5.  The applicant company is engaged in the cultivation of mussels in Castlemaine harbour in Co. Kerry, one of several sites in Ireland where this commercial activity is exercised. Its business involves fishing for mussel seed (i.e. immature mussels) within the harbour each year and transporting them for cultivation in another part of the harbour. It has conducted this activity at Castlemaine harbour since the late 1970s.
6.  In Ireland, mussel seed fishing takes place during the summer period, the exact dates being determined each year by statutory instrument. This activity is subject to obtaining the relevant leases, licences, authorisations and permits (see under “Relevant domestic law” below). The competent authority in this respect is the Minister for Agriculture, Food and the Marine (hereinafter “the Minister”, and “the Department” for the corresponding Government Department). In order to engage in this activity, operators must be in possession of an aquaculture licence, which has a validity of ten years. A sea-fishing boat licence is required, and the boat used must be entered in the Register of Fishing Boats. Operators must also hold an authorisation to fish for mussel seed, issued annually by the Minister (see under “Relevant domestic law” below).
7.  Subsequent to the facts giving rise to this application, an additional requirement was introduced pursuant to EU law. Where mussel fishing is carried out in an environmentally protected area, a “Natura permit” must also be obtained (see paragraph 20 below).
8.  According to the Government, a total of 41 authorisations were issued in 2008 to Irish sea-fishing boats to fish for mussel seed, four of which operated in Castlemaine harbour on behalf of six mussel aquaculture operators.
9.  In 1993, the competent authorities published a notice in the national press announcing the intention to classify twelve sites, including Castlemaine harbour, as a special protection area (SPA) within the meaning of the domestic legislation transposing Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (“the Birds Directive”, OJ 1979 L 103, p. 1). The notice indicated that it was not envisaged that this would change the usage of the sites concerned. The harbour’s SPA classification took effect in 1994. The applicant company continued its activities each year, obtaining the necessary licences and permits.
10.  In 2000, the domestic authorities designated Castlemaine harbour a special area of conservation (SAC) within the meaning of the domestic legislation transposing Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”, OJ 1992 L 206, p. 7). As it was now subject to the two EU directives, it had the status of a “Natura 2000” site.
11.  Dating back to the late 1990s, the European Commission was of the view that Ireland and several other then EC Member States were not fulfilling their obligations under EC environmental law, and specifically in relation to the two directives referred to above (references hereafter will generally be to EU and not EC law). Between 11 November 1998 and 18 April 2002, it addressed to the Irish authorities four letters of formal notice warning that Ireland had failed to correctly transpose and apply those two directives. Following three reasoned opinions issued in October 2001 and July 2003, the Commission brought infringement proceedings against Ireland in September 2004, pursuant to Article 226 EC (now Article 258 TFEU). It sought a declaration that Ireland had failed to fulfil its obligations under several provisions of the directives, namely Articles 4(1), (2) and (4), and 10 of the Birds Directive, and Article 6(2) to (4) of the Habitats Directive. One specific aspect of these proceedings concerned the authorisation of aquaculture in protected areas without the requisite prior assessment of the environmental impact of such activities.
