Atlantean Ltd (applicant) v Minster for Communications (respondent): Judicial review - Fisheries - Decision to reduce applicant's fishing quota on basis of allegation of illegal landings of fish - Process by which decisions affecting livelihood made by state bodies - Right to know case being alleged against person whose livelihood so threatened - Whether respondent coming to proper conclusion that applicant involved in undeclared landings of fish - Whether breach of constitutional rights - Whether fair procedures applied - Jurisdiction to re-allocate fishing quota to individual boats - Sea Fisheries and Maritime Jurisdiction Act, 2006.
The High Court (before Mr. Justice Clarke); judgment delivered July 12th, 2007.
A decision which had a significant effect on a person's business has to comply with the rules of constitutional justice. Failing to afford a person some reasonable opportunity to know the basis of allegations made against him, so as to pass the burden on to that person to make a more detailed response to such allegations, would breach those principles of constitutional justice. The respondent's authority to make allocations of quota to individual boats stems from the provisions of the 2006 Act. There is no absolute entitlement on the part of any boat to the continuance of any particular level of quota. The respondent does not have to place reliance on EU Regulations for his decision and is entitled to take into account the fact that the national quota is going to be reduced in allocating quota. The respondent is, in principle, entitled to calculate the quota which he allocates to individual vessels in a manner which has proper regard to the actions of individual vessels which are the subject of a sustainable finding of having made undeclared landings.
The High Court so held in quashing the respondent's decisions to reduce the applicant's allocation of the national quota to fish mackerel based on allegations that the applicant had made undeclared landings of fish in the previous years.
Gerard Hogan SC and Oisin Collins BL for the applicant; John Finlay SC, Anthony M.Collins SC and Paul McGarry BL for the respondent.
Mr Justice Clarke stated at the outset that the applicant owned a fishing vessel which had benefited from a mackerel fishing quota and who wished to challenge, by way of judicial review, the decisions of the respondent which had the effect of reducing the quota allocated to it. The background to the respondent's decisions stemmed from the apparent discovery by the relevant authorities in Scotland of undeclared landings of mackerel. Those undeclared landings were brought to the attention of the relevant EU authorities. It was contended that Irish boats had, amongst others, been involved in the relevant undeclared landings. As a result, and in purported reliance on the relevant EU legislative regime, the competent authority within the EU (the Commission) had imposed a reduction in the mackerel quota applicable to Ireland. That reduction was implemented by two separate Commission Regulations. Although the applicant in the proceedings sought to challenge the validity of at least certain aspects of the overall quota reduction which Ireland had suffered, the principal focus of the applicant's claim, as against the respondent, concerned the way in which the respondent responded to the reduction in Ireland's mackerel quota. The respondent had come to the view that the applicant had been responsible for a significant amount of the undeclared landings in Scotland and that the burden of the reduced quotas available to Ireland should be borne by the applicant. Accordingly, he had written to the applicant informing it that a decision had been taken not to grant any authorisation to fish for mackerel in autumn 2006 and granting a reduced quota for spring 2007. It had also indicated that further deductions would be made to the applicant's quota in the years 2008 to 2012.
Mr Justice Clarke said that the applicant claimed that the manner in which the respondent came to the conclusion that the applicant had been guilty of undeclared landings in Scotland was in breach of the principles of constitutional justice. The applicant also raised technical arguments concerning the reduction in the Irish quota by Commission Regulation 147/2007. The applicant also claimed that some of the respondent's decisions were ultra vires as they predated the Commission regulations. The respondent claimed, inter alia, that the application for judicial review was out of time.
Reviewing the facts, Mr. Justice Clarke stated that, arising from meetings between the respondent, the relevant Scottish authorities and the European Commission, the respondent was provided with details of the unauthorised landings in Scotland. Two schedules were produced to the respondent detailing the alleged involvement of the applicant in those landings. In each case a specific date was given for each alleged landing and a detailed account of amount of tonnes involved. In the meantime, the Commission reduced the quota available to Ireland for 2006 through Regulation (EC) No. 742/2006 as recompense for the alleged overfishing during 2005. As a result, the respondent wrote to the applicant referring to the volume of undeclared mackerel landings, setting out a breakdown by date and amount and stating that it was proposed to withdraw the mackerel authorisation for the applicant for the remainder of 2006 and offer reduced quotas for subsequent years. In response, the applicant wrote to the respondent stating that it should have had the opportunity of knowing what was being alleged against it and requesting sight of documents detailing the basis of the allegations. Subsequent to the decision being made by the respondent, the applicant again complained that it had not been afforded a real opportunity to meet the case against it.
