Supreme Court allows appeal on operational negligence and legitimate expectation against Minister for Agriculture.

THE SUPREME COURT

[Appeal No. 307/2013]

Clarke J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

BETWEEN:

CROMANE SEAFOODS LIMITED AND O’SULLIVAN McCARTHY MUSSEL DEVELOPMENT LIMITED

PLAINTIFFS/RESPONDENTS

AND

THE MINISTER FOR AGRICULTURE, FISHERIES AND FOOD, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/APPELLANTS

Judgment of Mr. Justice John MacMenamin dated the 22nd day of February, 2016

1. The judgment appealed against raises rather deep questions. The issues raised relate both to the theory and practice of the

concept known as “operational negligence”. While I admire the elegance with which the High Court judgment seeks to address the

evidence and the law, I would respectfully disagree with its conclusion. In fact, the circumstances in this case provide an apt case-

history of the problems which can actually arise with the concept. I would uphold the appeal in regard to legitimate expectation, and

concur with my colleagues, Clarke J., Dunne J. and Charleton J., in so concluding. Together with Dunne J. and Charleton J., I would

also uphold the appeal on the operational negligence issue for reasons I now set out.

2. The unavoidable fact is that strong policy considerations arise in this appeal. One cannot deny that legitimate concerns are

consistently expressed on how, in law, to identify means of redress for wrongful actions by the executive which detrimentally effect

private individuals. Clarke J. eloquently makes the case for the concept of operational negligence in his judgment. No one would

envisage a return to the era which preceded Byrne v. Ireland [1972] I.R. 241, where the State was, effectively, immune from suit.

But what is necessary, is that changes in the law of negligence, and reformulations of the law on State liability, should be carefully

and incrementally approached, with a clear view as to their long term consequence. There is always a concern that radical alterations

in the law emerge within the narrow confines of one case which have unforeseen consequences. In some instances, such as the

discovery of the snail in a bottle of ginger beer in the Wellmeadow Café in the Scottish town of Paisley, the consequences are,

generally, for the public good (Donoghue v. Stevenson [1932] UKHL 100, [1932] AC 562 ). But, even in this instance, it is doubtful

whether either the majority or minority of the House of Lords who deliberated on the appeal could have foreseen the exponential

expansion in the law of negligence which followed.

Introduction

3. In fact, an unguarded inception of State liability for operational negligence, both in its conception, and its means of application,

might potentially raise even more profound issues than Donoghue v. Stevenson. It requires little imagination to imagine circumstances

where the threat, either in prospect, or in retrospect, of an operational negligence claim, might be such as to stifle any administrative

action in an area of potential controversy. There is undoubtedly, a strong public interest in ensuring that a proper balance is struck

between private and public rights and duties. However, there is perhaps an even stronger public interest in ensuring government

actually functions for the general public good, and that administrators do not consider themselves impeded from making any decision

for fear of being immersed in a morass of litigation. It is not hard to conceive of operational negligence proceedings being brought in

circumstances where millions (or perhaps billions) of Euro might be at stake as a consequence of an executive or administrative

decision or action. There is no doubt that the courts and the law will be much occupied in the foreseeable future with the need for

protecting the individual against wrongful executive decision and action. Such developments may come from either national or

European courts or legislators. But, what is fundamentally necessary, insofar as possible, is that clear lines of demarcation and

principle are identified in developing the law. Further, what is of prime importance is to ensure that a judiciary does not become a

form of surrogate unelected government, vesting itself with the power to second-guess prima facie lawful government actions in

areas of discretion which do not raise questions of vires. These are not small considerations.

Conceptual Difficulties of Operational Negligence

4. Even on first impression, the appeal before us illustrates the inherent risks in engaging in an “operational negligence” analysis of the

decisions of a public authority which, on the face of things, was acting intra vires. How should a court of law, with all the luxury of

hindsight, engage in this form of critique of the actions or inactions of the appellant Minister and his department? Such a process, as

here, necessarily involves a post hoc analysis of a series of omissions to act. As we will see, time-span of the tort is unclear;

arguably the Minister’s failure to put himself in a position to comply with E.U. law, could stretch back over a decade prior to 2008, the

year in which, I infer, the judgment holds the tort was actually committed. By 2008, a series of more proximate decisions, which are

referred to later, were ones in which there were, simply a series of invidious choices between broad public and private interests. One

might ask, how well equipped are the courts to engage in such a retrospective scrutiny, even before going on to consider how long

such an “inquiry” (I use the word advisedly), might take in other instances. It is not hard to think of rather deeper and broader issues

where the stakes are higher even than those considered here.

5. The High Court ultimately held that the tort here was committed in the year 2008. That is what the judgment says at a number of

points. But taking that essential point as established, what was actually put into the equation was not one isolated act, wherein one

might identify classical indicia of negligence, but, rather, something very much broader. The judgment necessarily contains a

description of the complex background to what occurred pre 2008. Is the omission to act, over these previous 8 or 10 years, itself a

tort of operational negligence? At points, the judgment seems to suggest that it is. It is said that the Minister, over a period of years,

failed to carry out appropriate surveys on Castlemaine Harbour, so that baseline statistics would be available, so as to comply with

E.U. environmental law. It is very hard to avoid the inference that this is all to be encompassed as part of the tort. Yet, elsewhere,

the actual elements of the tort appear to be ministerial and executive actions, carried out within 2008, and all of which were, on their

face, lawful, carried through on foot of statutory instruments, and intended to ensure that the State was, eventually, compliant with

E.U. law. How then is a court to reconcile the paradox that, as a matter of public law, the impugned acts or omissions must be seen

as lawful; but as a matter of private law they were not? How is one to assess the question of causation?

