The Supreme Court in Bates v Minister for Agriculture Fisheries and Ors [2018] IESC 5 has upheld a High Court decision finding the Minister for Agriculture, Ireland, and the Attorney General liable for damages for negligent advice given to commercial fishermen. The damages were to compensate the fishermen for economic loss caused by the negligent advice given to them by the Department of Agriculture (the "Department") which resulted in their arrest and a fine for engaging in commercial scallop fishing in the Bay of Biscay.

In 2000 and 2002, the Department granted two licences to the Plaintiff commercial fishermen to fish for scallops in certain areas of European Union waters. The fishermen, over a number of days between September 2002 and August 2003, fished for scallops in an area of the Bay of Biscay known legally as "area VIIIa". On 18 August 2003, a French fishery patrol aircraft made contact with the fishermen and informed them that they were fishing illegally for scallops in that area.

Phone call to Department of Agriculture

The fishermen left the area, but made contact with the Department to query whether it was lawful for them to fish in area VIIIa. By phone, and subsequently by fax, the Department confirmed that the fishermen were entitled to fish legally in area VIIIa and so they continued to do so.

On 19 August 2003, the Maritime Nationale arrested the fishermen's two boats in area VIIIa. The fishermen were required to lodge bonds of €27,000 to release their vessels. Fines, civil charges and costs of €67,500 were levied on the fishermen. The fishermen also suffered economic loss due to lost fishing days as a result of the arrest.

The Department was in fact mistaken in the advice it gave to the fishermen. The mistake arose due to the reliance of the Department on an English translation of a defective version of the relevant Council Regulation

Duty of Care Owed Because of Special Knowledge and Expertise

In the High Court, Ms Justice Laffoy found that a duty of care was owed by the State to the fishermen and that the Department had negligently given out information which resulted in a loss to the fishermen. Rejecting the fishermen's claim that earlier advice (pre-19 August 2003) had also caused economic loss, Ms Justice Laffoy awarded only the damages immediately consequent upon the advice given by the Department on 19 August 2013, the sum paid to the French Courts and the immediate loss of fishing days.

In upholding this decision, the Supreme Court commented that the duty of care arose from the fact that the fishermen held licences from the Department and were relying on the "special knowledge and expertise of the officials of the department". The duty of care required the officials, when furnishing information sought by the fishermen, to conform to a standard which would not expose the fishermen to unreasonable risks. It was found that "some official" in the Department of Agriculture had been negligent in failing to ensure that the version of the relevant Council Regulation available to be consulted by officials correctly reflected the Council Regulation as implemented. The Supreme Court noted that there are a number of instances in which the Courts will not impose a duty of care on State organs. In this case however, the Department had voluntarily assumed responsibility to provide accurate information in circumstances where it was likely that the fishermen would rely on it. The Court noted that when the information was sought, the fishermen were in a situation of peril, that of imminent arrest.

In appealing the decision of the High Court, the State sought to rely upon a "floodgates" argument. The State argued that if the High Court decision was allowed to stand, any Department of State could be held liable in negligence for its casual conversations with members of the public.

This case highlights the fact that although the Courts will be slow to impose a duty of care on State departments, they will do so in certain situations and allow plaintiffs to recover damages as a result.