record Number: 2006/2687P
[2025] IESC 14
O'Donnell C.J.
Charleton J.
O'Malley J.
Murray J.
Donnelly J.
BETWEEN
PAUL BARLOW, WOODSTOWN BAY SHELLFISH LTD., MICHAEL CROWLEY, RIVERBANK MUSSELS LIMITED, GERARD KELLY, FRESCO SEAFOODS LIMITED, TARDRUM FISHERIES LIMITED, ALEX MCCARTHY, AND HALCOME MERCHANTS (IRELAND) LIMITED TRADING AS ALEX MCCARTHY SHELLFISH
Plaintiffs/Appellants
- AND -
THE MINISTER FOR COMMUNICATIONS, MARINE & NATURAL RESOURCES, THE REGISTRAR GENERAL OF FISHING BOATS, IRELAND AND THE ATTORNEY GENERAL
Defendants/Respondents
JUDGMENT of Mr. Justice Brian Murray delivered this 11th day of April 2025
INDEX [1]
I THE BACKGROUND
This case
The context
Implementing the National Development Plan
The plaintiffs' investments and their dealings with the Department
The voisinage agreement
SMAC and the allocation of mussel seed on an 'all Ireland' basis
Allocations to the plaintiffs
II THE PROCEEDINGS AND THE TRIAL
The essential complaints
The institution of these proceedings and Barlow II
Subsequent proceedings
The evidence
(i) The allocation process
(ii) The expert evidence
(iii) Evidence as to loss
The argument
III THE JUDGMENTS OF THE HIGH COURT AND COURT OF APPEAL AND THE ISSUES BEFORE THIS COURT
The High Court
The Court of Appeal
The challenges presented by the plaintiffs' claims
Defining the case in negligence
(i) The duty
(ii) The losses
(iii) The legal basis for the asserted duty of care
IV ANALYSIS
The legal context
The identification of a duty of care
The correct approach to the identification of the duty of care in a novel situation
Assumption of responsibility
Economic loss
Application of these principles to this case
Statutory functions
The availability of judicial review
The relationship between 'public law' invalidity, and liability in negligence
The proper approach to negligence actions arising from the exercise or non-exercise of a statutory discretion
The standard of care
Cromane
Bates
The relevance of the statute
Has there been an effective disclaimer?
V THIS CASE
Summary of relevant principles
The issues that can be resolved in this appeal
Outstanding issues
I THE BACKGROUND
This case
1. Almost every significant case in the last fifty years in which this Court has come to analyse the scope of the tort of negligence has involved the State or a State controlled defendant. Many of those actions have presented attempts to impose liability for the manner in which such defendants have exercised (or not exercised) their statutory functions. This is striking, but at the same time unsurprising. The extensive apparatus of the modern administrative state carries with it the potential for significant injury to those who choose - or are forced - to rely on the State or its various agencies in its control or support of their livelihoods, property, businesses, or welfare. When injury results from what appears to have been the careless exercise or non-exercise of those powers, it is to be expected that some of those suffering loss will seek to contend that the law provides them with a remedy. Often that loss will be an entirely foreseeable consequence of the manner in which powers are exercised, and frequently those sustaining that injury can posit a close relationship with the State agency that they believe to have caused them damage. Indeed, on occasion it can be said that such a State defendant has, by reason of the dealings between the injured party and the State, assumed a particular responsibility to them.
2. However, any impression that these elements of carelessness, proximity, foreseeability of loss and actuality of damage will, when combined, in and of themselves generate liability in private law for losses caused by the negligence of State defendants has to be set against broader issues of principle and policy which are in play when it is sought to make the State accountable in damages for injury sustained as a result of alleged negligence arising from acts or omissions undertaken on foot of statutory functions. Sometimes, decisions said to have been made without due regard to their impact upon a particular claimant are reached with a view to balancing the demands of competing policies or, for that matter, conflicting interests, and it thus cannot be said that the State body has breached an identifiable 'standard of care' as this is understood in the law of negligence. Often it can be said that a particular power or function is peculiarly governmental and without an analogue in private relations, so that it is in principle wrong to superimpose the general law of negligence on the exercise of that power. In many cases, a claim in negligence in these circumstances involves a complaint not about the infliction of a loss, but instead arises from the failure to confer a benefit - a distinction which invariably complicates the analysis of any asserted liability in the law of negligence. It will happen in some cases that the very nature of the governmental activity in play will be such that the losses are purely economic, with the attendant restrictions on liability arising from the general law of negligence. Moreover, when a defendant has been acting under the umbrella of a statutory provision, it may be right to consider whether the legislator intended that persons injured by the manner in which that provision was operated or applied could sue to recover damages. And, of course, statutory powers are regularly conferred to advance a general public interest, not to protect a discrete category of persons, so that it might be said that the law should in some situations enable broader issues of policy to trump the right of a particular plaintiff to recoup what would otherwise be categorised as a negligently inflicted loss.
3. This case squarely presents all of these issues. Between 2002 and 2004 the plaintiffs [2] invested a total of €14.25M in four new mussel dredging vessels. This represented 60% of the total cost of those boats. They did so with the active encouragement and assistance of the defendants, [3] who controlled access to the mussel seed stock in the State's waters, who wished to promote the development of the State's mussel fishing sector and who, to that end, in part provided and in part procured from the European Union grant aid covering the other 40% of the cost of the dredgers. [4] By the time the vessels had arrived and were fit for use in 2005, the yield from the mussel seed fishery had significantly dropped on previous years, and in 2006 it collapsed entirely. That depletion was proceeded by the first defendant ('the Minister' or, as the context requires, 'the Department') issuing a large number of permissions to the owners of fishing vessels registered in Northern Ireland [5] to allow them to collect mussel seed in the State's territorial waters. In 2016, in related proceedings (Barlow v. Minister for Agriculture, Food and the Marine [2016] IESC 62, [2017] 2 IR 440) ('Barlow II'), this Court decided that the grant of permission to Northern Ireland fishermen to fish in the State without the authority of an Act of the Oireachtas, was contrary to the provisions of Article 10 of the Constitution.
4. Until that decision, in the decade following the plaintiffs' taking delivery of their vessels, the Northern Ireland vessels continued to fish mussel seed in the State. The plaintiffs say that the businesses they had hoped to develop were, as a result of the consequent pressure on the fishery and the failure of the defendants to properly manage the mussel seed resource, not viable. The yield during this period never reached the levels it had been at in 2003/2004. Eventually - between 2014 and 2016 - some of the plaintiffs disposed of the mussel dredgers in which they had invested, while some said that they were forced to dispose of other vessels and plant they had acquired for the purposes of mussel fishing. All contend that they suffered significant losses as a result of the manner in which the mussel seed resource was managed by the defendants. In these proceedings they sought damages reflecting those losses, together with various declaratory reliefs.
5. Their claims for damages were for breach of statutory duty, breach of constitutional duty, breach of their constitutional rights, legitimate expectation, what was termed 'unlawful delegation', breach of EU law, negligence and negligent misstatement. Following a full trial, the High Court dismissed those claims ([2019] IEHC 416). In the course of their appeal against that decision, the plaintiffs restricted their complaints to the High Court's rejection of their claims in negligence and for breach of constitutional rights. The Court of Appeal dismissed that appeal ([2022] IECA 179) (judgment of Edwards J., with whom Power and Collins JJ. agreed). This Court granted leave to appeal ([2023] IESCDET 129) as to the issue of whether the defendants, as public bodies exercising a public function, were liable to the plaintiffs in the tort of negligence for the mismanagement of the State's mussel seed resource.
The context
6. Two types of mussel fishing have traditionally been practised in Ireland - 'bottom mussel fishing' (carried out along the east coast and in parts of Co. Kerry) and 'rope mussel fishing' (practised along the west coast). This case concerns the first of these. Botttom mussel fishing involves transferring mussel seed from areas where it has settled to a site where the mussels can reach maturity before being harvested for sale. The first part of that exercise requires a dredging operation by which quantities of mussel seed are retrieved from the sea bed. The seed is then transported - preferably by sea - to aquaculture sites where it is re-laid in shallow and sheltered conditions, being subsequently (and when fully grown) harvested and sold. This usually occurs eighteen to twenty-four months after the mussel seed is laid. The business, obviously, depends on the availability of mussel seed, and the key to successful mussel farming is a regular supply of seed that can be dredged at particular locations during a relatively narrow window of time, usually in or around the summer or early autumn months. In order to accommodate the sites at which the seed is found and laid, the vessels used are flat-bottomed; other fishing vessels are not suitable for that purpose, and mussel dredgers are not suitable for other forms of fishing.
7. Prior to the early part of this century, mussel seed was fished in this way in regions of the Irish sea by a small number of operators. On the east coast, the resource seems to have been plentiful, or at least sufficient to meet the needs of the fishermen who made it their business to collect it. Evidence in the High Court, while disclosing that the scientific community did not have a definite understanding of how it came about that mussel seed was abundant in some areas but not others, suggested that parts of the Irish Sea running from Carnsore Point to Carlingford Lough produced a thriving resource. The expert evidence tendered on behalf of the plaintiffs was to the effect that historically a small number of fishermen managed the resource amongst themselves, applying what was described as 'the partially grown principle': that is that they waited until the mussels were of a sufficient size (it was suggested at one point in the evidence that this was in the region of 25-30 mm) before fishing that seed, thereby lifting seed in the autumn that had fallen in the previous spring or autumn. The evidence was that this had two advantages: it maximised the prospects of the seed surviving the process of transportation, but it also allowed the seed to 'overwinter' thereby enhancing the stock fished. The plaintiffs' evidence was also that until 2004, there was always an adequate supply of seed available to those fishing and farming mussels in the State's territorial waters.
8. In the late 1990s, the agency concerned with the development of sea fisheries and aquaculture in the State - An Bord Iascaigh Mhara ('BIM') - developed an interest in the greater exploitation of the mussel seed resource. The Government's National Development Plan 2000-2006 (which was launched in November 1999) set a target of an annual harvest of 40,000 tonnes of mussel seed by 2006. While not preceded by any detailed survey of the resource, the context in which that target was fixed was one of continued growth in the sector: the statistics put before the High Court (which were presented with various caveats) suggested that in 1990, 15,000 tonnes of mussel seed had been harvested in the State, and while this dropped to 5,000 tonnes in 1995, it climbed consistently thereafter, exceeding 20,000 in 2000, 2001 and 2002. In fact, the harvest for 2003 was 30,000 tonnes, and was just short of that in 2004. Following the publication of the National Development Plan, the Minister's policy - according to the evidence given before the High Court - was to grow the aquaculture sector in all its elements, including the bottom grown mussel industry. The National Development Plan enabled the provision of grant aid for that purpose.
9. However, to give effect to this policy insofar as bottom grown mussels were concerned, the State needed fishermen who were either involved in the sector or were prepared to enter it and who had (a) the necessary experience to properly exploit the resource, (b) the vessels required to undertake collection of the seed and (c) access to a place where the mussel seed could be farmed. Collectively, the activity required a series of regulatory consents: a sea fishing licence (issued under the provisions of s. 222B of the Fisheries (Consolidation) Act 1959, as inserted by the Fisheries (Amendment) Act 1983 and amended by the Fisheries (Amendment) Act 1994), an allocation of mussel seed that could be fished in a season (issued under the provisions of various legislative provisions to which I will come shortly), and (in at least some cases) an aquaculture licence (required by the Fisheries (Amendment) Act 1997). It is of some importance to events as they transpired to observe that as the resource was in fact managed by the Minister, the second and third of these were closely related: the allocation of seed was related to the size of the area available to the applicant for the laying of the mussels.
10. Each of the plaintiffs - in one way or another - fitted this bill. All had been involved in fishing of some form for many years, and each had access to an appropriate aquaculture site. Thus, Mr. Barlow, the first plaintiff, has been fishing all his life. He is a substantial shareholder in, and controls, the second plaintiff, which has been involved in oyster farming in County Waterford since the mid-1990's. By July 2002, Mr. Barlow had put in place arrangements to obtain fishery rights from the Duke of Devonshire for ten years over 440 hectares at Youghal, County Cork. He also had an interest in sites at Kinsale, the River Ilen in Baltimore, Co. Cork and at Waterford Harbour.
11. The third plaintiff, Mr. Crowley, has been involved in the fishing industry since he was sixteen, had skippered a mussel dredger in Waterford Harbour from 1999 to 2003, and was the general manager of the fourth plaintiff, a subsidiary of a company incorporated in the Netherlands owned by two Dutch individuals (who themselves had had a lengthy involvement in mussel fishing). The fourth plaintiff was incorporated in 2004 and obtained mussel farming interests in Wexford Harbour. These comprised 237 hectares of fishing grounds. In 2007 two subsidiaries of the fourth plaintiff acquired two further farms at the same location totalling some 170 hectares.
12. The fifth plaintiff, Mr. Kelly, had been mussel fishing since 1997. He has a substantial shareholding in the sixth and seventh plaintiffs. He had originally been fishing and moving mussel seed in and from Greencastle to Lough Foyle, thereafter dredging musssels in the Irish Sea. The sixth and seventh plaintiffs subsequently acquired an aquaculture licence and growing area in Wexford Harbour.
13. The eighth plaintiff, Mr. McCarthy, is the managing director and principal shareholder of the ninth plaintiff. Since 1983, he had been involved first in fishing mussels, and thereafter processing them. In 1995 he acquired a 48 hectare aquaculture site in Carlingford Lough. In 1997 he purchased a purpose-built vessel, The Cornelius Gerrit, establishing the ninth defendant in that year. It sourced mussel seed and laid it in Carlingford Lough. In 2002, he acquired 112 hectares of mussel growing grounds in Co. Wexford, and in December 2003 - having acquired a further 62 hectares of such grounds in Carlingford Lough - he obtained a new aquaculture licence for that farm.
Implementing the National Development Plan
14. The need to develop what was perceived as a large and untapped resource was driven by the obvious economic advantages of a new and sustainable aquaculture industry that would provide employment in coastal areas where unemployment remained high, which would support the then fledgling processing industry, and at the same time would create an export market. For all of this to happen, several obstacles had to be overcome.
15. First, the fleet had to be modernised. Mussel seed is volatile and fragile, particularly when harvested from the seabed. If transferred and relayed on a purpose-built boat, the chance of successful transplantation is increased. Here, however, there was a particular problem. As of the early 2000s the fleet was old - the first plaintiff was not contradicted when he said in his evidence that in 2002 'there were boats afloat fishing that were older than the Titanic'. Enhanced safety standards as provided for in Council Directive 97/70/EC of 11 December 1997, setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, as amended by Commission Directives 2002/35/EC and 2002/84/EC, were being applied to all larger fishing vessels and that included the mussel dredger fleet. Those Directives were implemented in Ireland by the European Communities (Safety of Fishing Vessels) Regulations 2002 and the Fishing Vessels (Safety Provisions) Regulations of the same year. Those standards were intended to take effect for the 2004 fishing season (although a derogation was granted for a short period). They demanded that inter alia mussel fishing boats have a certificate of compliance ('CoC') with the relevant safety requirements. There was evidence given to the High Court to the effect that the introduction of the need to obtain a CoC reduced the size of the fleet (there does not appear to have been a consensus on the precise numbers affected, but it seems that at various points between 7 and 11 of the 30 or so vessels in question were compliant). Updating existing vessels or acquiring new ones that met those standards was extremely expensive.
16. Second, in April 1999 an EU mandated general moratorium was introduced by the Department on the grant of new licences for the fishing of bivalve species. This was prompted by a concern that there were too many vessels in that sector of the fleet. It was - seemingly in July 2002, and apparently in the context of the National Development Plan - decided that this policy would be modified to allow for the licensing of certain aquaculture vessels. This required the agreement of the relevant EU authorities. That agreement was procured by the Minister. In July 2002, the Minister advised the industry that licences would be granted for aquaculture vessels subject to certain conditions. The licences granted in consequence only enabled the use of the vessels to catch mussel seed, and were specific to a submitted business plan and acquaculture plan and to particular aquaculture sites, all of these being subject to the approval of the Minister. Only seven boats were able to avail of the lifting of this moratorium. The plaintiffs, between them, owned four of those seven vessels. To put that in context, there was evidence that at one point following the introduction of the new vessels in 2005, the Irish mussel fishing fleet comprised 17 boats.
17. Third, and closely related to this, various EU legislative measures (but in particular Council Regulation (EC) 1263/1999 of 21 June 1999 on the Financial Instrument for Fisheries Guidance ('the FIFG Regulation')) envisaged the provision of financial support for the fisheries and aquaculture sector. These were linked to EU structural policy (established by Council Regulation (EC) No. 1260/1999) and to the EU common fisheries policy (Council Regulation (EEC) No. 3760/92). In 2003, the EU Commission published proposed implementing rules setting out how that policy was to be given effect to and, if implemented, how these would have prevented the licensing of, and provision of grant aid for, mussel dredgers. The Minister sought to have that policy amended at EU level in respect of vessels purchased for the mussel fleet so that grant aid could be provided for the acquisition of mussel dredgers. The Minister was successful in having aquaculture vessels/mussel dredgers excluded from these proposals, this being reflected in Commission Regulation 1438/2003 which was issued on 12 August 2003. It is to be noted that the European Commission prescribed that FIFG grants would be administered in Ireland through the agency of the Department and BIM, which were required to confirm that a given project fell within the FIFG Regulation and was consistent with the priorities of the Irish authorities. Applicants for that aid were required to demonstrate that the project for which assistance was being sought was economically viable.
18. Fourth, any person proposing to fish for mussel seed needed the permission of the Minster to do so. Prior to June 2003, the fishing of mussel seed for relaying on aquaculture sites was controlled by licences issued under the Molluscan Shellfish (Conservation of Stocks) Order 1987 ('the 1987 Order'). This was adopted pursuant to s. 223A of the Fisheries (Consolidation) Act 1959, as amended. That provision allows for measures for the conservation of fish stocks and the rational exploitation of fisheries. The 1987 Order included the following:
'4. A specified vessel or a person on board a specified vessel shall not, except under and in accordance with a license under this Order engage in dredging for, fishing for or taking molluscan shellfish within the exclusive fishery limits of the State.
...
6. The master of a specified vessel shall not, except under and in accordance with a licence under this Order, cause or permit the boat to be used within the exclusive fishery limits of the State for the transhipment of molluscan shellfish from a specified vessel.'
19. Regulation 10 of the 1987 Order provided that the Minister could, upon the application of any person and upon being furnished by the person with any information which the Minister might reasonably require in relation to the application, grant to the person a licence authorising:
(a) 'the dredging for, fishing for or taking molluscan shellfish within the exclusive limits of the State,
(b) the relaying of molluscan shellfish from one part of the exclusive fishery limits of the State to another, either directly or overland, by any means.'
(emphasis added).
20. These provisions, it appears, were introduced in order to help prevent the spread of disease from one fishery to another. Until 2001, they were used primarily for that purpose. It will be noted that they required that mussel seed dredged in the State's territorial waters be re-laid in the State. The evidence in the High Court was that prior to 2002, those applying for permission to fish mussel seed - subject to their having an aquaculture licence and subject to there not being any relevant health issues - received the allocations for which they had applied and, to that extent, insofar as management and conservation of the mussel seed resource was concerned, it was self regulated by the industry.
21. By 2002, the level of demand for access to mussel seed was such that this provision was used to set maximum allocations of that resource. The following year the Mussel Seed (Conservation and Rational Exploitation) Order 2003 ('the 2003 Order') was introduced as part of a review of mussel seed fisheries, and in order to specifically regulate the allocation of mussel seed. Those provisions took effect in June 2003. The 2003 Order was also made pursuant to s. 223A of the Fisheries (Consolidation) Act 1959, as amended. There was evidence given in the High Court that it was introduced in a context in which shellfish producers were expressing disquiet to the Department as to the ability of the mussel seed resource to meet the demands of the growing industry, in particular in a context in which some producers had concerns as to the availability of seed in their own areas and for their own sites. It was also suggested that the 2003 Order was related to the grant of access to the mussel fishery to Northern Ireland registered vessels.
22. The 2003 Order provides as follows:
'5.— (1) The Minister may, subject to the provisions of this Article, issue a mussel seed licence authorising, during such period as may be specified in the licence, any or all of the following activities:
(a) the fishing for mussel seed from a specified vessel in the specified area or such part thereof as may be identified in the licence, and
(b) the landing or transhipment of mussel seed taken in the specified area or such part thereof as may be identified in the licence.
(2) An application for a mussel seed licence shall be in such form as may be specified by the Minister.
...
(6) The Minister may request a person making an application for a licence under this Order to furnish such further information or documentation as the Minister may reasonably require in relation to the application, and may defer consideration of the application until such information or documentation is furnished.
...
(8) In considering an application for a licence under this Order the Minister shall have regard to such matters as appear likely to him or her to assist in the rational exploitation of mussel seed in the specified area or any part of that area, including —
(a) the experience of the applicant in relation to mussel seed fishing,
(b) the proportion of permitted tonnages licensed to the applicant previously which was harvested,
(c) the distance from the harvesting zone to the area where the mussel seed are to be relayed
(d) the economic benefits likely to follow from the grant of a licence to the applicant
(e) the extent to which the applicant has complied with conditions attached to a licence previously issued to that applicant.'
(emphasis added).
23. Regulation 5(9) provides:
'A licence issued pursuant to this Article does not authorise any fishing for mussel seed in any part of the area mentioned in the licence, or the landing or transhipment of mussel seed taken in that part of the area during any period prohibited by the Minister under section 223A of the Fisheries (Consolidation) Act 1959 as respects fishing for mussel seed in that part of the area.'
24. Regulation 5(10) provides that the Minister may, from time to time, restrict both the quantity and the species of mussel seed:
(a) 'That may be taken on board a particular licensed vessel in the specified area or part thereof, or
(b) In respect of mussel seed so taken, that may be landed or transhipped from or retained on board the vessel,
during such period as the Minister considers appropriate having regard to the need to conserve stocks of mussel seed in the specified area or part of the specified area.'
(emphasis added).
25. Regulation 5(11) provides:
'Notification of any restriction made under paragraph (10) shall be made in writing to the holder of the licence or the master of the licensed vessel concerned and may be made by a sea fisheries protection officer and such restriction, upon notification, shall be deemed to be a condition of the licence and the licence holder or the master of the licensed vessel concerned shall comply with or ensure compliance with such condition.'
26. Unlike the regime put in place by the 1987 Order, the 2003 Order did not require that mussel seed dredged thereunder be relaid in the State. But it meant that for the plaintiffs to conduct their commercial operations, they needed both permission to fish, and an allocation of a specified quantity of mussel seed that they could lift. The authorisations granted under these provisions further specified the aquaculture site to which the seed would be re-laid, and the details of the boat that would be used to collect them, as well as stating when and where this activity could take place. As I have earlier noted, the allocations thus made were related to the size of the plaintiff's aquaculture farms.
27. The Sea-Fisheries and Maritime Jurisdiction Act 2006 ('the 2006 Act') introduced new legal mechanisms for the management of fisheries generally, and these were applied to fishing for mussel seed (although the 2003 Order remains in force). At the relevant times, s. 10(1) of that Act provided:
(1) A person on board a foreign sea-fishing boat shall not fish or attempt to fish while the boat is within the exclusive fishery limits unless he or she is authorised by law to do so.
28. Section 13(1) is as follows:
(1) The Minister may, for the proper and effective management and conservation and rational exploitation of fishing opportunities and fishing effort for Irish sea-fishing boats under the common fisheries policy, at his or her discretion—
...
grant to the person an authorisation ("authorisation") in respect of the boat, authorising, subject to this section, the utilisation of the boat's fishing effort for the capture and retention on board of a specified fish stock"
The plaintiffs' investments and their dealings with the Department
29. The plaintiffs emphasised that the proposal presented in the National Development Plan to expand the aquaculture industry was both conceived by the government, and was dependant upon the involvement of industry members such as the plaintiffs. It was their evidence that throughout 2002 BIM was promoting the bottom mussel industry above all others. Mr. Crowley's evidence was not contradicted in the course of the trial insofar as he said this:
'... the Plaintiffs' role in the mussel industry was exceptional and unprecedented. Prior to the entry of the Plaintiffs to the Mussel Industry, the Irish bottom mussel resource was under-capitalised, under-utilised and operating with a fleet of vessels with limited capability to maximise the recognised potential of the resource.'
30. Nor was there any question at the trial but that throughout this period, the State and its agencies were both actively soliciting investment in the mussel sector, and were involved in vetting the applications for grant aid so as to confirm that the proposals advanced by those seeking that assistance were viable. In particular, regarding the applications for grant assistance that had been prioritised for Exchequer and FIFG grant assistance, BIM forwarded to the selection board (which was comprised of representatives of BIM and the Department) a confirmation, which included the following:
'(1) that the projects attached have been assessed by BIM and approved for recommendation to the Selection Board in accordance with the procedures laid down by BIM.
(2) that the projects comply with the criteria as required under Article 13 of Regulation (EC) 2792/1999 and the selection and prioritisation criteria included in the operating arrangements laid down by the Department of the Marine and Natural Resources and the Managing Authority.
(3) that in the opinion of BIM the projects included on the list offer, an adequate guarantee of technical and economic viability.
(4) that BIM is satisfied as to the technical capacity and the financial viability of the Applicants promoting the investment (Article 18 of (EC) Regulation No. 2792/1999
31. The minutes of one of the Selection Board Meetings at which some of these grants were approved, was submitted in evidence. The meeting took place on 19 July 2004. The minutes stated:
'In relation to the mussel seed dredger projects, BIM confirmed that the assessment of the project carried out by it was based on current seed allocations and that the project was viable on this basis. It also confirmed that its assessment of each project was that the projects were robust and would be capable of withstanding difficult years (e.g. low seed availability).'
32. It was against this background that Mr. Barlow was advised in July 2002 that the moratorium would be lifted in relation to mussel dredgers and that the Department would permit him to seek a sea fishing licence subject to the condition to which I have earlier referred: that it be used solely for the purposes of an identified aquaculture activity. The relevant correspondence from the Department included the following:
'Applicants for a licence for the specific segment of the fleet will be required to submit, along with a completed application form, an aquaculture plan outlining the area specific and species specific operations. The plan will be assessed by the Department, having regard to the capacity/capability of the vessel vis-a-vis the proposed aquaculture activity to ensure the vessel capacity equates reasonably to project needs.'
33. In the summer of 2002, Mr. O'Loan - an aquaculture development officer in the Department - produced a detailed memorandum recording the limitations on Mr. Barlow's ability to fund in full the cost of a dredger to support the Youghal farm, observing '[i]f the project were not to go ahead due to lack of funding then crucially a new opportunity to develop the bottom mussel sector in line with NDP targets would be lost'. In August of that year Mr. Barlow applied for a grant for the vessel, including with the application his business plan for the Youghal farm. The plan identified the quantity of seed for use in the operation as 3,000 tonnne per annum, rising after the second year to 4,000 tonnes. He said in evidence that it was made very clear to him during the vetting process by BIM that for the project to work, and for the investment to be financially viable, he would require an annual turnover of €2.4M and that this would require an allocation of 3,000 tonnes of mussel seed per annum. On August 20 2002, and in response to a question raised by Mr. White of BIM, Mr. Barlow's advisors wrote advising that the 'breakeven' allocation required by him for Youghal was 600 tonnes.
34. In the course of that year, Mr. Barlow said he had meetings with the Minister at least twice a month, also meeting with a department official, Ms. Kelly, on numerous occasions. In October 2002, he obtained and accepted approval from Bank of Ireland for banking facilities in an amount of €3.2M, and the following month was offered a 'non-operative' licence for an unnamed vessel, the effect of which was to allow him to proceed to have that built. From that point, Mr. Barlow said, he was 'legally, contractually and financially committed' to the venture.
35. On April 10 2003, Ms. Kelly wrote to the relevant division of the European Commission, Directorate General for Maritime Affairs and Fisheries ('DG MARE'), seeking confirmation that mussel dredgers dredging for wild mussel seed that supported mussel farming operations did not come within the scope of Articles 12 and 13 of Council Regulation 2371/2002 and that the grant aiding of such vessels could proceed. In the course of that correspondence, she specifically referenced the applications of the first and second named plaintiff. When, following that letter, it was suggested that only vessels operating exclusively for aquaculture would be exempted and that this did not include fishing operations using mussel dredgers for the collection of mussel seed, Ms. Kelly wrote objecting to that stance. She referenced in her response that this 'would militate against the future development of the aquaculture production sector' and said that '[t]he continued development of the aquaculture sector is dependant on ongoing access by licensed operators to seed supplies in line with business development plans.' The survival and development of the emerging Irish bottom grown mussel sector, she said, required 'guaranteed access to seed from wild stocks in addition to a licence to operate licensed sites.'
36. In September 2003, Mr. Barlow was advised that his grant application had been successful and thereafter, in total, he received grant aid of €1.4M. As with all of the plaintiffs, the conditions stipulated in the letter of grant offer were prescriptive: they stated that the investment must be carried out as specified in the application, that the general development of the undertaking would be in accordance with the particulars given in the application for a grant, that progress reports and other information relating to the project had to be furnished promptly to BIM when requested, and that officers of BIM, the Department or the European Commission should be allowed access to the company's premises at all reasonable times for the purposes of assessing the progress of the investment. It also provided that should the applicant, without the prior consent of BIM, sell, transfer, alienate or otherwise dispose of the grant aided facilities, 'then the Company shall forfeit and repay to BIM so much of the grant-in-aid in the proportion to which the unexpired portion of the term of ten years bears to the full term of ten years at the date of the happening or event giving rise to such repayment'. However, unlike the other plaintiffs, the letter to Mr. Barlow did not disclaim any guarantee that he would be allocated any particular quantity of mussel seed.
37. Mr. Barlow signed a contract for the construction of a new mussel dredger with a Dutch company on 3 October 2003 and the 'Creaden Lady' (ownership of which was vested in the second named plaintiff) was delivered in November 2004. It was (Mr. Barlow said in evidence) the first vessel specifically built for mussel dredging in the State. Its total cost was €3.45M (this having increased from the point at which he secured loan approval), and this was borrowed by Mr. Barlow on the security of the vessel, a mortgage on his family home and a personal guarantee. He repaid part of the loan advance with the grant as it was received by him between October 2003 and December 2004. A sea-fishing licence was issued in respect of this vessel on 23 December 2004. That licence was 'non-operative' and only allowed him to build and take delivery of the vessel. It was not valid for the purposes of commercial sea fishing unless the vessel was entered on the fishing boat register, which occurred in December 2004. The licence included the following:
'Mussel Seed. The issue of a licence in respect of the vessel does not confer any entitlement in relation to the allocation of mussel seed by the Department. Approval of proposed aquaculture activities specified in the aquaculture plan are on the basis of other information provided. It solely relates to sea fishing boat licensing and should not be construed as conferring an entitlement to mussel seed and any allocation to be made by the Department.'
