Supreme Court allows State liability for Cromane but remits O'Sullivan McCarthy damages due to evidentiary uncertainty.

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 Clarke delivered the 22nd February, 2016.

1. Introduction

1.1 The circumstances in which the State may be liable for mistakes on the part of officials or employees is a complex and sometimes

controversial area of the law. That a mistake occurred in this case which had, at least, some impact on the plaintiffs cannot be

doubted. The issue which this case raises is as to whether there is any proper legal basis on which it can be said that the

defendants/appellants (“the State” unless the context otherwise requires when “the Minister” will be used) is liable in damages. I will

collectively refer to the plaintiffs/respondents as “Cromane”, unless the context makes it clear that it is only the first named

plaintiff/respondent which is being referred to. The second named plaintiff/respondent will, when separately relevant, be referred to

as “O’Sullivan McCarthy”. In the High Court, Cromane put forward two bases on which it was asserted that it was entitled to an

award of damages. First, it was said that it was possible and appropriate for the Court to award damages under the heading of

legitimate expectation. Second, it was said that damages arose under the tort of negligence.

1.2 For present purposes, it is sufficient to note that the circumstances which give rise to these claims arise out of the

implementation in Ireland of European Union environmental legislation. In the events that happened, O’Sullivan McCarthy was, for a

period of time, precluded from continuing to carry on its business of harvesting mussels in Castlemaine Harbour as a result of the

absence of necessary permission to carry on that activity after new measures for the authorisation of such activity in protected

areas had come into force. Cromane has argued that the Minister was in breach of a legitimate expectation or, alternatively, was

negligent arising out of the circumstances in which it was forced to cease its activities.

1.3 The trial judge (Hanna J.) found in favour of Cromane under both headings and made an award of damages in the sum of €125,000

in respect of Cromane and €275,000 in respect of O’Sullivan McCarthy. The State has appealed to this Court against that finding. In

addition to raising questions as to whether an award of damages can properly be made either in the context of legitimate expectation

or on the basis of negligence, the State has also appealed against the amount of damages awarded and also, as a separate basis of

appeal, by asserting that damages could not, in any event, be awarded in favour of Cromane in respect of any losses attributable to

that company.

2. The Issues

2.1 On that basis, there are four sets of issues at least potentially before this Court on this appeal. The first and second issues

concern whether, in the circumstances of this case, it was properly open to the trial judge to make an award of damages at all under

the headings of, respectively, legitimate expectation or negligence.

2.2 In the event that both of those issues were to be found in favour of the State then clearly no further issues would arise.

However, in the event that this Court were to uphold at least the principle of an award of damages under either (or, of course, both)

headings, then the two separate issues which relate to the question of damages would require to be addressed. On that basis, the

third issue concerns the calculation of damages by the trial judge (in that context it should be recorded that Cromane cross appealed

on the basis that the calculation by the trial judge of the award of damages was inconsistent, it was said, with some of the judge’s

findings as to the evidence) and the fourth issue concerns whether it was appropriate, even if damages, in principle, were available to

O’Sullivan McCarthy, to award any damages in favour of Cromane in respect of losses attributable to that company. In that latter

context, it should be noted that the issue between the parties concerns the level of connection of Cromane with the alleged cause of

action.

2.3 As already noted, the underlying issues which arise in these proceedings concern certain licensing functions of the State, and in

particular the Minister, relating to the shellfish operations of Cromane. As will be discussed later in this judgment, O'Sullivan McCarthy

is a separate legal entity which has a shareholding connection with Cromane. O’Sullivan McCarthy is involved in cultivating shellfish.

Cromane was not, therefore, directly affected by any of the licensing issues which are at the heart of these proceedings, but claims

to have suffered loss indirectly as a result of the inability of O’Sullivan McCarthy to supply shellfish because of the licensing difficulties

to which I have referred. The separate question which arises in the context of Cromane is, therefore, as to whether, even if

O’Sullivan McCarthy is entitled to successfully maintain proceedings for either or both of legitimate expectation or negligence,

Cromane is likewise entitled, notwithstanding the more remote connection of that company to the events which give rise to these

proceedings.

2.4 The background to this case is to be found in the developing legislative framework enacted at European Union level for the

purposes of protecting the environment. In that context, it is necessary to turn briefly to that framework.

3. The EU Framework

3.1 Council Directive 92/43/EEC of the 21st May, 1992 (“the Habitats Directive”) was concerned with the conservation of natural

habitats and of wild fauna and flora (O.J. L 206 4/7 22.7.1992). In respect of activity which it was proposed should take place in a

Special Area of Conservation (“SAC”) as specified under the Habitats Directive, it was required that an appropriate assessment first

be carried out to determine whether such activity would affect the integrity of the site.

3.2 The European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997) were introduced for the purposes of

transposing the Habitats Directive into Irish law. As part of the gradual measures introduced for the purposes of implementing the

Habitats Directive, various candidate SACs (“cSAC”) were identified and notified to the relevant European authorities. Castlemaine

Harbour was one such area identified.

3.3 It is also worth noting that, as will be discussed in section 5 of this judgment, in parallel with those developments, Castlemaine

Harbour had earlier been designated as a special protected area for birds under the Irish implementing measures designed to transpose

Council Directive 79/409/EC (“the Birds Directive”).

3.4 In any event, the critical legal requirement which, as a result of those measures, applied to Castlemaine Harbour was Article 6.3

of the Habitats Directive which reads:-

“Any plan or project not directly connected with or necessary to the management of the site but likely to have a

significant effect thereon, either individually or in combination with other plans or projects, shall be subject to

appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the

conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the

competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely

affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

3.5 One of the questions which arose was as to whether that provision applied, or applied in the same way, in respect of existing

activities which were being carried out in an area of conservation prior to its designation as such and, indeed, prior to the relevant

European legislation or its Irish implementing measures coming into force. The relevance of that question to these proceedings is that,

as will appear later in this judgment, the activities which Cromane was carrying on in the harbour were well established prior to the

developments in European environmental and conservation law to which I refer.

3.6 The European Court of Justice (“ECJ”) delivered two important judgments in relation to the interpretation of Art. 6 of the Habitats

Directive in the mid-noughties. These were – Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot

Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405 and

Commission v. Ireland (Case C-418/04, ECR [2007] I-10947). The net effect of both of these decisions was to make clear that the

regime specified in Art. 6 was required to be applied to activities which existed prior to the designation of an area as a SAC or cSAC.

Furthermore, it was made clear that the requirement for an appropriate assessment of the implications of any such activity required

that the relevant authorities had, prior to authorisation, to be satisfied that, in the words of the ECJ, “in the light of the site’s

conservation objectives…no reasonable scientific doubt remains as to the absence of such effects” (being adverse effects on the

integrity of the site).

3.7 This interpretation of the legal position undoubtedly caused significant difficulties for the Minister and also, as a result, for

Cromane. As will be clear from an account of the facts to which I will shortly turn, the Minister had provided various forms of

permission which allowed for the continuation of Cromane’s activities notwithstanding the coming into force in this jurisdiction of the

regime under the Habitats Directive. However, no specific analysis or assessment had been carried out and, indeed, the necessary

scientific work had not been engaged in so as to allow for an immediate assessment of the type which the ECJ held was required in

order that activity be permitted.

3.8 As a result, it was clear that, as a matter of law, the Minister could not grant any permissions which would have the effect of

allowing activity within the boundaries of the protected area unless and until an appropriate assessment had been carried out and

such assessment satisfied the requirements identified by the ECJ, being that there was no reasonable scientific doubt as to the

absence of adverse effects.

3.9 While efforts were made to deal with the situation which had emerged as a result of the decision of the ECJ in Commission v.

Ireland, there can be no doubt that, at least to some extent, the existing commercial activities of Cromane were interfered with.

There can also be little doubt but that the Minister was mistaken as to the proper interpretation of the Habitats Directive and its Irish

implementing measures for it is clear that the Minister considered that it was possible to continue to provide appropriate licences for

the existing activities of Cromane notwithstanding that they were to take place in a protected area and notwithstanding the fact that

no specific assessment had been carried out. It is as against that background that the claim for damages in respect of breach of

legitimate expectation and/or negligence was brought. On that basis it is appropriate to turn to the facts.

4. The Facts

4.1 The trial judge found that, in general terms, the business currently being carried out by Cromane in Castlemaine Harbour had been

in place since the 1970s. However, so far as the issues which are now before this Court are concerned, the relevant events

commenced in the early 1990s. At that time, the possibility of the designation of areas as special protection areas was under

consideration. On the 7th April, 1993, a public notice was published in the Irish Times by the National Parks and Wildlife Service of the

Office of Public Works announcing the intention to classify Castlemaine Harbour as a special protection area. That notice stated

that:-

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

or their use for shellfish culture”

It was also suggested in evidence that this statement was echoed in a Government Notice at the time. On this issue, the trial judge,

at p. 14, found as follows:-

“… there was a representation made to the plaintiffs in both the government notice and the newspaper notice of 1993.

There was comfort given. 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.”

4.2 Thereafter, the mussel fishing business carried on by Cromane proceeded without interruption until difficulties were encountered in

relation to the permission regime which is at the heart of these proceedings. I will turn shortly to that regime. However, so far as the

situation on the ground is concerned it is also necessary to note that in May, 2008, O’Sullivan McCarthy spent in excess of €1 million

renewing a mussel cultivator, “Western Adventure” T246, in order to qualify for a new certificate of compliance under the

Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels 1997 as provided

for in European Council Directive 97/70/EC, as amended, and as transposed into national law by the Fishing Vessels (Safety

Provisions) Regulations, 2002 (S.I. No. 418 of 2002).

4.3 It should also be noted that there were various communications between Cromane and/or O’Sullivan McCarthy, on the one hand,

and State agencies, on the other hand, which it is said led to the State generally being, at least in broad terms, aware of the

commercial activities being conducted in Castlemaine Harbour. The trial judge also accepted that the Department of Agriculture,

Fisheries and Food has at all times been fully aware of what was described as the modus operandi of Cromane and that there was, at

all times up to the matters complained of, a close and good working relationship with the Department including “on the ground”

operations through the offices of departmental officials. In this regard, the trial judge accepted that the Department was “well aware

of the workings and operational activity in Cromane” and that the Department “knew, through constant contact and face-to-face

communication in Cromane through its officials how the plaintiffs (and others) carried on their business.”

4.4 Further, the evidence before the trial court, which was accepted by Hanna J., was to the effect that attempts to import mussel

seed from elsewhere in the country proved unsuccessful and that, given the location of their fishery grounds, such alternative supply

was not viable.

4.5 In respect of the assessments which were required to be carried out before the harbour could be opened, the High Court found

that the carrying out of screening tests was within the control of the Minister. Hanna J. accepted the evidence of Dr. O’Connor,

expert witness for Cromane, that if there had been a screening test carried out this project would have been “screened out as having

no adverse consequence on the environment”. Dr. O’Connor gave evidence that he could have undertaken the appropriate analysis

within two months, which analysis, the High Court found, should have been done quickly in 2008.

5. Licensing and Permissions

5.1 As set out in the judgment of the High Court, Castlemaine Harbour has been a Special Protection Area (SPA) since 1979 in

accordance with Council Directive 79/409/EEC ("the Birds Directive") as amended. In 2000, a wider area of protection, a Candidate

Special Area of Conservation (cSAC), was opened under Council Directive 92/43/EEC ("the Habitats Directive") as amended. As it

comes within the remit of both of these Directives, the site is known as a "Natura 2000 site". As a consequence, the harbour is closed

annually for a period of time to allow for stock conservation, and authorisation of the Minister is required to obtain mussel seed.

