MacMenamin J
Dunne J
Charleton J

Between

Judgment of Mr Justice Peter Charleton, delivered on Wednesday, February 7th, 2018

1. The main point argued on this appeal is the liability of the State defendants for economic loss resulting from negligent advice given to the plaintiffs which caused their arrest by the Marine Nationale, and consequent fine by a magistrate in Brest, on 19 August 2003, while engaged in commercial scallop fishing just outside the territorial waters of France in the Bay of Biscay.

2. As to the source of the error which resulted in damages being awarded to the plaintiffs, primary facts were found by Laffoy J, the trial judge, in her judgment of 15 November 2011. These were not demonstrated on this appeal to be incorrect. In addition, an inference from the primary facts as to the ultimate cause of the misinformation given to the plaintiffs was made by the trial judge. This was not a conclusion based on circumstantial evidence. This inference came within the principles enunciated by McCarthy J in Hay v O’Grady [1992] 1 IR 210 at page 217: thus it is not the case that “an appellate court is in as good a position as the trial judge to draw inferences of fact.” He cited the judgment of Holmes LJ in Gairloch The SS, Aberdeen Glenline Steamship Co v Macken [1899] 2 IR 1, in turn cited by O'Higgins CJ in The People (Director of Public Prosecutions) v Madden [1977] IR 336 at p 339. Thus, an appellate court will:

…be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

3. That finding by inference, furthermore, was, in addition to fact, based on the pleadings. Whereas an explanation has now been offered in argument on this appeal as to an alternative source of the conclusion deduced from the evidence by the trial judge, this Court remains unconvinced that this has been demonstrated to have been an error by the trial judge. Hence, the inference must stand. This appeal is one of several originally sent to the Court of Appeal consequent upon the coming into force of Article 34.5 of the Constitution but taken up for hearing by this Court subsequently for administrative reasons.

Background
4. For decades, the species of fish that may be taken in European Union waters, the quantities thereof and the places that may be fished have been regulated. While it may seem that every kind of commercial fishing is subject to quotas set on an annual basis, it emerged on appeal that a few species remain that may be taken without limit. Scallops are not one of these. To fish for scallops, fishermen need a licence and this specifies the species to be taken, the tonnage and, often, the areas that may be fished.

5. The plaintiffs, Eugene Bates and Brendan Moore, are commercial fishermen and business partners who in 1999 saw a potential benefit in moving from general trawling to fishing for scallops. Fishing is a dangerous vocation and, for safety reasons, it is better that two boats operate together, especially where waters are stormy, as in the Bay of Biscay; a good area for taking scallops. Here the relevant craft are the motor fishing vessel William Joseph and the motor fishing vessel Alicia. The licence of 27 June 2000 for the William Joseph, granted under s 222B of the Fisheries (Consolidation) Act 1959, as amended, covered the period 21 May 1999 to 30 June 2002 and was subject to a condition that it should “fish solely for aquaculture purposes and for bivalve shellfish species.” This licence was later renewed. It was subject to the same procedure as followed in respect of the Alicia.

6. The plaintiffs applied to license the Alicia on 29 November 2001, informing the defendant Minister that they sought an aquaculture licence. To their application, a map was attached indicating various areas in which they proposed to fish, which did not include the relevant area of the Bay of Biscay. The southernmost boundary was at latitude 48A, N. This therefore excluded the area relevant to this appeal, which in the relevant European Union legislation is called VIIIa and extends from the coast of France outwards for some 200 km in the northern area of the bay. Also accompanying the map was an economic questionnaire and a fishing plan. These documents enable the relevant Minister, acting through his officials under s 2 of the Ministers and Secretaries Act 1924, to formulate conditions for the licence pursuant to the relevant legislation. Whereas the economic questionnaire did not mention where the plaintiffs proposed to fish, the fishing plan clearly stated that the place in which the plaintiffs intended to fish for scallops included area VIIIa and other areas in the months of May and June, June and July, and September and October.

