Supreme Court partially allows negligence claim regarding mussel seed allocation policy decisions and economic loss.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Appeal Numbers: S:AP:IE:2023/110

Court of Appeal Record Number: 2019/345

High Court Record Number: 2006/2687P

[2025] IESC 28

O’Donnell C.J. Charleton J. O’Malley J. Murray J. Donnelly J.

BETWEEN/

PAUL BARLOW, WOODSTOWN BAY SHELLFISH LTD., MICHAEL CROWLEY,

RIVERBANK MUSSELS LIMITED, GERARD KELLY, FRESCO SEAFOODS

LIMITED, TARDRUM FISHERIES LIMITED, ALEX MCCARTHY, AND

HALCOME MERCHANTS (IRELAND) LIMITED TRADING AS ALEX

MCCARTHY SHELLFISH

Plaintiffs/Appellants

- AND -

THE MINISTER FOR COMMUNICATIONS, MARINE & NATURAL RESOURCES,

THE REGISTRAR GENERAL OF FISHING BOATS, IRELAND AND THE

ATTORNEY GENERAL

Defendants/Respondents

RULING of the Court delivered this 25th day of June 2025 (costs)

1. As indicated in the judgment of 11 April 2025 ([2025] IESC 14), the plaintiffs in these proceedings were unsuccessful before the High Court in claiming damages for loss allegedly caused to them arising from the manner in which the defendants allegedly mismanaged mussel seed stocks. They were awarded 25% of their taxed costs against the defendants and 100% of the costs of the transcripts of the hearing. The plaintiffs appealed the High Court’s decision to dismiss their claims in negligence and for breach of constitutional rights to the Court of Appeal. The Court of Appeal dismissed the appeal on all grounds and awarded the plaintiffs 33 1/3% of their costs of the appeal.

2. The plaintiffs were partially successful in their appeal to this Court, it being held that subject to a number of factors identified in the judgment that a duty of care may have been owed by the defendants to the plaintiffs to exercise care in the manner in which the right to fish for mussel seed was allocated pursuant to statute in the period between the plaintiff's investment in the vessels that were the subject of grant aid and their exit from that industry. That duty was held to be one not to cause the plaintiffs the loss of monies invested by them in the mussel fishing operations the subject of dealings between the parties as outlined in the judgment.

3. Although the plaintiffs did not succeed on every issue before this Court, they are entitled to the costs of this appeal. They obtained a significant victory on a number of questions of law of considerable novelty and importance, including their claim that they had established some elements of a claim in negligence based upon an assumption of responsibility, that they were entitled to mount such a claim in respect of actions said by the defendants to amount to ‘policy’ decisions regarding which it was contended no action in negligence lay, that there was no reason why it was other than ‘just and reasonable’ to impose such a duty of care, and that they were entitled to claim some type of economic loss.

4. However, the position in relation to the costs of the High Court and Court of Appeal proceedings must be treated quite differently. The matter has been remitted to the High Court where, as the defendants rightly say, the plaintiffs may not ultimately succeed. The grounds on which they succeeded in this Court comprise a fraction of the case advanced at trial. They have retained but one of the many causes of action they invoked before that Court. Their claim for damages has been severely limited as compared with that advanced in the High Court. The claim in negligence has also been restricted to the process of allocation of mussel seed, and the dismissal of their claim based on alleged negligence in the policing of the fishery on the ground has been upheld. They must establish breach of a standard of care to the very particular requirements of reasonableness imposed by administrative law in the exercise of discretion in the allocation of mussel seed. It may yet emerge not merely that they cannot establish this, but that they cannot establish loss, or causation.

5. In these circumstances, the appropriate order is to defer to the approach adopted by the High Court and Court of Appeal, and in respect of the costs in those Courts to affirm the costs orders made in those Courts.