Supreme Court dismisses appeal where applicant failed to prove detrimental reliance on Minister's letter regarding vessel tonnage.

THE SUPREME COURT

71/1999

Keane, C.J.

Denham, J.

Murphy, J.

Geoghegan, J.

Fennelly, J.

BETWEEN

CARL DALY

APPLICANT

and

MINISTER FOR THE MARINE, IRELAND & THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Fennelly J. delivered the 4th day of October, 2001

Cases concerning the disappointment of legitimate expectations have formed part of the regular diet of the courts in judicial

review matters since at least the decision of the Supreme Court in Webb v Ireland [1988] I.R. 353. ("Webb") The law has not

been comprehensively reviewed in this Court, though some remarks about it are to be found in the recent judgments in Glencar

v Mayo County Council (unreported judgment of 19th July 2001), where essentially it was decided on the facts that no

recognisable legitimate expectation had been established.

Similarly, in the present case, the applicant, as the holder of a sea fishery licence, failed in his application for judicial review of

a decision by the first named respondent ("the Minister"), to refuse him the right to use the tonnage of his vessel on de-

registration as replacement capacity so as to facilitate the entry of another vessel into the fishing fleet. The learned trial judge,

O’Sullivan J, held that the applicant did not satisfy the threshold requirement of being able to point to a legitimate, in the sense

of a reasonably entertained, expectation that he would receive this benefit at the hands of the Minister.

The Statutory Background

Before recounting the relevant facts, I will advert to the few comparatively simple surrounding legal provisions, which are fully

set out in the judgment of O’Sullivan J.

Sea fishing is governed by the Fisheries Acts and registration of boats is governed by the Merchant Shipping Acts.

The Minister is empowered to license boats, registered under the Merchant Shipping Acts, for sea fishing, by 222B of the

Fisheries (Consolidation) Act, 1959 inserted by section 2 of the Fisheries (Amendment) Act, 1983. The Minister may allow or

refuse an application for a license and may impose terms and conditions on licenses he grants. He may also make regulations

exempting classes of boats from licensing. However, it was (at the relevant time) an offence, unless exempt, to use an

unlicensed sea-fishing boat for sea-fishing.

The applicant’s boat, the "Angela Madeleine", being under 65' in length, was exempt from licensing pursuant to the Licensing of

Sea-fishing Boats (Exemption) Regulation of 17th August 1983 (SI No 245 of 1983). This regulation was revoked by the

Licensing of Sea-fishing Boats (Exemption) (Revocation) Regulations 1994 (SI No 444 1994) with effect from 1st January 1995

to comply with EC Regulation Council Regulation 3690/93. I will return to this issue at a later stage.

Despite this exemption, the applicant had to license his boat. In order for Bord Iascaigh Mhara (BIM) to be able to register a

mortgage to secure their loan made to the applicant on the boat, the boat had to be registered. Section 8 of the Fisheries

(Amendment) Act, 1983 required that, to be registered, a boat had to have a sea-fishing license.

The Facts

The applicant is a fisherman and mussel farmer and owner of a 35 foot sea-fishing boat, the “Angela Madeleine.” He works from

Kilmakillogue Harbour, Lauragh, Killarney. He had his boat built in 1991 by Dingle Boats Teoranta, with the benefit of a loan and

grant from BIM as well as a grant from European Community funds (FEOGA).

For an appreciation of the applicant’s complaint it is necessary to explain the policy background to the Minister’s refusal. It is an

amalgam of national and European Community policies. It is notorious that Community fish stocks are under more or less

constant threat from over-fishing. Community policies include fish quotas and, what is relevant to this case, the reduction of

fishing capacity. The long term objective is to achieve a balance between fishing effect and available stocks. Commission

Decision 88/142/EEC of 11 December 1987 (modified on 23 December 1988) required Ireland to significantly reduce its fishing

fleet in stages up to 1991. Fleet tonnage was to be cut from 58,845 tonnes to 43,941 tonnes (a 25% reduction). In August

1989, the Minister set up a review committee to examine licensing policy and to recommend measures for the control of the

fleet in line with the State’s obligations.

