High Court strikes out fishing vessel capacity claim as an abuse of process due to prior time-barred judicial review.

APPROVED [2025] IEHC 486

THE HIGH COURT

Record No.: 2017/11289 P

BETWEEN:

COLUM BROWNE Plaintiff -and-

THE REGISTRAR GENERAL OF FISHING BOATS, THE MINISTER FOR AGRICULTURE, IRELAND and THE ATTORNEY GENERAL Defendants

JUDGMENT of Mr Justice Rory Mulcahy delivered on 9 September 2025

Introduction

1. This judgment concerns the defendants’ application to strike out the plaintiff’s claim pursuant to Order 19, rule 28 of the Rules of the Superior Courts (“the Rules”) or, in the alternative, pursuant to the court’s inherent jurisdiction.

2. In December 2017, the plaintiff issued the within proceedings seeking certain remedies arising out of the processing by the defendants of a Capacity Assignment Note relating to the capacity which attached to his sea-fishing vessel, the MFV Áine Íde (“the vessel”). The Capacity Assignment Note was a request to the first defendant to transfer the permitted tonnage associated with the vessel from the plaintiff to a third party, the Governor and Company of the Bank of Ireland, pursuant to a fixed charge over the capacity dated 4 July 2001. By earlier decision dated 27 March 2017, the first defendant had removed the vessel from the Register of Fishing Vessels.

NO REDACTION REQUIRED

3. At the same time as issuing the within proceedings, the plaintiff issued a motion seeking interlocutory relief, restraining the defendants from processing the Capacity Assignment Note and reinstating the capacity in respect of the vessel in the plaintiff’s name. As appears from his affidavit grounding that motion, the plaintiff contended that the Capacity Assignment Note could not be processed as the “entire matter of the capacity attaching to” the vessel was the subject of separate proceedings, Record No. 2012/9729P. It appears, therefore, that the plaintiff issued these proceedings in support of the 2012 proceedings. The injunction application was struck out on 19 November 2018 in circumstances where the plaintiff indicated that he did not wish to pursue it. The plaintiff took no further action in these proceedings until he delivered a Statement of Claim in December 2023.

4. As appears from that Statement of Claim, and as confirmed by Mr Browne in oral submissions at the hearing of this application, the plaintiff’s complaint about the processing of the Capacity Assignment Note is entirely premised on a complaint about the remeasurement of the vessel by the second defendant, his servants or agents, in 2003. The plaintiff contends that the re-measurement, which had the effect that the vessel was reclassified from the over-65 feet category of fishing vessels to the under-65 feet category, was in breach of law, including EU law, and was therefore unlawful.

5. The difficulty for the plaintiff, and the basis of the defendants’ application to have these proceedings struck out, is that the plaintiff has already brought proceedings challenging the lawfulness of the re-measurement of the vessel, Browne v The Minister for Agriculture and Ors, Record No. 2012/9729P, the proceedings referred to in the plaintiff’s application grounding his injunction application. Those proceedings were dismissed by the High Court ([2019] IEHC 237) and the plaintiff’s appeal was rejected by the Court of Appeal ([2020] IECA 186). The Supreme Court refused leave to appeal ([2023] IESCDET 35) on the basis that the Court of Appeal’s decision involved the application of well-established case law and no issue of general public importance arose.

6. In those circumstances, argue the defendants, these proceedings, grounded in the same allegation of illegality as those earlier proceedings, are bound to fail and are an abuse of process and should, accordingly, be struck out. I am bound to agree.

The 2012 proceedings

7. The circumstances giving rise to the 2012 proceedings are set out at paragraphs 2 to 7 of the High Court judgment. In brief terms, the vessel was built in 1978 and was registered as having a length of 65.5 feet. The Irish fishing fleet was divided into vessels above and below 65 feet for licensing purposes. After the plaintiff purchased the vessel in 1993, he was issued with licences to fish both mackerel and herring in the over-65 feet category. It appears that very significantly higher tonnages were permitted in the over-65 feet category than in the smaller category.

