Mussel firms’ €400k order for damages is overturned

An order requiring the State to pay €400,000 damages to two mussel-fishing firms over a ban on fishing for mussel seed in Castlemaine Harbour, Co Kerry, has been overturned by the Supreme Court by a 3-2 majority.

The judgments centred on how to address the State’s liability for actions which detrimentally affect private individuals.

Three years ago, the High Court awarded €125,000 damages to Cromane Seafoods Ltd and €275,000 to O’Sullivan McCarthy Mussel Development Ltd — related firms that have been involved in mussel fishing since 1979.

The companies sued the agriculture and fisheries minister and the State arising from a 2008 ministerial ban on fishing for mussel seed which involved closing Castlemaine Harbour for several months in 2008. They complained the mussel seed season was over when they were let back into the harbour in 2008 and suffered further losses when a similar situation arose in 2010.

Castlemaine Harbour (Cromane) has been a Special Protection Area since 1979, in accordance with a European Commission Birds Directive; while a wider area of protection, a Candidate Social Area of Conservation, was opened in 2000 under the Habitats Directive. This meant the site amounted to a “Natura 2000 site” so the harbour closes each year for a period to allow for stock conservation. The minister’s authorisation was also required for obtaining mussel seed.

The High Court found operational negligence by the State in failing to carry out proper scientific investigations or monitoring between 2000 and 2008. Those would have provided proper baseline studies for the prompt carrying out of an appropriate assessment to permit timely reopening of the harbour for mussel seed collection, it held.

It ruled there was a breach of the companies’ legitimate expectation the harbour would reopen annually for mussel seed collection.

By the time the commission indicated it was going to allow a certain amount of toleration for the harbour as a special case, the mussel predators had come and gone, the High Court noted. It held that the State did not operate the regime in an orderly way so as to allow harmony between environmental protection and the companies continuing with their business. The companies operated lawfully; were entitled to expect the regime would continue, and suffered loss and damage, the court concluded.

A majority Supreme Court overturned that decision yesterday, upholding the appeal in relation to legitimate expectation and operational negligence.

Mr Justice John MacMenamin said the “unavoidable fact” was strong policy considerations arose on this appeal. This case did not concern statutory duties but rather ministerial discretion exercised in a difficult situation, he said.

It could not be said, at any randomly chosen time, that the minster engaged in a negligent act by not having the baseline survey conducted and which was in a manner to the companies’ detriment. By 2008, if not well before, the “overarching legal duty” on the minister was to comply with, and implement, EU law.

The “fallacy” in this case was to seek to isolate some private duty owed to the companies from the overarching public or State duty the minister simultaneously owed.