A FASCINATING LEGAL CASE ABOUT FISH FARMING IN SCOTLAND.

From our regular legal correspondent Ewan Kennedy from Argyll.

Photo by Alexey Komissarov on Pexels.com

Is there a concept of Chattel Trespass in Scots Law? A Comment on MOWI v Staniford

Spoiler alert, per Viscount Dunedin, in the House of Lords in 1931: trespass to moveables  “in a Scottish Lawyer’s mouth is a perfectly unmeaning phrase”

I’m hoping that a case that started in Oban Sheriff Court nearly three years ago will spark the interest of legal academics, historians and law students in a part of the law of moveable property where we still rely almost exclusively on the Institutional writers. MOWI v Staniford could easily become the subject of a tutorial in private law.

The case has largely attracted interest so far as a SLAPP, a “Strategic Litigation Against Public Participation”, indeed it has been registered as such by the Coalition Against SLAPPs in Europe, www.the-CASE.eu. In common with many such cases, the pursuers set out a number of craves which had no possible chance of success, seeking for example to make the defender the only person in Scotland not permitted to navigate on the surface of the open sea, or to fly a drone, but they included one crave with an arguable chance. This remaining issue, in substance trespass to moveables, remains a live issue.

Background

The case was brought by the Norwegian giant MOWI, largely owned by one of the world’s richest men, John Fredriksen, with a fortune, per Forbes Magazine, of about $13 billion, against Don Staniford, the anti-fish farm activist sometimes called the kayak vigilante. This gigantic imbalance is another classic feature of a SLAPP; it’s usually brought by a wealthy individual or corporation with something to hide. 

Staniford is one of a very small group of committed individuals campaigning against fish farms. He combines scientific knowledge with boat handling skills in order to record and document what is going on inside the hundreds of salmon cages along the Scottish coast, and to give the public reports that the current Scottish Government would rather we didn’t get. The evidence uncovered by him shows that below the surface of the farms are creatures in distress. His cameras capture images of fish being eaten alive by sea lice, eyes missing, and with gaping holes in their skin. Further down, the weaker fish move more slowly; at the foot are piles of mortalities. Figures released by the industry itself, in reports to the Scottish Government, have shown in recent months between 25% and 40% of the salmon on some sites dying through sea lice or viral and other diseases. In short, there’s clearly something going on in our waters which the public should know about.

It’s important to understand that Staniford is a very different sort of campaigner from organisations such as Greenpeace and Ocean Rebellion, who set out to be disruptive. He is an experienced, long term environmentalist, with a sound academic background in marine biology and years of experience inside and outwith the UK. He argues that organisations such as SEPA and Marine Scotland are failing in their duties to protect the environment and detect and prosecute instances of animal cruelty. 

Staniford’s visits to fewer than a dozen MOWI sites largely took place during lockdown, when governmental agencies had suspended site inspections. His method of operation was to visit sites, alone, early in the morning before staff arrived, record what he saw and depart, leaving no trace of having been there, and, very important to the discussion which follows, causing no damage or loss. 

Invariably, on finding evidence of animal abuse, pollution, or the use of illegal seal screeching devices, he published his findings and reported them to those agencies. The gruesome stills and videos and the data gathered have been featured on BBC, Channel Four and France V and he has been internationally recognised for his efforts. His work is arguably an essential part of the process of journalism in a free society.

The Live Issue

MOWI’s case sought interim and permanent interdicts against Staniford in respect of three separate types of activity, namely the two mentioned above, and from:

“boarding, entering onto, physically occupying, attaching himself to, or attaching vessels to all structures, docks, walkways, buildings, floats or pens of the following salmon aquaculture farming sites of the pursuer [here the writ lists the names of the sites]”

It is notable that MOWI did not add any conclusion for damages, nor did they aver any damage to any of their installations, nor any financial losses. 

The case was assigned for a debate, which duly took place online from Oban Sheriff Court on 1 June 2023. Arguments focussed on the long established public freedom to navigate on the surface of the open sea and the relevance of cases, such as Shell v Greenpeace in which there were serious and damaging intrusions on the pursuer’s property, plus a statutory exclusion zone around the oil rig in question, and Phestos Shipping, which concerned occupation of a ship during an employment dispute. There was no discussion on drones. 

Sheriff Andrew Berry duly issued an interlocutor granting all the orders sought, with a note in somewhat unconventional form, containing almost nothing by way of actual reasoning. An appeal was duly marked, in which a hearing took place on 1 February 2024.