Mr Justice Clarke said that the respondent's decision that the applicant was responsible for undeclared landings of fish was a decision which had a significant effect on its business and was, therefore, the type of decision which the respondent was obliged to comply with the rules of constitutional justice. As such, the applicant was entitled to know the case against it. In that context, Mr Justice Clarke found it relevant that no additional information had been furnished to the applicant to substantiate the allegations or put forward any other basis for the allegations save that the schedules represented the particulars reported to the Irish authorities.
Mr. Justice Clarke referred to the case of Mooney v. An Post 4 IR 288. Whilst that case was concerned with a purported dismissal from employment, the general principles in the opinion of Mr Justice Clarke were applicant to the instant case. In the case of Mooney Barrington, J. indicated the following approach:-
"The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with all the circumstances of the case . . . the employee is entitled to the benefit of fail procedures but what these demand will depend upon the terms of his employment and circumstances surrounding his proposed dismissal. The minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to and make submissions."
Mr Justice Clarke said that the court had, in the Mooney case gone on to consider the specific circumstances of the case before it. The plaintiff was a postman which the court found involved a position of trust. It was clear also that An Post had received complaints which caused it to have misgivings about the integrity of the postal service arising from alleged conduct on the part of the plaintiff. In those circumstances Barrington J. went on to hold that:-
"It appears to me that the defendant was entitled to expect a candid response from the plaintiff when they put these misgiving to him and that it was not sufficient for the plaintiff simply to deny responsibility and to say that he could not 'remember back to yesterday week'."
Mr Justice Clarke said that the jurisprudence which stemmed from employment law was applicable to a regime such as fishing authorisations. The purpose behind the quota system was to preserve fish stocks generally and to ensure an equitable distribution of the entitlement to fish. Any fishing boat which received an authorisation had, therefore, a degree of trust imposed on it and that it would not engage in undeclared landings. As a matter of principle, the applicant should be in a similar position to an employee in an office of trust and was not entitled to simply deny any wrongdoing without proffering any explanation such as would be acceptable in a criminal trial. Moreover, it could be necessary to afford some latitude to the competent authorities who were charged with implementing the EU quota regime when faced with a situation such as the present and the respondent was entitled to seek to impose the burden of the reductions in quota on the offenders. However, any latitude that might be required to be given to the respondent was dependant on the respondent being able to establish that it had made reasonable efforts to provide as much information and evidence as could be provided, so as to enable the applicant to have a reasonable opportunity to answer the case against it. It was, at a minimum, incumbent on the respondent to seek from the Scottish authorities the basis upon which they had reached the conclusions reported to the Irish officials. It was not apparent to Mr. Justice Clarke that there should have been any difficulty in the respondent seeking and obtaining such information. Without any information as to the basis upon which the Scottish authorities had formed the view that the applicant was guilty of unlawful landings, it was virtually impossible for the applicant to answer the allegations. In all the circumstances Mr. Justice Clarke was satisfied that the respondent was in breach of the principles of constitutional justice by failing to afford the applicant some reasonable opportunity to know the basis of the allegations against it, so as to pass the burden on to the applicant to make a more detailed response.
Dealing with the applicant's complaint that the respondent's decision in January 2007, to reduce the quota was invalid because it derived from Commission Regulation (EC) 147/2007, which was not in force at the time of the decision, Mr. Justice Clarke said that the respondent's authority to make allocations of quota to individual boats stemmed from the provisions of the 2006 Act and that there was no absolute entitlement on the part of any boat to the continuance of any particular level of quota. The respondent did not have to place reliance on the Regulations for his decision and was entitled to take into account the fact that the national quota was going to be reduced in allocating quota and was, in principle, entitled to calculate the quota which he allocated to individual vessels in a manner which had proper regard to the actions of individual vessels which were the subject of a sustainable finding of having made undeclared landings.
In relation to the applicant's other argument that the Commission's action in reducing the national quota was invalid, having regard to article 5(1) of Council Regulation (EC) No. 874/1996, Mr. Justice Clarke pointed out that the only courts which had competence to determine, as a matter of EU law, the validity of a measure of community institution were the EU courts and not the national courts.
Accordingly, Mr Justice Clarke quashed the respondent's decisions but stated that, as the entitlements of other vessels were involved, the respondent was entitled to seek to raise again the issue of the applicant's undeclared landings provided that, in so doing, he complied with the principles of constitutional justice in the manner in which was identified earlier in the judgment. Any question of damages had, necessarily, to await a final determination by the respondent of the applicant's quota entitlements and Mr. Justice Clarke therefore adjourned the question of damages generally with liberty to re-enter.
Solicitors for the applicant are Casey & Co. (Bandon, Co Cork); solicitors for the respondent: chief state solicitor.