Gaeilge

Title:	Bates & anor -v- Minister for Agriculture Fisheries and Food & Ors
Neutral Citation:	[2019] IESC 35
Supreme Court Record Number:	96/2012
Court of Appeal Record Number:	394/2014
High Court Record Number:	2009 3969 P
Date of Delivery:	05/23/2019
Court:	Supreme Court
Composition of Court:	MacMenamin J., Dunne J., Charleton J.
Judgment by:	MacMenamin J.
Status:	Unapproved
Result:	Appeal dismissed

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MacMenamin J.
Dunne J.
Charleton J.

BETWEEN:

Judgment of Mr. Justice John MacMenamin dated the 23rd day of May 2019

1. In a judgment delivered on the 7th February, 2018, this Court dismissed an appeal brought by the appellants (now referred to in this judgment as “the Minister”) against a judgment and order of the High Court (Laffoy J.) made on the 15th November, 2011 ([2011] IEHC 429; [2012] 1 I.R. 247). Laffoy J. awarded the two plaintiffs (“the respondents”) the sum of €49,600 in damages arising from negligence by the Minister’s officials in tendering incorrect advice to them. The High Court judge found those officials had acted negligently in advising the respondents that it was lawful for their two vessels to fish in an area of the Bay of Biscay, close to the French coast, known as Area VIII(a), when, in fact, it had been unlawful for them to do so. As a consequence, the vessels were arrested and the skippers fined, causing losses to the respondents.

2. Subsequent to the High Court judgment, this Court delivered its judgment in Cromane Seafoods Limited v. Minister for Agriculture [2016] IESC 6; [2017] 1 I.R. 119. That judgment set out principles of proximity relating to negligent misstatement by government officials. Inter alia, this Court held that an action might lie if an official had given specific negligent advice or information at a time proximate to the reliance by the recipient. On appeal, this Court upheld the High Court judgment of Laffoy J., albeit on narrower grounds, holding that the narrative of the events and representations contained in the High Court judgment allowed for the narrower approach to the question of proximity as identified in Cromane.

3. Six weeks after this Court delivered its judgment dismissing the appeal, and when the Court was about to make final consequential orders, the Minister applied to seek a review of the findings. He alleged there had been error in the judgment. In law, and in very exceptional circumstances, there is a limited jurisdiction to review a judgment of this Court on the basis of error. The general legal principles are considered later in this judgment. But, specifically to this appeal, for such an application to succeed, or even to be made, it is necessary to establish that there is actually a significant error in the judgment. If error there is, then it will be legitimate to enquire as to its source. If the alleged error is one of fact, an appeal court must ascertain whether the narrative of the facts in its judgment actually reflects the evidence in the case and the High Court judges’ findings. Article 34.4.6 of the Constitution lays down that the decision of this Court in cases shall be “final” and “conclusive”. Thus, a question must always arise as to whether an application comes within the terms of the Constitution itself, and principles laid down in the jurisprudence of this Court considered later.

4. The Minister claims that the judgment of this Court contained an incorrect narrative of events which took place on the 18th and 19th days of August, 2003, and that this account was central to the Court’s decision to dismiss the appeal, thereby upholding the High Court judgment. Counsel for the Minister claims that, acting within jurisdiction, the Court may lawfully review its judgment in the appeal. He submits the judgment did not reflect the findings of the High Court judge which, in turn, were derived from the evidence adduced before her. In order to determine whether the Minister’s application can be sustained, it will be necessary to consider what transpired in the High Court, and in the appeal, in some detail. The jurisprudence establishes that an application of this type will be rare and exceptional. There is a duty on any party seeking to bring such an application to exercise great care.

5. To understand the background, it is necessary to trace the proceedings from the outset, the evidence in the High Court, Laffoy J.’s judgment, and then move to what this Court was given to understand about the sequence of events on the appeal. This requires consideration of both written and oral submissions. Thereafter, the parties’ submissions in this application to review the judgment will be considered. The Court must determine whether the Minister is seeking simply to correct some error or errors in the judgment, or whether the effect of the application would, in fact, be to reopen the merits of the case. The respondents submit that this application is without precedent and not consistent with the terms of Article 34.4.6 of the Constitution. They submit the judgment of this Court accurately reflects the description of events contained in the High Court judgment. It is also necessary to refer to the transcript of evidence. This was an Article 64 appeal, originally listed before the Court of Appeal, but transferred to this Court. The appeal was heard on the 1st December, 2017. This judgment was preceded by a series of steps where before any trial, there were unfortunate errors in the pleading. It must be understood that, when drafting proceedings, counsel will proceed on the basis of instructions. So, too, in drafting a defence. But, in either instance, there is a duty on counsel to ensure that the pleadings contain a succinct and accurate account of the facts and issues to be determined.

Background
6. I gratefully adopt the background set out by Laffoy J. in the High Court judgment. At the material time between 1999 and 2005, the respondents were business partners involved in scallop fishing. The fishing operations in issue in these proceedings were conducted by the fishing vessels owned by them, namely, the MFV “William Joseph” (the “William Joseph”), and the MFV “Alicia” (the “Alicia”). The respondents first obtained a licence for a sea fishing boat on the 27th June, 2000. This was for the use of the William Joseph for sea fishing during the period from the 21st May, 1999, to the 30th June, 2002. The schedule to this licence contained the particulars of the vessel. It indicated that it was a “specific segment” boat. What this meant was expressly conditioned into the licence, which stipulated that the vessel should “fish solely for aquaculture purposes, and for bivalve shellfish species”. On the 19th June, 2002, the respondents were granted a renewal licence in respect of the William Joseph for the period from the 1st July, 2002, to the 30th June, 2005. The process leading to the grant of these licences in respect of the William Joseph was similar to the process outlined in the judgment regarding the grant of licences to the Alicia.

7. The respondents commenced fishing with the William Joseph in June 1999. At that point, the William Joseph was based in Newlyn, Cornwall, and fished in the English Channel and surrounding waters. As time went on, the skipper pushed further south and east in the direction of the Bay of Biscay. Scallop fishing is regulated under European Union law on an area-basis by reference to sectors defined by the International Council for Exploration of the Sea (“ICES”). The various areas are known by the relevant ICES designation. The portion of the Bay of Biscay which was the respondents’ goal was ICES Area VIII(a). That area is south of latitude 48° north. Mr. Bates’ evidence to the High Court was that there was an abundance of scallops in Area VIII(a). In early 2000, he and his partner, Mr. Moore, were assured by an officer of the Minister’s department (“the Department), Michael O’Driscoll, that they were legally entitled to fish for scallops in that area. Mr. Bates’ evidence was that, late in 2000, both respondents saw the opportunity of making a lot of money fishing in the area, and they decided to acquire another vessel with the intention that this new vessel, the Alicia, would, for safety purposes, fish in conjunction with the William Joseph, where weather and sea conditions can be extremely dangerous.

8. Laffoy J.’s judgment sets out in detail the application process for the Alicia. Inter alia, this included a statement addressed to the relevant section of the Minister’s department indicating that the Alicia would fish for scallops in the area highlighted on a map attached. This map showed various areas, including Areas VII(a), (b), (e), (f), (g) and (h). It did not then include Area VIII(a), the southern-most boundary being latitude 48° N. However, “VIII” was written on the map, obviously by Mr. Bates, below that line of latitude. Laffoy J. considered that it would not have been reasonable to assume that an officer of the Department would have inferred from that letter alone, even in conjunction with the map, that the respondents intended fishing for scallops in Area VIII(a). Later, however, in April, 2002, the respondents submitted an “economic link questionnaire” to the Department, together with a fishing plan. This was designed to elicit information to inform the assessment of economic benefits likely to flow if the licence was granted. Certain of the documents submitted with this did refer to Area VIII(a).

9. Laffoy J. went on to hold that, on the 2nd May, 2002, a licence for the Alicia was issued under the statutory regime in force at the time. This was for the period 2nd May, 2002, and ending on the 30th June, 2004. It was a condition that the boat should fish solely in the specific segment for aquaculture purposes and bivalve shellfish. The licence period was later extended from time to time up to the 30th June, 2005. After the Alicia was acquired, it was specifically converted for fishing the Bay of Biscay. The evidence was that the William Joseph and Alicia fished in Area VIII(a) in September, 2002, May, 2003, July, 2003, and August, 2003. Area VIII(a) was fished by both boats for a combined total of 22 days.

10. Laffoy J.’ succinct description of the material events is set out later in this judgment. For now, the focus is on the pleading. The respondents originally believed that the Minister’s negligence lay in the fact that the Irish State had notified the existence of the respondents’ fishing vessels to the E.U. Commission in or about July or August, 2003, thereby effecting a change in the vessels’ status. They claimed that, as a result of this notification, the vessels were rendered susceptible to being stopped and arrested by the French authorities. It subsequently transpired this was simply incorrect. The case they originally advanced had no substance. No re-designation by the Minister in July or August, 2003 caused them loss.

11. But the pleadings, if erroneous, were broad enough to encompass an alternative fall-back case. Implicitly accepting that the case had been based on a false premise, the respondents’ counsel submitted, in opening the case in the High Court, that the loss and damage was sustained by reason of the fact that his clients had informed the Department that the vessels were to be acquired and adapted for the specific purpose of fishing in Area VIII(a); that the Minister granted them a licence to operate the vessels on that basis; that they fished in Area VIII(a); and that, as a result, the two vessels were arrested, as a result of which they sustained substantial losses by reason of fines and penalties. Counsel made the case that the Minister knew, and should have informed the owners and skippers that the vessels were not authorised to fish in Area VIII(a). They claimed that this put them out of business.

12. But, as it transpired, the respondents met with another obstacle. The prohibition on fishing in this area had been in existence for many years. The difficulty was that there was a misprint in the published English language version of an E.U. Regulation 2027/95, which, in fact, prohibited Irish vessels from fishing in Area VIII(a). The departmental officials did not notice the error, and wrongly believed that Irish fishing vessels were permitted to fish for scallops there.

