In the matter of an application by Patrick Wylie for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Weatherup J |
| Judgment Date | 19 January 2005 |
| Neutral Citation | [2005] NIQb 2 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 19 January 2005 |
| Year | 2005 |
1
Neutral Citation no. [2005] NIQB 2
Ref:
WEAC5168
Judgment: approved by the Court for handing down
Delivered:
19/01/2005
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY PATRICK WYLIE
FOR JUDICIAL REVIEW
WEATHERUP J
Eel fishing on Lough Neagh.
[1] This is an application for Judicial Review of decisions of Lough Neagh
Fishermen’s Co-operative Society Limited dated 17 April 2003 and 24 June
2003 refusing the applicant a boat owner’s licence to fish for eels on Lough
Neagh.
[2] The respondent was registered as a friendly society on 24 May 1966
and owns the rights to eel fishing on Lough Neagh and the River Bann. The
Rules of the respondent were revised in October 1995 and the objects of the
Society include the increase in prosperity of fishermen by co-operative action
in all kinds of fishery activity and fish marketing and distribution and the
improvement and development of the fishing industry in general and Lough
Neagh in particular.
[3] In Toome Eel Fishery (NI) Limited v Cardwell and Others [1966] NI 1
the Court of Appeal accepted the claim of Toome Eel Fishery (NI) Limited to
the exclusive right to fish for eels in Lough Neagh with their title founded on
a Crown grant made in 1661, a title which had been accepted by the House of
Lords in Johnston v O’Neill [1911] AC 552. The defendants in the 1966 action
were four fishermen and a London company which purchased eels. An
injunction was granted restraining the defendants from interfering with the
plaintiff’s rights. Having failed in their legal challenge in 1966 the fishermen
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then arranged to purchase the eel fishing rights and this exercise was
completed in 1972.
[4] The applicant has commercially fished the waters of Lough Neagh for
eels and other fresh-water fish for 47 years. He has been employed as a boat-
helper by his brother Charles who held a boat-owner’s licence. The applicant
has been a member of the Lough Neagh Fishermen’s Association since 1958.
The Association is registered as a Trade Union. The applicant is also a
member of the respondent Society, having purchased 1200 shares in 1972 of
which 600 were registered in his own name and the remainder divided
equally between his wife and son.
The refusal of a boat owner’s licence.
[5] Because of difficulties between the applicant and this brother Charles
the applicant was not nominated as boat-helper to his brother in 2000. The
applicant then applied to the respondent for a boat-owner’s licence and was
refused in 2000 and again in 2001 and 2002. This application for Judicial
Review concerns the applicant’s application for a boat-owner’s licence in
2003. His application was received by the respondent on 25 February 2003.
He received notice of refusal in writing from the respondent on 17 April 2003
in the following terms -
“A licensing panel was constituted to consider all
applications received. In considering all applications
from persons who did not hold a boat-owner’s licence
in recent years the panel applied the agreed criteria.
It was not possible to accommodate all the
applications received from persons who did not hold
a boat-owner’s licence in recent years within the
agreed ceiling. It is unfortunately necessary in the
interests of conservation and for other reasons to
restrict the number of boat-owner’s licences issued
each season.”
[6] The applicant’s solicitor gave notice of appeal against the refusal of the
boat-owner’s licence and by letter dated 24 June 2003 from the respondent the
applicant was notified that his appeal had not been successful.
Public law.
[7] Judicial Review is the province of public law issues and not private
disputes involving no element of public law. The respondent contends that
the issue of boat-owners licences for eel fishing on Lough Neagh is a private
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Mullholland’s (David) Application
...that the licensing system for eel fishing in Lough Neagh is a matter of public law.” 39. This decision was followed in Re Wylie [2005] NIQB 2 by Weatherup J [see paras 7-21]. He pointed out that the Court of Appeal has endorsed Kerr J's general approach [in Mcbride ] to the subject of publi......