38. In the course of his oral submissions to this Court, counsel for the plaintiffs attached particular importance to a letter sent by the Chairman of BIM to the Minister on 8 December 2004. By this stage, Mr. Barlow had taken delivery of 'The Creaden Lady', but was prohibited from fishing with it because the season had closed on 15 October. Mr. Byrne, urging the Department to lift that prohibition said - in terms which counsel said showed the 'joint enterprise nature of what was going on' – as follows:
'The first of the new mussel dredgers has now been delivered to Paul Barlow in Co Waterford and I feel that a trial fishing permit should be granted to him as a matter of urgency. He has invested millions of euro in this vessel and so have we on behalf of the State and it seems ludicrous that he should be forced to tie it up until next summer and allow scarce seed mussel to be lost to the elements or eaten by predators.
It is simply not tenable that the State, having worked to promote this investment with public funds, should now, for want of appropriate regulation and monitoring, allow the viability of these new investments to be undermined.'
39. While Mr. Barlow's proposals were thus advancing, in January 2004 an advertisement was placed in the Irish Skipper seeking applications to BIM and/or Údarás na Gaeltachta for Exchequer and EU grant aid for investment in aquaculture projects. The advertisement sought applications from companies or individuals engaged in aquaculture whose investment plans contributed to lasting economic benefits from the structural improvements in question, offered an 'adequate guarantee of technical and economic viability' and avoided counterproductive effects, particularly the risk of creating surplus production capacity. Companies applying for that aid were advised that they had to demonstrate that they had 'the financial and technical resources required to implement the investment programme, which should be completed within a timescale of 18 months'. The third plaintiff, Mr. Crowley, gave evidence that the fourth plaintiff first became aware of the grant scheme through this, or similar advertisements in The Marine Times, and from discussions within the industry regarding the availability of those supports. It made its application for grant aid in March 2004, and submitted a sea fishing boat licence application for a new vessel in April of that year. The grant application was supported by detailed information regarding the proposed activity, including details of the mussel seed it was proposed to dredge. That plan referred to allocations of 2,500 tonnes per annum, which, Mr. Crowley said in evidence, was based on what he believed could be attained based upon output in previous years. He also gave evidence that in the middle of 2004, Mr. White of BIM contacted the fourth named plaintiff's advisors, PWC, inquiring as to what the 'break even' allocation would be if in a given year mussel seed was scarce ('the worst case scenario'). PWC informed BIM in response on 29 June 2004 that 'the breakeven seed allocation requirement will be in the region of 1,000 tonnes per annum'. The licence application was accompanied by an aquaculture plan giving similar information.
40. Mr. Crowley gave evidence of meeting with employees of BIM in connection with the grant application at which advice was given to him as to how best to progress it, suggesting at one point that the fourth plaintiff apply pressure to the Department to issue a Sea Boat Fishing licence for the vessel because of their fear that there were to be new European regulations introduced that may have resulted in the grant aid becoming unavailable. The application was approved in July 2004. However, unlike Mr. Barlow's approval, the relevant documentation provided that 'the offer of grant aid, if accepted, does not imply any right whatsoever to future allocation of mussel seed. The seed mussel allocation procedure is separate and distinct from the process of approval for grant aid.' Documents made available on discovery suggest that it was decided for the first time at the meeting of 19 July 2004 (at which this application was approved) to include such a term. Mr. Crowley's evidence was that notwithstanding that statement 'we assumed that would have been fairly treated and given the chance to carry through on the plan that had been submitted ... we were never told ... that we would never have any more than 700 tonne allocation'.
41. The fourth plaintiff entered into a contract with a Dutch company for the construction of a new mussel dredging vessel in August 2004, and that vessel 'The Hibernia', (owned by the fourth named plaintiff) was delivered in June 2005, costing €3.95M. The grant aid was €1.438M. On 27 June 2005, the fourth plaintiff was issued a Sea Fishing Boat licence for this vessel. Its terms were similar to that issued to the second plaintiff.
42. Mr. Kelly obtained approval for grant aid at the same time and with the same condition. His evidence was that in the course of 2003 he was advised by an official from BIM of the National Development Plan aquaculture measures. He made his application for loan assistance for the construction of a new vessel in November 2003. He said in evidence that he was assisted by officials from BIM, and he also submitted a detailed business plan with projected production figures for the new project. His application for grant aid was approved on 20 July 2004. In April 2004, he signed a contract with a Dutch company for the construction of a new mussel dredger. In the course of 2004, the seventh named plaintiff acquired two bottom grown mussel aquaculture sites in Wexford harbour, while in August 2004 the sixth named plaintiff obtained aquaculture licences for one of two sites in Carlingford Lough (an application for another site at that location was not processed by the time of the first trial). He applied for a Sea Fishing Licence for the new vessel, and this was granted in July 2005. That application was similarly accompanied by a plan containing detailed submissions on seed allocation and projections. At the same time he successfully applied for bank facilities, giving a lien on all of the seventh named plaintiff's assets, together with a personal guarantee. The vessel - 'The Deirdre' – arrived in June 2005. It was owned by the seventh named plaintiff, and was purchased for the sum of €3.4M, with a grant of €1.212M. This group of plaintiffs also obtained grant aid from BIM in the amount of €46,172 for the making of improvements to another mussel dredger owned by them, 'The Deirdre K'.
43. Mr. McCarthy gave evidence of being 'pulled ... aside' at meetings in Brussels in 2002 by representatives of the Department and BIM, of being urged to invest and being told that if he made an application, he would be grant aided to increase his production of mussels. He made an application to this end in August/September of that year. His evidence was that he agreed a business plan with BIM and approved by the Department for grant aid on the basis of a mussel tonnage production increase from 2,000 tonnes in 2003 to 6,506 tonnes in 2009. He gave evidence that he was told by Mr. White and Ms. O'Connell of BIM that it was vital that he secured additional mussel growing grounds in Carlingford Lough as his existing aquaculture and foreshore licences of 48 hectares at that time were not sufficient to justify his grant aid on a new fishing vessel and the corresponding increase required in mussel production. On November 18 2003 he wrote to Mr. White and Ms. O'Connell addressing queries they had raised on his application, stating that his 'seed requirement' of 5,555 tonnes was 'more than attainable', a projection based on the sourcing by his company in 2003 of 2100 tonnes from the Irish Sea, 900 tonnes from Carlingford Lough and the use of a properly designed purpose built vessel that could dredge further afield.
44. Having acquired those grounds on that basis, on 23 December 2003 he obtained approval for a new aquaculture licence for 144 hectares in Carlingford Lough to which I have earlier referred, obtaining that licence in August the following year. He sought a sea fishing licence for his new vessel on 12 January 2004, accompanying that application with a five year financial plan based on the assumption that the new vessel would be operational by May 2005. In March 2004 he signed a contract with a Dutch company for the construction of a new mussel fishing vessel, and on 24 May 2004 was issued an offer of licence in respect of 'Wings of the Morning'. That offer stipulated that the vessel could only be used 'in accordance with the Aquaculture Plan submitted by you and approved by the Department'. The offer also stated that it was necessary to establish that the vessel would have a genuine economic link with a local coastal community. He accepted it on the same day.
45. On 20 July 2004 Mr. McCarthy's aquaculture grant application was approved in the amount of €1.4M, against a total cost of €3.5M. The approval also contained a stipulation to the effect that there was no guarantee of any allocation of mussel seed and stressed that the grant application and allocation procedure were distinct. It stated:
'The purpose of offering grant aid to this project is to bring about social and economic benefits to the local coastal communities of Ireland arising from the operation of the vessel.'
46. On 11 January 2005, he received the grant monies in the sum of €995,590 and on 28 June 2005 the balance of €426,681 (these were used to repay a loan he had obtained in 2004 in respect of the construction of the vessel). That vessel was delivered on 30 April 2005. Ownership was vested in the ninth named defendant. It was launched by the Minister in May 2005 at an event in Wexford that was also attended by the Chairman of BIM, Mr. Byrne. At the same time, some of the plaintiffs invested monies in the upgrading of existing vessels: 'The Deirdre K.' in the case of the seventh named plaintiff, and 'The Cornelius Gerrit' in the case of the ninth named plaintiff.
47. I have laboured the detail of these interactions for several reasons. First - and for reasons to which I will return - the trial judge did not conduct an extensive analysis of the evidence adduced over the course of the fifteen day hearing. Second, the plaintiffs' claim in negligence was very much focussed on the course of dealings between the parties and the assertion that that course of dealing gave rise to the duty of care for which they contended. The details of that interaction are key to that claim, and in particular to the plaintiffs' argument that the defendants assumed a responsibility to them such as to give rise to liability in negligence.
48. Third, it is clear that in the period from October 2002, when Mr. Barlow entered into the loans necessary to finance the acquisition of 'The Creaden Lady' through to August 2004 when the fourth plaintiff committed to purchase 'The Hibernia', the plaintiffs were collectively assuming financial liabilities with the active encouragement of the State and its agencies on the basis of an assumption that they would have access to sufficient quantities of mussel seed to render their businesses viable, and in circumstances in which the State and those agencies were aware not merely generally of that fact, but of the specific liabilities and requirements they, respectively, assumed and had. None of this was in dispute. Yet, at more or less exactly the same time, the State was taking steps that would significantly increase demand for that seed in a context in which no-one was entirely certain what the extent of the available resource actually was. The position was expressed in an internal departmental memorandum written on 29 April 2003, as follows:
'Seed mussels are required by the bottom mussel industry in the absence of a natural mussel spatfall within licensed bottom mussel areas. The principal source of seed mussels for the industry has been and continues to be the Irish sea. Seed mussels are generally located within the 12 mile limit. Northern Ireland vessels have rights under the Voisinage Agreement to fish the stock up to the Irish coastline. Irish vessels have reciprocal rights. In recent years with the development of a bottom mussel growing sector in Northern Ireland there has been increasing participation by vessels fishing for seed mussels for on-growing within licensed sites in Belfast Lough and Strangford Lough in particular. The Irish sector has also developed rapidly. Demand currently exceeds all-island seed supplies which are, in the absence of detailed scientific studies, difficult to predict on a year to year basis.'
The voisinage agreement
49. That memorandum was prepared at a point in time at which drafts of the then proposed 2003 Order were under consideration by the Department, and it seems clear that the fact of access to the fishery by Northern Ireland registered vessels was a key consideration both in prompting and in seeking to address these concerns. The background to that lay in a so-called voisinage reciprocal arrangement entered into between the State and the United Kingdom in 1965. This allowed - subject to certain conditions - vessels registered in Ireland and Northern Ireland to fish in each other's territorial waters. As stated by Edwards J. in the course of his judgment in the Court of Appeal, the status of that arrangement in international law was no more than that of a 'gentleman's agreement.' And while, as was observed in the course of her report by Dr. Maguire - an expert witness called by the plaintiffs - there is a logic to having a voisinage arrangement in respect of migratory fish species, it might - at least on one view - be questionable as to whether such an arrangement has the same justification in respect of non-migratory stock: mussel seed, she explained, does not move far.
50. Nonetheless, in 2000/2001 the issue of applying that arrangement to the mussel seed fisheries in each jurisdiction was raised, seemingly in the context of the British/Irish Agreement of 1998 [6] and against a background in which it had not, until then, been understood as embracing fishing for mussel seed to be relaid outside the respective jurisdctions. The plaintiffs placed some emphasis on the fact that mussel fishing in the State's territorial waters by Northern Ireland registered vessels only commenced in or around 2000, asserting that the voisinage agreement only operated where there had been habitual fishing in Irish waters between 1953 and 1962. They said that there was not merely considerable uncertainty as to whether the voisinage agreement applied at all to fishing for mussel seed, but they further relied upon the fact that the agreement only applied where the boats in question were owned and operated by fishermen permanently resident in Northern Ireland (a requirement, they said, that was not enforced). They also claimed that in Northern Ireland, the allocations of seed were made to farms, not fishermen, and that accordingly to apply it to the activity of bottom mussel seed fishing breached the spirit of the voisinage agreement. This had the effect, they said, that the owners of farms in Northern Ireland did not need fishing licences of any kind: they could simply get a vessel owned by another party to collect the seed on foot of the authorisation thus granted to them.
51. The evidence was that (with the caveats to which I have earlier referred) in 2002 5,744 tonnnes of seed was transplanted to Belfast Lough (out of a total of 11,204 tonnes recorded as being transplanted). Authorities to that end were granted under the 1987 Order which, it will be recalled, only permitted the transplanting of mussel seed to areas in the State. According to Ms. Comey, a departmental witness for the defendants, the consideration of involving the Northern Irish authorities in the question of the management of mussel seed commenced in May 2002, with the Minister finalising his views as to how this was to be addressed in the course of 2003.
52. The evidence on behalf of the defendants was that these matters were discussed with the industry, and that a document jointly authored by the Department and its equivalent in Northern Ireland and entitled 'Joint Arrangements for the Management of Seed Mussel Stocks in relation to Irish and Northern Irish vessels' – was circulated on April 30 2003. This followed discussions between the authorities in the two jurisdictions which had concluded that it was necessary to institute a structure and policy to help support the management of the mussel seed resource, the object being - as it was explained - to put in place an administrative body comprising both Departments and experts from BIM, the Loughs Agency and the Cross Border Aquaculture Initiative Team that would 'come together and seek to organise the fishery on a more rational basis'. As explained by the Minister, this body - the Seed Mussel Assessment Committee ('SMAC') (as it then was) - would assess applications for mussel seed allocations under a number of criteria and approved vessels would be licensed to fish maximum quantities within a specified area and within a specific time period.
53. Edwards J. outlined in the course of his judgment the consequences of these events for the plaintiffs, as follows (at para. 40):
'This was a development greeted with alarm by the plaintiffs, who were concerned about its impact on their activities in circumstances where Northern Ireland vessels were generally more modern and efficient than those in the domestic bottom seed mussel dredging fleet, their fishing practices were more aggressive, invasive and impactful on stocks than those practiced by the operators in the domestic Irish fleet and where traditional Northern Ireland mussel fisheries had been closed for some time because of an infestation by a predator limpet ...thereby effectively forcing Northern Ireland vessels to fish further afield and particularly to seek to do so in the territorial waters of this State ... there was also concern expressed that the permitted fishing by Northern Ireland vessels was in some cases being used as a flag of convenience for access by large foreign businesses to mussel fisheries from which they could, and should, otherwise be lawfully excluded.'
54. To this might be added the fact that the quantity of mussel seed in the Northern Ireland fishery was substantially smaller than in the Irish fishery, so that joint management resulted - inevitably - in the transfer of value to the Northern Ireland Registered Owners. One witness drew attention to the remarkable growth in the value of the Northern Ireland bottom grown mussel production in the period between 1998 (valued by a 2007 Northern Ireland Inshore Fisheries Report at €156,400) and 2006 (when it was valued at €11.4M). That, it was observed, contrasted with the drastic decline of the industry in this State at, more or less, exactly the same time. Moreover, the plaintiffs said - and this does not appear to have been contradicted - that while as Irish fishermen they required a Sea Fishing Licence to conduct their activities, and while from 2003 onwards this meant that they had to have a CoC covering each vessel they used for that purpose, the Northern Ireland registered vessels did not require any such licence, instead operating under a permit system provided for in Northern Irish law. That procedure, however, did not incorporate a requirement that the vessels be compliant with the CoC requirements that were - at considerable cost to their owners - being imposed upon the Irish registered vessels.
55. There was a significant disagreement at the trial as to whether the plaintiffs were, before they made their investments, aware that Northern Ireland vessels might be permitted to fish for mussel seed in Irish waters in the manner that eventually transpired. Witnesses from the Department referred to a meeting between the Department, BIM, the Irish Shellfish Association and certain mussel growers from Waterford and Wexford (including Mr. Crowley) which was convened at the request of the growers to address concerns about increasing pressure on the East Coast seed resource with the expansion of aquaculture activities. One witness said that permits for the owners of Northern Ireland registered vessels were discussed at that meeting. Evidence was also given of a meeting held at the Citywest Hotel in Dublin on June 14 2002 at which the prospect of such access being given was debated: the evidence from the Department was that Messrs. Barlow, McCarthy and Kelly attended this meeting. Messrs. McCarthy and Kelly said in evidence that they understood from that meeting that Northern Irish registered vessels could fish in Ireland if they registered in this jurisdiction and obtained a sea fishing licence. In November 2002, Mr. Barlow was advised by letter from the Department that the voisinage agreement allowed Northern Irish and Irish fishermen access to the fisheries but, Mr. Barlow said, he was by then completely committed legally, financially and contractually to the venture.
56. Evidence was also given by witnesses from the Department of meetings with the industry in May 2003 following the circulation of 'Joint Arrangements for Management of Seed Mussel Stocks' the previous month. One of these (on 12 May) it was said, was attended by the plaintiffs. On 15 May 2003, Mr. Barlow provided written comments to the Department in relation to these management proposals, and on 20 May, Mr. McCarthy did likewise, the latter noting that because large tracts of ground had been licensed by the Northern Irish authorities in Belfast Lough and Lough Foyle, historically well established growing grounds and successful operators in the south of Ireland were being undermined in the proposed assessment procedure. It was also noted that in July 2004 a number of mussel producers, including Mr. Crowley, had written to SMAC and the Minister objecting to the management of the seed resource in the Irish Sea.
57. The trial judge did not resolve the issue of whether all or any of the plaintiffs were aware of this proposal and/or of the extent of that knowledge when they embarked upon their investments. Wherever the truth lay, the plaintiffs were emphatic that they did not understand that what they described as their resource would be dispersed to (as they put it) foreign companies. While Mr. Barlow was aware of the voisinage agreement having sought a copy of it from BIM in 2001 or 2002, the other plaintiffs accepted that since 2002 they were aware of a small number of vessels from Northern Ireland fishing for mussel seed, but said that they understood that those vessels were acting illegally and would be stopped. Those vessels were not viewed as engaging in significant fishing activity. In fact, as I have noted already, the evidence was that allocations were made in 2002 to Northern Irish fishermen by the Minister in conjunction with his equivalent in Northern Ireland. In and after 2004 (at least), the number of Northern Ireland vessels engaged in the activity of mussel seed fishing in Irish waters increased. Mr. Crowley said that by 2005 there were as many as 11 Northern Irish boats fishing on the east cost, and he said that some of these were large vessels. The evidence was that those fishermen not only fished smaller seed than those observing the 'partially grown' principle, but that they fished 'harder', that is they fished to the bottom of the beds, whereas (it was said) those traditionally fishing on the east coast only went to a certain level of the beds so as to add to the stocks for the following year. Mr. McCarthy, whose evidence was that it was at the launch of Wings of the Morning in May 2005 that the Minister announced the 'all Ireland management arrangement', said that until then he had no idea that the Irish mussel seed resource 'would be given to new start-up fish farms in the UK'. That, he said, was what happened: 'those new fish farms took our capacity'.
SMAC and the allocation of mussel seed on an 'all Ireland' basis
58. I have noted that a document entitled 'Joint Arrangements for Management of Seed Mussel Stocks' was circulated in April 2003. It set out - in general terms - the allocation procedure proposed to be used by SMAC. SMAC met for the first time on 4 June 2003. The minutes of that meeting noted that it was estimated, based upon availability in recent years, that some 30,000 tonnes of seed could be harvested from Irish waters. Following that meeting, the Department wrote to applicants on 10 June 2003 advising that the aggregate total tonnage of mussel seed sought for the 2003 season was in excess of 180,000 tonnes.
59. SMAC processed and determined applications in 2003 and 2004 (although the evidence was that the Minister remained free to decline to adopt its recommendations). It changed its name to the Seed Mussel Advisory Committee (I will continue to refer to it as SMAC) in 2005. According to the evidence tendered to the High Court, SMAC applied an allocation regime based on the size of the operations of the stakeholders, the efficiency with which they utilised the seed they had been allocated, their commitment to the sector, and their support and activity in surveying for new and existing mussel seed beds.
60. Detailed evidence was given as to how these criteria were applied by SMAC in its allocations in 2003. Briefly, the system involved starting with an indicative tonnage of 66 tonnes per hectare. This was based on a three-year cycle, with one third of each area to be reseeded at that rate. Further marks were then given by reference to factors such as the licensed status of dredgers, the imposition of thresholds for specific areas in which seed was to be fished, the making of bonus allocations where there was co-operation between fishermen, whether surveys had located new seed, and the imposition of limitations on the landings by each boat per day. Opening and closing dates were fixed for the relevant areas, those areas having been given particular seed allocations. So, for example, the allocation for the Irish Sea fishery was 15,000 tonnes. The evidence was that the Committee met throughout the season (on at least six occasions between June and September 2003) examining the amount of seed that had been fished during that time, and considering the making of further allocations. The evidence was that six tranches of allocations were made during that period. For at least some areas, limitations were imposed on the size of the seed that could be fished. BIM was to undertake random checks of seed to include landings by vessels, the length of time the seed was on transport trucks, weather conditions and relaying results with a view to enhancing the profile of knowledge as to the efficiency of operations, mortalities and so forth.
61. SMAC's role was discontinued at the end of 2005/early 2006, its functions being transferred, it seems, to a departmental committee. The 2005 allocations were rolled over (in other words the same allocation was granted to each applicant as allocated in the previous year) while an overall review of the process was undertaken. That review resulted in a report - The Rising Tide Report – a review conducted on behalf of the Departments of Agriculture for Nothern Ireland and the Republic of Ireland and the Loughs Agency and supported by a Secretariat provided by the Aquaculture Iniative EEIG, which was launched in April 2008. That report recommended the collection of more data, and pending the undertaking of that exercise, the allocations continued to be rolled over. Another one of the recommendations in that Report - the establishment of the Bottom Grown Mussel Consultative Forum - was implemented. That comprised Northern Irish and Irish agencies, the relevant Government Departments, and representatives of industry and of the operators. The Bottom Grown Mussel Consultative Forum was said in the State's evidence to have been designed to be a discussion forum for policy development, a clearinghouse for information dissemination and a co-ordinating body to organise necessary industry collective actions, as well as functioning as a central point of contact between the industry and the regulators, co-ordinating annual seed surveys, providing advice on opening and closing dates and on stock management practices. Through an 'allocations Sub-Committee', it was also entrusted with the examination of what were termed 'anomolous allocations'. The allocations continued to be rolled over up to the time of the trial.
62. The consequence was, as confirmed by an expert witness called by the Minister, that the allocations were constantly higher than the estimates of available biomass. In 2017, for example, the allocations were four times higher than the biomass actually collected. As the same expert also confirmed, this meant that there was a lack of connection between the amount of seed likely to be fished in any given year, and the allocation. And, of course, it meant that the allocations made to the individual plaintiffs were a product of happenstance of how allocations were made by reference to the criteria as developed and applied to the situation as it stood when SMAC ceased operation.
Allocations to the plaintiffs
64. The relationship between the allocations made to the plaintiffs, and those recorded in the grant applications were stark, and the contrast between both and the amounts actually fished even more striking. The first named plaintiff was allocated 250 tonnes in November 2004 (125 for Youghal and 125 for his site at Waterford Harbour), [7] 750 tonnes for 2006 (250 for each of Waterford Harbour, Kinsale and the River Illen, but none for Youghal), 500 tonnes for each of 2007 and 2008 (250 for each of Kinsale and River Illen) and nil for 2009, 2010 and 2011 as compared with projected production of 2,700 (for 2006) and 3,600 (for each of 2007-2011). It was Mr. Barlow's evidence that before he had made his investment, he had received an allocation of 1,500 tonnes in 2002 and 2003 and that the allocation he required according to his grant application (which it is very important to stress related solely to Youghal) was 3,000 tonnes for the year ended 31 December 2005, 3,000 tonnes for the year ended 31 December 2006, and 4,000 tonnes for each year thereafter (he also claimed that he was to receive an allocation of 750 tonnes for the other sites). He fished 300 tonnes in 2006, 300 tonnes in 2007 and 99 tonnes in 2008: he accepted in quite forthright terms in evidence that this fishing was unlawful. The Minister's evidence was that Mr. Barlow received nil allocations for the years 2009 and following because he did not hold an appropriate aquaculture licence for the sites on which he had indicated he proposed to relay the seed. The High Court did not decide the implications of that.
65. Mr. Barlow had an application for a full licence pending for all but the Youghal site for many years (he had the benefit of a short term or 'trial' licence for all but Youghal for certain periods); in the course of his evidence he said that he did not require a licence for Youghal because it was privately owned, that he received assurances to that effect from the Coastal Zone division of the Department after receiving a letter from Mr. White of BIM urging him to clarify the issue in June 2002, and that the Department did not advise him that it adopted the view that he needed such a licence until 2010. He had, he notes, been granted allocations for that site in 2002, 2003, and 2004 based on title documents he had submitted proving that he had exclusive fishing rights in Youghal harbour. Insofar as he is concerned, the picture is further muddied by the fact that while allocations were issued in 2008 for Mr. Barlow's sites at Kinsale and River Illen, the evidence given on behalf of the Minister at the trial was to the effect that those authorisations had been issued in error. The trial licences for those sites, it was said, had expired in December 2007 and therefore he should not have been granted allocations for them at all.
66. In the case of the fourth named plaintiff for each year between 2005-2012, its aquaculture plan sought 2,500 tonnes while it obtained none for 2005 (it refused to apply to SMAC), and 700 tonnes for each of the other years. Mr. Crowley's evidence was that the fourth named plaintiff fished 290 tonnes in 2006, in 2007/2008 that plaintiff fished up to its allocation (an area of small seed was identified off Wicklow head at the end of 2005, which was left to grow until the following year), in 2009 it fished 700 tonnes (with fishing also being undertaken by The Hibernia under contract for other companies), it did not fish at all in 2012 because there was insufficient seed to justify its so doing, and in 2013 it fished 225 tonnes while in 2016 it fished its full allocation.
67. With the third and fourth named plaintiffs, also, there are also complications in these figures, which relate solely to the allocations sought in respect of The Hibernia. Yet, as was pressed in cross-examination of Mr. Crowley, the allocations for some of the same farms were fished by another vessel owned by the same interests, The Nordster.
68. Mr. Kelly included an anticipated allocation of 3,200 tonnes in his grant application for 2005, 4000 tonnes for 2006, 4,300 tonnes for 2007 and 4,600 tonnes for each of the years from 2008 to 2017. His allocation was 3,500 tonnes for 2006 and 2007, and 2,450 tonnes for the other years. He fished 800 tonnes for 2005, 1,065 tonnes for 2006, 2,250 tonnes for 2007, 1,748 tonnes for 2008, 1,380 tonnes for 2009, 820 tonnes for 2010, 515 tonnes for 2011 and none for the remaining years.
69. Mr. McCarthy had sought an allocation of 3,960 tonnes for 2005, but obtained no allocation. He sought 4,600 tonnes for 2006, and 5,555 tonnes for each year from 2007 to 2017. He was allocated 2,400 tonnes for 2006, 1,140 tonnes for 2007 1,390 tonnes for 2008 and 2009, 1,490 tonnes for each of 2010-2013 and 1,340 tonnes for 2014. For the years between 2006 and 2013 he fished, respectively, 750 tonnes, 500 tonnes, 1,100 tonnes, 1,200 tonnes, 1,180 tonnes, 800 tonnes, 510 tonnes and 205 tonnes.
70. The detail of these allocations, and more significantly again the quantities of the seed as fished, is important in the context of the core claim made by the plaintiffs. While, as they complained, they were being given allocations that were small having regard to their investments and the size of the aquaculture sites they had acquired, the Northern Ireland farms were obtaining substantial allocations. Mr. Crowley gave examples in the course of his evidence. He said that Norfish Limited, a Northern Ireland mussel farm, received an allocation of 2,500 tonnes for 253 hectares of licensed ground, while Duogold Mussels Ltd. received an allocation of 2,000 tonnes for 200 hectares of ground. Carlingford Lough Mussels, which owned 149.2 hectares obtained an increase in its allocation from 455 tonnes to 910 tonnes in 2006.
71. I have earlier noted that the plaintiffs made a total collective investment of €14.25M in their new vessels and, for at least some of them, further investments were made in sites for growing the seed. It was throughout 2005 that the new grant aided vessels came on stream. That, as I have noted, coincided with the significant diminution in the mussel seed resource. The plaintiffs said that those conditions did not improve. They said that their businesses were in consequence unviable and that they had no option but to dispose of the vessels. Mr. Barlow sold 'The Creadon Lady' in August 2015 for a sum of €2M and from that point the mussel dredging business of those plaintiffs ceased. It was his evidence that the €2M was 'just' enough to clear his debt.
72. Mr. McCarthy said that the low availability of mussel seed meant that in 2014 he had to stop his farming operation, and was obliged to cease trading. He sold 'Wings of the Morning' in 2014 for €700,000, having disposed of another vessel to which improvements had been made, The Cornelius Gerrit', in 2011 for €235,000. He also disposed of his licence and stock, and had to make five staff redundant, some of whom had been in his employment for over fifteen years. Mr. Kelly disposed of the sites he had acquired in Wexford in March 2007, harvested his last mussels in January 2013, and laid off his staff. He sold the 'Deirdre K' in February 2016, and another vessel in 2014 (he kept 'The Deirdre'), also disposing of a fish processing premises and spare fishing equipment. The evidence from each of the plaintiffs was that had they been aware of the allocations that would be made to them and that, as Mr. Crowley put it in oral evidence, the mussel seed was going North instead of attempting to increase the production of the Irish farms, they would not have proceeded to build new vessels.
73. There was evidence that all of this threw the industry into disarray. The sense of what was happening on the ground while all of this occurred was put as follows by Mr. McCarthy in his evidence:
'in a very short period of time ... we went from being a successful, viable, explanding indigenous industry to chaos. The whole industry was in turmoil. We were being ... depleted and displaced by the capacity of UK shellfish farms.'
74. That was confirmed in a letter from a member of Dail Eireann to Mr. McCarthy with whom Mr. McCarthy had made contact in 2008 to complain about the situation in which he then found himself:
'I am writing to confirm that I have been in contact with the Department of Agriculture and Food on your behalf, who have informed me that "things are a bit of a mess"... '
II THE PROCEEDINGS AND THE TRIAL
The essential complaints
75. At a general level, the plaintiffs complained that the applications they had submitted for grant aid and assistance to, and through, the defendants and with their encouragement, were based upon their belief - having regard to the yields of mussel seed that had historically been derived from the fishery - that the tonnage of mussel seed needed to ensure viability was at least in theory capable of being obtained. It was their case that there had been significant focus on the viability issue during the grant application process, and that the defendants could have been under no illusion as to the levels of mussel seed the plaintiffs required in order to recoup the investment they had made in the vessels.
76. However, they said that as a consequence of a sequence of related events, that became impossible. The sudden introduction of a large number of Northern Irish vessels was central to their claim that they could not achieve that yield. Because of that development, it was said, the plaintiffs did not obtain the allocations of mussel seed they needed. Even within the allocations they had obtained, they faced insurmountable difficulties in obtaining the seed they required. Not only were there more boats fishing for mussel seed but, it was said, the Northern Irish registered vessels were doing so in an aggressive way, fishing smaller seed than the plaintiffs would have fished, thereby damaging the harvest for the following year. Connected with that was their concern at the manner in which allocations were made: these were related largely to the size of the area available to an individual applicant to lay the seed, yet there was no assessment conducted by the Department and/or BIM and/or SMAC as to the availability of that seed before making these allocations. In fact, in Northern Ireland the farmers had substantial farms and thus very significant allocations were made to them. Moreover, the plaintiffs complained that boats from other parts of the United Kingdom, and indeed further afield, registered in Northern Ireland simply to take advantage of the situation. All of this, it was said, was aggravated by the fact that from 2006 until the date of the High Court hearing the allocations were, as I have previously noted, simply rolled over without any regard to the circumstances as they stood as each year's allocations were made.