7. The licence for the Alicia was issued on 2 May 2002, to commence on that date and to continue up to 30 June 2004, and specifically it was a condition that the boat should fish solely in a specified segment for aquaculture purposes and bivalve shellfish. The relevant licences for the William Joseph and the Alicia were later extended. Some conversion was necessary of the boats in order to render them fit for the challenging waters of the Bay of Biscay.

8. 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.

9. On the morning of 20 August 2003, the skippers attended a court hearing at which the vessels were released on lodging bonds aggregating €27,000. Later, answering to bail on 7 November 2003, Eugene Bates and the skipper of the Alicia pleaded guilty to charges of illegal fishing at a Magistrate’s Court hearing. Fines of €18,000 were imposed on them and in addition there were civil charges of €48,000 and costs in the sum of €1,500.

The High Court judgment
10. In her judgment, the trial judge held that the background to the arrest of the vessels in August 2003 included assurances from the Department that they could fish in areas VIIIa/b/c, the issuance of licences based upon the fishing plan, and following a ban on scallop fishing by the British authorities in that area, a further specific assurance was given that this applied only to British-registered vessels and was not in consequence of any European Union legislative action. Preparatory to the trial, and presumably for a plea in mitigation, in a letter dated 5 January 2011 to the plaintiffs’ solicitor, the defendant had accepted that these assurances had been given. In fact, the mistake was only discovered within the Department when, following on the arrest on 19 August 2003, an official contacted their French counterpart in the Direction des pêches maritimes et de l'aquaculture and was informed that the version in the French language of the relevant European Regulation gave a quota for scallop fishing exclusively to French vessels in area VIIIa and excluded vessels registered in any other Member State.

11. The trial judge explained the origin of the mistake in her judgment at paragraph 15 thus:

Council Regulation (E.C.) No. 2027/95 of the 15th June, 1995, establishing a system for the management of fishing effort relating to certain Community fishing areas and resources, provided in article 2 that the maximum annual fishing effort for each member state and for each fishery should be as indicated in the annex. In the English language version, as published in the Official Journal of the European Communities on the 24th August, 1995, one page of the annex dealt with scallop fishing, from which it was clear that Ireland had zero fishing effort in area VIIIa/b/d. Unfortunately, the officials in the department were working from an English translation of another version thereof, which was defective in that it omitted the line in the annex relating to area VIIIa/b/d. Accordingly, it was not obvious to the officials that Ireland had zero fishing effort in relation to those areas under the Regulation of 1995. On the basis of what is pleaded in the defence, it would appear that the officials in the department were working from a translation of the consolidated version of the Regulation of 1995, which was published on the 30th January, 1999.

12. Later in her judgment, at paragraphs 57 and 58, the trial judge drew on the plea in the defence referring to the “English translation” version of the Regulation to find that the defendant Department had negligently given out information which resulted in a loss to the plaintiffs:

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 VIIIa, 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. The duty of care required the officials, when furnishing the information sought by the plaintiffs to them, to conform to a standard which would not expose the plaintiffs to unreasonable risks. The official who gave the admitted assurances to the plaintiffs prior to August, 2003, Mr. O’Driscoll, did not testify. However, in my view, that does not hamper the court in coming to a conclusion as to what gave rise to that official giving wrong information to the plaintiffs. The official who was in contact with Direction des Peches Maritimes et de L’Aquaculture on the 19th August, 2003, Mr. Andrew Kinneen, sea fisheries control manager, did testify. His explanation for his misunderstanding of the legal position was, as I have outlined earlier, that the file copy of the English translation of the Regulation of 1995, which was available to him, which was in the normal format of the Official Journal, differed from the French language version. In my view, it is reasonable to infer that that was also the source of confusion which led to Mr. O’Driscoll giving the plaintiffs the wrong information. ... While it would be unfair to ascribe negligence to either of the two officials who communicated with the plaintiffs, I have come to the conclusion that some official of the department for whom the defendants are vicariously liable must have been negligent in failing to ensure that the version of the translation of the Regulation of 1995 which was available to be consulted by officials who had to deal with queries in relation to the fishing effort available to Ireland, in the context of applications for sea-fishing boat licences, correctly reflected the Regulation of 1995 as implemented. Therefore, I am satisfied that the plaintiffs have established an entitlement to damages to compensate them for the economic loss which they incurred as a result of acting on the incorrect information given by officials of the department as regards the entitlement of a sea-fishing boat licensed in this jurisdiction to fish for scallops in area VIIIa.

