Farming & Food

Fisherman loses appeal over alleged misrepresentations from Department

Kevin Kielthy said he had to give up fishing

The three-judge Court of Appeal dismissed the appeal on Friday. Photograph: iStock

Fri Oct 22 2021 - 16:50

A fisherman has lost his appeal over the rejection of his claim he was entitled to compensation for losses.

Kevin Kielthy said he had to give up fishing due to alleged misrepresentation from a Government department about repurposing his vessel and over how the registration of the vessel was dealt with. He bought the MFV Morgensonne in the early 2000s from his partners and operated from Kilmore Quay in Co Wexford.

He claimed the Minister for Agriculture, Fisheries and Food, was negligent by reason of a failure to issue an accurate certificate of registration between 2000 and 2005. He said as a result of negligent misrepresentation, and/or breach of the principle of legitimate expectation in relation to obtaining permits, he lost money over the repurposing of his vessel from fishing to dumping fish offal at sea on behalf of processors.

He claimed damages for loss of earnings from July 2002 to July 2005, which amounted to €257,000 and €250,000 in relation to his application to decommission his vessel under the decommissioning of vessels grant scheme. The purpose of that government scheme was to reduce the size of the fishing fleet and to offer compensation to certain vessels being decommissioned.

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Incorrect details

The court heard Mr Kielthy had, with his partners, submitted incorrect engine details upon purchase of the vessel, not knowing the previous owner had installed the new more powerful engine some years before. He sought to get the registration corrected and it was not until 2005 that this was done, he said.

In February 2019, the High Court rejected his claim and he appealed.

On Friday, the three-judge Court of Appeal (CoA) dismissed the appeal.

Ms Justice Úna Ní­ Raifeartaigh, on behalf of the CoA, said the High Court’s key finding of fact, stripped to its essentials, was that insofar as Mr Kielthy failed to fish from 2000 to 2005, this had nothing to do with the incorrect engine details in his registration certificate.

It also had nothing to do with his fear of apprehension/arrest by the Navy based on that certificate and the High Court judge had described this fear as “fanciful”, she said.

The High Court, she said, was correct in finding on the evidence of Mr Kielthy’s “multiplicity of explanations” offered over time. The evolution of his case created a deep sense of unease about the reliability of his evidence, she said.

For example, she said, one of his explanations for his failure to fish was because the vessel had been converted for the purpose of dumping fish offal at sea.

However, it was clear he did engage in fishing between 2000 and 2005 and that all he had done in repurposing the vessel was to fit it with “cradles”. This made fishing more cumbersome, but not impossible, she said.

He claimed in evidence he did not fish during that period whereas the log books showed he did “whereupon he claimed in evidence that he discarded what he caught”, the judge said.

It seemed to the judge inconceivable that he would not have been regularly and vociferously complaining about his inability to fish due to an incorrect figure on his registration. “The absence of such contemporaneous complaint is very telling,” she said.

He fell far short of persuading the court to set aside the High Court’s key factual conclusion that his failure to fish had nothing to do with a clerical error on his registration, she said.

Dumping at sea

In relation to the dumping at sea issue and his expectation of getting a permit for that, the court heard it was not possible for the Department to issue such a permit when became apparent that such activity was banned by the EU.

Ms Justice Ní­ Raifeartaigh said when it became apparent dumping at sea would be in breach of EU law it was simply not possible for the State to make good on the expectation he had.

In any event, the judge was of the view the claim under legitimate expectation would fail for other reasons, including that Mr Kielthy failed to establish to the requisite standard of proof that he had incurred significant expenditure in refitting his boat for sea dumping.

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