6. Some of these considerations underlie the objections which are to be found, both in academic and legal commentary, on the

common law courts’ embarkation on a journey of uncertain destination, (and uncertain staging posts), beginning with Anns v. Merton

L.B.C. [1978] AC 728. If a court is determining whether ‘operational negligence’ occurred, how does it balance the needs (and duties)

of the State, responsible for the public interest, against the private interests of individuals? The common law recognises that clear

distinctions (and consequences) derive from the difference between wrongful acts, (feasance), and omissions to act (non-feasance).

This is a distinction which, although criticised, may, at least, be defensible at the level of principle on constitutional, political, moral,

and economic grounds. Lest there be misunderstanding, I do not have the slightest concern that the law should continue to develop,

as it must, but it is necessary that the judges themselves be cautious - as we urge others to be.

7. The concept carries with it, too, an inherent risk of elision between ‘omission’, often incapable of giving rise to legal liability, and an

affirmative duty, which does. The case law, as it developed, has addressed a wide range of public and private concerns. It is difficult

to see a consistent pattern. At times, the courts have, laudably and understandably, adopted a victim-oriented approach, whereby

public funds may serve a welfare or protection purpose; elsewhere judges have adopted a more robust approach, taking account of

the potential allocation of public funds, against a backdrop of concerns, expressed both in Ireland and elsewhere, as to trenching on

the constitutional domain of the executive.

8. Statutory duties are mandatory in character. Other powers leave public bodies with the discretion or power of choice. In this

appeal, we address a discretionary power. If a Minister is exercising a discretion, it is unclear by what legal standard are his or her

discretionary actions, or inactions, to be judged. Are the courts to adopt some form of unreasonableness standard (as in Keegan)?

Alternatively, perhaps courts should base the standard purely on the “neighbourhood” Donoghue v. Stevenson principle. These

questions remain to be fully addressed, especially were it to be suggested that the lower standard should apply as to a range of

justiciable government actions.

9. A further and equally fundamental conceptual difficulty lies in a frequent lack of distinction between ‘policy’ and ‘operation’, as

enunciated in Lord Wilberforce’s speech in Anns, but then sought to be applied elsewhere. It is difficult to distinguish between the

two, where one may give rise to liability, and the other may not. This confusion may derive from the case law of the United States,

and particularly what Fleming’s learned authors wrote was a concept “unwisely transplanted, as most writers think, from the very

different environment of the U.S. Federal Tort Claims Act” (cf. generally, Fleming’s Law of Torts, 10th Edition, Law Book Company,

2011, Chapter 8). I focus now on the decision under appeal.

The Legal Authorities Relied on in this Judgment

Duff v. The Minister for Agriculure

10. The judgment under appeal hinges on the approach adopted by this Court in Duff v. The Minister for Agriculture (No. 2) [1997] 2

I.R. 22. Here, as elsewhere in legal history, one might comment that cases acquire a “patina” of having “decided” some principle of

law, when on close-examination one finds the position much less certain.

11. In Duff, three members of a court of five (O’Flaherty, Blayney and Barrington JJ.), held for the plaintiff, in circumstances where

this Court held the defendant Minister had made a mistake in law in granting a reference-quantity out of the national quota for

development farmers whom he had promised to assist, causing the farmer-plaintiff loss and damage. However, Hamilton C.J. and

Keane J. strongly dissented from this finding. It is necessary to enquire whether there was, in fact, a clearly established, principled,

ratio which is of precedential value to operational negligence. Blayney J. agreed with the judgment of Barrington J. However, the third

member of the majority, O’Flaherty J., formulated his decision on a quite different analysis, relying on legitimate expectation, and

drawing explicitly on the principle of restitution. The question, which arises is as to whether certain passages from this judgment, now

cited below, can be characterised as representing a clear ratio of the majority of the court in Duff on the question of operational

negligence, rather than it being a judgment more positively informed by the principles of legitimate expectation? On the question of

the exercise of ministerial discretion, Barrington J. held at p. 89 -90:

“As previously stated, the plaintiffs could have had no legitimate expectation that the law would not be changed. Neither

could they have any right that the Minister would exercise his discretion under art. 3 of Council Regulation EEC/857/84 in

their favour. But once the Minister had decided to give them a reference quantity out of the national quota the Minister

had a duty, and they had a right to expect, that the Minister would implement this decision in a lawful manner. The

Minister, in breach of his duty and of their rights attempted to implement his decision in a manner which was

unlawful. As a result the plaintiffs did not receive the special reference quantities to which they were entitled and have,

in consequence, suffered damage and loss.” (Emphasis added)

12. He continued at p. 90:

“The trouble is that the method which the Minister chose to provide for the development farmers was unlawful. He

chose this method due to a mistake of law on his part. When he discovered his mistake, in the autumn of 1984, the

situation had changed because the national quota had been divided up without making provision for the national reserve

out of which the development farmers could receive their quota. It was now too late, or the Minister felt it was too late,

to retrieve the situation. …”

13. The judge added at p. 90:

“If, as appears to be the case, the plaintiffs have suffered loss and damage as a result of the Minister's mistake of law it

appears to me just and proper in the circumstances of this case, that the Minister should pay them compensation.”

