The Court of Appeal has dismissed Kevin Kielthy’s appeal against a High Court judgment requiring him to pay Wexford County Council €16,352.81 in laid-up harbour charges for his fishing vessel, the Morgensonne.
The council provides harbour services at Kilmore Quay, County Wexford. The vessel was laid up there for about four years between 2006 and 2009 while Kielthy pursued a decommissioning grant. Under the Kilmore Quay Harbour Bye-Laws 2004, laid-up fees initially stood at €0.63 per metre per day. County Manager orders raised the rate to €0.70 in 2006, €1 in January 2007 and €5 in July 2007.
The council invoiced a total of €106,339.85. In the High Court, Kielthy did not dispute that he owed harbour charges or challenge the validity of the bye-laws. He argued that the increases were unlawful and that he had been treated unfairly compared with other boat owners. The High Court found the County Manager lacked power to increase the rates, treated the changes as amendments requiring the Council’s reserved function, and calculated the amount due using the original €0.63 rate. It awarded €16,353.81, together with costs on the Circuit Court scale and a certificate for senior counsel.
On appeal, Kielthy argued that the council had not claimed or pleaded the lesser sum awarded, and that its claim should therefore have been dismissed. The Court of Appeal noted that this argument had not been made in the High Court and conflicted with his position there: he had accepted liability for the original bye-law charges and sought to pay at the old rates. In related proceedings against the Minister for Agriculture, Fisheries and Food, he had also included the harbour charges in his claimed damages.
Justice Noonan rejected the new argument and the contention that the High Court had decided the claim on a quantum meruit basis. He said the High Court had calculated the charges solely under the original bye-law rate. The court dismissed the appeal, finding the trial judge’s conclusions correct.
The court’s provisional view was that the council should receive its appeal costs. Kielthy was given 14 days from the judgment date to notify the Court of Appeal Office if he wished to seek a different costs order; a short further hearing could then be arranged. The judgment was delivered electronically on 22 October 2021.