The Appeal

The Sheriff Appeal Court acknowledged the unconventional nature of the judgement, as a result of which the arguments were in essence run de novo. Under forensic questioning from Sheriff Principal Nigel Ross, Jonathan Barne KC, senior counsel for MOWI, agreed that the craves for an exclusion zone on the open sea, and a ban on drones, were unsupportable and should be deleted. This left only the third issue, in bold above, standing.

For Staniford, John Campbell KC discussed whether the freedom to navigate allowed a man in a kayak to tie up to and make a brief visit to a fish farm pontoon, and also cited that favourite of all law students, Winans v Macrae, [1885] 22 SLR 692, to suggest that an interdict should not be granted without an averment of actual loss or damage. Mr Barne denounced that case as an extremely old authority, (although Lord Young,  “the Great Dissenter”, should never be dismissed too readily). He made frequent use of the word trespass, but neither counsel went into any detail about what that concept might mean in Scots law. 

The relevant part of the ruling, given by Sheriff Principal Nigel Ross, reads, in its entirety:

“An award of perpetual interdict does not require harm to be established. Interdict is

available to prevent unlawful conduct. The pursuer has a right of ownership in the

structure of the marine farms, extending to the whole of the structure. It is entitled, as of

right, to prevent the defender entering upon or interfering with the structures. The pursuer has notified the defender that it does not consent to his entering the marine farms. It has required the defender to stop interfering with or entering upon their property. He refuses to do so and asserts that he intends to continue to carry out these acts. The pursuer is entitled to interdict to stop such interference with their property. The entitlement to interdict is based on straightforward principles of the law of property, and is not affected by the defender’s motives, or any wider questions of law.”

In short, the mere legal fact of ownership is said to be sufficient for a permanent interdict preventing a person from “entering upon” an item of property, in the absence of any suggestion of damage or financial loss. Notably, the paragraph is totally unreferenced, trespass is simply taken as a given and the word doesn’t appear.

My Comments ( Ewan Kennedy)

What follows is offered with trepidation. I am not a legal academic, and have not been able to find any cases directly relevant. (I can’t resist mentioning in passing that I was involved in one property case, Herron v Best 1976 SLT (Sh Ct) 80, in which Sheriff Macphail found my client not guilty of theft when he recovered possession of a customer’s van, thinking he was entitled to reclaim his lien after the cheque bounced.)

I find the decision in MOWI v Staniford odd, in that I have always understood interdict to be a remedy sought to prevent some future damage or loss. All of the few reported cases that were referred to, including the two above, belonged to the law of delict, with proof of damage or loss a necessity. 

The quotation at the head of this piece comes from Leitch v Leydon, 1931 SC (HL) 1. That case concerned the selling of soda water in glass containers, possession of which passed to the customers, while ownership remained with the producer. Some customers started to take the containers to be filled by another producer, and the owners were held unable to prevent this. The mere handling of one’s property by a third party was not enough to provide a remedy. Notably, in that case there was in fact financial loss, but the concept of ownership was still held insufficient to ground recovery. 

The ruling takes the concept of exclusion away from delict and plants it firmly in property law. Although some aspect of moveable property, for example security transactions, have had the attention of the Scottish Law Commission, for discussion of a right to exclude we still need to go back to writers, such as Bell, Principles para 1284:

Ownership in moveables is a right of exclusive and absolute use and enjoyment, with uncontrollable powers of disposal, provided no use be made of the subject and no alienation attempted, which for purposes of public policy, convenience, or justice, are, by the general disposition of the common law or by special enactments of the Legislature, forbidden; or from which, by obligation or contract, the owner has bound himself to abstain. 

I’d suggest that here the “right” might better have been described as a freedom, because it arises not from any corresponding duty, nor from a piece of legislation. In Professor Hohfeld’s terms it is something the person entitled has simply because there is no duty not to use or enjoy the item in question. This is reflected in the following words about some things being forbidden. 

Fish farms and multinationals were both things well outside what a writer like Bell could have contemplated. When reflecting on an item of moveable property, he would surely have thought about his pen, his desk, something with which one would feel a personal connection. His own examples, in para 1470, were furniture and cattle. The largest item would have been a ship, about which there have always been very special rules of maritime law. 

