The Supreme Court dismissed an appeal by two Lough Swilly fishermen who sought to challenge an injunction and damages award arising from the removal of oysters from a licensed cultivation area. The Court held that the statutory argument they advanced was misconceived and refused to extend the time for appealing the original order.
The dispute concerned licences granted in 1994 to Lough Swilly Shellfish Growers Co-Operative Society Ltd. for oyster and mussel cultivation near Inch Island, County Donegal. The licences expired in October 2004, but an application to renew the aquaculture licence remained undecided. A provision inserted into the Fisheries (Amendment) Act 1997 by the Sea Fisheries and Maritime Jurisdiction Act 2006 allowed a licensee awaiting a renewal decision to continue aquaculture.
The fishermen, Danny Bradley and Robert Ivers, began entering the licensed area and removing oysters around September 2006. They argued, among other things, that the expired licence did not give the plaintiffs continuing rights because the inserted renewal provision had not itself been commenced by a separate order under the 1997 Act.
In 2009, the High Court found trespass, awarded the plaintiffs €25,000 in damages and made an order restraining entry to the specified area. It later dismissed the defendants’ constitutional challenge to the legislation. Neither order was appealed within the applicable time. After the defendants pursued a motion to amend the earlier order, they appealed in 2011 and sought additional time to challenge the damages and other decisions.
Giving the Supreme Court’s judgment on 13 March 2013, O’Donnell J. concluded that no separate commencement order was needed for the inserted provision. Section 101 of the 2006 Act came into force on enactment and its purpose was to bring the new section into operation; it did not leave that provision awaiting a further commencement step.
The Court also held that seeking to speak to the minutes of the earlier order did not provide a route around the time limits for appealing it. The defendants could not meet the criteria for an extension of time. Although the judgment discussed the Court’s approach to new legal grounds raised for the first time on appeal, it did not decide whether such a ground could be permitted in this case: the appeal was dismissed because time was not extended and the statutory point failed.