As it happens, the applicant made his first application for a license under section 222B, quoted above, on 13th March 1990. The

vessel was not specified as it had not yet been built, but under the heading, “Methods of Fishing”, he stated : “mussel farming

by long line system & potting.” Under “species in order of priority,” he filled in: “mussels, crab, lobster and shrimp.” In his

accompanying letter he said that he would be “principally engaged in mussel harvesting,” but that he intended to “go potting

for crab, lobster and shrimp when mussels are out of season.” The Minister wrote on 16th March stating that he had

“suspended consideration of all sea fishing boat license applications” and that the application would be considered when a

revised policy was in place, based on consideration of the report of a Review Committee.

In May 1990, upon consideration of the report of the committee, the Minister adopted a 100% replacement policy in respect of

new entrants to the fleet. In order to license a new vessel, a tonnage equivalent to that of the new vessel would have to be

withdrawn from the register. In practical terms, an applicant seeking a new sea fishing boat license would have to acquire

vessels or capacity which are entered on the sea fishing boat register of capacity at least equivalent to that of the proposed

new vessel. However, in view of Community regulations, aquaculture vessels and vessels engaged exclusively in bivalve fishing

were exempt from this requirement.

To the extent that the applicant’s application included crabs and lobster, he would have been required to show replacement of

equivalent tonnage. On 6th June 1990, the Minister wrote to the applicant stating that “preference would be given to

applicants who have proposed tonnage replacement” and that “applicants will have to demonstrate that they intend to

remove a significant level of active tonnage from the Fishing Boat Register to facilitate the entry of new entrants.” The letter

went on to ask “whether there [was] a replacement element associated with his application” and asked the applicant to

furnish details. The applicant replied on 25th June 1990, furnishing an amount of detail. His letter contains the following:

- “The vessel will not be fishing for quota species of fish.”

- “For the six month mussel season the boat will be harvesting my mussels and the mussels of other members of the

Kenmare Bay Aquaculture Co-Op.”

- “I cannot afford to leave the boat idle for five months of the year. I intend to pot for crab during the summer

months.”

- “in answer to your question “is replacement element associated with your application,” the answer is no.”

On 4th February 1991, when the launching of the boat was imminent, the applicant wrote as follows to the Minister :

“I wish to have my new 38’ mussel harvesting vessel being built by Dingle Boats Teo licenced and registered. The boat is

due to be launched in March 1991.

The total cost of the boat is £71,400. In addition to personal finance the boat is being funded by FEOGA grant £22,640,

BIM grant £13,420, BIM loan £30,270. The loan repayments (approximately £6,000 per annum) and boat upkeep

(approximately £3,000 per annum) will be met from my mussel sales income and also contract mussel harvesting. My

mussel sales January 1990/February 1991 were 112 tonnes @ £390 per tonne. The local mussel production now at 600

tonnes per annum increasing to 1000 tonnes in 1992 offers a considerable amount of contract work.

The boat will be used exclusively for mariculture. I am confident that the mussel industry is now viable enough to

support this investment.

Please find enclosed supporting documents.”

The Minister replied on 26th April to the effect that he was prepared, in principle, to offer a license but specified a number of

conditions, particularly, that which read: “the tonnage in question is to be used for aquaculture purposes only and you will not

be allowed dispose of the tonnage for general purposes.” O’Sullivan J. explains that the terms “mariculture” and “aquaculture”

are interchangeable: they relate to mussel fishing and fishing for “bi-valve molluscs” (clams, scallops, razor clams), a sector

also denoted by the word “specific.” The applicant was informed also that he had to send written acceptance of the offer

within four weeks and that if it was not taken up any further request for a license would be considered as a new application and

subject to whatever policy criteria might then be in force. The applicant wrote in reply on 1st May 1991:

“I was very happy to receive your letter dated 26th April 1991 informing me that a Sea Fishing Boat Licence would be

offered to me subject to the conditions listed in your letter.

I agree to comply with these conditions. Thank you for your assistance.”

The applicant was informed by the Department of the Marine of his port number and letters, which must be displayed. At the

end of May, the boat was launched and he commenced to fish even before the license was issued .

The license duly issued. It is dated 28th August, and operated only for the period from 26th August to 30th November 1991.