The institution of these proceedings and Barlow II
77. The proceedings advancing these complaints were instituted in June 2006. Although commenced by plenary summons, the first iteration of the action was more in the nature of judicial review: while damages were claimed, the bulk of the relief sought was declaratory. The essential objections were that it was SMAC rather than the Minister that was assessing applications for mussel seed licences, and that the non-domestic boats dredging for mussel seed pursuant to the voisanage agreement were not, in fact, bona fide owned and operated in Northern Ireland. It was also contended that there was non-compliance with a requirement applicable to vessels in excess of 75 feet in length that they obtain an exceptional permit in accordance with s. 8 of the Maritime Jurisdiction Act, 1959 and that the fishermen must have habitually fished in the area before being entitled to avail of the arrangement, it being said that mussel seed fishing was not habitually carried on when the voisinage agreement was entered into. The proceedings thus sought inter alia to actually enforce the voisinage agreement, one part of the action complaining that its terms had not been honoured by the State.
78. The proceedings (which were thereafter amended to include complaints around the lack of reciprocity attending the operation of the voisinage agreement) eventually came for trial before Feeney J. in 2012. At an early stage in that hearing, Feeney J. decided that the proceedings should be stayed, and a separate set of proceedings should be instituted to address the legality of the voisinage agreement. Those proceedings - Barlow II - were eventually dismissed in the High Court (they had to be re-heard in the High Court following the untimely death of Mr. Justice Feeney following the first trial), coming for hearing before this Court in 2015, judgment being delivered in October 2016.
79. In his judgment, O'Donnell J. (as he then was) held that the practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State was not lawful, as it constituted the exploitation of a natural resource which 'must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas'. He found that Article 10 of the Constitution 'extends to air and water in particular to the capacity to extract potential energy from either source, or indeed any source within the State' concluding (at para. 66) that on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seed, at least, when carried out in the territorial waters of the State is the regulation and management of a natural resource, and therefore of property belonging to the State. Therefore, it was found, the arrangements allowing the exploitation of that resource by the Northern Ireland registered vessels must be provided for by law. That, he said, meant public legislation adopted by the representatives of the People in the Oireachtas.
80. In consequence, the Court granted a declaration that the Northern Ireland vessels acted unlawfully by fishing for mussel seed within the territorial waters of the State. From the point at which that judgment was delivered, mussel fishing by Northern Irish boats stopped. Legislative provision for Northern Ireland vessels to fish for mussel seed in Irish waters was thereafter made in the form of the Sea-Fisheries (Amendment) Act 2019.
Subsequent proceedings
81. Following this decision, the plaintiffs - in October 2017 - delivered a third Amended Statement of Claim. Damages were claimed on the basis of breach of statutory duty, breach of constitutional duty, legitimate expectation, and negligence. The theory underlying all claims began with the proposition that pursuant to Article 10 of the Constitution, the first named Defendant was precluded from allowing Northern Irish registered vessels to fish for mussel seed in the State's territorial waters save in accordance with law. The plaintiffs said that the actions of the Minister in permitting Northern Irish registered vessels to fish for mussel seed in Irish territorial waters and permitting them to remove mussel seed from the territory of the State caused them loss and damage. The claim in negligence was expressed as follows:
'... the first Defendant has acted in breach of duty towards the Plaintiffs and/or has acted negligently in and/or in allocating, managing and controlling the alienation of the mussel seed other than in accordance with provision made by law, including granting the Plaintiffs inadequate allocation of mussel seed, in such a manner as to result in harm to the Plaintiff's investments and rights and interests in their businesses'.
82. The particulars of negligence delivered by the plaintiffs included a complaint as follows:
'the continued opening by the First Named Defendants, its servants or agents, of the mussel seed fishery without any or any adequate assessment. Assessments that should have been carried out by the Defendants include but are not limited to, assessment as to the general characteristics, life cycle and maturity, settlement preferences, distribution and scale of the seed mussel resource. This assessment is a necessary precursor to any credible and sustainable management regime of the mussel seed industry.'
83. Those particulars complained of over-allocating the resource, failing to assess actual and prospective seed capacity prior to allocating seed tonnage on a yearly basis, opening the mussel seed fishery when seed resources were too immature to fish, and 'implementing a management regime that created a 'free for all' system of fishing allocations'. While I will return later to the losses pleaded by the plaintiffs, from the outset these included claims for the purchase price of the vessels acquired by the plaintiffs and cost of improvements to existing vessels, being described in later pleadings as the loss of value of investments, loss of operating costs, and research and development.
The evidence
84. The case was heard by Meenan J. in June and July 2018. Each of the first, third, fifth and seventh named plaintiffs gave oral evidence, confirming written statements of evidence first delivered for the 2012 trial, and updated in advance of the later hearing. The same was true of the two departmental witnesses (Ms. Kelly and Ms. Comey). Expert evidence regarding the mussel resource and its management was given by Dr. Julie Maguire on behalf of the plaintiffs and on behalf of the defendants by Dr. Terence O'Carroll. Dr. Maguire was described at the trial as a 'fishing scientist' who had been studying the mussel stock in the Irish Sea since the early 2000s and had produced a report for the Marine Institute on the topic in 2007. Dr. O'Carroll had been at all times an employee of BIM, and had been involved in its aquaculture division from its formation in 1995. Expert evidence was also tendered on behalf of the defendants by Dr. Oliver Tully, who held a PhD in Marine Zoology and Marine Biology, who was a former research fellow at Trinity College Dublin and a former employee of BIM who, at the time of the trial, was employed by the Marine Institute (objection was taken to the admissibility of Dr. Tully's evidence on the basis of an asserted lack of independence, and because it was said he had insufficient expertise in relation to bottom grown mussels). Each party called accountants to give evidence regarding the alleged losses claimed by the plaintiffs - Mr. Hill for the plaintiffs and Mr. Bagnall for the defendants.
85. A great deal of the evidence was not disputed, and I have referred to much of it earlier, in particular regarding the relationship between the Department and the plaintiffs, the assistance given to them, the fact and effect of the granting of authorisations to the Northern Ireland registered vessels, and the depletion of the fishery. Three additional features of that evidence are particularly relevant.
(i) The allocation process
86. Ms. Kelly gave evidence relevant to the difficulties facing the Department regarding, and policy decisions made by it relating to, the allocation process. She had been a Principal Officer in the Seafood Policy and Development Division of the Department at all relevant times. In that regard, she stressed the lack of scientific consensus as to how and why mussel seed accumulates, and what impacts on its development. She explained that from about 2000 it became clear that the aquaculture industry was growing with consequent issues regarding how the State would manage access to the mussel seed, and with meetings being arranged between the Department, BIM and the industry to that end. She referred to business people seeking mussel farming as an opportunity and wanting to get into the industry. She explained that there were differences of view between the mussel seed fishermen, and that across the fishing sector there was a degree of tension between the Department in managing the resource, and the fishermen who had different priorities as between themselves. The purpose of SMAC, she said, was to organise the fishery on a more rational basis and with the benefit of appropriate experts.
87. Ms. Kelly noted, in particular, that by the beginning of this century the demand for mussel seed was very high and she observed the very large allocations that were sought by operators in 2002, 2003 and 2004. At the same time, she said, the Northern Ireland authorities were identifying the voisinage agreement as the basis for obtaining access to mussel seed inside the Irish six mile zone. She explained that the industry itself was seeking active management by the State of the resource: the establishment of SMAC, she agreed, was at least in part an attempt to respond to the demands of the industry for a better approach to, or a different way of, managing the resource, as opposed to the 'free for all' that had existed up to that point. All involved in the sector were invited to a meeting in Citywest to discuss inter alia the document 'Joint arrangements for the management of seed mussel stocks in relation to Irish and Northern Irish Vessels'. She strongly rejected the assertion of the plaintiffs that there was no proper management plan in place for the Irish mussel seed resource in 2004/2005, or that in 2005 SMAC was not operating based on any logical criteria. Since 2002, she said, the Department had actively worked to develop management measures for the seed mussel fishery in consultation with the industry. The joint management arrangements that were put in place had been prepared by the Department and its Northern Ireland counterpart with input from BIM, the Loughs Agency and the Marine Institute, and had been subject to consultation with the industry.
88. Ms. Comey's evidence elaborated on this. From 2000 to October 2003 she was an Assistant Principal Officer in the Aquaculture Policy Division of the Department, having responsibility for the administration of the regime for the controlled fishing of mussel seed located outside aquaculture sites. She was the Department's representative on SMAC from its first meeting in June 2003 until she left the division in October that year, and was the person who issued licences to fish for mussels based on decisions made by SMAC. She did not dispute that mussel movement licences granted to Northern Ireland registered owners under the Mulluscan Shellfish (Conservation of Stocks) Order 1987 had been 'incorrectly granted' by the Department (that Order, it will be recalled only allowed movement to a place in the State). She gave evidence of six meetings of SMAC over the period from June to July 2003, in the course of which, she explained, a detailed assessment of the resource by reference to available information and requested allocations was undertaken. She stressed the disproportion between the requests for allocation of seed and the extent of the resource: she said that in 2002 applications were made for allocations of 80,000 tonnes of seed, and in 2003 for 180,000 tonnes.
(ii) The expert evidence
89. The focus of the parties submissions before the Court of Appeal was on the expert evidence tendered by Dr. Julie Maguire and by Dr. Terence O'Carroll. Before the trial, Dr. Maguire and Dr. O'Carroll had prepared a joint report. This was produced in reference to a report Dr. Maguire had written in 2012 ('the 2012 Maguire Report'). A number of important points were agreed. These included the following:
(i) The traditional Republic of Ireland fleet had successfully sourced their mussel requirements from the Irish Sea throughout the 1980s and into the 1990s based on the 'partly grown principle', which was agreed to be 'a good system'. By 2002, however, this practice could no longer be observed due to the expansion of mussel farms in Northern Ireland who fished for mussel seed in Irish waters. Competition for seed was 'fierce' and inexperienced fishermen often took seed that was too small to survive and thrive.
(ii) Under the 'joint management arrangements' implemented in 2005 a new fleet of United Kingdom registered mussel vessels were allowed to fish on the traditional mussel spat resources off the coastline of the State. This had a negative financial impact on existing mussel production companies in the State: 'they were unable to fish enough native seed mussels for relaying on their culture plots as this UK fleet is still allowed to fish in Irish waters'.
(iii) One of the main difficulties facing SMAC in making recommendations for seed allocation was the shortfall in good real-time survey data and the need for such data being stressed. This was not dissented from in the joint report, with the experts agreeing that mussels about to spawn or those that had just spawned should not be harvested as this would result in a higher mortality. It was agreed that a spawning assessment should be made, and that the more mature mussels there are, the more the likelihood of recruitment is increased.
90. The Court of Appeal stressed that no issue was taken with the following statement in the 2012 Maguire Report:
'... the Irish State, while being ultimately responsible for the management of this resource (both under Irish and European law), has to date not acted on what is considered best scientific evidence. In fact there is a distinct paucity of data for any such informed management plan. There were measures identified by many authors Maguire et al. (2007) and Jaap Holstein (consultant to the Dutch authorities) as being essential for the sustainable management of this resource but which have not been implemented. Judging by the recent ROI production figures (see figure 4), this lack of implementation has proven detrimental to the indigenous mussel industry. The ideal of maintaining ongoing sustainability in the fishery occurs repeatedly in the FAO's code .... This ideal appears to be lacking in the management of this fishery at present.'
91. One of the points made by Dr. Maguire was expressed as follows in her report:
'The amount of seed that was directly re-laid from ROI sea beds to Northern Ireland is easy to measure, however, the amount of seed lost due to bad management to the fishery is more difficult to ascertain. However, management practices employed during the 80s and 90s have proven that the fishery was sustainable. Even though SMAC only existed for a short time it set the tone for subsequent years whereby allocation to the ROI vessels was significantly curtailed by the allocation to the UK vessels. In my opinion this is the primary reason why the ROI mussel seed stock collapsed in recent years.'
92. As she put it in the course of being cross-examined, 'the number one factor was all these extra vessels that are outside of the jurisdiction that became entrants to the fishery around that time. It was too much.' These general complaints were elaborated upon by her in her evidence and in her report: seed was taken without leaving enough seed to overwinter and thus allowed to grow to a sufficient size to harvest the following spring and summer, the fisheries were opened too early, fishermen were allowed to fish for immature and small mussels thus lowering their chances of survival, allocations were made that exceeded the available seed by considerable amounts, and those allocations wrongly allowed all of the available stock to be fished. By 2003/2004, she explained, because the 'partially grown' practice could no longer be observed, little or no mussel seed overwintered or was even allowed to grow from spring to summer.
93. She expressed the view that the mussel stock could have been managed so that there was a minimum constant supply every year. She gave evidence as to surveys undertaken by her on the mussel seed resource in the Irish Sea in the years 2003, 2004, 2005 and 2006. These revealed a dramatic reduction in the stock available during that period. Over that period, she said, her work showed 35,000 tonnes of mussel seed in 2003, 24,000 in 2004, 14,000 in 2005 and 2,500 in 2006. From 2007 onwards there was some recovery, and a decline again in 2012 and a sharp decline in 2013.
94. When asked what had caused this, she said that it had to have been the fishing pressure: there was, she explained, no disease and no natural explanation for it. The resource was fished too early and it was not allowed to mature, and there were too many boats fishing it and they took as much as they could. She gave evidence of seeing, in 2003, boats dredging for mussels in close proximity to each other and (as she put it), 'going for it' in the Irish Sea on the mussel beds. There were, she said, a lot of new entrants to the fishery who did not understand how to conserve the mussels: '[t]here was too many boats for the amount of seed that was there. There wasn't enough to go round'. She continued:
'There was too many allocations. The allocations that were kind of handed out, there wasn't that amount of seed there. So they were there when the fishery opened to just take as much as they could and go back home, wherever that was, with their seed.'
95. This was, she later said, 'the main cause of the crash, if not the only cause'. She emphasised the 35,000 tonnes of mussel seed that was taken in 2003. To put that in context, and as I have earlier noted, the mussel catch for 2006 was 2,500 tonnes. All the seed available was taken in 2003 and, she said, none was left behind. Noting that in 2007 she had reported that the fishery should have been closed, she repeated that this is what should have happened at that point. Instead, she said, allocations were made that were 'totally over the top' - over 40,000 tonnes every year. This was, she said, 'completely ludicrous because ... there's a thing called the precautionary principle and it wasn't applied at all.' It 'beggars belief' she said, that you would decide on these allocations and carry them through when the Minister knew, or ought to have known, how much seed was there. She said 'there should have been enough for the Irish fishing fleet if it was managed correctly'. When asked what advice she would have given in 2003, she responded that she would have counselled not to take all of the stock and that the maximum that should have been taken was 50%.
96. Dr. Maguire was emphatic that in terms of management, it was feasible for assessments to be made as to the availability of seed to be fished. This could be done by appropriate surveying. She was critical of the decisions made by SMAC as to when the fishery would be opened: this was decided in February, she said, before it was known what seed was going to be there and, moreover, was opened too early - in late spring and early summer. She described this as 'madness'. The date ought to have been chosen having regard to what the monitoring disclosed: instead, she said, they 'just randomly chose a date that was suitable in the springtime'. She also said that she did not know how SMAC had come up with the allocations, as this was not clear from the SMAC documents. Allocations had been simply rolled over from the previous years, and were not made based on any scientific evidence about what seed was there.
97. Dr. Maguire cited a report prepared for the United Kingdom Government by Dr. Janet Brown who identified 'the most regular descriptors of the Irish system from regulators and the industry' as 'chaos and a shambles' concluding that 'lessons could be learned for the British system on how not to do it'. Dr. Brown, it might be noted, had observed that the rules operated by SMAC discriminated in favour of Northern Irish larger vessels and new operators, and had also described a lack of clarity regarding how criteria applied by it would be measured. Dr. Maguire said that the Department did not listen to the fishermen, observing of SMAC:
'They just decided to open in April/May before any stock assessment had taken place or before there was a reasonable expectation about how much stock would be available if they left it later on in the year.'
98. Once SMAC started, she said, it refused to go back to how it was before 'mainly because they had all these vessels from the North and for whatever reason they refused to, they granted them allocations as well which, if they hadn't granted them allocations, I think the Republic of Ireland fleet, who had been doing this before many many years, would have probably had more of an input, hopefully, we think so, because of their good history ... the UK vessels just, it led to this complete chaos and shambles.'
99. As I have noted, expert evidence was given by Dr. Oliver Tully on behalf of the defendants. He emphasised the sporadic nature and inter-annual variability of mussel seed settlement. The available stock depended on spawning output and environmental effects, and that in both Northern and Southern Ireland the industry relied on a limited number of areas, mainly Wicklow Head, the Wexford coast and Cromane, in the Republic of Ireland, and Skullmartin in Northern Ireland. He explained that the decrease in the mussel seed yield in the Republic in the period between 2003 to 2010/2011 (15,000 tonnes) was not matched by a corresponding increase in Northern Ireland (where the increase was 5,000 tonnes). He emphasised that the linear increase in uptake by Northern Ireland registered vessels could not have been sustained by out-take from southern waters. His assessment of SMAC was that it was developing a twin policy for both the seed mussel fishing sector and the aquaculture sector together and trying to make that operational year on year. He said that from his review of SMAC records it did use catch data from previous years in assessing allocations. He stressed that opening dates in the past had been flexible, but that it was extremely difficult to ascertain what information was used to make decisions in relation to opening times. He said that there was no evidence that the system could support and supply the volume of seed that was being demanded by all operators in the industry. On his analysis, there was no evidence that access to the fishery or the number of vessels fishing increased during the period of the significant decline in landings from 2009 to 2013 and there was no evidence that mussel seed dredgers were fishing small seed that had poor chance of survival post harvest. Evidence from the monitoring of the catch, he said, showed that the vessels were fishing half grown mussels. He moreover expressed the view that beds will recover year on year even if those beds are fished with a 100% harvest rate. His evidence was that experience had shown that where fishing had been uncontrolled in particular beds, you still got rebound in the following year. The question, he said, of whether you need to control fishing mortality in particular areas was 'particularly doubtful'. He said 'the implication for not constraining fishing mortality on the beds seems to be not a factor for future recruitment'. For that reason, he rejected the contention that the roll over of the allocation was significant: 'the nature of the beds which are fished seem to me now to be not constraining recruitment'. He expressed the view that the case for mis-management was unclear in Dr. Maguire's report, but said that insofar as it was based on the change from the 'partly grown method' to early summer fishing, there was no certainty that the biomass of seed would have been higher had the partly grown principle prevailed as this would depend on the balance of growth on each bed.
100. However, he agreed that the recommendations in the 2007 Maguire report were reasonable, but would, he said, 'represent a considerable scaling up of survey effort'. His evidence was that where there was a high level of uncertainty in how fish stock would respond to fishing and where scientific capacity to forecast that effect was limited, then a precautionary approach to managing the fishery should be adopted. The current management regime was not, he said, precautionary. Yet he was of the view that the absence of a precautionary approach had not been shown to have reduced the biomass available for the fishery in any given year, saying that an alternative and more precautionary harvest strategy might or might not result in higher biomass.
101. Dr. O'Carroll had been involved in the BIM aquaculture division from its formation in 1995, had been a member of SMAC from its inception until 2006 and gave evidence that he had attended almost all of its meetings. He gave evidence of work undertaken by BIM relating to the mussel seed resource, including the undertaking of surveys, studies of mussel seed stocks around the country, transplanting seed into parts of Wexford Harbour, and the use of 'black boxes' to gather information regarding the resource, in particular as to where seed beds have been found and how heavily they had been fished. He said that BIM surveyed the East Coast and Castlemaine Harbour every year to try to locate seed mussel beds of which, where located, the industry was informed. He said that he fundamentally disagreed with the notion that fishing all of the sea bed would materially affect the availability of seed in that area the following year. Leaving stock behind, he said, was not necessarily productive in terms of promoting seed settlement the following year. He also highlighted what he saw as a conflict between the different economic interests - established operators, new entrants, local users and distant users. Under cross-examination he said that in the course of his research he had never encountered mussels that had overwintered two successive winters, and while he had encountered beds that had overwintered, this did not happen 'relatively often'. The benefit, he said, of leaving seed beds suitable for fishing to overwinter has not been proven, especially on the East Coast around Counties Wicklow and Wexford.
(iii) Evidence as to loss
102. The accountancy witness for the plaintiffs, Mr. Hill, calculated the expected loss of profit on the part of the plaintiffs by reference to the profit each should have earned if the allocations referred to in their grant documents had been received, and if the respective plaintiffs had fished those allocations in full. Including both historic losses and projected future losses, taking account of lost interest and the sales of the vessels, the sums alleged to be due on this basis (which were presented only on the basis of the corporate plaintiffs) were for Mr. Barlow's companies in the amount of €91M, in relation to the fourth named plaintiff in a range from €21.356M to €32.190M of what were said to be direct losses, and €2.174M of consequential losses comprising monies said to have been due from related companies arising from the acquisition of aquaculture sites in Wexford for the anticipated stock of mussel seed, in relation to Mr. Kelly's companies in the sum of €46.88M, and as to Mr. McCarthy's companies in an amount presented as a range from €29.9M-€51.27M (this included a sum of €150,369 in respect of the cost of improvements to another vessel owned by these plaintiffs, The Cornelius Gerrit, of which they disposed in 2011). The claim for loss of profits, it was confirmed in evidence by one of the plaintiffs, was in perpetuity, or at least until the position was 'remedied'.
103. Mr. Bagnall, the accountancy expert who gave evidence on behalf of the defendants, stressed not merely the assumption underlying Mr. Hill's evidence - that the plaintiffs would have been awarded and fished in full the allocations contained in their grant applications - but also emphasised that they had not, in fact, fished in full the allocations they had been granted.
The argument
104.The best thumbnail sketch of the parties respective legal argument is found in the oral submissions to the High Court made at the conclusion of the evidence. These proceeded on the basis that the plaintiffs' primary claim arose from the provisions of the Constitution. That claim was two-fold. First it was said that there was a breach of constitutional duty by the State under Article 10, and while this did not result in an automatic entitlement to damages, it was an entitlement that arose in this case. Second, and following from this, it was said that there had been a breach of the plaintiffs' property rights as protected by Articles 43 and 40.3 of the Constitution. In cases involving licences, it was argued that the court looks at whether the interference with the property right in question is permissible by law. The courts had said, it was argued, that it is permissible to interfere with a property right in a licence, provided this was done by law, because the licence itself will often anticipate that the conditions under which the licence is granted can be altered by law. Here, it was contended that the licences could be interfered with by the operation of law but were not: instead they were interfered with by the operation of a wholly unlawful fishing regime which went on for 15/16 years. Because the plaintiffs had a property right in the allocations given to them, the interference with that right occasioned by permitting the Northern Irish vessels to fish was an 'unjust attack' on the plaintiff's protected property rights for which they were entitled to damages. The same point was made by reference to the plaintiffs investment in fishing vessels.
105. Noting that the only issue in this appeal relates to the liability of the defendants in the tort of negligence, the essential claim made by the plaintiffs in that regard was that in order for vessels purchased by them to be viable, they had to be able to harvest and re-lay certain minimum quantities of mussel seed during each fishing season. The defendants, it was said, knew this by virtue inter alia of the procedure by which various grants were sought by and made to the plaintiffs. The plaintiffs believed, they said, that in theory tonnages of mussel seed upon which they depended could be yielded. Had the defendants been discharging their functions properly by inter alia utilising mussel seed survey strategies to obtain scientific data to inform their decision-making about mussel seed harvesting, they would have been uniquely placed to know how much mussel seed would have been available for sustainable harvesting. The loss and damage to which the plaintiffs were exposed consequent upon those defaults was, the plaintiffs said, foreseeable. In their written submissions to the High Court, the plaintiffs argued (referring to Bates v. Minister for Agriculture [2018] IESC 5, [2020] 2 IR 149 ('Bates')) that they had entered into a 'special relationship' with the defendants and/or that there had been an assumption of responsibility by the defendants: that was said to arise because of the FIFG assistance and the licences granted to the plaintiffs having regard to the fact that it was apparent to the defendants that the plaintiffs relied upon a fair and equitable allocation being granted to them.
106. The defendants in their submissions forcefully criticised what they alleged was a lack of clarity in the plaintiffs' case around, in particular, what it was that the plaintiffs' were seeking damages for. As to the claim in negligence, specific criticism was made of the continued reference by the plaintiffs to 'mismanagement', to the absence of any evidence as to the reference point for an assessment of that assertion, and what 'recognisable duty' was said to have been thereby breached. Noting differences between the experts on matters such as overwintering, the defendants submitted that the evidence in the case was, for the most part, background, and, it was contended, vague. It was observed that the Court had heard nothing about the standard of care, or standard of management that could be reasonably expected. The plaintiffs were, it was said, seeking to claim hundreds of millions of euro in compensation because 'some Northern Irish fishing vessels fished for some seed' with proportions and quantitities being very vaguely identified. It was said that of the nine plaintiffs, four were individuals who had no claim for damages of any kind. The fact that Mr. Barlow required an aquaculture licence to obtain a mussel seed authorisation - and yet did not have one - was said to mean that even if he had been given a mussel seed authorisation, he could not have fished it. It was said that the sixth plaintiff was not a fishing company, that it merely purchased from the seventh plaintiff, and therefore it could have no claim. Thus, it was said there were only three plaintiffs with any sort of claims.
107.And from there it was contended that even if the plaintiffs could establish a claim based upon the alleged 'mismanagement', and even if they could say that there was a duty that existed for the benefit of a defined class of individuals, and if there was a breach of that duty, that this got the plaintiffs nowhere as there was no connection between that breach of a theoretical or notional duty and any identifiable and specific loss. There was no claim made in relation to the cost of complying with grant requirements, and the claim based upon a notional loss of profits without any attempt to combine or connect the actual losses to what would have happened if the so-called unlawful fishing by Northern Irish vessels had not occurred. And, it was said, the reason that had not been done was that it was impossible to say that the losses identified by the plaintiffs were linked to the fishing by Northern Irish vessels.
108. In the course of his submissions, counsel for the defendants placed particular emphasis on the judgments of this Court in Cromane Seafoods Ltd. v Minister for Agriculture [2016] IESC 6, [2017] 1 IR 119 ('Cromane') and specifically to references in that judgment to that of Keane CJ. in Glencar Exploration plc v. Mayo County Council [2002] 1 IR 84 ('Glencar') where he had addressed the requisite elements of a duty of care. Counsel questioned how the plaintiffs could reasonably argue in that context that a duty of care arises when ministerial officials acting in good faith enter into arrangements for joint management and permit the extraction of some seed by Northern Irish vessels. Following from this, it was contended that there could be no negligence if the defendants acted bona fide, took advice and did not believe that there was anything wrong in what was being done at the time. In their written submissions to the High Court the defendants contended that Cromane decided that a public body could not be liable in negligence for exercising a statutory duty where the legislation does not create a duty of care towards the plaintiff, and that a public body could not be liable in negligence based on the policy it pursued in applying legislation unless the plaintiff has brought successful judicial review proceedings to impugn that policy.
III THE JUDGMENTS OF THE HIGH COURT AND COURT OF APPEAL AND THE ISSUES BEFORE THIS COURT
The High Court
109. There was no dispute that each of the plaintiffs had made the investments they alleged, that they had been encouraged in their efforts by various state agencies and that each of them had incurred significant financial liabilities as a consequence of those investments. It could not be disputed that the admission of the Northern Ireland registered vessels to the State's mussel fishery was unlawful and in contravention of Article 10 of the Constitution, nor was it disputed that the Northern Irish fishing vessels engaged in aggressive fishing methods. At the conclusion of his judgment, Meenan J. said that 'it would be wrong for the Court not to recognise the energy, application and dedication which the plantiffs have brought to their respective businesses'. Noting that the owners of Nothern Irish registered vessels had been permitted to fish unlawfully in the State's territorial waters, he recorded that it could not be said that the plaintiffs had been well-served by the State.
110. However, Meenan J. concluded that while the evidence of the activities of the Northern Irish registered vessels was clear, the evidence of their effect on the livelihoods of the plaintiffs was less so. He found that while the statistics presented by Dr. Maguire showing the amount of mussel seed fished by Northern Irish registered vessels that was re-laid to aquaculture sites in that jurisdiction established a generalised loss for the mussel industry in the State as a consequence of fishing by Northern Irish vessels, it did not establish any particular losses in respect of the individual plaintiffs. It could not be said, he found, that the plaintiffs would in fact have fished and relaid all of that seed, and indeed others may have entered the market had the Northern Irish fishermen not been active in Irish waters. Nor did the evidence adduced by the plaintiffs establish that the difference between the allocation of mussel seed set out in their grant applications and the amount actually fished by them was the result of either fishing by the Northern Irish registered boats, or mismanagement of the resource. This prompted Meenan J. to the following findings as to the facts which, he said, disclosed 'serious deficiencies in the evidence given by the plaintiffs':
(i) Had vessels registered in Northern Ireland not been fishing for mussel seed in the territorial waters, there would have been additional mussel seed available for the plaintiffs and other vessels licensed by the State.
(ii) There was insufficient evidence to quantify how much of the mussel seed made available by the absence of Northern Irish registered vessels would have been fished by the plaintiffs. In that regard, account would have to be taken of the extra amount that could be fished by vessels other than the plaintiffs registered in the State and new entrants into mussel seed fishing.
(iii) Although the manner in which the allocations of mussel seed to the various plaintiffs were made may be open to criticism, the evidence demonstrated, for the most part, that the amount of mussel seed fished by each of the plaintiffs fell short of their respective allocations.
(iv) Even if it were established that the first defendant failed to manage the mussel seed resource appropriately, there was no evidence to quantify the consequences of this. Indeed, an aspect of good management as proposed by the plaintiffs would have led to a closure of areas for mussel seed fishing which would have led to a reduction in the amount fished. He held that the plaintiffs failed to establish that the damage which they claimed to have suffered flowed directly from the unlawfulness that was previously found by this Court in Barlow II.
(v) The accountancy evidence adduced by the plaintiffs was rejected on the basis that it was based on the proposition, which the judge found untenable, that the aquaculture grant application detailing the expected allocation of mussel seed should have been reflected in the amount of seed allocated to the plaintiffs by the Minister.