Typically a modern fish farm will consist of either a rectangular set of floating walkways, several hundred yards in length, or a series of interlinked circular cages, with walkways round them. There will be a large barge, from which fish feed pellets are distributed to the cages through plastic pipes with compressed air. The whole thing will be made up of several thousand components, all interlinked or attached, more or less firmly, to each other. After storms our shores are littered by parts that have broken away, and occasionally entire farms are blown off station, such as happened to a MOWI farm off Carradale in 2020. In short, a fish farm is just as far from what Bell could have contemplated as it is from the lemonade bottles in Leitch v Leydon.

We should also reflect on the concepts of “use and enjoyment”. Fish farms are left unmanned, except when staff arrive to remove mortalities or to deal with other incidents. The question is then whether or not a lone activist climbing onto a walkway, while staff are absent, taking images with a Gopro camera and leaving after a few minutes, has deprived the corporation that owns the unit of its right to “exclusive and absolute use and enjoyment” in any meaningful sense. Is a multinational corporation capable of “enjoying” its fish farm? Should any permanent remedy granted by a court not be proportionate to some identifiable interest?  

Public Interest

Granting the owner an absolute right to exclude, as has happened in this case, also denies an activist the chance to argue a defence based on public interest. Staniford insists that his activities are required in order to expose instances of animal cruelty, pollution etcetera, some of which may be criminal offences. Is the situation not similar to one where, for example, we see a vehicle parked on a public road on a hot day with an animal in distress inside?  Our Scottish judges have shown reluctance to give weight to environmental principles, for example the Aarhus Convention. This case could give them a chance to change that.

SOME BACKGROUND ON THE CASE MENTIONED ABOVE. Winans V McCrae 1885.

William Louis Winans was a pretty disgusting fellow, the son of one of the first of America’s railroad multimillionaires, who from around 1860 lived mainly in Britain, with occasional trips to the rest of Europe, including Russia. He didn’t like people very much; on taking the lease of an expensive townhouse in London he took the one next door as well, to avoid having neighbours. He had a habit of booking all the seats at a performance, so that he and a couple of friends could watch the show without being troubled by the ordinary people. 

We learned about him when studying international law, as after his death there was an argument about his domicile, to decide which country got the death duties. In support of the idea that he had kept his American domicile his family argued that despite having never returned it was only his fear of sea sickness that had kept him in, by this time, Scotland. They produced as evidence details of his cigar ship, which was supposed to take him back safely.

The posthumous litigation wasn’t his only brush with Scots law, however. In 1882 he started renting shooting estates and by 1887 he had accumulated a total of over 220,000 acres, extending more or less across Scotland. On one of them, Morvich in Glen Shiel, lived a poor cottar and shoemaker, Murdoch Macrae, with his wife and family. One day he found a badly injured lamb, about three weeks old, and took it home where his wife nursed it back to health. For a time it stayed in the house, but eventually it became strong enough to venture out. 

One day Mr Winans found the lamb on his land, which had no fences to keep straying animals out. He immediately sued Mr Macrae for an interdict, which, after an initial interim one was granted, went to debate before the local Sheriff. He refused it, on the basis that  the lamb had caused no discernable damage.

Winans was of course enraged by this and had the interdict granted on appeal. One is tempted to wonder if perhaps the compliant Sheriff Principal, a senior QC, might have been thinking about a shooting holiday. Many were disgusted by this development, including Winans’ landlord, Mr Mackenzie of Kintail, who said that hadn’t believed the story when he first heard it. 

It may surprise people that in those Victorian days, long before civil legal aid came in, lawyers saw it as their professional duty to devote time working for the poor with no expectation of payment. In fact this was still part of the tradition when I joined the profession in 1970 and remained until advertising came in and “pro bono” work became only a way of drumming up trade. Mind you, there are still some decent, ethical exceptions! Cottars were the poorest sector of society, owning nothing and doing what they could to survive. William Winans must have got a shock when his adversary was duly represented in Scotland’s highest court and again when Murdoch Macrae won the appeal.

Lord Young is one of my all time favourite judges, known for fairness and independence of mind. You can identify him in the famous group portrait in Parliament House, as he’s the only one without a huge cross on his robes. Essentially, the court ruled that there was no remedy in the absence of damage, “de minimis non curat lex”. 

Winans v Macrae 1885, 22 SLR 692

MY COMMENTS

Thanks to Ewan this blog has featured a number of articles on the activities of Don Staniford and I totally support the view that his activities are in the public interest and deserve public support. It is a David and Goliath contest but there is always hope the right pebble will be found at the crucial time.

I am, as always

Yours for Scotland.

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