The Supreme Court has allowed an appeal by a group of fishermen who argued that the State had a duty of care in their powers when granting access to mussel seed fishing zones in the State after Northern Ireland-registered vessels “entirely collapsed” the size of the catch 20 years ago.
The plaintiffs submitted to the Supreme Court that between 2002 and 2004 each of them invested “heavily” – around €14.25 million in total – in four vessels and equipment with the intention of harvesting mussels with, they claimed, “the active encouragement of the State”, who controlled access to the mussel seed stock in Irish territorial waters.
The case was taken by Paul Barlow of Woodstown Bay Shellfish, Dunmore East, Co Waterford, Michael Crowley of Riverbank Mussels, Killinick, Co Wexford, Gerard Kelly of Fresco Seafoods and Tardrum Fisheries, Greencastle, Co Donegal, and Alex McCarthy of Halcome Merchants, Kildimo, Co Limerick.
The case was brought against the Minister for Communications, Marine and Natural Resources, the Registrar General of Fishing Boards and the State.
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In 2016, the Supreme Court found that Northern Ireland-registered boats had been unlawfully allowed by the State to harvest seed in the Irish waters.
By the time the plaintiffs’ vessels arrived and were ready for use in 2005, the yield from the mussel seed fishery areas had significantly reduced and “collapsed entirely” in 2006.
In its judgment on Friday, the Supreme Court noted that in 2016 it held that the grant of permission to Northern Ireland vessels to fish mussel seed in the State without the authority of an Act of the Oireachtas was contrary to Article 10 of the Constitution.
After the 2016 judgment, the fishermen claimed damages in the High Court but after a full trial lost the case.
They had claimed a breach of statutory and constitutional duty had been committed, as had a breach of their constitutional rights, “unlawful delegation”, a breach of EU law and, finally, negligence.
They then appealed the High Court decision to the Court of Appeal on the more restricted grounds of negligence and for breach of constitutional rights but their appeal was dismissed in 2022.
The plaintiffs then appealed that decision to the Supreme Court over whether the State owed a duty of care in the exercise of their statutory powers governing the allocation of access to mussel seed, to undertakings engaged in commercial activities that are dependent on the allocation.
In allowing the appeal on Friday, the Supreme Court sent the matter back to the High Court for decisions on whether there has been an effective disclaimer of liability by the defendants, whether the plaintiffs were aware before investing that access had been granted to Northern vessels, whether investment losses were incurred by the plaintiffs, and whether the defendants acted irrationally or were negligent in allocating the access.
“The appeal is allowed and the Court of Appeal order [from 2022] dismissing the proceedings is set aside. This matter is remitted to the High Court for further determination,” said presiding judge Mr Justice Brian Murray in a unanimous judgment.
The original High Court proceedings in 2019 rejected all claims by the fishermen, with Mr Justice Charles Meenan saying the law prevented any remedy being provided to them.
However, Mr Justice Meenan said the fact remained that for many years the State permitted Northern Ireland-registered vessels to fish for mussel seed unlawfully “to the detriment” of the industry.
“Thus it cannot be said the plaintiffs [the fishermen] were well served by the State,” he said.
In the 2016 Supreme Court decision, it was found Northern mussel vessels fishing in Irish waters was unlawful because the harvesting of mussel seed constituted the exploitation of a natural resource belonging to the State.
Northern mussel vessels had enjoyed this privilege under a 1965 cross-Border co-operation deal between agricultural and fishery authorities in Dublin and Belfast called the Voisinage Agreement.
However, the plaintiffs claimed that as a result of “aggressive” fishing by the Northern vessels and because of being given fishing allocations that were too small, their businesses were not viable. They claimed this resulted in significant losses following big investment which had been encouraged by the State.
Mussel fishing involves special vessels dredging the sea for mussel seed which is then transplanted to aquaculture sites until the seeds mature into full-grown mussels. One vessel alone in the case cost €3.45 million.