5.2 Apart from the protection afforded to the harbour under the Natura 2000 scheme, appropriate licences must be granted to

O’Sullivan McCarthy in order that they may engage in their commercial activities, such as the bottom cultivation of mussels, in this

area. Secondly, it is required that Castlemaine Harbour be “open” for the purposes of these aquacultural activities. The opening and

closing of the harbour in this regard is governed by Statutory Instruments made by the Minister which will be outlined in more detail in

due course.

5.3 In fact, in relation to individual licences, O’Sullivan McCarthy was licensed to engage in bottom cultivation of mussels at two sites

in Castlemaine Harbour (301A and 301B) in accordance with a ten-year aquaculture licence granted under the Fisheries (Amendment)

Act 1997 and a Molluscan Shellfish (Conservation of Stock) permit which allows them to move seed to farm the mussels. It also has a

sea-fishing boat licence (number 141805994) issued under the Fisheries Acts 1959 to 2006 for its boat Western Adventure II.

O’Sullivan McCarthy is involved in fishing and transplanting mussel seed to the aquaculture site licensed at Castlemaine Harbour.

5.4 Traditionally, O’Sullivan McCarthy obtained mussel seed from an area within the bay. From there, it placed the seed in the nursery

ground for further development for a period of six weeks. The mussel seed collection activities usually lasted for a period of twenty

days during the summer months. As noted by the trial judge, these were almost invariably non-consecutive days as they were

determined by tidal and weather conditions. After that, the seed was taken from the nursery ground and then put into other areas

(one shared area under the Fishery Order Licence and two other areas within the SPA where O’Sullivan McCarthy had exclusive rights

under Aquaculture Fishing Licenses) where it was left for a period of two years for later harvesting.

5.5 Up to the determination of the ECJ in Commission v. Ireland on the 13th December 2007, Cromane carried out these commercial

activities within the harbour on a regular basis. However, following the determination of the ECJ, a decision was made not to open the

harbour for mussel seed fishing activity during the summer months in 2008. In this regard, an overview of the Statutory Instruments

regulating the opening and closing of the Harbour will demonstrate the access, or lack thereof, extended to Cromane in order to

operate within the Harbour.

6. Statutory Instruments

6.1 An overview of the Statutory Instruments regulating the opening and closing of the harbour and the permissions required to

operate therein is necessary at this point. In essence, a sequence of S.I.s was introduced by the Minister to open and close the

harbour for mussel fishing each year. There were some 29 Statutory Instruments outlined in the Book of Statutory Instruments as

prepared by the State, but it is not intended to refer to all of those instruments here. The focus will be on the relevant Statutory

Instruments purporting to regulate the opening and closing of the harbour for Cromane’s purposes, and those relevant to the

operation of their activities.

6.2 Closure of the harbour began, for these purposes, on 30th November, 2007, with S.I. 789/2007, also known as the Mussel Seed

(Prohibition on Fishing) Regulations 2007. Two Statutory Instruments were then introduced to take effect from 9th June, 2008. The

first, S.I. 162/2008 revoked S.I. 798/2007 which theoretically opened the fishery. However, the second, S.I. 176/2008, imposed a

prohibition on fishing for mussel seed within the areas described in the schedule thereto, which included, inter alia, an area in Dingle

Bay described at paragraph (u) of the Schedule, and comprising an area which included Castlemaine Harbour.

6.3 It would appear that in 2008, the harbour was not opened for fishing until 5th October, by which time the season for mussel seed

fishing had passed as serious damage had been done to the mussel seed by predators such as starfish and green crabs.

19.2 In 2009, the situation was different. The fishery was opened for mussel seed collection on 30th April by S.I. 150/09 and

remained open until 14th May.

6.5 However, another statutory instrument was introduced in 2009 which is relevant to the Court’s analysis. The European

Communities (Habitats and Birds) (Sea Fisheries) Regulations 2009 (S.I. 346/09), commenced on 27th August, 2009, provided for the

issuance of so-called Natura permits, which added what Cromane describe as an “extra layer of regulation” in terms of the operation

of their commercial activities within the harbour. As this S.I. was commenced after Cromane had obtained the requisite mussel seed in

2009, it did not impact on their operations that year.

6.6 However, in 2010, the regulatory landscape was as follows. In fact, S.I. 174/2010 opened the fishery on the 4th of May and it

remained open until the 25th of May that year, which was within the season for obtaining mussel seed. However, Cromane did not

gain access to the fishery until August that year when it was opened for a second period of time, by which time the mussel seed had

been seriously damaged. It emerged in argument before this Court that what had prevented Cromane from operating their activities in

May that year was, in fact, that a Natura permit was not obtained by them until August 2010. Cromane state that they applied for

such a permit as soon as they learned that it was required, and argue that this extra layer of authorisation was but part and parcel of

their case and that the lack of essential scientific information available to the Department, in essence, lead to the imposition of a

regulatory scheme that was poorly informed and, consequently, in breach of their rights. However, it was strongly disputed by the

State that this was ever part of Cromane’s case. Ultimately, it did emerge in Cromane’s argument before this Court that the matter of

the Natura Permit scheme and any purported connection with the absence of monitoring and scientific tests of the fishery site had

not specifically arisen before the trial court.

7. Interim Measures

7.1 As noted, the determination of when the harbour was open or closed, for present purposes, was regulated through a series of

Statutory Instruments made by the Minister under the legislation as outlined in the previous sections of this judgment. However,

certain interim measures are also relevant. For example, Cromane refers to a letter from the Minister to Cromane on 2nd July, 2008,

stating as follows:-

“It is the environmental issues associated with the Natura 2000 sites that have caused the delayed opening of the

mussel seed fishery in Cromane. In order to comply with the requirements of the Habitats and Birds Directive, baseline

data for the area must be collected and then an appropriate assessment carried out on the area based on this data.”

The letter further stated that:-

“The interim approach is being finalised at the moment with a view to presenting it to the European Commission in the

near future. Any re-opening of the Mussel seed fisheries in 2008 will be dependent on the Commission agreeing to the

management/interim approach proposed.”

7.2 In light of these matters, it is necessary to set out what actually occurred on a year by year basis after the difficulties arising

from the decision of the ECJ first arose.

7.3 In essence, as Hanna J. described the matter, concerns arose in the Department of Agriculture and Fisheries and in the

Department of the Environment as to whether there was a risk of adverse environmental impact in the areas of the SPA arising from

the gathering of the mussel seed. Following the determination of the ECJ, it was decided not to open Castlemaine Harbour for mussel

seed fishing activity in 2008 as would normally occur during the spring/summer months. Between late August, 2008, and 9th

September, 2008, various statements were made by the Minister to Cromane to the effect that the harbour remained closed for

mussel seed fishing. Ultimately, as outlined in the previous section of this judgment, Castlemaine Harbour was not opened by the

Minister for mussel fishing until 5th October, 2008. By then, the season for mussel seed fishing had passed, and predators such as

green crabs and starfish had seriously damaged the mussel stock. As a result, O’Sullivan McCarthy was without any stock of mussels

from 2008 for maturation on their licensed sites.

7.4 In 2009, the “relaxation” of the regulations pertaining to the closing of the harbour occurred from the 30th of April, 2009, to the

14th of May, 2009, within the season for mussel seed fishing, so that Cromane had sufficient opportunity to gain access to the

fishery.

7.5 However, in 2010, although the relevant “relaxation” of the regulations closing the harbour for commercial mussel fishing

operations occurred at the appropriate time, the difficulty in accessing the fishery stemmed from the “extra layer of regulation”

imposed under S.I. 346/2009, which introduced the requirement for a Natura Permit in order to gain access to the harbour, and the

fact that one was not obtained by Cromane until August of that year. As noted earlier, it was stated in argument before this Court

that the Natura permit was sought and obtained as soon as Cromane became aware that such was necessary.

8. The Relationship Between Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited

8.1 Cromane and O’Sullivan McCarthy are two separate corporate entities that have worked closely together for a period of years.

They also have a common shareholding, and Castlemaine Harbour is the centre of their operations. O’Sullivan McCarthy sells all of its

harvested mussels to Cromane. However, Cromane does have other suppliers in the Castlemaine area.

8.2 The State argued that Cromane and O’Sullivan McCarthy have chosen, for business reasons that have presumably served them

over the years, to organise their relationship inter se in the manner they have done, that is to say, using two companies with

separate legal personalities and accounts. Quite simply, it is said that Cromane is a downstream purchaser of goods from the party

with whom the State dealt, namely O’Sullivan McCarthy. The State submits that any dealings it had with Mr. O’Sullivan or Mr.

McCarthy were had with them as directors of O’Sullivan McCarthy.

8.3 In essence, it is stated that Cromane purchases shellfish and fish for wholesale from O’Sullivan McCarthy and from others holding

Aquaculture Licences situate at Castlemaine Harbour. O’Sullivan McCarthy engages in the cultivation and wholesale of molluscs.

9. Causation and Damages

9.1 In all claims for damages it is usually necessary to establish liability (for example a breach of contract or a tort), causation (a

causal link between the cause of action established and some consequence or consequences) and quantum or amount (being a

valuation of the amount of damages which it is necessary to award). In the ordinary course of events it is normal to first address

questions which relate to the liability of a party to pay damages at all before going on to consider causation and the amount of those

damages or, indeed, issues which might affect how those damages should be calculated. However, there are some cases where an

alternative approach may make more sense. For reasons which I hope will become apparent, this case is, in my view, such a case.

9.2 I have already identified some of the issues which arose on this appeal under the broad damages heading. One of those issues

concerned the losses claimed in respect of 2010. As already noted, that year was the third year after problems emerged concerning

Cromane’s business. It is clear that Cromane was unable to carry on its business in the first year (2008) and while, therefore, there

remain significant disputes between the parties as to the manner in which the trial judge went about the task of calculating the

losses attributable to that year, there can be no doubt but that, if liability is established, O’Sullivan McCarthy (but not necessarily

Cromane) is entitled to such damages as they might be able to establish in respect of 2008. Again, it is common case that O’Sullivan

McCarthy was able to conduct its business in the ordinary way in the second year (2009) so no question of damages in respect of

that year arises. There is, however, a question about the third year (2010) to which I now turn. It is clear that the trial judge

awarded damages in respect of losses attributable to an interference with O’Sullivan McCarthy’s business in that year. That O’Sullivan

McCarthy did not carry out its ordinary business during the normal season for 2010 is not in dispute. However, in the course of

questioning by the Court at the hearing of this appeal, it became clear that, to use the language which was applied to the situation

on the ground at that time, the harbour was, in fact, “open” during the normal time when harvesting would have occurred in the year

in question. It may well be that there was another licensing or permission difficulty which prevented O’Sullivan McCarthy from actually

conducting its commercial activities during the relevant period in that year. As already noted, it was said at the hearing of the appeal

that a Natura 2000 permission or licence may also have been required and may not have become available until well after the period

during which relevant activity was to take place.

9.3 However, having carefully reviewed the evidence which was given before the High Court, it does not seem to me that the trial

judge had any evidence before him to explain the precise legal basis on which it was not possible for O’Sullivan McCarthy to carry out

its activities in 2010. It cannot have been because the harbour was “not open” for the harbour was, in fact, “open”, in the sense in

which that term was used, during the relevant period.

9.4 The reason why this is of very great significance is that without having a clear finding of fact as to the legal reason why activity

did not occur in the year in question, it is impossible to assess whether any of the alleged failings on the part of the Minister (whether

breach of legitimate expectation or negligence) could have been responsible for the inability of O’Sullivan McCarthy to conduct its

activities that year. I can well see that, from a colloquial point of view, and from O’Sullivan McCarthy’s perspective, it may not have

mattered very much as to which licence or permission was absent for, from a commercial point of view, the only thing which was likely

to have really mattered to O’Sullivan McCarthy was whether it could carry on its business or not.

