S6 [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] Supreme Court of Ireland Decisions You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Cromane Foods Ltd & anor -v- Minister for Agriculture, Fisheries & Food & ors [2016] IESC 6 (22 February 2016) URL: http://www.bailii.org/ie/cases/IESC/2016/S6.html Cite as: [2016] IESC 6 [New search] [Help] Judgment Title: Cromane Foods Limited & anor -v- Minister for Agriculture, Fisheries & Food & ors Neutral Citation: [2016] IESC 6 Supreme Court Record Number: 307/2013 High Court Record Number: 2009 1374 P Date of Delivery: 22/02/2016 Court: Supreme Court Composition of Court: Clarke J., MacMenamin J., Laffoy J., Dunne J., Charleton J. Judgment by: Charleton J. Status: Approved Result: Appeal allowed Details: Dissenting judgment by Judge Clarke. Judgments Link to Concurring Dissenting by Judgment MacMenamin Link Dunne J. J. Charleton J. Link MacMenamin J., Dunne J. Clarke J. Link Laffoy J. An Chúirt Uachtarach The Supreme Court Record number: 2009/1374P Appeal number: 307/2013 Clarke J MacMenamin J Dunne J Laffoy J Charleton J Between Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited Plaintiffs/Respondents and The Minister for Agriculture, Fisheries and Food, Ireland and The Attorney General Defendants/Appellants Judgment of Mr. Justice John MacMenamin dated the 22nd day of February, 2016 1. The judgment appealed against raises rather deep questions. The issues raised relate both to the theory and practice of the concept known as “operational negligence”. While I admire the elegance with which the High Court judgment seeks to address the evidence and the law, I would respectfully disagree with its conclusion. In fact, the circumstances in this case provide an apt case-history of the problems which can actually arise with the concept. I would uphold the appeal in regard to legitimate expectation, and concur with my colleagues, Clarke J., Dunne J. and Charleton J., in so concluding. Together with Dunne J. and Charleton J., I would also uphold the appeal on the operational negligence issue for reasons I now set out. 2. The unavoidable fact is that strong policy considerations arise in this appeal. One cannot deny that legitimate concerns are consistently expressed on how, in law, to identify means of redress for wrongful actions by the executive which detrimentally effect private individuals. Clarke J. eloquently makes the case for the concept of operational negligence in his judgment. No one would envisage a return to the era which preceded Byrne v. Ireland [1972] I.R. 241, where the State was, effectively, immune from suit. But what is necessary, is that changes in the law of negligence, and reformulations of the law on State liability, should be carefully and incrementally approached, with a clear view as to their long term consequence. There is always a concern that radical alterations in the law emerge within the narrow confines of one case which have unforeseen consequences. In some instances, such as the discovery of the snail in a bottle of ginger beer in the Wellmeadow Café in the Scottish town of Paisley, the consequences are, generally, for the public good (Donoghue v. Stevenson [1932] UKHL 100, [1932] AC 562 ). But, even in this instance, it is doubtful whether either the majority or minority of the House of Lords who deliberated on the appeal could have foreseen the exponential expansion in the law of negligence which followed. Introduction 3. In fact, an unguarded inception of State liability for operational negligence, both in its conception, and its means of application, might potentially raise even more profound issues than Donoghue v. Stevenson. It requires little imagination to imagine circumstances where the threat, either in prospect, or in retrospect, of an operational negligence claim, might be such as to stifle any administrative action in an area of potential controversy. 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. There is no doubt that the courts and the law will be much occupied in the foreseeable future with the need for protecting the individual against wrongful executive decision and action. Such developments may come from either national or European courts or legislators. But, what is fundamentally necessary, insofar as possible, is that clear lines of demarcation and principle are identified in developing the law. Further, what is of prime importance is to ensure that a judiciary does not become a form of surrogate unelected government, vesting itself with the power to second-guess prima facie lawful government actions in areas of discretion which do not raise questions of vires. These are not small considerations. Conceptual Difficulties of Operational Negligence 4. Even on first impression, the appeal before us illustrates the inherent risks in engaging in an “operational negligence” analysis of the decisions of a public authority which, on the face of things, was acting intra vires. How should a court of law, with all the luxury of hindsight, engage in this form of critique of the actions or inactions of the appellant Minister and his department? Such a process, as here, necessarily involves a post hoc analysis of a series of omissions to act. As we will see, time-span of the tort is unclear; arguably the Minister’s failure to put himself in a position to comply with E.U. law, could stretch back over a decade prior to 2008, the year in which, I infer, the judgment holds the tort was actually committed. By 2008, a series of more proximate decisions, which are referred to later, were ones in which there were, simply a series of invidious choices between broad public and private interests. One might ask, how well equipped are the courts to engage in such a retrospective scrutiny, even before going on to consider how long such an “inquiry” (I use the word advisedly), might take in other instances. It is not hard to think of rather deeper and broader issues where the stakes are higher even than those considered here. 5. The High Court ultimately held that the tort here was committed in the year 2008. That is what the judgment says at a number of points. But taking that essential point as established, what was actually put into the equation was not one isolated act, wherein one might identify classical indicia of negligence, but, rather, something very much broader. The judgment necessarily contains a description of the complex background to what occurred pre 2008. Is the omission to act, over these previous 8 or 10 years, itself a tort of operational negligence? At points, the judgment seems to suggest that it is. It is said that the Minister, over a period of years, failed to carry out appropriate surveys on Castlemaine Harbour, so that baseline statistics would be available, so as to comply with E.U. environmental law. It is very hard to avoid the inference that this is all to be encompassed as part of the tort. Yet, elsewhere, the actual elements of the tort appear to be ministerial and executive actions, carried out within 2008, and all of which were, on their face, lawful, carried through on foot of statutory instruments, and intended to ensure that the State was, eventually, compliant with E.U. law. How then is a court to reconcile the paradox that, as a matter of public law, the impugned acts or omissions must be seen as lawful; but as a matter of private law they were not? How is one to assess the question of causation? 6. Some of these considerations underlie the objections which are to be found, both in academic and legal commentary, on the common law courts’ embarkation on a journey of uncertain destination, (and uncertain staging posts), beginning with Anns v. Merton L.B.C. [1978] AC 728. If a court is determining whether ‘operational negligence’ occurred, how does it balance the needs (and duties) of the State, responsible for the public interest, against the private interests of individuals? The common law recognises that clear distinctions (and consequences) derive from the difference between wrongful acts, (feasance), and omissions to act (non-feasance). This is a distinction which, although criticised, may, at least, be defensible at the level of principle on constitutional, political, moral, and economic grounds. Lest there be misunderstanding, I do not have the slightest concern that the law should continue to develop, as it must, but it is necessary that the judges themselves be cautious - as we urge others to be. 7. The concept carries with it, too, an inherent risk of elision between ‘omission’, often incapable of giving rise to legal liability, and an affirmative duty, which does. The case law, as it developed, has addressed a wide range of public and private concerns. It is difficult to see a consistent pattern. At times, the courts have, laudably and understandably, adopted a victim-oriented approach, whereby public funds may serve a welfare or protection purpose; elsewhere judges have adopted a more robust approach, taking account of the potential allocation of public funds, against a backdrop of concerns, expressed both in Ireland and elsewhere, as to trenching on the constitutional domain of the executive.