13. But the respondents’ problems did not end even there. Their claim for damages was very substantial. They alleged losses in the sum of €911,985. This was broken down as to alleged losses consequent upon the arrest of €77,073; loss of earnings from 2003 to 2005 of €589,205; and capital losses of €245,707. By any standards, these were significant claims. Ultimately, Laffoy J. held that the only sustainable claims were those directly consequent on the arrest, conviction and penalties. The balance of the claim was simply unsustainable. Among other frailties, the respondents’ case was that Area VIII(a) was especially rich in scallops. It transpired that the vessels had not fished in Area VIII(a) to the extent which they sought to convey, and that it was not especially profitable. In any case, they had always been prohibited from fishing there under the 1995 Regulation. But, furthermore, in 2004, the year following the events in question, additional E.U. regulations were introduced which drastically further limited the scope for Irish scallop fishing generally. The Alicia was sold, the William Joseph decommissioned. The respondents received payments for both transactions. The Minister’s counsel made substantial in-roads into the claim. The main focus of the High Court hearing was on the losses. While it is not true to say that the Minister actually abandoned the issue of liability, he engaged in what might best be described as a tactical retreat, in an important letter acknowledging that the respondent owners had been misadvised, but contending that this advice had not arisen in circumstances where there was a duty of care.

The Sequence of Events on 18th and 19th August, 2003
14. To say that the application hinged on just a number of phrases describing the relevant events in this Court’s judgment does not diminish its significance. But to understand what follows, it is essential that one issue be made crystal clear. The William Joseph and the Alicia were first observed engaging in scallop fishing in Area VIII(a) at 4.30 a.m. on the morning of the 18th August, 2003; but the arrest did not take place on that day, but rather took place at 2.30 a.m. on the 19th August, 2003. The Statement of Claim misstated the position. The first named respondent, Mr. Bates, gave evidence in the High Court, but he, too, gave an incorrect account of these events. Issues as to times, location, and sequence were sometimes unclear and left unclarified. The transcript of the High Court proceedings did not actually disclose the precise times when the Minister’s officials were said to have given misinformation to the respondents. But the respondents’ reply to particulars identified a number of such occasions between 1999 and 2002. A close examination of the evidence, and the High Court judgment, allows the Court to now piece together the events with a degree of clarity necessary to address this application.

15. It is necessary to maintain perspective and look at context. In fairness to the Minister, what seems to have occurred is that issues not considered as central in the High Court, which were not disputed, or even closely analysed in the evidence, became highly relevant to the appeal, and also to this application. In what follows there is no reflection on counsels’ competence or integrity. Mistakes and errors may happen. But what occurred here can only be described as a most unfortunate sequence of mishaps. Neither party considered it necessary to refer to the transcript in the appeal to this Court. This was critical. The focus was on the High Court judgment itself and the law on negligent misstatement. Had attention also been directed to the evidence actually adduced in the High Court, it is unlikely this application would ever have been made.

Errors in the Statement of Claim
16. “Sighing” is a method of scallop fishing. The respondents’ plea was to the effect that, on the 18th August, 2003, when engaged in that activity in Area VIII(a), both vessels were boarded by the French Navy, impounded, taken in charge and brought into the Port of Brest. They pleaded that, on arrival, both skippers immediately contacted the fishery control section in the Minister’s department seeking confirmation that they were licenced to fish in Area VIII(a). As it transpired, much of this was not correct. The vessels were never “boarded” on the 18th August, 2003. Instead, they were detected by a French naval aircraft at 4.30 a.m. on that date. It later emerged that, by the time they were arrested, they were in a different area. They were arrested and boarded at 2.30 a.m. on the 19th August, 2003, in Area VII(h), and thereafter brought to Brest. What happened in the interim period between the first observation and ultimate arrest is of fundamental importance to the question of proximity in this context, a necessary ingredient to the finding of negligent misstatement.

17. But some features of the Statement of Claim were correct. They pleaded that, by fax dated the 18th August, 2003, the fishery control section of the Minister’s department confirmed that the vessels were not prohibited from fishing where they were located in Area VIII(a), and that there was no valid reason to prevent them from fishing there. But later it emerged that some of what was written in the fax was not itself correct. As explained, the relevant E.U. Regulation did prohibit scallop fishing in Area VIII(a); the error in the English translation of the Regulation which went undetected in the Department has already been mentioned.

Particulars of Negligence
18. It is next necessary to consider the particulars of negligence furnished by the respondents’ solicitors. In the context of this case, a finding of negligent misstatement against the Minister’s officials required proximity. The Minister now submits that the respondents never pleaded that they had relied on adverse representations by the Minister’s officials in August 2003 but, rather, on occasions well prior to that year, between 1999 and 2002. As a result, the Minister submitted in the appeal, the proximity test for negligent misstatement was not met.

19. In fact, the particulars of negligence in the Statement of Claim did contain an allegation that the Minister had been negligent in “issuing an inaccurate representation by fax on the 18th August, 2003, when he or his department knew, or ought to have known, about the erroneous representation given to the plaintiffs” (i.e. the respondents). The respondents pleaded that, up to and including August 2003, they had been assured by the Minister’s department that they could fish in the relevant area for scallops. They pleaded that the Minister’s officials told them that their licenses were valid to fish for scallops there. The respondents also referred to assurances allegedly given by departmental officials in updated information in July 2003, that the vessels were licensed to fish in that area. This latter claim does not figure in the consideration.

The Defence
20. Perhaps as a result of what was alleged in the Statement of Claim, parts of the Defence were also rather opaque. To take one instance, at paragraph 22 of the Defence, the Minister pleaded:

“Subsequent to the detention of the plaintiff’s vessels, it is admitted that by fax documents dated the 18th August, 2003, the first named defendant’s servants or agents indicated that they believed the plaintiffs were not prohibited from fishing where they had been located, however, any error of law reflected in the said fax document does not, for the reasons set out herein, give rise to any cause of action herein, and was provided subsequent to the detention of the plaintiff’s vessels on or about the 18th day of August, 2003.” (Emphasis added)

21. This plea requires significant deconstruction. It, too, contained errors. It sought to convey that the fax from the Department had been sent after the arrest. The “fax document” of the 18th August, 2003, was not in fact issued subsequent to the detention of the plaintiffs’ vessels, but at least seven hours prior to the detention. As already explained, the detention of the vessels did not occur on or about the 18th August, 2003, but on the early morning of the 19th August, 2003. It was said that any information given was not in the context of any breach of duty of care. But, for present purposes, it is sufficient to point out that the Defence did not remove the erroneous impression created in the Statement of Claim regarding timing, but rather apparently accepted the incorrect contention that the advice and detention took place on the 18th August, 2003.

22. Facing a substantial claim for almost €1 million, the Minister’s legal advisors focused on the details of the claim for loss. For reasons which were never fully explained, the Minister elected not to call the official who gave many of the assurances, Mr. Michael O’Driscoll, the Chief Sea Fisheries Officer in the Minister’s department. While no doubt justified for some tactical reason, this decision in fact meant there was no evidence on the record from Mr. O’Driscoll. Though the issue did not present so great a problem in the High Court, it created some difficulty later.

23. To avoid calling Mr. O’Driscoll, the Chief State Solicitor’s office sent a letter to the respondents’ solicitor, dated the 5th January, 2011. The purpose of this was to “clarify” the Minister’s position with regard to one aspect of the pleadings. The letter contains a number of important observations and concessions. It read, in relevant part:

“In the statement of claim delivered on the 11th May, 2009 it was pleaded on behalf of the plaintiffs at para. 7(viii) that up to and including August 2003 the plaintiffs had been assured by the first named defendant’s department that they could fish in the Relevant Areas for scallops.” (Emphasis added)

As will be seen from the last passage the Minister can have been under no illusion that the respondents’ claim did include assurances up to and including August 2003. It went on:

“… At para. 13 it was pleaded that the plaintiffs’ officials confirmed to the plaintiffs that the licences issued to them entitled the plaintiffs to sea fish for scallops in E.U. waters outside the State’s territorial waters.

At para. 14 it was pleaded that the plaintiffs had been told by the Minister’s officials that their licences were valid to fish for scallops in Area VIII(a).

In response to our request for particulars dated the 29th July, 2009, you responded with replies dated the 4th day of February, 2010.

At para. 1(a) of the said replies you advised that Mr. O’Driscoll, Chief Sea Fisheries Office [sic], of the first named defendant advised the plaintiffs that it was legal for the plaintiffs to fish scallops in the “Relevant Areas”.

At para. 6(c) you state that Mr. O’Driscoll had stated to Mr. Bates that all the restrictions to scallop fishing were stated on the licence. You also state that Mr. O’Driscoll had stated that restrictions attaching to fishing vessels did not apply.

In the course of the defence delivered herein on the 16th day of November 2009, and in particular in the course of paragraphs 9, 10, 12 and 14 of the said Defence, it is denied either explicitly or by implication that assurances such as those identified by you in your statement of claim and in the Replies to particulars outlined above were not given.”

24. Critically, the letter then stated:

“Please be advised that in the light of the material now in the possession of the defendants, the defendants accept that the assurances were given to your clients by Mr. O’Driscoll.” (Emphasis added)

25. The Minister’s letter continued:

“Please be further advised that this is without prejudice to the contention to be advanced on behalf of the defendants herein that no actionable duty of care arose in the context of the relationship between the parties. Furthermore, it is without prejudice to the contention, strongly relied upon by the defendants herein, that there is a fundamental misapprehension underpinning the claims being advanced on behalf of the plaintiffs regarding the suggestion that in some way the fishing regime changed in July or August 2003. The defendants confirm that at all material times since 1995, a “zero” fishing effort had been allocated to Ireland in respect of scallops in the relevant Areas, and that nothing was said or done on or on behalf of the Department of Agriculture, Fisheries & Food, that could alter or did alter that fact.”

26. But this letter did not identify when the assurances were given. It is true that the respondents had pleaded in their reply to particulars that assurances had been given on a number of occasions, between 1999 and 2002. But the Minister never called evidence as to when the assurances were actually given. The respondents were cross-examined on what they had informed the Minister as to the adaptation, purpose and intended fishing areas of the two vessels. The date and nature of the assurances received some attention in the cross-examination, but did not involve any detailed explanation as to when they were given, or what was their content.

27. It must be said, however, that in the final passage of the letter quoted above, the Minister placed the respondents squarely on notice that the original and main plank of their claim was incorrect. As pointed out in the first three lines, there is reference to assurances given “up to and including August, 2003”. One might surmise that one point of reference here was to the fax message referred to by Laffoy J. in her judgment, the content of which is not in dispute.

