Minister not liable for failure to permit cultivation of mussels in Special Area of Conservation

MacMenamin J (majority decision): Operational negligence - legitimate expectation - state liability for executive decisions - appeal from award of damages against state arising from alleged misrepresentation - conceptual difficulties of operational negligence - whether recognised tort - exercise of power by public authority - whether it gave rise to duty of care - foreseeability of damage - proximity between plaintiff and defendant - designation of Special Protection Area under consideration - public notice - proposed restriction of usage pattern - "not envisaged" that use for shellfish culture would be restricted - whether "good scientific reasons" for restriction - date upon which alleged negligence began - alleged delay in carrying out tests - alleged mistake as to European Union law - errors as to how it was appropriate to manage aquaculture business - broad headings for a tort - whether tort was a series of omissions or positive acts - finding against state in Court of Justice of the EU - failure under Habitats Directive - whether duty of care existed between state bodies and mussel farmers - threshold for negligence - constitutional questions - failure to carry out scientific investigations between 2000 and 2008 - whether any actionable wrong.

"There is undoubtedly, a strong public interest in ensuring that a proper balance is struck between private and public rights and duties. However, there is perhaps an even stronger public interest in ensuring government actually functions for the general public good, and that administrators do not consider themselves impeded from making any decision for fear of being immersed in a morass of litigation. It is not hard to conceive of operational negligence proceedings being brought in circumstances where millions (or perhaps billions) of Euro might be at stake as a consequence of an executive or administrative decision or action."

"One is left with a tort having the following ingredients: (a) neglecting to ensure assessment as and from 2000 onwards, (b) mistaking E.U. law consisting in, inter alia, (c) the Minister’s error as to how it was appropriate to manage the aquaculture business; and (d) delay in re-opening after 2008. These are very broad headings indeed for a tort, lasting over many years. I question whether this constitutes a justifiable controversy at all."

"This case does not concern statutory duties, but rather Ministerial discretion exercised in a particularly difficult situation. I accept it can be said that a situation evolved which might have been of the Minister’s own making. But, in a tort action, a court is not asked whether the State, or its servants, might, in hindsight, have “done better”. There must be, rather, an actionable wrong."

Charleton J (concurring): Decision of CJEU on Habitats Directive - whether activity could take place without appropriate assessment - control of fishing - whether statutory instrument had been negligently signed into law - duty of care - legitimate expectation - damages.

"Here, there was nothing to suggest that the duty of the appellant Minister under the Sea-Fisheries and Maritime Jurisdiction Act 2006 gave rise to any duty of care towards these fishermen. On the contrary, the considerations in the legislation are expressly directed towards the conservation of fish stocks, their rational exploitation, the furtherance of the common fisheries policy and the consequent benefit towards the community. Even if that were not the case, no discretion arose once Castlemaine Harbour had been declared an SPA and an SAC. Under the Habitats Directive, article 6.3, the duty of the State was clear, which was to conserve the protected sites and to not allow any non-conservation activity until it was certain that it would not impact upon the environment and the species within. Hence, any amelioration in the decisions made as to the opening of Castlemaine Harbour, were negotiated from the European Commission by the appellant Minister as a concession. All this was done in good faith."

Clarke J (partially dissenting): Liability of state for mistakes on part of officials or employees - implementation of environmental legislation - harvesting mussels - absence of necessary permission to carry on work - legitimate expectation - negligence - calculation of damages by trial judge - Habitats Directive - Council Directive 92/43/EEC - Special Areas of Conservation (SAC) - application to activities existing prior to designation of SAC - Minister no longer able to grant permission to continue mussel harvesting - notice indicating that designation would not affect use of area for shellfish culture - following decision of CJEU, area could no longer be used for shellfish culture - relevant Statutory Instruments - S.I. 789/2007, the Mussel Seed (Prohibition on Fishing) Regulations 2007 - interim measures - causation and damages - lack of necessary permissions - reason for lack of necessary permissions - legitimate expectation - evolution of jurisprudence in the area - whether damages might be awarded for breach of legitimate expectation - promise or representation - whether addressed to an identifiable group of persons - whether unjust for public authority to resile from promise or representation - negligence - scope of law of negligence - limits of duty of care - whether every injured person could have a right to demand relief - European Convention on Human Rights - position of state or public authorities - nature of alleged wrongdoing by Minister - whether Minister had duty of care to carry out appropriate assessment at an earlier stage - whether tests of foreseeability and proximity were met - distinction between "operational negligence" and policy matters - whether the loss would have occurred anyway.

"It was said to the Minister that he was disregarding local interests and jobs by reason of an unproven risk to the environment. Unfortunately from the perspective of those local producers, that is just what the Minister was required to do as a matter of European law. As interpreted by the ECJ, a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European law, to be concerned not with unproven risk but rather with proven absence of risk. Until a sufficient analysis had been carried out to justify a finding that absence of risk had been proved, the Minister was precluded, as a matter of European law, from giving any permission which would have allowed for the continuance of mussel farming in the harbour. Given that legal position, it is impossible to see how any party could have entertained a legitimate expectation that the Minister would permit unlawful activity."

"The real question on the duty of care, therefore, comes down to this. In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised? ... In my view a private party, placed in as analogous a position as it might be possible to envisage, would undoubtedly have a duty of care to those who were likely to be foreseeably and proximately affected by their activities. They are persons who ought reasonably to have been in contemplation."