14. But, a close analysis of the judgments in Duff raises serious questions as to whether it could, even at the time it was delivered,

have been characterised as a clear authority for establishing, in principle, a tort of operational negligence. I deal with later judicial

doubts on the judgments below. While counsel for the plaintiff farmer did cite many of the then relevant legal precedents on

negligence of public authorities, a careful reading of the entirety of Barrington J.’s judgment, in fact, indicates that it can more fairly

be characterised as a judgment inspired by legitimate expectation. Indeed, in the paragraph immediately following the words

“compensation for their loss”, (above), that judge went on to say at p. 90:

“The principle of legitimate expectation is one of the fundamental principles of Community law. It provides, inter alia,

that those who in good faith act under representations of agents of the State shall not be frustrated in their

expectations.” (Emphasis added)

The judge did not go on to characterise the claim as being one of operational negligence, properly so called.

15. The learned authors of Hogan & Morgan’s Administrative Law, 4th Edition, 2010, at paragraph 18.151, p. 1007, understandably

comment guardedly on Duff:

“…[T]he plaintiffs appear to have succeeded on the ground of something like a negligent error of law in that the Minister

had misunderstood the EC Directive which he was applying. This may be classified as a special case of operational

negligence as opposed to the negligent exercise of a discretionary power. One might query, however, whether the sort

of public policy defence which won the day for the State in Pine Valley Developments Limited v. The Minister for

Environment applied here. Moreover, in as much as Barrington J. was suggesting that damages flow from a finding that

the decision was ultra vires, he has been overruled”.

While accepting the authors’ point that there may have been reluctance to allow a legitimate expectation against a statutory power

as in Duff, it goes too far, I think, to describe the judgment as being one of ‘operational negligence’, without much further glossing. I

add here that, insofar as E.U. law principles are concerned, the tort, as found in the judgment under appeal, ultimately, does not

derive from a Frankovich breach of E.U. law, but rather the damage caused by the implementation of E.U. law after a breach thereof

was identified by the ECJ.

16. One’s concerns as to the precedential value of Duff are not allayed by subsequent judicial observations. What Fennelly J. said

about the decision in Glencar (No. 2) [2002] 1 I.R. 84 at p. 150 are very much on point. He commented:

“I believe that the considered statements of the law made in Pine Valley Developments v. The Minister for Environment

[1987] I.R. 23 remain the law, despite apparent inconsistency with some dicta in the majority judgments in Duff v.

Minister for Agriculture (No. 2) [1997] 2 I.R. 22, which appear to treat liability for damages as automatically flowing from

a mistake of law said to have been made by a minister. Pine Valley v. The Minister for Environment, though fully

considered and applied in the High Court judgment of Murphy J. in that case (Duff), does not figure at any point in the

judgments of the Supreme Court. I do not believe that it can have been intended to depart from such an important

principle as that laid down in Pine Valley.”

17. It is difficult to avoid the conclusion that the rationale for the judgment now appealed is predicated on Duff, a judgment which, at

its highest, was decided on its own facts. I do not believe it can be seen as a precedential authority for operational negligence. The

judgment is not mentioned in the most leading recent textbook on Irish Tort law (cf. McMahon & Binchy, Bloomsbury, 4th Edition,

2013; nor, earlier, in Healy, Principles of Irish Torts, Clarus Press, 2006). Liability for damage does not automatically flow from a

mistake of law said to have been made by a Minister. To my mind, there is now no precedential basis for finding that a concept of

‘operational negligence’, based on such a slim foundation, could constitute a cause of action giving rise to loss and damage, especially

in the absence of any consideration in the judgment appealed of other important authorities, such as Pine Valley and Glencar.

Pine Valley

18. In the first of these, Pine Valley [1987] I.R. 23, this Court, held, unanimously, that where a Minister is exercising a public

statutory duty, he or she will not be liable in damages, even for an ultra vires action, unless the exercise of the power involves the

commission of a tort, or is actuated by malice, or unless the authority knew that it did not possess the power which it purported to

exercise. A Minister, in reaching his or her decision to grant a licence, and acting bona fide, in pursuance of advice which they had

been given by a departmental senior legal advisor, could not be guilty of negligence or negligent misrepresentation. At page 36 of the

Report, Finlay C.J. adopted with approval the following propositions from the 5th edition of H.W.R. Wade, Administrative Law, at p.

673 as follows:

“The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach

of duty will found an action for damages in any of the following situations:-

1. If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.

2. If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons.

3. If the authority knows that it does not possess the power which it purports to exercise." (Emphasis added)

19. To this, Finlay C.J. added:

“I am satisfied that there would not be liability for damages arising under any other heading.”

20. I lay emphasis on the term “recognised tort”; Finlay C.J. thereby precluded any potential liability arising under any other heading

of tort.