8. In 2003, the Marine Service Office (MSO) of the Department of Transport re-measured the vessel in purported accordance with Council Regulation (EC) 3259/94, and recorded the vessel’s length as 63.79 feet. The plaintiff was notified of this in December 2003 and the change of registered length was entered on the register in April 2004. Following a complaint to the second defendant, the Minister, by the plaintiff, the MSO confirmed the decision to the Minister in October 2006.

9. From, at the latest, 2006, the plaintiff was not granted any license to fish either mackerel or herring in the over-65 feet category.

10. Certain policy directives were introduced by the Minister, in 2011 and 2012, which provided for the allocation of quotas on the basis of a track record of a vessel in previous years. In circumstances where the plaintiff had not been licensed in the over-65 feet category since, at the latest, 2006, he was not able to show a track record entitling him to a quota.

Shortly after the second of these policy directives was introduced, the plaintiff issued the 2012 proceedings challenging the introduction of the policies, and seeking a declaration that he had been entitled to a renewal of his licences in 2006 in the over-65 feet category, in circumstances where there had been no change in the vessel from that previously measured.

11. Following an exchange of pleadings, the defendants brought a preliminary application to dismiss the plaintiff’s proceedings. They claimed that the relief sought by the plaintiff was a remedy more properly sought by way of judicial review, since it involved a challenge to the lawfulness of the administrative decision to re-measure the vessel, and therefore the plaintiff was bound by the time limits applicable to judicial review. The defendants

contended that the proceedings had been instituted long outside the applicable time limit and should, accordingly, be dismissed.

12. The High Court (Ní Raifeartaigh J) agreed, and determined that the proceedings had not been brought within time, and that there was no basis to extend time:

“17. The plaintiff, as noted earlier, sought to emphasise that each new season brings a fresh decision of the Minister/authorisations with regard to the allocation of quotas/fishing opportunity and (if I understand his argument correctly) that it was only from 2011 and 2012 that time should be deemed to run because it was only on those dates that the earlier re-measurement ‘decisions’ and the introduction of the Policy Directives combined to have the impact on his fishing livelihood of which he now complains. However, it seems to me that the situation is similar to that in the Express Bus case insofar as the plaintiff could not hope to succeed in his claim without also simultaneously challenging what, in substance, was the validity of an administrative

decision to reclassify his fishing vessel in 2003 (or, even taking the timescale at its most favourable to the plaintiff, when that decision was confirmed to the Minister in 2006).

The situation does appear to me to fall within the description of Hogan J. in Express Bus, in other words, I am of the view that the plaintiff’s claim amounts in substance to a collateral challenge to the validity of the earlier decision(s) concerning the remeasurement of his vessel because, to succeed in its damages claim, the plaintiff would also, at a minimum, have to challenge the validity of that decision(s), even if only indirectly. This reality is underlined by the fact that the plaintiff has included, among the declaratory reliefs sought in his plenary summons, reliefs relating to the decisions that he says were made in 2006. Even if I were to assume that he is correct in contending that it was not until 2011/2012 that he suffered the specific damage of which he now complains, it is manifestly an essential part of his claim to challenge the validity of the earlier decision(s). In circumstances where a claim clearly involves a challenge to a

decision or decisions of a public law character, the judicial review time limits apply unless the exceptional situation described by Clarke J. in the Shell case applies. That exceptional situation there described appears to me to apply only where a person is defending proceedings brought against him or her by a public authority; and the present case clearly is not one of those cases. If I am wrong about the narrowness of that exception, I would find in any event that the plaintiff did not have such a good reason for the delay in bringing proceeding as to warrant an extension of time; though the particular damage he claims to have been caused by the policy decisions in 2011/0212 could not have been foreseen in 2006/2007, it was manifestly obvious that he would have some limitation of his fishing opportunity by reason of the re-measurement

decision, which was borne out by the licences he obtained from 2006 onwards. In those circumstances, I would therefore be reluctant, even if I had a discretion to extend time, to exercise that discretion in favour of the plaintiff.”