9.5 However, from the point of view of a claim in damages, the precise legal reason why O’Sullivan McCarthy was unable to carry on

its activities in that year is crucial. To take but a simple example, there was little or no evidence as to the criteria which needed to

be met in order to obtain a so-called Natura 2000 licence or in relation to the facts necessary to establish an entitlement to such a

permission or licence. Even if it could be established that the Minister was in breach of legitimate expectation or negligent in failing to

have ensured that the necessary scientific work had been done to enable a proper assessment to be carried out so as, in turn, to

enable a valid permission to be given, there could well have been other reasons why, in any event, O’Sullivan McCarthy did not, at

the time in question, qualify for the necessary licence or permission. There was insufficient evidence tendered on this point. If it

were, for example, to be the case that there was some reason, wholly independent of the necessary scientific assessment, why

O’Sullivan McCarthy could not have carried on its activities in the third year, then there would be no arguable causal link between any

alleged failure on the Minister’s part and O’Sullivan McCarthy’s inability to carry on its business in that year, for even if the Minister

had secured the availability of the necessary scientific information to meet the requirements of the Habitats Directive so as to allow

O’Sullivan McCarthy’s activity to be authorised, they would not have been able to carry on that activity anyway for some separate

and independent reason.

9.6 Whether there was such an independent reason, or whether the reason why O’Sullivan McCarthy did not have all of the necessary

permissions were truly based on the same problem concerning the absence of an adequate scientific assessment, we just do not

know, for this issue was not addressed in the High Court, there was no evidence on which the High Court judge could have reached

any conclusions in that regard, and there is no basis on which this Court can now be expected to make assumptions about the

reasons.

9.7 In that context, it must be recalled that the onus of proof in respect of damages (including causation) lay on O’Sullivan McCarthy.

It was for O’Sullivan McCarthy to establish the precise legal reason why it was unable to carry on its activities in any relevant year in

respect of which damages were claimed and to establish any factual basis for suggesting that there was a causal link between any of

the alleged failures on the part of the Minister and that inability. There just was no evidence presented at the trial from which any

sustainable conclusion in that regard could be reached. I am, therefore, satisfied that, in any event, and irrespective of the situation

which might properly be said to arise either in respect of legitimate expectation or negligence, no claim for loss in respect of 2010 can

be sustained, for there was no evidence from which it could legitimately or sustainably be concluded that there was a causal link

between any such alleged failure on the part of the Minister and the inability of O’Sullivan McCarthy to conduct its business in that

year.

9.8 It follows that this case must be confined to the claim in respect of 2008. The reason why it seemed to me to be appropriate to

address this question first was that there was at least the possibility that somewhat different considerations might apply to the issue

of whether the Minister might be said to be liable (and in particular liable in negligence) depending on whether one was assessing

damages arising in 2008, on the one hand, or 2010, on the other hand. This is so not least because the manner in which the Minister

and his officials responded to the problem which emerged was arguably a much more significant potential issue so far as the third year

is concerned but is of much less significance so far as the first year is concerned, for the closure in that year occurred at a time very

soon after the judgment of the ECJ in Commission v. Ireland and at a time when the Minister and his officials had had a very short

period to respond.

9.9 In the light of that finding, I will leave over the question of the criticisms made on behalf of the Minister of the manner in which

the High Court carried out the assessment of damages in respect of the first year until I have set out my views on the proper legal

analysis of O’Sullivan McCarthy’s claim that it is entitled to damages in respect of that year under either heading. I will also leave over

an assessment of the position in respect of Cromane for, as already noted, the issue which the case made on their behalf raises

relates to the fact that the effect on the business of Cromane of the licensing regime was indirect rather than direct. However, in

order properly to address the legal issues which arise under that heading it is necessary to identify the legal basis (if any) on which a

claim under either legitimate expectation or negligence might be sustained at all. I propose to turn first to the question of legitimate

expectation.

10. Legitimate Expectation

10.1 First it should be acknowledged that, as Fennelly J. noted in Glencar Exploration plc v. Mayo County Council (No.2) [2002] 1 I.R.

84, the jurisprudence in the area of legitimate expectation continues to evolve. The views which Fennelly J. expressed in that case

were described by him as provisional but they have come to be accepted as providing at least the broad outline of the law in this

area. At pp. 162-163 of his judgment in that case, Fennelly J. said the following:-

“Firstly, the public authority must have made a statement or adopted a position amounting to a promise or

representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the

representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an

identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction

definitively entered into or a relationship between that person or group and the public authority or that the person or

group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably

entertained by the person or group that the public authority will abide by the representation to the extent that it would

be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously

possible. Equally they are qualified by considerations of the public interest including the principle that freedom to

exercise properly a statutory power is to be respected. However, the propositions I have endeavored to formulate seem

to me to be preconditions for the right to invoke the doctrine.”

10.2 More recently, O’Donnell J., writing for this Court in Lett & Company Limited v. Wexford Borough Council and ors [2014] 2 I.R.

198, [2012] I.E.S.C. 14, expressly adopted the tests identified by Fennelly J. in Glencar. I should also add that there has been a

debate for some time as to the question of whether damages can be awarded in a claim where it is established that there is a breach

of a legitimate expectation. For reasons principally connected with the fact that the matter had not been fully argued, O’Donnell J.

was reluctant, in Lett, to express a definitive view on the issue, but he did cite the judgment of McCracken J. in Abrahamson v. Law

Society of Ireland [1996] 1 I.R. 403 in which it was stated that the courts would endeavour to obtain a benefit in respect of which a

legitimate expectation arose “or to compensate the applicant… by an award of damages…”. It is, I think, fair to say that, while not

definitively decided, the tendency in the more recent case law has been to recognise that, at least in some cases, an award of

damages for breach of legitimate expectation may be permissible. However, it will be necessary to consider that question in this case

only if there is a breach of legitimate expectation in the first place.

10.3 It is also worth noting that in my own judgment in the High Court in Lett (Lett & Company Limited v. Wexford Borough

Corporation and ors [2012] 2 I.R. 198, [2007] I.E.H.C. 195), I suggested that the case law established, in addition to the positive

elements which must be met in order for a legitimate expectation to arise as set out in the three tests identified by Fennelly J. in the

passage from Glencar to which I have referred, that there were also negative factors whose presence might exclude a legitimate

expectation. In that context, at para. 29, I said the following:-

“The negative factors are issues which may either prevent those three tests from being met (for example the fact that,

as in Wiley v. The Revenue Commissioners [1994] 2 I.R. 160 , it may not be legitimate to entertain an expectation that a

past error will be continued in the future) or may exclude the existence of a legitimate expectation by virtue of the need

to preserve the entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in

the statute concerned or, alternatively, may be necessary to enable, as in Hempenstall v. Minister for Environment

[1994] 2 I.R. 20, legitimate changes in executive policy to take place.”

I do not see any reason to depart from those views at this stage. However, it is inevitable that the starting point has to be to

consider whether the criteria identified by Fennelly J. in Glencar have been met.

10.4 In summary, those criteria are first that there must be an appropriate promise or representation, second, that it must be

addressed to an identifiable group of persons creating a relationship between that group of persons and the public authority

concerned, and third, that the expectation created by the promise or representation in question must be such that it would be

“unjust to permit the public authority to resile from it”. It is hardly a surprise that Fennelly J. started with the question of the promise

or representation itself, for it is necessary to identify what it is that the public authority said or did (or, perhaps, in an appropriate

case, refrained from doing or saying) that amounted to what Fennelly J. described as a “promise or representation” as to how it would

“act in respect of an identifiable area of its activity”. Therefore the starting point must be an analysis of the actions or statements

attributed to the Minister in those circumstances. I will shortly turn to that analysis.

10.5 In passing, it should be said that, while it will almost always be necessary to look at the representation or promise to identify the

person or persons to whom it might be said to have been directed, it may be, at least in respect of some of the matters relied on in

this case, that that issue would not prove unduly problematic, for those persons were a definable group which was engaged in

commercial activity within the areas which were proposed to have special status conferred upon them, and whose activities might,

therefore, have the potential to be interfered with by the introduction of the Habitats Directive and its implementation. Thus, the

second leg of the test may not pose particular difficulties on the facts of this case. The third leg of the test, however, is more

problematic, for it is necessary to identify the precise nature of the promise or representation made and, indeed, the circumstances in

which it came to be made, in order to determine whether it would be unjust to allow it to be resiled from. There can, therefore, often

be a close connection between the question of whether there truly was a representation or promise (as opposed to a vague

indication) and whether it would be just to permit the relevant public authority to resile from same.

10.6 It must be recalled that Cromane relies on certain specific matters as amounting to the representation or promise in this case. It

is necessary to identify these and to analyse whether they can properly be said, either individually or cumulatively, to amount to the

sort of representation or promise which would meet the first leg of the criteria identified by Fennelly J. in Glencar.

10.7 As noted earlier, the only representation which it can be said was expressly made by the Minister to Cromane was to the effect

that “it is not envisaged” that there would be any restriction on traditional activities. That statement was made in April, 1993, and

was in the context both of developing European environmental legislation and also in the context of the process leading to the

identification of areas within Ireland which would be designated for the purposes of that European legislation. It could not be said to

amount to a clear commitment on the part of the Minister that there could never be any adverse consequences. What the

consequences were going to be of the designation of an area for European environmental purposes was a matter of European law.

10.8 As events unfolded, it became clear that the Minister did not have the legal authority, as a matter of European law, to allow for

the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried

out. The Minister had no discretion in the matter. The Minister was bound by European law as interpreted by the ECJ. The Minister

could give no greater assurance than that, in the then view of the Minister, it was not envisaged that there would be problems for

traditional activities. But the question of whether there would be such problems was not a matter within, as it were, the Minister’s

gift. It was determined by the proper application of European law. Such an indication by the Minister does not, in my view, amount to

the type of representation which meets the criteria identified by Fennelly J. in Glencar. It is neither precise nor is it of a nature which

could, in any event, be delivered by the Minister, for it was not within the Minister’s power, as a matter of European law, to insist

that there would be no interference with traditional activities.

10.9 For those reasons, I am not satisfied that it was legitimate to entertain an expectation, based on the sort of comments made in

1993, that European law might not, nonetheless, interfere with traditional activities.

10.10 Next, reliance is placed on the fact that, as found by the trial judge, the ongoing activities of Cromane were carried out to the

knowledge of the Minister and on the basis of annual legal measures put in place by the Minister which facilitated the so-called

opening of the harbour. However, as was noted by this Court in Wiley v. The Revenue Commissioners [1994] 2 I.R. 160, the fact that

there may have been an error in the past cannot create a legitimate expectation that that error will be continued into the future. The

fact that the Minister was mistaken in his view that traditional activities, of which the Minister undoubtedly knew, could continue

provided that the Minister put in place the appropriate legal measures, and was also in error about the fact that those legal measures

could be put in place in conformity with European law without carrying out an appropriate assessment, cannot create a legitimate

expectation to the effect that that situation would continue.

10.11 While there undoubtedly was significant expenditure, and while the incurrence of expenditure on foot of a representation may

form part of the Court’s assessment in determining whether it would be appropriate to allow a public authority to resile from a

representation made, expenditure will not be relevant if there was no legitimate expectation in the first place.