Glencar

21. I move then to further consider the later judgment of this Court in Glencar [2002] 1 I.R. 84. Many of the passages from the

judgments of Keane C.J. and Fennelly J. are now so well known as hardly need repetition. They express the law applicable.

22. I instance here Keane C.J.’s judgment wherein he stated at p. 139:

“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves

obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the

notoriously difficult and elusive test of “proximity” or “neighbourhood” can be said to have been met, unless very

powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required

to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should

impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in

Ward .v. McMaster, by Brennan J. in Sutherland Shire Council .v. Heyman and by the House of Lords in Caparo Industries

Plc. .v. Dickman. As Brennan J. pointed out, there is a significant risk that any other approach will result in what he

called a “massive extension of a prima facie duty of care restrained only by indefinable considerations …” ([2002] 1 I.R.

84, at 139).

23. Very appositely to the instant appeal, Keane C.J. also went on to doubt the utility of a distinction between policy and operational

actions of public authority. He said at p. 140 - 141:

“For the purposes of this case, it is sufficient to say that the mere fact that the exercise of a power by a public

authority may confer a benefit on a person of which he would otherwise be deprived does not of itself give rise to a duty

of care at common law. The facts of a particular case, however, when analysed, may point to the reasonable

foreseeability of damage arising from the non-exercise of the power and a degree of proximity between the plaintiff and

the defendant which would render it just and reasonable to postulate the existence of a duty of care. That approach is

consistent with the reluctance of the law to impose liability for negligence arising out of an omission to act rather than

out of the commission of positive acts which may injure persons or damage property.”

24. Insofar as any of these observations were obiter dicta their authority was put beyond question by the judgment of Fennelly J. in

this Court in Breslin v. Corcoran [2003] 2 I.R. 203 at p. 207. Can the concept of ‘operational negligence’, as identified in this case,

comfortably fit within the framework of the established jurisprudence? In my view, it does not. On this alone, the appeal on this

second operational negligence issue must necessarily succeed.

25. I am not persuaded that comparisons with Laffoy J.’s magisterial judgment in Minister for Communications v. Figary Water Sports

Development Company Limited [2005] IESC 74, are apposite. In Figary, this Court, Clarke J., Laffoy J., and Charleton J., was not

addressing the issue of operational negligence; but rather, a situation where there had been a breach of duty, including statutory

duty, by the Minister, in circumstances where the Minister owed a specific duty to a very specific group. The application of statutory

duty, the judgment held, could not be wholly divorced from the landlord and tenant relationship which existed between the parties. I

would re-emphasise that, as I understand matters, the primary finding as to the causa causans in the judgment under appeal derived

from the measures which the Minister took to remedy Ireland’s failure to implement relevant Directives. Here, by contrast, it is difficult

to characterise the tort, as described in the judgment, as a failure to implement E.U. law, giving rise to cause of action for the

respondents. Insofar as the judgment makes other findings as to the pre-2008 situation, one might ask whether these are operational

negligence, or the background to the negligence as found? For a tort, there must be some causation, not merely a situation.

26. At no stage was it argued in this appeal that Pine Valley, Glencar, or Breslin, were wrongly decided. A process of dis-application

of authoritative statements of the law cannot be initiated through the back door. In fact, further concerns emerge, as now outlined.

Application to the Judgment under Appeal

27. I now turn to consider the manner in which the High Court judgment ([2013] IEHC 338) sought to apply the concept of

operational negligence. It must be remembered, in fairness, this was in the context of that the High Court also held that there had

been breach of legitimate expectation by the defendant. It is not unfair to comment that many of the indicia of legitimate expectation

‘leaked in’ to the identification of operational negligence, as expressed in the judgment under appeal. They are very different

concepts.

28. The judgment describes the manner in which, during the early 1990’s, the possibility of designation of Castlemaine Harbour as a

Special Protection Area (SPA) was under consideration. There was the public notice, published in the Irish Times on the 7th April,

1993. This was issued from the National Parks & Wildlife Service of the Office of Public Works. Hypothetically, such a notice might be

characterised as announcing an intention to classify only Castlemaine Harbour as an SPA. But, such a characterisation would be

entirely misleading. One must look at the scope of the representation in order for there to be negligence. In fact, the notice went no

further than to say:

“It is not envisaged that designation will restrict the usage pattern of these areas for activities such as fishing, water

sports, sailing and game hunting, or their use for shellfish culture.” (Emphasis added)

This “envisaging” cannot be recharacterised as a tacit or implicit representation to the respondents. It related to a much broader

range of activities than the mussel harvesters in Castlemaine Harbour. The full text of this notice is referred to in judgments of my

colleagues.

29. To be clear, the notice did not refer only to Castlemaine Harbour. Rather, it in fact referred to 12 separate and distinct areas

(including Castlemaine), stretching from Louth to Shannon, from Inner Galway Bay to Ballycotton. It was decidedly not, therefore, a

notice which made reference only to the respondents’ area of activity. Nor was its content confined to the activity of mussel

harvesting. Similar observations would arise regarding any government notice issued at the same time, presumably to much the same

effect. It is difficult to conceive how any of these works could be regarded as a representation or a statement upon which the

respondents could rely for negligence purposes. Here, and elsewhere, full context is all important. The words went no further than to

say “It is not envisaged”.

