SEA-FISHING BOAT LICENCE APPEAL

In the matter of the MFV “Rachel D” SO976 and the Lost at Sea Application for the MFV “Kreis An Avel” SO842

Thomas Doyle and Thomas Byrne Appellants

and

The Licensing Authority in Relation to Sea Fishing BoatsRespondents

Appeal

This appeal was heard by way of oral hearing on 24 October 2011 in the Harbour Authority Offices, Killybegs, Co. Donegal.

The Appellants were represented by Darren Lehane B.L. instructed by D.P. Barry, Solicitors of Killybegs and the Respondents were represented by John Kinsella, legal advisor to the Licensing Authority.

Documents

Appeal papers

Correspondence between this Appeal Officer and the parties

File as furnished by the Licensing Authority

Submissions on behalf of the Appellant

Submissions on behalf of the Respondent

Documents furnished during the appeal hearing

Lost at Sea Scheme Criteria

Facts

The following facts are common case

The fishing vessel, the MFV “Kreis An Avel” SO842 in was lost at sea in January1988. The Lost at Sea Scheme wasintroduced in June 2001. This scheme allowed capacityof a vessel that had been lost at sea to be accepted by the Licensing Authority as replacement capacity on another vessel providing that certain conditions were met. Two of these conditions, and the two which are pertinent to this case, is firstly that the replacement capacity could not be sold and secondly that the new vessel to which the replacement capacity attached must be owned and skippered by the Applicant (that being the person who owned the original capacity on the vessel that was lost).

The Appellants claim the following:

  1. That prior to the Lost at Sea Scheme being introduced, the Appellants initiated Judicial Review proceedings against the Department of Communications Marine and Natural Resources in 1999, to be brought within the ambit of the said Scheme. Prior to then, theywereprevented from using the capacity of the MFV “Kreis an Avel” as replacement capacity.
  1. That at a meeting inKillybegs in 2000 they received a verbal assurance from the then Minister for Fisheries, Frank Fahey T.D. who assured them with the following words: “you will get your licence, the same as everyone else in the country and I am the Minister and I will sort it out. You be able to fish wherever you wish.” From these words they understood that they would get a “clean licence,”which they understood to be a licence that had no conditions attaching to it.
  1. That they received a letter from the Department in March 2003 which stated that they were permitted them to use a portion of the capacity that Mr. Doyle had owned on the lost vessel MFV “Kreis An Avel”to be used as replacement capacity and that this capacity could be used in order to register jointly with the other Appellant, Mr Byrne, on a new vessel.
  1. On foot of that letter they formed the view that the conditions of the Lost at Sea Scheme were not being strictly enforced because the Lost at Sea Scheme did not permit capacity to be shared or transferred and yet the Department was permitting the joint registration by two owners on a vessel which replacement capacity was separately owned. They understood that in doing so the Department was permitting an amalgamation of the replacement capacities onto the one new vessel.
  1. As a result the Appellants believed that the condition, that the capacity be owned only by an Applicant and that it could only be used by that Applicant or an immediate family relative, would also not be enforced.They formed the belief that the Minster had “fixed it” for them and that any reference to a Lost at Sea Scheme in correspondence received from the Department was merely the way the Department were dealing with it officially in order to allow the Appellants have an unencumbered licence that Minister Fahey had assured would be theirs.
  1. As a result of this belief they discontinued the Judicial Review proceedings against the Department against the advice of their then solicitor, Ms. Darina McFadden. From this point, it is submitted the Appellants had a “legitimate expectation” that they would receive a licence unencumbered by conditions
  1. That the fact that the licence when it was receiveddid not refer to any conditions set out in the Lost at Sea Scheme copper fastened the Appellant’s belief that the conditions of the Scheme were not being applied to them.
  1. That because all the licences issued to them in respect of the MFV “Rachel D” until 2009repeatedly did not refer to any Lost at Sea Scheme conditions allowed them persist in this belief that the conditions of the scheme did not attach to them.As such their legitimate expectation was permitted to continue for five years.
  1. That the fact thatthe 2009 licence imposed a condition theretofore not applied is this matter that is being appealed by the Appellants.
  1. The relief that the Appellant are seeking is that the conditions attaching to the licence be lifted so that the licence is unencumbered and is therefore free o be sold or otherwise disposed of. The circumstances that require this are that as a result of ill health, Mr. Doyle is incapable of fishing the boat himself and as he has no immediate relative who can fish the vessel, the large investment made on foot of their belief that the licence was unencumbered have been entirely wasted.