28. The respondents did not immediately address the full impact of the pre-existing Regulation question. There was case management; the parties exchanged witness statements. Mr. O’Driscoll did not furnish a witness statement. This Court has not been told whether the parties made some form of agreement as to the evidential status of what was said in the letter, or as to the advices. Clearly, they formed part of the backdrop. While it is not true to say that the circumstances of the representations dropped out of the picture, the issue faded in significance. The issue as to when, and by whom, all the assurances were given was not addressed during the course of the Minister’s case. But the point emerged during the respondents’ evidence as described later.

The Scope of the Appeal
29. The appeal to this Court was on a net point of law. It concerned whether the facts supported the findings of negligent misstatement contained in the High Court judgment. But for what may have seemed good reason at the time, this Court was not referred to the transcript of the High Court hearing during the appeal. There was no appeal on the High Court’s findings of fact. The submissions were confined to a consideration of the judgment, and the written and oral submissions focussing on proximity and negligent misstatement. But what was in the evidence is now highly material to this application, where the Minister says this Court gave an incorrect narrative of the relevant events, effectively holding there had been proximate assurances by the officials when these had not been part of the respondents’ case. The transcript sets out the relevant events.

The Transcript

Counsel’s Opening
30. By the time of the opening of the case the impact of the regulatory issues had become cleaner. Counsel for the plaintiffs/respondents discarded the “July/August, 2003 re-designation” aspect of the claim, but nonetheless submitted that the misrepresentations by the officials, and breach of the respondents’ legitimate expectation caused all the substantial losses claimed. In light of the Minister’s clarification letter, counsel did not identify when the assurances were given about Area VIII(a), or how proximate they were to the critical events. But, during the opening, counsel did draw the Court’s attention to a witness statement by Mr. Cormac Craven, an official of the Department. This referred to the fax sent by the Department at 19.00 hours on 18th August, 2003. Mr. Craven said:

“… Given that it is almost 7 years since August, 2003, I vaguely recall reviewing the conditions of the plaintiff’s fishing licences, and legislation with my managers to determine if the plaintiff’s fishing vessels, “William Joseph” and “Alicia”, could fish for scallops in the area with co-ordinates.”

He set out the co-ordinates, including Area VIII(a). Then, he continued:

“Following these deliberations, we concluded there was no barrier preventing the plaintiffs fishing for scallops in the area with the co-ordinates.”

Mr. Craven accepted that he sent the fax, dated 18th August, 2003, to this effect. Laffoy J. specifically referred to the fax in her judgment. But its date and wording are very important, and detailed later.

31. Acting on instructions from his clients, counsel for the respondents told the High Court that the Department had given incorrect information on the 18th August, but claimed this was at the time the vessels were either under arrest or being arrested by the French authorities. This was factually inaccurate, but reflected what was in the Statement of Claim, and when Mr. Bates later testified. While it was common case that fishing for white fish in Area VIII(a) was prohibited, the respondents’ case was that they had been informed they could fish for scallops. This was not denied.

Evidence
32. The respondents’ intended witnesses were Eugene Bates, Brendan Moore, Colm Power, Skipper of the Alicia, Christopher Bates, Skipper of the William Joseph, Dr. R. A. Meaney, a fisheries expert whose report contained many appendices, and Liam Grant, Accountant. All furnished written statements. In the meantime, it became clear that Dr. Meaney’s report, premised on “re-designation of the vessels”, had no bearing on the issue. Counsel for the respondents tendered him as a witness, but his evidence played little part in the case. The following furnished witness statements on behalf of the Minister: Josephine Kelly, Principal Officer, Sea Fisheries Division, Mairín ní Dhuinn, Assistant Principal Officer assigned to Licensing Authority for Sea Fishing and Deputy Registrar General, Padraig Gordon, Fleet Development Executive Board, Iascaigh Mhara, James Moloney, a civil servant previously employed in the Sea Fisheries Administration Division, and Mr. Craven, whose statement and fax also became part of the case, although he was not called to testify.

33. Judging from his evidence in the transcript, the first named respondent, Eugene Bates, did not have a full understanding of some of the factual or legal issues. His evidence on the sequence of events on the relevant days eight years earlier was incorrect. He testified that Mr. Colm Power, skipper of the Alicia, contacted him at approximately 4.30 a.m. Irish time on the 18th August, 2003, and told him that a French Fisheries’ patrol aircraft had ordered them north of the 48° line. Mr. Bates testified that he thought that the French authorities might have been of the opinion that the vessels were catching white fish, as opposed to scallops. He said that he ordered the two vessels to obey the orders of the French Navy, and that, as a consequence, the vessels steamed north. But his testimony was that he spoke to a departmental official, Mr. Michael O’Driscoll, “when the vessels were en route to Brest”. While this may have been indeed true, a number of facts point to the conclusion that this was not the full picture; and that contacts with the Department must have taken place on the 18th August, 2003. It is, in any case, the only reasonable inference. It is hardly likely that Mr. Bates waited to contact the Department until the valuable vessels were actually arrested.

34. Owing to the run of the case, Mr. Bates was cross-examined over three days. He said they had frequently been inspected by the Irish Navy on many occasions in the past, although not of course in Area VIII(a). He was questioned as to when he received assurances or information from Michael O’Driscoll. He testified that, when they just owned William Joseph, they asked him whether they were entitled to go down and fish in Area VIII(a). He responded that he was told on that occasion, and many other occasions, that his licence was an E.U. licence entitling him to fish for scallops anywhere in the E.U. outside of member states territorial waters. His testimony was that he was told that he could fish in Area VIII(a) by Michael O’Driscoll quite often, and that he was reassured fully in relation to Area VIII(a). He said that, as far back as the year 2000, he had no doubts about their ability and entitlement to fish in Area VIII(a).

35. In response to his own counsel he said that he contacted Mr. O’Driscoll “later that morning”, and that he got confirmation back to the effect that he was safe to continue fishing there. But, further in response, he said that he spoke to Michael O’Driscoll when the vessels were en route to Brest, and that the aircraft arrived first, at 2.30 in the morning, but it was a Navy ship that arrived next to arrest the vessels and escort them. Clearly, this evidence, given on the first day of the hearing, elided the events of two days. The aircraft, in fact, arrived at 4.30 a.m. on the 18th August, 2003. The Navy ship arrived at 2.30 a.m. on the 19th August, 2003. He was cross-examined by counsel for the Minister as to whether Mr. O’Driscoll had ever spoken to him about Area VIII(a), but he was unable to say how often, but estimated three times or maybe more. His evidence was that he was “very careful”. Counsel for the Minister put to him that, the first time Mr. O’Driscoll was asked was after he had the two vessels, that is to say, William Joseph and the Alicia. Mr. Bates gave evidence that he had a recollection of asking Mr. O’Driscoll about Area VIII(a) after the arrest of U.K. trawlers in that area. He was not concerned, however, because of the nature of the licence, and assurances that he received. Mr. Bates testified there was advanced satellite communication with the vessels.

Observations
36. Clearly, Mr. Bates was mistaken as to the timing of first contacts with the Department. In fact, there is coercive evidence that first contact cannot have been on the 19th August, 2003. His evidence on this is not reconcilable with the unchallenged evidence of Colm Power, the skipper; or with the date and time of the fax from Cormac Craven in the Department, timed at 19.00 hours on the 18th August, 2003. It is not consistent with what Laffoy J. held in her judgment, or with what counsel for the Minister informed the Court in the appeal, reflecting the contents of written submissions from both parties and Laffoy J.’s finding.

37. Mr. Bates testified that he contacted Mr. O’Driscoll in the Department who said he would come back to him, which he did later on in the day, and that Mr. O’Driscoll asked him would the respondents be prepared to take the two vessels out of the area completely until the matter was resolved. This appears to refer to the 19th August, 2003. He said he “very often” rang Mr. O’Driscoll just to tell him what they “were doing”. In retrospect, there were areas of inconsistency. None of these did make it impossible to draw correct inferences, as Laffoy J. did. Even judging from the fax taken in isolation, there were checks with, and representations from, the Department at minimum seven hours before the vessels were arrested in the early morning of the 19th August, 2003, in Area VII(h). What Laffoy J. held, and what this Court was told, are described later.

The Evidence of Colm Power
38. Mr. Colm Power testified that by the time the Alicia departed from Cobh, the William Joseph had already been at sea for six days. He saw the French spotter plane on the 18th August, 2003, at about “4.30”. By this time, the Alicia had been fishing in Area VIII(a) for about 20 hours. The spotter plane called the vessel by radio to say they were fishing in an illegal area. Mr. Power was told to leave immediately. He testified:

“So I called them back and we said we had contacted the Irish Fisheries before we had left, and they had said it was okay for us to fish in this area, as long as we only caught scallops and not the white fish” (Day 2, p.59, Transcript). (Emphasis added)

This was clearly an important piece of evidence. It was never challenged in cross-examination. No evidence to the contrary was adduced.

He continued:

“So I told them we had only scallops on board, and we had no white fish, and we had been informed that we were permitted to fish in the area.”

Later Mr. Power told Laffoy J. that he was receiving information about areas which Eugene [Bates] was getting from the Department “all of the time” (Day 2, p. 65). He continued:

“… because [when] we go into an area, we have to check if we are allowed to go there. You always hear of boats getting caught for going into the wrong area, so you always check. Before you depart on your fishing trip, you check where you are allowed to go.” (Emphasis added)

This testimony was never challenged.

39. Mr. Power testified that he had been told on “numerous occasions” that they could fish anywhere they liked, as long as they stayed outside the 12-mile limit of the country that they were fishing in. He was asked if any official, either in England or Ireland, had ever told him that he could not fish in Area VIII(a). He responded “no”. He said that if they had been in an illegal area, they would have been arrested straight away, as the authorities would check the vessel’s log book. They would also be able to know by the VMS, that is, the Vessel Monitoring System.

40. He was cross-examined as to how it was that, by contrast to English vessels, he thought Irish vessels might have been entitled to go into Area VIII(a), he again affirmed that “Yeah, you have to check every trip”. Mr. Power was cross-examined in great detail on many other aspects of the claim for loss. But he was never challenged on his testimony to the effect that fishermen checked before every trip, or that Mr. Bates was getting information from the Department “all the time”. Rather, counsel put to him that he should have known that, if English vessels could not fish in Area VIII(a), neither could Irish vessels.

41. He testified that, an hour and a half after the first contact on the 18th August, 2003, the spotter plane came back. The two vessels were told once more that they were in an illegal area, and to proceed above 48° North. They steamed as directed. He told the High Court about the date and time of the arrest as being in or about 2 a.m. or 2.30 a.m., on the 19th August, 2003.

