Paul Barlow, Michael Crowley, Gerard Kelly and a group of shellfish companies have been granted leave by the Supreme Court to appeal directly from the High Court, in a determination delivered on 26 February 2015. The Supreme Court will now hear their appeal against the Minister for Agriculture, Food and the Marine and others.
The other plaintiffs are Woodstown Bay Shellfish Ltd, Riverbank Mussels Limited, Fresco Seafoods Limited, Tardrum Fisheries Limited and Halcome Merchants (Ireland) Limited. Such a direct appeal is known as a "leapfrog" appeal, because it bypasses the Court of Appeal. The court said this was the first occasion on which it had considered whether to grant leapfrog leave.
Under Article 34.5.4 of the Constitution, the Supreme Court may hear an appeal directly from the High Court only where there are exceptional circumstances and the case involves a matter of general public importance or the interests of justice. The court directed an oral hearing, and the respondents took a neutral stance.
The plaintiffs said the case turned on a small number of mainly legal questions of public importance. These were whether mussel seed is a natural resource within the meaning of Article 10 of the Constitution, what the so-called voisinage agreement means for United Kingdom vessels fishing in Irish waters, whether that agreement can be decided on by the courts, the effect of European Union and international law, and the interpretation of the Sea-Fisheries and Maritime Jurisdiction Act 2006. They also argued the dispute was urgent because of its ongoing effect on the mussel industry.
The Supreme Court was not convinced that the case would stay the same if it went first to the Court of Appeal. It was satisfied, however, that the case raises an important issue about the regulation of fishing in Irish waters, particularly whether mussel seed is a natural resource for constitutional purposes. It found the other issues were sufficiently linked to those core questions.
The court did not accept the matter was as urgent as argued, but found some reasonable degree of urgency. Weighing the limited advantage of a first appeal against the cost of two appeals, and given the transitional phase after the 33rd Amendment, it regarded the case as exceptional and granted leave on the grounds sought.