This was because the sole purpose of the license was to enable the boat to be registered for the reasons already given. It

contained no condition of the sort that had been notified regarding use of the boat for aquaculture nor, indeed any condition

concerning the type of fishing which was permitted, or replacement tonnage.

The applicant claimed that the absence from the license of any such condition meant that the conditional offer of 26th April,

restricting fishing to aquaculture, had lapsed prior to the issue of the license.

At first, the applicant fished for crab and lobster, with pots, and fished for mussels only in the winter. He continued fishing with

pots from 1991 to 1993, selling the catch to processing factories and French buyers. He did not commence fishing for demersal

species of white fish (cod, haddock, hake and whiting) until 1994. However, the applicant says that the Department of the

Marine include fishing with pots in the demersal sector. What is more, the officers of the Department made no complaint about

the type of fishing he was engaged in and issued him with books in which to record his catch. As already noted, he would have

had to show replacement tonnage if he had persisted in his application to fish for crab, lobster and shrimp.

On 1st October 1993, the Department of the Marine wrote a letter to the applicant:

“Re: Categorisation of Sea Fishing Vessels

“The Department of the Marine has released a discussion document on the Management and Development of the Sea

Fishing Fleet. A copy of the document is enclosed.

Under agreed European Community fleet policy, the fleet is being divided into five categories: Demersal (Irish Sea);

Demersal (other than Irish Sea); Pelagic; Beam Trawl; and Specific. The Demersal categories include netters, potters

and nephrops trawlers. The Specific category covers vessels which are exclusively engaged in aquaculture. Each vessel

in the fleet has been provisionally assigned to one of these categories by the Department on the basis of our knowledge

of its active fishing history in recent years. Some vessels may be appropriate to more than one category.

Your vessel, the MFV "Angela Madeleine" (S 215) is being provisionally assigned to the Specific and Demersal (other than

the Irish Sea) categories. This means that the vessel will be allowed to be used only for aquaculture purposes including

fishing for bi-valve molluscs and for demersal species in all areas other than the Irish Sea. The vessel will be precluded

from fishing for demersal species in the Irish Sea, for pelagic species, and by means of beam trawls.

For replacement capacity purposes your vessel will be acceptable for the introduction of a new or second hand vessel

into the Demersal (other than the Irish Sea) category on a one to one basis.

If you consider that the vessel has been incorrectly categorised, you may appeal the provisional categorisation in writing

to the Sea Fisheries Division of the Department. Such an appeal should be supported with documentary evidence such as

long sheets or vessel has actively fished in one relevant category for four months in each of the last four years. Appeals

must be received in writing by Friday the 26th November 1993. Should you require any assistance in regard to this

matter, please contact the local Sea Fishery Officer.

A further letter will issue to you either confirming your categorisation or adjusting it in the light of the current

consultation process or a successful appeal.”

Clearly, the third paragraph, by including the demersal sector to any extent in the categorisation, and the fourth paragraph, by

allowing the applicant’s vessel to be used for replacement capacity purposes, was directly at odds with the letter of 26th April

1991. Despite the last paragraph, no further letter was, in fact, sent and the applicant says he assumed that the position

expressed in the letter of 1st October stood. He continued to fish as he had done and expended monies on his vessel.

Early in 1997, the applicant commenced to experience financial difficulties. He was under pressure inter alia from BIM. He

decided to sell his tonnage through the agency of a solicitor, Patrick Crowley, who advertises for tonnage in “The Skipper”

newspaper. A side effect of the licensing policy combined with the ministerial policy of replacement was that a trade had

developed in licensed “tonnage,” which, as noted by the learned trial judge had “become a valuable commodity in itself.” An

agreement for sale of the applicant’s tonnage was made in March 1997, subject to the Minister’s approval, which was expected

to take about three weeks to obtain. Meantime the agreed consideration was transferred to the account of Mr Crowley,

solicitor, who was handling the transaction to await the approval. At first, the Minister was favourable to the request and the

proceeds of sale were even transferred on or about 27th March 1997 into the applicant’s bank account after discharge of the

amounts due to BIM. On 4th April, the Minister wrote stating that “the Department’s letter of 26 April 1991 to the owner (Mr

Daly) indicated that the tonnage could not be disposed of for general fishery purposes.” The Department of the Marine

explained it’s position more fully in a letter to the applicant on 10th June 1997. It read:

“I refer to your letter of the 3rd March 1997 requesting the de-registration of the MV “Angela Madeleine” from Sea

Fishing Boat register and the sale of its capacity to facilitate the entry of the another vessel to the fleet.