13. The decision was upheld by the Court of Appeal. In the course of his judgment dismissing the plaintiff’s appeal, Edwards J summarised the plaintiff’s complaint (at paragraph 20):

“It is appropriate to mention at this point, although somewhat to jump ahead in terms of the chronology, that the plaintiff now maintains that the MSO, and/or the Sea Fishing Licensing Authority, was/were in error in reclassifying his vessel as belonging in the under 65 ft segment of the fleet. His contention is that the effect of Council Regulation (EC) No 3259/94 was to merely amend Council Regulation (EEC) No 2930/86 to require a re-measurement of his vessel for tonnage purposes only. It did not repeal or replace Council Regulation (EEC) No 2930/86. Moreover, the plaintiff contends, a close examination of both instruments indicates that Council Regulation (EC) No 3259/94 did not purport to amend the definition of length for general classification purposes which is contained in Article 2.1 of Council Regulation (EEC) No 2930/86.

Rather, it amended Article 3 of that instrument (defining the breadth of a vessel), and completely replaced Article 4(1) of that instrument (relating to gross tonnage) with a new Article 4(1) containing five sub-articles, i.e., (a) to (e), respectively with sub-article 4(1)(e) requiring a re-measurement of the gross tonnage of existing vessels equal to, or greater than, 15 m, and less than 24 m, in length in accordance with the methodology set out in the annex to the regulation where the Commission considered those values to be sufficiently accurate, alternatively in accordance with Annex 1 to the ICTM 1969.

The critical point from the plaintiff’s perspective is that Article 2.1 of Council Regulation (EEC) No 2930/86 remained unaltered and in force for all purposes other than the process of the measurement of gross tonnage. The plaintiff says that under that rubric, the MFV Áine Íde, which was not physically altered in any way at any material time either before or after re-measurement for gross tonnage purposes, is properly to be regarded as being over 65 ft in terms of its general characteristics, such as would have rendered it’s operator eligible at all material times to obtain licences to fish for herring and mackerel in the over 65 ft segment of the fleet.” [Emphasis in original]

14. Edwards J determined that the High Court judge’s analysis of the case was correct (at paragraph 73):

“It seems to me that no matter how one views the plaintiff’s proceedings the essential nature of the subject matter is to do with administrative decisions / exercises of discretion about which the plaintiff is dissatisfied, particularly the decision to reclassify the MFV Áine Íde, and all that flowed from that subsequently in terms of refusal of licences which would have permitted his vessel to fish for mackerel and herring in the over 65ft category, and the later non allocation of quotas to him in Tier 1 and Tier 2 in circumstances where his vessel did not qualify, and he maintains could not have qualified, on the basis of track record by reason of having been wrongfully reclassified.

Whether the claim is framed as one seeking ordinary damages in negligence (either by act or omission); or Francovich damages/reparations arising from breach of EU law;

or damages for breach of constitutional rights, or of rights under the European Convention on Human Rights; or a claim for declaratory relief in the terms of the declarations sought in the Statement of Claim; or some form of (unspecified) equitable relief (as is alluded to in the Plenary Summons); to succeed the plaintiff would have to challenge and successfully impugn the administrative decisions / exercises of discretion to which I have alluded or at least some of them.”

15. He concluded that the plaintiff was out of time to challenge those administrative decisions and, accordingly, the High Court had been correct to dismiss the proceedings. He also rejected the plaintiff’s application for a reference pursuant to Article 267 of the TFEU:

“80. … For the avoidance of doubt I consider that the position in EU law is acte clair, namely that Ireland is entitled as a matter of procedural autonomy to apply domestic judicial review time limits in circumstances such as the present case, where in reality it is sought to challenge decisions having a public law character, even if the claim has been framed in part as one for Francovich damages for an alleged breach of EU law, and further that there is nothing to suggest a failure to comply with the principles of effectiveness or equivalence. Accordingly, a preliminary reference is not required in my view.”

16. It is apparent, therefore, that the plaintiff’s challenge to the lawfulness of the administrative decision involving the re-measurement of the vessel was at the heart of the 2012 proceedings. The proceedings were dismissed not because of any finding that that remeasurement had been carried out in accordance with law, but rather because the plaintiff was out of time to mount such a challenge.