12.  On 13 December 2007 the Court of Justice of the European Union (hereinafter “the CJEU”) delivered its judgment in Commission v. Ireland (C‑418/04, EU:C:2007:780), declaring that Ireland had failed to fulfil its obligations under the aforementioned directives in a number of respects. It held, insofar as relevant to the present case:
“236.  ... [R]egarding the aquaculture programmes, the Commission relies, essentially, on the Review of the Aquaculture Licensing System in Ireland carried out in 2000 by BirdWatch Ireland as the basis for its view that Ireland has systematically failed to carry out a proper assessment of those projects situated in SPAs or likely to have effects on SPAs, contrary to Article 6(3) and (4) of the Habitats Directive. In that context, it emphasises the importance of a prior assessment for the purpose of weighing the implications of a project with the conservation objectives fixed for the SPA concerned. 237.  The Court notes that that study covered 271 authorisations for aquaculture programmes issued by the Department of Communications, Marine and Natural Resources during the period from June 1998 to December 1999 and 46 applications yet to be decided on. Moreover, 72 licences and nine pending applications concerned aquaculture programmes situated inside or near an SPA. The authorisations issued concern, in 84% of the activities authorised in SPAs, oyster and clam farms. 238.  It should also be borne in mind that, under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects (Case C‑127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I‑7405, paragraph 45). 239.  The study carried out by BirdWatch Ireland refers to a number of potential negative effects of shellfish farming, including the loss of feeding areas and disturbances caused by increased human activity and states that, even when an aquaculture programme is inside an SPA, very little protection is provided for bird habitats. Ireland, for its part, does not allege that no aquaculture programmes have any effects on SPAs. 240.  It follows that the authorisation procedure ought to have included an appropriate assessment of the implications of each specific project. It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising mollusc farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of an aquaculture development project before a decision is taken on authorisation. 241.  Accordingly, the Court finds that Ireland fails to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs, either individually or in combination with other projects, are made subject to an appropriate prior assessment. 242.  This finding is supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior, detailed ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission. 243.  Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 61).”
13.  At or around the same time, the CJEU found that the Netherlands, France, Finland, Italy, Spain, Greece and Portugal had similarly violated their EU obligations.
14.  In view of the judgment, the Minister considered that it was not legally possible to permit commercial activity in the sites concerned until the necessary assessments had been completed. Accordingly, when granting authorisation for mussel seed fishing for the period 9 June to 1 July 2008, he prohibited it in 24 locations around the Irish coast, including Castlemaine harbour (Statutory Instrument No. 176 of 2008, adopted on 6 June 2008). The applicant company was informed of the situation by an official of the Department on 6 June 2008. It wrote to the Taoiseach (Prime Minister) that same day to underline the threat to the livelihood of those affected. It recalled the terms of the notice published in 1993 (see paragraph 9 above), and explained that it had just purchased a new boat at a cost of 1 million euros. The applicant company received a reply from the Department dated 2 July 2008. This explained that baseline data for the area had to be gathered in order to perform the assessment required by the Habitats Directive, as interpreted by the CJEU. It indicated that Castlemaine harbour had been given priority for the exercise and that work had already begun to collect the necessary data. It added that the authorities would be seeking the agreement of the European Commission to allow aquaculture to resume on an interim basis.
15.  The following month the applicant company was issued an authorisation to fish for mussel seed in the harbour, with a starting date of 23 August 2008. The authorisation was subject to a number of conditions, including that it did not allow the holder to fish for mussel seed in an area or areas where this activity had been prohibited. On that same date, the temporary prohibition on mussel seed fishing at Castlemaine harbour, and at 21 other locations around the State, was maintained in force by Statutory Instrument No. 347 of 2008. The temporary prohibition only applied to mussel seed fishing; it did not prevent the harvesting of mussels previously fished and laid on farms for cultivation.
16.  The applicant company wrote to the Department on 28 August 2008, warning that the supply of mussel seed in the harbour was being consumed by predators and that it would hold the Department responsible for all losses incurred. It requested a satisfactory resolution within ten days, failing which it would take advice about legal action.
17.  On 3 October 2008, following successful negotiations between the Department and the Commission (see further below), the Minister issued Statutory Instrument No. 395 of 2008 removing Castlemaine harbour from the list of locations where mussel seed fishing was prohibited. The applicant company was therefore able to commence mussel seed fishing on the date the instrument came into operation, namely 5 October 2008. By that stage, however, natural predators had decimated the mussel seed. Since mussels need two years to grow to maturity, the financial consequences of the temporary prohibition on mussel seed fishing in Castlemaine harbour in 2008 were only felt in 2010. That year, the applicant had no mussels for sale, representing a loss of profit that it estimated at 289,599 euros.
