Nigel Maurice Johnston V. The Scottish Ministers

JurisdictionScotland
CourtCourt of Session
JudgeLady Dorrian
Neutral Citation[2005] CSOH 68
Published date27 May 2005
Docket NumberA403/03
Date27 May 2005

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 68

A403/03

OPINION OF LADY DORRIAN

in the cause

NIGEL MAURICE JOHNSTON

Pursuer;

against

SCOTTISH MINISTERS

Defenders:

________________

Pursuer: A O'Neill, Q.C., Balfour & Manson

Defenders: Dunlop, Q.C., Solicitor to the Scottish Executive

27 May 2005

Introduction

[1]The Inshore Fishing (Prohibition of Carriage of Monofilament Gill Nets) Order 1986 provided by article 3 that "the carriage of monfilament gill nets for any purpose in a British fishing boat in the specified sea area is prohibited". By virtue of the definition of "specified sea area" the prohibition applied, in effect, anywhere within 6 miles of the coast of Scotland. The order took effect from 31 March 1986. The order was passed following concerns that such nets were being used for salmon poaching in Scottish inshore waters, the salmon having to pass through such waters to reach their spawning grounds. The order was made under section 2 of the Inshore Fishing (Scotland) Act 1984 and Regulation 19.3 of Council Regulation 171/83, the agreement in advance of the European Commission having been obtained as required by Article 19.3 of the Regulation. The Regulation lays down technical measures for the conservation of fishery resources in community waters. Article19.2 of the Regulation authorises member states to lay down any strictly local conditions or detailed arrangements, applying to their national fishermen only, designed to limit catches by technical measures, provided that such measures are compatible with community law and the common fisheries policy. Article 19.3 requires member states to obtain the agreement of the Commission before adopting any measure under Article 19.2.

[2]The order had been passed in the face of opposition from sections of the Scottish fishing industry interested in the use of such nets for legitimate purposes. Amongst representations made by the Highland and Islands Fisherman's Association and the Scottish Fishermen's Federation was the contention that the proposed ban was disproportionate to the mischief it sought to address and would have a discriminatory effect on Scottish fisherman, the ban not applying to other Europeans fishing in Scottish waters. In 1995 the Mallaig and North West Fishermen's Association sought to challenge the order by Judicial Review. At that time a consultation process was embarked upon by the Secretary of State for Scotland which led to the revocation of the 1986 Order by the Inshore Fishing (Monofilament Gill Nets) (Scotland) Order 1996 which replaced the blanket ban with a prohibition on the carrying of monofilament nets with a mesh size of less than 250 mm. The Judicial Review did not proceed.

[3]Between 1986 and 1991 the pursuer continued to carry monofilament gill nets within Scottish waters, the nets carried by him having a mesh size of some ten and a half inches. This would not have been in breach of the 1996 Order but was in breach of the 1986 Order, under which he was prosecuted. The pursuer went to trial at Fort William Sheriff Court where he was acquitted by the Sheriff on the basis (1) that the order was ultra vires for lack of appropriate consultation before its passing; and (2) that his nets fell outwith the order since they were used to catch flat fish other than by trapping them by the gills. The Procurator Fiscal appealed and the High Court concluded (1) that the order was not ultra vires and (2) that the nets in question fell within the definition of monofilament nets for the purposes of the order. The pursuer claims that as a result of being subject to the prohibition in the 1986 order he sustained certain losses commencing from July 1986 when his nets were confiscated. He maintains that the losses continued after the nets were returned to him because he was forced, as a result of the order, to leave them unattended in Ireland while returning to Mallaig to land his catch. The details of the losses he avers can be found in Article 9 of condescendence. He seeks to recover these losses from the defender on the basis that the 1986 Order was in breach of community law and this breach led directly to the losses sustained by him.