The present proceedings

17. Although relating to the same vessel, these proceedings appeared, from the plenary summons, to relate to a different decision than that the subject of the 2012 proceedings, the

decision by the first defendant to process the Capacity Assignment Note. However, it is apparent from the abandoned injunction application, and the Statement of Claim delivered in December 2023, that the plaintiff’s main complaint remains with the re-measurement of the vessel in 2003. In fact, as appears from the plaintiff’s affidavit grounding his injunction application, the purported cause of action in these proceedings, at the time of issue, was entirely contingent on the existence of the 2012 proceedings.

18. In his Statement of Claim, the plaintiff’s claim is expanded from that contained in the plenary summons. He now seeks a variety of declaratory reliefs. In addition to his claims relating to the Capacity Assignment Note, he now pursues many of the reliefs claimed in the 2012 proceedings. The first relief sought in the Statement of Claim is in almost identical terms to the first relief sought in the 2012 proceedings, a declaration that the plaintiff was, in 2006, entitled to a full renewal of his sea-fishing boat licence for mackerel and herring for a boat of more than 65 feet.

19. The plaintiffs’ claim now relies on matters which occurred after the commencement of these proceedings. In particular, he relies on the conduct of the 2012 proceedings. He pleads, at paragraphs 63 and 64 of the Statement of Claim, errors by the High Court in its decision. At paragraph 74 of the Statement of Claim, he pleads that the defendants transferred the plaintiff’s capacity to a third party “while both parties themselves were operating outside the law”. This is particularised as the defendants having “failed to disclose” the relevance of, and to comply with, various statutory instruments, SI 821/2004, SI822/2004, SI 823/2004 and SI 20/2006, which relate, respectively, to the licensing of herring fishing in the Celtic Sea, the licensing of herring fishing in specified areas in the north east Atlantic, the licensing of mackerel fishing, and the licensing of polyvalent mackerel fishing. These statutory instruments each define the “length” of a vessel as meaning the distance in a straight line between the foremost part of the bow and the aftermost point of the stern. The plaintiff contends that by application of this definition, the vessel measures over 65 feet and he was entitled to be licensed on that basis.

20. In his legal submissions, the plaintiff makes clear that he alleges that the defendants in the 2012 proceedings failed to bring the attention of the court to these, what he contends are, relevant statutory instruments and, thereby, misled the court.

21. At paragraph 2 of his written submissions filed in response to the defendants’ motion, the plaintiff makes clear that his substantive complaint remains the same as in the 2012 proceedings:

“The root cause of all that has happened is the continuing refusal, failure and neglect of the Defendants, knowingly since 3 October 2006, to continue to measure my boat for fishery purposes in accordance with her overall length as required by of EU Regulations 2932/86 and 3259/94 and, in particular Article 2.1 of the former.”

22. In these proceedings, therefore, plaintiff seeks to advance the same complaint as in the 2012 proceedings. He argues that he is entitled to do so because the first proceedings were decided in error, concern a continuing breach, and in circumstances where the court was misled by the defendants.

The arguments

23. In their written submissions, the defendants refer to a significant body of case law addressing well established principles regarding the jurisdiction to strike out proceedings, and also the doctrine of res judicata and the related rule in Henderson v Henderson.

24. The defendants contend that, in substance, the plaintiff’s cause of action in these proceedings is the same as that advanced in the 2012 proceedings – that the re-measure of the vessel was unlawful – and that it is an abuse of process for the plaintiff to mount the same claim in these proceedings. Insofar as he seeks to challenge the lawfulness of the

decision to re-measure on different grounds in these proceedings than in the 2012 proceedings, then that is prohibited as an abuse of process by the rule in Henderson v Henderson.

25. The defendants also contend that, in circumstances where the 2012 proceedings were dismissed as having been instituted outside the time limit provided for in Order 84, rule 21 of the Rules, it follows that these proceedings, commenced in 2017, and involving a challenge to the lawfulness of the same decisions, must also be out of time.

26. Insofar as the plaintiff makes a complaint in his proceedings regarding a change in tonnage of the vessel from that charged in favour of the charge-holder, the Governor and Company of the Bank of Ireland, that is a matter which arises as between the plaintiff and the charge-holder, and is not a matter for any of the defendants in these proceedings. There is no claim against the defendants in these proceedings independent of the plaintiff’s underlying complaint about the re-measure of the vessel.