18.  According to the applicant company, there was no viable replacement for local mussel seed. Previous attempts to bring in mussel seed from other sites had not proved successful due to the high mortality of the seed and to the transport costs involved. It argued that it was therefore wholly dependent on the use of local resources. The applicant company further explained that if there had been any forewarning of the restriction on mussel seed fishing in 2008, it would not have made such a major investment in a new boat purchased in May of that year.
19.  In 2009, the harbour was opened for mussel seed fishing from 30 April to 14 May, and from 15 September to 23 December. The applicant company was able to gather the usual amount of mussel seed.
20.  In August 2009, in accordance with EU law, the Minister introduced an additional requirement for fishing in SACs or SPAs, a fisheries Natura permit.
21.  In 2010, the periods authorised for mussel seed fishing in the harbour were from 29 April to 25 May, and from 30 August to 2 December. The applicant company was not able to operate during the first period, as it had not yet obtained such a fisheries Natura permit. When it eventually recommenced fishing at the end of August, the mussel seed had once again been depleted by predators, although the applicant company acquired some tonnage. It estimated its loss of profits for that year at 119,941 euros.
22.  The Government provided the following explanations of the action taken following the CJEU judgment, which the applicant company did not dispute. They indicated that even before the delivery of the CJEU’s judgment they had commenced a process to determine how fisheries should be assessed in compliance with the relevant EU directives. Following that judgment, the Department immediately began the process of ensuring compliance with EU law in the fisheries sector. This process involved the domestic bodies with responsibilities for fisheries (Bord Iascaigh Mhara – BIM), marine research (Marine Institute) and nature conservation (National Parks and Wildlife Service – NPWS). Within one month of the judgment being handed down, BIM prepared a paper in January 2008 on the distribution of bi-valve (dredge) fisheries with the potential to lead to disturbance or significant disturbance of habitat, including the fishing of mussels.
23.  At a meeting in February 2008 between the NPWS and the EU Commission, the latter underlined the need to comply with the judgment by conducting the requisite assessments for aquaculture, and in so doing addressing the cumulative effects of other activities that could adversely affect Natura 2000 sites. While the Commission recognised the need for some flexibility, and the small scale of much of Irish aquaculture, it considered that the onus was on Ireland to initiate a robust, proportionate and scientific process.
24.  In April 2008, the relevant domestic bodies agreed on the need for an alternative approach to assess inshore fisheries on an interim basis, pending the collection of baseline data allowing the appropriate assessment required by EU law. To this end, a series of steps was proposed. The following month, BIM prepared a working document on fisheries in Natura 2000 sites, which included a case study of Castlemaine harbour. The study considered that the consequences of mussel seed fishing on the site were negligible. According to the applicant company, this assessment was consistent with that set out in a draft consultation document which had previously been prepared in 2000 by the Government Department with responsibility for heritage, of which the NPWS was then part.
25.  On 30 July 2008 Ireland sent to the Commission its official response to the CJEU judgment. It acknowledged that assessments were required in relation to fisheries, and that the necessary baseline data had to be collected at the sites in question. The response also indicated that the Irish authorities would seek the Commission’s approval for an interim approach.
26.  In early September 2008, the Marine Institute submitted to the Department a finalised study entitled “Fisheries in Natura 2000”. The Department was hopeful that the Commission would tolerate an interim approach to the activities in Castlemaine harbour, where the situation was time critical. The same month, the NPWS warned that in the absence of sufficient funding and staff it could not provide the necessary assurances to the Commission. It informed the Department that the assessments available to date were not adequate, and that the Commission shared this view. Additional studies were needed. The Commission’s stance was that it was prepared to give its temporary agreement to fishing at Castlemaine harbour if the additional studies were submitted and if Ireland gave an undertaking to meet the terms of the judgment over a three-year period.