42. Importantly, Mr. Power’s testimony was that Mr. Bates called him at approximately 18.00 hours on the 18th August, and told him that he had been talking to the Irish Fishing authorities, and then to the French fishing authorities, and that he could see no reason why they could not fish in the area, but that the French authorities were saying no Irish boats were permitted to do so. Mr. Bates told Mr. Power to stay where they were positioned “for the time being”. In hindsight, it can now be said that here Mr. Bates was referring to Area VII(h) above the 48° N line. Whatever about a time difference between Irish and French time, it is clear from Mr. Power’s evidence that Mr. Bates had already been “talking to the Irish Fishing authorities” during the 18th August, 2003, when he directed the vessels simply to head north to Area VII(h) where they recommenced fishing. But even were Mr. Power’s evidence to be ignored, there was other evidence which supports the Court’s conclusion on proximity of advice.

The Fax Message
43. It is now therefore necessary to deal with the fax message from Mr. Craven in more detail. Insofar as material, it was headed as a “Fax Message”, emanating from Sea Fisheries Control and Enforcement, addressed “For attention of: the owners/skippers of the Fishing Vessels “Alicia” WD 149, and “William Joseph” WD 182”. Beneath that again “From: Cormac Craven, Department of Communications, Marine & Natural Resources, Leeson Lane, Dublin 2.” Beneath that is the date and time. The fax message was dated “August 18, 2003”. The time is stated to be “19.00”.

44. The text reads:

“To whom it concerns, Officials of the Department of Communications, Marine & Natural Resources, are investigating your query, and have found no valid reason to prevent you fishing for scallops at the given co-ordinates, 47° 9 se N and 6° 48 minutes 4.58 W. However, officials will be pursuing the matter further with the Department of Foreign Affairs, and the French authorities tomorrow.” (Emphasis added)

It was signed by Mr. Craven, and dated “8/18/03”. Copies were sent to Andrew Kineen, Sea Fisheries Control Manager; Michael O’Driscoll, Senior Sea Fisheries Officer; and Breda Gormanly, Sea Fisheries Officer. It is quite clear from this, that the fax refers to discussions which had already taken place during 18th August, 2003, but also, by inference, suggests earlier contacts.

45. There was no cross-examination regarding the timing or frequency of the contacts between the skippers, the respondents, and the departmental officials on the 18th August, 2003. But evidence of Mr. Power clearly established that contacts did take place on the day. This is corroborated by what was written in the fax about “your query”. Mr. Power’s evidence about checking “before every trip” was not ever rebutted in evidence from the Minister’s witnesses.

The High Court Judgment
46. The High Court judgment demonstrates the extent to which much of the respondents’ case on losses was undermined. At para. 61 of the High Court judgment in the Irish Reports, Laffoy J. held:

“Apart from their inability to fish at all in the immediate aftermath of the arrest of the vessels, the fact that the plaintiffs were not in a position to make a profit from using the two vessels to fish in Area VIIIa for scallops after 19th August, 2003, was a consequence of the effect of the Regulation of 1995, which prohibited them from fishing in Area VIIIa. It was not a consequence of the misstatement by an official of the department of the effect of the Regulation of 1995. Therefore, in my view, the plaintiffs are not entitled to recover for loss of earnings by reason of not being able to fish in Area VIIIa after August, 2003.”

She continued:

“However, it must be recognised that the arrest of the two vessels prevented them from fishing at all in any area for a number of days and they are entitled to damages to compensate them for that loss. I propose awarding €9,600 in respect of the loss in question, which represents loss of earnings from both vessels for four days at €1,200 per vessel per day. I do so acutely conscious of the fact that the agreed figure of €1,200 per vessel per diem represents the average daily differential between possible returns from fishing in Area VIIIa and fishing in other areas. However, I consider that the approach adopted represents a fair assessment of the loss of earnings to the plaintiffs in consequence of the events of 18th August, 2003 and subsequently, having regard to the evidence” (para. 61).

Laffoy J. went on:

“Aside from the causation issue, on the basis of the evidence of the accountant called by the defendants, Mr. Sean Bagnall, even if they had been in a position to fish for scallops in Area VIIIa for the remainder of the 2003 season, it is probable that they would have earned no more than the amount which Mr. Bagnall assessed which was under €25,000, based on 11 days fishing in late August and September, 2003” (para. 62).

But she concluded:

“The reality is that, after 2003, as subsequent events illustrated, the probability of the plaintiffs making a profit from scallop fishing became remote. A new regime for fishing for, inter alia, scallops in the Western waters was adopted in Council Regulation (EC) No. 1954/2003 and Council Regulation (EC) No. 1415/2004, which ultimately led to the de-commissioning scheme in this jurisdiction. In my view, the plaintiffs’ claim for loss of earnings is not sustainable except to the extent allowed, which is probably generous” (para. 62).

47. The respondents’ claim for capital loss in relation to the Alicia was not sustainable. They actually made a profit on the sale of that vessel. The respondents also received compensation when the William Joseph was decommissioned. In any case, the judge was not satisfied that there was a causal link between the misstatement of the law contained in the assurances given by the official of the Department, and what the respondents considered was the necessity for the sale of the Alicia prior to the decommissioning scheme coming into effect. She concluded that it was clear on the evidence that a range of problems including depletions of scallop beds near the Irish coast affected the Irish scallop fishing fleet. These ultimately gave rise to a decommissioning scheme established in 2005 at the urging of the fishermen. She found it impossible to conclude that the loss which the respondents claimed by reason of having sold the Alicia before the decommissioning scheme came into force, was reasonably foreseeable when the official of the Department gave the assurances to the respondents.

The Assurances
48. Laffoy J. dealt with assurances given to the respondents under the heading “Misinformation and its source”:

“In early 2000 he was assured by an officer in the Minister’s department (the department), Michael O’Driscoll, that the plaintiffs were legally entitled to fish for scallops in Area VIIIa” (para. 4).

49. She also referred to the letter of the 5th January, 2011 from the Chief State Solicitor, saying:

“However, in a letter of 5th January, 2011, to the plaintiffs’ solicitors from the chief state solicitor, the plaintiffs were informed that, in the light of the material then in the possession of the defendants, the defendants accepted that “the assurances” were given to the plaintiffs by Mr. O’Driscoll” (para. 13).

But, she went on:

“I understand “the assurances” to mean all of the matters outlined in para. 11 above, which were summarised in the letter by reference to the statement of claim and the replies to the request for particulars” (para. 13). (Emphasis added)

What was written in the letter has been described. At para. 11, Laffoy J. set out the pleadings in the Statement of Claim as follows:

“(a) up to and including August 2003, the plaintiffs had been assured by the department that they could fish in Area VIIIa/b/c,

(b) the Minister issued the licences in respect of the “William Joseph” and the “Alicia”… without restriction for Area VIIIa/b/c and the department officials confirmed to the plaintiffs that the licences issued entitled the plaintiffs to sea-fish for scallops in European Union waters outside the State’s territorial waters, and

(c) subsequent to the United Kingdom authorities specifically banning scallop fishing by United Kingdom registered vessels in Area VIIIa, the plaintiffs, having sought confirmation from the department, were told by the department’s officials that their licences were valid to fish for scallops in Area VIIIa.” (Emphasis added)

In the High Court judgment, she explained:

“As I have recorded, on 18th August, 2003, an official of the department sent a fax message to Mr. Bates stating that the department had “found no valid reason to prevent [the plaintiffs] fishing for scallops” below latitude 48°N” (para. 14).

The implication of all these passages was that the respondents received advice “to” the 18th August, 2003, which led to the arrest.

50. Laffoy J. described the events of the 18th and 19th August, as follows:

“On 18th August, 2003, when both boats were fishing in Area VIII(a), they were informed by a French fisheries patrol aircraft that they were fishing illegally and they were ordered to proceed above latitude 48°N immediately, which they did. They made contact with Mr. Bates, who in turn made contact with Mr. O’Driscoll in the department. Mr. Bates was reassured that the plaintiffs were entitled to fish legally in Area VIII(a). Mr. Bates conveyed that information, which had been confirmed by a fax message to him from a sea fishery officer in the department on 18th August, 2003, to the skippers of the two boats, but he told them to stay where they were positioned. Unfortunately, the information communicated verbally and by fax by the department was incorrect. Later in the early hours of 19th August, 2003, both boats were arrested by the French navy and directed to Brest” (para. 8). (Emphasis added)

In hindsight, the word “reassured” is highly significant. It is distinct from, and additional, to the earlier assurances.

51. The judgment dealt in a typically succinct manner with the misinformation concerning the material events. It can only be understood as describing the sequence of events after the vessels were observed. Having been ordered to proceed above 48° latitude immediately, which they did, the vessels made contact with Mr. Bates who, in turn, made contact with Mr. O’Driscoll in the Department. The judgment reads that Mr. Bates was ‘reassured’ that the respondents were entitled to fish legally in Area VIII(a) (See para. 8 of that judgment, quoted above at para. 50). Mr. Bates relayed that information, which had been confirmed by fax message to him from a Sea Fishing officer on the 18th August, 2003, to the skippers of the two boats. But he told them to “stay where they were positioned …”. The fax was sent on the 18th August, 2003. Much was this was repeated at para. 14 of the judgment.

52. For entirely understandable reasons, some of the description was slightly compressed. It did not describe all of Mr. Power’s evidence about contacts because it did not have to. It did not expressly convey that by proceeding above 48°N, the vessels had entered Area VII(h), and remained there. The passage quoted did not preclude the inference that, when the vessels were told to stay “where they were positioned”, this meant Area VIII(a). In fact, this Court was mistakenly informed at the appeal by counsel for the Minister that they were arrested in Area VIII(a). The description did not put an actual time on the “re-assurance”, because that issue had never been explored. The judgment clearly did not hold that the reassurance post-dated the arrest, because, clearly, that would have been inconsistent with the sequence of events quoted above.

53. At para. 57, Laffoy J. went on to say:

“Given the context in which the plaintiffs sought information from the officials of the department in relation to their entitlement to fish for scallops in area VIII(a), in my view, the proximity test is met and a duty of care was owed to the plaintiffs, as persons who were applicants for, and the holders of, sea-fishing boat licences to enable them to fish for scallops, and who were relying on special knowledge and expertise of the officials of the department in connection with the complexities of Community law on fishing.” (Emphasis added)

The judgment did not consider the issue of proximity in detail, as did the judgments of this Court in Cromane subsequently.