111. From there, the claims of the plaintiffs were dismissed on various grounds: the claim for damages to their right to earn a livelihood failed because this did not extend to a right to mussel seed, which was the property of the State, and because the plaintiffs had not established that their losses were caused by the illegality attending the extension of the grant of permission to Northern Irish registered vessels to fish in Irish waters. The claim based solely on that illegality also failed, as the plaintiffs had not established malice or knowledge on the part of the Minister that he did not have the power to permit Northern Irish registered vessels to fish in Irish waters. The statutory provisions on which the plaintiffs had relied were not such as to confer a right to damages for the breach (judicial review, he said, being the appropriate remedy for a failure to comply with that legislation). The statements made by the defendants in respect of grant aid and the fishing boat licences could not amount to a promise or representation for the purposes of any cause of action based on legitimate expectation, and a suggested claim based on Article 1 of Protocol 1 of the European Convention on Human Rights was dismissed on the basis that the plaintiffs' claims concerned the exploitation of a natural resource in which they had no property right.
112. Insofar as the claims in negligence were concerned, Meenan J. placed some emphasis on the decision of this Court in Cromane. He made three points. First, he said that as mussel seed is the property of the State, he could not see that the State would be under a duty of care to manage the mussel seed in such a way that protected the commercial interests of the plaintiffs. This reflected, he said, the restrictive view of negligence adopted by the Court in Cromane. Second, he was of the view that even if a duty of care had been established, the plaintiffs had not established a breach of that duty by reference to the applicable standard of care. The evidence, he said, disclosed that managing a natural resource such as mussel seed involved the exercise of judgment in areas such as natural science, biology and economics. The differences between the experts in the case had been, he said, 'an honest difference of opinion which, of itself, does not amount to negligence'. And it followed, thirdly, from the findings of fact he had made, that the plaintiffs had failed to prove loss and damage consequent upon the negligence they had alleged.
113. Meenan J. delivered a second judgment addressing the question of costs ([2019] IEHC 417). In the course of explaining his decision to award the unsuccessful plaintiffs 25% of their taxed costs, Meenan J. observed that the 'illegal fishing' by the Northern Irish registered vessels 'did have adverse commercial consequences for the plaintiffs'.
The Court of Appeal
114. By the time the case came for hearing before the Court of Appeal, the plaintiffs' case was concentrated on their claim in negligence. The claim for damages for breach of constitutional rights was said to be subsidiary and contingent on their not recovering in negligence, the claims for negligent misstatement, breach of statutory duty and legitimate expection being effectively abandoned. The claim for damages for breach of constitutional rights was shortly despatched by the Court: Edwards J. concluded that the evidence before the High Court fell far short of establishing a diminution of the property rights being relied upon as a direct consequence of the mismanagement complained of.
115. Insofar as the case in negligence was concerned, Edwards J. began his consideration of that claim with the conclusion that the trial judge had erred in his consideration of the expert evidence addressing how the State had managed the fishery; he said that the High Court judgment created a misleading impression that there were two competing bodies of evidence on the issue of whether or not there had been mismanagement. In fact, he said, the experts had agreed that there had not been proper management of the mussel seed resource in the main respects complained of by the plaintiffs and that the other issues arising in the appeal must be considered against that background.
116. He summarised these complaints later in his judgment, dividing them into acts and omissions. The positive acts included allowing greatly increased access to the fishery (particularly by Northern Ireland operators) and enabling aggressive harvesting without any consideration for the extent of the resource, and in disregard of the 'precautionary principle', allocating seed mussel tonnage quotas in the absence of any evidence as to whether this tonnage was or was not available, and rolling over quota allocations from year-to-year despite a lack of good survey data. The omissions involved a failure to utilise mussel seed survey strategies to obtain scientific data necessary to adequately inform their decision-making about mussel seed harvesting, and potential mussel seed yields, and a failure to make allocations on an informed basis.
117. However, it was considerations of law that led Edwards J. (whose judgment contains a detailed and impressive review of the relevant authorities) to conclude that the claim in negligence could not succeed. His reasoning was based on the features of a duty of care as identified by Keane CJ. in Glencar, focussing on whether there was sufficient proximity in the relationship between the plaintiffs and the defendants to impute such a duty, whether the loss and damage was reasonably foreseeable, and whether it was fair, just and reasonable to regard the defendants as being subject to the duty of care alleged. From there, his essential analysis was as follows:
(i) The mere fact that the State is the owner of the ground mussel seed resource and is entrusted with its management, having statutory powers to assist to that end would not in itself result in a private law duty of care of the kind contended for by the plaintiffs. Something more was required.
(ii) While acknowledging that the trial judge had not adequately engaged with the evidence on the issue of whether a relationship of proximity between the parties existed for the imposition of a duty of care, Edwards J. decided that the plaintiffs had failed to establish 'sufficient proximity such as would give rise to a duty of care'.
(iii) While treating the evidence adduced by the plaintiffs as to the encouragement given to them by the defendants in applying for grant aid, the assistance given in lobbying the relevant European authorities, and the understanding of both parties that the availability of assistance was dependant upon viability and thus access to mussel seed, Edwards J. was of the view that because management of a natural resource was for the benefit of the public as a whole, it was not possible to impute a separate duty of care to manage that resource for the benefit of private individuals who might wish to commercially exploit that resource. The dealings between the plaintiffs and the defendants were thus irrelevant to whether such a duty of care arose. He based this conclusion on the fact that the sector was substantially, albeit not comprehensively, regulated by statute (at para. 203):
'in the circumstances obtaining here, regardless of what dealings there might have been between the parties, such dealings simply could not have given rise to a relationship of sufficient proximity to impute the duty of care being contended for'.
(iv) Even if proximity for these purposes were established, Edwards J. was of the view that it would not be fair, just and reasonable to impose a duty of care of the kind contended for. Here, he stressed:
(a) That the defendants' management role involved making policy choices about the husbandry and allocation of a scarce public resource, and implementing those choices.
(b) These were not designed or intended to benefit the interests of any specific category of persons but were directed to the interests of the public in general.
(c) The allegations of mismanagement did not involve purely administrative actions in respect of which a duty of care might more readily be extended.
(d) He said that but for the interactions between the plaintiffs and the defendants there could be no question of holding the defendants liable in negligence for mismanagement of the resource as to do so would have a chilling effect on the formulation of policy and on the exercise of discretionary or adjudicative power in the implementation of that policy.
(e) Noting the decision in Beatty v. Rent Tribunal [2005] IESC 66, [2006] 2 IR 191 ('Beatty'), Edwards J. attached significance to exchanges between counsel and the Court as to whether it would have been possible for the plaintiffs to agitate their complaints as to the management of the mussel seed resource by judicial review, and in which counsel for the plaintiffs had indicated that they would have faced difficulty obtaining that relief. Edwards J. (while expressing himself unconvinced of the correctness of counsel's position) said that if this was because there was no public law duty to manage the mussel stocks, that weighed against it being fair, just or reasonable to impose a duty of care. If it was because there was such a public law duty, but that the defendant had not acted unreasonably or otherwise unlawfully, he suggested, this would render the imposition of liability in damages inappropriate.
118. Edwards J. also delivered a separate judgment addressing the costs of the appeal ([2023] IECA 193). He awarded one third of those costs in favour of the plaintiffs. In the course of his judgment he referred to the plaintiffs' 'exposure to adverse circumstances' which he described as 'declining mussel seed yields due to mismanagement of the mussel seed resource, for which either the Minister concerned or Ireland was in substance responsible'. He also said of the principal judgment, the following:
'we were in agreement with the High Court judge that in the circumstances obtaining in this case, the dealings between the parties did not give rise to a relationship of sufficient proximity to impute the duty of care being contended for.'
The challenges presented by the plaintiffs' claims
119. It is difficult not to have sympathy with the trial judge in the task he faced in reducing the evidence to a coherent set of conclusions. To some extent, this was due to circumstances outside everyone's control. That the facts in issue in the case sprawled over a period of twelve years was no one's fault: the plaintiffs moved promptly to institute their proceedings. The decision to proceed separately with the foundational issue of whether the decision to grant access to the mussel fishery to the Northern Irish registered vessels was lawful having regard to Article 10 of the Constitution, was understandable. It was because of the unfortunate death of the trial judge after hearing that part of the case the first time, that it had to be re-run in the High Court.
120. But all of this meant that Meenan J. was faced with an action by four quite differently positioned plaintiffs engaging events over a period of twelve years with allegations of wrongdoing that travelled across a spectrum from alleged defaults in policy making, to allegations directed to how the fishery was actually managed on a day-to-day basis. Some of those claims may have had more force at some points in time, than at others. The quantum of the claim advanced by the plaintiffs for lost profits was immense and its grounding in fact or law was not self-evident. For my part, some of the evidence given as to the various different mussel fisheries and vessels operated by some of the plaintiffs presents as confusing, and at points it was difficult to differentiate activities that were embarked upon because of the provision of grant aid and other assistance, from some that may have predated the dealings between the plaintiffs and the defendants I have outlined earlier. Some of the figures as to to volumes of mussel seed fished and transplanted to Northern Ireland were difficult to follow. Moreover, the claim - certainly as articulated in oral argument before the High Court - was very much focussed on the action for damages for breach of constitutional rights and duties to the extent that the claim in negligence - and accordingly the detail of the defence thereto - might not have obtained the attention it did before this Court and the Court of Appeal.
121. That said, the case as it now stands raises fundamentally important issues around how the private law of negligence interacts with the constraints imposed by what we now call 'public law' on the activities of the State and its agencies, and it arises in a context in which - as the comments of both Meenan and Edwards JJ. in their costs rulings show - both the High Court and the Court of Appeal concluded that the plaintiffs have not been well-served by the State. As will be apparent from what I say later, there is some confusion as to the principles applicable in this jurisdiction to public authority liability in negligence, and neither the State defendants, the plaintiffs, nor the Courts below can be criticised for thinking that the law was more protective of public authorities than it is. On any reasonable view of the evidence adduced in the High Court, these proceedings have taken a considerable toll and have involved the plaintiffs in immense expense and having regard to the consequent costs exposure, one assumes considerable stress. While in no sense underestimating the difficulties the case also presented for the State witnesses and their advisors, this is a case in which I believe the Court, in seeking to frame and resolve the issues now before it should afford a degree of tolerance to all of the parties in its examination of legal issues that may not have been as fully explored in the case to date, as they might have been.
Defining the case in negligence
122. The Court of Appeal decided the case on the sole basis that the defendants did not owe the plaintiffs a duty of care of the kind contended for. That, in consequence, is the legal issue that has dominated this appeal. However, as I explained in the course of my judgment in McCarthy v. Kavanagh [2020] IECA 344, [2022] 3 IR 306 (at para. 43) while in straightforward negligence cases the atomisation of the tort between duty, scope, breach, cause and damage, provides a convenient - but often unnecessary - checklist for confirming or negating an asserted liability, in more complex claims the elements of the cause of action are not as easily segregated. This is particularly the case when a claim crosses the sometimes ill-defined line between a duty to protect against harm, and the obligation not to actually inflict it. In claims of this kind it is more difficult to answer the question of whether the defendant owes a duty of care without referring the scope of, and asserted legal basis for, the duty so claimed to the type of damage against which it is said the defendant was required to protect the plaintiff, and it is impossible to analyse either without identifying the breaches of duty which are alleged to have caused that damage. Defining each of these is all the more important in a context where the allegedly wrongful acts, while beguilingly gathered together by the plaintiffs under the rubric of 'mismanagement', in fact comprise a variety of different defaults over a lengthy period of time, some of which (in particular decisions as to allocation of mussel seed) might be said on one version of the term to engage issues of 'policy', while others (failure to prevent overfishing) are more mechanical and administrative in nature. And finally, as I explain later, claims in negligence against public authorities arising from the manner in which they have exercised their discretionary powers present particular issues which, in at least some cases, may elide the question of whether there is a duty of care, with the issue of what the standard of care demanded by the law of the defendant is. All of that being so, three critical features of the claim in negligence in this case require clear definition before an examination of the legal basis for the claim can be undertaken.
(i) The duty
123. The parameters of the duty alleged are best viewed by reference to the breaches which it was said were causative of the alleged loss. They were as follows:
(i) Granting permission to Northern Irish vessels to fish for mussel seed in Irish territorial waters and/or doing so without regard to available stocks;
(ii) Failing to police the manner in which those vessels fished the resource and, in particular, to address what were alleged to have been the aggressive and invasive fishing methods practiced by the Northern Irish fishermen;
(iii) Failing to adequately survey stocks and to make allocations on an informed basis with knowledge of actual stock levels;
(iv) Rolling over of allocations from year-to-year notwithstanding the absence of reliable data concerning actual stocks.
124. One can, of course, capture these breaches under the general umbrella of a duty not to 'mismanage' the mussel seed resource, or (as was also suggested by the plaintiffs) to 'rationally exploit' the fishery, but I think that in complex cases of this kind it is more helpful to frame the duty at a sharper and more precise level. The duty in play has two broad elements - an alleged duty arising from the allocation of the resource ((i), (iii) and (iv)), and an asserted duty to exercise care in the policing of the fishery ((ii)). It is clear that the trial judge concluded that the complaints around the actual day-to-day management of the fishery had not been made out: that was a conclusion he was entirely justified in reaching. This was not simply a question of looking to what had been agreed between Dr. Maguire and Dr. O'Carroll: Dr. Tully had given evidence on these issues, and indeed the witnesses of fact had also given evidence that was relevant in this regard. Therefore, whatever the niceties of the legal arguments around the question may be, the issue of whether the defendants owed a duty of care to the plaintiffs to police fishing activities 'on the ground' is academic: the trial judge has decided that the plaintiffs had failed to establish any such negligence and he was entitled to so conclude. The plaintiffs have not proposed a plausible basis on which those findings could be interfered with. It was not correct to simply tie the case to 'the main respects' in which the plaintiffs had complained of 'mismanagement' which was, it should be said, not in itself negligence. As I think evident from my earlier summary of the evidence, here there were legitimate differences (particularly evident in the evidence of Dr. Tully) around overwintering, the extent to which 'hard' fishing or fishing young seed in fact damaged the fishery and the extent to which it could be expected to recover from same.
125. So, at this point the case is entirely focussed on the process of allocation of mussel seed (items (i), (iii) and (iv) above). There, one can certainly see a clear element of agreement between witnesses for the plaintiffs and defendants that there was no proper survey data before allocations were made, and that allocations were made that the resource could not sustain. The criteria applied from 2005 on are said to have discriminated heavily in favour of Northern Ireland operators. Moreover, the allocation of the seed from 2006 on did not, seemingly, involve any consideration of anything and appears to have been done initially as a holding mechanism for what was presumably envisaged would be a short period of time that, as matters transpired, was never actually brought to an end.
126. The part of the claim that remains is therefore firmly located in the process of decision making around the allocations. Every aspect of the negligence that was thus alleged (paras, (i), (iii) and (iv) above) came back to the related questions of whether sufficient account was taken of the extent of the resource in allocating seed, whether sufficient surveys and other information were available and were obtained before so allocating the seed, whether a large number of new operators should at the same time have been given the access that they were given to the fishery, whether the allocations should have been simply rolled over for over a decade and, at least indirectly, whether the State ought to have policed the requirements of the voisinage agreement as allocations were made, and whether it was right to allocate so heavily in favour of the larger Northern Irish farms (it being accepted that it was negligent per se to allow access to Northern Irish fishermen).
(ii) The losses
127. As pleaded in the third amended Statement of Claim, the loss and damage claimed by the plaintiffs had four components:
(i) The plaintiffs had invested €25M in acquiring new aquaculture vessels and in bringing their existing vessels within the safety requirements imposed by EU and domestic laws, and in research and development (this figure is inclusive of the grant-aid received by the plaintiffs).
(ii) They had in addition incurred losses in respect of the purchase prices of the vessels they acquired, the costs of improvements to existing vessels and estimated losses of expected revenue.
(iii) They continued to incur operating costs in their businesses.
(iv) Those investments had been substantially reduced in value as a result of the failure of the defendants to properly police mussel seed fishing within the exclusive fishery limits.
128. The plaintiffs said that physical damage to the mussel seed stock was caused by the negligent acts of which they complained, and they contended that they had property rights in their licences entitling them to access the fishery, those property rights (they said) were being damaged by the defendants' proven unlawful mismanagement of the fishery. Therefore, they argued, the losses are properly categorised as 'consequential economic loss'. In that regard, they referred to the decision of the Supreme Court of Canada in Ontario v. Maple Leaf Foods [2020] 3 SCR 504. They also drew attention to authorities (Union Oil Co. v. Oppen 501 F.2 558 (9th Cir. 1974), Landcatch Ltd. v. International Oil Pollution Compensation Fund [1999] SCLR 709 and Tilbury v. Alegrate Shipping Co. Inc. [2003] 1 CLC 325) which, they said, supported the proposition that fishermen accustomed to fishing in waters that are contaminated have been found under certain conditions entitled to claim compensation for economic losses either on the theory that their livelihoods have been damaged, or that their claim is closely related to physical waters and the physical contamination that has occurred.
129. I do not find these arguments persuasive. While I return later around some of the distinctions drawn between different categories of economic loss, each component of the loss as pleaded (and recited above) was purely economic. Certainly, there was some evidence before the High Court that the actions of which the plaintiffs complained - in particular the fact (not seemingly disputed) that mussel seed had been fished when it was small, thereby preventing the benefits that the plaintiffs said would otherwise follow from the practice of 'overwintering', yet the evidence as to those benefits was disputed and, in this respect at least, the High Court judge was entitled to conclude that there was a legitimate difference of opinion as between the experts. So, the claimed physical damage to the fishing stock was in truth not proven. The real gist of the plaintiffs' claims was not as much that there had been physical damage to the stock, as that there were too many operators competing for limited stock. That was not a case of physical damage that could be remotely analogised to the authorities cited by the plaintiffs, and it was neither consequential nor relational in any ordinary sense of either term. Given that it was in that context that reference is made to the livelihoods of the fishermen said to have been affected by contamination of fish stocks, I do not see that describing the claim by reference to incorporeal property rights in licences, or to a livelihood, advances the analysis.
130. As the case was presented at the hearing, the pleaded losses fall into two categories: losses in the form of monies expended on the proposed enterprise (items (i), all but the final clause of (ii) and (iii) above), and what - while pleaded as a reduction in value of the investment - was presented at trial as financial loss consequent upon the fact that the plaintiffs were deprived of the opportunity to fish mussel seed in the quantities identified in their business and aquaculture plans (seemingly described in evidence as 'terminal loss'). The duty of care asserted by the plaintiffs was, in effect, a duty not to cause, or to prevent the infliction on the plaintiffs of such losses.
131. Here again, it is necessary to go back again to the findings of the trial judge. His judgment was focussed on the losses caused by the fact that the plaintiffs did not fish the amounts of seed they had identified in their plans. Having regard to the direction of the expert evidence adduced on behalf of the plaintiffs, that was to be expected. He rejected the claim for recovery of those losses. Part of his reasons for so concluding were that the accountancy evidence adduced by the plaintiffs was based on the proposition, which the judge found untenable, and that the aquaculture grant application detailing the expected allocation of mussel seed should have been reflected in the amount of seed allocated to the plaintiffs by the Minister and the assumption that this would then be fished by the plaintiffs. I see no basis for interfering with that conclusion. In point of fact - and this will be more evident when the law around the recovery of pure economic loss in negligence is considered presently - it is hard to see how such losses could have been thought other than both wholly remote from the alleged wrongdoing and divorced from any responsibility that might reasonably be said to have been assumed by the defendants. Nothing in the case could have supported the proposition that the defendants undertook a responsibility to the plaintiffs that, effectively, underwrote the profits they expected to make in perpetuity on their commercial undertaking.
132. However, it is arguable that the claim for monies lost by investing in the business were in a different category. I will refer to these throughout this judgment as 'investment losses'. By this I mean monies expended by the plaintiffs on those parts of their businesses to which the grant applications and licences issued in connection therewith related, on the assumption that there would be available to them a mussel seed resource which could be successfully farmed, and lost because as a result of the negligence of the defendants, that resource was not available to them. These would include unrecouped expenditure on the vessels, on aquaculture sites, or on other plant and equipment. That aspect of the plaintiffs' claim was not considered by the judge - and having regard to the focus of the expert evidence, this was to be expected. It was part of the pleaded case and there was evidence from some of the plaintiffs that identified at least some of the financial consequences of the collapse in their businesses, but it did not feature in any focussed way in the expert evidence, or submissions. There are various possible reasons for this: it may be that when the grant was taken into consideration the plaintiffs did not in fact suffer any such losses (although the claim was never abandoned, and losses of this kind were alluded to both in submissions before the Court of Appeal, and in supplemental submissions delivered by the plaintiffs at the direction of this Court, which summarised the evidence that had been given in this regard). It may also be that it was felt more prudent to simply roll those losses into the larger claim that did feature in the expert evidence. For reasons I explain later, if the plaintiffs did suffer such losses they may, depending on a variety of other factual matters, be entitled to recover them. I will explain shortly why I think they should be given the opportunity to seek to do so.
(iii) The legal basis for the asserted duty of care
133. Third, and finally, it is necessary to be clear about the asserted basis for the duty. The plaintiffs did not, quite correctly, seek to contend that the statutory provisions vesting the power of allocation of mussel seed in themselves gave rise to this duty. While it was said that by reason of the dealings between the parties there was sufficient 'proximity' to give rise to a duty not to cause, or to protect the plantiffs against, the claimed losses (which, of course, it was said were foreseeable), it is clear that in a case in which the events giving rise to the alleged loss are so centred around the exercise of a statutory power, it was necessary to do a great deal more than to simply point to dealings between the plaintiffs and the defendants which led the former to rely in a general way on the non-negligent discharge by the latter of those functions. The decision of this Court in Cromane makes it clear that this is not enough.
134. In that regard, the plaintiffs pointed to two particular features of the case. One was the claim that the dealings between the parties, viewed in context, were such as to present an assumption of responsibility by the defendants towards the plaintiffs which, it was said, generated the duty of care asserted by them. The other was that the subject matter of the duties and the source of the plaintiffs loss were to be found in something - the mussel seed resource - that was under the legal control of the defendants.
IV ANALYSIS
The legal context
135. A review of the substantial body of case law addressing the liability in negligence of public authorities in the discharge of their functions - not to mention the overwhelming collection of academic commentary that has developed around the topic - shows, if nothing else, that the law continues to struggle in seeking to reduce this point of intersection between public and private law to a coherent theory. This is, in part, a function of the jagged way the common law has sought to develop a principled account of the tort of negligence while, at more or less the same time as that struggle came to the fore, the ambit of the legal controls we today describe as 'judicial review' were emerging from the major cases in that field. It may also be a consequence of the fact that while our law provides a bespoke set of remedies for unlawful administrative action, our legal system does not recognise a clear boundary or formally designated distinction between public and private law (although I will continue to use those familiar phrases throughout this judgment, the former in reference to those remedies that may be granted by way of judicial review).
136. However it seems obvious that the starting point of the analysis has to be that liability in negligence of the State and its agencies should be governed by the same legal principles that apply to private persons - at least when the body in question is undertaking the same functions as do non-State actors. The fact that the driver of a motor vehicle, a landlord, or an employer is an emanation of the State does not (at least usually) justify the application to such a body of a more generous or indulgent regime of legal obligation than would apply to any other driver, landlord or employer. As Keane CJ. explained in the course of his judgment in Glencar, in such cases the plaintiff does not have to call in aid the fact that the defendants may have been exercising a statutory function: their duty of care as occupiers, employers, or when entering into other commonplace legal relationships is no greater, but also no less, than that of their counterparts in the private sector (at p. 140). The same logic led Clarke CJ. to conclude in Cromane that even if the relationship between the State and an individual does not have an identical counterpart in private law, there should be a broad similarity between the duty of care of public and private persons or bodies faced with analogous situations unless there is a significant countervailing factor stemming from the role of the public official or body in question which would justify different treatment. As I explain later while Clarke CJ. (with whom Laffoy J. agreed) dissented as to the outcome in Cromane, I do not read the majority judgments in that case as being necessarily inconsistent with that general approach, and indeed it was adopted in the majority and joint judgment of Clarke CJ. and MacMenamin J. (with which Dunne J. agreed) in University College Cork v. Cork County Council [2020] IESC 38 ('UCC') (see para. 11.8). The real issue is exactly how 'analagous' the activities of the public body have to be with those that have arisen in purely private relations before 'broadly similar' principles of liability are applied to them, and for that matter how 'broadly similar' those principles have to be.
137. But taking that as representing, at the very least, a starting point, the question of whether liability in negligence should be imposed on a statutory authority outside those situations in which there is a clear, simple, and direct analogy to be drawn with the activities of private actors involves consideration of several components that do not arise, or do not arise as often, with liability in purely private contexts. Eight factors that are relevant to this appeal and that may differentiate a claim in negligence against a public authority, from that against a private undertaking, emerge from the cases: (i) that the authority will generally be acting in furtherance of a public duty and function, (ii) that it will often be doing so on foot of (and within the constraints imposed by) a specific statutory scheme (iii) that the injury the authority is said to have caused will sometimes arise from the failure to exercise a power (rather than from its actual exercise), (iv) that the harm it is thus alleged to have produced will sometimes be a failure to confer a benefit rather than the infliction of a direct injury in the sense of making matters worse for the plaintiff than they would have been had the defendant not acted as they did, (v) that there are issues of policy (and I include in this issues of constitutional propriety and judicial competence) in the review by courts of some decisions entrusted by law to the discretion of the Executive, particularly in adjudicating on the legality of bona fide decisions made in the allocation of financial resources as between competing claimants, (vi) that the law provides an avenue of recovery for losses sustained as a consequence of certain types of administrative action in the form of the tort of misfeasance in public office, (vii) that there are available unique remedies against public bodies that have acted unlawfully in the form of the various reliefs that can be obtained by way of judicial review, and (viii) that in some cases - and as it happens in Ireland this has been a feature of the most prominent and difficult claims - the losses in issue will be largely, if not purely, economic.
138. The task of achieving a workable accommodation of these factors with the need for public authority liability in negligence to operate, to the greatest extent possible, according the same principles as those that govern the liability of non-State actors, has been complicated by the fact that the approach adopted in identifying when a duty of care will and will not arise in private law has at various points been in a state of flux, much of the underlying disturbance - instructively I think - being generated by the public authority cases themselves. The main decisions have been surveyed often in the judgments, those histories often starting with Donoghue v. Stevenson [1932] AC 562 itself, and moving through East Suffolk Rivers Catchment Board v. Kent [1941] AC 74 ('East Suffolk'), Hedley Byrne & Co Ltd. v. Heller and Partners Ltd. [1964] AC 465 ('Hedley Byrne'), Dorset Yacht v. The Home Office [1970] AC 1004 ('Dorset Yacht'), Anns v. Merton London Borough Council [1978] AC 728 ('Anns'), Siney v. Dublin Corporation [1980] IR 400 ('Siney'), Sutherland Shire Council v. Heyman (1985) 157 CLR 424 ('Heyman'), Ward v. McMaster [1985] IR 29 and [1988] IR 337 ('Ward'), W. v. Ireland (No. 2) [1997] 2 IR 141, Caparo v. Dickman [1990] 2 AC 605 ('Caparo'), Stovin v. Wise [1996] AC 923, Gorringe v. Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 ('Gorringe') before seeming to settle at Glencar Exploration Ltd v. Mayo County Council [2002] 1 IR 84 ('Glencar'), the principles in which were reiterated shortly thereafter in Fletcher v. Commissioners of Public Works [2003] 1 IR 465. Since Glencar, further insights have emerged from the judgments in Kennedy v. The Law Society [2005] IESC 23, [2005] 3 IR 228 ('Kennedy'), Michael v. Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732 ('Michael'), LM v. The Commissioner of an Garda Siochana [2015] IESC 81, [2015] 2 IR 45, Cromane, Robinson v. Chief Constable [2018] UKSC 4, [2018] AC 736 ('Robinson'), N and anor. v. Poole Borough Council [2019] UKSC 25, [2020] AC 780 ('Poole'), Morrissey v. HSE [2020] IESC 6 ('Morrissey') and UCC. The effect of these more recent decisions is to present squarely the issue of how, in Irish law, a Court faced with an asserted but disputed duty of care should now embark upon the task of determining whether there is such an obligation.
The identification of a duty of care
139. To recap, the issue now before this Court is whether the defendants, based upon an assumption of responsibility and/or the fact of their control over the mussel seed resource, owed a duty of care to the plaintiffs in the decisions made pursuant to statute around the allocation of the entitlement to fish that seed, to avoid the loss by the plaintiffs of their investment in the business in question. The High Court and Court of Appeal understandably analysed the duty of care issue by reference to the judgment of Keane CJ in Glencar. This has held sway for over two decades as the point of departure in this jurisdiction for the resolution of any case presenting a novel duty of care issue.
140. Although the relevant passage from that judgment (at p. 139) is sometimes understood as prescribing four elements, it is - not least of all because it was based on the speech of Lord Bridge in Caparo – properly read as proposing an inquiry with three features: whether the losses sought to be recovered were a reasonably forseeable consequence of the alleged default, whether there was sufficient proximity between the plaintiff and defendant to give rise to a duty of care, and whether it was just and reasonable [8] to impose a duty of care.
141. The decision in Caparo was heavily influenced by the judgment of Brennan J. in Heyman, the judgment of Keane CJ in Glencar was heavily influenced by both, and all three decisions sought to set a counterpoint to the two-stage inquiry suggested in Anns, which at least on one view envisaged prima facie liability once proximity and foreseeability were established. Brennan J. said the following of the method suggested in Anns at p. 481:
'I am unable to accept that approach. It is preferable ... that the law should develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed".'
142. It is for this reason that Glencar has been described as a decision that 'preferred incrementalism to broad theory' (McMahon and Binchy, Law of Torts, 4th edn, Bloomsbury Professional 2013 at para. 10.11), and it is therefore to be expected that this method would thereafter define the approach adopted in the later cases. Although some cases after Glencar treated the judgment of Keane CJ. as prescribing its own 'test' to be applied in each case in which the issue was whether a duty of care was owed by one party to another, two later decisions made it clear that this was not the correct approach.
143. Thus, in Whelan v. Allied Irish Banks [2014] IESC 3, [2014] 2 IR 199 at para. 67, O'Donnell J. explained that Glencar did not not mandate or permit a consideration in each individual case of whether the imposition of a duty of care meets 'some undefined concept of fairness in the particular case'. It is, instead, an inquiry triggered where the court is faced with an asserted duty of care in a situation in which the law had never before imposed such a duty of care. Where faced with a potential duty of care in a relationship which is not captured by existing authority, he explained, the court must reason by analogy with those situations in which the law has imposed such a duty, thus enabling the incremental development of the law suggested by Brennan J. in Heyman.
144. Once that was understood, it was clear that Keane CJ was not prescribing a 'test' as such: indeed although Lord Bridge in Caparo specifically said that these elements of 'proximity' and 'fairness' lacked the precision necessary to give them utility as practical tests (at p. 618), his formulation was transformed by some of the cases into precisely that. However, by definition, inquiries as to 'proximity' and 'forseeability' are redundant in a situation in which a case falls within authority in which it has been decided that there is or is not a duty of care. If the authority truly controls the situation, those questions have been answered.