10.12 Finally, before leaving this aspect of the analysis, it is worth commenting on one of the representations which was made on

behalf of local producers to the Minister after difficulties had been encountered arising from the decision of the ECJ. It was said to the

Minister that he was disregarding local interests and jobs by reason of an unproven risk to the environment. Unfortunately from the

perspective of those local producers, that is just what the Minister was required to do as a matter of European law. As interpreted by

the ECJ, a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate

assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European

law, to be concerned not with unproven risk but rather with proven absence of risk. Until a sufficient analysis had been carried out to

justify a finding that absence of risk had been proved, the Minister was precluded, as a matter of European law, from giving any

permission which would have allowed for the continuance of mussel farming in the harbour. Given that legal position, it is impossible to

see how any party could have entertained a legitimate expectation that the Minister would permit unlawful activity.

10.13 On that basis, I am not satisfied that the actions of the Minister and his officials could be said to amount to the sort of

representation or promise which can, even potentially, give rise to a legitimate expectation. It follows that it is unnecessary to reach

any definitive view as to whether a pure claim for damages for breach of legitimate expectation can be maintained. In the High Court

in Atlantic Marine Supplies Ltd & Anor v. Minister for Transport & Ors [2010] I.E.H.C. 104 I came to the view that such a claim could

be made. I remain tentatively of that view, but like O’Donnell J. in Lett, I would prefer to leave it until a case in which the issue fairly

and squarely arose and was decisive for the result to come to a definitive view on the issue. It might, for example, be the case that a

proper review of the underlying principles and their application might lead to the conclusion that, while damages may be claimed in

some cases, there may be circumstances where damages would not be appropriate for various reasons of policy. In that context, it

might be necessary to consider whether the finite resources which may be available under a particular statutory scheme could, in

substance, be required to be at least in material part diverted to those who might successfully bring a legitimate expectation claim

where the overall effect of such a decision might be to require that those resources were allocated in a way other than in accordance

with the statute concerned. If it is not possible, by legitimate expectation, to require that a particular decision be made in a particular

way, for to do so might be to infringe on the proper exercise of a statutory decision-making role, then there may be cases where the

award of damages may do much the same thing.

10.14 However, I would leave these issues to a case in which those questions squarely arose. For the purposes of this case, I am

satisfied that there was no sufficient and clear representation or promise made to the effect that there would be no potential impact

on commercial activity within the proposed areas and, therefore, the claim in legitimate expectation must fail. To that extent I would,

therefore, allow that aspect of the Minister’s appeal. It follows that Cromane’s claim in damages must then be considered on the

alternative basis proposed, being that of negligence. For the reasons already identified I am also satisfied that the claim concerned

can only relate to losses attributable to the first year. Against that background, I now turn to the question of negligence.

11. Negligence

11.1 One of the curious features of the law of negligence is the extent to which it is, on the one hand, routinely and mundanely

applied without any great controversy in a large number of cases on a daily basis but, on the other hand, has generated, at the level

of high principle, perhaps more debate than any other issue of controversy in the common law world. The vast majority of negligence

actions pass off without any direct reference to the law of negligence at all. This is, doubtless, because the routine application of the

law of negligence to the sort of circumstances in which it is most commonly invoked is wholly uncontroversial, so much so that the

parties and their advisors do not even need to discuss how it might be applied. The contentious motor accident case hardly ever

turns on a debate concerning the parameters of the law of negligence except in unusual cases such as McComiskey v. McDermott

[1974] I.R. 75 where this Court had to consider an injured navigator in a motor rally car and the extent of the duty of care owed by

the driver of that car to his navigator. Ordinarily, contentious motor accident cases turn on the facts as to how the accident

happened, the injuries actually suffered by the claimant and questions concerning the appropriate compensation for such injuries.

11.2 On the other hand, it would, in my view, be fair to characterise the legal debate concerning the proper scope of the law of

negligence over the last century or so as being a search for a coherent scheme which also worked in practise. I remain unconvinced

that the search has been successfully concluded. Why is it necessary, in the context of this case, to address these issues? The

reason is that the claim of negligence in these proceedings is not one of those routine types of claim where the parameters of the law

are so well established and well known that it need not be mentioned. Rather, this case requires an analysis of where the boundaries

of the law of negligence lie in order to determine whether liability may arise. It is inevitable, therefore, that at least to some extent it

is necessary to return to some of the issues which have been the subject of long-standing debate and which concern the scope of

the law of negligence.

11.3 As a starting point, it might well be appropriate to attempt to analyse why this area has given rise to so much difficulty and so

much debate in almost all common law jurisdictions. Can I suggest that perhaps part of the true underlying difficulty stems from the

fact that we live in a highly interactive world where each of our fortunes are constantly affected, sometimes trivially, sometimes

significantly, by decisions made or actions taken or avoided both by ourselves and by many others on a daily, or even hourly, basis?

One of the lessons which the modern area of mathematics which has come to be known as “chaos theory” has taught is that in a

highly interactive model very tiny variations at one point in time can make huge differences in conditions at another point in time and

often in a far different place. The theory is often associated with the title of a talk given by one of the fathers of that area of

mathematics, Edward Lorenz, at the 139th meeting of the American Association for the Advancement of Science in 1972 which

appeared under the title “Does the flap of a Butterfly’s wings in Brazil set off a Tornado in Texas?”

11.4 I do not, for a moment, suggest that many (or perhaps any) lawyers have had chaos theory specifically in mind as they search

for solution to the elusive question of a principled approach to the law of negligence. However, I do suggest that lawyers and judges

have intuitively understood one of the underlying lessons which chaos theory has taught us. The messy world of human beings

involves a hugely dynamic system in which we constantly interact with each other in ways great and small. In such a situation it is

inevitable that many actions or inactions have a myriad of consequences, some trivial, some potentially significant. A set of traffic

lights breaking down on a busy commuter route will inevitably cause some level of traffic chaos. For most, the consequence will be a

small irritation and perhaps an apology to a (hopefully) understanding boss, co-worker or client. To some, the consequences may be

more severe. A missed flight which had to be rebooked at significant expense. A missed interview and a lost opportunity to obtain a

job. Anxiety and tension which might trigger illness or a row with colleagues or friends which might have lasting consequences. The

list could go on and on.

11.5 While it might be an exercise in reverse engineering, it is appropriate to recall that the underlying principle of almost any area of

redress in law is to attempt to put a party back into the position in which it was before any wrongful act occurred. But the range of

potential consequences of a minor lapse can be so wide, so disparate, so disproportionate to the extent of the lapse and, as one

moves away from direct to consequential or indirect knock-on effects, so difficult to analyse, it is hardly surprising that judges have

been concerned to ensure that some limit has to be placed on the extent of legal liability for lack of care and, indeed, the scope of

that duty of care itself.

11.6 However, the undoubted acknowledgement that there has to be some limit does not provide any easy answer to the question

which has troubled the jurisprudence for many years, which is as to where that limit should be placed or, perhaps, even more

fundamentally, by reference to what type of principle or overall approach should we assess where those limits are to be placed in

particular types of cases.

11.7 Those broad questions arise in two ways in the circumstances of this case. The first is as to the general overall approach. The

second is more particular and concerns the application of that overall approach in the particular context of the fact that the

defendant in this case is a public authority. I will turn shortly to a consideration of each of those questions in order. However, the

fact that the defendant in this case is a public authority leads to one further general observation.

11.8 I have already sought to identify why it might be said that the question of finding an appropriate means of imposing a limit on

the scope of the law of negligence has proved problematic. However, there is, at least potentially, a second aspect of that general

problem which comes into focus in the circumstances of this case. The general problem stems from the fact that the range of

consequences of any individual act can potentially be so extensive that some limitation must be placed, however difficult it may be to

define that limitation. The second issue is that there may be particular circumstances where there is an additional reason for not

imposing potential liability, being that there are important countervailing factors of policy which lean against the creation of the

prospect of liability in certain types of cases. The undesirability of causing disproportionate interference in the orderly operation of

public (and indeed at least arguably certain important private) functions can be an important factor which must be taken into

account. If judgements require to be made with a backward glance towards the risk of being sued for negligence then the judgement-

making process may be impaired to the detriment of all. There is at least an argument that this may provide, in certain cases, a

justification for excluding liability when it might otherwise arise. Against that very general background, I turn first to the question of

the limits of the duty of care.

12. The Limits of the Duty of Care

12.1 It might be said that the first occasion on which there was an attempt to develop the general principle behind the disparate

case law on the question of a duty of care was in Donoghue v. Stevenson [1932] A.C. 562. In Lord Atkin’s famous speech in that

case he made the point, which I have already sought to address in this judgment, that in the practical world there cannot be given a

right “to every person injured”… “to demand relief”. Lord Atkin then went on to establish the so-called neighbour principle by which

he meant that a duty of care was owed to “persons who are so closely and directly affected by my act that I ought reasonably to

have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in

question”.

12.2 The next major development can probably be said to have occurred in Anns v. Merton London Borough Council [1978] A.C. 728,

which reaffirmed the proximity or neighbourhood principle but also added a second question which required the Court to consider

whether there were any reasons which ought to negative or to limit the scope of the duty or the class of persons to whom it is owed

or the damages to which a breach of it might give rise. While Anns was applied in this jurisdiction, Keane C.J., in Glencar expressed

the view that it was not clear that there had been an unqualified endorsement of Anns. In Glencar, this Court considered the further

development of the law in the United Kingdom which is found in Caparo Industries plc v. Dickman [1990] 2 A.C. 605. In that case, the

two-step approach adopted in Anns, being proximity and an analysis of whether there were countervailing requirements, was replaced

by at least three steps, being forseeability of damage, proximity, and the fairness, justice and reasonableness of imposing a duty of

care. I will briefly return to the question of whether there may, in fact, be four steps. What Keane C.J. suggested in Glencar was that

there is a further requirement that, 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”.

12.3 It might, however, be said that part of the problem encountered in attempting to identify a general principle has been that the

principles have been expressed in such very general terms that it may be very difficult to identify, with any real level of precision,

how those principles are to work in practice. It is easy to see that there may be a limit to the duty of care created by proximity or

neighbourhood. It is said that it relates to those who one might reasonably have had in one’s contemplation. But just where that

boundary might lie in practice can be hugely debateable. Likewise, it is easy to say that there should be a limit on a duty of care by

reference to the requirement that it be “just and reasonable” that the duty be imposed. But where does it stop being just or

reasonable in practice to impose the limit?

12.4 There has been, at least to some extent, what has been described by academic commentators as an incremental or gradualist

approach to defining the boundaries of the duty of care by reference to the evolution of the existing circumstances in which a duty of

care has been found to exist and by reference to its application by analogy to new circumstances.

12.5 It may well be that Keane C.J. in Glencar identified four matters that required to be considered, being forseeability, proximity,

the presence of countervailing public policy considerations and the justice and reasonableness of imposing a duty of care. Be that as

it may, it may not be necessary, for the purposes of this case, to attempt, yet again, to identify whether it is possible to identify any

overarching principle for placing a boundary on the duty of care which does not run the risk of being open to criticisms such as

creating a test which was “slippery” (see Stovin v. Wyse [1996] A.C. 923) or “will o’ the wisp” (see Caparo Industries v. Dickman

[1990] 2 A.C. 605). But at least that debate forms the backdrop to what is the important issue which must be addressed in this case

which concerns the extent to which public authorities may be held to owe a duty of care. Before turning to that specific question, it

is appropriate to briefly deal with how the jurisprudence of the European Court of Human Rights (“ECHR”) has dealt with questions

concerning the exclusion of state or public authority liability in the context of the common law duty of care.

13. The Convention on Human Rights

13.1 In this context, the first significant case which arose before the ECHR was Osman v. United Kingdom [1999] 1 F.L.R. 193.