Under current licensing policy, vessels which are correctly entered on the sea fishing boat register are acceptable as

replacement capacity for the introduction of vessels to the same segment of the fleet. Vessels such as mussel dredgers

which are licensed to fish solely for bivalve molluscs or to engage in aquaculture, are not considered to be eligible to be

used as replacement capacity other than in respect of another aquaculture vessel.

I would also draw to your attention that you indicated in your letter to the Department of the 4th February 1991 (copy

attached) in support of your application for the licensing and registration of a mussel harvesting vessel, that the MV

"Angela Madeleine" would be used “exclusively for Mariculture”. In addition no replacement capacity was withdrawn in

association with the introduction of the MFV “Angela Madeleine”.

For these reasons, the licence offer which issued from the Department on the 26th April, 1991 (copy attached) explicitly

stated that the vessel was to be used exclusively for aquaculture purposes and that the capacity of the vessel could not

be disposed of as replacement tonnage for general fishery purposes. In addition, your letter of the 1st May (copy

attached) indicated that you agreed to the conditions under which the licence was offered.

It is acknowledged that in 1971, vessels under 65 feet in length were exempt from the requirements to hold a current

sea fishing boat licence, and licences were only issued in respect of vessels under 65 feet to facilitate registration.

Consequently, the licence issued in respect of the MFV "Angela Madeleine" did not contain conditions relating to the

vessel being used solely for fishing for bi-valve molluscs.

The Department’s letter of 1st October 1993, provisionally assigned the vessel to the Specific and Demersal segment of

the Irish fleet. However, the letter did not purport to be definitive and envisaged the issue of a further letter if the

provisional assignment was to be confirmed. In the event the provisional assignment was not confirmed.

In light of the above having reviewed the case it has been decided that the capacity of the MFV Madeleine cannot be

accepted as replacement capacity for the following reasons:-

(a) the vessel was introduced to the fleet exclusively for aquaculture purposes, and was not required to withdraw

replacement capacity as aquaculture vessels are not taken into account in the calculation of EU fleet targets;

(b) it was made clear to you in the licence offer that the capacity of your vessel was not to be used for

aquaculture purposes only and that ‘you will be allowed to dispose of the tonnage for general fishery purposes’;

(c) your letter of the 1st May 1991 indicated that you accepted the conditions under which the licence issued.”

Thus the transaction was frustrated at the last moment.

The above account of the facts does not do full justice to the evidence cited by the applicant to support his legitimate

expectations case. It will be easier and less repetitious to do so when I come to assess the strength of that contention.

The High Court judgment

The full hearing of the applicant’s judicial review application took place before O’Sullivan J. over a period of five days. The

affidavits were supplemented by oral evidence.

O’Sullivan J. gave judgment on 25th February 1999 dismissing the application. He excluded from consideration the fact that the

Minister stated that the letter of 1st October 1993 was written in error. That fact did not mean that it could not form “part of

the transaction or course of dealing between the parties to which the Court will have regard in the context of legitimate

expectations.”

O’Sullivan J. held that it was not reasonable for the applicant, on receipt of the license, to conclude that the Minister had

changed his requirement in relation to tonnage. His fishing activities in apparent breach of the 1991 undertakings had more to

do with that activity itself than with the Minister’s tonnage replacement requirements. They were also “equally consistent with

lack of communication between the various representatives of the Minister, some confusion and perhaps even a relaxed

attitude.”

The letter of 1st October 1993 was at odds with the stated requirements of the Minister regarding tonnage replacement. “It

may well have looked like a gift from the Gods” so far as the applicant was concerned, but it was gratuitous and would mean

that the applicant would gain an unpaid advantage at the expense of the Irish fleet. It would strain logic and common sense, he

said, to treat the letter as an unqualified assurance with the consequences which the applicant was seeking to enforce.