30. The difficulty in pinning down the rather mercurial content of operational negligence is discernable throughout the judgment,

despite the thought provoking and comprehensive way in which the judge sought to approach the issue.

31. He describes the events after the 1993 notice, as follows at par. 41:

“What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing

of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort

given to them that there would not be a summary closure of their business without some good scientific reasons or

without some consultation process before doing so.” (Emphasis added)

The emphasised words are each rather broad terms. One must look then to the meaning of ‘pattern of events’, and the ‘good

scientific’ reasons as they arise in this case. One might also ask, did this paragraph describe the tort? If so, it was not represented,

as such, in the Statement of Claim at the outset of the case.

32. This earlier ‘pattern of events’ culminated in, or was broken by, the judgment of the Court of Justice in December, 2007. This was,

undoubtedly, a trigger-event. It is necessary now to consider, again, how the High Court judgment deals with the judgment of this

Court in Duff v. The Minister for Agriculture [1997] 2 I.R. 22, in the context of the Court of Justice’s finding that no assessments had

been carried out, inter alia, in Castlemaine Harbour before granting harvesting authorisation to the respondents. The High Court

judgment reads at par. 49:

“The carrying out of screening tests is all within the control of the Minister. In 2008 the Minister finds himself barred

from exercising a discretion as a result of not having carried out an appropriate assessment before granting the seed

authorisation, despite the fact that he did so in previous years and did so under a mistake of law on his part. That brings

us right into a situation analogous to what happened in the Duff case (where the Minister was barred from exercising his

discretion in relation to the milk quota because of a mistake of law). The mistake of law in the present case is more

than just a pure mistake of law in the legal sense. It is a mistake of law in how the Minister thought it was

appropriate to manage the aquaculture business in a balanced way with protecting the environment; the

mistake of law that we are looking at here has a relevance in terms of how the regime was managed. There was

operational negligence in failing to carry out the regular scientific tests or monitoring that would have provided

the baseline data to equip the Minister either to have a proper screening test or to have a fully informed

appropriate assessment. The delay could have been avoided if the Minister had not been guilty of operational

negligence, which was part and parcel of his mistake of law. These matters are now translated into loss and damage

of the plaintiffs in the same way as the farmers in the Duff case.” (Emphasis added)

33. The unavoidable inference here is that the tort of operational negligence was one of long term omission; one, moreover, where,

over a period of many years, the Minister failed to carry out regular scientific tests or monitoring, which would have provided the

baseline data. These omissions were characterised as part of the Minister’s ‘mistake, in law’, which translated into loss and damage

for the respondents. But, it is hard to see where does the negligent “cause” begin, and over what did it occur. This description does

not only deal with 2008. But, elsewhere, the clear intent of the judgment is that the failure arose because the Minister failed to act

quickly in 2008 to remediate the respondents’ position, as a consequence of the ECJ judgment. The High Court judge held, elsewhere

in the judgment: “The State were negligent and in breach of duty to the plaintiffs in delaying the re-opening of the said mussel seed

fishery, in delaying carrying out tests to exclude environmental risks, and in allowing the plaintiffs to expend substantial monies on

renewing their vessels.” This can only refer to 2008. One is left with a tort having the following ingredients: (a) neglecting to ensure

assessment as and from 2000 onwards, (b) mistaking E.U. law consisting in, inter alia, (c) the Minister’s error as to how it was

appropriate to manage the aquaculture business; and (d) delay in re-opening after 2008. These are very broad headings indeed for a

tort, lasting over many years. I question whether this constitutes a justifiable controversy at all.

Was the Tort a Series of Omissions or Positive Acts?

34. The passage just quoted also provokes other problems, derived from the criticisms of operational negligence itself. One might

again legitimately pose the question, did the operational negligence here consist in acts, omissions, or both? Seeking to place

operational negligence within the categories of tort law, there is a problem of identifying whether this was misfeasance or

nonfeasance. Here, again, the tort, as described here, is impossible to pin down.

Timing

35. As pointed out earlier, even though the tort was held, in terms, to have occurred in 2008, the judgment criticises the failure of

the Minister (or perhaps successive Ministers), in failing to carry out “regular scientific tests, or monitoring”. The administrative

omissions, however, clearly took place significantly before that year. One might legitimately ask, when did these tortious omissions

commence, and what was their nature and content? There is a want of clarity in the evidence, in what act or commission allegedly

caused damage to the respondent? One might infer that, prior to 2008, the Minister actually had regard to the respondents’ private

interests, over many years, by condoning harvesting, even at the cost of failed adherence to E.U. law. I cannot conclude the

Minister’s condonation of the activity, or omission to act in that earlier lengthy period of time, was a wrong committed against the

respondents, when the situation was to their benefit?

36. There then arises a further unavoidable question, that is, whether, if the Minister had, in fact, acted between 2000 and 2008, the

respondents would inevitably have incurred significant losses, by a similar necessary suspension of activity in Castlemaine Harbour, as

occurred from 2008 onwards, in order to obtain appropriate baseline data? If the detailed surveys complained of were necessary to

establish the baseline, one is only left to speculate as to how these surveys could have been carried out without exactly the same or

similar cessation of activity in the harbour, albeit in earlier years.

