Fisherman loses appeal over alleged false statements by ministry
A fisherman lost his appeal following the rejection of his claim, he was entitled to compensation for the losses.
Kevin Kielthy said he had to give up fishing due to an alleged misrepresentation by a department about his vessel’s reassignment and how the vessel’s registration was handled. He bought the MFV Morgensonne in the early 2000s from his partners and operated out of Kilmore Quay in County Wexford.
He claimed that the Minister of Agriculture, Fisheries and Food had been negligent due to a failure to issue a precise registration certificate between 2000 and 2005. in relation to obtaining license, he lost money because of the reallocation 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 connection with his request for the decommissioning of his vessel under the aid scheme. decommissioning of ships. The objective of this government program was to reduce the size of the fishing fleet and to offer compensation to certain vessels being dismantled.
The court heard that Mr Kielthy, along with his partners, submitted incorrect engine details when purchasing the vessel, unaware that the previous owner had installed the new, more powerful engine a few years earlier. He sought to have the recording 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.
The three-judge Court of Appeal (CoA) on Friday dismissed the appeal.
Madam Justice Úna Ní Raifeartaigh, for the CoA, said that the High Court’s main finding of fact, reduced to the essentials, was that since Mr. Kielthy did not fish from 2000 to 2005 , it had nothing to do with the incorrect details of the engine in his registration certificate.
It also had nothing to do with her fear of being apprehended / arrested by the Navy on the basis of this certificate and the High Court judge called this fear “fanciful,” she said.
The High Court, she said, was correct in concluding on the evidence of Mr. Kielthy’s “multiplicity of explanations” over time. The development of her case created deep unease over the reliability of her evidence, she said.
For example, she said, one of her explanations for her inability to fish was that the vessel had been converted for the purpose of dumping fish offal at sea.
However, it was clear that he had been fishing between 2000 and 2005 and that all he had done to reassign the vessel was to equip it with “cradles”. This made fishing heavier, but not impossible, she said.
He asserted in evidence that he had not fished during this period when the logbooks showed that he had done so “on which he asserted in evidence that he rejected what he had caught” , said the judge.
It seemed inconceivable to the judge that he had not complained regularly and vehemently about his inability to fish due to an incorrect number on his entry. “The absence of such a contemporary complaint is very telling,” she said.
He failed to persuade the court to overturn the High Court’s key factual finding that his inability to fish had nothing to do with a clerical error during his registration, she said .
Immersion at sea
Regarding the issue of dumping at sea and its expectation of obtaining a permit for it, the court heard that it was not possible for the ministry to issue such a permit when it became evident that ‘such activity was prohibited by the EU.
Judge Ní Raifeartaigh said when it became clear that the dumping at sea would violate EU law, it was simply not possible for the state to meet the expectations it had.
In any event, the judge considered that the claim based on legitimate expectation would fail for other reasons, including that Mr. Kielthy had not established with the required standard of proof that he had incurred significant expenses. to re-equip their boat for submersion at sea.