The Appeal

The applicant, in his appeal to this Court, relies both on the doctrine of legitimate expectations and the equitable doctrine of

promissory estoppel. He takes issue with the judgment of O’Sullivan J in several respects:

(i) he failed to give sufficient weight to the fact that the applicant’s boat was exempt from licensing. The Minister acted

ultra vires in seeking to impose conditions on the grant of a license to the applicant, which the applicant required merely

for registration purposes.

(ii) the learned trial judge’s conclusion that it was not reasonable for the applicant to consider that the Minister had

dropped the conditions and in particular his attitude to replacement tonnage when he received the license in August

1991. The applicant fished openly in the demersal sector, had a log book and received compensation based on his

earnings in this sector.

(iii) the learned trial judge’s conclusion that the letter of 1st October 1993 was contrary to the course of dealing up to

then was itself contrary to the weight of the evidence.

(iv) the conclusion that the letter of 1st October 1993 was “like a gift from the Gods” in the sense of an uncovenanted

benefit and gratuitous benefit to the applicant was incorrect as the evidence showed that the Minister had not, as he

claimed, operated a policy of 100% replacement. Detailed reference was made to alleged breaches of this policy.

The Minister responds by saying that the concept of legitimate expectations requires the existence of a clear unambiguous and

unqualified promise. There is no such promise in the present case. Furthermore, the legitimate expectation must be reasonable

in the sense of being objectively justifiable. In the present case, the applicant had obtained his license in which he was aware

of the necessity to extinguish tonnage and of the restriction on the use of his vessel to that end. The learned trial judge was

right to emphasis the relevance of equitable principles. Finally, the applicant’s attempt to obtain the substantive remedy of the

right to use his tonnage for replacement exceeds what is available for breach of legitimate expectations, which confers

procedural rights only.

The Law Relating to Legitimate Expectations

The learned trial judge decided the case essentially on the facts. The applicant did not, he held, have an expectation which it

was reasonable or legitimate for him to have. The very name of the doctrine demonstrates, in my view, that this approach is

correct. If authority were need for this self- evident proposition, it is to be found in express terms in the judgments of this

Court in Wiley v The Revenue Commissioners [1994] 2 I.R., 160. Blayney J in the High Court and both Finlay C.J. and McCarthy

J accepted that the plaintiff, a disabled person, expected, as a fact, that he would be granted a refund of excise tax on a new

motor car under a scheme designed to benefit disabled drivers. He had received a refund on previous occasions, but the

Minister altered the terms of the scheme so as to require medical evidence that the applicant possesses the disability described

in the scheme. He did not, however, in the view of the Court, have an expectation which was legitimate.

The Minister relied upon the following passage from the judgment of Barr J. in Cannon v Minister for the Marine [1991] 1 I.R. 82,

which seems to me to distil the essence of the doctrine which is fairness:

“....the concept of legitimate expectation, being derived from an equitable doctrine, must be reviewed in the light of

equitable principles. The test is whether in all the circumstances it would be unfair or unjust to allow a party to resile

from a position created or adopted by him which at that time gave rise to a legitimate expectation in the mind of

another that that situation would continue and might be acted upon by him to his advantage.”

Conclusion

The policy of replacement tonnage was, in substance, an administrative scheme. The State was required to comply with

Community policy by reducing total fishery tonnage by targeted amounts. On the other hand, there was no directly applicable

Community regulation. The achievement of the objective was left to Ireland, which had to act within the general parameters of

Community policy.

The licensing of sea-fishing boats was and is a statutory scheme. Fishing without a license was rendered unlawful, but the

Minister had full discretion to grant or refuse a license. He was entitled, in the exercise of this statutory discretion, to adopt a

policy relevant to the attainment of a balance between the available fish stocks and fishing capacity in the form of boats, and

to alter that policy from time to time. The replacement tonnage policy was designed to ensure that additional fishing capacity

would not be added to the fleet: a new license would be granted only upon it being shown to the satisfaction of the Minister

that equivalent existing capacity would be eliminated. Aquaculture or mussel fishing was, as we have seen, outside the scope of

this policy. In Murphy v Minister for the Marine and others [1997] 1 I.L.R.M., 523, Shanley J. fully considered the replacement-

tonnage policy and held that the Minister was fully entitled to have regard to it in exercising his discretion to grant or refuse

sea-fishing licenses. No challenge to the correctness of that decision has been advanced in this case. It should be said,

however, that nothing in Community law obliged the Minister to treat individual applicants for licenses by reference to the

tonnage replacement policy. In other words, if the applicant had a genuine basis for legitimate expectations nothing in

Community law or, for that matter, in the statutory regime would prevent him succeeding.

