Irish Series: Fishing for advice could lead to duty of care being imposed, says Supreme Court

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The Supreme Court has upheld a decision made by the High Court in finding that the State are liable to a group of fisherman for negligent advice given to them regarding fishing rights.

In 2000 and 2002 the Department of Agriculture granted two commercial fishing licences to fisherman to fish for scallops in certain areas of the European Union waters. The fisherman fished in an area of the Bay of Biscay on certain dates in 2002 and 2003 and in 2003 they were contacted by French fishery patrol and told that they were fishing there illegally and were not entitled to fish that area.

They left the area but contacted the Department of Agriculture, seeking guidance on whether it was lawful for them to fish the specific area or not. By fax and phone, the Department confirmed to them that they were entitled to fish the waters legally. They continued to do so and in August 2003, the Maritime Nationale arrested the fisherman’s two boats. They were fined civil charges and costs of €67,500 and required to lodge bonds of €27,000 for the release of their boats.

The High Court found that the Department was mistaken in the advice provided to the fisherman and that they owed a duty of care to the fisherman to interpret the Regulation dealing with this correctly. They had negligently given out advice which resulted in significant losses to the fisherman and were therefore liable for these foreseeable losses.

The Supreme Court upheld the decision and commented that the duty of care arose from the fact that the fishermen held licences from the Department of Agriculture and were relying on special knowledge and expertise of the officials of the Department.

In appealing the High Court decision, the State sought to rely upon a “floodgates” argument, however the Supreme Court rejected this and said that whilst there are certain scenarios where the Court will not impose a duty of care on State organs, in circumstances where the Department had voluntarily assumed responsibility to provide accurate information, and it was reasonable that the fishermen would rely on it, the duty was imposed.

For more, contact our dual-qualified solicitor Caoimhe Boyce on cboyce@meaby.co.uk.

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