About this case:

• Citation:
  [2025] IESC 14
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Brian Murray

Delivering judgment for the Supreme Court in April, Mr Justice Brian Murray remarked that “by treating with the plaintiffs as they did, the defendants created a position in which a failure on their part to comply with the duties imposed upon them by the legislation in question, gave the plaintiffs a right to claim damages that was enjoyed by no one else. The duty of care owed to the plaintiffs, and the duty imposed by the statute, as Laws LJ put it in Connor, marched together.”

Background

Between 2002 and 2004, the appellants invested €14.25 million in four new ‘bottom’ mussel dredging vessels with the active encouragement of the defendants who controlled access to mussel seed stock in State waters and who procured European Union grant aid covering 40 per cent of the cost of the dredgers.

By the time the vessels were ready for use, mussel seed yield had dramatically depleted and by 2006, had fully collapsed. The depletion was proceeded by the first defendant minister issuing numerous permissions to Northern Irish vessels, allowing them to collect mussel seed in State waters.

In related 2016 proceedings, the grant of those permissions was found by the Supreme Court to have contravened Article 10 of the Constitution.

The plaintiffs contended that they suffered significant loss as a result of mismanagement of the mussel seed resource by the defendants and issued proceedings seeking damages and various declaratory reliefs.

The High Court dismissed the plaintiffs’ claims in a judgment delivered in 2019. On appeal to the Court of Appeal, the plaintiffs restricted their case to the High Court’s rejection of their claims in negligence and for breaches of their constitutional rights.

The Court of Appeal having dismissed their appeal, the plaintiffs were granted leave to appeal to the Supreme Court on the issue of whether the defendants, as public bodies exercising a public function, were liable to them in negligence for the mismanagement of the mussel seed resource.

The plaintiffs alleged that a duty of care arose by virtue of the dealings between the parties, which viewed in context were such as to present an assumption of responsibility by the defendants towards the plaintiffs, and that the subject matter of the duties and the source of the loss arose from the mussel seed resource which was under the legal control of the defendants.

The Supreme Court

Mr Justice Murray noted that “there is some confusion as to the principles applicable in this jurisdiction to public authority liability in negligence, and neither the State defendants, the plaintiffs, nor the courts below can be criticised for thinking that the law was more protective of public authorities than it is”.

Finding that the relevant duty of care consisted of two broad elements — an alleged duty arising from the allocation of the resources and an alleged duty to exercise care in the policing of the fishery — the court concluded that the High Court was correct to conclude that the plaintiffs had failed to establish the latter duty based on the evidence given at trial.

Accordingly, the Supreme Court considered that the case before it was now entirely focused on issue of whether the defendants, based upon an assumption of responsibility and/or the fact of their control over the mussel seed resource, owed a duty of care to the plaintiffs in their decisions made pursuant to statute around the allocation of the entitlement to fish that seed, to avoid the loss by the plaintiffs of their investments.

Mr Justice Murray summarised that Glencar Exploration plc v. Mayo County Council [2002] 1 IR 84 does not prescribe a test applicable to all cases in which a duty of care is asserted and disputed, but rather describes the features that must be present before such a duty will be found. 

The judge expressed that the first “reference point” should be whether existing case law provides a binding precedent for the recognition of a duty of care arising from the relationship between the parties, noting that in the absence of a challenge to that precedent, “that is the end of the matter”.

The Supreme Court considered that in the absence of binding precedent, it is appropriate to address whether a duty of care could be imposed by reference to the essential characteristics of the case viewed in light of the principles governing negligence as developed in the jurisprudence.

Mr Justice Murray emphasised that if a case is truly analogous to one in which a duty of care has been imposed, “it will usually be because there is a sufficient relationship of proximity and there is sufficient foreseeability of loss” and that the factors generating proximity and foreseeability would be “legally significant features”.

The court further reasoned that in cases where the court finds a duty of care by analogy with principles identified in an earlier authority, it is also appropriate to consider the policy implications of an extension of liability and whether it is just and reasonable to impose such a duty in line with Ward v. McMaster [1985] IR 29 and [1988] IR 337.

As to pure economic loss, Mr Justice Murray concluded that same would be recoverable in negligence provided that a defendant assumes a responsibility to a defined, identifiable and limited class not to cause or to protect against such loss, where there is known or reasonably foreseeable reliance in this regard by a plaintiff upon the defendant, in circumstances where the relationship between the parties is such that the defendant could disclaim any such liability by agreement but failed to do so.

On public authorities in particular, Mr Justice Murray considered that where a “clear, simple and direct” analogy can be drawn between the activities of private actors and public authorities, the public authority could be liable in negligence in the same manner as a private actor save for where the authority enjoys statutory immunity.  

The judge also noted inter alia that the mere fact that the exercise of a statutory power could confer a benefit on a person of which they would otherwise be deprived or could prevent a harm to that person does not of itself give rise to a duty of care at common law.

The court was also satisfied that public authorities can come under a private law duty to confer benefits or to protect from harm where the principles applicable to private parties would impose such an obligation, including situations where a public authority assumes a responsibility to confer a benefit on, or to protect a person, from harm.

In this regard, Mr Justice Murray highlighted that while there is no a priori rule that a public authority enjoys immunity from liability in negligence in respect of its actions while exercising statutory discretionary powers, in determining whether to impose a duty of care: “It will not be just and reasonable to require a public body to act in a manner prohibited by statute, nor will it be just and reasonable to impose a duty of care where to do so would inhibit the exercise of a statutory power.”

The judge further considered that where the alleged negligence relates to decisions made by a public authority in choosing between options within the parameters of a discretionary power, the standard of care concerns whether the action was outside the range of choices that a reasonable body charged with that activity could have made, equivalent to the standard of unreasonableness in administrative law.

Application to the facts

Noting that the essential issue was whether, having regard to the dealings between the parties, the defendants assumed a responsibility to protect the plaintiffs from investment losses consequent upon the mismanagement of the mussel fishery resource in connection with the allocation of the mussel seed, Mr Justice Murray pointed out that the State had crossed a line from straightforward regulation to actively seeking to encourage private individuals to enter the market and to invest in it, becoming actively intertwined in the exploitation of the mussel seed resource.

The judge opined that a duty to exercise care in the manner in which the right to fish for mussel seed was allocated pursuant to statute in the period between the plaintiff’s investment in the vessels the subject of grant aid and their exit from that industry could arise from the dealings between the parties.

The court concluded that any such duty of care would be generated by a combination of inter alia the fact that the defendants actively solicited investment, that the plaintiffs’ involvement was necessary to achieve the defendants’ objective, that the defendants knew that the plaintiffs were making significant personal investments dependant on the availability of specified allocations of mussel seed, and that it was open to the defendants to disclaim any obligations to manage the resource in a particular fashion.

The court also considered inter alia that if the conditions concerning irrationality and disclaimers were met, then there was no reason why it would be other than “just and reasonable” to impose a duty of care.

Mr Justice Murray noted that a number of matters remained to be resolved, including issues of causation, of whether there was an effective disclaimer by the defendants to certain of the plaintiffs, whether the plaintiffs knew or ought to have known prior to investing that access would be granted to Northern Irish vessels and the implications thereof, whether in particular any investment losses were incurred by any of the plaintiffs, and whether the standard of care as outlined in the judgment was breached.

Conclusion

Accordingly, the Supreme Court allowed the appeal, set aside the order of the Court of Appeal dismissing the proceedings and remitted the case to the High Court for further determination. 

Barlow & Ors v. Minister for Communications & Ors [2025] IESC 14