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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fitzpatrick -v- Minister for Communications Marine & Natural Resources [2006] IEHC 335 (09 November 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H335.html Cite as: [2006] IEHC 335 |
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Judgment Title: Fitzpatrick -v- Minister for Communications Marine & Natural Resources Composition of Court: Herbert J. Judgment by: Herbert J. Status of Judgment: Approved |
Neutral Citation Number: [2006] IEHC 335 The High Court [2005 No 802 JR]Judicial Review Between John Joe Fitzpatrick Plaintiff And Defendant The Minister for Communications, Marine and Natural Resources Judgment of Mr. Justice Herbert delivered on the 9th day of November 2006 By Order of this Court (Mr. Justice Hanna) made on 25th July 2005, the Applicant was granted leave to seek judicial review in the form of an order of Mandamus, directing the Respondent, by his officials, to deal with the Applicant as the Applicant owner in law (being in fact the charterer, manager and operator) of the M.V. “Galway Bay” on matters concerning the safety of the boat, and, in particular on matters concerning her survey and certification pursuant to the Merchant Shipping Act, 1992. Alternatively, an order of Mandamus directing the Respondent by his officials to deal with the Applicant as the authorised agent of the owners of the M.V. “Galway Bay” on matters concerning the safety of the boat and, in particular on matters concerning her survey and certification pursuant to the provisions of the Merchant Shipping Act 1992. The Applicant was further granted leave to pursue by way of judicial review, a claim for damages at the rate of in or about €4,300 per day, from 21st July 2005, the date of the alleged peremptory cancellation by the Respondent of the completion of the survey of the boat, to 25th July 2005, or such other date thereafter as the survey was actually completed, together with interest pursuant to the provisions of the Courts Act 1981 and, costs. Central to the matters at issue between the parties to this application for Judicial Review is the definition contained in s. 2 of the Merchant Shipping Act, 1992 of the word “owner”. It is there defined, in relation to a vessel as meaning:-
On 2nd June 2005, the Applicant entered into some form of chartering, leasing or hiring agreement in respect of the M.V. “Galway Bay” with O’Halloran Shipping Limited. On 2nd June 2005, an application was made to Captain Neil Forde of the Marine Survey Office of the Respondent at Cork, for a change in the Passenger Ship Certificate to include regular plying between the Aran Islands, Doolin, Rossaveel, Galway, Liscannor and Ballyvaughan. This required a further marine survey to be carried out which the Applicant, Mr. Richard Grant of Lahinch, Co. Clare, a business partner of the Applicant in these proceedings, asked to be carried out as soon as possible at Doolin Pier. This application was made in the name of O’Halloran Shipping Limited, Cleggan, Galway. On 3rd June 2005, Captain Forde and Mr. Kieran Goulding on behalf of the Respondent, duly attended at Doolin pier to carry out the necessary marine survey. The ship was unable to come alongside the pier because of the inclement weather conditions. The inspection was subsequently carried out at Doolin pier on 8th June 2005. Some defects were identified and a further inspection was arranged for 14th July 2005. Captain Forde considered that in addition the crew of the M.V. “Galway Bay” should participate in a day Course in Fire Drill, Man Overboard Procedures and Crowd Control Procedures. This was done on 19th July 2005, and the crew were certified by the Course operator as satisfactory. The Applicant then contacted Captain Forde and asked for a 7 day clearance to operate the ship immediately. The basis of this claim was that he was paying for the charter of the ship, paying crew wages and was suffering considerable financial loss through not being able to operate the ship. Captain Forde refused to sanction either of the person nominated by the Applicant to be Master of the M.V. “Galway Bay” and, told the Applicant to make contact with Mr. Brian Hogan, the Chief Marine Surveyor of the Department in Dublin. On 20th July 2005, the Applicant on the suggestion of his solicitor and accompanied by Mr. John Wilde-Crosbie, Barrister, attended at the office of the Chief Marine Surveyor at Leeson Lane, Dublin. Mr. Brian Hogan the Chief Marine Surveyor declined to meet them without a prior appointment. The Applicant avers in his Grounding Affidavit sworn on 25th July 2005, at para. 19, thereof, that Mr. Wilde-Crosbie asked for and was given some note paper and Mr. Wilde-Crosbie wrote out a note requesting such an appointment. This note was exhibited in the Affidavit of the applicant and was admitted into evidence. It is signed, “John Joe Fitzpatrick of Sarafinn Limited owners of Galway Bay”. At para. 20 of this Affidavit, the Applicant states that:-
By Telefax dated, Wednesday 20th July 2005, exhibited in the Affidavit of the Applicant and admitted into evidence, Captain Tom O’Callaghan, wrote to the Applicant as follows:- “Dear Mr. Fitzpatrick,
On 21st July 2005, an exchange of correspondence took place between Messrs Patrick F. Moloney & Co., Solicitors, of Ennis, on behalf of the Applicant and, Mr. Brian Hogan and Captain Tom O’Callaghan. I find that it is unnecessary to set out this correspondence in detail, but it included the following letter to Mr. Hogan:- “Dear Mr. Hogan,
We await hearing from you by return.”