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 only for the sums resulting from the arrest and the immediate loss of fishing days. Quantification of those damages has not been challenged on this appeal.

Basis for liability
14. The relevant law on economic loss resulting from negligent misinformation was most recently analysed in the majority judgments in Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited v The Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General [2016] IESC 6. In the instant case, damages had originally been claimed by the plaintiffs on the basis of a legitimate expectation which, it was pleaded, enabled them to lawfully fish for scallops in the relevant area of the Bay of Biscay. The trial judge rightly dismissed this head of liability, ruling that since European legislation enabled only French vessels to take a particular quota of scallops in that area, there could be no expectation legitimately held by the plaintiffs, since that would be contrary to law; see Wiley v The Revenue Commissioners [1994] 2 IR 160. Such an expectation she held, if proved, must be legitimate in law; applying Daly v Minister for the Marine [2001] 3 IR 513. Further, since there was no right to fish in area VIIIa that inured to the benefit of the plaintiffs, there could be no infringement by the defendant Minister of any entitlement under European law; applying Emerald Meats Ltd v Minister for Agriculture (No 2) [1997] 1 IR 1.

15. The trial judge held, however, that since there was a relationship of proximity between the Department officials and the plaintiffs, that since carelessness could within the reasonable contemplation of those officials cause harm to the plaintiffs, and that there were no considerations which ought to negative, reduce or limit the scope of such a duty or care, the particular circumstances had established liability but only in respect of the last action in advising an entitlement to fish, set as it was as against the background of prior advice. Applying the test, in that context, of whether it would be just and reasonable not merely as between the parties, but also asking what would be just and reasonable from the point of view of the public interest, to fix liability on the Department, the trial judge found for the plaintiffs as regards the damage flowing immediately from the arrest of the two fishing vessels.

16. Two issues would arise in this context. Firstly, whether an office of Government, in giving information to interested parties looking to them for assistance, on matters within their administrative remit, is subject to the law of negligence or is, instead, capable of being made liable only through the application of the tort of abuse of public office. The second issue is as to the circumstances in which liability for incorrect advice arises.

17. As to the first issue, this has been discussed by this Court’s decision in Cromane Seafoods. It is unnecessary to go beyond the analysis in the judgments of MacMenamin J and Charleton J, especially as this decision was founded on established authority. As put in McMahon and Binchy, Law of Torts, 4th Ed, (Dublin, 2013) at paragraph 6.78, the functions of public authorities:

… require them to have regard to a host of policies, interests and rights that potentially pull in different ways. If a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity. Courts are conscious of this reality when addressing the duty of care.

18. The ruling of Laffoy J in this case is not one which overturns existing law. Rather, it applies it. What was sought from the Department by the plaintiffs was advice in a particular context: that of an imminent arrest. Had it been the case that the function being exercised on behalf of the defendant Minister was an administrative task conducted pursuant to a statutory remit, then, the question of whether any duty of care was owed, the proper starting point for any negligence analysis, would be answered negatively. Beatty v Rent Tribunal [2006] 2 IR 191 concerned a statutory body established by the Housing (Private Rented Dwellings) Act 1982. The issue was whether that entity could be liable in negligence to landlords in relation to the manner in which the review of the rent payable was conducted. This was a statutory function. The majority in the Supreme Court (Denham, Hardiman and Geoghegan JJ) decided that it could not. Geoghegan J stated at page 195:

There is a single and simple reason why I believe that the appeal should be allowed and the claim for damages dismissed. Even though the respondent is a tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence.