27. Accordingly, argue the defendants, these proceedings should be dismissed.

28. The defendants seek, in the alternative, an order setting down for trial a preliminary issue as to whether the proceedings should be dismissed as an abuse of process or, in the alternative, on the grounds of delay. The defendants note that had they sought an order striking out the proceedings for want of prosecution, then, in light of the recent decision of the Supreme Court in Kirwan v Connors [2025] IESC 21, the proceedings would inevitably have been struck out given that more than five years had elapsed between the injunction motion being withdrawn and the Statement of Claim being delivered. They accept, however, that as no relief was sought on that basis, the proceedings should not be struck out for want of prosecution, but suggest that it is a factor to which the court might have regard in assessing their application to have the proceedings struck out pursuant to Order 19, rule 28 of the Rules.

29. As set out above, the plaintiff accepts that his basis for challenging the processing of the Capacity Assessment Note is contingent on his argument that the re-measure of the vessel was unlawful. He contends that, notwithstanding the dismissal of the 2012 proceedings, he should be entitled to maintain these new proceedings. There appear to be three bases for his contention that these proceedings are not an abuse of process.

30. First, he contends that he never received a hearing on the merits in the 2012 proceedings and therefore the doctrine of res judicata, and the rule in Henderson v Henderson are not engaged.

31. Second, he argues that the defendants “and, indeed, the Courts in the earlier proceedings” have ignored the fact that his complaint in both sets of proceedings involves a “continuing breach”. He refers, in this respect, to the decision of the CJEU in Case C- 224/01, Kobler v Austria.

32. And third, he contends that the defendants obtained the judgment in the earlier proceedings “by deception, by unlawfully misleading the plaintiff and the trial judge… by failing in their duty of candour” in failing to disclose the existence of the statutory instruments referred to above.

33. The plaintiff denies that there has been any delay by him in prosecuting the proceedings, and that he has, in the period following the withdrawal of his injunction application, been engaging with the second defendant and officials in his department to try to resolve his complaints. He was, of course, prosecuting the 2012 proceedings for much of the period of inactivity in these proceedings.

Discussion

34. The defendant’s application is made pursuant to Order 19, rule 28 of the Rules. Since the amendment of the Rules by SI 456/2023, rule 28(1) is the operative rule for an application of this type. It provides as follows:

The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i) discloses no reasonable cause of action, or

(ii) amounts to an abuse of the process of the Court, or

(iii) is bound to fail, or

(iv) has no reasonable chance of succeeding.

35. It is apparent that the plaintiff’s claim in these proceedings involves, as an essential component, challenging the lawfulness of the re-measurement of the vessel. This is clear from the Statement of Claim, the plaintiff’s affidavits, including his affidavits grounding the injunction application, and the plaintiff’s written and oral submissions. The plaintiff fairly acknowledged this to be the case in response to a question from the court. The plaintiff did not clearly explain how an alleged legal error in the re-measurement of the vessel could render unlawful the processing of the Capacity Assignment Note other than to make a generalised claim that the circumstances giving rise to the charge-holder seeking to have the capacity assigned to it were caused by the re-measurement and, therefore, the alleged error in the re-measurement has caused him damage. In this respect, the claim is of a similar type to the 2012 proceedings: the plaintiff complains of damage arising at the time he instituted proceedings by reason of an alleged historic illegality. There is, however, no claim for damages in these proceedings.

36. In those circumstances, the defendants are correct insofar as they contend that the proceedings identify no cause of action independent of the complaint about the remeasurement. There is no claim that exists independently of that alleged unlawfulness.