We wish to advise that we have received an application from the registered owner of this vessel and we are progressing this with him.” The Applicant was clearly aware of this pending survey of the M.V. “Galway Bay”, because in the final paragraph of his grounding Affidavit, sworn on 25th July 2005, he states as follows:-
In the circumstances, I find that the Applicant’s claim has been rendered moot and merely academic, as the substantial matter at issue has been resolved by the Decision of the Respondent of 29th July 2005, to refuse the Certificate. It was not suggested at the hearing before me that the application raises public law issues of general and exceptional importance divorced from the Applicant’s own private interest in the outcome of the application. Having regard to the refusal of the Respondent to authorise additional plying limits in respect of the ship, there are no grounds for considering that compensatory damage, for loss of use of the ship, might have been awarded if sought in a civil action against the Respondent, so there is no basis for a claim to relief pursuant to the provisions of the O. 84, r. 24, or O. 84, r. 26(5) of the Rules of the Superior Courts 1986, (as amended). The Statement of Ground for Application for Judicial Review and the Grounding Affidavit of the Applicant disclose an existing cause of action. The decision of this Court (Hanna J.), to grant leave to the Applicant to seek Judicial Review establishes that the Applicant had at least an arguable case and that his application was not merely frivolous or vexatious. Each party to this application for Judicial Review has at all times actively maintained their own interpretation of the word “owner” as defined in s. 2(1) of the Merchant Shipping Act, 1992. Without the court fully determining that issue, neither party can justly claim that the court should exercise its discretion in awarding costs in their favour under the normal rule that costs, accept in special circumstances should follow the event. As there are no public law issues arising in this matter it is essentially a lis inter partes. The application for Judicial Review has not been rendered a moot by a decision of the Respondent to complete the marine survey at the behest of the Applicant. On the contrary the Respondent carried out that survey and at all times insisted that it would only carry out that survey solely at the request of the Registered Owner of the ship. Absent a public law point of general and exceptional importance, I cannot see how in justice the Respondent could be fixed with the costs of this application. I find that there was nothing in the conduct of the Respondent before or during the course of this application for Judicial Review which would justify such an award, particularly, in the absence of an adjudication by the court upon the merits of the application. Having regard to the fact that the Applicant, at the time the application for leave to seek Judicial Review was made on 25th July 2005, was fully aware that the M.V. “Galway Bay” was to be surveyed by Captain Tom O’Callaghan in Doolin that very evening, it might reasonably be considered that it was unreasonable for the Applicant to have prosecuted this application for Judicial Review. However, the fact that the applicant, was as he claimed, and this claim was not denied or contradicted, paying the charter charges for the ship since 2nd June 2005, was also paying the wages of the crew from that date, and being unable to use the ship on the proposed extended voyages was suffering a loss of revenue per day, (conditional of course, on their being approved by the Respondents, which they were not), together with the rapidly approaching start of the Summer Vacation in the Courts, could, I find, be regarded as special and exceptional circumstances which justified the Applicant in proceeding with the application for Judicial Review despite his knowledge and awareness of the immediately pending marine survey of the ship. In the special circumstances of this case, I am not prepared to visit on the applicant the serious misrepresentation as to the ownership of the M.V. “Galway Bay” contained in the letter of 20th July 2005, to the Respondent from the Applicant. The facts, to which I have already adverted, demonstrate that the Respondent, though initially mislead and inconvenienced by this misrepresentation did not in fact act upon it to his detriment. I am prepared to regard this most unsatisfactory matter as a wholly unauthorised action by Mr. Wilde-Crosbie altogether outside the scope of his retainer. At para. 5 of an Affidavit sworn by Mr. Wilde-Crosbie in this application on 14th January 2006, he states as follows:-
I find no reason in the circumstances of this application why in justice or equity the Applicant should be awarded the costs of this application for Judicial Review. In my judgment, absent a public law issue of exceptional importance, the fact that the Respondent is a Department of State is no possible justification for this court to award the costs of the application to the Applicant. In all the circumstances, exercising the discretion as to costs vested in this court by the provisions of O. 99, r. 1(1), of Rules of the Superior Courts, 1986 (as amended), judicially and having regard only to the facts of this application for Judicial Review, I find that justice requires that the parties be each ordered to abide their own costs of the entire application for Judicial Review. |