The Glencar Principles

37. It is also useful to analyse and contrast the operational negligence concept, as realised, in the context of the ‘Glencar’

considerations of proximity, foreseeability, standard of care, and what is just and reasonable. It is most fruitful to analyse the just

and reasonable test first.

‘Just and Reasonable’

38. The diverse nature of the statutory regime governing the activity of mussel harvesting in Castlemaine Harbour is described in

Clarke J.’s judgment. It does not require further rehearsing here, other than again to emphasise its very complexity, including, as it

did, the need to apply and implement the Common Fisheries Policy; the E.U. Habitats Directive; Candidate Special Area of

Conservation (“cSAC”); Special Protection Area under the Birds Directive; Fisheries Acts, including the Fisheries (Amendment) Act,

1997; and statutory instruments made, including the Mussel Fishery (Castlemaine Harbour) Order, 1979 (Exclusive Rights to Mussel

Bed Cultivation); Sea Fishing Boat Licence issued under s.4 of the Fisheries (Amendment) Act, 2003, as amended by s.97 of the Sea

Fisheries & Maritime Jurisdiction Act, 2006; Mussel Seed Authorisation (MS 35/08) granted under the Sea Fisheries & Maritime

Jurisdiction Act, 2006; and an order opening the mussel fishery pursuant to s.15 of the Sea Fisheries & Maritime Jurisdiction Act,

2006. As well as this, a number of statutory instruments were promulgated, giving effect to the Birds Directive and Habitats Directive.

The Court of Justice

39. In the case cited earlier, the Court of Justice found, that the State’s failure arose under Article 6(3) of the Habitats Directive,

which provided that any plan or project likely to have a significant effect on an area of conservation should be subject to

“appropriate assessment of its implications for the site, in view of the site’s conservation objectives”. The duty imposed upon the

national authority was to “agree to the plan or project, only after having ascertained that it will not adversely affect the integrity of

the site concerned …”. The obligation was to carry out such appropriate assessment in advance of any consent to the plan or

project. European Union law did not permit carrying out of an assessment while the project was in being. The purpose of the

appropriate assessment is to ensure that, prior to consent, any risk of adverse effects could be excluded.

40. These principles were also articulated in the Court’s decision in Case C-127/02 Waddenzee, which made clear that such

assessment(s), must be carried out prior to approval being granted, and authority may be given only if the State authorities have

“made certain that it will not adversely affect the integrity of that site”. The Court held that there must be no reasonable scientific

doubt remaining as to the absence of such effects. Additionally, it is necessary to identify what the “conservation objectives” of a

site are.

41. Relevant also is the fact that in Commission v. Ireland [2007] ECR I-10947 (Irish Wild Birds), the Commission complained that

Ireland had “… systematically failed to carry out a proper assessment of those [aquaculture] projects situated in SPA's or likely to

have effects on SPA's, contrary to Article 6(3) and (4) of the Habitats Directive.” The Court of Justice held at I – 11077, par. 240:

“It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising mollusc

farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of an

aquaculture development project before a decision is taken on authorisation.”

42. But, then the court held at I – 11077, par. 242, that its conclusion that Ireland had failed to comply with the Directive was:

“…supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior, detailed

ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission.”

(Emphasis added)

What was necessary for compliance was for this State to have excluded the risk of aquaculture projects having a significant effect on

the site.

43. The court held at I – 11077, par. 243:

“Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the

plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in

combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the

best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected

site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no

reasonable scientific doubt remains as to the absence of such effects. …”

44. In the light of these very explicit conclusions, one might well pose the question whether a finding of operational negligence in

2008 could be just and reasonable, having regard to the Glencar principles. Counsel for the State in these proceedings appositely, but

with considerable understatement, described the “complexity of the situation” which the State faced in 2008 due to what was termed

“the changed understanding” of the State’s obligations under the Directives.

Negligence in 2008

45. It is necessary now to consider the measures taken by the State from 2008 onwards. The judge pointed to a series of meetings

which took place. A number of working groups were assembled. Different departments and statutory bodies were consulted, including

the Departments of the Environment, Heritage and Local Government, the Marine Institute, the National Parks & Wildlife Service and

Bord Uisce Mhara. The DG Environment of the European Commission was also heavily involved. The task of carrying out an assessment

was obstructed by the fact that there had been no conservation objectives identified. This delay, in turn, was due to the absence of

available baseline data, which then had to be collated. Without this material, opening the mussel seed fishery was contrary to the

State’s obligations under the various Directives, as the European Commission made clear. But, the High Court judgment held, these

steps were not enough, so far as the respondents were concerned, and too dilatory.

46. In Charleton J.’s judgment, there can be found a table provided by counsel for the appellant in these proceedings which identifies

some 21 legislative events which took place and which affected, inter alia, this fishery, between the 29th November, 2007 and the

8th December, 2010. This included some 7 changes which either opened or closed the fisheries.

