Supreme Court agrees with the State that the enactment of legislation does not amount to “legitimate expectation”
Although the State’s appeal was ultimately dismissed due to the absence of any substantive effect flowing from the decision, the Supreme Court has unanimously agreed with the State that legislation should not amount to legitimate expectation that can be breached and therefore result in the pursuance of damages.
Legitimate Expectation in the High Court
In the High Court, the trial judge found in favour of a company – Atlantic Marine Supplies Ltd – that a statutory provision might not be addressed to a specific group but it was possible for that or a broader group to be entitled to rely on a legitimate expectation of enforcement of the provision.
Therefore Atlantic was entitled to rely on an implied representation of the Department of Transport in their 2004 Code of Practice governing the design, construction, equipment and operation of small fishing vessels – and that this would be reasonably enforced.
The trial judge found that there was no countervailing factor preventing a legitimate expectation arising.
However, in considering whether there had been a breach amounting to damages, the High Court found that in Atlantic’s case, most of their complaints predated the point at which the Code became indirectly enforceable through the licensing regime in 2006. After 2006 there was no evidence of breaches being brought to the attention of the Minister for Transport – and therefore “no sufficient failure of enforcement on the part of the Minister”. No issue of damages arose as there had been no “culpable failure to enforce” the Code of Practice.
In relation to costs, the Court considered that the plaintiffs had achieved something by the bringing of the proceedings and that there had been a significant lack of clarity about the legal position.
The Court made no order as to costs accordingly, notwithstanding the fact that Atlantic’s claim had failed and had been dismissed.
In appealing this decision, the concern of the State was not the outcome of the particular case, but the broader implications of dicta in the judgment, not just in the field of maritime safety in particular, but also and more generally for the law of legitimate expectation
The concern of the State therefore was not so much what the Court did but how it did it.
Therefore, despite the fact that the High Court made no order against them on any of the substantive issues in the case, the State parties’ appeal was directed against ‘a contingent finding of breach of legitimate expectation and a possible future liability for damages’.
Separation of powers
Disagreeing with the High Court decision, Justice O’Donnell considered that the combination of matters relied upon in this case could not amount to the type of representation or adoption of a position which could give rise to a legitimate expectation.
Different, and statutorily and constitutionally distinct, bodies were responsible for the acts which cumulatively are relied on as amounting to such a representation, and while not making any definitive determination in this regard – Justice O’Donnell stated that at a minimum it must be recognised that the different roles, functions and powers of the different bodies involved here, presents a further hurdle to the assertion that any individual defendant has made a representation or adopted a position giving rise to legitimate expectation.
Turning to the matters alleged to constitute the expectation, Justice O’Donnell stated that the promulgation of the Code of Practice itself cannot give rise to a legitimate expectation of enforcement which could be relied on since in its own terms it was not enforceable and only became so, and indirectly, with the passage of the Sea Fisheries and Maritime Jurisdiction Act 2006.
Finally and perhaps most significantly the passage by the Oireachtas of the 2006 Act introducing a new section 4(9)(c) in the Fisheries (Amendment) Act 2003 could not amount to a representation being made by the Minister for Transport that the law as enacted will be enforced. Justice O’Donnell found it unnecessary to add such a layer of analysis, and that to do so would raise substantial issues of the separation of powers.
Justice O’Donnell went on to state that the obligation on the Executive to enforce the law enacted by the Oireachtas is derived from the Constitution, and is not dependent on any concept of legitimate expectation that could be relied upon by a more limited group of citizens, to found a claim for damages.
Furthermore, at a minimum, it is unlikely that the enactment of legislation which itself does not give rise to a right to sue for breach of statutory duty, could nevertheless give rise to a legitimate expectation sounding in damages in the same group.
Justice O’Donnell emphasised that if this was possible it would follow that all legislation was capable of giving rise to some such legitimate expectation on the part of interested parties, or indeed quite possibly any citizen, with a corresponding right to enforce such an expectation and to claim damages if it is possible to advance a claim in relation to them.
With all seven justices concurring, it was found that the finding of legitimate expectation could not be upheld.
That being said, Justice O’Donnell stated that, since Atlantic’s claim was already dismissed, the Court could make any substantive order on this appeal and must therefore dismiss it.
In conclusion, the State parties succeeded on the argument that there was no legitimate expectation, but since nothing could flow from that ruling, their appeal was dismissed.
Dealing with the question of costs, Justice O’Donnell gave his preliminary view the justice of the case could be met through agreement of both parties by a modest contribution towards Atlantic’s costs, with submissions being heard if such an agreement is not possible.