However, the ECHR returned to the matter in Z v. United Kingdom (2002) 34 E.H.R.R. 3, in which the Court accepted that it may not

have properly understood the relevant principles of the common law when giving judgment in Osman. The House of Lords, in the

underlying proceedings which gave rise to Z, being X v. Bedfordshire County Council [1995] 2 A.C. 633, had struck out a negligence

action against a local authority for failure to prevent abuse of children. It was held that an action of that type failed the ‘fair and

reasonable’ requirement specified in Caparo. In Z, the ECHR accepted that the development of the law concerning the duty of care

which stems from Caparo involved the application of what it described as the ‘fair, just and reasonable criterion’ as an intrinsic

element of the duty of care. On that basis, the ECHR accepted that the law did not “disclose the operation of an immunity”. On that

basis, the Court concluded:-

“In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority

flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic

law”.

13.2 It is, however, clear that the existence of an immunity rather than the possibility that, on proper analysis, a particular type of

cause of action may fail because of the absence of the fair and reasonable test, might well have given rise to concerns as to

compatibility with the European Convention on Human Rights. Those authorities seem to me to at least have the capacity to inform

the proper approach to considering whether state or public authorities can properly be excluded from liability.

14. The Position of State or Public Authorities

14.1 It must be recalled that one of the more significant trends in many areas of law in relatively recent times has been an extension

of the circumstances in which the State itself or its agencies or public bodies can be exposed to legitimate legal action. It is, of

course, the case that very many actions taken by public authorities have a real and substantial effect either on the population

generally or on particular sectors or sections who may be affected by relevant decision making. Almost any policy decision will have

an effect, whether positive or negative, on some group of persons. However, as the authors of McMahon and Binchy, The Law of

Torts, 4th Ed., (Dublin, 2013) point out at para. 6.78 “If a duty of care were too easily imposed on public authorities towards all of

those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge

their functions with any confidence or creativity.”

14.2 Precisely for that reason, courts have frequently found either that there was insufficient proximity between a public decision or

action and a particular consequence or have held that there were sufficient countervailing factors which made it inappropriate to

impose a duty of care on a public authority in particular circumstances.

14.3 However, in my view, courts should be careful not to be overprotective of public authorities. In one of the majority judgments in

this case, MacMenamin J. makes a point similar to that identified by McMahon and Binchy in the paragraph from Law of Torts just

cited. I do not disagree with the suggestion that courts, in defining the duty of care to be imposed on public authorities, need to

exercise care to ensure that the proper exercise of public power in the public interest is not stifled. Likewise, I do not disagree that

courts, in considering any possible expansion of the law concerning the duty of care, need to be cautious and adopt an incremental

approach so as to minimise the risk of unintended consequences. However, it seems to me that those concerns can be addressed

within the confines of the third criterion identified in Glencar. What leans against the imposition of a duty of care in certain cases

involving public authorities is the countervailing factor derived from the fact that the actions of the public authority concerned may

involve questions of policy, discretion or adjudication which are to be determined in the public interest and whose exercise in that

manner should not be stifled.

14.4 However, it does not seem to me to follow that every act or omission of a public authority which takes place in the course of

the exercise of public power can necessarily be properly characterised as involving the determination of policy, the exercise of a

discretion or an adjudicative power. Within the overall context of the exercise of public power, certain actions are purely

administrative. The consequences of extending a duty of care in respect of those purely administrative actions may well be far

removed from the consequences of extending a duty of care to decisions involving policy, discretion or an adjudicative role. It follows

that the weight to be attached, as a countervailing factor, against imposing a duty of care in respect of such purely administrative

actions must be much less. It further follows that there must be cases where, therefore, appropriate scrutiny must lead to the view

that there would not be a sufficient countervailing factor to justify excluding a duty of care, on a proportionate basis, in respect of

such purely administrative acts.

14.5 Why, without good reason and the presence of an appropriate countervailing factor, should public authorities not be liable for

the consequences of their actions in exactly the same way as anyone else? It may well be that, in practice, it will be a lot more likely

that an appropriate countervailing factor will be found to be present in the actions of public authorities precisely because of the

public nature of the functions to which those actions relate. But in the light of the need to guard against giving the State an

immunity or, indeed, excessive protection, it seems to me that it is appropriate that a court carefully scrutinise any restriction sought

to be imposed on the potential liability of a public authority to ensure that it is justified and proportionate in the light of the public

interest sought to be protected. That is not to say that, after appropriate scrutiny, there may well be an entirely appropriate basis,

stemming from the public nature of the activity concerned, which would justify treating a public authority differently from a private

person. But the Court should scrutinise the circumstances of the case to satisfy itself that there truly are countervailing public

interest factors sufficient to provide a legitimate basis for excluding a duty of care which might otherwise arise.

14.6 The fact that, as in Glencar, the public authority was carrying out a function designed for the public benefit (in that case the

adoption of a development plan) may very well provide such a justification which would withstand scrutiny. Likewise, the position of

adjudicative bodies which was considered in Beatty v. Rent Tribunal [2006] 2 I.R. 191, may provide an appropriate justification. Other

examples could readily be given.

14.7 It must, in that context, be recognised that the sort of actions or functions frequently carried out by public bodies or officials

may differ very significantly both in their nature and as to their effect from actions or functions carried out by private persons or

bodies. It is inevitable, therefore, that whatever general approach is adopted for the purposes of defining the limits of the duty of

care, the application of that general approach in practise is likely to differ as between public and private persons or bodies at least

when public entities are carrying out functions which are peculiarly within the public domain.

14.8 I note this last qualification because, of course, sometimes a public official may simply be doing something which could just as

easily be done in a private context. A statutory body charged with, for example, establishing a utilities network (such as electricity)

could hardly expect to have a different standard or duty of care applied to it when constructing safe power lines than that which

might apply to a private electrical contractor doing much the same thing. A public official who happens to drive a car in the course of

their public duties could not (except in very unusual circumstances) expect to be assessed on any different basis to any other road

user just because they happen to be driving about in the course of their official business.

14.9 But there are functions which public authorities carry out which have no easy parallel in the private sphere.

14.10 Returning to Glencar, it does not seem to me that the application of the principles of proximity and forseeability in a relatively

even-handed way as and between public and private persons or bodies should, at least in the vast majority of cases, cause too much

difficulty. Persons or bodies carrying out public functions should be entitled to the same, but no more, limitations on the duty of care

applied to them deriving from the exclusion of liability in respect of consequences for a lack of care which might not be regarded as

foreseeable or which might be regarded as excessively remote. Where those boundaries might lie in an individual case may, of course,

be subject to legitimate, and sometimes difficult, debate. But those difficulties can arise just as much in the application of those

principles in unusual situations arising in a purely private context.

14.11 It is in the context of the third criterion, being the question of the presence of a sufficient countervailing policy or public

interest factor, that a legitimate distinction between the public and private spheres is most likely to arise. It is not that that principle

may not apply in the context of a purely private relationship between plaintiff and defendant. It is just that the sort of countervailing

policy or public interest factors whose proper application may lead to the exclusion of a duty of care may more commonly arise in the

public sphere and may, therefore, lead more frequently, on their proper application, to an exclusion of liability in that sphere.

14.12 Finally, although it is unnecessary for the purposes of this case to reach any concluded view of the question, it is at least open

to argument that the possible fourth criterion mentioned in Glencar (being that it must be just and equitable to impose liability) does

not really add very much to the overall picture. If there is a situation of reasonable proximity between the parties and if the loss

arising is foreseeable and if there are no countervailing policy factors which would warrant excluding liability, it must be asked whether

there could often be a basis for saying that it would nonetheless be in accordance with justice and equity to decline to impose a duty

of care.

14.13 I should also express my agreement, at least in general terms, with one of the observations made by Charleton J. in the course

of his judgment in this case. There is, as Charleton J. points out, a risk that an excessive expansion of the law of negligence may

come to, as it were, “swamp” other torts. It would make a nonsense of the carefully worked-out parameters of various other torts if a

party were to find it easy to get around those parameters established in case law for the boundaries of the tort in question by simply

bringing a claim in negligence. However, it seems to me that there is a solution to that problem. It must be assumed that there are

legitimate policy factors which inform the parameters of all torts. The fact that the courts have defined the limits of the tort of

misfeasance in public office in a particular way must be taken to stem from an analysis of the competing entitlements of those

affected by the wrongful acts of public officials or bodies when exercising legal powers, on the one hand, and the need to ensure that

such legal powers can be reasonably exercised for the public good, on the other. Torts such as misfeasance in public office have their

boundaries and limitations precisely because, over the years, courts have come to the view that balancing factors, such as those

which I have identified, require that liability be confined within the boundaries of the tort as thus defined. That analysis clearly gives

rise to what might, in the context of the jurisprudence on the scope of the duty of care, be said to amount to a “countervailing

factor”. If there is a good reason, in accordance with existing jurisprudence in respect of another tort, for limiting the scope of that

tort in a particular way, then there would equally be likely to be a similar good reason or countervailing factor which would limit the

duty of care in a similar way.

14.14 When analysed in that way, it does not seem to me to be likely that negligence could readily be used to get round the

limitations which the law has carefully put in place in respect of other torts, for those very limitations themselves derive from an

assessment of countervailing factors which would need to be taken into account in assessing the duty of care.

14.15 I should say in passing that I agree with MacMenamin J. that it is difficult to characterise with any precision the legal basis on

which the plaintiffs succeeded in Duff v. Minister for Agriculture (No.2) [1997] 2 I.R. 22. It is true that the decision of this Court in

that case has been the subject of academic commentary and discussion in subsequent cases which, it might be fairly surmised,

suggest that the decision is something of an outlier. I agree that it cannot be taken to be an approval for the concept of operational

negligence (a concept to which I will return in the course of this judgment).

14.16 This much can, however, be said. Duff is a case where liability was placed on a State authority (the Minister in that case) in

circumstances where the Minister in question had, because of a mistaken view of the law, put himself in a position where he could no

longer deal appropriately with the dairy farmers who had lost out on milk quota. The Minister had allocated Ireland’s national quota

without making provision for those who had availed of other schemes put in place by the same Minister which had encouraged them

to invest in dairy farming in a manner which led to significant loss when it proved impossible to allocate sufficient quota to them. The

Minister’s difficulty did not concern a policy decision as to the allocation of the national milk quota as such, for it would have been

very difficult to see how any liability could have been imposed for such a pure policy decision. Rather, the Minister’s liability stemmed

from dealing with the national quota on the basis of a mistaken view of the law which put him in a position where he was no longer,

as a matter of EU law, able to accommodate the plaintiffs. There are, at least, some parallels between the circumstances which

underlay the claims in Duff and those which underlie the claim in this case. That being said, the undoubted difficulty with

characterising the precise legal basis on which it can confidently be suggested that a majority of this Court found in favour of the

plaintiffs leads me to the view, in common with MacMenamin J., that it is difficult to derive great assistance from Duff in resolving the

undoubtedly difficult issues which arise in this case.

14.17 I would conclude this section by simply reiterating that a court should be careful, in applying the basic requirements of

proximity, forseeability and absence of countervailing policy factors not to do so in a way which excludes liability on the part of state

authorities in an unjustifiable and disproportionate way which operated on a materially more generous basis than that which would be

applied in the private sphere.

15. Application of Principles

15.1 It is important to start by attempting to identify precisely what it is that it might be said that the Minister did wrong. I have

already set out the reasons why the Minister was obliged, as a matter of European law, not to permit the continuance of Cromane’s

activities until there had been an appropriate assessment which justified giving any necessary permission. Therefore, there could not

have been a duty, as such, to refrain from closing the harbour until an appropriate assessment had been carried out. The Minister had

no legal power, as a matter of European law, to open the harbour in the circumstances which had arisen. To the extent that the

harbour could be opened, it was only permissible in accordance with the interim measures agreed with the European Commission. Any

wider permission given by the Minister either to Cromane, or, indeed, anyone else, would have been a breach of European law.