27.  On 2 October 2008 the NPWS sent to the Commission an interim assessment of mussel seed fishing in Castlemaine harbour, indicating that on the basis of its assessment this activity was not likely to have a significant impact on the site. The Commission agreed that, on the basis of this interim assessment, fishing could be allowed in the harbour for 2008 only, on condition that Ireland submit more detailed assessment procedures with a view to allowing fishing there in future. The Commission sought confirmation that there was an adequate basis in domestic law to ensure fishing activities remained in compliance with the directives. It requested amendments to certain aspects of the assessment, and it also requested a monitoring report. From that point it was considered legally possible to open Castlemaine harbour. The Minister signed the Statutory Instrument (No. 395 of 2009) the next day, 3 October 2008, allowing mussel seed fishing to recommence on 5 October 2008 (see paragraph 17 above).
28.  In late 2008 and early 2009 the Commission maintained its robust stance, requiring a long-term plan to achieve compliance in order for the interim approach to continue. The NPWS indicated the likelihood of a negative assessment due to a decline in several bird populations, and pointed to the need for additional surveys of the site.
29.  In January 2009 the Irish authorities assured the Commission of its commitment to a verifiable three-year plan to achieve compliance with the directives as regards fisheries and aquaculture. They indicated an allocation of 2 million euros over the period 2009-2010 for a wide-ranging exercise to collect baseline data. In March 2009, Ireland submitted its “roadmap to compliance” with the judgment to the Commission. The latter approved an interim approach to assessment, based on best available data and the collection of limited additional data in the time available, and subject to stringent management and control arrangements.
30.  There was further engagement between the Irish authorities and the Commission during 2009 and 2010 regarding compliance with the CJEU judgment and the relevant directives. Public consultation was also required in relation to the regulatory changes that had to be made.
31.  The appropriate assessment of Castlemaine harbour was completed in April 2011 by the Marine Institute. Running to over 130 pages, it assessed the effects on the site of the different types of aquaculture carried out there and concluded that there was no reason to anticipate any environmental disturbance from mussel fishing. This was one of multiple assessments which the respondent State had to undertake in light of the CJEU judgment.
32.  Along with another local company, which was not directly involved in the cultivation of mussels but was a downstream retailer and exporter, the applicant company instituted proceedings in the High Court in February 2009 against the State. It relied on a series of grounds, notably breach of legitimate expectation, operational negligence and breach of the constitutional right to earn a livelihood.
33.  In view of the State’s delay in delivering a defence to the claim, the applicant company brought a motion for judgment in default of defence, which was heard and concluded on 13 July 2009. The State delivered its defence on 6 August 2009.
34.  In October 2009 the applicant company sought discovery of documents on a voluntary basis. It then applied to the Master of the High Court, on 14 December 2009, for an order of discovery, pursuing the matter before him in April, May and July 2010. The Master gave his ruling on 7 July 2010, which the applicant company appealed against to the High Court. It was granted an order of discovery on 18 October 2010, directing the State to provide a variety of documents within eight weeks. The State swore an affidavit of discovery on 7 January 2011. It swore a supplemental affidavit of discovery the following year, on 17 October 2012.
35.  The applicant company issued an amended statement of claim on 19 August 2011, which referred to the restrictions applied in 2009 and 2010 as well.
36.  On 1 September 2011 the applicant company set the action down for trial and certified it ready for hearing. Over the following months there were some exchanges of correspondence between the applicant company’s solicitor and the Chief State Solicitor in relation to the hearing of the action. On 9 May 2012 the applicant company requested a hearing date.
37.  The hearing took place over eight days in November 2012. Judgment was given on 31 May 2013.
38.  The High Court ruled in favour of the plaintiffs. The trial judge accepted their evidence that it would not have been viable for the applicant company to purchase mussel seed from operators based in other locations. He first found that there had been a breach of legitimate expectation, stating:
“[T]here was a representation made to the plaintiffs in both the government notice and the newspaper notice of 1993. There was comfort given. What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so.”
39.  The High Court also found that there had been “operational negligence” due to the failure of the authorities to carry out the necessary scientific tests or monitoring that would have provided the data required by EU law. It considered that the failure to undertake these steps was a mistake of law by the Minister, which led to the denial of the applicant company’s access to the harbour for a period in 2008, causing financial loss. The trial judge accepted the evidence presented by the applicant company that it would have been possible to conduct the requisite analysis within two months. Had that been done, there would not have been any disruption of the applicant company’s activities.
