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Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578

The Court of Appeal has given judgment in Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2020] EWCA Civ 578, in which Nathan Wells appeared for the successful Appellant/Defendant.

The case arose from a sale by receivers of a commercial fishery in Lancashire which belonged to the Respondent (BDSL). The fishery included nine gravel lakes, in which stocks of coarse fish were kept for angling. The sale documentation did not make express reference to the fish stocks and, following sale of the land, BDSL claimed that it retained ‘ownership’ of the fish. It subsequently brought a £1 million conversion claim against the purchaser of the fishery (the Appellant, CWFL). BDSL was successful at the liability trial, and CWFL appealed.

The case required the Court of Appeal to analyse the nature and extent of the proprietary rights in the live fish. The Court noted that the point before it had never had to be decided in a reported case, and the judgments include a detailed consideration of authorities from England, Ireland, Canada and the US, principles of Roman Law and the commentaries of Bracton, Grotius and Blackstone.

The Court of Appeal began by recognising and reaffirming the established legal classification of animals as either wild (ferae naturae) or domestic (domitae naturae). The Court held, as the Divisional Court had held in Buckle v Holmes (1925) 134 LT 284, that it was not open to the Court to interfere with this long-established legal classification. Fish are, as a matter of law, animals ferae naturae. They cannot therefore be the subject of absolute ownership while they are alive, but they can be the subject of qualified property rights.

In the instant case, the relevant qualified property rights were rights per industriam (the right of the person who takes and keeps possession of an animal ferae naturae) and rights ratione soli (the exclusive right of the freehold owner of land to hunt, take, keep and kill animals ferae naturae while they are on his land).

The Court of Appeal held that, whether BDSL’s rights in the fish were properly to be regarded as rights per industriam or rights ratione soli, the rights were lost when BDSL’s land was sold. Rights per industriam depend for their acquisition and retention on possession of the relevant animals. When the land was sold, BDSL lost the right to enter the land and to do anything with or in respect of the fish (as confirmed by the Court of Appeal in Kearry v Pattinson [1939] 1 KB 471) – it therefore lost possession of the fish and, with it, any qualified property rights per industriam. Rights ratione soli are rights inhering in the land (unless they have been severed and granted to a third party as a profit à prendre) and in the present case they passed automatically to CWFL on its purchase of the land. The result was that, following the sale of the land to CWFL, BDSL ceased to have any proprietary rights in the fish stocks and their claim in conversion was therefore dismissed.

At the earlier trial (reported at [2020] 1 WLR 559), BDSL had also sought damages for the alleged conversion of certain solar panel units which had been on the land at the time of sale. The Judge, holding that the units had to be assessed as a composite whole (applying Sheffield and South Yorkshire Permanent Benefit BS v Harrison (1884) 15 QBD 358), concluded that they were fixtures and that title to the units had therefore passed automatically to CWFL with the land. There had, consequently, been no conversion of the solar panel units. The decision was not challenged on appeal.

Nathan was instructed by Mr David Bushell of Brown Turner Ross.