Date Set for Porcupine Bank Closure Judicial Review

It has been confirmed that the court case brought by fishermen Pat Fitzpatrick and Michael Flannery will be heard in full starting on the 1st May 2018 for four days.

The case which will focus centrally on the closure of the Porcupine Bank Dublin Bay Prawn (nephrops) fisheries to Irish boats will be heard before the High Court and is expected to last four days. It has been confirmed that Ms Justice Una Ni Rafferty will be the presiding judge over the case.

The summer of 2017 saw the SFPA announce a new approach to the prawn fishery in Area VII and in particular the Porcupine Bank. They advised the Minister that they could no longer rely on the Log books for the purposes of certifying the catch outtake in Area IV and by October it became clear to the Industry that the SPFA and the Minister were not for changing.

The SFPA new system reported that 1,991 tonnes of Dublin Bay Prawns caught in FU16 versus the 773 tonnes recorded in the log books and the closure was reported to cost prawn fishing boats up to €6m. This resulted in three of the Irish fish producers organisations (the IFPO, the KFO and the IS&EFPO) in agreeing that steps were needed to address the situation.

Fishermen, Pat Fitzpatrick and Michael Flannery agreed to be the Applicants in a legal action for the purposes of bringing the High Court Applications. On the 13th of November a Motion was brought for Leave for Judicial Review was applied for before the High Court.

This is where the Court is requested to determine whether or not the method adopted by the SFPA was lawful or not.

The Court granted leave and put the motion for Judicial Review returnable for the 23rd of January 2018. Within the Industry there was great concern about the effect on the 2018 quota and so it was determined that we would bring a second motion to seek an injunction to prevent the Minister and the SFPA from reporting a total catch of 1,991 tonnes in FU16 for 2017.

The motion came before the High Court late in December for four days hearing. The applicants set out to the Court how the new approach was not permitted by EU law and that the effect of the SFPA reporting the figure of 1,991 would be ruinous to both applicant’s.

In the case of injunction’s there is a very body of law setting strict technical tests as to when an injunction is granted and there is a clear policy from the Courts that Injunctions should not be easy to get. In terms of what the Applicants asked of the Court, it was suggested that there were two types of Injunctions.

One category of injunction was Mandatory (ie it must be done – the SFPA must correct the numbers reported to the Commission and in relation to the Minister, that he would direct the SFPA to refer to the Logbook only). The second type of injunction, was a prohibitory type of injunction (i.e do not do something).

The first type of Injunction, requires the case to be of a strong nature. The second type of injunction, requires the case to be of a ‘arguable’ nature. On the 11th January the Court found the following:

1. That the case was not strong, but it was arguable

2. The Judge felt that all of the injunctions sought were mandatory and not prohibitory.

3. The main test to get an injunction is that Damages are NOT an adequate remedy.

The Judge felt that the State could very easily compensate each and every Fisherman. Accordingly, the Injunction was refused. The motion for an Injunction concluded on Monday the 22nd January and on Tuesday the 23rd January, the Court will direct when the case for Judicial Review will be heard. This is the part of the case which will fully focus on the Methodology deployed by the SFPA.

The matter of costs was before the court on 22nd January and despite extensive submissions from the legal team for both the Minister and the sea fishery protection authority, the judge, Ms Justice Una Rafferty refused to make a costs order.

The judge has reserved the question of the costs of the injunction to the hearing of the action. Ms Justice Ni Rafferty arrived at this decision partly as a result of her own judgement delivered earlier. She had commented in her decision that one of the reasons why we were not granted an injunction was because the state could compensate fishermen by way of damages and therefore the financial position of the fishermen would not be prejudiced.

However, during the legal arguments the legal team for the fishermen, had highlighted that the law was such in European law matters, that getting damages was nearly impossible from a legal point of view. In her own judgement she referenced this as being a potential ‘Catch-22’ where you win your case and do not get damages. The Justice Ni Rafferty has agreed to stay in the case and will hear the main action on 23rd April.

It would normally be the case, that if you lose you have costs awarded against you. This was a significant outcome for the case.

Conways Solicitors represented the two Applicants in this case.