145. In contrast, in a novel situation (that is a relationship that has not been found by directly applicable authority to be such as to give rise to a duty of care [9]) these inquiries are sometimes circular and often question begging. Viewed at the right level of abstraction, everything is proximate and all losses can be foreseen. Proximity and foreseeability are relative, and - as the formulation in Glencar makes clear - a court in treating with those concepts is in fact making a value judgment, deciding whether a relationship is sufficiently and reasonably proximate and whether losses are sufficiently and reasonably forseeable to generate legal liability. Whatever about foreseeability - which in large part operates as a screening mechanism to exclude claims that must obviously fail [10] - the exercise undertaken when determining whether there is proximity is both critical and value-laden. It was described by Deane J. in Jaensch v. Coffey (1984) 155 CLR 549 as 'the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained...'. The application of any one aspect of this multi-faceted concept involves not just a disembodied identification of 'closeness', but assumes a policy based differentiation of one 'close' relationship from another. Some 'close' relationships give rise to a duty of care, while others do not, with proximity functioning as 'a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists' (per Lord Oliver in Caparo at p. 633). However, it is clear that 'the identification of the content of that requirement ... should not be either ostensibly or actually divorced from notions of what is "fair and reasonable" ... or from the considerations of public policy which underlie and enlighten the existence and content of the requirement' (per Deane J. in Heyman at p. 498). It is thus that the third limb of the approach adopted in Glencar seeps into the first two.
146. So, inevitably it became necessary to put more definition on how these elements were to be actually identified in a given case. That was the context in which, in Morrissey, Clarke CJ proposed two methods of analysis for the resolution of a duty of care issue. One involved identifying whether there were what he termed 'fundamental guiding principles' to be found in the existing case law, with those principles informing any evolution of the jurisprudence. The other arose in those areas where there was no overarching or consistent fundamental principle because, for example, the existing case law had developed on a case by case basis. In that latter situation, Clarke CJ said in UCC (at para. 8.6) , 'the incremental approach to the development of the law by making appropriate analogies with the position already identified in similar situations may provide an appropriate approach'. The difference between what he termed the 'back to first principles' model and the 'evolution by analogy' approach is, in truth, a matter of degree. One might expect that often the search for a fundamental guiding principle and the making of appropriate analogies with existing cases amount to the same thing: it is the guiding principles that identify the legally relevant features of a case, and it is those features that enable the differentiation of the similar from the fundamentally different.
147. There are echoes of the insights in Whelan and Morrissey in the analysis subsequently undertaken by the United Kingdom Supreme Court in Robinson. There, it was held that the police owed a duty of care not to cause foreseeable personal injury to a passer-by when they were executing an arrest on a public footpath. The judgment of the Court of Appeal in that case refusing to impose liability on the defendant (which was successfully appealed) had followed the course counselled against in Whelan, Hallet LJ observing there at one point that '[t]he court will only impose a duty where it considers it right to do so on the facts'.
148. That prompted Lord Reed to repeat a point made by Lord Toulson in Michael. Lord Reed observed '[t]he proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so: in the particular facts, is mistaken'. He explained how a court should, instead, approach the question of whether a duty of care was owed in a given case as follows (para. 27):
'It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgment when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgment in those circumstances that involves consideration of what is "fair, just and reasonable".
(emphasis added)
149. Part of that analysis was cited with approval by Clarke CJ and MacMenamin J. in UCC. Indeed, in the course of that consideration they questioned whether the 'just and reasonable' aspect of the approach suggested in Glencar was of great assistance, observing the difficulty in ascertaining what was 'just and reasonable'. In UCC, one of the issues was whether the state-controlled defendant - which owned and operated a hydroelectric dam on the River Lee outside Cork City - owed a duty of care to those liable to be affected by flooding which might have been reasonably avoided through control by the defendant of the water levels at the dam (control which could only be achieved through the exercise of discretionary statutory powers). The asserted duty of care required the defendant to take positive action to protect downstream property owners from damage, but the majority of the Court felt that by analogy with pre-existing principles, the fact that there was control vested in the defendant over river levels combined with the knowledge as to relevant meteorological conditions rendered it appropriate to find a duty of care.
150. One further and related point emerges from Robinson. That case is now viewed in the United Kingdom as confirming the role of a principle of equality in the law of negligence as it applies to public and private defendants. This was expressed by Lord Reed as follows (paras. 32 and 33):
'At common law, public authorities are generally subject to the same liabilities in tort as private individuals and bodies ... Accordingly, if conduct would be tortious if committed by a private person or body, it is generally equally tortious if committed by a public authority .... That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question ... It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise.'
151. This mirrors what Clarke CJ said in the course of his judgment in Cromane. His analysis was neither dissented from, nor do I believe it to be inconsistent with, anything the majority in that case held or stated: having regard to the decision in Byrne v. Ireland it would be most surprising were the law in Ireland otherwise (Lord Reed's conclusion was based on Dicey's theory of the rule of law which encompassed the principle of equality before the law). Moreover, that principle allows the law to develop in a manner that compliments the incremental approach urged in all of the cases since Heyman, while also maintaining intact the important distinctions between public authority liability and the liability of private persons and bodies, where this is appropriate. In Robinson, this principle resulted in the imposition of liability on the police on the theory that wholly private parties who carelessly caused a person to fall and suffer personal injuries on the public highway without lawful excuse or authority would face liability for the consequent damage. In contrast, in Michael the police were not under a duty of care to intervene to protect a member of the public who was facing a foreseeable risk of injury from a third party, because private persons were under no such duty. Of course, the viability of that approach, as indeed with the incremental approach more generally, depends on the accuracy and precision of the exercise of comparison. Depending upon the level of generality at which they are described, any two asserted comparators can be said to be either the same, or completely different. It will be observed that in UCC Charleton J. (at para. 9) questioned the ultimate outcome in Robinson and it is easy to see how it might be said that the police officers in Robinson were not in the same position as three private citizens who start a brawl on the street having regard to the fact and purpose of their powers of arrest. As Lord Mance observed in his separate judgment in that case, it is to be questioned whether the class of case in which physical loss resulting foreseeably from positive conduct is axiomatically a category that governs all cases whatever the precise circumstances: it may not always be a safe guide at the margins (at para. 85). Whether or not that approach, or the outome in Robinson would represent the law in this jurisdiction, insofar as the legal analysis was concerned, the majority of the UK Supreme Court felt that the relevant feature of the case was the specific action - the physical acts undertaken to effect the arrest - rather than the legislative context in which it was executed. That legislative context was relevant only to the extent that it might have expressly or implicitly negated liability, which it did not. Because the duty of care owed by one person to another not to cause them physical harm through careless actions of the kind in issue was long and clearly settled, the question of whether it was fair, just and reasonable to impose a duty of care, did not arise.
152. All of that underscores the importance of a careful identification of the critical legal incidents of every novel liability asserted, and a clear understanding of what exactly, the established categories of liability are. But it inevitably means that as a matter of principle, in some circumstances certain actions of the State can never attract liability in negligence because they simply have no plausible analogue in private law. A member of the public who stands to benefit from the exercise of a discretionary statutory power in their favour cannot, without considerably more, point to any remotely similar private law relationship in which the common law of negligence would attach a duty of care. As highlighted by Charleton J. in the course of his judgment in Cromane and indeed as observed by Geoghegan J. in the course of his judgment in Kennedy, the law of negligence generally has no role in relation to these circumstances. In those situations, the remedy - if any - lies within the tort of misfeasance in public office. The central issue in this case, put crudely, depends on the identification of that 'something more' that differentiates a claim based upon the exercise of a statutory power that is properly confined to the limits of the tort of misfeasance in public office, from one that triggers a duty of care that allows the imposition of liability in negligence for the manner in which that power is exercised.
The correct approach to the identification of the duty of care in a novel situation
153. It is to be expected that the overarching analysis of the tort of negligence undertaken by Lord Reed in Robinson has provoked a discussion in the United Kingdom around the extent to which the approach adopted in earlier authorities to the identification of a duty of care has been superceded. [11] That has generated its own debate as to the extent to which there is a 'test' by reference to which that question can be answered, as to the role of 'policy' in resolving duty of care issues, and as to whether Caparo should be viewed as now consigned to history, or simply re-interpreted. Courts in other common law jurisdictions have wrestled with similar problems and, in particular, with whether the approach ordained in Caparo should be rejected outright. [12] In this jurisdiction, Caparo as applied in Glencar continues to define the law, and it was not suggested in the course of this appeal that it should now be overruled. The decisions of this Court since Robinson (and in particular the judgment of O'Donnell J. in UCC), while disclosing an interest in much of what was said by Lord Reed in the former decision, have at the same time observed the force of the judgment of Lord Mance in that case, who was of the view that the three stages of the Caparo approach remain 'material'.
154. In any event, whether or not Caparo and thus Glencar is viewed as formulating a 'test' is, in reality, neither here nor there when it is appreciated that it does not envisage a court systematically analysing in every negligence claim whether, on the facts of each case, there is proximity, foreseeability of loss and whether it is 'just and reasonable' to impose a duty of care. Once that is understood, I think it clear that in neither Morrissey nor in UCC did the Court purport to eschew the approach suggested by Keane CJ. in Glencar. Although now very much in fashion, 'incrementalism' is little more than the conventional application of the doctrine of precedent, and it is important that the law in this area avoid the appearance of constantly shifting from one faddish caption to another. Proximity, foreseeability, and the just and reasonable inquiry remain a correct and helpful recitation of the elements of a duty of care. In new and difficult cases, each of these usefully describe the features of the inquiry, but where the court looks is in the decided cases and what it is looking for are guiding principles and analogous facts by reference to which the court can decide whether there is sufficient proximity and sufficient forseesability of loss to impose liability in negligence. There is nothing new here: Lord Devlin in Hedley Byrne said that the first step in the duty inquiry was 'to see how far the authorities have gone'. Similar statements are to be found in Caparo; as Kirby J. said of the process of identifying a duty of care in Pyrenees Shire Council v. Day (1998) 192 CLR 330, 427: 'it is, in every case which is not covered by an established category, a question of legal policy disciplined by the application of analogies derived as far as possible from past authority.'
155. Bearing all of this in mind the various approaches are best reconciled in the following way:
(i) The decision of Keane CJ. in Glencar should not be viewed as prescribing a 'test' to be rehearsed in all cases in which a duty of care is asserted and disputed. The three limbs identified in that decision –foreseeability of loss, proximity, and whether it is just and reasonable to impose a duty of care - are uncontroversial but useful descriptions of the features that must be present before such a duty will be found. However, the first two are pitched at a level of generality that renders them of limited practical use as a 'test'.
(ii) Instead, the first reference point in any contested duty of care case should be whether the existing case law provides a binding precedent that mandates the conclusion that the relationship between the parties in issue is such that the defendant owes the plaintiff a duty of care not to cause the plaintiff, or to protect them from, particular harm. If so, that is the end of the matter (subject to the court not being called upon to decide whether that binding precedent should be overruled).
(iii) If there is no such binding precedent, it is appropriate to address whether such a duty of care should be imposed by reference to the essential characteristics of the case viewed in the light of the principles governing the law of negligence as developed in the decided authorities ('the legally significant features of the situations with which the earlier authorities were concerned'). Forseeability of loss and proximity are central features of that analysis.
(iv) If a given case presents a situation that is truly analogous to one in which a duty of care has been imposed by the law, it will usually be because there is a sufficient relationship of proximity and there is sufficient foreseeability of loss. The factors that generate that proximity and foreseeability of loss will be 'legally significant features' of any situation, and the identification of whether, and if so how and why, those elements (which are, obviously, inquiries of degree) are present in a relationship will be central to the determination of whether the extension to that relationship of a duty of care of the kind contended for, is legally coherent.
(v) In those cases in which the court is finding a duty of care by analogy with the principles identified in earlier authority it is additionally appropriate to consider broader policy implications of such an extension of liability. While there are certainly arguments for simply building this into the assessment of proximity (as many of the cases do), I think it helpful to retain the language that has been applied in this jurisdiction in that regard since the decision of Costello J. in Ward, and to consider whether it is just and reasonable to impose such a duty. That captures a range of factors, including whether the imposition of a duty of care will conflict with other legal duties, whether it will inhibit the exercise of public functions, whether the imposition of such a duty will embroil a court in a dispute that is not properly justiciable, whether the imposition of such an obligation is consistent with a statutory scheme together, of course, with whether the extension of a duty of care to a new category of case will expose defendants to disproportionate liability.
156. It should again be stressed that the 'just and reasonable' component stipulates a factor that would, if not expressed as a separate component of the analysis, still have to be properly considered by courts in deciding whether to extend civil liability in a novel situation. This should, accordingly be viewed as a real and necessary step. I say this conscious of the doubt suggested obiter by the majority in UCC as to the utility of this aspect of Glencar (at para. 8.12.) (in fact at para. 13.4 of their judgment the majority - correctly and citing Glencar – proceeded to consider the impact of policy considerations on their conclusion). The insight in Caparo and adopted in Glencar, lay in the acknowledgement that Anns had wrongly downgraded and depreciated the fact that the question of whether it is unjust or unreasonable to impose a duty of care is inherent in the logic of the cause of action in negligence. To that extent, and as I explain later, insofar as McCarthy J. suggested otherwise in the course of his judgment in Ward, those statements should be viewed as no longer representing the law.
157. I have already noted how the definition of proximity necessarily envisages consideration of at least some of these factors. It seems appropriate that they also be acknowledged clearly and by way of separate consideration as part of the proper approach. Doing so affords a useful means of ensuring - and this is particularly the case in the context of what has proven to be the elusive issue of public authority liability - that the scope of the duty of care is not for the first time extended without a formal consideration of the consequences, including the impact of the regulation imposed on the actions of a public authority by the general principles of administrative law. And conversely, it provides a sense check: if it is just and reasonable to extend a duty of care not to cause to another, or to protect that other against, harm in a particular situation where there is proximity and foreseeability of loss, one might have thought that the law should incline towards enabling the imposition of civil liability.
Assumption of responsibility
158. The critical features of this claim, as stressed by the plaintiffs, lay in what they presented as a relationship that was transactional, and in which they were heavily dependent on the control exercised by the Minister over the mussel seed resource. They say that they responded to encouragement to invest in the mussel seed industry, that they did so in a context where the defendants well knew and understood that they needed to fish particular volumes of mussel seed to recoup that investment, and that it was the defendants alone who could control access to that resource. Therefore, on their case, the defendants through the course of dealing arising in connection with the solicitation of their investment and provision of grants, the lifting of the moratorium, and the provision of sea fishing licences, came under a duty to exercise care in the discharge of their powers of control over the resource so as not to cause the plaintiffs the loss of the investment that the defendants themselves had prevailed upon them to make, and which was dependant on the proper maintenance of that resource (including, pertinent to the obligation now in issue, the manner in which the power of allocation was exercised). In simple terms, the theory is that the defendants implicitly promised the plaintiffs that if they embarked upon the investments they did, the defendants would inter alia take reasonable care in the management of the mussel seed resource and process of allocation so that the plaintiffs would not be financially worse off than they would have been if they had never made those investments in the first place.
159. The concept invoked by the plaintiffs - 'assumption of responsibility' – may well have overtaken 'proximity' as the slippiest in the law of tort. Right now it seems to enjoys a particular currency that borders on ubiquity. It has the additional feature that it carries a meaning that appears to contradict its description: it is ultimately concerned not with an assumption, but with an imposition, and what is imposed is not responsibility, but a liability. The recent academic literature affords useful discussions of the various theories underlying 'assumption of responsibility' as the legal foundation of a duty of care, most convincingly suggesting that the phrase functions not as a single principle but as the umbrella under which a set of distinct, if sometimes overlapping, propositions can be gathered. [13]
160. It is helpful to isolate a simplification of one of these: by 'taking on a task' where there is an express or implied promise that the task will be performed with care, D assumes a liability to P to exercise such care. [14] On this thesis, where a defendant has elected to take on a task in circumstances in which the plaintiff's intended reliance on performance of the task (along with the consequences should the defendant fail to perform with due skill, care and attention) are apparent, [15] the essential features of a duty of care to protect against those consequences are met. In that situation, it has been explained, questions of foreseeability, proximity, and what is fair and just tend to answer themselves (per Lord Goff in Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145 at p. 181).
161. Thus, it was the approval in Securities Trust Ltd. v. Hugh Moore & Alexander Ltd. [1964] IR 417 of the decision in Hedley Byrne that confirmed that in this jurisdiction 'circumstances may create a relationship between two parties in which, if one seeks information from the other and is given it, that other is under a duty to take reasonable care to ensure that the information given is correct' (per Davitt P. at p. 421). Hedley Byrne defined the boundaries of that obligation by reference to what was referred to throughout the judgments as 'an assumption of responsibility' by the provider of the information. While all of the judges in Hedley Byrne related their conclusions one way or another to that concept, it was most helpfully defined by Lord Devlin (at p. 528-529) as arising where the information was provided within 'categories of special relationships' including 'where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract'. That assumption of responsibility could, he said, be implied as well as expressed.
162. The speech of Lord Devlin shows that the conclusion that recovery of damages for negligent misstatement was viewed as following from a liability for acts undertaken without due care where there had been an assumption of responsibility. He referred in this regard to Coggs v. Bernard (1703) 2 Ld.Raym. 909 and Wilkinson v.Coverdale (1793) 1 Esp. 75 (negligent gratuitous bailment and a gratuitous failure to duly renew an insurance policy, respectively). He saw the issue as being whether there was a valid objection to the extension of the principle in those cases to statements. Thus, the courts have faced little difficulty in principle in confirming the application of Hedley Byrne to negligently provided services: 'a duty of care may ... arise where a party undertakes to exercise a special skill to perform a particular task, knowing that the party on whose behalf the task was being performed relied on that skill' (Wildgust v. Bank of Ireland [2006] IESC 16, [2006] 1 IR 570, 604 per Kearns J., referring to Kennedy v. Allied Irish Banks plc [1998] 2 IR 48). That said, in Irish law negligent misstatement and liability for a negligent act remain distinct: the Court in Walsh v. Jones Lang Lasalle Ltd. [2017] IESC 38 (at para. 59) has made it clear that - at least at this stage - Irish law does not recognise 'a single unified approach to all cases of negligence, whether of negligent act or misstatement, and jettisoning traditional considerations such as proximity, and undertaking of responsibility'. The 'disappointed legatee' cases, in which solicitors have been found liable in damages to the intended beneficiaries under failed bequests show the application of a similar theory in a context where there is no reliance, or indeed necessarily knowledge on the part of the legatee of the bequest (see White v. Jones [1995] 2 AC 207, 'the single most illuminating case on the assumption of responsibility concept' [16]). Irish law has responded to those cases in the same way (Wall v. Hegarty [1980] ILRM 124), a conclusion best rationalised as an exceptional extension of standing to enforce a secondary right to damages. All of those developments can be related back to the following statement of principle of Henchy J. in Finlay v. Murtagh [1979] IR 249 at p. 256:
'Since the decision of the House of Lords in Hedley Byrne ... it is clear that, whether a contractual relationship exists or not, once the circumstances are such that a defendant undertakes to show professional care and skill towards a person who may be expected to rely on such care and skill and who does so rely, then if he has been damnified by such default that person may sue the defendant in the tort of negligence for failure to show such care and skill. For the purpose of such an action, the existence of a contract is merely an incident of the relationship. If, on the one side, there is a proximity of relationship creating a general duty and, on the other, a reliance on that duty, it matters not whether the parties are bound together in contract.'
163. Noting that there are cases in which this, or a similar, concept has been applied where there is no reliance, the application of this theory of assumption of responsibility is complicated because the phrase is invoked not only to justify the finding of a duty of care in cases of damage to person or property, in particular in the context of liability for omissions, or for those who intervene to assist where they have no legal obligation to do so, but also where the imposition of liability in negligence for pure economic loss is in issue. At one level, all of these cases involve the same essential idea: that the defendant may, by undertaking a particular task, assume a duty to discharge it with care - but as I explain when I return to this later, there are factors likely to be particularly in play for the purposes of the economic loss cases that are not present in all of the other situations: an opportunity to bargain or to allocate risk, and a close and transactional connection of a kind that (apart from the absence of consideration) might be characterised as contractual. In that situation, there is something in the nature of a super-added proximity, which results not merely in the imposition of a duty of care to avoid damage to person or property, but a more intense obligation than the law generally requires before imposing a duty of care. The incidents of that proximity may be such as to impose an obligation to act where one does not otherwise arise, or a duty to protect against economic loss where this is envisaged by the responsibility thus assumed. So it is that assumption of responsibility may be but a particular category of 'special relationship' which gives rise to a duty of care: that is how it was introduced by Lord Devlin in Hedley Byrne, and indeed how the imposition of a duty of care in both Siney and Ward (to both of which I return shortly) falls to be justified. In Siney, a special relationship arose (most unusually it must be observed) from a combination of the statute and the reliance and vulnerability of the plaintiffs, and in Ward it arose more directly from the dealings between the parties, and the knowledge on the part of the defendants of the plaintiff's dependence upon them in that case - as it happens - in a situation that was close to, if not actually one of, negligent misstatement.
164. The decision in Poole presents a recent and comprehensive analysis of the concept. The issue there was whether the defendant local authority owed a duty of care to a council tenant and her children to protect them from harassment by neighouring tenants. That depended on whether the defendant had assumed a responsibility to that end and, if it otherwise had, how that interacted with its statutory functions. In finding that a pleaded claim to that effect should be dismissed as disclosing no cause of action, three points of particular relevance here were made by Lord Reed. First, he stressed that it could not be said that an assumption of responsibility could never arise out of the performance of statutory duties (at para. 73): '[c]learly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant's conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne ...'. It had, in fact, been long established that the concept of an assumption of responsibility applied to public authorities as it did to private individuals (see the comments of Lord Hoffmann in Gorringe at paras. 39-43). Nonetheless, that confirmation is of some significance: even though the cases sometimes refer to a 'voluntary' assumption of responsibility, and indeed even though there is authority to the effect that a defendant cannot 'assume' for these purposes a responsibility to do that which they are otherwise required to do (Customs and Excise Commissioners v. Barclays Bank plc [2007] 1 AC 181), the Court in Poole found that his did not mean that a statutory body could not find itself assuming such a responsibility so as to give rise to a duty of care in connection with a task it was required by law to discharge. Second, he explained the underlying concept particularly well (at para. 80): '[t]he assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care'. Third, he said (at para. 82):
'It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case.'
165. This was explained further in HXA v. Surrey County Council [2023] UKSC 52, [2024] 1 WLR 335. In that case, (where the issue was whether the defendant had assumed a responsibility to the claimants to use reasonable care to protect them from physical abuse of which the defendants were aware or ought to have been aware) the Court focussed on whether the pleaded case disclosed 'the provision of a service' to the claimants. Finding that it did not, Lord Burrows and Lord Stephens counselled against a 'slide back' to resting the duty of care and breach at common law on the mere fact that the public authority had statutory duties, and powers in respect of, the claimant (at para. 87), observing:
'what is required (which the courts, perhaps unhelpfully, have sometimes referred to ... as the "something more" or "something else" ... is that there would have been a duty of care owed - because, for example, there is an assumption of responsibility - had the public authority been a private individual'.
Economic loss
166. As I have already noted, the concept of an assumption of responsibility, and of liability in negligence for pure economic loss have developed in parallel. The law has always treated the recovery of economic loss in the tort of negligence gingerly. There are several reasons for this. Traditionally, it was a defining feature of the law of negligence that it was concerned with a duty 'not to do that which may cause a personal injury to that other, or may injure his property' (per Lord Evershed in Le Lievre v. Gould [1893] 1 QB 491, 497, cited with approval by Lord Atkin in Donoghue v. Stevenson at p. 575). Generally, the common law did not condemn the deliberate and non-fraudulent infliction of economic loss, and to that extent, the imposition of tortious liability where such loss was negligently inflicted might both have seemed contrary to principle, and to have penalised the legitimate pursuit of personal economic advantage within a functioning competitive market : economic actors do not owe each other duties in an arena where the legitimate pursuit of self-interest will inevitably involve the infliction of economic loss on competitors (see in this regard the judgments of Hobhouse LJ in Perrett v. Collins [1998] 2 Lloyds Rep 255, 260 and of Edelman J. in Mallonland Pty. Ltd v. Advanta Seeds Pty. Ltd. [2024] HCA 25) ('Mallonland'). To that extent, the imposition of liability in negligence for economic loss sits uneasily with the parameters of the tort as envisaged at common law, and requires some justification in principle.
167. Moreover, and at the level of policy, the imposition of liability for economic loss caused by a single tortious act, at least without rigorous controls, could expose a defendant to an extensive and disproportionate liability to a widely drawn class of plaintiffs - the liability in an indeterminate amount for an indeterminate time to an indeterminate class famously decried by Cardozo J. in Ultramares Corp. v. Touche 174 NE 441, 444 (1932). Economic loss is thus viewed as properly a matter to be primarily regulated by contract, where parties enjoying a transactional relationship can bargain, allocate risk and loss between themselves, and where either party to that negotiation is free to exact a price for assuming the risk of liability or as the case may be, agreeing to that liability being disclaimed.
168. To accommodate those issues and concerns, while still enabling the recovery of loss that is truly consequential upon damage to person or property (and speaking at a general level) the law differentiates between 'pure' economic loss (which will usually be irrecoverable in negligence), and damage to person or property (injury to which was traditionally an essential element of the cause of action). Economic loss will thus be recoverable if it is consequential on physical damage to person or property. This is often expressed in terms that the economic loss is a direct and immediate result of such an injury. Similarly, where the defendant has caused damage to the property of a person who is not the plaintiff but which has caused economic loss to a person who is the plaintiff (a situation that most usually arises when there is a relationship - more often than not contractual - with the person who has been directly injured or who owns the property in question) the economic loss is described as 'relational'. Different jurisdictions adopt different positions on the question of whether, and if so when, such losses will be recoverable. Obviously, within these definitions and distinctions there are various nuances. But apart from consequential or relational losses of these kinds, the circumstances in which 'pure' economic loss can be recovered in negligence are limited and tightly controlled.
169. The plaintiffs say that the better view now is that where a sufficient relationship of proximity has been identified and economic loss is foreseeable, damages for economic loss can be recoverable. Proximity, they say, is and remains the controlling concept. While they note that in Ontario v. Maple Leaf Foods, the Supreme Court of Canada identified three categories of case in which pure economic loss could be recovered 'between private parties' as (1) negligent misrepresentation or performance of a service, (2) negligent supply of shoddy goods or structures, and (3) 'relational economic loss'. They also refer to the 'known plaintiff principle' identified by Gibbs J. in Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" [1976] HCA 65 which, they contend, adopts a more liberal approach to the recovery in negligence of losses of this kind (since the delivery of submissions in this case, the High Court of Australia has, in Mallonland., at the very least cast a question mark over this decision).
170. As apparent from what I have said earlier, as it is now understood Hedley Byrne not merely resurrected the concept of assumption of responsibility, but also confirmed the application of that concept to negligent misstatement and enabled the recovery of pure economic loss for that wrong. Thereafter, the courts have faced little difficulty in principle in confirming the application of Hedley Byrne to the recovery of damages for pure economic loss arising from negligently provided services: 'if a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services' (Henderson v. Merrett Syndicates Ltd. at p. 521 (per Lord Goff)).
171. The consideration of this aspect of recoverable loss in negligence in Ireland has been thin, with some High Court decisions suggesting that the recoverability of economic loss falls to be treated by reference to a test of proximity, foreseeability, and policy in the same way as any other type of damage, while the judgment of the Chief Justice in Glencar implied that such losses might be recoverable only for negligent misstatement. The correct position lies somewhere between these poles. As I have explained, pure economic loss is, for reasons of both theory and practicality, different from damage to person and property. Hedley Byrne and the cases that have applied and extended that decision have modified the theory. While the practical concerns remain real, and while the boundaries of liability for losses of that kind must reflect that, there is no need that they be limited to cases of negligent misstatement. The necessary controls are in place if the circumstances in which, and conditions under which, those losses are recoverable are confined to those where there is a relationship between the plaintiff and the defendant that is close and to some extent interdependent, and in which the persons who can claim such losses are not merely narrowly defined and clearly identifiable, but are positioned so that they can bargain and allocate risks and costs as between themselves. In these situations, the concerns expressed by Cardozo J. in Ultramares Corp. v. Touche are abated, and indeed the very nature of the parties' relationship is such that they can avoid liability by means of a disclaimer (see the comments in Walsh v. Jones Lang Lasalle Ltd. at para. 33 regarding the function of a disclaimer in negating a duty of care in a claim for negligent misstatement).
172. In the United Kingdom, those constraints have been imposed by, for all intents and purposes, limiting the recovery of economic loss in cases where there has been an assumption of responsibility in the sense described earlier, generating a duty of care not to cause, or to protect against, injury of this kind. There, it has been said that the defendant's voluntary assumption of responsibility remains the foundation of this area of law, and central to this is that the defendant is assuming a responsibility to an identifiable person or group of persons, and not to the world at large or a wholly unidentifiable group (Banca Nazionale del Lavoro SPA v. Playboy Club London Ltd. [2018] UKSC 43, [2018] 1 WLR 4041). There are similar suggestions in the case law here (see Walsh v. Jones Lang Lasalle Ltd.). Without ruling out the prospect that there may be - in the language of Lord Devlin in Hedley Byrne – 'special relationships' that do not present all of the following elements in which such losses may be recoverable, the cases show that liability for this type of damage will at the very least arise where the following six elements are present: (a) an assumption of responsibility by a defendant not to cause or to protect against such loss, (b) to a defined, identifiable and limited class, (c) where there is reliance by the plaintiff upon the defendant not causing, or protecting the defendant against, such losses, (d) where that reliance is known to, or reasonably forseeable by, the defendant, (e) where the relationship between the parties is such that the defendant can, if it chooses and if the plaintiff agrees, disclaim such liability by agreement and (f) where the defendant has not, in fact, so disclaimed liability. This is in tune with a central feature of the concept of liability for pure economic loss consequent upon an assumption of responsibility as originally understood, it being consistently said there must be a relationship that is 'equivalent to contract' before the liability envisaged in Hedley Byrne will arise (see Bank of Ireland v. Smith [1966] IR 646, 660 per Kenny J.). That phrase 'serves (i) as an allegory of proximity, to describe a case where a service is performed for a person pursuant to a relationship which would be contractual if there were consideration passing from that person; and (ii) as an explanation of why it is appropriate to award a purely economic loss as damages for negligence in the course of such a relationship.' (Banca Nazionale del Lavoro SPA v. Playboy Club London Ltd. at para. 13 per Lord Sumption).
173. The defendants never made any point in the High Court around whether the plaintiffs' losses were purely economic, consequential, relational or otherwise. The issue was raised by the Court of the Appeal during the course of oral argument, and counsel for the State confirmed there that it was not being contended that different principles applied to a claim for pure economic loss. When the matter came before this Court, the defendants were specifically requested to clarify whether they contended that the question of whether a defendant owes a duty of care to avoid or not to cause personal injury or property damage to a plaintiff falls to be determined in the same way as such a claim sounding in pure economic loss. When they indicated that they were, further submissions were directed, and exchanged, as to whether the defendants could now change their position on this issue, and - if so - as to the applicable legal principles. Unsurprisingly, the plaintiffs objected strongly to all of this, urging that the Court could not, at this stage of the proceedings, entertain legal arguments around the character and consequence of the claimed loss that had not merely not been made, but had been specifically disavowed, in the courts below.