40.  The applicant company claimed compensation for lost profits caused by the restrictions in 2008 and 2010, which it estimated at 289,599 euros and 119,941 euros respectively, making a total claim of 409,450 euros. The State challenged both the basis for the applicant company’s calculations and the quantum of damages sought. The High Court decided that the applicant company’s claim should be reduced by roughly one third. This resulted in an award of 275,000 euros for its losses over the two years in question. It awarded the other local company 125,000 euros.
41.  The State appealed both on the issues of liability and the quantum of damages awarded. It filed its notice of appeal with the Supreme Court on 16 July 2013. The applicant company brought a cross appeal in relation to the estimation of damages. A stay issue was ultimately resolved by the Supreme Court on 4 October 2013. On 21 July 2014 the State certified that the appeal was ready for hearing. The appeal was granted priority by the Chief Justice on 31 July 2014. The hearing took place on 29-30 April 2015, and judgment was given on 22 February 2016.
42.  The Supreme Court was unanimous in overturning the High Court’s ruling on legitimate expectation. Addressing this issue, Clarke J, with whom the other members of the court agreed, stated:
“10.7  ... [T]he only representation which it can be said was expressly made by the Minister ... was to the effect that “it is not envisaged” that there would be any restriction on traditional activities. That statement was made in April 1993, and was in the context both of developing European environmental legislation and also in the context of the process leading to the identification of areas within Ireland which would be designated for the purposes of that European legislation. It could not be said to amount to a clear commitment on the part of the Minister that there could never be any adverse consequences. What the consequences were going to be of the designation of an area for European environmental purposes was a matter of European law. 10.8  As events unfolded, it became clear that the Minister did not have the legal authority, as a matter of European law, to allow for the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried out. ... The Minister could give no greater assurance than that, in the then view of the Minister, it was not envisaged that there would be problems for traditional activities.
... 10.10  Next, reliance is placed on the fact that, as found by the trial judge, the ongoing activities of [the applicant company] were carried out to the knowledge of the Minister and on the basis of annual legal measures put in place by the Minister which facilitated the so-called opening of the harbour. However ... the fact that there may have been an error in the past cannot create a legitimate expectation that that error will be continued into the future. The fact that the Minister was mistaken in his view that traditional activities, of which the Minister undoubtedly knew, could continue provided that the Minister put in place the appropriate legal measures, and was also in error about the fact that those legal measures could be put in place in conformity with European law without carrying out an appropriate assessment, cannot create a legitimate expectation to the effect that that situation would continue. 10.11  While there undoubtedly was significant expenditure, and while the incurrence of expenditure on foot of a representation may form part of the Court’s assessment in determining whether it would be appropriate to allow a public authority to resile from a representation made, expenditure will not be relevant if there was no legitimate expectation in the first place. 10.12  ... As interpreted by the [CJEU], a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European law, to be concerned not with unproven risk but rather with proven absence of risk.”
43.  On the issue of operational negligence, three of the five judges upheld the State’s appeal. Two members of the majority gave judgment.
44.  MacMenamin J observed that strong policy considerations arose in the case. The question of how to afford redress to individuals who had suffered the detrimental effects of wrongful actions by the executive was a legitimate concern. Yet changes in the law of negligence and reformulations of State liability must be carefully and incrementally approached with a clear view as to their long-term consequences. While there undoubtedly was a strong public interest in ensuring a proper balance between private and public rights and duties, there was a stronger public interest in ensuring that government can actually function, and that administrators were not impeded in making decisions through fear of a morass of litigation. The courts should not become a form of surrogate unelected government, second guessing prima facie lawful government actions in areas of discretion that did not raise questions of exceeding statutory powers. Reviewing the established domestic jurisprudence, he concluded that operational negligence had not been accepted in Irish law. He considered that in the present case the High Court had identified a tort with such broad headings lasting over so many years that it was questionable whether there was a justiciable controversy at all. It was impossible to say whether it was a tort committed by act or by omission. It was unclear at what point in time the Minister had acted wrongfully in relation to the plaintiffs. It might be said that, by allowing aquaculture to continue prior to 2008, the Minister had actually had regard to the applicant company’s interests, even at the cost of failed adherence to EU law. He further observed:
“36.  There then arises a further unavoidable question, that is, whether, if the Minister had, in fact, acted between 2000 and 2008, the respondents would inevitably have incurred significant losses, by a similar necessary suspension of activity in Castlemaine Harbour, as occurred from 2008 onwards, in order to obtain appropriate baseline data? If the detailed surveys complained of were necessary to establish the baseline, one is only left to speculate as to how these surveys could have been carried out without exactly the same or similar cessation of activity in the harbour, albeit in earlier years.”
