John Henry Loose v Lynn Shellfish Ltd and Others (Defendants/Part 20) Michael George Le Strange Meakin (Claimants Part 20 Defendant)
Jurisdiction | England & Wales |
Judge | Sir William Blackburne |
Judgment Date | 18 April 2013 |
Neutral Citation | [2013] EWHC 901 (Ch) |
Court | Chancery Division |
Docket Number | Case No: HC0702289 |
Date | 18 April 2013 |
[2013] EWHC 901 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir William Blackburne
Case No: HC0702289
and
Michael Davey (instructed by Parkinson Wright LLP) for the Claimant
Guy Fetherstonhaugh QC and Philip Sissons (instructed by Andrew Jackson Solicitors) for the Defendants/Part 20 Claimants
Jennifer Meech (instructed by Charles Russell LLP) for the Part 20 Defendant
Hearing dates: 13, 14, 15, 16, 19 and 20 November 2012
Introduction
These proceedings are concerned with a private fishery on the eastern side of the Wash. The question is whether the defendants infringed the claimant's fishery rights when fishing in the area between July and September 2007. This involves a consideration of the seaward extent of the fishery and precisely where the defendants were, and what they were doing, when the actions complained of took place. The proceedings also raise several questions of law of a fairly arcane nature concerned with the consequences in law of alterations to the foreshore as a result of natural forces (wind and tide and the effects of siltation) and in particular with their effect on a long held fishery, and also with the general approach to determining the seaward limit of a private fishery.
In order to aid an understanding of the issues a chart is appended to this judgment showing features, in particular channels and sandbanks, which have a role in this dispute. The chart (with north at the top of the page) was prepared by the defendants for the purposes of these proceedings.
A private or, as it is referred to in the authorities, "several" fishery (the expression "several" can sound confusing to the modern ear) is an exclusive right to fish in tidal waters, including the foreshore area when covered by tidal waters. The right includes a liberty to cross the foreshore to exercise the right in cases where ownership of the foreshore is in a third party. (See Anderson v Alnwick District Council [1993] 1 WLR 1156 at 1166; and Crown Estates Commissioners v Roberts [2008] EWHC 1302 (Ch); [2008] 4 All ER 828 at [115]) The private fishery displaces what would otherwise be the right of the general public to fish in the waters in question. In De Jures Maris Lord Hale stated that "…the common people of England have regularly a liberty of fishing in the sea or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty." The private fishery therefore carries with it the right to exclude the public from exercising any public right of fishery within its area.
But private fisheries are rare animals. In origin, as the passage from Hale relates, they derived from grants by the Crown. Because they displaced the public fisheries in the areas in question their creation came to be regarded as a usurpation of the public right. They became a matter of contention. It has long been taken to be the case, and was common ground before me, that Magna Carta in 1215 prohibited the Crown from making any such further grants. But that charter left unaffected all private fisheries granted no later than the reign of Henry II who died in 1189. More recent jurisprudence enables the existence of a private fishery to be established by resort to the doctrine of prescription on the basis of long user. This is reflected in the general approach to proof of a private fishery in tidal waters stated by Willes J, giving the advice of the judges, in Malcolmson v O'Dea (1863) 10 H.L. Cas. 618:
"The soil of 'navigable tidal rivers,' … so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from such prima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II.
If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory. "
The private fishery in issue in these proceedings was established in this manner as I shall later relate.
What species of fish does a private fishery embrace? Authority, which I do not need to recite, supports the proposition that shellfish resting on or buried in the soil of the waters in question are to be treated in the same way as floating fish and are thus within the scope of the fishery in question. This approach has been adopted in the relevant legislation. These proceedings are concerned with shellfish, in particular cockles which are a valuable commodity.
The private fishery in this case is owned by the Part 20 defendant, Michael Le Strange Meakin. Members of the Le Strange family have been Lords of the Manor of Snettisham, Heacham, Hunstanton and Ringstead with Holme and Lord of the Hundred of Smithdon over very many generations. It was in that capacity — it is not necessary to distinguish between the various lordships — that they established a prescriptive right to the fishery. The estate, in the person of the Part 20 defendant, was represented before me by Jennifer Meech. Apart from the private fishery, the estate (as I shall refer to the relevant interests in the area which belong to the Le Strange family) owns a portion of the foreshore and other items of property on the eastern side of the Wash towards Hunstanton in the north and towards Kings Lynn in the south. The existence, as well as the physical extent, of the private fishery was at one stage in issue in these proceedings so that the estate was a necessary party to enable these matters to be decided. In the event, the fishery's existence and its ownership by the estate have since been conceded but the seaward limit of its physical extent has remained in issue. In the interests of keeping the costs down the estate has allowed the claimant to make the running on these matters and has been content therefore to adopt the position asserted by the claimant as regards the extent of the fishery.
The defendants now accept, although at one stage this too was in issue, that the private fishery is leased to the claimant, John Henry Loose ("Mr Loose"). He originally held the fishery on the terms of a lease dated 25 November 1965 granted to him by Hamon Le Strange. That lease was for seven years calculated from 6 April 1961. A further lease was granted to him by Mr Le Strange on 22 July 1970, this time for a term of three years from 6 April 1969. It therefore expired by effluxion of time in April 1972. No steps were then or have since been taken to renew the lease or grant another but it is common ground that Mr Loose holds over on the terms set out in it. The fishery was previously leased to Mr Loose's grandfather, William Henry Loose, in 1935, initially for one year and subsequently for three years, and before that to others. Quite a number of the earlier leases stretching back to 1857 were in evidence. I was taken to them to see the varying ways in which, over the years, the private fishery was described. The significance of doing so was to shed light on the perception from time to time of the estate as to the extent of the fishery which it was content to let to others. I see no point in rehearsing these matters. The significant thing is that the existence and, subject to the arguments now advanced on behalf of the defendants, the extent of the fishery are now established by Court of Appeal authority which, if not strictly binding on the defendants, is for all practical purposes conclusive on the matter and which I come to in due course. Mr Loose was represented before me by Michael Davey.
The defendants, who were represented before me by Guy Fetherstonhaugh QC and Philip Sissons, are owners of fishing vessels which Mr Loose claims wrongly fished in the private fishery for cockles between July and September 2007. The defendants deny that they did and, in any event, deny that they landed the quantities of cockles which Mr Loose asserts. They also deny that the cockles had the value per tonne which Mr Loose attributes to the quantities, whatever they might turn out to be, which they landed.
The issues for decision are, in the event, as follows. (1) What is the physical extent of the private fishery? (2) Did the defendants trespass upon the fishery (by fishing for cockles within it) between July and September 2007? (3) If they did, what is the extent of the damage thereby suffered by Mr Loose? (4) If, by contrast, any of the defendants did not trespass as alleged, what is the damage which they suffered as a result of an undertaking in damages given by them to Mr Loose on 20 September 2007?
Each of those issues requires a little more explanation at this stage. Issue (1) is concerned not with the northern and southern boundaries of the fishery, namely the boundaries from the land out to sea at...
To continue reading
Request your trial-
Loose v Lynn Shellfish Ltd
...it nonetheless extended to previously separated sandbanks as they joined to the foreshore, pursuant to the doctrine of accretion — [2013] EWHC 901 (Ch). 28 On the appellants' appeal and the respondents' cross-appeal, the Court of Appeal held, for reasons given in a clear judgment by Moore-......