174. While bearing in mind what I have said earlier about affording each party some flexibility in the issues they seek to agitiate in this appeal, it is nonetheless not without some considerable reluctance that I must reject that objection. The characterisation of the economic nature of the loss claimed in the proceedings as a 'point' that in some sense had to be 'taken' by the defendants was a misunderstanding of the legal position. The categorisation of the loss which it is sought to recover in an action in negligence is a central part of the analysis of any such claim. It is not only, if most obviously, critical to quantum, and thus to remoteness of damage and causation, but it defines whether the defendants owed a duty of care to the plaintiffs at all. While in cases of damage to person or property it is common to refer, in the abstract, to B owing A a 'duty of care', it is more accurate to frame that duty by reference to the damage which, it is alleged, B is required to either not inflict, or from which it is being said B must protect A. The 'damage' allegedly sustained by the plaintiff is thus both central and definitional: '[a]n essential element of the tort of negligence is that the defendant owes the plaintiff a duty to take reasonable care when engaging in an activity to avoid causing the plaintiff a particular type of damage or loss that is reasonably foreseeable.' (Mallonland at para. 29 per Gageler J.). The point was made by Lord Bridge in Caparo at p. 627 (at D-F): it is, he said, never sufficient to ask simply whether A owes B a duty of care, it is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless. That statement was adopted by the Court of Appeal in McCarthy v. Kavanagh, and was accepted by the parties in their responses to questions from the Court before the hearing of the appeal, as representing the law in this jurisdiction. Indeed it mirrors the analysis adopted in Cromane: as Charleton J. explained (at para. 234):
'A duty of care does not exist in the abstract for every decision which may impact on the economic activities of others. The primary analysis must be on, whether in making decisions that could affect others, the decision maker was bound to have regard to the particular interests of the economic actors claiming prejudice to their interests.'
175. Thus, while I cannot but sympathise with the plaintiffs who, in this Court, were faced with a dramatic and last minute volte face by the State defendants, and while one might admire the tenacity with which they sought to maintain a grip on the concession they witnessed being wrought from the State before the Court of Appeal, this Court cannot proceed to adjudicate on the issue of whether the defendants owed 'a duty of care' to the plaintiffs without framing the loss to which it is said that that duty relates. We cannot pretend that the case is about injury to person or property when it is not. Nor can the Court adjudicate in this case on the fiction that the question of whether A owes B a duty of care to avoid the infliction on them of economic loss is the same as the question of whether A owes B a duty of care to avoid causing them personal injury or property damage, when it clearly is not.
176. This is relevant to the claim for loss of profits. Insofar as the defendants are said to have assumed a responsibility to the plaintiffs, it was a responsibility that is alleged to have arisen from the implicit assurance made to the plaintiffs that if they invested in the mussel fishing sector, the defendants would exercise care in the management of the resource controlled by them (and insofar as the case as I have defined it is concerned, in and about the process of allocation of the entitlement to fish for that resource), that was essential to the recoupment of that investment. While I have already explained why, having regard to the evidence adduced at the trial and the findings of the High Court judge on the issue, the plaintiffs have not sustained a claim for loss of these profits, I do not see that on the legal theory advanced by the plantiffs, a claim for recovery of those profits could have been maintained. On the facts here, the imposition of an obligation to compensate for loss of profits is, quintessentially, an example of a duty of care involving the conferring of a benefit. The circumstances in which a duty will be imposed are, of course, limited, and include those where there is an assumption of responsibility (see UCC and, most recently, Tindall and anor. v. Chief Constable of Thames Valley Police [2024] UKSC 33 at para. 44). Whatever responsibility may or may not have been assumed by the defendants, it did not on any version extend to a duty to protect the plaintiffs in perpetuity against a loss of profits consequent upon a lack of care in the management of the mussel seed resource. Nothing in the evidence remotely suggested that the defendants had assumed any such obligation. The dealings between the parties, and the reliance placed by the plaintiffs upon those dealings, was focussed on the plaintiffs' investment. That defines the outer limit of any recoverable economic loss.
177. However, as I have earlier explained, I am inclined to allow some flexibility to the parties in regard to the negligence claim in this case. If the defendants are to be permitted to advance (and indeed to prevail upon) the proposition that the principles governing the recovery of pure economic loss are as they now contend and thus different from those underpinning the plaintiffs' claim as it was agitated before the High Court, then the plaintiffs should be allowed to refine that claim. In the event that some or all of them have suffered what I have earlier described as 'investment losses', they should be permitted to advance that case.
Application of these principles to this case
178. This case certainly presents some of the elements that generally arise where a duty of care to avoid economic loss has been grounded in an assumption of responsibility. The dealings between the plaintiffs and the defendants in and around the making by the plaintiffs of their investments, the enabling of the grants to them, and the issuing of sea fishing boat licences were close, transactional and bore many of the hallmarks of a contractual relationship. The defendants encouraged the plaintiffs into the sector, knew that the plaintiffs were commiting very significant resources to mussel fishing, they knew precisely the allocations the plaintiffs would need to render that activity viable, and they and they alone were in a position to control access to, and to regulate the use of, that resource. In fact, unlike some of the cases in which a duty of care has been deduced from an undertaking by a defendant to discharge a task for the plaintiff, here the plaintiffs and defendants each had something to offer to each other. The defendants could have disclaimed liability for losses of a particular kind (and indeed it is argued that they did so). The plaintiffs - who comprised a small and readily identifiable class - plausibly say that they relied on the defendants to properly manage the mussel seed resource when they went about their investment and that but for that implicit assurance, they would never have commited the resources they did to the enterprise. The position was not merely close to being contractual - in some respects it arguably was contractual.
179. But the case also has features that differentiate it from the decided cases. The duty alleged does not involve the taking of care in the provision of some service, or undertaking an identified task for the benefit of the plaintiffs. Instead, what is alleged is a duty of care in the management of a fishery in which the plaintiffs have no legal interest, and custody of which is vested in the defendants in order to advance the interests of the public as a whole. While the resource was in one sense under the control of the first named defendant, at the same time that control was limited: the abundance of the resource was dependant on a range of factors, many of which he could not influence. And, most critically of all, the Minister was not a free agent in the management of the resource. His powers were constrained by the overriding obligation to act in the public interest and in accordance with the relevant legislation.
180. To ascertain whether these distinctions make a difference, it is necessary to go back to the underlying principle. This explains why it is preferable to view this case from the perspective of an assumption of responsibility than it is to dive straight into the wide and deep waters of proximity simpliciter. While one might plausibly argue that this is not a true assumption of responsibility case, for the simple reason that the defendant never expressly agreed to do anything for the defendants except provide them with grant aid and consider the applications they made for the relevant licences and permissions, the assumption of responsibility cases reflect a category presenting defining characteristics that the law has determined render the imposition of liability in negligence appropriate, and this case is most reliably analysed by determining what those characteristics are, and whether they are also manifest here.
181. The single most important feature of a duty of care arising from an assumption of responsibility of the kind asserted in this case, is that the duty of care arises not because of who or where the defendant is, or for that matter because of what it owns, but because of what it has done. By 'doing' something, the law deems it to have also impliedly undertaken to the plaintiff to discharge that function with care: 'it is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if at all' (per Cardozo J. in Glanzer v. Shepard (1922) 135 NE 275, 276). As in any case in which the law of negligence is so extended, where the law imposes that duty it implements a judgment that in certain circumstances the relationship between a plaintiff and defendant is such that the defendant should not, by reason of those actions, make the plaintiff worse off than they would have been had the defendant not acted as they did. The law bounds that liability by imposing it only in circumstances in which there have been close dealings between the plaintiff and the defendant prompting an objectively reasonable reliance by the defendant on the plaintiff acting with care in a relevant respect where combined, obviously, with predictable losses to the plaintiff if the defendant did not so act. Here, the defendants never undertook to provide any service to the plaintiffs, but they did manage and control the mussel seed resource, and they encouraged the plaintiffs to incur expenditure on the basis that they would grant aid and otherwise assist them in embarking on the development of that resource because they wished to see it exploited. Subtending this was the fact that for the plaintiffs' participation to work, the Minister had to, and did engage, pursuant to the statutory powers to which I have earlier referred, in the process of deciding whether to allocate the resource to the plaintiffs, together with others. If 'the central unifying feature' of the assumption responsibility cases is 'that the parties had a relationship in which it was open to the defendant to have bargained in respect of the risk involved in taking on a task for the claimant, in a context in which the defendant invited the claimant to rely on the due performance of the task' [17], the facts here follow the same trajectory. The plaintiffs were encouraged by the defendants to enter, or extend their operations in, the mussel fishing sector. They entered into very significant financial commitments to that end. Those commitments were assumed with the knowledge of the defendants. The recovery of their investment was dependant inter alia on the Minister exercising his powers of allocation. If those powers were not exercised in a careful manner the plaintiffs faced being in worse position than they would have been in had they never received the defendants' assistance and encouragement in the first place. Whether or not an extension of the applicable legal theory, it is certainly not a misuse of language to describe the defendants as having acted so as to justify the law treating them as assuming a responsibility to the plaintiffs in the management of that resource, at least insofar as the process of allocation was concerned.
182. So, the rationale for extending a duty of care to those cases in which there have been close dealings between plaintiff and defendant and reliance on an express or implied promise that a task would be discharged with due care and attention can be readily extended to the facts here. It would be wrong to limit the theory underlying an assumption of responsibility to circumstances in which a defendant was providing a 'service' to the plaintiff as that is commonly understood, and insofar as HXA v. Surrey County Council might so suggest, that should be viewed as a consequence of the particular claim advanced in that case. It is not the provision of a service per se that generates the duty of care: what is relevant instead is the express or implied promise that care will be taken that the law imposes on the discharge of a function: '[a] duty of care can arise irrespective of contract where a party possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill' (Kennedy v. Allied Irish Banks plc at p. 55 per Hamilton CJ.). The position of the parties here is self-evidently analogous.
183. It is accordingly not surprising that in the course of his judgment, Edwards J. acknowledged that the concept of an assumption of responsibility such as to give rise to a duty of care had a potential role in this case. Of that, he said this (at para. 209):
'Arguably, in encouraging the plaintiffs to improve their fleets and mussel fishing capabilities, and in assisting them to apply for grant aid/FIFG assistance to that end, the defendants, as owners and managers of the mussel seed resource, assumed a duty of care to the plaintiffs to provide them with accurate information as to existing stocks and future stocks in so far as they could be projected ... or if they could not do so to be candid about that; and that if there was negligence leading to loss and damage, it was in allowing and indeed encouraging the plaintiffs to seek grant aid/assistance on an ill-informed basis and on which the defendants knew, or ought to have known, was unrealistic and unachievable in circumstances where the resource had not been, and was not being, properly managed. However, that is not the case that has been made, at least insofar as the claim in negligence is concerned.'
184. While disputing that they did not make this case, the plaintiffs put it well in their legal submissions to this Court when they said that it is not obvious why the defendants would be regarded as having assumed a responsibility to inform the plaintiffs of the risks arising if they mismanaged the stock, but not a responsibility not to mismanage the stock. In fact, the case for the imposition of such a duty is I think especially strong when the dealings between the parties are combined with the level of control exercised by the defendants over the mussel seed resource and the close relationship between the fact of that control, the need for the Minister to exercise his powers of allocation of the resource for the plaintiffs' investment in the sector to make any economic sense, and the fact that when encouraging the plaintiffs to invest in the sector the defendants knew that the plaintiffs were reliant on the Minister exercising those powers. It was the power of control over the river levels that triggered the duty of positive intervention identified in UCC. And that case also shows that the duty of care can be articulated at a level of acceptable specificity. The duty found in UCC (which it should be repeated arose even though the power to raise and lower water levels was purely statutory in origin) was framed as follows (at para. 13.1):
'an obligation to assess, having regard to existing conditions and relevant weather forecasts, the likely range of possible outcomes for downstream land occupiers and to form a reasonable judgement as to how to manage the Lee Dams so as to minimise the risk to those downstream land occupiers, provided that any actions which might be required for that purpose would not place an excessive burden on the ESB.'
185. The ease with which that can be reframed for the purposes of this action has been noticed by the plaintiffs in their submissions: the duty for which they contend is one that required the defendants to quantify the mussel seed resource and relate the allocation of the entitlement to fish for that seed to the outcome of that exercise. While noting that UCC was a case about property damage, the rationale for capturing within that duty an obligation that was referable to the plaintiff's investment is quite simple: the plaintiffs said that they incurred very substantial liabilities on the basis that there would be available to them mussel seed which, they said, was by reason of the defendants' negligence in the management of that resource, hopelessly depleted. The facts are, at the very least, within the range of those in which a duty of care has been imposed based on similar dealings, relationships and known reliance. Subject to other aspects of the case to which I turn presently, the essential conditions for the imposition of a duty on the defendants to exercise care in the management of the mussel seed resource so as to avoid the incurring by the plaintiffs of investment losses as I have defined them, were met.
Statutory functions
186. All of the foregoing, however, assumes that one can simply treat the defendants as if they were a purely private party, and that the duty of care alleged can be discharged by them free from any other legal constraint. Neither, of course, is true: the duty in issue, as I have characterised it, is a duty in the exercise of a statutory discretion, and that discretion was conferred by the Oireachtas not for the purposes of underwriting the economic welfare of the plaintiffs, but for the benefit of the public as a whole. The critical question that arises is how the general principles of the law of negligence as I have described them, map onto that statutory context.
187. One of the issues that generated the greatest difficulty following the decision in Anns arose from the relationship between the general law of negligence and the position of those affected by the exercise or non-exercise of a statutory power. The finding in that case that although a local authority was not under a duty to inspect the foundations of buildings, it could be made liable where proper consideration had not been given to the question of whether they should inspect or not inspect, has not survived the decisions in Stovin v. Wise or Gorringe (Anns was overturned in Murphy v. Brentwood DC [1990] 2 All ER 908 insofar as it had held that the defendant owed a duty of care to the plaintiff in respect of purely economic loss). While both Siney and Ward can be seen as applications of Anns in this jurisdiction and - as I have earlier explained - Keane CJ in the course of his judgment in Glencar both confirmed the correctness of the outcome of Siney and Ward, and (on at least one view) rooted those decisions in the fact that liability in each arose from the exercise of the statutory powers in question. The reach of the judgments in these cases - upon which the plaintiffs placed extensive reliance - is therefore important.
188. In Siney the Court in answering a case from the Circuit Court confirmed that liability in inter alia negligence was properly imposed on the defendant corporation to the tenant of property let by the defendant under the Housing Act 1966 in respect of defects that ought to have been, but were not, identified in the course of an inspection carried out by the defendants of the property. Although referable to Anns, the statement of O'Higgins CJ that the (then) recent law had recognised a possible liability where the exercise of statutory powers in a negligent manner resulted in injury to persons 'for whose protection or benefit those powers were intended' (at p. 414) has never been expressly questioned since. In the course of his judgment Henchy J., in fact, directly related the liability in negligence to the statutory obligations of the defendant: it was their failure to comply with their obligations under that Act that 'was the particular source of negligence' (at p. 422). It should be stressed that while the Court found that the plaintiffs could not maintain an action for breach of statutory duty, the fact that they were persons for whose protection or benefit the statutory powers were conferred was key to the imposition of liability in negligence (per O'Higgins CJ. at p. 414), as was the conclusion that the plaintiff was entitled to rely on the defendants to comply with that obligation (Henchy J. at p. 422). In that way, the proximity and breach of duty arose from the relationship between the parties created by statute, the exercise by the defendant of its powers under the statute and the vulnerability of the plaintiff. An award of damages by the Circuit Court comprising compensation for damage to furniture and clothing and damages for 'interference with the ordinary comfort and convenience' of the plaintiffs was upheld, both being held recoverable in contract and in negligence. While some later decisions have characterised the case as involving economic loss, it is not clear that is an accurate reflection of the basis for the award of damages.
189. By the time Ward had come before the High Court (Costello J.: [1985] IR 29), the apparent breadth of the decision in Anns was being both widely questioned, and the test for the existence of a duty of care posited by Lord Wilberforce, significantly qualified. Specifically, the analysis underlying that case posed particular dangers for public authorities with a wide range of statutory powers vested for the protection of the public and in respect of whom it could often be readily said that they enjoyed a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on their part may be likely to cause damage to the latter. They were thus dependant entirely on 'public policy' to escape liability in that situation. It was therefore unsurprising that in Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson [1985] AC 210, 240 ('Peabody'), Lord Keith cautioned against treating Lord Wilberforce's terms of the conditions for a duty of care as 'being themselves of a definitive character', emphasising that the question of whether a particular defendant owed to a particular plaintiff a duty of care depended on all the circumstances of the case and, in any given situation, on whether it was 'just and reasonable' to impose such an obligation.
190. In Ward, liability in negligence was imposed on the defendant local authority in a context in which under the Housing Act 1966, no housing loan enabled by that statute could be advanced until the defendant council was satisfied as to the value of the property to be acquired with the advance. The valuation obtained prior to the advance of such a loan to the plaintiffs was - due to concealed structural defects - wrong and indeed was undertaken by a person not qualified to provide the requisite opinion. The High Court found that the plaintiff was entitled to recover damages reflecting his consequent loss. Costello J. said that when deciding whether a local authority exercising statutory functions is under a common law duty of care, the court must first decide whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the defendant, carelessness on its part might cause loss. All of the circumstances had to be considered, including the statutory provisions under which the authority was acting, and whether the plaintiff was in a class of persons whom the statute was designed to assist. Citing Peabody, he said that the Court also had to consider whether the imposition of such a duty of care was just and reasonable (at p. 49-50). Costello J. imposed liability in negligence attaching particular importance to the fact that the plaintiff had relied on the survey as the defendant ought to have known it would (p. 53).
191. Between the decision of the High Court in Ward and that of this Court, Brennan J. of the High Court of Australia in Heyman delivered his influential analysis of the circumstances in which public authorities would face liability for damages for negligence in the exercise of their statutory powers (as well, it is to be noted, as the types of loss for which recovery could be thus made). As I have earlier noted, the significance of the judgment lay in its rejection of a broad unifying principle of the kind suggested by Anns, and the proposition that it was preferable that the law should develop novel categories of negligence incrementally and by analogy with established categories.
192. Heyman appears to have featured prominently in argument before this Court in the course of the appeal of the judgment Costello J. in Ward, which was upheld in separate judgments delivered by Henchy and McCarthy JJ. (Finlay CJ and Griffin J. agreeing with both judgments, and Walsh J. agreeing with McCarthy J.). Henchy J. felt the conclusion followed from 'well-established principles'. As he explained, breach of the duty imposed by the legislation to ensure that the house had its stated value and was good security for the loan advanced by the defendant would not in itself give rise to a cause of action. What made that case different was the 'special relations' between the parties borne of the fact that the plaintiffs were to the knowledge of the defendant of limited means - as they would necessarily have been in order to avail of the statutory scheme - and could not as such have been expected to obtain their own survey: if the defendant wished to avoid the consequence of that, he said, it could have so provided in the pre-conditions of the loan. In the absence of such a disclaimer, it was found, the defendant must have been taken to have assured the plaintiffs that the property was good security for the loan.
193. McCarthy J.'s decision had a broader base. He concluded that the duty arose from 'the proximity of the parties, the foreseeability of the damage and the absence of any compelling exemption based on public policy' (at p. 349). The proximity between the parties, for this purpose, 'had its origin in the Housing Act 1966 and the consequent loan scheme' (at p. 351). That statute, he said, 'did not create a private duty, but such arose from the relationship between the parties'. Those comments, at least, suggest that a statutory provision intended to operate for the benefit of the public as a whole may generate civil liability via the tort of negligence for those parties suffering loss as a consequence of manner in which powers or duties thereby provided for were exercised, provided the relationship between the injured person and the relevant authority is sufficiently close, and provided there is sufficient reliance by the former upon the discharge by the latter of its functions, to give rise to a relationship of proximity and foreseeability of loss under conventional principles. McCarthy J. was dismissive of the incremental approach urged in Heyman: it suffered from a temporal defect, he said, 'that rights should be determined by the accident of birth'. He preferred Lord Wilberforce's formulation in Anns, expressing scepticism at the 'fair and reasonable' test derived from Peabody and applied by Costello J. ('such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him').
194. The judgment of this Court addressed liability only, and it appears from the law report that the issue of damages was thereafter resolved between the parties (at p. 352). The High Court award included compensation for financial losses, a conclusion reached by Costello J. on the basis of the decision of the House of Lords in Junior Books v. Veitchi [1983] 1 AC 520 which, Costello J. said, was consistent with the awarding by the Court in Siney of damages in negligence for the inconvenience suffered by the plaintiff in that case (see [1985] IR 29 at 42-44).
195. As I have noted, while the judgment of Henchy J. in Ward was based on what he described as 'well established principles', that of McCarthy J. was clearly and avowedly based on the speech of Lord Wilberforce in Anns. Following the judgment of Keane CJ in Glencar, the analysis of Henchy J. should be viewed as the preferred one. That analysis fits quite comfortably into the rubric of an assumption of responsibility: the 'special relations' between the plaintiff and the defendant, and in particular the knowledge by the latter that the former was relying upon its implicit assurance that the house was good security for the loan. That categorisation explains why Costello J. could apply Junior Books v. Veitchi (viewed by Lord Bridge in Murphy v. Brentwood DC at p. 930, as analogous to a claim involving a special relationship of proximity akin to contract) so as to enable recovery of economic loss.
196. At the same time, Keane CJ in Glencar posited four propositions of particular relevance in this case. First, that the mere fact that the exercise of a power by a public authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty of care at common law (at p. 140). Second, '[t]he facts of a particular case, however, when analysed, may point to the reasonable foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and the defendant which would render it just and reasonable to postulate the existence of a duty of care' (at p. 141). Third, that the approach reflected in those two propositions 'is consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than out of the commission of positive acts which may injure persons or damage property' (ibid.). Fourth, that the outcomes in Siney and in Ward were explicable because they concerned statutory powers that were exercisable for the benefit of a defined category of persons and because in each case the plaintiffs might reasonably be said to have relied on the local authority taking reasonable care in the exercise of the statutory powers vested in them (ibid.). That, the Court held, distinguished those cases from Glencar itself, where the powers were found to have been conferred for the benefit of the public as a whole, and where the applicants could rely on no more than a general expectation that the respondent would act in accordance with the law. This, Keane CJ said, was not sufficient to give rise to a duty of care. Siney and Ward, at least as of Glencar remained good law, and the State in this appeal did not seek to contend otherwise. Indeed, in Beatty (at para. 57) Fennelly J. described the rationale for those decisions thus:
'In neither of those cases was the duty owed to the plaintiff in tension with a duty owed to another person or body. In both of those cases, the remedy in damages was the only possible remedy for the loss suffered. Each plaintiff relied on the defendant to perform a function which he or she was unable for financial reasons to perform for him or herself. Without the remedy in damages, each plaintiff would have been left without redress.'
(emphasis added)
197. The sentence I have emphasised is critical to these cases in general, and to the instant appeal in particular. The common law of negligence cannot be used to impose an obligation on a public body that sits in tension with its public law functions, and this goes further than merely negating such a duty where its discharge would render the public authority in breach of statute. As Lord Scott explained in Jain v. Trent Strategic Health Authority [2009] 1 All ER 957, 969 a duty of care cannot be imposed if to do so would or might inhibit the exercise of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose. But in cases where the asserted duty is consistent with the public law duties - and in particular in situations in which the duty of care is said to arise from the manner in which the State authority chose to discharge those functions - the position is quite different. Siney and Ward are, as Fennelly J. stressed, examples of cases in which there was no such tension. Kennedy, and perhaps Glencar, are examples of cases in which the imposition of a common law duty of care of the kind contended for might have prevented the defendants from discharging the functions that were imposed upon them by statute.
198. Those four propositions apparent from the analysis in Glencar are mirrored in the following passage from the judgment of Lord Reed in Poole, which accordingly also reflects the law in this jurisdiction (at para. 64):
'(1) ... public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) ... public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) ... that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has ... assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.'
The availability of judicial review
199. I have already observed that one of the grounds on which Edwards J. felt it would not be fair and reasonable to hold the Minister to a duty of care of the kind contended for was the relationship between the plaintiffs' essential complaints and the power of the courts to grant relief by way of judicial review. If it were not possible to obtain orders by way of judicial review requiring the maintenance by the defendants of proper records of stocks and restraining the issuing of relevant permissions in the absence of such information, Edwards J. asked rhetorically, on what basis could it be fair, just, and reasonable to impose a private law duty of care in the absence of a public law duty? He continued:
'If, on the other hand, it is said that, while there was such a public law duty, judicial review proceedings would have failed because it could not have been shown that the decisions were unreasonable or otherwise unlawful, what would that say as to the appropriateness of imposing a liability in damages? How could that be reconciled with the approach taken in cases such as Pine Valley and Glencar Exploration? Those decisions emphasise that the fact that a public authority has acted ultra vires does not necessarily (or ordinarily) result in a private law liability. But if the Minister did not act ultra vires here, on what basis could a private law liability arise?
200. Similar concerns, I think, are reflected in suggestions in some of the cases - in particular Cromane - that the appropriate cause of action in those cases, where the complaint is of negligent operation of a statutory power, lies in the tort of misfeasance in public office. Indeed, in the course of his judgment in that case, MacMenamin J. referred to what he described as the 'paradox' that would arise were impugned acts or omissions lawful, as a matter of public law, but not as a matter of private law (para. 153).
201. That conclusion of Edwards J. was based on comments of Fennelly J. in Beatty. There, the plaintiffs were landlords who had brought proceedings by way of judicial review challenging a decision of the respondent granting a rent review of property owned by them. They succeeded to the extent that the High Court found that the review had been carried out in a manner contrary to natural justice, granting an order of certiorari quashing the decision granting a revised rent. They proceeded to agitate a claim for damages in negligence against the Tribunal which, surprisingly, succeeded in the High Court. The damages reflected the rent foregone in the period between the impugned decision, and its quashing. The majority of this Court (Geoghegan J, with whose judgment Denham and Hardiman JJ. agreed) allowed the respondent's appeal against that decision on the basis that, as a quasi-judicial body, it enjoyed immunity from a negligence action. Fennelly J. (with whom McCracken J. agreed) were disinclined to extend quasi-judicial immunity to that extent, at least without further consideration, and they decided the issue on the basis that it was not 'just and reasonable' to impose liability in negligence. There were a number of reasons for that conclusion, including that the loss was purely economic and that (unlike, he said, in Siney and Ward) there was no reliance loss incurred by the plaintiffs, that the imposition of liability in negligence would compromise the independence of the tribunal in question, and that the law provided relief by way of judicial review.
202. I find it difficult to locate a rule that the availability of relief by way of judicial review in respect of a decision, act or omission precludes an otherwise viable claim in negligence in respect of that decision, act or omission, in either principle or authority. The suggestion that there is such a rule exposes a confusion in the relationship between what we call public law, and the remedies afforded by the private law of tort. The legal regimes governing each, however, serve quite distinct functions and the remedies afforded by judicial review and the law of negligence are quite different in nature. Public law remedies operate vis-ŕ-vis the world at large and determine for all purposes the legality or illegality and thus validity or invalidity of acts of the State and its agencies. This is why they are generally sought within a dedicated procedure, which enables (and indeed generally mandates) the participation and notification of parties likely to be affected by the decision in question. The law of tort, in contrast, allows the recovery of damages based on the resolution of a lis between the parties alone, and the findings of a court in such proceedings binds only those parties. A claim in tort is thus about actionability in the sense of giving rise to a cause of action, while judicial review proceedings are concerned with validity in the sense of compatibility with a legal norm. These are not necessarily connected: it is possible for a decision to be invalid but not actionable, and actionable but not invalid. That is why in those situations in which the law of tort demands a determination of whether a public body has acted ultra vires its powers (as may happen in an action for damages for breach of statutory duty or misfeasance in public office), the plaintiff's success in their suit will not necessarily invalidate the measure in question vis-ŕ-vis the world at large. In that situation, the validity of the measure arises collaterally to the enforcement by the claimant of their private law rights. This is a real distinction, with important legal consequences (see most recently the comments of Collins J. in Mallon v. Minister for Justice [2024] IESC 20 at para. 59). Thus, there is a view that a claim in tort that depends on a finding that a public body has acted ultra vires its powers does not have to be brought within the time periods imposed in judicial review actions. [18] The distinction between the different purposes of these various forms of action is important for a number of reasons, not least of all because it means that, while the courts in fashioning remedies in tort against public authorities cannot ignore the statutory context within which those claims arise, nor can it be assumed that invalidity in public law is a pre-requisite to liability in tort.
203. When this is understood, the suggestion that there is any basis on which a duty of care can be negated by the availability of judicial review is shown to be false. The error underlying the analysis lies in treating a claim for damages for negligence in the exercise of statutory powers as if they were 'public law claims' when, plainly, they are not (see the remarks of Lord Browne-Wilkinson in X v. Bedfordshire County Council [1995] 2 AC 633, 736-737). As explained in one of the texts, the focus of claims for damages for past wrongdoing and the forward looking public remedies is fundamentally different (Fairgrieve and Squires, The Negligence Liability of Public Authorities 2nd Ed. 2019 at para. 4.70). Were there to be any such principle, the claimants in Siney, in Ward and for that matter in UCC, might all have been denied relief on this precise basis. Beatty – a case in which a decision was both invalid in public law and not actionable in private law - is properly regarded as a case decided on the basis of quasi-judicial immunity and, thus, as not postulating any principle relevant to the interaction between the availability of judicial review in a given situation, and the operation of the law of negligence.
The relationship between 'public law' invalidity and liability in negligence.
204. What the decisions in Siney, Ward and UCC do, however, show is that there will be cases in which liability in negligence may be imposed for the manner in which a statutory discretionary power is exercised. Each of these cases afford examples of situations in which the relationship between the plaintiff and the defendant was one into which the general principles of the tort of negligence properly intruded, and where there was no reason of law or policy to exclude those principles simply because the plaintiff's claim is targeted at the exercise of a statutory power. Poole confirms that an assumption of responsibility according to what are now conventional principles, may be one such situation. And both Ward and UCC are cases that show both how it is often hard to segregate a claim in negligence into errors in a decision, and errors in its implementation, and how many decisions made by public authorities involve discretionary decisions with some 'policy' element: in Ward the level of expertise to be required of a surveyor appointed under the Act, and in UCC the formulation of a methodology by reference to which it would be decided when and at what level waters at the dam were to be allowed to rise. It takes little imagination to conjure up other cases in which the law of negligence may impose liability on a public authority for the manner in which it exercises its statutory discretions - this could happen when an employee alleges a breach of duty to them by the making of a particular decision affecting their employment, or where a public authority landlord decides to take a step adverse to one of its tenants pursuant to such statutory powers. It is not, and cannot be the case that claims arising from such defaults can be defeated simply because the negligent act has its origins in the exercise of a statutory discretion, even in relation to matters that some would describe as questions of 'policy'.