The Respondent claims the following:

  1. That the Lost at Sea Scheme, when introduced in June 2001 had conditions which attached to every licence and each of the licences that were issued under this scheme were subject to these conditions. There was no discretion available to the Respondents, under the scheme to dis-apply one or any of the conditions of the scheme
  1. That they were strangers to the claim made by the Appellants namely that Minister Fahey met them in 2000 in Killybegs and gave them assurances that were claimed. As such they could not deny or accept whether or not this occurred.
  1. They denied that the Appellants were allowed to believe at any stage that they would receive a licence unencumbered by the Lost At Sea Scheme conditions. On the contrary, the Respondents point to several letters, issued in 2003, which specifically state the following averments:
  • that the replacement capacity granted to Mr Doyle from the lost boat, the MFV Kreis An Avel, which was being used towards the licensing of the MFV Rachel D could not be sold or disposed of
  • that the MRV Rachel D must be skippered by Mr. Doyle or an immediate relative

[see letters dated 7 March 2003 from James Moloney of Sea Fisheries Administration Division of the Department of Communications, Marine and Natural Resources and the more detailed letter of 5 December 2003 from James Moloney, Deputy Registrar General of Fishing Boats, Department of Communications, Marine and Natural Resources]

  1. That the original application for replacement capacity for vessels that were lost at sea, dated 11 July 2001, which was signed by both Appellants,contains the following declaration:
  • I declare that all the particulars given above are to the best of my knowledge true and correct. In understand that in the event of my application for replacement capacity being approved:

(i)such replacement capacity will be used for the purpose of introducing a replacement for the lost vessel

(ii)the new vessel must be owned and skippered by me, or by one of my immediate relations

(iii)any capacity from the lost vessel may not be sold or otherwise disposed of.

  1. That, at the time the Judicial Review Proceedings were withdrawn in 2003, no representation were or had been made to the Appellants that the above conditions would not be enforced.
  1. That they do not accept the claim that the licence that was offered was free of the conditions merely because the conditions did not appear on the face of the licence. They say that the conditions were clearly set out in the 2003 correspondence and that the Appellants had full knowledge of the conditions from this correspondence
  1. That at no stage prior to the hearing of this Appeal was it claimed by the Appellants that Minister Fahey had evermet them or made any personal assurances to them.
  1. They deny that the repeated references to the licence conditions in correspondence were merely “for show” and they deny that it was “a fudge” by the Department to get the Appellants a licence free of conditions
  1. They say that this Appeal hearing revealed a misunderstanding at the heart of the case; namely the belief by the Appellant that because they were permitted to jointly register the MRV “Rachel D” meant that Mr Byrne’s replacement capacity and Mr. Doyle’s replacement capacity were being amalgamated.

Pascal Hayes, Registrar General of the Licensing Authority gave evidence on this point. He stated that while a vessel could be jointly owned, the replacement capacities attached to each owner separately and therefore, to each owner of capacity, separate rules might apply, depending on how the capacity was acquired. In this case the replacement capacity acquired by Mr. Doyle came from replacement capacity that was granted to him under the Lost at Sea Scheme and the conditions on his licence to fish were limited by the conditions that attached to that scheme. He stated that merely because they were joint owners of a vessel and were joint holders of a licence did not mean that the capacity became merged or amalgamated.As evidence of this he referred to two documents:

(a)the licence offer which clearly sets out that that only portion of the capacity that may be sold or disposed of is the balance of the replacement capacity, that is, that which was not transferred under the Lost at Sea Scheme and secondly

(b)the original declaration on the application for replacement capacity for vessels lost at sea (July 2001) specifically refers to the fact that it is the capacity and not the licence that may not be sold or otherwise disposed of.

  1. In any event, the Respondents say that even if the Appellants did form a belief that the conditions were not being applied to them, which is denied, that this belief was not a reasonably held belief as there was no express representation made at any stage (even if the Minister did say what he is claimed to have said) that the conditions would not be applied to them.

Decision

The Appeal fails

Reason for the Decision

Jurisdiction

This appeal is limited to jurisdiction granted to an Appeals Officer under section 6 (3) and (4) of theFisheries Amendment Act 2003

For clarity purposes I will set this out:

Section 6 (3)

An Appeals Officer shall be independent in the exercise of his or her functions under this Act subject to—

(a) the law for the time being in force in relation to sea-fishing boat licensing, including, in particular, the legal obligations of the State arising under any law of an institution of the European Communities or other international agreement which is binding on the State, and

(b) such policy directives in relation to sea-fishing boat licensing as the Minister may give in writing from time to time.

Section 6 (4)

A policy directive given under subsection 3(b) may require certain prohibitions or conditions to be imposed in relation to sea-fishing for the purposes of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species.