45.  He then referred to the legislative complexity of the situation, which involved provisions of EU law, as well as primary and secondary domestic legislation, and to the complexity of the situation that the State faced in the aftermath of the infringement judgment of the CJEU. It was not just and reasonable to impose liability in the circumstances of the case. He did not consider that the Minister had owed a duty of care to the plaintiffs in 2008. The Minister had been aware of their situation, but also of the situation of other businesses in other parts of the country which had been placed in the same predicament. Nearly 150 Natura 2000 surveys had to be carried out in the period 2008-2010. It could not be said that the duty to the plaintiffs outweighed the duty to comply with EU law. Identifying the appropriate standard of care was problematic too. A further conceptual difficulty lay in the idea of imposing liability on the State for acts that were carried out by valid legal instruments for the purpose of implementing a legal duty. MacMenamin J also pointed out that the tort as found in the judgment under appeal did not derive from a Francovich breach of EU law (C-6/90 and C‑9/90, EU:C:1991:428) but rather from the damage allegedly caused by the implementation of EU law after a breach thereof was identified by the CJEU. The fallacy in the case was to seek to isolate some private duty owed to the plaintiffs by the Minister from his overarching public duty to comply with and implement EU environmental law.
46.  Charleton J, concurring, noted that under Article 6 of the Habitats Directive, the Minister had no discretion at all. He underlined three salient facts. First, many of the approximately 140 sites designated under the Habitats and Birds Directives were places of commercial activity of some sort. Following the ruling of the CJEU, emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites. This was done essentially by Irish public servants negotiating with the Commission. There were about forty sea-based sites, including Castlemaine harbour. Second, the State had not given a firm undertaking that the new environmental classification of Castlemaine harbour would not affect the applicant company’s activities. Third, the closing and opening of the harbour was done by valid statutory instruments. He considered that this ruled out any question of liability in negligence.
47.  He then referred to the primary legislation governing fishing, the main objective of which was the conservation and rational management of the national fish reserves. This point was central to where any duty of care might lie. The starting point in the tort analysis had to be whether the Minister had owed a duty of care to the applicant company. There was a need for caution in holding that the public authorities owed a duty of care in particular circumstances, since it could greatly hinder their normal functioning. There were other means to deal with improper conduct by a public body, such as judicial review and the tort of misfeasance in public office. He reiterated that the authorities had not had any choice; the Minister had acted as prescribed by EU law. At most, it might be said that there was some choice to be made about whether to give priority to some of the affected sites over the others. Yet it was hard to argue that Castlemaine harbour was more deserving than the other locations. Concentrating resources on some sites would have left operators in other sites waiting longer. The State had instead adopted a strategy of vigorous negotiation with the Commission to attempt to salvage whatever could be recovered for the benefit of users of all of the sites concerned.
48.  The concept of operational negligence had not yet been accepted as part of domestic law. It would mean a lack of certainty in the law, and make public decision-making subsidiary to the views of experts at several removes from the pressures of government. It would mean arrogating broader functions to the courts than provided for in the Constitution. The Minister had exercised powers based on statute and each decision had been correctly expressed through a statutory instrument. Given the general conservationist aims of the primary legislation, there was no statutory duty in favour of the applicant company. There was no discretion vested in the Minister to exempt any economic actor from EU rules. There was no duty of care towards the applicant company that could found an action in negligence. Instead, the duty of care was towards the wider community, expressed as the protection of the environment.