37. The complaint abut the re-measurement has already been dismissed as having been commenced outside the applicable time limits. In those circumstances, the plaintiff’s current claim is prima facie an abuse of process and should also be dismissed. In Morrissey v Irish Bank Resolution Corporation [2015] IEHC 200, Costello J (as she then was) observed (at para 5):

“It is a fundamental principle of law that a party should not be entitled to re-litigate matters or raise issues which have already been determined by a final judgment of a court of competent jurisdiction between the same parties and their privies. This is known as the principle of res judicata. But beyond the strict limitations of res judicata the courts have long recognised that there may be abuse of process outside of the relatively confined limitations of the rule and the courts have always been prepared to balance the rights of parties to have their cases heard and determined by the courts with the rights of the opposing parties to fair procedures in the conduct of litigation and, where necessary, to strike out proceedings if they amount to an abuse of process.

In addition to the private rights of litigants, there is a public policy interest in ensuring finality of litigation and preventing vexatious litigants from subjecting the same parties to multiple law suits on the same issue.”

38. Nor can a party seek to challenge a final order in one set of proceedings in a subsequent set of proceedings in the absence of exceptional circumstances. In Mullaney v Ireland [2023] IECA 195, the Court of Appeal noted that it is impermissible to bring proceedings for the purpose of challenging final orders made in earlier proceedings (at para. 8):

“It is an abuse of process to bring proceedings whose purpose and effect is to launch impermissible collateral attacks on valid, final, un-appealed Orders of the High Court.”

39. Whether these proceedings are considered an attempt to re-litigate the issues raised in the earlier proceedings, or an attempt to challenge the decision of the Court of Appeal in those proceedings, it is clear that, in the ordinary course, such a challenge is impermissible. The plaintiff’s arguments that he should nonetheless be entitled to maintain these proceedings do not alter that position.

40. His first contention is that he did not receive a hearing on the merits in the first proceedings and, accordingly, those proceedings do not create a procedural bar, whether by the application of the doctrine of res judicata or the rule in Henderson v Henderson, to pursuing these proceedings. Although it is true that there was no determination in the earlier proceedings regarding the lawfulness of the re-measurement of the vessel, that is because both the High Court and the Court of Appeal decided that the challenge to that decision was out of time. Dismissal of proceedings challenging an administrative decision on the ground that the challenge is out of time operates as a procedural bar to fresh proceedings challenging the same administrative decision in like manner to proceedings which are dismissed on the merits. There has been a final decision that the proceedings are out of time, which was determinative of those earlier proceedings. Any fresh proceedings necessarily involve a challenge to that earlier decision. Any such challenge is clearly barred by the doctrine of res judicata. Had the plaintiff sought to advance arguments in these proceedings that he was not out of time, or that time should be extended, which were not advanced in the earlier proceedings, any such argument would likely have been defeated by the rule in Henderson v Henderson. However, no such arguments were advanced.

41. The fact that there was no determination on the merits in the earlier proceedings is not, therefore, a basis for permitting a fresh challenge to the same decision. It may be, perhaps understandably, frustrating for the plaintiff that he has never had a decision on his argument that the re-measurement of the vessel was other than in accordance with law. That, however, is the consequence of his having issued the first (and these) proceedings long outside the time mandated for such a challenge. It is obvious that to permit these proceedings to continue on the basis that there has been no decision on the substance of the plaintiff’s complaint would wholly undermine the application of time limits in proceedings of this type.

42. The plaintiff’s second argument is a variation of an argument advanced and rejected in the first set of proceedings, that the defendants alleged breach of EU law represents a continuing breach. In the earlier proceedings, as noted by Ní Raifeartaigh J in the High Court, the plaintiff sought to argue that each season brought a fresh decision of the Minister with regard to allocations of quota and that it was only in 2011 and 2012 that the new policies and the re-measurement decision combined to have the impact on his livelihood of which he complained. That argument was rejected on the basis that the plaintiff’s claim was, in substance, a challenge to the lawfulness of the re-measurement and, accordingly, time ran from the point that that decision became final, at the latest, October 2006.

43. Insofar as the plaintiff advances a similar argument here, that the registered measurement for the vessel is a continuing breach, the argument must also be dismissed. The argument has already been disposed of in the earlier proceedings, and therefore is res judicata. Insofar as the argument advanced now is a variation on that advanced in the 2012 proceedings, it is clearly an argument which could have been advanced in the 2012 proceedings and therefore the rule in Henderson v Henderson is engaged. No basis was identified by the plaintiff for arguing that the rule should not operate as a bar to these proceedings on this issue.