47. Disregarding any other issue as to whether a loss was actually sustained in each year, or by which respondent any loss was

incurred, the mussel fishery in Castlemaine Harbour was open between the 5th October, 2008 to the 31st December, 2008, the 30th

April, 2009 to the 14th May, 2009, 15th September, 2009 to the 23rd September, 2009, 29th April, 2010 to the 25th May, 2010, and

the 30th August, 2010 to the 2nd December, 2010. In fact, the evidence established that these openings were achieved after

negotiation with DG Environment, even though the conservation objectives were set, ultimately, only in December, 2010. The

plaintiffs’ claim relates to losses due to the closures in 2008 and 2010, when it is said starfish predation on unfished mussel seed

during the late summer period of each year depleted the stock to especially low levels.

48. In the light of the foregoing, it must be doubted if it could ever be said that, as a matter of law, even if all the other Glencar

threshold-steps were satisfied, it would, in the light of all this complexity on a national scale, nevertheless, be ‘just and reasonable’ to

impose liability upon the defendant/appellant. Again, it must be emphasised that the judgment rested on the authority of Duff, and

not on Glencar. One cannot simply ignore the broader context of the decision-making. Had Glencar criteria been part of the

consideration, it is difficult to see how it would be “just and reasonable” to impose liability in 2008, in circumstances where the

evidence and the facts as found, so clearly established that the Department and the Minister were, by then, having to closely focus

on a series of national legal requirements imposed by the Directives and the judgments of the Court of Justice.

49. One turns to the other Glencar criteria. Put shortly, I do not think that the conduct of the Minister at any time amounted to a

breach of duty of care. The description of what occurred prior to 2008 is too broad to constitute a justiciable controversy; absent

more, I believe the description of the duties as devolving upon the exercise of the discretion, in 2008, is constitutionally untenable.

The duty of care is addressed first.

Duty of Care

50. I do not believe a duty of care existed between the appellants and these respondents in 2008. The Minister’s Department was

undoubtedly aware of the Castlemaine situation, but it was also in the context of an awareness regarding all the other operations of a

similar nature within the State. In the years 2008 to 2010 some 150 Natura 2000 Surveys had to be carried out by the State. The

question of where national priorities lay, or who should receive resources, or where surveys should be carried out first; all were pre-

eminently questions for the executive, even accepting meetings actually took place between representatives of the respondents and

the Department between 2008 and 2010. But it is difficult to find that anywhere in the relationship there could be said to be a ‘duty

of care’ or ‘proximity’, even if loss might have been foreseeable. It is said that the respondents’ situation was within the knowledge or

contemplation of the appellant. But, presumably, so too was the situation of the other operators. So too was the duty to comply with

E.U. law, and the risk of having penalties for non-compliance. But it cannot be said that, in Lord Atkins words, the respondents were

“so closely and directly” affected by the Minister’s actions or omissions (whenever they occurred) that the duty to them took

primacy, in 2008, over the duty to comply with E.U. law. If it be said the duty of care existed in the years prior to 2008, I am not

persuaded the Minister committed an actionable wrong when the respondents were actually permitted to carry on their activities.

The Threshold for Negligence

51. In fact, the closely connected issue of standard of care presents as great a challenge as that of duty of care. It impacts on the

entire time-span encompassed. First, it is questionable whether the law can comfortably accommodate a situation where operational

negligence would involve a Donoghue v. Stevenson test. That threshold is a low one based, as Lord Atkins put it, on knowledge of the

affect of actions or omissions on one’s neighbour. But, to cite inaction between 2000 and 2008 raises an entire range of issues

already touched on in this judgment, again including proximity and whether there was a duty of care at all. It is unclear if the actions

of a Minister in an area of discretion are to be considered on the basis of the standards applicable in a professional negligence action,

or, alternatively perhaps, on Keegan standards. All of these questions, seem to me, to present insuperable difficulties, at least in the

instant case. As to a ‘professional negligence’ standard, there was no concrete evidence about what would have been the normally

accepted procedure by a person in the position of the Minister. Were a Keegan test adopted, a court would have to hold that a

Minister acted, or omitted to act, in a way no Minister could reasonably act. In short, applying a higher standard implies evidential

deficits, and a misapplication of the law; applying a lower standard far too easily places a court in a position of being a surrogate

decision maker in this area, an issue further explored below, especially bearing in mind the fact that, prima facie, the Minister was

acting ultra vires.

The Statutory Instruments

52. I mention also the fact that at no stage prior to the case did the respondents challenge the statutory instruments under which

the appellants operated. From the year 2008 onwards, these were promulgated in order to regularise the situation, and to render the

position in Castlemaine Harbour in accordance with the law of the European Union. I find it difficult to conceive that a court could

impose a legal duty in circumstances where the impugned actions of the State authority were actually carried out under law, and in

order to implement a legal duty. There is an insuperable dichotomy between the private and public dimensions of the actions of these

State authorities, yet a further illustration of the conceptual difficulties which can arise.