49.  Writing for the minority, Clarke J considered that the High Court judgment, insofar as it concerned negligence, should be upheld as regards the events of 2008. Concerning the events of 2010, he noted that the applicant company had not provided evidence allowing a causal link to be established between the alleged failure on the part of the Minister and its inability to conduct its business that year. It therefore had no cause of action against the State in this respect.
50.  Applying the relevant principles to the case, Clarke J clarified that there could not have been a duty on the Minister in 2008 to refrain from closing the harbour until an appropriate assessment had been carried out, as this would have been contrary to EU law. To the extent the harbour could be opened, this was only permissible in accordance with the interim measures agreed with the Commission. The real question was therefore:
“15.4  ... In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised?”
51.  He considered that on the facts of the case the necessary elements of foreseeability and proximity were present. The Minister was well aware of the activities taking place in Castlemaine harbour. He was also aware, in light of the statement published in 1993, that there was a potential issue that might arise in relation to such activities. Therefore, the Minister had been fully aware that any failure to place himself in a position to make a sustainable decision about the continuance of traditional activities in the sites concerned could have a significant effect on those involved in them. A private party in an analogous position would undoubtedly have been held to have a duty of care towards such persons. He further noted that it must have been clear to the Minister for some time prior to the CJEU judgment that there was a risk that the position taken by the Commission would be upheld over that of the State. In that eventuality, there would be an immediate problem due to the absence of the necessary scientific data for the appropriate assessment to be made, leading to at least the temporary interruption of the activities of the applicant company and others operating in protected areas. These formed a small and defined group of persons that, to a large extent, were actually known to the Minister and the Department.
52.  As to the presence of any countervailing policy factor, he reiterated that the case did not concern matters of policy, discretion or adjudication. It did not touch upon the allocation of resources or the making of statutory decisions. It was about the purported duty of the Minister to take reasonable steps to ensure that he would be in a proper position to make a decision under European law and any relevant Irish measures. He clarified that he did not necessarily disagree with the view of MacMenamin J that no specific duty of care on the Minister had arisen in the period after the CJEU judgment. At that stage, the authorities had found themselves on the back foot, with many decisions to be made about the allocation of the resources needed to conduct appropriate assessments at the sites concerned. But the actions and decisions in 2008 and later were not relevant to the duty of care as he had defined it:
“15.31  ... [T]he Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an appropriate assessment to be carried out long after it had become clear, by reason of the position adopted by the Commission, that there was, to put it at its mildest, a significant doubt as to whether the Minister’s position was correct.
... 15.33  ... [I]t seems to me that the duty of care which I suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the undoubted over-arching public duty which the Minister was obliged to perform. Against what can it be said that the Minister was balancing when he decided not to assemble the necessary scientific information and data (despite the Commission’s reasoned opinion) prior to the decision of the ECJ? What over-arching public duty would have been in any way impaired by the collection of such data? There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy, discretion or adjudication.”
53.  Finally, he did not agree with the majority that the applicant company’s business would have been interrupted in any event if the Habitats Directive had been correctly implemented at an earlier point in time. According to Clarke J, the evidence accepted by the High Court was that the necessary data could have been collected and analysed in a relatively short period of time, avoiding any interruption of the applicant company’s usual activities. There was thus a causal link between the failure to assemble the relevant data and conduct the assessment at an earlier point in time, and the interruption of the applicant company’s activities in 2008.
54.  In relation to damages, Clarke J noted that there were many points of disagreement between the applicant company and the State over the manner in which the former’s losses should be properly assessed. He considered that the difficulties with the evidence and the figures would have made it impossible for the Supreme Court to conduct a fair and just calculation. Had the State’s appeal been rejected, the proper course would have been to remit the question of damages to the High Court for reassessment.