Legal scholar from AD 161 settles fishy legal dispute

Merseyside law firm, Brown Turner Ross, has won a High Court appeal in a row over who owned the fish in a lake – and a man who lived more than 1,800 years ago provided the answer. Tony McDonough reports

carp, fish
A court battle ensued over who owned the carp in a Lancashire lake

 

A legal scholar who lived more than 1,800 years ago provided the crucial argument that settled a very fishy legal dispute.

Merseyside law firm, Brown Turner Ross, has won a High Court appeal after a row erupted over who owned fish in a lake in Lancashire. Borwick Lakes, near Carnforth, became the centre of a dispute between the site’s current owners, Clear Water Fisheries (CWF), and the site’s former owners, Borwick Development Solutions (BDS).

BDS who claimed ownership of more than £1m worth of carp and other fish currently living in the lakes. Representing CWF, Brown Turner Ross argued that the former owners no longer held any right to the fish in the land and lakes, which had been formed in holes left following the construction of the nearby M6 motorway.

However, solicitors for BDS attempted to sue the new owners, for £1.2m, stating it should not operate a business using fish stocks they said, still belonged to their client. A hearing at the High Court in 2019 ruled in favour of BDS.

However, the Court of Appeal has ruled this week that the company did not own the fish once the land had been sold, quoting an argument from Second Commentary, written in AD 161 by Roman legal scholar, Gaius.

He said: “Wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power.”

David Bushell, consultant solicitor at Brown Turner Ross, which has offices in Liverpool and Southport, said: “When a business falls into difficult times and is in the hands of a receiver, the transaction to purchase the land will include, in this case, fish, but may include other animals classed as wild that inhabit that land unless otherwise arranged.

David Bushall
David Bushell, consultant solicitor at Brown Turner Ross

 

“My client bought the land complete with the fish and we are happy that the court has now ruled in this matter. Anyone in a similar position should seek expert legal advice. It is of particular importance to commercial fisheries.”

Passing judgement, Sir Timothy Lloyd said that once the fish had been put in the lake they became the property of the landowner. The three judges acknowledged that the result was “hard” for BDS, which had paid to stock the lakes with fish during its ownership.

Lord Justice Jackson added that BDS could have demanded payment for the fish had the sale of the land been conventional, but it had lost ownership when the land was sold by receivers.

Barrister for the defendant was Nathan Wells of Radcliffe Chambers, London. 

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