54. Laffoy J. noted that Mr. O’Driscoll, the official who gave assurances, as she described it, “prior to August, 2003” to the respondents, had not testified (para. 57). However, she considered that she was in a position to draw an inference as to what had happened from the evidence of another witness, Mr. Andrew Kinneen, Sea Fisheries Control Manager. Mr. Kinneen’s explanation for the misunderstanding of the legal position was that the file copy of the English translation of the E.U. 1995 Regulation, which was available to him, which was in the normal format of the E.U. Official Journal, differed from the French language version. The judge considered it was reasonable for her to infer that this was also the source of confusion which led to Mr. O'Driscoll giving the respondents the wrong information. It is clear from the passages quoted above, however, that Laffoy J. concluded that reassurances were given on the 18th August, 2003.

55. For there to be negligent misstatement in law, there must be reliance upon an assurance. Laffoy J.’s observations did not convey that she was speaking of advices only given in the months prior to the 18th August, 2003. But she specifically referred to a reassurance confirmed by the fax message (para. 8).

56. Laffoy J. held that the Department could not exclude immunity for any form of negligence involving a misstatement as:

“…in my view, the position of the plaintiff is no different to that of a plaintiff who invokes private law duties in relation to occupiers’ liability or employers’ liability against a public body defendant. I can see no reason why a public authority or the State should be afforded immunity in an action for negligent misstatement by a person for whom it is vicariously liable, in the type of situation where a defendant, which does not have public authority status… would be held liable in tort” (para. 56).

57. The High Court judge held that, given the context in which the respondents sought information from the officials of the Department in relation to their entitlement to fish for scallops in Area VIII(a), the proximity test was met, and a duty of care was owed to the respondents (para. 57).

A Distinction
58. But there are phraseologies in the judgment which indicate the judge’s thinking that are very revealing. Again at para. 57, the judgment referred to the fact that Mr. O’Driscoll, the official who gave the “admitted assurances to the respondents prior to August, 2003”, had not testified, but had negligently given the respondents the wrong information. That negligence was the Minister’s in failing to ensure that the version of the translation of the 1995 Regulation, which was available to be consulted by officials who had to deal with queries, correctly reflected the Regulation as implemented. To my mind, the use of the term “admitted assurances” refers back to what was admitted in the letter of the 5th January, 2011. But the judge also referred to the “re-assurance” on the 18th August, 2003, confirmed by fax. It is true that in another passage, Laffoy J. refers to the assurances in the letter of the 5th January, 2011. But this was in the context of what was “admitted” in that letter (para. 39). In any case, the wording of that letter referred to what was said up to August 2003. In relation to the judgment of this court in Wildgust and Anor. v. Bank of Ireland and Anor. [2006] IESC 16; [2006] 1 I.R. 570, Laffoy J. describes the understanding of the proximity test as arising when the maker of a statement could expect in the context of a “particular enquiry” that reliance would be placed thereon (para. 57).

59. In addition to granting judgment, Laffoy J. ordered that the Minister was to pay to the respondents all the costs of the proceedings, other than the costs of one hearing day, to be taxed in default of agreement. But by way of offset, she further ordered that the respondents were to pay to the Minister the costs of preparation for the defence of the abandoned claim, up to the first day of the hearing, to be taxed in default of agreement. A stay was placed on the order for costs, which was perfected on the 21st February, 2012.

The Notice of Appeal
60. The Minister’s notice of appeal focussed on legal causation and proximity. With one insignificant exception, it did not raise any issue on the findings of fact. In summary, the notice of appeal contended that the trial judge erred in fact and law:

(i) in finding that there was in existence a duty of care at common law owed by the Minister to the respondents in respect of the provision of advice by a servant or agent of the Minister to the respondents as to the meaning and effect of regulations enacted by the Institutions of the European Union in the context of the Common Fisheries Policy of the Union, a breach of which duty of care was actionable at the suit of the respondents.

(ii) in finding that the parties were in a relationship of proximity such as would warrant a finding that such a duty of care existed.

(iii) in failing to find that matters of public policy militated against a finding as to the existence of the said duty of care.

(iv) in holding that the information sought from the Department related to matters involving “special knowledge and expertise” rather than legal advice.

But one factual issue was raised. The notice of appeal contended:

(v) The learned trial judge erred in fact by implication in finding as a fact that the non-availability of a correct version of the translation of the 1995 Regulation to the officials who had to deal with queries in relation to the fishing effort available to Ireland caused or contributed to the incorrect advice given.

This factual issue was not material to this appeal, or to the application to review. No part of the judge’s narrative of the events of 18th and 19th August, 2003 was challenged. This included the “admitted assurances” prior to 2003, and the reassurance on the 18th August, 2003 confirmed by fax.

The Judgment of this Court in Cromane
61. The High Court judgment predated the judgment of this Court in Cromane Seafoods Limited v. The Minister for Agriculture [2016] 2 ILRM 81. In Cromane this Court, held by a majority, that the Executive should not be held liable for negligent misstatement, save in limited circumstances, two such instances being conduct tantamount to misfeasance in public office, or a relationship of close proximity. Thus, in this appeal, the Court inevitably had to consider the proximity issue in the context of as to whether or not the respondents were entitled to recover damages, or whether, rather, the Minister’s appeal should succeed, in its entirety. The appeal was transferred to the Court of Appeal. The parties put in submissions. It was then remitted back to this Court when there were further written submissions. It was entirely foreseeable that this Court would itself have to itself carefully consider the case through the prism of, and having regard to, the Cromane judgment, in the interests of justice. It was then not open to this Court to remit the case back to the High Court. Laffoy J. had retired by the time the appeal was heard.

The Written Submissions
62. The Court has no wish to criticise those involved in preparing legal submissions, or presenting the appeal. But it is necessary to describe what happened. The submissions from both sides contained inaccurate and misleading descriptions of the events. They contained incorrect and misleading chronologies. The Court was never informed about these errors in the appeal. The Minister submits in this application that, insofar as there were errors in his written submissions, these were not “apt to mislead”. It is therefore necessary to describe how precisely the written and oral submissions informed the Court’s judgment, and led the Court to conclude as it did.

63. Naturally, the Minister’s written submissions, subsequent to the Cromane judgment focussed on the question of the proximity of the advice. The Court was not asked to refer to the transcript, but rather to consider what was contained in the judgment in the light of legal principles applicable to proximity of advice in the context of negligent misstatement.

64. It is axiomatic that written and oral submissions to an appeal court, purporting to outline statements of fact and summaries of evidence must be checked and rechecked in order to ensure they are accurate. The Minister’s first set of submissions, dated the 8th April, 2014 stated quite correctly, at para. 1.3:

“… When the plaintiffs’ vessels “Alicia and William Joseph” were engaging in scallop fishing in the Bay of Biscay off the coast of France on 18th August, they were doing so unlawfully. …”

Having referred to the incorrect information given by officials, post-arrest, the submission went on to refer to the incorrect advice given out prior to the arrest by the Chief Sea-Fisheries Protection Officer, Mr. O’Driscoll, a non-lawyer. But the submission did not set out when it was said this advice was given. Paragraphs 6.1 and 7.1 of this submission make reference to by Mr. O’Driscoll giving advice to Mr. Bates over the telephone on three separate occasions. But the time or dates of these calls were not identified. In fact, this was not part of the evidence in the case. Probably this referred to the reply to particulars, but these were not evidence. Moreover, these paragraphs made no reference to the “re-assurance” on the 18th August, 2003.

65. The Minister furnished further submissions on the 10th October, 2014. There, reference is made to the vessels having been “arrested” on 18.08.03 at 4.30 in “Area XIII(a)”. This was wrong and misleading on three counts. There was an error as to the time, date, and location of the vessels. The submission did refer to the existence of Mr. Craven’s fax, which, if its contents had been referred to, would have placed events in the correct sequence. But, as it stood, even had the reference to the XIII(a) been amended to either Area VIII(a) or VII(h), the date of the arrest was incorrect.

66. The Minister later put in further submissions, dated 20th June, 2017. These did not dispute the fact of the plaintiffs’ loss, nor its quantum. Again, the key issue raised was whether that advice was given negligently. But the earlier errors were not detected or corrected. At para. 1.11 there was the following, referring to the William Joseph and the Alicia:

“What also became apparent was that, notwithstanding the way the case had been pleaded, the plaintiffs had fished in Area VIII(a) only for a combined total of 22 days at the time of their arrest by the French authorities. The boats had gone into the area on only four occasions with the arrests taking place on the fourth occasion.” (Reference was made to para. 7 of the High Court judgment). (Emphasis added)

But the emphasised words were very misleading indeed. They suggested, only, that the arrests took place in Area VIII(a) on that “fourth occasion”.

67. This incorrect account was corroborated by a detailed chronology of events, which included:

“18.08.2003 MFV “William Joseph” and “Alicia” were arrested in Area VIII(a) by the French authorities.

Once the arrest was notified to the Irish officials, the officials to whom the information was given at that stage consulted the consolidated version of Regulation 2027/95 and were misled by the absence of a reference to Ireland in the relevant Schedule, which absence appears to have been a typographical or computing error. Cormac Craven, Sea Fisheries Protection Officer, sent a fax to the plaintiffs dated 18 August 2003 in which they were informed there was no obvious reason to prevent them fishing for scallops at the given co-ordinates N 0.47 and W 006484.4.” (Emphasis added)

68. This too was incorrect and misleading in a number of respects. It repeated the error that the vessels had been arrested on the 18th August, 2003. It confused the date when the vessels were first observed by the French authorities with the day of actual arrest. It erred in its description of the location of the vessel. The vessels were not arrested in Area VIII(a). It failed to have regard to the fact that Mr. Craven’s fax was dated 18th August, 2003, but that the arrest was on the 19th August, 2003, although by then the sequence should have been clear from Laffoy J.’s judgment.

69. The chronology then contains the following for the 19th August, 2003:

“19.08.2003 Fax message from Andrew Kinneen to the French Authorities putting forth the proposition that the two vessels had been fishing in good-faith, that there had been a mistake in interpretation of the Regulation …”.

This was correct, and borne out by the evidence.