44. Leaving aside those concerns, in arguing that the re-measurement decision is a continuing breach, the plaintiff seeks to elide the difference between the decision challenged and the effect of that decision. The re-measurement of the vessel occurred in 2003 and was confirmed to the Minister in 2006. That decision has not been re-visited since. Somewhat remarkably, perhaps, it appears that there has never been a subsequent request by the plaintiff that the defendants re-measure the vessel. In those circumstances, the 2003 (or, on the most generous view, 2006) decision continues to be the applicable measurement for the vessel, but that does not mean that the decision constitutes a continuing breach. The plaintiff’s claim is not of a continuing failure by the defendants to comply with law, but rather that when re-measuring the vessel, the defendants failed to comply with EU law in 2003 (and, possibly, 2006). Accordingly, that decision fell to be challenged within the relevant time limit calculated from the date of that decision.

45. Although the plaintiff references the decision of the CJEU in Kobler, it is difficult to see the relevance of this decision in circumstances where he hasn’t identified any failure by the court to vindicate his rights pursuant to EU law, still less . The Court of Appeal considered whether the application of time limits in the circumstances of the plaintiff’s earlier case was consistent with the principles of equivalence and effectiveness and concluded, in accordance with well-settled principles of EU law, that it was. The Supreme Court refused leave to appeal on that basis. The plaintiff has not identified any sufficiently serious manifest breach of EU law, or indeed any breach of EU law, by the courts such as to give rise to an entitlement to seek a remedy, a remedy which, in any event, he hasn’t sought in these proceedings.

46. As with the plaintiff’s first argument, to permit a characterisation of the defendants’ alleged breach as a continuing breach would render the application of time limits in judicial review-type proceedings all but impossible. Only decisions the effect of which was entirely spent could be subject to the application of a time limit within which they must be challenged. As with the plaintiff’s similar argument in the 2012 proceedings, the plaintiff’s second argument must be rejected here.

47. The third argument advanced by the plaintiff is that the defendants misled the court in the earlier proceedings by not bringing to those courts’ attention the statutory instruments referred to above, which include a definition of length pursuant to which, he says, the vessel would measure over 65 feet. At various points in his pleadings, the plaintiff contends that these statutory instruments “entitled” him to a licence in the over 65 feet category. However, it doesn’t appear that any of the statutory instruments make any distinction between vessels underand over-65 feet, so it is not at all clear what the plaintiff argues is the basis of this purported entitlement.

48. The plaintiff’s argument that the court was misled can properly be characterised as an allegation of fraud, within the meaning of that term in the relevant case law. It is true that where a judgment is obtained by fraud, it is possible, exceptionally, to re-visit an earlier judgment, fraud being one of the special circumstances by which the so-called Greendale jurisdiction may be engaged. In Bank of Ireland v Carey [2024] IECA 247, the Court of Appeal summarised the approach which a court should take to the invocation of such a jurisdiction (at paragraph 33):

“It is clear from the decision of this Court in Bailey v. Commissioner of An Garda Síochána [2018] IECA 63 that a court has exceptional jurisdiction to revisit any issue or finding of fact determined in the written judgment. The court ought to be satisfied firstly that there are “strong reasons” or “exceptional circumstances” which warrant it doing so. This jurisdiction is frequently described as “the Greendale jurisdiction”

derived from the decision of the Supreme Court in Greendale Developments Ltd (No.3)

[2000] 2 IR 514 as reinforced by Clarke C.J. in Student Transport Scheme Ltd. v. The Minister for Education and Skills [2021] IESC 35. In the latter case, it was reiterated that where an unsuccessful party seeks to have a final order set aside it must establish as a prerequisite a fundamental denial of justice against which no other remedy is available such as an appeal. Clarke C.J emphasised that the court was entitled to give detailed consideration to the merits or otherwise of the factual contentions being relied on by the party seeking to re-open as otherwise it could “… allow an easy backdoor to reopening proceedings which would, in my view, be in fundamental breach of the principle of finality”.