Constitutional Questions

53. Consideration of the incidents of operational negligence, as described in the judgment, finally, leaves one with the concern that

deep questions arise regarding whether, what was so characterised, whether before or after 2008, might trench on the role of the

executive. As an illustration of this concern, and the intermingling of legitimate expectation and operational negligence, the High Court

judgment describes the following, [2013] IEHC 338 at par. 52:

“The plaintiffs operated lawfully and were entitled to expect that this regime would continue and they had organised

their business and expended considerable sums of money in this legitimate expectation. The "operational" negligence on

the part of the State was in failing to carry out proper scientific investigations or monitoring between 2000 and

2008 which would have provided base line studies for the prompt carrying out of an appropriate assessment so

as to have permitted the timely reopening of Cromane Harbour for mussel seed collection (as in previous

years). The breach of legitimate expectation of the plaintiffs is that they were entitled to expect that in the normal way

Cromane Harbour would regularly reopen annually for mussel seed collection because the Minister would operate such a

regime of granting Aquaculture Licences and also managing the SPA and cSAC in Cromane Harbour and also in a lawful

way.” (Emphasis added)

54. Two points arise from this passage. The first is the elision between legitimate expectation and operational negligence ingredients.

This has been touched on. Second, the “operational negligence”, referred to in this part of the judgment, was “in failing to carry out

proper scientific investigation or monitoring between 2000 and 2008” (Emphasis added). This is quite distinct from any finding that

there was a dilatory approach from the beginning of the year 2008 onwards.

55. Later, and repeating a passage quoted earlier, the judgment characterises matters, in a passage quoted earlier, in a quite

different way at par. 55:

“The defendants were negligent and in breach of their duty to the plaintiffs in delaying the reopening of the said mussel

seed fishery, in delaying carrying out tests to exclude any environmental risks and in allowing the plaintiffs to expend

substantial monies on renewing their vessel. …”

This could only refer to 2008 onwards.

56. But, again at par. 55:

“The State did not operate the regime in an orderly way which would have allowed harmony between environmental

protection and the plaintiffs continuing with their business.”

This quotation appears to describe a much longer period.

57. And later again at par. 56:

“The Minister was negligent in failing to operate the protection of the environment in a balanced way which would allow

for protection of the aquaculture business. This arose from a) failure to carry out investigations, b) inconsistency in the

activities permitted and c) allowing the plaintiffs to spend huge sums of money on renewing their vessel. The result is a

glaring lack of a structured approach. There is a requirement on the part of the decision maker, who has the controlling

decision making in relation to the plaintiffs' ability to earn their livelihood, not to make sudden, unmeasured, haphazard

and arbitrary decisions; the process should be managed in an orderly way by regularly gathering information, so that all

parties can organise their affairs in an appropriate way with minimum disruption.”

This description relates to periods both pre and post 2008.

58. It will be seen also that, here, the operational negligence is characterised as being an omission to operate the protection of the

environment in a balanced way.

59. The concern on the passages quoted arise, not least, because of the political context, and perhaps a political and legal balancing

exercise which the Minister performed, not just in 2008, but on the face of things, over the much longer preceding period. It is not

suggested the Minister, or any of his predecessors, acted mala fides toward these respondents, or any of the other harvesters. The

Minister committed no wrong to the respondents prior to 2008, during the time they were actually engaging in their business without

interruption. It is unclear how this metamorphoses into an actionable wrong. No challenge was made to the statutory instruments

under which the Minister acted. The underlying unanswered question lies in the extent and range of the tort, as well as whether an

omission to act, in say 2003, was, at that time, a detriment to the respondents. There is, therefore, a disjunction between causation

and damage.

60. The expositions of the claim of the “later” negligence illustrates the extent to which, the challenges the Department faced in

2008, was by then a truly national issue concerning a range of mussel harvesters in different parts of the country; rather than simply

the respondents. It is impossible to put out of one’s mind the sense that a court, which operates within different parameters and

constraints from a Minister; was asked to assess matters and arrive at conclusions from evidence, which quite understandably was

confined, and removed from broader national considerations; hence leading to a constitutionally questionable outcome. Actions in

negligence cannot simply be based on a process of second-guessing administrative actions in an area of discretion.

61. This case does not concern statutory duties, but rather Ministerial discretion exercised in a particularly difficult situation. I accept

it can be said that a situation evolved which might have been of the Minister’s own making. But, in a tort action, a court is not asked

whether the State, or its servants, might, in hindsight, have “done better”. There must be, rather, an actionable wrong. The

difficulties arise because one cannot say that at any randomly chosen time, perhaps in the years 2004 or 2005, it can be legitimately

said the Minister was actually engaging in a negligent act by omitting to have the baseline survey conducted, and which was in a

manner to the respondents’ detriment. Inescapably, questions arise as to causation, the nature of the duties owed, and to whom

such duties are owed. By way of contrast to obligations arising from a simple breach of statutory duty, there was here, at by 2008, if

not well before, one overarching legal duty on the Minister, which was to comply with, and implement, E.U. law. This was the public

duty which he had to apply from 2008, if not well before. The fallacy in this case is to seek to isolate or divorce some private duty

owed to the respondents from the overarching public or State duty, which the Minister simultaneously owed.

62. I do not preclude the possibility that, in the future, the jurisprudence on State liability may develop or evolve further. But, this is

a case where I think the law should not be developed, but rather applied. One simply cannot ignore legal authorities, such as Pine

Valley and Glencar, and the fact that, in acting as he did in 2008, the Minister was acting on a matter of public interest where

specific duties were vested in him, and the State. I would uphold the appeal, and reverse the judgment of the High Court. The issue

of damages does not, therefore, arise.