The Respondents’ Submissions
70. The plaintiffs/respondents also put in submissions, dated the 25th October, 2017. These also contained a chronology. Under the slightly misleading heading of “September 2002” the following is stated as fact:

“The respondents’ boats, MFV William Joseph, and MFV Alicia, (“the vessels”), fished Area VIII(a) and subsequently fished in May 2003, July 2003, and August 2003, relying upon assurances from 2000 to 18th August, 2003 from Chief Sea Fisheries Officer Michael O’Driscoll, and others of the Department of the first named defendant, (“the Department”), that the respondents could do so.” (Emphasis added)

71. The chronology goes on:

“The assurances were identified for the defendants in the initial letter of claim of 11th October, 2004, which was not answered despite three reminders, and were denied in the defence of 16th November, 2009. Extensive other particulars were sought by the defendants, and given in reply on the 4th February, 2010.”

72. It can undoubtedly be said that, at earlier stages, the respondents referred to assurances in the years 1999 to 2002. But there is no doubt what was set out in these submissions referred also to advices “to” 18th August, 2003.

73. But then there is the following:

“18th August, 2003, 04.30, the vessels were arrested by the French Authority in Area VIII(a) in the Bay of Biscay.” (Emphasis added)

This was again incorrect. The date of the arrest and its location is stated as “Area VIII(a) on the 18th August, 2003”. The timing of “04.30” was when Colin Power described seeing a French spotter plane which told the skipper to leave Area VIII(a).

74. Below that again there is the following:

“18th August, 2003, 19.00, Sea Fishery Officer, Cormac Craven, confirmed to the respondents that there was no valid reason to prevent the respondents from fishing in the area.”

75. The references in the High Court judgment to misinformation were not only to those prior to 2003, but also to the reassurance on the 18th August, 2003. These were made without reference to the transcript of Mr. Power’s evidence on the “up to date” information being given before leaving port or directly to the fax. Regrettably, the submissions from both sides conveyed the clear impression that the arrests took place in Area VIII(a), when, as the Court was later informed, the arrest, in fact, took place in Area VII(h), outside Area VIII(a), and after the vessels had steamed North out of that area.

76. Laffoy J.’s judgment contained nothing at all which was incorrect. But, as will be seen from the submissions made to the Court in the appeal, in the light of the Cromane judgment, it led to the need for a clarification on proximity, in particular: (a) when was the first contact with the Fisheries control aircraft; (b) whether, on that contact, both vessels “moved immediately”; (c) when the vessels had actually first made contact with Mr. Bates; (d) when did Mr. Bates make contact with Mr. O’Driscoll; (e) when was the reassurance that they were entitled to fish legally in Area VIII(a) given; and (f) what was actually meant by the words that the vessels were to “stay where they were positioned”.

The Transcript of the Appeal Hearing on 1st December, 2017
77. Subsequent to the Minister’s application to review the judgment, the Court directed that a summary of the transcript of the 1st December, 2017, be prepared. This was drawn from the digital audio recordings. Parts of this were highlighted and sent to both sides. The highlighted passages included counsel’s responses to questions from the members of the Court. The parties were invited to explain these, and make written submissions upon what had occurred. They did so. Following this, the Minister requested a full transcript of the appeal hearing. This transcript shows where and how the Court sought to clarify the sequence of events.

78. In opening the appeal to this Court, counsel for the Minister stated:

“… An extra layer of possible confusion arises because when the plaintiffs were arrested by the French authorities in August, 2003, they obviously contacted, via intermediaries, the Department, and at that stage the officials who deal with the matter’ (interjection)

Ms. Justice Dunne: ‘I don’t think they were arrested at that stage’.

Counsel: ‘I am sorry the plane observed them first of all. Perfectly correct. And then they didn’t leave the scene, and then the following day they were arrested. That is absolutely correct.’” (Emphasis added)

In the first sentence, counsel conveyed the impression that the relevant contacts took place after the arrest. This was not correct. But counsel then sought to correct himself. He said the respondents’ vessels had not left the scene. This was not correct either. Later, having stated that Mr. O’Driscoll had been misled by the mistranslation back in 2000 or 2001, counsel observed that, “almost as an aside”, Laffoy J. had suggested that Mr. O’Driscoll was led astray for the same reason that the Department officials were led astray in August 2003. He submitted that this had not been put forward as a suggestion by himself, that he had not asked the Court to draw that inference, and that this had not been the subject matter of submissions.

79. A little later I asked where the respondents’ vessels were, “longitude wise”, when they were arrested. Counsel responded to my question:

“… I am sorry that has escaped me”.

But then he explained:

“They were well within Area VIII(a) certainly. They weren’t just on the borders. They had deliberately gone…” (Interjection). (Emphasis added)

Counsel undoubtedly, unintentionally, misspoke. Perhaps the interjection prevented a correction. But the Court was not to know that this statement as to the place of the arrest was entirely incorrect. The vessels were not in Area VIII(a) by the time they were arrested, but, as it much later transpired, in Area VII(h). While undoubtedly unintentional, this error was unfortunately misleading. The subsequent discussion all proceeded on the premise of the place of arrest. The Court was given to understand that the arrest took place in Area VIII(a), and thus the vessels had not left or returned to the scene before they were arrested. The written submissions conveyed the same impression.

80. Later still, in another exchange, I again sought to clarify the sequence of the events, in the context of documentation before the Court; in particular, maps and descriptions designating both the permitted and prohibited fishing areas. I pointed out that the earlier written description did not include Area VIII(a) at all. Counsel for the Minister responded that there had been evidence at the hearing of what happened, and that there were phone calls and faxes “flying back and forth”, and “there was a view taken, but it was not necessarily – it was a question of I think Mr. Kineen [sic] I think his name was, he went and got the document and looked at it, and there were phone calls made. I think at that stage they may well have been arrested at that point”. (Emphasis added)

81. Ms. Justice Dunne observed:

“I was about to say that I presume the phone calls and faxes started flying around after the arrest and not before that”.

But then counsel responded: “Yes I think so. I think there was enquiries made after the aeroplane spotted them, but the real concentration was …”

Ms. Justice Dunne: “After the event. After the damage was done”. (Emphasis added)

This second reply suggested that enquiries were made after the French aeroplane spotted the vessels at 4.30 a.m. on the 18th August, 2003. Undoubtedly, there were communications by fax between the Department and the French authorities after the arrest. But what is relevant is that the reply also spoke of communications timed well before the arrest, but after the vessels were first spotted. The “phone calls” referring to Mr. Bates’ somewhat confused evidence remain unclear. But the wording of Mr. Craven’s fax makes clear there had at least been a “query” prior to the response. Counsel submitted:

“… in fairness, the plaintiffs [i.e. the respondents] are not saying that their loss was accrued just because of what happened in August, 2003. What they are saying is, they would never have been in that position if Mr. O’Driscoll hadn’t said what he had said, and that is their case, and I acknowledge Mr. O’Driscoll, as I say, made a mistake. …” (Emphasis added)

But counsel did not refer exactly to what did happen in August, 2003, by reference to the transcript. Even if he had referred to the transcript, in the light of what it contains, it is doubtful that it would have much assisted the Minister’s application to review the judgment of this Court.

82. After further exchanges, I asked why Mr. O’Driscoll had not been called as a witness? Counsel replied that Mr. O’Driscoll had “acknowledged he had made a mistake”, and that he had not been called as a witness. No further explanation was given. There were exchanges between the members of the Court and counsel as to the nature of the legal relationship between the parties in the context of what transpired.

83. Working on what the Court had been told earlier as to the place of arrest, Mr. Justice Charleton then pointed out that the documentation “fed into the context when they didn’t go away when the French aeroplane came over their boat”. To this, counsel for the Minister responded, “Yes, as I say, the plaintiffs’ claim was on foot of Mr. O’Driscoll’s representation, they bought the Alicia, they developed their fishing programme, etc. etc. etc., and claimed €1 million”. But counsel did not directly address Mr. Justice Charleton’s observation—if it was seen as incorrect.

84. Then, unaware that the vessels actually did have satellite communication and referring to Laffoy J.’s narrative, Charleton J. set out the scenario:

“But I thought when the French airplane appeared, and they got a message to say “we can’t fish for scallops here”, they then rang the department, no? And then the Department, at that point, looked up the regulation. It wasn’t by fax, obviously, because you are not faxing from a fishing boat unless it is a very advanced one of the kind you see out in Killybegs, maybe, but the department said “Oh, look, we have looked at the regulation and, yes, you can fish there”. So they continued fishing, and low and behold, they got arrested. That is what I understood the narrative that she was giving us in the judgment. The French Navy then appeared the next day and said “You are under arrest”.” (Emphasis added)

85. To this, counsel responded that he was trying to locate the transcript. But then he added:

“… I understand that when the plane appeared, contact was made with Mr. O’Driscoll, again.” (Emphasis added)

This is consistent with Laffoy J.’s observation that the parties were “re-assured” on the 18th August, 2003. Again, this was a highly significant statement. It placed the first contacts with Mr. O’Driscoll in close proximity to the time the plane appeared.

86. None of counsel’s responses to these questions conveyed sufficiently clearly that the members of the Court had misunderstood the situation.

87. Counsel went on:

“… it was when they were arrested that the amended regulation featured. …”

Thus, together with what the Court had been told earlier, the Court was given to understand that the vessels not only were in Area VIII(a), but that they made contact with Mr. O’Driscoll again when the plane appeared, had remained in or returned to Area VIII(a), and had been arrested there. The judgment of this Court was premised on the factual description given by counsel, both in the written submissions and orally, which it is now suggested is incorrect. The Court was given the clear impression that the first contact with Mr. O’Driscoll was in close proximity after the plane appeared at 4.30 a.m. on 18th August, 2003. If this account was indeed incorrect, the question then arises as to why it was given? But this rhetorical question must now be seen in the light of what was contained in the transcript, which seems to have been unavailable when the appeal was heard.

88. In a further effort to remove doubt, I later asked:

“Yeah, when they are on say day one and they were in VIII(a), when the plane emerged over them, did they contact the Department at that stage?

Counsel: I think somebody did on their behalf. I think somebody …” (interjection).

I asked: “And what did the Department say then?”

Counsel: I think the department gave them an assurance, having contacted Mr. O’Driscoll, that they were ok, because they could fish there. But it was the same mistake that had been made previously. It was consistent.” (Emphasis added)

Again this was consistent with the narrative as set out by Laffoy J. in the judgment.