19. At page 219, McCracken J, speaking about the imposition of liability on a public body charged with statutory responsibility stated:

What can be gleaned from the various decisions is that there are circumstances in which, for reasons of public policy, it would not be just and reasonable to impose a duty of care. What is to be considered as just and reasonable is not merely what would be just and reasonable as between the parties, but also what would be just and reasonable in the public interest. Where a public body, such as the respondent, performs a function which is in the public interest, then in many cases and I believe this to be one of them, that body ought not to owe a duty of care to the individuals with whom it is dealing. It is in the public interest that it should perform its functions without the fear or threat of action by individuals. The fact that it is performing a function which is in the public interest may outweigh any duty of care to private individuals. Whether it does or not, of course, is a matter for decision based on consideration of the position of any particular public body.

20. As was stated in the Cromane Seafoods case, the judgment of Charleton J at paragraph 29, where a wrong is alleged against a public body in the exercise of a duty, then the remedy is not negligence, but misfeasance in public office:

Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation. If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries.

21. While a duty of care may not be owed due to the existence of a wider statutory duty conferred by legislation, that does not mean that a public body is, simply by reason of its status, immune from the commission of torts. This is the second issue. The law remains as stated in Pine Valley Developments v The Minister for the Environment [1987] IR 23. Thus, while no duty of care may be owed in the exercise of public functions by a public body, nonetheless, there is not immunity from tort outside misfeasance in public office. The law as applied by Laffoy J in her judgment was that stated by Finlay CJ from page 36 of that decision:

The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:-

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

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

3.If the authority knows that it does not possess the power which it purports to exercise.

22. Hence, absent any desire to injure the plaintiffs in their vocation as fishermen, or the exercise of authority knowingly outside the bounds of statutory power, both of which would fit the elements of the tort of misfeasance in public office, and both of which clearly did not happen, the question resolves as to whether any other tort was committed. In terms of the issuing of licences, there is no question but that this was done by the Department in good faith and within the limits of the jurisdiction it was exercising. There, there can be no liability. On appeal, however, the defendants argued this as a case which shattered the borders of public liability. A floodgates argument has been advanced; being that the decision of the High Court opens the way to liability for every Department of State in the casual discussion of the business of those who interact with them, or as the Revenue Commissioners now call them, their customers. That is not so. Every correct analysis begins, as did that of Laffoy J, with the determination of whether a duty of care was owed or not. That question received a negative answer in Beatty. The principle therein stated is of wider application. But, on the analysis by the trial judge, the imposition of liability for negligent information did not extend to the imposition of a duty of care in issuing licences based upon any supposed duty to examine documentation supporting such an application to ensure that advice was spontaneously proffered to the plaintiffs warning them off any anticipated danger; here, that area VIIIa was off limits for scallop fishing except for French vessels.

23. Any such wide imposition of liability would undermine the purpose for which the statutory regime was set up. The duty of the defendant Department, in the context of the statutory and European conservation regime, was owed to the community as a whole. That duty was not one specifically directed towards the protection of those in the fishing industry from error. Regulation of fishing, mandated by European law, is there to ensure that fishing was, and is, regulated in accordance with the statutory scheme, that the vessels licensed were of a kind appropriate to the task proposed and that whatever technical requirements accompanied the licence conformed to the basis upon which a positive permission might be granted. Such administrative duties are for the benefit of the proper regulation of fisheries and for the conservation of wild ocean stocks. There would not be a duty of care towards licence applicants to properly advise them of the areas in which they would be within the supra-national legislation for fishing. Rather, any duty that was owed went the other way. The duty was on the fishermen to carefully, correctly and honestly complete the application. This involved an undertaking by them to only fish within areas designated for the taking of the kinds of catch which they proposed. On this they could get their own advice.