15.2 It is for that reason that I do not consider that the issue raised by both MacMenamin and Charleton JJ. in their judgments in this

case concerning the question of whether it is permissible to seek, as it were, to go behind the relevant statutory instruments without

first considering whether they can be quashed, properly arises. In the circumstances which had arisen by 2008 to 2010 there could

have been no legitimate basis for quashing those statutory instruments, for the Minister was obliged, as a matter of European law, to

take the position which he did. In passing, I should note that if I had considered the issue of the continuing validity of the statutory

instruments to be relevant, it would have been necessary to have regard to cases both from this jurisdiction (such as the judgment of

Henchy J. in Burke v. Minister for Labour [1979] I.R. 354) and the United Kingdom (see the judgment of Lord Sumption in Bank Mallat

v. H.M. Treasury (No. 2) [2014] A.C. 700) which undoubtedly seek to distinguish between secondary legislation of general application

and measures which, although secondary legislation in form, amount in substance to an individual decision relating to permissions and

the like. While the issues which required to be determined in those cases differ materially from the issue which might have arisen in

this case, and while, therefore, those cases are undoubtedly not directly on point, nonetheless the fact that courts have consistently

regarded individual decisions which are taken in the form of a statutory instrument in a different light from secondary legislation of

general application might well have affected the proper analysis of the approach to the statutory instruments in this case had I

considered that such an analysis required to be conducted for a proper resolution of the case.

15.3 In those circumstances, it seems to me that the real question is as to whether the Minister might be said to have owed a duty

of care which required him to ensure that an appropriate assessment was carried out at an earlier stage. There are a number of

issues which might arise in relation to such a contention, not least the question of whether loss might have occurred in any event but

only in a different year. It will be necessary to return to some of those questions in due course. But for present purposes, in

attempting to identify whether there is a duty of care at all, I will assume that any such problems might be overcome. The question

which arises in relation to the duty of care is as to whether it can be said that the Minister owed a duty of care to put himself into a

position where it would be possible, as a result of the assembling of sufficient necessary data, for him to carry out an appropriate

assessment so as to consider whether it would be lawful to permit the continuance of Cromane’s activities and to do so at a time

which would, had the relevant assessment led to the appropriate conclusion, have allowed those activities to continue uninterrupted.

We know, of course, why the Minister did not procure the carrying out of the necessary scientific work. The Minister had a mistaken

view of the law under which it was felt that it was permissible to allow traditional activities to continue. On that basis, the necessary

underlying scientific work which would have allowed for an appropriate assessment had not been carried out. However, we know that,

when an appropriate assessment was ultimately carried out, it did prove possible to meet the standard required and to permit a

recommencement of Cromane’s activities. It seems clear, therefore, as a fact, that had an appropriate assessment been carried out

at a much earlier stage, permission could and would have been given for the continuance of the relevant activities.

15.4 The real question on the duty of care, therefore, comes down to this. In the light of developments in European law, did the

Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in

protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made

for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found

to be present, to allow those activities to be authorised?

15.5 Put in that way, the potential duty of care certainly meets the test of forseeability. It was clearly foreseeable that the absence

of sufficient scientific information would not allow an appropriate assessment to be carried out and that there would be likely to be a

consequential interruption in the ability of those engaged in traditional activities to continue with their business. Also those persons

are a relatively finite group. They are those who were engaged in such activities, in the various areas in the country which were to,

or were likely to, have special protected status conferred on them. Furthermore, as pointed out elsewhere in this judgment, some

comfort had been given to those carrying out such activities. They were, therefore, reasonably in the Minister’s contemplation. In my

view the proximity test is, therefore, likewise met.

15.6 For the reasons which I have already sought to analyse, it seems to me that the proper way to approach the question as to

whether a public authority, such as the Minister, may then have a duty of care imposed is to first consider whether a duty of care

would be imposed on a private individual in an analogous circumstance and then to consider whether there is any sufficient

countervailing factor which could provide a proportionate basis for not imposing a like duty on a public authority.

15.7 It is important to emphasise that the question which is now being addressed is as to whether a duty of care, in the narrow

sense in which I have sought to define it earlier in this judgment, can properly be said to arise in the circumstances of this case. The

question is not, as it was in Glencar, as to whether a public authority owes a duty of care in relation to implementing a public duty

such as the formulation of a development plan in (as was the case in Glencar) or in making an actual decision on whether, as a result

of an appropriate assessment, it is permissible to allow activity in a protected area, such as might have arisen in other circumstances

connected with this case. Rather, the question is whether a duty of care exists to ensure that the Minister is put in a position to

make a proper legal decision in the first place.

15.8 The underlying facts, as found by the trial judge, are these. First, the Minister was well aware, through his officials, that there

were traditional activities of a commercial variety being carried on by various operators including Cromane. Second, the Minister was

clearly aware, in the light of the indication given that it was not envisaged that those traditional activities would be affected by

designation, that there was a potential issue which might arise concerning whether the business and property interests of those

carrying on such traditional activities might be interfered with. The Minister was, therefore, fully aware that any failure to place

himself in a position to make a sustainable decision, one way or the other, on whether to allow such activities to continue had the

potential to have a significant effect on those carrying on such activities. In my view a private party, placed in as analogous a

position as it might be possible to envisage, would undoubtedly have a duty of care to those who were likely to be foreseeably and

proximately affected by their activities. They are persons who ought reasonably to have been in contemplation.

15.9 It is also of particular importance to recall that the issue which was ultimately determined by the ECJ in Commission v. Ireland

had been brewing for some time. Doubtless the Minister took advice on the matter and doubtless there were arguments both ways as

to whether the position adopted by the Commission, on the one hand, and Ireland, on the other, were correct as a matter of

European law. However, it must or should at least have been clear to the Minister for some significant period of time prior to the

decision of the ECJ that there was a risk that the view expressed by the Commission would be found to be correct and that, if that

should prove to be the case, an immediate problem would be posed arising from the absence of any sufficient scientific analysis to

enable permissions to be granted. It follows that, at least from the time when the prospect of proceedings against Ireland being taken

by the Commission were first mooted, it was clearly foreseeable that, in the event that the Commission were proved to be right, a

small and defined group of operators (being those who were carrying out traditional activities in protected areas) would suffer losses

by temporary closure even if it should ultimately prove possible, after an appropriate assessment, to permit the recommencement of

those traditional activities.

15.10 I do not consider that the fact that there may be a number of persons in a particular category necessarily affects the

application of the proximity test. The pedestrians who may be said to be within the proximate and foreseeable duty of care of a

motorist driving down a busy city street may be quite numerous. But they are clearly defined. They are the people whom one might

reasonably expect could be injured in the event that the motorist drives negligently. Likewise, the people who might suffer from a

failure on the part of the Minister to put himself in a position to make a sustainable decision on whether traditional activities could, as

a matter of European law, continue, were equally clearly defined and were, as it happened, at least to a very large extent, actually

known to the Minister or officials in his department.

15.11 To say, therefore, that the forseeability and proximity tests are not met in the circumstances of this case would, in my view,

be to afford the State a degree of immunity or exclusion which would not be afforded in a comparable private situation. For the

reasons which I have already sought to analyse I would, therefore, regard such an approach as inappropriate and would find that the

forseeability and proximity tests are met on the facts of this case.

15.12 It is next necessary to consider whether there is any good reason why the fact that a public authority was concerned should

lead to finding that there is a countervailing policy factor of sufficient weight to justify the exclusion of a duty of care. It is important

to note that the duty of care which I have characterised does not involve any policy or discretionary considerations or adjudicative

roles. It is not concerned with the allocation of resources or the making of statutory decisions. Rather, it is a duty to take reasonable

steps to ensure that the Minister would be in a proper position to make a decision under European law and any relevant Irish

measures.

15.13 In the light of that analysis, I should turn first to a general observation about some of the criticism which MacMenamin J.

directs towards the judgment of the trial judge. I do not necessarily disagree with much of that criticism. There may well have been a

lack of clarity as to the precise duty of care or negligence which led the trial judge to find in favour of Cromane. There may, to an

extent, have been occasions where concepts more appropriate to legitimate expectation claims strayed into an analysis of the claim

in negligence. I should not, therefore, be taken as being in full agreement with the reasoning of the trial judge as to the manner in

which he found that there was a duty of care and that it had been breached. This judgment is, however, concerned with identifying

whether it is appropriate to impose the rather specific duty of care which I have sought to identify. That duty of care did not extend

over any prolonged timeframe for it commenced when the Commission formally took the position that Ireland was in breach of its

obligations under European environmental law. The comments of MacMenamin J. concerning the lengthy time span over which it would

be necessary to review the acts of the Minister and, indeed, the fear of hindsight creeping in to a post hoc analysis of the actions of

the Minister seem to me to have little application in assessing a duty of care of the precise type which I have identified.

15.14 As a preliminary to the commencement of proceedings against Ireland, the Commission was, of course, required to furnish a

reasoned opinion as to why it was said that Ireland was in breach of its obligations. As appears from the judgment of the ECJ, there

was a range of issues raised by the Commission concerning Ireland’s compliance with the directives in question. There was, as is usual

practice, correspondence which predated the reasoned opinion. Given the range of issues, a number of reasoned opinions were, in

fact, sent by the Commission to Ireland with the latest of same being dated the 11th July, 2003. From that time onwards it must at

least have been clear to the Minister that the Commission had not been persuaded by Ireland’s arguments and was of the view that

Ireland was in breach of a range of obligations including the one concerning appropriate assessment which is at the heart of this

case.

15.15 The Commission is not, of course, always right in such matters. Any Member State who disagrees is free to argue their case

before the Court of Justice. But a reasoned opinion from the Commission is not in the same category as speculation or even an

allegation by a private individual. It represents the considered view of the body which, under the Union treaties, is charged, amongst

other things, with ensuring that Union law is properly transposed and implemented in Member States. The duty of care which I

suggest requires to be analysed is, therefore, one which arises in a specific timeframe and operates against the backdrop of a formal

contention on the part of the Commission that an appropriate assessment (requiring, necessarily, appropriate scientific data) would be

required to allow for the continuance of traditional activities.

15.16 On the same topic, I should also add that I do not necessarily disagree with MacMenamin J. that a specific duty of care might

not be said to have arisen in relation to the actions of the Minister in the period after the judgment of the ECJ in Commission v.

Ireland. Clearly, in the situation which had by then arisen, Ireland was on the back foot and it was, doubtless, necessary to make

many decisions concerning the allocation of resources necessary to allow an appropriate assessment to be carried out. However,

given that I have, for reasons already advanced in this judgment, taken the view that Cromane’s claim in respect of the 2010 season

cannot be sustained in any event, it does not seem to me that questions about the actions taken by the Minister between 2008 and

2010 arise at all and, therefore, the question of whether the Minister might have owed a duty of care during that period does not

seem to me to be relevant.

15.17 That leads to a consideration of what, in my view, is the central issue concerning liability for negligence in this case, which is

an issue on which I must, respectfully, disagree with the majority. I should emphasise that, for reasons which I will set out, I do not

think it is either necessary or appropriate for this Court in these proceedings to determine whether the concept of operational

negligence which has developed in the United Kingdom and has been applied in some circumstances in other common law countries

forms part of the law of Ireland. However, it is necessary to at least commence any proper analysis by a consideration of that

concept.

15.18 A distinction in the law of the United Kingdom between operational negligence (for which the State may be liable) and decisions

made by the State involving policy matters (for which liability may not be imposed) was initially developed in the House of Lords in

Dorset Yacht Co Ltd v. Home Office [1970] A.C. 1004 and Anns v. Merton LBC [1978] A.C. 728, in the latter of which cases Lord

Wilberforce sought to distinguish between policy and operational decisions. Later, in Rowling v. Takaro Properties Ltd. [1988] A.C.