205. This, potentially, gives rise to a problem - the paradox identified by MacMenamin J. in Cromane, and indeed alluded to by Edwards J. in this case. If the power is lawfully exercised according to those principles of law that determine the validity or invalidity of actions taken on foot of the statute, it might be thought wrong to find that the exercise of the power is negligent. Not only on this argument would any other conclusion render the law incoherent, but in principle it might be said that once the power is exercised within the parameters of the legislation conferring it, it has been authorised and thus immunised from suit. Those concerns would suggest that liability in negligence in these situations can only be imposed if the specific decision or action said to have been in breach of a duty of care, is - in addition to being negligent - ultra vires the powers of the decision-maker.
206. On the other hand, there are reasons of practicality and of theory that push against any such requirement. It might be thought that the law in this area is complex and nuanced enough without grafting principles of administrative law onto it. In neither Siney, Ward, Glencar, nor indeed other decisions of this Court touching on this area (Sunderland v. McGreavey [1990] ILRM 658; Convery v. Dublin County Council [1996] 3 IR 153) have the judgments shown any enthusiasm for baking into the analysis of whether a duty of care should be superimposed on the exercise of statutory discretionary powers, questions directed to the invalidity as a matter of public law of the decisions in issue. The application of such a requirement in UCC would have immediately negated any duty of care of the kind contended for there, as it is far from obvious how the defendant could be said to have acted ultra vires its powers in determining to prioritise the statutory objective of electricity generation when moderating the level of waters at the hydroelectric facility in question. Indeed, there will be cases in which an inquiry into public law illegality is wholly incongruous: the driver of a state vehicle may be directed to undertake a task in discharge of a statutory power of his employer, but no one will seriously suggest that it is a precondition to liability for negligent driving of the vehicle that there be an ultra vires act (although for a case in which a similar argument was advanced in the context of alleged liability for negligent driving of a Garda vehicle in the course of a pursuit see Hayes v. Minister for Finance [2007] IESC 8, [2007] 3 IR 190 [19]).
207. The cases from the United Kingdom show the struggle between these positions. Some of the earlier decisions there suggested that in order to ground liability in negligence for actions on foot of statutory discretions, it was necessary to establish that the decision was so wholly unreasonable as to be unlawful, in which event liability in negligence might (but need not necessarily) be imposed in respect of the decision. [20] That analysis was closely related to the 'policy/operational' dichotomy identified in Anns, Lord Wilberforce there proposing that not merely had a decision to be ultra vires, but it also had to be operational rather than policy in nature before a duty of care could be found. Both propositions have been questioned since: in Stovin v. Wise, the viability of the 'policy/operational' distinction was convincingly undermined, and in Barrett v. Enfield London Borough Council [2001] 2 AC 550 ('Barrett' ) and Phelps v. Hillingdon London Borough Council [2001] 2 AC 619 ('Phelps'), the strict need to establish public law illegality was abandoned for at least some cases. Moreover, underlying all of these decisions is a closely related limitation borne of principles of justiciability: a duty should not be imposed that results in courts embarking upon inquiries for which they are ill-equipped such as cases involving a challenge to the allocation of the State's financial resources, or the balancing of competing public interests, or where a case is one that is likely to affect numerous parties whose conflicting interests a court will find it difficult to take into account (see Fairgrieve and Squires, The Negligence Liability of Public Authorities 2nd Ed. 2019 at para. 2.79-2.82).
208. In the course of his judgment in Connor v. Surrey County Council [2010] EWCA Civ 286, [2011] QB 429 ('Connor'), Laws LJ drew a further distinction between those cases in which the defendant is said to owe to the plaintiff a duty of care that was independent of the impact of action or inaction under a statute, and cases in which there was no such 'separate and independent' duty of care. In cases in the latter category, he said it was necessary to differentiate policy from operational powers and, that in those cases in which it was sought to impugn as the cause of an injury a pure choice of policy under statute, a plaintiff had to show that the choice was unreasonable in the Wednesbury [21] sense.
209. Cases in which there was such an independent duty of care, however, fell to be treated differently. In Connor, the claimant was an employee of the defendant and the claim revolved around various failures to exercise legislative discretions so as to protect the claimant's psychiatric health (including the failure to suspend the board of the school for which she worked). There could be no dispute that the defendant owed a duty of care to the plaintiff, so the question was how the public law dimension of the alleged breach of duty impacted on the private law claim. Laws LJ explained how such a case should be approached thus (at para. 107):
'a duty-ower may be required to fulfil his pre-existing private law duty by the exercise of a public law discretion. But ... that may only be done consistently with the duty-ower's full performance of his public law obligations .... The demands of a private law duty of care cannot justify, far less require, action (or inaction) by a public authority which would be unlawful in public law terms. The standard tests of legality, rationality and fairness must be met as they apply to the use of the public law power in the particular case.'
210. Thus - and in an approach that may not have survived the analysis in Robinson – Laws LJ decided that where the issue was the scope of an existing duty of care, the fair, just and reasonable inquiry would enable the application of these public law considerations in any case in which they were relevant. Because the analysis was whether an established duty ower could be required to fulfil his pre-existing private law duty by the exercise of a public law discretion (and it was held that they could), the end point was that provided the duty of care 'marched with' the public law duties, in the sense that discharge of the duty would not violate public law obligations, there was no reason why the scope of the duty of care could be defined in a manner that was congruent with the public law duty. Laws LJ was at pains to stress how rarely it would happen that a plaintiff enjoyed a relationship with a public authority defendant that enabled the former to agitate a claim in negligence around choices made pursuant to statutory discretions, but that case was one such situation. So, for the reasons I have suggested, is this case: the defendants are said to have assumed precisely that responsibility vis-ŕ-vis the allocation process.
The proper approach to negligence actions arising from the exercise or non-exercise of a statutory discretion
211. There is no doubt but that legal rules requiring an ultra vires hurdle for public authority negligence, or imposing a distinction between policy and operational negligence, or articulating a barrier to such claims grounded in principles of 'justiciability', or for that matter differentiating between duties that are, or are not, independent of statute, have some logic. However, they sit uneasily with the decided Irish cases in this field, and depend on a variety of distinctions that from the experience of the cases in other jurisdictions, are very often difficult to draw. In fact, the very challenge of defining when proof of public law 'unreasonableness' should and should not be a precondition to liability in negligence, when a power is 'policy' and 'operational' in nature, together with the necessarily fluid and case specific nature of 'justiciability', suggests to me that the issues are more of degree and legal policy, than of sharp doctrine.
212. For that reason, these questions are more easily integrated into the part of the inquiry that is specifically adapted to considerations of policy, and that will enable some flexibility. Moreover, and reverting to my earlier observations regarding the indivisibility in some cases of the components of the tort of negligence, they cannot be separated from the question of the standard of care to be demanded of the authority. That being so, it appears to me that the insights gained from the detailed consideration in these cases can be adopted through the combined effect of the 'just and reasonable' component of the inquiry, and a consideration of the correct approach to be taken to the standard of care to be applied to certain public authority cases. Doing so leads to the following conclusions.
213. First, if the effect of an asserted duty of care is to require the defendant authority to act in breach of its public law obligations, or if the imposition of such a duty would be inconsistent with, or is such as might lead to the non-exercise of the public law obligation, this is a coercive reason for concluding that it is not just or reasonable to impose such a duty. This comes back to a point I have made earlier. Although a crude metric, the cases in which a duty of care has been imposed in such a context have universally involved situations in which there is no conflict between the common law obligation, and the statutory function. The more the former and the latter align, the easier it becomes to justify a private law duty of care. But this is not simply a matter of direct conflict: a duty of care in the exercise of a statutory power may operate to inhibit the exercise of the power without necessarily conflicting with it. In that situation also, it is right that the law should incline against liability in negligence for the exercise or non-exercise of the function.
214. Second, there will be cases in which the Court is being asked to adjudicate on an issue that is clearly one of such high level policy that it would not be justiciable in any claim and thus cannot be smuggled into a private law action for damages. Instances are helpfully identified by Lord Browne-Wilkinson in the course of his judgment in X v. Bedfordshire County Council (at p. 737): issues of social policy, the allocation of finite financial resources between different calls made upon them, or the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. A good example would have arisen but for the decision in Barlow II around the decision to allow Northern Ireland fishermen access the resource at all: the field of relations between States and in particular the sensitive issue of relations between this State and Northern Ireland are quintessentially matters within the function of the Executive. Insofar as there are cases that decide that there are issues of 'policy' that can never ground proceedings in negligence, it is with 'policy' in this sense that they should be understood to have been concerned.
215. Third, however, outside the very particular context of decisions of the former kind, the suggestion that because an issue can be identified as one of 'policy' and, once meriting that description, that it cannot be the subject of a claim in negligence should be avoided, and to that extent I agree with Laws LJ in Connors when he said that there will be cases where, albeit exceptionally, that is precisely what a duty of care is directed to. This, again, is evident from UCC. The fact that decisions involve the making of choices between different claimants in the exercise of a statutory power does not necessarily render them non-justiciable: such decisions may be capable of being litigated in judicial review proceedings and there are clear rules of law that function to define what courts can and cannot do in those cases. To revert to this case, it might well be said that the decision to allocate mussel seed without inquiring into whether the applicant resides in Northern Ireland was one of policy, but whether it is or not, it is a policy which an affected applicant would be quite entitled to agitate in judicial review proceedings, and it is a policy the legality of which can be readily assessed by a court. It may also be said that the decision to constantly roll over allocations of mussel seed pending the implementation of the Rising Tide Report was one of policy, but a court is perfectly well equipped to decide if that was allowed by statute. One might argue that it is a matter of policy whether the Minister enables large allocations of mussel seed to Northern Irish farms, but the courts are fully entitled to decide whether it is permissible under the legislation having regard to its objectives to do this without any understanding on the part of the authority of the quantity of seed that is available. By saying this I am not to be understood to fall into the error I have identified in the previous part of this judgment, of merging judicial review proceedings and actions in negligence: the point is that there are 'policy' decisions the legality of which can be determined by a court, and there is no reason in respect of those decisions why they should not be justiciable also in a private law claim, provided the conditions otherwise attending a duty of care are established and it is, otherwise, just and reasonable to impose such liability.
The standard of care
216. The fourth point follows from this, and was touched on by Meenan J. in the course of his judgment in the High Court. If it is possible to impose a duty of care on the exercise by a public authority of its statutory powers or functions, what is the standard by reference to which the court will determine if that duty has been breached? While, at the most general level (and subject to some very particular exceptions) the standard is that of the 'reasonable person', that being elaborated upon in different ways depending on the specific features of the relationship and the negligence involved. A state employee who drives his vehicle too fast has his negligence determined by reference to clear and well-established legal standards. The same is true of the building inspector, or surveyor, or other person acting on behalf of the State pursuant to statutory powers in a capacity that can be analogised to an identified professional activity, to all of which cases the Bolam [22] standard applies. In other cases, the identification of negligence is not dependant upon expert evidence, because the Court itself can readily conclude whether an action was or was not negligent using the standard of the 'reasonable person': the claim arising from the activities of the prison officer who leaves a dangerous criminal in an unlocked vehicle while he goes for a cigarette can be assessed without recourse to expert evidence that he has acted negligently. There is no range of options from which the relevant functionary must choose.
217. But there will be categories of case where there is neither an identifiable 'professional' standard of conduct, nor an ascertainable 'reasonable man' against whose standards particular decisions of a public authority can be gauged. So it was in Crimmins v. Stevedoring Industry Finance Committee (1999) 200 CLR 1 ('Crimmins') at para. 90, that McHugh J. said that in some cases arising from the exercise of statutory functions '[t]o highlight the different position of statutory authorities, therefore, it .. seems best to formulate the authority's duty by reference to what a "reasonable authority" - rather than a "reasonable person" - would have done (or not done) in all the circumstances of the case".
218. On general principles, inquiring into what a reasonable public authority in the position of the defendant would have done when faced with the decision in hand, having regard to the factors to be taken into account by it, will involve an assessment of whether the action was outside the range of choices that a reasonable body charged with the activity concerned could have made (Charlesworth and Percy Negligence 15th Ed. 2022, at para. 2-347). Two things follow. First, the general principles of the applicable private law thus demand that in some cases the ambit of the legislation pursuant to which the authority acts is factored into the question of whether it has acted negligently. It is the scope of the power and constraints within which it must be exercised that define the range of choices open to the public body and, therefore, what it can reasonably do. When viewed in this way, the difference between 'policy' and 'operational' decisions or activities is sidestepped, as explained in one academic commentary [23]:
'Determining whether a duty has been discharged need not involve elaborate inquiry. It would seem to be sufficient for the defendant to point to the existence of relevant discretionary considerations and show that they had properly been taken into account. The question would be whether the particular exercise of discretion was reasonably open to the defendant, not whether it as in some sense right or wrong. And the degree of care expected of a public body in meeting the standard of reasonableness must be determined in the light of its obligation to carry out various statutory functions and its inability to simply desist from any exercise of its responsibilities.'
219. Second, the law itself provides a framework that differentiates the proper and reasonable exercise of a power, from its improper and unreasonable exercise: that is framed by reference to whether the decision of the authority was fundamentally at variance with reason and common sense (State (Keegan) v. Stardust Victims Compensation Tribunal [1986] IR 642, 658). The question arises as to why that formulation should not also afford the basis for a standard of fault to be applied to cases in which the claim is that the public authority has assumed a duty of care to a particular claimant in the exercise of a statutory power involving choices from a range of different alternatives expressly or impliedly prescribed by the legislation itself.
220. This case provides an apposite example: decisions whether to close the fisheries, or to open them to everyone, or to allocate mussel seed based on available aquaculture sites, or to allocate all of the seed to the Northern Ireland registered vessels, or to allocate them based on the accident of pre-2006 allocations are each either 'reasonable' in the sense in which that term is used in administrative law, or they are not. If they are so 'reasonable' then they represent valid choices made by the public authority as to the proper management of the fishery within the range of options available to it. If they are not so 'reasonable' they are outside those options. Of course, the coincidence of language - reasonableness in public law, and the reasonable man in the law of negligence - risks obscuring the very difference between illegality and carelessness to which I have earlier alluded. Wednesbury unreasonableness, Laws LJ said in Connor is not the rule in tort (at para. 65). But there are good reasons in some cases for aligning these standards.
221. The first consideration is a practical one. While the concepts of 'unreasonableness' in public law and the notion of the 'reasonable man' in the law of negligence have been forged to achieve different purposes, and while unreasonableness in public law is not necessarily a consequence of carelessness, even in cases that do not expressly adopt the approach I suggest, they come so close to convergence as to make little practical difference. Some of the authorities speak of liability for at least some such discretionary decisions being dependant on 'manifest incompetence or negligence comprising specific, identifiable mistakes' (Phelps at p. 655 per Lord Nicholls). Others speak of the 'high hurdle' facing claimants in cases seeking damages for negligence where the alleged breach arises in a context in which an authority has a wide discretion involving complex assessments (HXA v. Surrey County Council [2022] EWCA Civ 1196 at para. 98 per Baker LJ), and others again of liability in negligence being imposed only if a discretionary decision was plainly wrong (S. v. Gloucestershire CC [2001] Fam 313, 338, Carty v. Croydon London Borough Council [2005] EWCA Civ 19 at para. 430). It seems far more sensible to reduce the pool of available adjectives and align the relevant tests, and in doing so give effect to the statutory context. As Kirby J. observed in Crimmins, the remedies provided for in public law and those in the law of negligence:
'arise[] from the same subject matter, namely the meaning and operation of the statute. Each remedy will be obliged to respect the discretions accorded to the statutory body in question. Such discretions necessarily imply, in some circumstances at least, a right to act and a privilege not to act'.
222. Second, this is not to contradict my earlier insistence that questions of validity and actionability be kept apart. Nor is it to confuse a standard directed to legality, with one concerned with carelessness. There is, it seems to me, an important distinction between decreeing that a State authority cannot face liability in negligence for particular actions because the principles of public law intrude to negate a duty of care that would otherwise arise, on the one hand, and enabling liability in negligence but conditioning the standard of care by reference to the statutory context, on the other. The first risks the exemption of the state authority from the general law, while the latter acknowledges that while a duty of care may arise between the authority and a person affected by the exercise of the power, statute allows the authority freedom of action which must be reflected in the formulation of liability in private law. Any other version of the duty, it might be said, would create the risk that by acting so as to assume a responsibility to a claimant, the State authority had unlawfully fettered its statutory discretions (see Re Green Dale Building Co. Ltd. [1977] IR 256). Where, as here, the negligence arises from the making of decisions within the framework of a statutory power, there is no reason whatsoever why the public law standard cannot identify the level of care required of the defendant: if there is to be a case in which such a defendant contends that a decision matching the description of irrationality in public law was taken with due care, that can be resolved if and when it arises. It strikes me as a highly theoretical scenario.
223. Third, and related to this, I am, of course, conscious that here one risks revisiting the difficult and widely discredited distinction between 'policy' and 'operational' decisions, simply shifting a version of the ultra vires hurdle posited in Anns to a later point in the legal analysis. However, the identification of a category of cases governed by the standard of care I suggest is far easier when the question is not one of abstract characterisation, but of concrete application. And what is being applied is not a new and theoretical differentiation between 'policy' and 'operations', but a well-established and wholly practical inquiry as to the appropriate standard of conduct to be applied to the resolution of a particular case having regard to the nature of the activity in play and the legal constraints on the party said to have acted negligently.
224. Fourth, I also acknowledge that it will be said that this formulation introduces a new and uncertain variable into the law governing public authority liability. Just as it was unclear in the United Kingdom following the decisions in Phelps and Barrett when it would be necessary to surmount the hurdle of 'unreasonableness' before liability in negligence was possible, so it might be said the same uncertainty will now arise at a different stage. That, however, is not as much a product of the fact that there may be different ways of analysing the standard of care dependant on the nature of the allegations made against a public authority defendant, as it is of the fact that actions of this kind will often involve different types of negligence. Cromane (which I consider shortly) is one of many examples of a case in which claims of negligence in the implementation of a statutory function carries within it a complaint about the making (or failure to make) a particular decision on foot of a statutory power. Although each can be said in one way or another to have involved some aspect of the statutory discretionary powers of the defendants, an examination of Siney, Ward and UCC discloses the courts, in formulating the standard of care, to reflect the gist and substance of the negligence action. Where the liability, however, is said to arise entirely from an assumption of responsibility in the discharge of a statutory function, and where the duty is wholly one that requires the authority to exercise care in choosing between various options in accordance with the parameters of a discretionary power vested in it by statute, it only acts 'negligently' if the choice it makes is one that no reasonable authority could reach. In that situation, the question of what a reasonable authority will and will not do is bounded by the statute conferring the power. A reasonable authority will not make a choice that is contrary to fundamental reason and common sense and thus outside the scope of the statutory power. Therefore it acts in breach of the duty it has assumed if it acts in such a way. To decide that there is an intermediate category of conduct that a reasonable public authority would not engage in, but that is not contrary to fundamental reason and common sense, might keep the theory of public and private law neatly apart, but would convert the practical disposition of a case of this kind into a jittery tango from the head of one pin to another. It will be observed that a number of jurisdictions have legislated to precisely this effect. [24]
Cromane
225. It follows that a public authority may, in certain circumstances, face liability for the negligent exercise of discretionary statutory powers. One situation in which that liability may arise is where the law determines that by its actions it has assumed such a responsibility to a plaintiff. A plaintiff seeking to maintain such a claim faces several hurdles, and in many cases these will operate to prevent liability in negligence arising: liability will not be imposed if to do so is inconsistent with the statutory scheme or would inhibit the exercise of the statutory powers in issue, nor will it not be imposed if a claim touches an area which is not justiciable. However, the mere fact that the power involves the authority in choosing between options, or that it involves an area that might be categorised as one of policy is not in itself a barrier to liability for the manner in which that power is exercised. The approach adopted in some jurisdictions of requiring proof that an action is ultra vires, or of distinguishing between 'policy' and 'operations', and enabling liability only in respect of the latter, should not be viewed as part of Irish law. Instead, the concerns prompting those rules should be addressed through a combination of the 'just and reasonable' component of the duty of care inquiry, and via the standard of care. In cases where the alleged negligence comprises decisions made by a public authority in choosing between various options in accordance with the parameters of a discretionary power vested in it by statute, the question is whether the action was outside the range of choices that a reasonable body charged with the activity concerned could have made. This should be viewed as equivalent to the standard of unreasonableness as developed in administrative law.
226. That analysis is not inconsistent with the ratio of the decision of this Court in Cromane, the facts of which have some parallels with this case, and which formed the centrepiece of the State's position in this appeal. For these reasons, and because I fear that the scope of the decision has been misunderstood in some of the commentaries and indeed by the State in its submissions in this appeal, it is necessary to closely examine the judgments.
227. There, also, the plaintiffs were mussel fishermen, their activities being conducted in Castlemaine harbour in Co. Kerry. Their complaint arose from the closing of the mussel fishery in which they laid the mussel seed they had fished, that closure (which occurred in 2008 and 2010) arising because the State had failed to properly implement the Birds and Habitats Directives (Council Directives 79/409/EEC and 92/43/EEC). The context was that when the harbour was designated as a special protection area and as a candidate special area of conservation for the purposes of those Directives (respectively), the plaintiffs were advised - through public advertisement issued in 1993 - that it was not envisaged that this designation would restrict the then current use of the designated areas. That advice was based on an incorrect understanding of the law, which was clarified in 2007 by a decision of the Court of Justice (Commission v. Ireland Case C-418/04). That decision made it clear that the State was required to undertake an appropriate assessment of any plan or project if it could not be excluded that that plan or project would have a significant effect on the site concerned. It was following that decision that the harbour was closed so as to enable such an assessment to be conducted (this closure being effected by a series of Statutory Instruments). The plaintiffs' claim for resulting damages (which were entirely financial) proceeded before the High Court as an action based on a breach by the defendants of what was described as 'the legitimate expectation created by them', for negligence, and for negligent misstatement.
228. The decision of the High Court ([2013] IEHC 338) awarding damages was based in part on what the trial judge termed 'operational negligence' which he contrasted with negligence 'in policy decision making' so that damages could be available where there was 'unlawful' implementation of a Ministerial decision. Here, the trial judge found, the decision to close the relevant harbour was an implementation of policy, rather than a policy decision. The Minister, the trial judge found, had made a mistake of law in adopting the view that he did not have to conduct a screening test or appropriate assessment, and that mistake of law had a relevance as to how 'the regime was managed'. He said this:
'There was operational negligence in failing to carry out the regular scientific tests or monitoring that would have provided the baseline data to equip the Minister either to have a proper screening test or to have a fully informed appropriate assessment. The delay could have been avoided if the Minster had not been guilty of operational negligence, which was part and parcel of his mistake of law.'
229. It is clear from his judgment that the core finding of negligence made by the trial judge arose from the failure of the defendants to conduct the screening expeditiously after the Court of Justice decision, and he seems to have found that this could have been done within two months. The analysis, he said, 'should have been done quickly in 2008'. Instead, it was not done until 2010. As part of that, the judge found that there had been a culpable failure by the defendants to carry out proper scientific investigations or monitoring between 2000 and 2008 which would have provided baseline studies for the prompt carrying out of an appropriate assessment so as to have permitted the timely reopening of the harbour for mussel seed collection. At points throughout the judgment this was presented as both a finding in negligence, and a breach of legitimate expectation. The Court did not conduct a detailed analysis of the duty of care issue, and did not consider the implications of the fact that the loss claimed by the plaintiffs was entirely economic. It seems that the dealings between the parties resulted in the conclusion that the plaintiffs were 'in sufficient proximity ... to recover damages for the reasonably foreseeable loss incurred through the abrupt closure of Cromane harbour in 2008 and ... the late opening of same in 2010.'
230. This Court allowed the resulting appeal, prompting three judgments - that of MacMenamin J. (with which Dunne J. agreed), that of Charleton J. (with which MacMenamin and Dunne JJ. agreed) [25], and the dissenting judgment of Clarke J. (with which Laffoy J. agreed). MacMenamin J.'s conclusion as to whether the Minister owed a duty of care to the plaintiffs focussed on the large number of other Natura surveys that had to be carried out by the State at the relevant time, and the resulting fact that the question of where national priorities lay, or who should receive resources, or where surveys should be carried out, were policy matters for the executive. He said of the dealings between the plaintiffs and the defendants that it was 'difficult to find that anywhere in the relationship there could be said to be a 'duty of care' or 'proximity', even if loss might be foreseeable.' The fact that the plaintiffs' situation was within the knowledge or contemplation of the defendants did not generate proximity as the same could be said of the situation of other operators. MacMenamin J. concluded that it could not be said that the plaintiffs were so closely and directly affected by the Minister's actions or omissions that the duty to them took primacy over the duty to comply with EU law (para. 198).
231. Much of the judgment of MacMenamin J. is concerned with 'operational negligence'. This phrase, as I have noted, was used by the trial judge in Cromane and, as I have earlier suggested, originated in the speech of Lord Wilberforce in Anns. MacMenamin J. felt that what was being contended for by the plaintiffs involved a 'long term omission' whereby 'over a period of many years, the Minister failed to carry out regular scientific tests or monitoring, which would have provided the baseline data' to discharge the State's obligations under EU law. He found that there was no basis in authority for this concept of negligence, based upon an alleged ministerial mistake of law constituting a cause of action giving rise to loss and damage. In that regard, he stressed the comments of Keane CJ. in Glencar to which I have earlier referred, confirming that the mere fact that the exercise of a power by a public authority could confer a benefit on a person of which they would otherwise be deprived does not of itself give rise to a duty of care at common law. However - I think importantly in understanding what, precisely, MacMenamin J. was rejecting - he confirmed the correctness of the decision of the Court in Minister for Communications, Marine and Natural Resources v. Figary Water Sports Development Company [2015] IESC 74 ('Figary') where liability was imposed on the State in circumstances in which it had failed to progress a claim for a grant in a proper manner so that the plaintiff lost the opportunity to secure grant aid. This, he explained, was (at para. 173):
'a situation where there had been a breach of duty, including statutory duty, by the Minister, in circumstances where the Minister owed a specific duty to a very specific group. The application of statutory duty, the judgment held, could not be wholly divorced from the landlord and tenant relationship which existed between the parties.'
232. In addressing the proposition that the defendants owed to the plaintiffs a duty of care of the kind contended for, Charleton J. conducted an extensive analysis of the relevant authorities. He stressed that the loss claimed was purely economic (paras. 233 and 234), the need to avoid the creation of vague duties of care (para. 238), the fact that the case arose in a context in which the State owed duties in European law from which it could not derogate (para. 238), the fact that there were approximately one hundred and forty sites affected by forced closure and that there was no basis for contending that Castlemaine Harbour was in a stronger position than any other site (para. 238), and that the question of whether a duty of care is owed by a government authority to those affected by its actions is affected by the statutory framework in which the acts complained of were effected (paras. 241 and 242). Central to his conclusion was the distinction between decisions which allocate resources or pursue aims in a particular direction, and a failure to deal with the very task which the legislation has entrusted to the body (para. 244). He laid emphasis on the fact that the legislative scheme in issue in that case did not set up an obligation towards fishermen nor impose any particular requirement apart from the overall purpose of the sustainable and rational management of fish stocks (para. 245). If the legislation imposed any duty it was towards furthering the common fishery policy of the European Union, and the sustenance of fishing opportunities (para. 246). Earlier in his judgment, Charleton J. noted that 'the State had never made any unequivocal representation that the designation of the sites as SACs or SPAs would not change their status, and thus outrule harvesting or other business activities.' (at para. 218).
233. Charleton J. made three further points. First, he deprecated the proposition that there should be adopted a concept of 'operational negligence': this, he felt, would involve the Courts in arrogating a function which has not been given to the judiciary under the Constitution. His explanation for rejecting this was rooted in a relationship he perceived between this type of negligence, and the making of policy and administrative choices (at para. 241):
'The rationale for excluding the exercise of discretionary powers is that where the statutory framework places the decision making power in the context of a choice between action on a particular issue, through the expenditure of funds that may also be needed elsewhere, or in the context of a choice between the allocation of resources insufficient to cover all needs, it is both a matter of policy and administrative choice.'
234. Second, Charleton J., observing the risk that the tort of negligence would come to swamp all torts, said that if in public office, something is done which affects rights, the remedy may be judicial review or, if damages were sought, misfeasance in public office.
235. Third, he attached some importance to the fact that the closures in issue in the case had all been effected pursuant to statutory instruments, the validity of which had not been challenged. The statutory instruments would, he suggested, have to be quashed before there could be any question of an analysis of negligent policy: legislative policy could not be condemned on what are essentially negligence grounds, and extant laws could not be 'scrutinised in negligence grounds as to the policy behind same.'
236. In his dissent, Clarke J. formulated an approach centred on the relationship between negligence as applied to public bodies and to private defendants. The courts should not, he said, 'be overprotective of public authorities' (at para. 81). The proper way, he felt, to approach the question of whether a public authority might have a duty of care imposed was to first consider whether a duty of care would be imposed on a private individual in an analogous circumstance, and then to consider whether there was any sufficient countervailing factor that could provide a proportionate basis for not imposing a like duty on a public authority. What leant against the imposition of a duty of care in certain cases involving public authorities was the countervailing factor derived from the fact that the actions of the public authority concerned might involve questions of policy, discretion or adjudication, which were to be determined in the public interest and whose exercise in that manner ought not to be stifled. However the weight to be attached to this, as a countervailing factor, against purely administrative actions had to be much less. While the majority clearly differed from Clarke J. in relation to the application of these principles (they obviously viewed the specific allegations in that case as falling within the zone of administrative discretion), it is not apparent that they differed from that general principle which, as I have earlier observed, seems to me to follow in any event from the decision in Byrne v. Ireland.
237. From there, Clarke J. defined the real question before the Court as to 'whether the Minister might be said to have owed a duty of care which required him to ensure that an appropriate assessment was carried out at an earlier stage' (at para. 98), or that he owed a duty to put himself into a position where it would be possible, as a result of the assembling of sufficient necessary data, for him to carry out an appropriate assessment so as to consider whether it would be lawful to permit the continuance of the plaintiff's activities and to do so at a time which would, had the relevant assessment led to the appropriate conclusion, have allowed those activities to have continued uninterrupted. To hold that tests of foreseeability or proximity were not met in this situation would, he found, be to afford the State a degree of immunity or exclusion which would not be afforded in a comparable private situation. This did not involve any policy or discretionary considerations or adjudicative roles. It did not concern the allocation of resources or the making of statutory decisions. From at least the time of the reasoned opinion provided by the European Commission in advance of the enforcement case to which I have referred earlier, the Minister knew that there was a prospect that his interpretation of the Directive in issue might be wrong.