Liability for negligent advice
24. In looking to the claim that the arrest of the vessels by the French Navy would not have taken place but for the assurance immediately given, it has been impossible to identify a statutory basis upon which the Department was charged with that task. Any issue, therefore, as to the law of negligence swamping the appropriate recognised tort of misfeasance in public office does not arise. Nor can it be said that in that particular context any wider duty was owed by the Department which excluded a duty of care to the plaintiff fishermen. Since the test for the imposition of liability for negligence depends on whether it was fair and reasonable in the circumstances to establish a duty of care, it should also be noted that this consideration is key to precedent decisions on negligent misinformation. The law has always taken the view that “[w]ords are more volatile than deeds. They travel fast and far afield. They are used without being expended”; per Lord Pearce in Hedley Byrne v Heller [1964] AC 465 at page 534. There is a difference in law between what is solid and what is ephemeral. A defective ladder may lead to a single accident, a chocolate bar infested with worms will cause all others but the person taking the first putrid bite to shun it, but advice travels through word of mouth or in print much more widely. Indeed, were liability for advice to be imposed on the basis of self-help books or child-rearing manuals, an entirely new and thriving industry in litigation would be opened up. That is not how the law approaches matters.

25. Rather, experience dictates that what is fair and reasonable in the imposition of liability for negligent advice is circumscribed by an analysis of the nature of the reliance placed on the party giving advice by the person claiming harm, the status of the advisor as professional or equivalent or merely casual, the circumstances in which the advice was given and the extent to which the advisor should properly contemplate reliance by that person or by others directly connected by the situation; see the analysis in C Sappideen and P Vines (Eds), Fleming’s Law of Torts, 10th Ed, (Sydney, 2011) from paragraph 8.240. In this way, the flight of ostensibly wise counsel as feathers in the wind is weighted down with the lead of legal experience. In the multitude of decided cases, there are instances where a solicitor fulfilling a contractual duty in drawing up a will, and thus liable to the client in contract, can reasonably be held liable to beneficiaries, who are not privy to the contract but who are cheated by the solicitor’s negligence of an inheritance, of situations where a reference as to honesty turned out to be misplaced and of professional situations such as incorrect legal advice; see Fleming as cited. All of these are principled decisions based on specific facts. Professor Heuston, in the classic 17th edition of Salmond on the Law of Torts (London, 1977) at page 207, proposes that the boundary be set thus:

The solution is to limit liability to cases where the information or advice is given in response to an inquiry for the guidance of the very person in the very transaction in question, or perhaps the very class of whom the plaintiff is known to be one.

26. Mere reliance cannot be enough and nor is the knowledge that the person seeking the advice is likely to rely on it. That is to equate foreseeability of risk with the imposition of a duty of care. Since the primary question is whether there is a duty of care in the particular circumstances, the nature of what information is sought, the party from whom it is sought and the relationship between them are the points of focus. This was a classic case of the voluntary assumption of responsibility by the defendant Department in circumstances where it was likely that fishermen would rely on it. Here, the information sought by the plaintiff was in a situation of peril, that of imminent arrest. The guidance given was particular to that situation. It involved the consultation of documents that reposed within the expertise of the Department. While the relationship between the parties was not a professional one, or, to use the language from some of the older cases, one that would be regarded as equivalent to contract, in the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, this was what is now more commonly referred to as a special relationship giving rise to liability for negligent advice.

27. In the result, the reasoning of the trial judge must be upheld.

Defective advice on a reliable foundation
28. One final matter remains. Traditionally, a defence can be raised in product liability where a product is defective by reason of a particular component, such as the product having been purchased from a reputable supplier. A classic case would be illness caused by mouldy flour where that ingredient in a cake was bought from a universally respected source. Considerations aside from product liability as it now exists, and the incorporation by legislation of terms as to fitness, it was argued on behalf of the Department that the source of the error in this case was within the European Commission; that they had done a bad English translation of the text which the French had correctly. Hence, the absence of the box in the schedule giving fishing rights in the area of arrest for scallops to only French boats in the English language version of the Regulation, was said to appear in the Greek, French, German and Italian versions of the Regulation. That, however, was not demonstrated to the trial judge. On appeal, as found by the trial judge, that version was internal to the Department and that finding is not to be displaced as it fits within her competence as to the finding of primary fact and of inferences therefrom.

Result
29. Consequently, the reasoning and order of the trial judge should be upheld on appeal by this Court. Her calculation of damages also remains undisturbed.