473, Lord Keith, considering the justiciability of policy decisions, stated that policy decisions were “unsuitable for judicial resolution, of

which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks.”

15.19 However, the leading authority on the circumstances in which the discretionary nature of public decision-making may preclude

the existence of a duty of care is the decision of the House of Lords in X (Minors) v. Bedfordshire CC [1995] 2 A.C. 633. In

Bedfordshire, Lord Browne-Wilkinson stated that the first consideration must be “is the negligence relied upon negligence in the

exercise of a statutory discretion involving policy considerations: if so the claim will pro tanto fail as being non-justiciable.” A second

question set out by Lord Browne-Wilkinson in this context was “were the acts alleged to give rise to the cause of action within the

ambit of the discretion conferred on the local authority?” In order so to determine, a court would have to consider whether the

decision was “so unreasonable that no reasonable authority could have made it.” However, this latter aspect of the test has been

criticised for purporting to introduce a reasonableness test in relation to whether a duty was owed, rather than forming part of a

consideration of any applicable standard of care. The authors of Clerk and Lindsell on Torts (21st Ed., 2014), at para. 14-08, suggest

that it is arguable that the test did not form part of the ratio in Bedfordshire at all since, as was pointed out by Lord Hutton in

Barrett v. Enfield LBC [2001] 2 A.C. 550, the claims in Bedfordshire were ultimately struck out on grounds of justice and

reasonableness and not ambit of discretion, and therefore Lord Browne-Wilkinson’s speech did not preclude a ruling that a duty could

be owed even if the decisions were within the ambit of discretion.

15.20 Further differences emerged in Phelps v. Hillingdon LBC [2001] 2 A.C. 619 where Lord Slynn stated that the fact that the acts

in question were “carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim in

negligence can be brought.”

15.21 In the more recent case of Connor v. Surrey County Council [2011] Q.B. 429, Laws L.J., on reviewing the authorities,

summarised the relevant principles as follows at para. 103:

“(1) Where it is sought to impugn, as the cause of the injury, a pure choice of policy under a statute which

provides for such a choice to be made, the court will not ascribe a duty of care to the policy-maker. So much is

owed to the authority of Parliament and in that sense to the rule of law. (2) If a decision, albeit a choice of policy,

is so unreasonable that it cannot be said to have been taken under the statute, it will (for the purpose of the law

of negligence) lose the protection of the statute. While this must, I think, point to the same kind of case as does

the Wednesbury rule [1948] 1 KB 223 (since only a Wednesbury perverse decision will be out with the statute),

Wednesbury is not made a touchstone of liability for negligence in such cases: the immunity arising in (1) is lost,

but the claimant must still show a self-standing case for the imposition of a duty of care along Caparo lines and he

may be unable to do so. (3) There will be a mix of cases involving policy and practice, or operations, where the

court's conclusion as to duty of care will be sensitive to the particular facts:

‘the greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the

matter is not justiciable so that no action in negligence can be brought’: per Lord Slynn, in Barrett's case [2001] 2 AC

550 , 571.”

15.22 It is clear that the trial judge in this case was satisfied to apply the concept of operational negligence and was also satisfied

that it had been established that operational negligence occurred. It is also clear that while, as noted above, the concept has been

accepted to an extent in the United Kingdom, it has been the subject of some academic commentary (not all favourable) and criticism

from the courts of other common law jurisdictions. Part of that criticism stems from the fact that many decisions may, in reality,

involve a mixture of policy questions and operational matters.

15.23 The authors of Charlesworth and Percy on Negligence, 13th ed., (London, 2014) at para. 2-307 described the commentary and

criticism in the following terms:-

"A distinction between policy matters and operational matters was initially developed in the House of Lords, and was

then taken up in Canada, New Zealand, and (to a limited extent) Australia. But doubts also were expressed, with the

distinction being described as 'difficult' and 'unhelpful'. The core objection, articulated in the US Supreme Court in US v

Gaubert [111 S Ct 1267 (1991)], is that discretionary acts involving choice or judgment are not concerned exclusively

with policy-making or planning functions, and that day-to-day decisions regularly require judgment as to which of a

permissible range of courses is the wisest. As was pointed out by Lord Hoffman in Stovin v Wise, virtually any activity by

a public body involves making decisions about priorities and resources. The policy/operational distinction did not provide

a reliable guide as to where a dividing line ought to be drawn."

The description of the doctrine as “difficult” or “unhelpful” come from the Australian decisions in Pyrenees Shire Council v. Day (1998)

192 C.L.R. 330 and Romeo v Conservation Commission of the Northern Territory (1998) 192 C.L.R. 431.

15.24 However, it does not seem to me to be necessary, for the purposes of this case, to enter into a detailed consideration of the

applicability or otherwise of the law on operational negligence in this jurisdiction and, indeed, if it be applicable, what its boundaries

are. It seems to me that the question which arises can properly be addressed within the confines of the “countervailing policy factor”

aspect of the test identified by this Court in Glencar. As noted earlier, that factor may, in practise, be more likely to exclude a duty

of care in cases involving the State. That factor will be particularly present where the action that is being taken by the State or its

agencies or officers involves policy, discretion or adjudication to a significant and material extent. The reason for that is obvious. It is

inevitable that policy choices involve benefits (or at least less harm) for some, and harm (or at least less benefit) for others. The

consequences of making a particular choice may well be foreseeable. The persons who may benefit or lose may be readily identifiable.

But the making of policy choices and their implementation are at the very heart of democratic government. To limit the proper working

of the democratic process in making those policy choices by imposing a duty of care would endanger proper policy making and would,

in all likelihood, prove almost impossible to operate in practise. Those who suffer as a result of a policy choice would doubtless always

complain that it was made without sufficient care or regard for their interests. But by what standard of care is the judgment which

led to the relevant policy choice being adopted to be assessed? There are, therefore, very sound reasons why courts would strongly

lean in favour of excluding a duty of care under the “countervailing policy” leg of the test identified in Glencar where, to any

significant extent, a relevant public decision or action can be said to be materially influenced by policy or discretionary considerations.

15.25 Likewise, the nature of other public roles, such as adjudication on legal obligations or benefits, may provide a basis for

identifying a sufficient countervailing factor which may lean against the imposition of a duty of care. Those who are charged with

adjudicating must, in the public interest, be free to carry out their task without having to keep a close eye on a possible claim in

negligence, for to do otherwise would undoubtedly impermissibly skew the adjudication process.

15.26 But there are some public decisions or actions which do not involve any significant policy, discretion or adjudication element at

all. This may be so even though the scheme or statutory structure within which the particular activity takes place may itself involve

questions of policy. A very good recent example can be found in the decision of this Court (Laffoy J.) in Minister for Communications,

Marine and Natural Resources v. Figary Water Sports Development Company Ltd. [2015] I.E.S.C. 74. One aspect of that case

involved a claim that the State was liable for the way in which it had administered a claim for a grant. Obviously there might well have

been many questions of policy involved in a decision as to whether to grant aid in the circumstances of the case. The scheme

involved did not confer an absolute entitlement to aid in any particular circumstances. However, the relevant agency failed to

progress the claim in a proper manner such that the plaintiff lost out on any chance of securing grant aid. Laffoy J., writing for this

Court, held that the State was, in those circumstances, liable for the loss of chance even though the Court significantly differed from

the view taken by the High Court as to the proper approach to the calculation of damages.

15.27 The lack of care on the part of the State identified in Figary did not involve any material question of policy. It simply related to

the administration of a scheme even though the scheme itself was, of course, heavily influenced by policy. Figary is, in my view, an

example of the fact that the countervailing policy limb of the Glencar test will be much less likely to avail the State as a defence

where the lack of care alleged does not involve, to a material extent, questions of policy and discretion or, indeed, as in Beatty,

questions of adjudication.

15.28 If it was said that the Minister, in the circumstances of this case, had, by reason of a lack of care, come to a wrong decision

concerning the actual grant of a licence or permission then very different considerations might well apply.

15.29 However, the duty of care asserted in this case is one which is confined to a matter which lies well to the implementation or

administrative rather than policy or discretion end of the spectrum. It is said that due to a mistake of law on the part of the Minister

(even after what transpired to be the correct view of the law was formally identified to the Minister by the European Commission), no

steps were taken to ensure that scientific and other information and data was available to enable an appropriate assessment to be

carried out. This is not an issue which is even a mixed question of administration and policy. If, for example, the Minister had put in

place measures to acquire some level of scientific information but it had been found by the courts, whether in this jurisdiction or in

Europe, that the Minister was mistaken as to the level of information which was necessary to make an appropriate assessment, then

there might be questions as to whether a duty of care extended to the decision as to the precise type of information to be collated.

15.30 Likewise, if the Minister had to make a policy decision as to how to allocate resources and thus prioritised the collection of

scientific information and data in some areas over others, it might be appropriate to characterise such a determination by the Minister

as being towards the policy end of the spectrum. I accept that the boundary between purely administrative matters and matters

which may amount to a mixed question of policy or discretion and implementation or administration may not always be very easy to

define. But in this case I am satisfied that the allegation of negligence falls squarely on the administrative side of that boundary.

There was no question of policy which impacted on the Minister’s decision. The Minister simply got it wrong in taking the view that

traditional activities could be authorised to continue without an appropriate assessment.

15.31 In particular, the Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an

appropriate assessment to be carried out long after it had become clear, by reason of the position adopted by the Commission, that

there was, to put it at its mildest, a significant doubt as to whether the Minister’s position was correct.

15.32 The failure of the Minister was in omitting to take any steps towards assembling the necessary scientific data to allow an

appropriate assessment to be carried out at least after his position had been significantly questioned by the Commission. A similar

failure by a private individual in an analogous situation would, in my view, be likely to lead to the Court imposing a duty of care and

finding that private individual negligent in failing to comply with the duty of care in question. I can see no sufficient countervailing

factor to suggest that a state or public authority, in the circumstances of this case, should be any the less liable.

15.33 On that basis, I cannot agree with the conclusions of the majority. MacMenamin J. speaks of the balancing exercise which the

Minister felt called upon to perform. On that basis it is suggested that the fallacy in Cromane’s case is to seek to isolate a private

duty from the over-arching public or State duty which the Minister owed. However, it seems to me that the duty of care which I

suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the

undoubted over-arching public duty which the Minister was obliged to perform. Against what can it be said that the Minister was

balancing when he decided not to assemble the necessary scientific information and data (despite the Commission’s reasoned opinion)

prior to the decision of the ECJ? What over-arching public duty would have been in any way impaired by the collection of such data?

There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy,

discretion or adjudication.

15.34 Because, for the reasons already identified, I do not think it is either necessary or desirable in the context of this case to come

to a concluded view as to whether operational negligence, in the sense in which that concept has developed in the courts of the

United Kingdom, forms part of the law of tort in this jurisdiction, I will not use that term. However, it seems to me that it is possible

for a state authority to be liable in respect of the tort of negligence when, in respect of a purely administrative part of its function

not involving, to any material extent, questions of policy, discretion or the like, it is in breach of a duty of care in accordance with

Glencar principles to a person to whom that duty is owed. Where such negligence is alleged, the important countervailing factor which

often operates to the exclusion of a duty of care in cases involving policy, discretion or adjudication will be missing, and will provide

no sufficient and proportionate justification for the exclusion of a liability which might otherwise be said to arise in the event that the

tests of forseeability and proximity were met.

15.35 For the reasons already advanced, I do not consider that the failure of the Minister to collect the appropriate data in this case

involved any question of policy, discretion or adjudication. Subject to one final factor to which I will shortly turn, it seems to me to

follow that it is appropriate to impose a duty of care on the Minister such as that which I have sought to identify and to find that the

Minister was in breach of that duty of care even though my reasons for coming to that conclusion may differ somewhat from those of

the trial judge. Before touching on that final factor, I should briefly comment on the views expressed by MacMenamin J. concerning

the applicability of constitutional issues to the analysis in this case.