Mr. Justice Charleton observed:

“One can’t, one can’t blame Mr. O’Driscoll for this. The plain fact is that fishermen on the high seas were going to the highest source of knowledge and perhaps the most reliable source of knowledge that could possibly be there. They weren’t going to contact the Greek authorities and ask for an explanation in Greek, were they? They were just going to contact …”.

Counsel: “No, but they themselves …”

Dunne J. then read out a passage from Laffoy J.’s judgment referring to the fact that the fax was sent on the 18th August, 2003, and that an official of the Department had stated that the Department found no valid reason to prevent fishing for scallops below 48°N.

89. Counsel explained that the transcript was not available to him, and did state that the respondents had not made the case in the High Court that their losses stemmed from the events of August effectively. He submitted that he understood their claim arose from losses stemming from earlier conversations with Mr. O’Driscoll. But Mr. Justice Charleton then went back to the events:

“No, but you know, any sane person when the French warn you off, they would just go away. You can’t fish here. So that is the French Navy, and airplane above me. I better go somewhere else. But then if they contract the department, and they say “Well you are entitled to be there”, well the same person might stay and then, if the French Navy comes and arrests you the next day, you might think “Well that is because of what the department said to me yesterday”.

In light of what the Court had been told earlier, it is hardly surprising this question was asked. If it was thought this was a wrong account, the Court should have been told this clearly and explicitly.

Ms. Justice Dunne observed:

“Just in relation to the damages issue, again without getting bogged down. I know that you are pointing out that all of the losses claimed couldn’t be claimed, couldn’t be claimed by virtue of what was said in 2000/2001, if I understand your submissions”,

(Counsel’s name):

“But in fairness, what Ms. Justice Laffoy did in her judgment, as I read it, is to give €40,000 of the damages in relation to the actual arrest. Isn’t that right?”

90. In fairness, counsel did observe that he was concerned that the Court might come to the view that the respondents’ claim related to something said to them over the fax machine, that was, that the losses stemmed from negligence of the officials in the Department in the middle of August. He submitted that this was not their case, and had never been their case. To this Mr. Justice Charleton responded:

“Well, it is – sure. It is fair to say (counsel) they would never have thought of being down around this area but for the fact of what Mr. O’Driscoll said”.

It is also true that counsel sought to outline what he understood had been had been the respondents’ case in the High Court on more than one occasion, but he never submitted that, in fact, there was no room for any other, narrower, interpretation on the evidence concerning proximity of assurances. It is unnecessary to refer back to the transcript. In fact as will be seen, he actually made submissions based on that premise.

91. Later, I again sought to clarify when the advice was given:

“… Can I put it to you this way; that the plaintiffs’ claim may have been on foot of what Mr. O’Driscoll said, and also the miscommunication around the 18th August, but it looks to me as if the judge’s finding was in relation to the immediately proximate events.” (Emphasis added)

To this counsel did respond:

“I have to say I don’t understand the judgment to say that at all. If you look at paragraph 57 for a moment. I am going to try and – the court has asked certain questions and I haven’t really got to say very much as to the law.” (Emphasis added)

Paragraph 57 referred to the legal context in which the legal relationship was created. Laffoy J. said there she considered it was reasonable to infer that the defect in the file translation of the Regulation was also the source of the confusion which led to Mr. O’Driscoll giving the respondents the wrong information. It has been referred to earlier.

92. At no stage was the Court made aware of Mr. Power’s evidence or the detail of the fax. But even the fax alone, together with Laffoy J.’s distinction between the “admitted” assurances earlier and the “re-assurance” on 18th August, 2003, could have been a basis for this Court reaching a conclusion based on that and the re-assurance, in the context of a narrower scope on proximity actually well within the compass of the facts and evidence.

93. In fact, counsel for the Minister later addressed this alternative proximity scenario:

“But if you look at – I have to – this is a really important issue, because if the issue relates to what the Department said, they relied on the consolidated version of the E.U. Regulation, not on some departmentally negligently prepared document. So what I have been saying about what the plaintiffs’ case was, if I may say so, is in ease of the plaintiffs, because I have an entirely different line of defence.” (Emphasis added)

Charleton J. observed:

“I know, but if Mr. O’Driscoll had been called, we would know whether he had … (interjection)”.

Counsel: “I am acknowledging he made a serious error.”

94. But, later, accepting that he had not called Mr. O’Driscoll, counsel for the Minister submitted that, even if there had been reliance on a proximate misstatement, he would have had a good defence. He submitted:

“Yes. Relying on a document from the Publications Office in the European Communities, Ms. Justice Laffoy incorrectly says, or suggested, it might have been an internal document. I did open it to her, so she is, if I might say so, in error there in the evidence. So clearly there could be no negligence. But that clearly applies to everything said in August, 2003.” (Emphasis added)

95. Counsel continued:

“In other words, the officials who gave the wrong steer, as it were, when the plane arrived, and then – they, if they are to be accused of negligence, and they haven’t been to date, they do have, if I may say so, a good defence. No, actually, I should say I have a good defence to that claim, because there is no negligence in relying, in my respectful submission, on a consolidated version of a regulation, and interpreting it the way they did.” (Emphasis added)

The Court was putting its understanding of the narrative to counsel to avoid misapprehension. In fact, while not referred to, the transcript and the fax did actually support the Court’s understanding on the proximity issue. But, in the passage just quoted, counsel was addressing a narrower interpretation of events relating to proximity, in the context that the officials had given a wrong steer “when the plane arrived”.

96. In fairness to counsel for the Minister, on a number of other occasions, he did seek to make the point that his case was that the respondents had not made the case in the High Court that there was negligence on the part of the officials in the middle of August, 2003. He went on to submit that, if this had been the case made by them, the judge had not made any findings in relation to it, but that, if she had made such findings, the thrust of his appeal would have been that, in the context of the complex fishing regime, and the implemented Common Fisheries Policy, the circumstances were that a non-lawyer, such as a sea fisheries protection officer, would not have suspected that there was an error in the interpretation of the Regulation in the Summer of 2003.

97. But, in so submitting, counsel did not specifically preclude the possibility that, within the respondents’ case, there in fact lay the basis for a narrower factual analysis, based on what this Court was given to understand, the High Court judgment, counsel’s own oral submissions taken with the written submissions, and, now seen in light of the evidence in the case. Arguably, if the transcript had been brought to the Court’s attention in the appeal, or if the appeal had been on Laffoy J.’s findings of fact, the question might have been addressed further. But this would then have been subject to what the evidence actually conveyed about proximity, which was not rebutted by any of the Minister’s witnesses.

Exchanges with Counsel for the Respondents
98. It is necessary then to turn to the exchanges with counsel for the respondents. The fact that a narrower approach was in the Court’s contemplation was obvious in an exchange which took place between Charleton J. and counsel for the respondents, as follows:

“So maybe you just, in addition to that, just come to the time of the arrest. As I understand it, please correct me if I am wrong, they are fishing on foot of these assurances; the plane flies over, warns them off; but they then ring the department, or get someone to ring the department, they get an assurance; they stay fishing; they get arrested. Isn’t that right?”

Counsel: “That’s it, exactly. They are the facts.”

Charleton J.: “So one would perhaps be in a different situation if it was merely relying on what it said before, but this is a specific assurance: you are entitled to be there, you can stay there.”

Counsel: “Exactly.” (Emphasis added)

Nothing could have been clearer. This observation is to be seen in the context of what the Court had been told earlier about the place of arrest, and the communications with the Department on the day. In hindsight, it can now be viewed in the context of the evidence actually adduced in the High Court from Mr. Power, and, in particular, what is found in the fax from Mr. Craven. Laffoy J. also drew the distinction between the “admitted assurances” and the “re-assurance”.

99. In response to a question as to the nature of the negligent misrepresentation, counsel for the respondents submitted to the Court that the respondents said they had been assured over a number of years that they could fish in Area VIII(a). But then he added:

“But that, in relation to the particular incident in August, it was the assurance that came across through the telex or otherwise, resulting in “some communication with the boat itself.” (Emphasis added)

100. Counsel continued:

“And the evidence was not that the debate occurred after the arrest, they continued to fish after the 18th, and were arrested the following day. And Mr. Bates had been in communication with them, and the department had communicated with them. So the judge at the end of the day, gave my clients damages for the incident which occurred off France, and the result thereof.”

A member of the court: “And that’s it?”

Counsel: “But that was it. But she did find they had been given assurances –

A member of the court: “Over the years”.

Counsel: “A number of years, yes.” (Emphasis added)

101. Later still, counsel for the respondents told the Court that “the background to the case was the advices which had been given … leading to the judge saying on the day, they got the advice out in the Bay of Biscay that just compounded all of the advices they had received to that point …” (Emphasis added)

102. The Court was entitled to rely on what it was told by both sides as to the factual background. This account of the narrative was not directly challenged in counsel for the Minister’s reply. In fact, as it now transpires, there was evidence which leads to the inference that this narrative of events in this Court’s judgment is supported in substance by the evidence actually given.

103. It is unnecessary to again rehearse the unhappy series of errors. In the light of the written and oral submissions, and in the light of the questions from the Court, it was abundantly clear that each member of the Court interpreted the High Court judgment as conveying that, in addition to the earlier assurances, or misinformation, there had been advice upon the 18th August that led the vessels to “stay where they were”, as a result of which they were arrested early on the following morning, that is, the 19th August, 2003.

104. It is hardly surprising then that the description of events contained at para. 8 of the judgment of this Court reads as follows:

“… Some conversion was necessary of the boats in order to render them fit for the challenging waters of the Bay of Biscay.

Over some 22 days, in September 2002, May 2003, July 2003 and August 2003, area VIIIa was fished by the plaintiffs for scallops. On 18 August 2003, when both vessels were fishing just outside the territorial 12 mile limit of French waters, a French fishery patrol aircraft made contact with them and informed them that they were fishing illegally for scallops in that area. They were therefore ordered to proceed northwards above latitude 48A, N. They acted accordingly but decided to check on the information which they had received from the defendants: essentially, their query was whether it was lawful for them to fish where they had been fishing. The plaintiff Eugene Bates was ashore and thus in a position to contact the defendant Department when he received the query from the vessels. The information which he received from the Department was that the plaintiffs were entitled to fish legally in area VIIIa up to the limit of French territorial waters. This information, given orally by the defendant Department, was confirmed by fax to him later that day. He thus told the skippers of the two boats to continue fishing in that area. Later that night, however, in the early hours of 19 August 2003, the Maritime Nationale arrested the boats, conveying them to Brest that afternoon. …” (Emphasis added)

This was based on what the Court was informed had happened, in the light of all the other events described.