The applicant frankly accepts that, at all relevant times before mid 1991, with only a minor qualification, he put himself forward

as being interested only in aquaculture. The qualification is that he said initially in 1990 that he would want to pot for lobster

and crab in the summer months. However, when he was informed that he would have to show that he was replacing existing

tonnage, he abandoned this and confined his application in express terms to aquaculture. I do not accept that the applicant, in

so doing, was under duress. He acted voluntarily. From this exchange, it was abundantly clear that the Minister had adopted a

new policy of insisting on tonnage replacement upon the grant of a new license. Not only was the applicant not replacing

tonnage, because of the confinement of his application, but, more importantly, he accepted expressly and in writing that his

own tonnage could not, in the future, be used as replacement tonnage.

However, it is said that the applicant, because of the small size of his boat, was exempt from the licensing requirements, and

that the Minister acted ultra vires by seeking to impose the requirements in the letter of 26th May 1991. In my view, this does

not alter the situation for several reasons. The applicant did, in fact, require a license, if only for technical reasons. That may

not be conclusive, since, as we know, it was considered sufficient for that purpose to issue a license for a three month period.

It seems that the boat could be registered if, at the time of registration, it was licensed for sea-fishing. Technically, the

Minister might have been entitled to impose conditions even on a license for a three month period. On the other hand, those

conditions would not have survived the expiry of the license. The important point is not whether or not the applicant was

entitled to fish without a license and, consequently, free of any licensing conditions, but rather that his interest in providing

replacement tonnage is an independent matter and is not related to his own obligation to be licensed. The fact that the

applicant was exempt from licensing at all times prior to 1995, does not enable him to acquire any right to use his vessel for

replacement.

The central plank of the applicant’s case is not, as he has accepted at all times, the letter of 1st October 1993, but his claim

that everything changed in August 1991, when as he put it, “it all unravelled.” Firstly, the license, when issued did not repeat

the conditions contained in the letter, restricting him to aquaculture and denying him the right to use his tonnage for

replacement. At the same time, he was informed, apparently by BIM that the Minister could not restrict his fishing. Furthermore,

he was issued with logbooks to enable him to record his catches. This was done although he would not in fact be required to

make returns, but he was told that it would be useful to keep records for his own benefit. He did, in fact, fish for what he calls

demersal species even before the issue of the licence. In that respect, I have noted that, prior to 1994, his fishing other than

mussel fishing, consisted of fishing for lobster and shrimp. These are not normally classed as demersal, though they are so

treated by the Department of the Marine for tonnage replacement. The applicant also received the benefit of a scheme of

assistance for loss of lobster pots. He says this further confirmed his understanding that he was allowed to fish in the demersal

sector.

I can find no basis in fact, whatever the quality of promise required to justify a legitimate expectation, in the so called

unravelling events, formed on any objective or reasonable basis, that the Minister had departed from what he had consistently

stated, and that he was, on the contrary, now implicitly promising that he would allow the applicant to use his tonnage for

replacement. The silence of the license on the topic was perfectly consistent with the view that the Minister had no power to

restrict the applicant’s fishing, since he was exempt from licensing. Nor can the applicant rely on his fishing, in fact, for

demersal species or the apparent tolerance of this fact by officers of the Department of the Marine. This fishing was perfectly

lawful. Insofar as the applicant was told by officials of BIM that the Minister could not impose conditions on his license, this was

also consistent with this fact. In evaluating the reasonableness of an expectation, it will usually be easier to establish that an

authority has bound itself when its actions are consistent with and imply the continued effectiveness of a position already

communicated. Promise by implication is no doubt conceivable, but is not easy to establish where it flies in the face of the

authority’s stated position.