238. It is as a consequence of the very particular facts and circumstances of the case, the broad temporal arc (and multi-faceted nature) of the plaintiffs' complaints, and the differing interpretation by the majority and minority of the issues, that some confusion has arisen around the question of what it decided. For my part, the case is best seen as one about the recoverability of pure economic loss by one of a large number of persons affected by the exercise by the Executive of general powers vested in it for the advancement of the public interest alone, in circumstances in which the plaintiffs could not point to any dealings with the State that differentiated them from a large number of other affected parties and where some of the claims of negligence were authorised by unchallenged delegated legislation. This most accurately explains the difference between the majority (which applied conventional principles in finding that the conditions for recovery of such damages were not met) and the minority (which did not address the nature of the loss claimed at all, and framed the duty of care as those judges saw the case, more narrowly than the majority). The ratio of Cromane is restricted to the finding that a claim in negligence could not be sustained in those circumstances. Therefore, it in no sense outrules liability in this case in which the elements of an assumption of responsibility to exercise a discretionary power with care, were made out.
239. Some of the academic literature has suggested that Cromane was decided on the basis of an immunity of public authorities from liability in the exercise of official powers. The case should not be understood as authority for such a wide proposition. The Court did not decide that persons who had a relationship with a public authority of such proximity as to give rise to a duty of care, according to established common law principles I have earlier outlined, would not enjoy a cause of action in negligence for administrative decisions causing foreseeable loss simply because those decisions were made in the exercise of powers originating in a statutory discretion: Cromane was, simply put, not such a case. Thus, in the course of his judgment in UCC, Charleton J. observed that Cromane was a case in which the issue was the extension of liability in negligence to an area in which it had never previously held sway (at para. 9): Cromane was decided as it was because there was no relationship between the parties outside the statutory regime and thus no benchmark in the case law by reference to which a duty of care could be found.
240. It is certainly the case that the majority was deeply unhappy at the suggested importation into Irish law of the policy/operational distinction drawn by Lord Wilberforce in the course of his judgment in Anns. Much of the concern in this regard stemmed from the difficulty in differentiating between 'policy' and 'operation' for these purposes, the concern that this distinction would elide the difference between liability for acts and for omissions, together with an anxiety that the courts not become involved in the process of awarding damages for decisions made by the Executive as part of its statutory discretions in the allocation of resources or choices as between conflicting policies (see, in particular, the judgment of MacMenamin J.at paras. 152-157). Similarly, it is clear from the judgment of MacMenamin J. that his concern in rejecting the concept of 'operational negligence' was directed to protecting discretionary decision making (see paras. 151 and 156), and to the breadth, variability and potentially non-justiciable nature of the duty suggested by at least aspects of the trial judge's decision (see paras. 181 and 182 of his judgment).
241. That concern is, I think, best understood as reflecting an anxiety that the courts not become embroiled in wrangles around matters that are not justiciable. But the case should not be read as obliterating a practical distinction between negligence in the making of choices in purported accordance with a statutory discretion, and the practical implementation of decisions so made. That distinction is, for the reasons I have explained, properly viewed as relevant in the application of the relevant standard of care. Indeed I think it significant that in UCC, the joint judgment of Clarke CJ. and MacMenamin J. (with which Dunne J. agreed) characterised Cromane as a case involving 'some matter of policy' (at para. 13.4), which that judgment distinguished from the question in UCC, characterising that as 'how the ESB operated the Lee Dams'. Nor, finally, can Cromane be construed as holding that any claim engaging the exercise of a statutory discretion is inadmissible in negligence and capable of being pursued only via an action for misfeasance in public office. Were that the case, the decisions of ESB in or about the fixing of water levels that formed the basis for UCC could not have given rise to an action in negligence at all. Those decisions were quite capable of being categorised as a matter of 'policy' (whether to prioritise electricity generation or the interests of downstream landowners), yet they gave rise to an action in negligence because the Court in that case found that liability arose from generally applicable principles of the law of negligence and, in particular, the proximity of the parties viewed in the light of the defendant's control over the river levels and knowledge of meterological conditions. Charleton J. was, of course, wholly correct insofar as he found that the fact a statutory power will not in itself give rise to a duty of care so that where (as was the case in Cromane itself) there is no relationship between the parties apart from that arising from the statute, misfeasance in public office is the only cause of action in play.
Bates
242. The facts of Bates as recorded in the judgment were that the plaintiffs - who held licences granted by the defendant which permitted them to engage in fishing in certain areas - were informed by the French authorities that they were not permitted to fish in an area near the Bay of Biscay. The plaintiffs then contacted the defendant department, which informed them that they were permitted to fish in that area. That information was incorrect, and the plaintiffs having been arrested by the French authorities when the acted on that advice, pleaded guilty to charges of illegal fishing, for which they were fined. The issue was whether they were entitled to recover the economic losses they sustained consequent upon the arrest of their vessel and immediate loss of fishing days, in misrepresentation, negligence and breach of duty.
243. This Court in a judgment delivered by Charleton J. (with which MacMenamin and Dunne JJ. agreed) upheld the decision of the High Court that they were. The decision of the High Court was grounded on the finding that there was a relationship of proximity between the defendant department and the plaintiffs, that since carelessness could within the reasonable contemplation of the defendant cause harm to the plaintiffs and given that there were no considerations that ought to negative, reduce or limit the scope of such a duty of care, it was appropriate to impose liability for the damage flowing immediately from the arrest of the vessels. The High Court judge had treated the case as one dependant on both Glencar and Hedley Byrne, and while noting that the Court had not been addressed as to the criteria to be applied to a claim in negligent misstatement, rooted her judgment in the latter decision.
244. This conclusion, Charleton J. said, was not inconsistent with the decision in Cromane. This was, he said, 'a classic case of the voluntary assumption of responsibility by the Department in circumstances where it was likely that fishermen would rely on it' and an example of 'a special relationship giving rise to liability for negligent advice' (para. 28). Insofar as at some points both in that judgment and in the subsequent decision on the application to review those findings ([2019] IESC 35) it was suggested that actions for loss caused by the manner of exercise of statutory powers must be brought within the ambit of the tort of misfeasance in public office, and indeed to the extent that the judgment observes that were the case about an administrative task conducted pursuant to a statutory remit the starting point for a duty of care analysis would be in the negative (at para. 158), those comments are properly understood as directed to actions based solely on the fact of discretionary or policy decisions made when there is no relationship or action that generated tortious liability according to well-established authority. Indeed, in the review application in Bates, MacMenamin J. referred to the Court in Cromane as having envisaged liability in 'negligent mistatement' where inter alia there was 'a relationship of close proximity' (para. 61).
The relevance of the statute
245. The principles relevant to the fact that the powers in issue in this case said to have been negligently exercised were statutory in origin are as follows :
(i) In cases in which there is a clear, simple and direct analogy to be drawn between the activities of private actors and of public authorities, the public authority is liable in negligence for those activities in the same way as a private actor, save where the public authority enjoys the benefit of an express or necessarily implied statutory immunity for such a suit.
(ii) The mere fact that the exercise of a statutory power by a public authority may confer a benefit on a person of which they would otherwise be deprived or otherwise prevent a harm to that person does not of itself generally give rise to a duty of care at common law.
(iii) Public authorities can come under a private law duty to confer benefits or protect from harm in circumstances where the principles applicable to private parties would impose such an obligation. This includes where a public authority assumes a responsibility to confer a benefit on, or protect a person from harm. Once again, this is subject to statute not being expressly or impliedly inconsistent with the assumption of such a responsibility.
(iv) For that purpose, an assumption of responsibility may arise so as to result in the imposition of a duty of care on the public authority in the provision of information, or advice, or in the undertaking of any task for which the public authority has assumed such responsibility. That responsibility may be impliedly assumed, and it can be deduced from the manner in which the public authority has behaved towards the plaintiff. While the operation of a statutory scheme does not in itself give rise to an assumption of responsibility for these purposes, it may do so if the conditions generally applied by the general law are met.
(v) The fact that the decision, act or omission of a public body said to ground an action in negligence might also be amenable to judicial review is not in itself a basis on which a finding that the defendant does not owe a duty of care in negligence should generally be made.
(vi) There is no a priori rule that a public body enjoys an immunity from liability in negligence in respect of its actions in the exercise of statutory discretionary powers. A duty of care in the exercise of those powers may arise if the dealings between the parties are such that, on conventional principles or by reference to established authority, the law would otherwise impose such a duty. However, in determining whether to impose such a duty, the court must be satisfied that it is just and reasonable so to do. It will not be just and reasonable to require a public body to act in a manner prohibited by statute, nor will it be just and reasonable to impose a duty of care where to do so would inhibit the exercise of a statutory power.
(vii) Where the negligence alleged against a public authority comprises decisions made by a public authority in choosing between various options in accordance with the parameters of a discretionary power vested in it by statute, the standard of care is directed to whether the action was outside the range of choices that a reasonable body charged with the activity concerned could have made. This should be viewed as equivalent to the standard of unreasonableness as developed in administrative law.
Has there been an effective disclaimer?
246. I have referred earlier to the disclaimers that appeared in the documentation issued to the third to seventh named plaintiffs (but not the first or second). The sea fishing licences issued to all plaintiffs were in similar terms. Those licences are not, I think, relevant: by the time they were issued the plaintiffs had committed to at least some of their investments. The critical question is whether the disclaimer in the letter of grant offer was such as to preclude a duty of care from arising, or to extinguish a liability in negligence if it did.
247. The fact that the disclaimer related solely to the provision of allocations, and that as matters have transpired this is irrelevant insofar as the plaintiffs did not succeed in fishing the allocations they had actually been given, is not necessarily determinative. By making clear that in providing a grant the defendants were not undertaking to provide any particular allocation may well be said to be consistent only with the defendants excluding any liability to the plaintiffs by reason of those parties not obtaining access to the resource. It can be argued that it would make little sense to say that the defendants did not have to provide the plaintiffs with any allocation of mussel seed, but that they were assuming a duty of care in connection with provision of the same resource. If they did not have to grant allocations, the argument would be, they could not logically have assumed a responsibility to the plaintiffs in the management of the resource so allocated.
248. This does not affect the position of the first and second named plaintiffs. Whether it changes the position of the other plaintiffs depends on the relationship between the commitments assumed by them, the terms of the grant, and - possibly - the legal issue of whether a disclaimer operates to negate a duty of care in a claim based on an assumption of responsibility not to cause pure economic loss, or is in the nature of a defence to a claim in negligence where such a duty of care is otherwise found (see the discussion of a related issue in Walsh v. Jones Lang Lasalle Ltd.). Those matters are best resolved at first instance and on the basis of such evidence regarding the disclaimers that the parties may choose to call. Here, it will be noted that some of the plaintiffs entered into the contracts for the construction of the vessels prior to the issuing of the offers.
V THIS CASE
Summary of relevant principles
249. I have summarised the proper approach to be adopted by a court in determining whether a duty of care in general arises in any given case at para. 155 (i)-(v). I have also explained that pure economic loss may be recovered in the tort of negligence if - at least - there is: (a) an assumption of responsibility by a defendant not to cause or to protect against such loss, (b) made to a defined, identifiable and limited class, (c) where there is reliance by the plaintiff upon the defendant not causing, or protecting the defendant against, such losses, (d) where that reliance is known to, or reasonably forseeable by, the defendant, (e) where the relationship between the parties is such that the defendant can, if it chooses and if the plaintiff agrees, disclaim such liability by agreement and (f) where the defendant has not, in fact, so disclaimed liability. The circumstances in which, and principles according to which, a public authority may be liable in negligence for the negligent exercise of a statutory power are summarised at para. 245 (i)-(vii).
250. It follows from the foregoing that I disagree with some of the conclusions reached by Meenan and Edwards JJ.. That is in no sense to criticise either: the law governing negligence in the exercise of discretionary statutory powers is complex and evolving. First, however, while it is certainly the case that the mere fact that the Minister had powers of management over a natural resource did not generate a duty of care to the plaintiffs as to the exercise of those powers, the converse is also true: the mere fact that the plaintiffs' claims arose from the powers of management vested by the law over a natural resource did not in itself preclude the prospect that the defendants owed a duty of care to the plaintiffs in the exercise of those powers. The fact that those powers were conferred for the benefit of the public as a whole rather than for the benefit of persons in the position of the plaintiffs - and the judgments of Meenan and Edwards JJ. were entirely correct in so concluding - undoubtedly took this case out of the exceptional circumstances that presented themselves in Siney and were found to generate a duty of care in that case and to that extent, also, the High Court and Court of Appeal correctly concluded that the basis for a duty of care identified in that decision did not arise. This did not, however, preclude the existence of a duty of care if on established principle, as was claimed by the plaintiffs, the defendants had assumed a responsibility to the plaintiffs in connection with the management of the resource. Whether such a responsibility had been assumed depended on the dealings between the parties, and the manner in which the defendants conducted themselves towards the plaintiffs.
251. Second, while - for the reasons I have earlied outlined - it was understandable that the Court of Appeal approached the case on the basis of an inquiry as to whether there was proximity, foreseeability of loss, and whether it was just and reasonable to impose a duty of care in the circumstances, it would have been preferable to follow the method of analysis suggested in Morrissey and UCC as I have elaborated upon it in the course of this judgment. It was not right to start from the premiss that because the claim arose from the discharge by the defendants of public functions, a duty of care could only exceptionally arise, and it was not correct to conclude that simply because the dealings between the plaintiffs and the defendants took place within a regulated sector, that for that reason there could be no duty of care - although certainly the fact of the relevant statutory powers is pertinent to whether such a duty should be imposed notwithstanding those dealings. That question, however, could not be answered without assessing the actual dealings themselves.
252. Third, the suggestion that the availability of judicial review as a remedy for at least some of the defaults complained of by the plaintiff precluded the operation of the law of negligence vis-ŕ-vis decisions of the defendants and/or that the defendants could not assume a responsibility to exercise care in the discharge of its statutory powers was incorrect. Invalidity in public law, and actionability in the tort of negligence, are legally and conceptually distinct.
253. Fourth, I am not convinced of the correctness of the conclusion reached by Meenan J. as regards the question of causation. The claim as I have defined it relates to an identifiable period of time - from the decision of the plaintiffs to embark upon the investments in question, to the point at which they exited that part of the mussel industry. In looking at the question of whether, but for any failures by the defendants to rationally exercise their powers of allocation of mussel seed of the kinds contended for, the plaintiffs would have fished and thereafter farmed sufficient seed to recoup their investments, the court should be in a position to frame a counter-factual depending on what, if any, the negligent decisions were. In that regard, it should be borne in mind that it may be that the limitations on the issuing of new sea fishing boat licences during the relevant periods were such as to make it difficult for any new undertakings to enter the relevant market.
The issues that can be resolved in this appeal
254. Noting these comments regarding the decisions of the High Court and Court of Appeal, the essential issue presented by the proceedings as they are now sought to be agitated by the plaintiffs is whether, having regard to the dealings between the plaintiffs and the defendants, the latter assumed a responsibility to protect the plaintiffs from investment losses consequent upon mismanagement of the mussel fishery resource in connection with the allocation of that seed to those seeking it. I limit this to investment losses because the High Court has found based on the evidence heard by it that the plaintiffs had failed to establish a claim for loss of profits by reference to the evidence that was adduced before that Court, and indeed because I find it difficult to see how it could be plausibly contended that the defendants assumed any responsibility that would have entailed liability for losses of this kind. I limit the duty of care to the allocation process, because the trial judge has determined that a case in negligence was not made out in respect of the policing of the fishery, and I can see no basis for interfering with that conclusion.
255. The question of whether there was such a duty owed by the defendants must be placed in the very particular and unusual context in which it arose. The State defendants were involved in an activity that is removed from the core function of government: although the mussel seed resource is a State resource, it is not normally a function of the State to exploit those resources. That is an economic and commercial activity. The State can prevent such exploitation, it can leave it to private undertakings to exploit the resource subject to the State's general powers of regulation, or indeed the State can itself enter into the activity of such exploitation. Had the case simply involved the regulation of the manner in which the seas are exploited, it is hard to see that there would be any role for the private law of negligence (although of course the remedy of judicial review might remain available to a person with standing to challenge the manner in which that regulation was effected).
256. Here, however, the State (using that term in the collective sense in which it is employed throughout this judgement [26]) went further, crossing a line from straightforward regulation, to seeking to actively encourage private individuals to enter the market, to invest in it, and to provide grant aid where access to that market may otherwise have been beyond the financial capacity of some or all of the plaintiffs and/or may have been an economically unviable proposition for them. The decision to become involved in this way was, of course, itself entirely rational and equally obviously carried with it potential benefits for various sectors of the economy. In the broadest sense, the public interest stood to benefit from that initiative.
257. But the fact remains that the State became intertwined in the activity of exploitation of the mussel seed resource, and that its dealings with the plaintiffs arose for that reason and in that context. This carried with it potential benefits for the State and the public, as well as for the plaintiffs, but also resulted in the possibility of mutual responsibilities that will not usually arise when the State engages in other types of governmental activity. To that extent the argument advanced trenchantly by the plaintiffs that the overall dealings they had with the State were similar to a form of joint venture had some force: one party to that relationship had a resource but was not in a position to (or was disinclined to) exploit that resource, while the other had the expertise and willingness to do so. The dealings with the EU, the grant, the acquisition of the vessels, compliance by the defendants with the terms of the grant and subsequent licences, were all part of that venture and that entire context brought the State closer to (and thus towards a relationship of 'proximity' with) the plaintiffs than might ordinarily arise where the issue is one of liability for the exercise or non-exercise of statutory functions.
258. To this extent, it was wrong - as the Court of Appeal found - to start from the premise that the activities of the defendants in issue in this case were directed solely to the interests of the public in general and to the exclusion of the interests of any specific category of person. Instead, the facts of the case merit the conclusion that the defendants sought to advance the public interest and perform their functions accordingly, by encouraging the pursuit by a specific category of persons of their own commercial interests. Rather than the asserted private law duty and public law duty being in opposition to each other, they were in fact synergetic. When the legal principles I have outlined in this judgment are placed in that general context, the following conclusions follow.
259. First, in theory a duty of care of the nature alleged by the plaintiffs might in law arise from the dealings between the plaintiffs and the defendants around the making by the plaintiffs of their investments in the development of their mussel fishing and farming businesses between 2002 and 2004. That duty is one to exercise care in the manner in which the right to fish for mussel seed was allocated pursuant to statute in the period between the plaintiff's investment in the vessels that were the subject of grant aid and their exit from that industry. The fact that the duty arises from the exercise by the defendants of their statutory powers to allocate the seed does not in itself preclude the imposition of such a duty, if the conditions otherwise attached to a duty of care are met.
260. Second, what generates any such duty of care in this case, is the combination of the following: (a) the fact that the defendants actively solicited investment in the mussel seed sector, and that in relation to each plaintiff the undisputed evidence was that it was that engagement that resulted in their embarking on their investments, (b) the fact that the involvement of the plaintiffs in the sector was necessary to achieve the objective set by the defendants in the furtherance of the public interest, to develop the mussel seed sector and allied processing industry and to foster the economies of coastal communities, (c) the fact that the plaintiffs were, to the knowledge of the defendants, making significant personal investments the recoupment of which was dependant upon the availability to them of specified allocations of mussel seed, (d) the fact that it was open to the defendants in their engagement with the plaintiffs to disclaim any obligation to the plaintiffs to manage the resource in a particular way, or to provide them with specified allocations (and indeed that in the cases of all but the first and second named plaintiffs they may well have done so), (e) the fact that the essential contents of the duty of care correspond with the statutory obligation that has, in any event, been imposed on the defendants, and (f) that the economic losses for which the defendants can be made liable are only those arising from lost investments, not from loss of profits. Insofar as the foregoing involve factual assumptions, they are factual assumptions that based on the evidence before the High Court, were not disputed.
261. Third, in particular, if the conditions I have described in this judgment are met then there is, in this case, no reason why it is other than 'just and reasonable' to impose a duty of care. In particular, I have explained here why liability in negligence may only be imposed on the defendants if the plaintiffs establish that the decisions made by the defendants in connection with the allocation of the mussel seed resource were irrational. If there were no effective disclaimers, and subject to any case the defendants might choose to advance based upon the knowledge of the plaintiffs of the proposed arrangements with the Northern Irish authorities, it seems to me to be clear that by treating the plaintiffs as they did, the defendants assumed a duty to them that was commensurate with the duty imposed vis-ŕ-vis the public as a whole in connection with the process of allocation, that is, a duty to rationally exploit the mussel seed resource. That is the import of the statutory provisions I have cited earlier in this judgment. Or to put the matter differently, by treating with the plaintiffs as they did, the defendants created a position in which a failure on their part to comply with the duties imposed upon them by the legislation in question, gave the plaintiffs a right to claim damages that was enjoyed by no one else. The duty of care owed to the plaintiffs, and the duty imposed by the statute, as Laws LJ put it in Connor, marched together. The duty, to be clear, is a duty arising from decisions made as to the allocation of the resource from the point of the plaintiffs' investments to their exiting the market. The breaches of that duty in play are those specified to date by the plaintiffs: the question is whether a reasonable Minister would have allocated the resource during this period as he did having regard to those complaints.
262. Fourth, it bears repeating that the standard of care imposed by the law on the defendants equates to the requirements of reasonableness imposed by administrative law before the exercise of the discretion to allocate mussel seed could be found invalid. This means liability can only be imposed upon the defendants if the manner in which the mussel seed resource was allocated by them during the period the subject of complaint by the plaintiffs was irrational in the sense that it flew in the face of common sense and reason. The Minister may make decisions pursuant to those provisions to close the fishery, or not to allow anyone to exploit the resource. He may decide to ration the resource, or to favour particular applicants for allocations above others. But in reaching all of these decisions he must act rationally in the manner prescribed by the general principles of administrative law. If the plaintiffs cannot establish that he acted irrationally in this sense in the process of allocation for the reasons they say, then irrespective of any duty of care he may owe to them, he has not acted negligently.
263. Fifth, if that duty of care were found to so arise from such an assumption of responsibility, it is a duty not to cause to the plaintiffs the loss of the monies so invested or, to put it another way, to render them economically worse off than if they had never embarked upon that enterprise. If the dealings give rise to such a duty of care, it is a duty which on established principle is capable of capturing pure economic losses. That extended to any losses sustained on the acquisition of the vessels, or other losses directly arising from (and only from) that part of the plaintiffs' businesses that were the subject of their aquaculture and business plans. As I have observed in the course of this judgment it is unclear from the evidence whether the plaintiffs have suffered such losses when the amount of the grants received by them are taken into account but, for the reasons I have also explained, if they choose to assert such losses they should be permitted to do so.
Outstanding issues
264. This resolves some aspects of the duty of care issue, and it defines the precise - and limited - case the plaintiffs may advance in negligence against the Minister. It resolves in that connection, the question of the standard of care. However, it leaves a number of other matters that remain to be resolved. To be clear, these appear as follows:
(i) All of the foregoing assumes that there was no effective disclaimer of liability by the defendants. I have explained already why on the basis of the evidence as adduced in the High Court there was no such disclaimer in the case of the first and second named plaintiffs, but the efficacy of the disclaimers in the letters of grant offers to the other plaintiffs remains to be determined as a matter of fact and of law (including, to be clear, how those disclaimers impact on the duty of care alleged by the plaintiffs and whether they are such as to prevent any such duty from arising).
(ii) The High Court may also, should the defendants wish, be called upon to determine the extent to which the plaintiffs in fact knew or ought to have known before they committed themselves to their investments of the fact that access was being granted to Northern Ireland vessels and to the implications of this for their ability to recoup those investments (including, to be clear, how that knowledge impacts on the duty of care alleged by the plaintiffs).
(iii) It is necessary to determine what, if any, investment losses were incurred by some or all of the plaintiffs. Those losses, it must be stressed, are only those arising from those parts of their businesses that were within the contemplation of the grant aid and comprise the monies spent by the plaintiffs on that part of their business but not recouped. Clearly, there are significant issues as to whether some of the named plaintiffs could ever have sustained losses of this kind.
(iv) While this judgment determines the approach to the standard of care, the question of whether that standard was breached, obviously, must be separately decided. It follows from what I have said earlier that it will be necessary to determine whether either generally or at particular points in time, the manner in which mussel seed allocations were made was irrational in the sense in which I have explained that term having regard to the defects the plaintiffs allege in that process of allocation.
(v) It is moreover a matter for the plaintiffs to establish that had the defendants not allocated the mussel seed in the manner they contend was negligent, the losses alleged by them would not, as a matter of probability, have been sustained. In this regard, the plaintiffs can obviously only recover if they were in fact otherwise allowed by law to fish and farm the mussel seed to which, as they say, the alleged negligence of the defendants denied them access. Clearly, there are issues to be resolved between the parties or determined by the court as the case may be, as to whether all of the plaintiffs are entitled to maintain claims of this kind.
265. This appeal will, therefore, be allowed and the proceedings remitted to the High Court for determination in accordance with the foregoing.
Result: Allow and remit to the High Court
[1] References are to page numbers
[2] No submissions were made to this Court as to the allocation of losses as between the various plaintiffs - although the point was made in the course of oral submissions to the High Court that the losses alleged had been sustained only by some of the corporate plaintiffs. For ease of reference, in the course of this judgment I often refer to the plaintiffs collectively and without always distinguishing between either representations that might be said to have been made to one category of plaintiff but not another, to dealings as between the State defendants and some plaintiffs but not others, and to duties that might be enforceable only by particular plaintiffs.
[3] While the critical decisions as to the allocation of mussel seed and management of that resource are vested by law in the Minister, many of the dealings between the plaintiffs and 'the State' upon which reliance was placed in the course of the proceedings were actually with An Bord Iascaigh Mhara ('BIM'), a statutory corporation established by the provisions of the Sea Fisheries Act 1952. No point appears to have been taken that BIM (which was consistently described in the plaintiffs' submissions as an 'agent' of the Minister), was not a party to the case. Conversely, no specific acts or defaults appear to have ever been alleged against the second named defendant. It is in those circumstances that I refer often in the course of this judgment to 'the defendants' collectively when, in fact, it might be said I am dealing with many actions of BIM, and none of the second named defendant.
[4] There was a certain imprecision around this question: the Court of Appeal judgment (para. 17) records counsel as advising the Court that a boat owner could expect to obtain 40% of the cost of the vessel from the EU by way of grant administered by the State, with an additional 5% from the State, while in the course of the appeal it was suggested that the breakdown was 35% and 5% respectively. The difference is not material for present purposes, but for the sake of consistency I am assuming throughout this judgment that the latter is the correct figure.
[5] There was some confusion at the trial around the permissions granted to Northern Ireland operators. The plaintiffs contended that the allocations went to farms not to fishing boats. This was tentatively accepted by one witness from the Department in cross-examination, who described the arrangement as being that Northern Ireland vessels would be licensed by the relevant Government Department in that jurisdiction to move seed from Irish waters. Noting this position, I refer in the course of this judgment to permissions given to Northern Ireland vessels, or Northern Ireland fishermen in this sense, while noting the stress placed by the plaintiffs on the fact that it was the farms rather than vessels that obtained the actual allocations.
[6] Widely known as the Good Friday Agreement/ Belfast Agreement.
[7] The evidence in this regard was somewhat unclear. Mr. Barlow stated in his witness statement when he received his vessel on 16 November 2004 he received these allocations. However, in the plaintiffs' Chronology in the Book of Appeal was said that on 16 November 2004 the vessel was delivered and he applied for these allocations. It also states in the chronology that in 2004 he received an allocation of 240 tonnes. In the hearing transcript (Day 4 pg 116 and 127) he states that he received no allocation in 2005.
[8] While Lord Bridge in Caparo additionally referred to whether it was 'fair' to impose such a duty, and being unconvinced that this adds to the formula, I am retaining throughout the language used in Glencar itself.
[9] Lord Mance in Robinson used the language of 'established categories': liability for causing physical injury by positive act, and liability for economic loss falling within the assumption of responsibility described in Hedley Byrne. Outside those categories, he explained, 'the law will proceed incrementally, and all three stages of the Caparo analysis will be material' (at para. 83) (emphasis added).
[10] North Shore City Council v. Attorney General [2012] NZSC 49, [2012] 3 NZLR 341 at para. 157 per Blanchard J.
[11] See James Goudkamp 'A Revolution in Duty of Care?' (2015) 131 LQR 519 and Donal Nolan 'The Duty of Care after Robinson v. Chief Constable of West Yorkshire Police' in 'Questions of Liability: Essays on the Law of Tort' (2023) Bloomsbury Publishing 63-91.
[12] See in particular the decision of the High Court of Australia in Sullivan v. Moody (2001) 75 AJLR 1570 rejecting the Caparo analysis, but not without some subsequent disquiet Graham Barclay Oysters Pty Ltd. v. Ryan [2002] HCA 54 per Kirby J. at para. 237-238.
[13] See, in particular, Sandy Steele Omissions in Tort Law (Oxford University Press 2024) Ch. 4.
[14] Donal Nolan 'Assumption of Responsibility: Four Questions' (2019) 72 Current Legal Problems 123, 129.
[15] Philip Sales 'Pure economic loss and assumption of responsibilty' (2023) PN 112, 117.
[16] Donal Nolan 'Assumption of Responsibility: Four Questions' (2019) 72 CLP 123.
[17] Philip Sales 'Pure economic loss and assumption of responsibilty' (2023) PN 112, 124.
[18] That was the approach adopted by the Court of Appeal for England and Wales in Stagecoach East Midlands Trains Ltd. and ors. v. Secretary of State [2019] EWCA Civ 2259, in which the decision of the Court of Appeal to the contrary effect in Express Bus v. National Transport Agency ('Express Bus') [2018] IECA 236, [2019] 2 IR 680 was distinguished as arising in a legal context that was different from that in England. Whether that is so may depend on the reception in Ireland of Boddington v. British Transport Police [1999] 2 AC 143, the application of which in this jurisdiction has, since the decision in Express Bus, been left open (see DPP (Varley) v. Davitt [2023] IESC 17).
[19] The case was ultimately resolved on the basis of causation.
[20] This element was proposed by Lord Diplock in Dorset Yacht, and presented by Lord Wilberforce in Anns as the first of two preconditions to a claim in negligence of this kind (the second was that the act in question be 'operational' rather than 'policy' in nature) and perhaps most clearly rationalised and explained by Lord Browne-Wilkinson in X v. Bedfordshire County Council.
[21] Associated Provicinal Picture Houses Ltd. v. Wednesbury Corpn. [1948] 1 KB 223.
[22] Bolam v. Frieren Hospital Management Committee [1957] 1 WLR 582.
[23] Todd, 'Liability in Tort of Public Bodies' in Mullany and ors 'Torts Tomorrow: A Tribute to John Fleming' (Law Book Company, 1998) at p. 47.
[24] See s. 5X of the Western Australia Civil Liability Act 2002, which so provides in respect of claims for damages in respect of 'policy decisions', defined as 'a decision based substantially on financial, economic, political or social factors and constraints': s. 43A of the Civil Liability Act 2002 (New South Wales) and s. 39 of the Road Management Act 2004 (Victoria) are to similar effect.
[25] That Dunne J. agreed with both judgments is clear from the Court's own record of the decision, and this is reflected in the Courts Service website: the official Law Report suggests that her agreement was only with the judgment of MacMenamin J.
[26] See fn 2.