49. It is entirely clear that in this case any alleged failure by the defendants in the 2012 proceedings to bring the various statutory instruments to the attention of the courts did not involve any denial of justice, fundamental or otherwise. Firstly, it is not contended by the plaintiff that the decision the subject of these proceedings was made pursuant to any of those statutory instruments, which post-date the MSO’s initial re-measurement of the vessel. Second, it is far from clear, in any event, how the statutory instruments could, as the plaintiffs contend, confer any right on him. At most the statutory instruments might lend support to the plaintiff’s contention that an improper method may have been applied when measuring the vessel for the purpose of the EU regulation. And third, the plaintiff nowhere indicates when he became aware of the statutory instruments or explains why he failed to bring them to the attention of the court in the 2012 proceedings if he considers them relevant.

50. That said, it is not impossible that the statutory instruments could be considered to have some relevance to the substance of the plaintiff’s claim. If that is so, then any court might reasonably expect that counsel for the defendants would, if they identified that possible relevance and in discharge of their duty to the court, have brought the statutory instruments to the attention of a court dealing with that claim. However, as they were statutory instruments, and there is no suggestion that they were not published in the usual way, there is no question of the defendants having “failed to disclose” them, as the plaintiff alleges.

51. More importantly, if the statutory instruments were relevant at all, they were relevant to the question of whether the re-measurement of the vessel was conducted in accordance with law. That is not a question with which the court was concerned in the preliminary application the subject of the High Court judgment and the appeal to the Court of Appeal. They were not relevant to the question of whether the proceedings were subject to the time limits applicable to judicial review and, if so, whether they were time barred, the issues which were the subject of the preliminary application. It is very clear from the judgments of the High Court and, in particular, the Court of Appeal in the earlier proceedings that, despite identifying the plaintiff’s complaint, those courts did not engage with the merits of that complaint in determining the time limit issue.

52. In the circumstances, there was no fraud involved in any purported failure to bring the statutory instruments to the court’s attention, and no denial of justice arising out of any such alleged failure. Any purported failure by the defendants to refer to them in the 2012 proceedings does not provide a basis for re-opening those proceedings or permitting the plaintiff to re-litigate the issues raised in proceedings which have been finally determined.

53. The plaintiff’s pleadings do contain a complaint about the Capacity Assignment Note by reference to the tonnage the subject matter of the charge, but that complaint doesn’t give rise to any cause of action against these defendants, and the plaintiff did not suggest otherwise.

Conclusion

54. The plaintiff’s claim in these proceedings has, at its heart, a complaint that the method which was used to re-measure the MFV Áine Íde in 2003 was not in compliance with law, including EU law. He issued proceedings in 2012 which raised the same complaint. Those proceedings were dismissed by the High Court and Court of Appeal on the basis that they involved a challenge to an administrative decision of a type capable of being challenged in judicial review proceedings but which had not been brought within the applicable time limit for such proceedings.

55. In circumstances where those proceedings were finally determined, it is impermissible for the plaintiff to seek to advance these proceedings grounded on the same complaint save in very exceptional circumstances. The plaintiff has not identified any basis upon which he should be entitled, exceptionally, to proceed. In substance, the plaintiff issued these proceedings in order to protect his position in the 2012 proceedings. The plaintiff is unhappy, no doubt frustrated, with the outcome of those proceedings, which saw his claim dismissed on procedural grounds, the proceedings having been commenced out of time. He now seeks to use these proceedings as a vehicle to circumvent the conclusion that the earlier proceedings were out of time. It would plainly be an abuse of process to entitle him to do so. I will, therefore, make an order striking out the proceedings pursuant to Order 19, rule 28(1) of the Rules.

56. As this judgment is being delivered electronically, I will indicate my provisional view in relation to costs. As the defendants have been successful in the motion and the motion brings an end to these proceedings, my provisional view is that the defendants are entitled to the costs of the motion and of the proceedings, to include any reserved costs. If either side wishes to contend for a different form of costs order than that proposed, they should file written submissions in the Central Office of the High Court within two weeks of today’s date. A copy of the written submissions should be sent to the other side and to the Registrar. The other side will then have a further two weeks within which to file written submissions in reply, and I will deliver a ruling on costs thereafter.