On the face of it, the letter of 1st October 1993, furnishes a much more robust material for a legitimate expectation by the

applicant. However, that, strangely, is not the applicant’s case. So far as he was concerned, that letter changed nothing. It

merely confirmed his existing understanding. I would be reluctant to hold this point against the applicant without careful

consideration. After all, if the letter had formed part of the relationship between the parties from 1991, it would have been

difficult for the Minister to justify any departure from it. The letter, though expressed in provisional terms, is very explicit in its

fourth paragraph in admitting the use of the applicant’s vessel for replacement tonnage purposes “for the introduction of a new

or second-hand vessel into the Demersal (other than the Irish Sea) category on a one to one basis.” Viewed objectively, on

the other hand, the applicant’s case lacks internal logic. Any expectation he had prior to receipt of that letter, which contains

an explicit recognition of the essentials of his claim, could not be considered legitimate. He, however, attaches little or no

importance to the letter, claiming that it represented the Minister’s position as he already (incorrectly, in my view) understood it

to be.

Furthermore, the applicant accepted in evidence without demur that he had done nothing on foot of the letter to alter his

position to his detriment. Counsel for the applicant argued strenuously in response to questions from the Court that the doctrine

of legitimate expectations contains no requirement that the claimant show that he has so acted: that is relevant only to the

alternative claim based on promissory estoppel. I will comment on that proposition later in this judgment. At this point, I think

the answer to the dilemma of the unfortunate and obviously confusing terms of the letter of 1st October lies elsewhere. The

terms of the letter are clearly and explicitly at odds with the clear basis of the applicant’s dealings with the Minister as

established in 1991 and, as I have said, as they remained up to that point. Having described the proposed system of division of

the fleet, the letter indicates the assignment of the applicant’s boat to “the Specific and Demersal (other than Irish Sea)

categories.” The applicant must or should have realised that this was incorrect. All of his dealings with the Minister in 1991

were on the express basis accepted by him that he would engage in aquaculture only. On his own evidence, he had not, in fact

fished for demersal species in the ordinarily understood meaning of that term prior to 1994. He had engaged in potting outside

the mussel season. The applicant appears to have deceived himself, possibly on the basis of what he was told by BIM and by

the issue of logbooks to him, that he was entitled not only to fish for demersal species (which as a matter of law, based on the

exemption, he was prior to 1st January 1995) but also that the Minister would allow him to use his tonnage for replacement.

Crucially, however, he has produced no evidence at all to justify the latter assumption, and accepted in evidence that he gave

no real thought to it at that time. If he had appreciated the true position on receipt of the letter of 1st October, he would have

realised that he could not treat it as a correct statement of the Minister’s position without further enquiry, but he made no

attempt to contact the Minister to verify the letter. I do not think it was reasonable for him to do this and I do not think it was

legitimate for him to expect that the Minister would from now on accept his tonnage for replacement. The applicant’s failure to

make reasonable enquiries is, of course, explained by the belief he unreasonably held that the Minister was saying nothing new.

Returning to the applicant’s acceptance that he had not acted to his detriment on foot of the letter of 1st October 1993, I

would accept that there is a distinction between the doctrine of legitimate expectations and promissory estoppel. Legitimate

expectations constitutes an accepted part of the principles of administrative law applied by our courts through the vehicle of

Judicial Review. It is concerned essentially to see that administrative powers are not used unfairly. An expectation may be

legitimate and cognisable by the courts even in the absence of the sort of action to the claimant’s detriment that forms part of

the law of estoppel. On the other hand, I would not accept that the mere fact of an expectation can suffice without some

context relevant to fairness in the exercise of legal or administrative powers. Those who come within the ambit of an

administrative or regulatory regime may be able to establish that it would be unfair, discriminatory or unjust to permit the body

exercising a power to change a policy or a set of existing rules, or depart from an undertaking or promise without taking

account of the legitimate expectations created by them. However, the very notion of fairness has within it an idea that there is

an existing relationship which it would be unfair to alter. The existing relationship between the applicant and the Minister was

that created in 1991. The letter of 1st October 1993 did not tend to alter that to the disadvantage of the applicant. On the

contrary, it constituted a gratuitous or fortuitous and uncovenanted benefit. This is not the sort of interest that the doctrine is

designed to protect.