105. The judgment went on to conclude, at para. 13:

“… While the plaintiffs claimed that the earlier advice from the Department, preceding the arrest of 19 August 2003, caused economic loss in the form of the claimed wastage in the conversion of the Alicia for sea fishing in the Bay of Biscay and a substantial loss on sale, the trial judge awarded only the damages immediately consequent upon the advice given by the Department when the vessels were on the high seas in the Bay of Biscay which resulted in them staying within area VIIIa; the advice which directly caused their arrest. Hence, the sum awarded was the sum paid to the French courts and the few days’ loss of fishing which this unfortunate experience entailed. Hence there was judgment in the sum of €49,600.” (Emphasis added)

The identification of the place of arrest was that given by counsel for the Minister and contained in the written submissions. The other elements contained in that passage setting out the narrative were drawn from the submissions. In fact, while it was important for the Court’s understanding, the erroneous identification of Area VIII(a) is not fundamentally material with regard to the Court’s conclusion per se – other than to illustrate that, by the time of the arrest, and in the light of the advices, the vessels had not rapidly departed from the area and steamed many nautical miles to the North West. What is inescapable was that, having received advice, the vessels remained susceptible to arrest, and were arrested, whether in Area VIII(a) or VII(h).

106. The judgment of this Court stated, at para. 18, that what was sought from the Department by the respondents was advice in a particular context, that of imminent arrest. The inference was that the arrest of the vessels by the French Navy would not have taken place but for the assurance immediately given.

107. The Court put its understanding of events squarely to counsel. That this was the understanding of all judges should have been evident. But, if even after the hearing, those representing the Minister had wished to refer the Court to the transcript, or correct any misapprehension, the Court could have been asked to re-sit and hear further submissions based on the evidence actually adduced. The Minister did not communicate with the Court at any stage prior to the judgment being delivered, or indeed until the time came to make ancillary orders.

108. It is necessary to reiterate that nothing in the judgment should be read or interpreted as conveying that counsel, on either side, acted mala fides, or sought to mislead the Court. It would appear that neither side had the transcript available at the appeal to refresh memory. But the unavoidable conclusion is that this Court was left with a clear impression as to the sequence of events which, if it was actually incorrect, might and should have been addressed. In fact, the indications now available are that the narrative contained in the Court’s judgment is a fair reflection of evidence on proximity as it was adduced in the High Court and as found in the High Court judgment. The fax message is critical.

Written Submissions
109. At risk of reiteration, what is put in written submissions as fact must be accurate. If an error is detected by the opposing party, they must draw attention to the error by letter in a timely way. Material which goes to the Court, whether to this Court, or any appeal court, should not contain factually erroneous, ambiguous, unclear, or inaccurate summaries of events that took place in a court of first instance. The duty of accuracy was higher in the confined and limited circumstances of this appeal, where reference was not made to the transcript and where the appeal is on a point of law. What a court is told in oral submissions as to fact must be accurate. Unfortunately, these obligations were not fulfilled. A court is entitled to, and must, rely on what it is told as a fact and goes uncorrected if not actually correct. This is true, a fortiori, if an appeal court is being told what happened in a court of first instance, without the opportunity to cross-check or being asked to refer to the transcript.

Delay
110. Here, delay is an additional factor. The proposition that the that the Minister took six weeks to arrive at the decision to make this application is not, in itself, a satisfactory explanation. Misapprehensions, if any there were, could have immediately been brought to the Court’s attention, and were not.

The Constitution
111. The terms of Article 34.4.6° of the Constitution have been referred to earlier. The words of the Irish text are, perhaps, even more definitive: “Ní bheidh dul thar breith na Cúirte Uachtarán i gcás ar bith”. The words, “i gcás ar bith”, convey in the English language, “in any case”. The purpose of that Article is to ensure finality. There is a purpose to this: it is to provide finality to legal proceedings at appellate level, a matter of fundamental importance to the public, that is, certainty and conclusion in of the administration of the law. It is to prevent interminable and unending litigation. It should not lightly be breached. (Re Greendale Developments Limited [2000] 2 I.R. 514, at p. 528, per Hamilton C.J.).

Greendale
112. In Greendale, the applicant sought to have a previous order of the Supreme Court in those proceedings set aside on the ground that the court had addressed a core issue in its earlier judgment without having given the parties any adequate opportunity of dealing with the point. On consideration of the facts, this Court concluded that there had been no breach of fair procedures, and accordingly there were no special or unusual circumstances; therefore, there was nothing in the circumstances of the appeal which would justify disregarding the terms of Article 34.4.6°. This Court made clear that, in an appropriate case, it would exercise this exceptional jurisdiction, but only in circumstances where failure to do so would conflict with the guarantee of fair procedures enshrined in the Constitution. The Court made clear it will not take the highly exceptional step of setting aside, rescinding, or varying a final order made by the court, unless there has been a clear breach of the principles of natural justice, to which the applicant has not acquiesced, and such that failure to take steps to remedy such a breach would, in the eyes of right-minded citizens, damage the authority of the court. Here there was no breach of the principles of natural justice or fair procedures.

Acquiescence
113. Acquiescence, too, is an important consideration. In Re Greendale, Denham J. said a case might only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights. What happened in this appeal was not the “fault” of the Court. What is true of acquiescence is truer still of submissions actually made to the Court.

114. Denham J. adverted to the fact that acquiescence will be a bar to an order. Here, it would be inaccurate to say that there was “acquiescence”; rather, the Court was brought to certain conclusions which, as it now transpires, may be inferred from the transcript of the evidence. Counsel for the Minister submitted that the Court’s understanding of Laffoy J.’s judgment was not his understanding. But to succeed an application of this type would require much more. If there were ambiguities as to the assurances and reassurances, these could only have been addressed by reference to the evidence upon which the findings of the High Court were based. An analysis of the transcript, together with all the material placed before the Court, in fact, leads to the conclusion that there was evidence of proximate reassurance or advice to the respondents which evidence was not rebutted. There is, of course, jurisdiction to set aside a judgment obtained by fraud. This was not such a case.

Nash v. DPP
115. The principles involved in an application such as this were recently considered by this Court in Nash v. DPP [2017] IESC 51. Judgments were delivered by O’Donnell J., Clarke J. and Charleton J. Clarke J. which addressed the particular facts and circumstances which arose in that Supreme Court appeal in a nuanced way. The legal framework was outlined in the judgment of O’Donnell J., who observed there are various categories of errors, facts or description which can “creep” into a judgment (para. 6). There may be a lack of clarity in the information submitted. There may be an error in the legal submission which is then repeated in the judgment. On other occasions there is a simple misunderstanding which is not picked up or clarified in oral argument or identified by the judge or his or her colleagues. But the judgment lays a heavy emphasis on the duties of an applicant and principles which should be adhered to prior to making such an application. There is a duty on parties to make a careful assessment of the nature of the alleged error. They should ask themselves whether an error is trivial or inconsequential; whether it may be of some significance as a matter of simple accuracy, or whether because of its potential effect on the legitimate interests of the parties, or other individuals, it is fundamental. At the extreme end, an error may be so fundamental and central that it should lead to the setting aside of a judgment including perhaps resulting in the reversal of the decision itself. There is a duty to do justice fairly and without fear and favour which must guide this Court as all other courts. But to this I would add that in such an application a court must closely consider whether there is actually an error and if there is, what is its cause and effect, and whether the conduct or submissions of a party or parties contributed to what occurred? A court must look to the whole case, seen in the round.

116. This is an exceptional jurisdiction. The fundamental question is whether, by reason of error, or some other extraneous consideration, it is plain that the outcome of the case cannot be said to have been an administration of justice for the purpose of Article 34 of the Constitution. In such circumstances, the Court may conclude that the judgment is not a “decision” for the purposes of Article 34.4.6° of the Constitution. But the issue must be one which patently and substantively concerns an issue of constitutional justice, other than the merits of the decision as such. Then, the Court cannot make an order (See Greendale and Nash).

117. In Nash, within a short period after the delivery of a judgment, this Court was requested to correct certain factual errors in the judgment, which in that case did not affect the outcome. But, while recognising the existence of a potential jurisdiction in circumstances where an issue of constitutional justice arises, the judgments in Nash make clear that this can only be when such an issue of constitutional justice arises other than the merits of the decision as such. Thus, as this Court pointed out, if a judgment of this Court does come within the terms of Article 34.4.6°, that is, if it is final, conclusive, and if the application is, in fact, to reopen the merits, it must dismiss the application, since to proceed further would involve a separate breach of the provisions of the Article. The decisions of this Court are final and conclusive. The basic rule established by this Constitution is that justice itself requires that there should be an end to litigation.

Application to this Case

118. The factual background to this case is now far clearer, as must be the outcome of this application. It must fail. For the purposes of the application, Mr. Owen Wilson from the Chief States Solicitors Office swore an affidavit. There was no full explanation of the background, and evidence in the case. It was contended the application had been dismissed on “narrow grounds”. What was not explicitly conveyed, however, was that the effect of the application was, effectively, to seek to persuade the Court to reopen the merits of the case. The effect of the application if successful would have been to remove any evidential basis for a finding of proximity. This could only have the effect of a reassessment of the outcome or “merits” of the case. The limited scope of the Court’s jurisdiction was actually made clear to counsel when this application was still pending before the Court. There were without prejudice discussions, and an attempted resolution based on “vacating” parts of the judgment. This Court cannot simply “vacate” parts of a judgment in the absence of a constitutional basis for adopting such a course of action. No constitutional want of fairness arose. There was no defect in procedure. What occurred here was not something extrinsic or extraneous to the judgment. In fact, the narrative part of the judgment is integral to it, and forms part of the reasoning. For the reason explained earlier, it was not open to this Court to direct that the appeal be remitted to the High Court to make further findings.

119. The judgment of the Court was unanimous. No member of the Court felt it necessary to express any different view of the narrative, or took any issue with it. No member of the Court feels the need to do so now. The delay has been adverted to. A court is entitled to, and must, proceed on the basis of what it is told by counsel. Fair procedures were observed. It is hardly necessary to point out that there are certain ironies in the application when reference is made to the transcript. The Court gave ample opportunity for the parties to consider the position prior to delivering this judgment. The application is dismissed.