15.36 The concern which MacMenamin J. expresses is that the creation or recognition of a species of negligence in the form of

operational negligence might trench on the constitutional role of the executive. There may well be issues which could arise under that

heading in the event that the courts in this jurisdiction were to consider a concept of operational negligence which closely modelled

itself on the United Kingdom jurisprudence. However, the form of administrative negligence which I have sought to identify is precisely

defined by reference to situations where there is no material or significant element of policy, discretion or adjudication. In those

circumstances, it does not seem to me that the constitutional concerns expressed by MacMenamin J. affect the conclusions which I

have reached.

15.37 One final factor needs to be assessed. It is, of course, the case that the Minister was under no absolute obligation to grant

any particular licences or permissions. In such a case there will almost always be significant questions of policy involved in the

decision of whether to grant or refuse. In many such cases, a duty of care will not arise precisely because of the third limb of the

Glencar test. However, the situation which arises in this case is different. First, these were traditional activities which provided many

of those concerned with their livelihoods. The Minister had at least gone so far as to provide some comfort to those involved in such

traditional activities to the effect that it was not envisaged that those activities would be impaired by the creation of protected

areas for the purposes of EU environmental law. While that comfort cannot, for the reasons already identified, give rise to a legitimate

expectation, it does, in my view, give rise to at least a duty on the part of the Minister to put in place any reasonable measures

necessary to enable the Minister properly to consider whether it was appropriate to grant any particular licence or permission. In

circumstances where significant doubt had arisen, as a result of the position adopted by the Commission, as to whether the Minister

could continue to grant licences or permissions in the absence of having sufficient scientific data to carry out an appropriate

assessment for the purposes of EU environmental legislation, it seems to me that the Minister owed a duty of care to put in place

measures to ensure that an appropriate assessment could be carried out. It is that failure which it seems to me has been established

in this case.

15.38 While the duty of care which I have identified as having been breached may differ slightly from the duty of care identified by

the trial judge, I am not satisfied that there is any material difference in substance. At para. 15.7 of his judgment, Hanna J. identified

the question as being as to “whether a duty of care exists to ensure that the Minister is put in a position to make a proper legal

decision in the first place”. Likewise, the case made by Cromane both in its amended statement of claim and in its written submissions

before the High Court suggested that the appropriate studies “should have been available well before this period of time, and it was

as a result of the failure of the Minister to have this relevant information that he was so poorly equipped to reopen the Cromane

Harbour [sic] for mussel fishing any sooner than he did...” (see para. 8 of the submissions). I am, therefore satisfied that the duty of

care which I have found to be breached comes within the scope of the case made by Cromane in the High Court and, indeed, the

findings of the trial judge.

15.39 I would, therefore, uphold the decision of the trial judge that there was a duty of care on the Minister in the narrow

circumstances in which I have defined it in the course of this judgment and that there was a breach of that duty of care. Before

going on to the question of the calculation of damages there are two further points which arise. The first concerns the argument that

the loss would have arisen anyway, and the second concerns the distinct legal personalities of Cromane and O’Sullivan McCarthy

respectively. I now turn to those issues.

16. Would the Loss have occurred anyway?

16.1 The argument under this heading is to the effect that it was likely that some period would have been lost in any event in the

light of the developments in European law which were to the effect that an appropriate assessment had to be carried out in order for

traditional activities to continue in protected areas. For the reasons already analysed there is no doubt but that, as a matter of

European law, traditional activities could not have been continued without an appropriate assessment. The real issue of causation

which arises, therefore, is as to whether there is any causal link between the Minister’s breach of duty of care and loss. The reason

why it might be said that there is no such causal link is because it might be argued that, once European law changed, an appropriate

assessment would have to have occurred at some stage. On that basis it might be said that it followed that the necessary scientific

inquiry would have to have been made in order for an appropriate assessment to have been carried out. It might further be argued

that, during the course of assembling the necessary data, there would inevitably have been a period during which lawful production

would not have been possible in the harbour. On that basis it might finally be argued that the only consequence caused by the

Minister’s breach of duty of care might be said to have been that the harbour was closed in 2008 rather than some earlier year (for

the reasons already addressed I am not satisfied that the question of closure in 2010 can really be sustained).

16.2 However, on the basis of the findings of the trial judge, which findings were supported by evidence, it seems clear that, had the

Minister arranged for the collection of the appropriate scientific data at least as early as the time when the Commission challenged

the Minister’s view as to whether traditional activities could be continued without an appropriate assessment, the assessment

required as a matter of EU law could have been completed within a timeframe which would not have led to any cessation of business.

Given the events which have happened, we know that it proved possible lawfully to permit the relevant activities to continue once

the appropriate assessment had been carried out. It follows that there is no reason to believe that, had the appropriate assessment

been carried out in a timely fashion, a similar decision would not then also have been made thus leading to no cessation of business.

It follows that there is a direct causal link between the failure of the Minister to assemble the necessary scientific data and carry out

an appropriate assessment at least soon as the Commission’s position became clear and the inability of O’Sullivan McCarthy to carry

on their activities at least during the 2008 season.

17. The Position of Cromane

17.1 The argument here suggests that Cromane was not directly affected by the negligence of the Minister. In that sense, a

distinction is made between the positions of O’Sullivan McCarthy, who are the party directly affected by the Minister’s actions, and

that of Cromane, who are only indirectly affected by reason of being downstream purchasers from O’Sullivan McCarthy. It is, of

course, the case that there are close connections between the two companies involving common shareholders and directors. They

also have a very close business relationship. But they are separate legal entities.

17.2 The argument put forward on behalf of the State suggests that there is no reason in principle to distinguish between Cromane,

as a downstream purchaser from O'Sullivan McCarthy, and any other wholesaler, transporter or retailer who might have been involved

in the overall business which operated downstream to the mussel harvesting business of O’Sullivan McCarthy. If, for example, there

were a local supermarket which could establish that it suffered loss because it had to purchase supplies on a less commercially

attractive basis because of the effect on O’Sullivan McCarthy’s mussel harvesting business, why should such a commercial entity not

be regarded in the same light as Cromane?

17.3 In my view, that argument is well made. Persons choose to conduct their business as individuals or corporate entities for a whole

range of reasons. When choosing to conduct business as a corporate entity, persons may choose to operate as a single company, or

a number of companies which form part of a formal group or, as here, by entirely separate legal entities. There is a whole range of

legal and fiscal consequences for those decisions. Sometimes they may happen to benefit parties. Sometimes they may not. But they

are decisions made by those involved in the economic activity themselves. They must live with the consequences, both good and

bad.

17.4 It does not seem to me that the fact that an entirely separate company with an entirely separate legal personality happens to

have common directors and shareholders takes away from the fact that Cromane, as a downstream purchaser from O’Sullivan

McCarthy, cannot be said to be in any different position, as a matter of principle and as a matter of law, from any other downstream

purchaser. Such downstream knock-on effects do not, in my judgment, meet the proximity test identified as far back as Donoghue v.

Stephenson and reiterated in Glencar. In my view, the trial judge was incorrect to allow the claim attributable to Cromane.

18. Damages

18.1 The first point to be made is that the scope of damages is, of course, significantly limited by reason of the limitations on liability

which have already been analysed in this judgment. The trial judge distinguished between the damages attributable to Cromane, on

the one hand, and O’Sullivan McCarthy on the other hand. On that basis, there would be no difficulty in removing from the equation

those damages attributable to Cromane on the basis of my view that the State does not have any liability to Cromane itself.

18.2 However, even so far as O’Sullivan McCarthy is concerned, it is clear that the damages now must exclude those losses said to

be attributable to the 2010 season, again for the reasons already indentified in this judgment. But apart altogether from that, the

State made further arguments concerning the calculation of the damages which the trial judge awarded to O’Sullivan McCarthy. The

State was critical of the acceptance by the trial judge of the evidence of the plaintiff’s expert, Mr. Wynne, on a number of bases.

First, it is said that Mr. Wynne based his figures on revenue in the three years prior to the year of assessment which, it was argued,

removed the undoubted variation in price during those years from the equation. There was evidence that the market price was not

stable during that period and that it had decreased from €1,518 per tonne in 2006 to €698 per tonne in 2010. On the other hand,

Cromane drew attention to the fact that the price for 2008 (which is, after all, the only year in respect of which damages are now to

be calculated) was somewhat higher than average.

18.3 The State also drew attention to the fact that the accounts for 2010 (which would reflect mussel seed obtained in 2008 and

harvested in 2010) showed no sales of mussels in the year in question. However, those accounts show expenditure of €68,027 on

mussel seed purchases in 2008. This, according to the State, is a matter of “serious concern” for two reasons. First, the State

suggests that the trial judge did not rule on this matter which it is said was a “significant issue in controversy relating to the

quantification of damage.” Second, the State suggests that the explanations given by the expert, Mr. Wynne, and Mr. O’Sullivan of

O’Sullivan McCarthy differed in regard to the purpose of that expenditure. For example, it is said that Mr. Wynne appears to have

attributed the 2008 expenditure to the purchase of mussel seed from local fisherman. In contrast to that evidence, Mr. O’Sullivan

attributed €13,000 of the expenditure to the purchase of mussel seed while the explanation for the balance of the expenditure, which

the State described as “incomprehensible”, involved a complex barter system involving an exchange of grown mussels for work done

by other fishermen who, it is said, did not appear as employees or service providers to either Cromane or O’Sullivan McCarthy in the

accounts furnished to the Court. The State argued, in their submissions, that Mr. Wynne and Mr. O’Sullivan gave “starkly different

explanations for the expenditure.” Further points, which it is not necessary to go into in detail about at this stage, were also made.

18.4 It is also necessary at this point to mention the fact that Cromane also cross-appealed on the basis that the damages awarded

by the trial judge were ultimately inconsistent with the specific findings which the trial judge made deriving from the evidence

presented in relation to those damages.

18.5 Without reaching a definitive view in respect of each of the points raised, I am satisfied that the difficulty with the evidence and

figures would make it impossible for this Court to put itself in a position where it could conduct a fair and just calculation of the

damages properly attributable to O’Sullivan McCarthy arising out of the closure of the harbour in 2008. To attempt that exercise

would involve the Court in excessive speculation which might end up being unfair to one or other party. In the circumstances, it

seems to me that the proper course of action to adopt would be to remit the question of damages back to the High Court but, in so

doing, to direct that the damages to be assessed must be confined to those arising out of the closure of the harbour in 2008 and

must be confined to losses suffered by O’Sullivan McCarthy.

18.6 On that basis, I would remit the question of the calculation of O’Sullivan McCarthy’s damages back to the High Court. It follows

that the cross appeal should not be allowed as all issues of calculation not dealt with in this judgment should arise on the remittal.

19. Conclusions

19.1 I would allow the appeal in respect of legitimate expectation, allow the appeal in respect of negligence relating to Cromane, but

dismiss the appeal in respect of liability for negligence in respect of O’Sullivan McCarthy. I would allow the appeal in respect of the

quantum of damages in relation to O’Sullivan McCarthy and remit that question to the High Court. I would also dismiss the cross

appeal by Cromane, as the quantification of damages should, in my view, be addressed on the remittal.

19.2 So far as the quantification of damages in respect of O’Sullivan McCarthy are concerned, I would confine the assessment of

those damages by the High Court, when the case is remitted back, to an assessment of losses attributable to the inability of

O’Sullivan McCarthy to do business in the 2008 season only. I would exclude from the calculation of such damages any losses alleged

to be attributable to the 2010 season.