One further point is the change from 1st January 1995 in the licensing rules. From that date, the applicant was no longer

exempt. He said in evidence that he was unaware of this change. It emerged in evidence that the Department of the Marine, at

least in their internal records, treated the applicant as being licensed but only for aquaculture i.e. “specific”. The applicant did

not apply for or receive any license. However, insofar as he fished for demersal species after 1st January 1995, his fishing was

unlawful. It is abundantly clear that such illegal action could not form the basis of any legitimate expectation, nor could any act

of the Minister permit it to do so.

Finally, the applicant claims that the Minister has not, in fact, operated a consistent 100% tonnage replacement policy. A

number of exceptions have been identified. I do not find it necessary to review these cases in detail. They amount to a series

of individual cases where the Minister considered that an exception could be made or were not subject to the policy. In general

terms, they were either boats that had already entered the fleet or been approved for FEOGA grants prior to the adoption of

the new replacement tonnage policy in 1991. The applicant did not qualify for any of the exceptions. I think that is enough to

dispose of that argument. This case is not concerned to review the Minister’s operation of the licensing regime or the tonnage

replacement policy generally. It is concerned with the applicant’s claim that he as the owner of a sea fishing boat had a

legitimate expectation to be treated in a particular way. In my view the learned High Court judge was correct in deciding that

he had not established that case.

The Law Relating to Promissory Estoppel

The applicant relied at the hearing of the appeal also on the doctrine of promissory estoppel, though without citing any of the

relevant authorities other than the well-known passage from the judgment of Finlay C.J. (Webb) treating legitimate expectation

as an “aspect of the well-recognised equitable concept of promissory estoppel (which has been frequently been applied by our

courts) whereby a promise or representation as to intention may in certain circumstances be held binding on the representor

or promisor.” (page 384)

Mr Gerard Hogan, Senior Counsel contended that this was either an exceptionally generous application of promissory estoppel or

a new doctrine of promissory estoppel. In either event he contended that he did not have to point to any act of reliance on the

promise which formed the basis of his case. It is not unfair to characterise that as a daring submission, striking, as it does, at

the root of the concept of equitable estoppel. The passage cited was clearly not intended to convey that the doctrine of

legitimate expectation is coextensive with promissory estoppel. It clearly is not. The learned Chief Justice, in the passage in

question cited, as authority, a judgment of Denning M.R. which proceeded precisely from the fact that the parties had

“conducted the dealings between them..” on foot of an underlying assumption. It is the fact that it would be unconscionable

for one party to be permitted to depart from a position, statement or representation, upon which the other party has acted to

his detriment, that justifies the courts in intervening to restrain him from doing so. If the recipient of a promise or

representation, is to be dispensed from any obligation to demonstrate reliance, the doctrine would be more than exceptionally

generous. It would be a virtually ungovernable new force affecting potentially not only equity but the laws of contract and

property and, as here, the exercise of administrative powers.

This Court explained the doctrine of promissory estoppel very clearly in Doran v Thompson [1978] I.R. 222, where Griffin J said

(at page 230):

“ Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance

which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has

acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance

cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been

made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance.”

Kenny J, at page 233, cited as being correct the statement of the law on promissory estoppel at page 563 of the 27th edition

(1973) of Snell's Principles of Equity which reads:—

"Where by his words or conduct one party to a transaction makes to the other an unambiguous promise or assurance

which is intended to affect the legal relations between them (whether contractual or otherwise) and the other party

acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to

act inconsistently with it.” (emphasis added in each case).

Turning to the facts of the present case, I think the letter of 1st October 1993 is well capable of qualifying as the type of

unambiguous promise or assurance contemplated by the doctrine of promissory estoppel. It told the applicant simply and

directly that his vessel would be acceptable for replacement purposes. The applicant does not, however, satisfy the

second requirement. The facts to which I have referred in rejecting his claim based on legitimate expectations apply with

greater force in the present context.

The applicant frankly accepted at all stages that he had not acted on foot of this letter. He did not change his position in any

material way. It was not inequitable, therefore, for the Minister to withdraw the offer contained in that letter to treat the

applicant as being part of the demersal sector and entitled to use his tonnage for replacement.

I would accordingly dismiss the appeal.