Firstly I would like to reiterate an observation made in another appeal arising from the Lost at Sea Scheme.No submission has been raised in this appeal as to whether the “Lost at Sea Scheme” has or does not have statutory footing. Section 3(2) of Fisheries Amendment Act 2003 stipulates that the “law for the time being in force includes policy directives as the Minister may give from time to time.” However what is unclear is whether this extends also to governmentschemes and particularly the “Lost at Sea Scheme”. The legal status of the “Lost at Sea Scheme” is unclear. However, as this point was not raised by the Appellant I have assumed that this is conceded (perhaps indeed that is because the Appellant is seeking to rely on the scheme). For the purposes therefore of this decision, the “Lost at Sea Scheme” is also deemed to be part of the “law for the time beingin force” in accordance with S.6 (3) a of the 2003 Act.

Secondly I find that it is open to an Appeals Officer, if the circumstances permit, to make a finding that a right to a licence may be acquired on Appeal by an Appellantif, he /she can show that as a result of representations made or, as a result of the conduct of the Respondent, an Appellant has been led to rely on these representations to reasonably believe that he will receive a licence. I find that this is the case even if on a strict interpretation of the policy directives, no licence has issued. As such,a claim for legitimate expectation may be raised in an appeal. The present claimfor a licence on the grounds of legitimate expectation fails, not for want of jurisdiction, as claimed by the Respondent but rather the failure to meet the test at set out in Glencar Exploration plc. Mayo County Council (No. 2) [2002] 1 I.R. 84.

Decision in relation to the claim of legitimate expectation

I find that in the absence of evidence to the contrary that, on the balance of probabilities, the meeting between Minister Fahey and the Appellants did take place as claimed and that what was said at that meeting did occur.

However I find that the representations made by the Minister, even if accepted at their height, do not amount to what the Appellants say was granted to them on that day, namely, a clear promise of a fishing licence with no conditions attaching. As a result I find that the belief of the Appellants,that they would get a licence free of conditions, is not a reasonably held belief.

It is significant that the evidence of both Mr. Byrne and Ms. Doyle was that use of the phrase “clean licence” was not actually said by the Minister but rather that was what was understood by both.

I find that neitherthe phrase “ You will get your licence like everybody else” or

“ You will have the right to fish like anyone else in the country” are inconsistent with what was ultimately granted; namely a right for that specific person to fish. “I will sort it, I am the Minister etc” again are not indications of any specific guarantee. The words spoken fall short of what the Appellants understood the Minister to mean by those words, namely a licence free of any conditions.

Indeed,Mr Byrne in evidence, accepted that the words spoken by the Minister were not proof of anything and that they needed an offer in writing to confirm what had been promised. The proof of this is that the Appellants did not discontinue their Judicial Review proceedings at this stage. It was not until three years after the conversation with the Minister that the Appellants discontinued their legal proceedings. The evidence of Mr. Byrne was that it was not until they received the letters from the Department in February and March 2003 that they thought they had got the “clean licence” that they had been promised.

And yet turning to the letters of 24 February and 7 March 2003I find it difficult to see how the Appellants believed that this was the guarantee of what they believed that the Minister had offered them. These letters indicate that the offer of the licence was, in fact, conditional on the following grounds:

TheMFV “Rachel D” would be registered under a joint licence in both Appellants names and the following conditions would apply;

  • the terms of the Lost at Sea Scheme were being applied,
  • the replacement capacity of Mr Byrne was separate to Mr. Doyle,
  • the replacement capacity of Mr. Doyle was granted to him under the Lost at Sea Scheme whereas the replacement capacity of Mr. Byrnewas being contributed separately,
  • the replacement capacity of Mr. Doyle could not be sold by him or otherwise be disposed of – under the terms of the Lost at Sea Scheme
  • The new vessel must be skippered by Mr Doyleor an immediate relative

The reason the Appellants say that they believed that they had an unconditional licence, despite the contents of these letters, arose froman over-riding belief that the Minister had guaranteed them an unconditional licence during his conversation with them on Killybegs pier in 2000. And they believed this, even if all the correspondence indicated something else, something less, was being actually being given.

I find that for the Appellants to believe that all references to the Lost at Sea Scheme in the letters were a “fudge” by the Department and would not really be applied, is not a reasonable belief. It is only regrettable that this matter was not clarified prior to the Appellants discontinuing their legal proceedings, in the face of, now very understandable,opposition from their then solicitor.In fact, given the evidence, I find it surprising that the Appellants abandoned their case until such time as they had receivedaletter granting them alicence offer which made it clear that no conditions would attach to the licence, something that never occurred.