The Pleadings

[4]The basis of the alleged illegality is set out in Article 6 of condescendence, specifically at page 15B which narrates: "Accordingly, the 1986 Order made by the defender was made in breach of EU law and more particularly in breach of the general principles of Community law recognising the pursuer's fundamental right to property and to peaceful enjoyment of possessions and his freedom to pursue his chosen trade or business, in respect that it was arbitrary, lacking in sufficient justification, not based upon objective criteria and hence was disproportionate." That the basis of the claim is an alleged fundamental illegality is also apparent from Article 7 at page 16 which states "the said Order was made in breach of EU law in respect that it discriminated, without justification, against fishermen based in Scottish ports, such as the pursuer, compared with fishermen from the United Kingdom and other countries in the EU. It also discriminated without justification, against British fishermen as compared with fishermen from other countries in the European Union. Further, in making the 1986 Order in breach of EU law, the defender unlawfully interfered with the right of fishermen in Scotland, including the pursuer, to the free exercise of their professional activity."

[5]Thus far it will be seen that the wrong complained of by the pursuer, and in consequence of which he claims to have sustained loss, consisted in the allegedly unlawful passing of the 1986 order. This accords with the first two pleas in law for the pursuer which read as follows:

"1. The 1986 Order made by the defender having been made in breach of EU law in respect that it unlawfully discriminated against inter alia the pursuer, and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor.

2. The 1986 Order made by the defender having been made in breach of EU law in respect that it was a disproportionate measure and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor."

However, in Article 8 of condescendence the pursuer avers that representations were made "in extensive correspondence and in meetings" to persuade the defender to reconsider and either amend the 1986 Order or withdraw it. He goes on to aver that "The defender did not properly review the 1986 Order in the light of the said representations until late 1995. Accordingly, he failed in his duty to keep the measure under proper review and hence further breached EU law." Article 8 avers that there was no good reason why the 1986 Order was not, like the 1996 Order, restricted to nets of a certain mesh size and that "No good reason exists as to why the defender wholly failed, in the period between 1986 and late 1995, to review the 1986 Order and to make the alteration subsequently made by the 1996 Order." It avers that the defender's original justification for the 1986 order was to prevent salmon poaching and avers "No explanation was put forward in the Explanatory Note as to the reasons for the revocation of the 1986 prohibition on the carriage of monofilament gill nets on Scottish waters." A plea in law relating to this article appears as the third plea in law as follows:

"3. The defender having breached EU law in respect that in the period from 1985 until 1995 he failed properly to review the need for the 1986 Order, and the pursuer having suffered loss thereby, the pursuer is entitled to reparation therefor."

The Arguments

[6]The case came before me on the procedure roll on the defenders' preliminary pleas. In addition to a general plea to relevancy and competency the defenders have pleas in respect of time bar and waiver. The parties had indicated that two days would be required for determination of the issues between them but by the time the case called before me only a day and a half of court time remained. Counsel for the parties accordingly reached agreement that only one part of the main arguments would proceed before me, being a discrete point which would be unaffected by the remaining issues. This was the time bar point which is raised in the second plea in law. There was also what counsel for the defenders described as a consequent relevancy and specification point, in relation to the pursuer's pleadings in article 8 and his third plea in law. Arguments in relation to waiver, the effect of Walkingshaw v Marshall 1992 SLT 1167 and any other matters would be left for another day if necessary. The central question which I required to address was thus: on the assumption that the pursuer otherwise has a valid claim, is it defeated by the operation of prescription?

Prescription

[7]Parties were in agreement that the present action, as an action of damages, is one to which sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973 applies. The pursuer avers that he first suffered loss in 1986. This action was not raised until September or October 1995. The defenders' primary argument was therefore that any right to damages arising from the making of the order had prescribed by that time. The critical issue between the parties related to the determination of the "appropriate date" for the purposes of sections 6(1) and (3) of the 1973 Act, i.e. when did the obligation become enforceable?

[8]For the defenders it was maintained that this question fell to be determined by reference to section 11(1) of the 1973 Act...

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