Borwick Development Solutions Ltd v Clear Water Fisheries Ltd

All fish are animals ferae naturae as a matter of law. The court cannot reclassify enclosed or commercially stocked fish as animals domitae naturae; any change is a matter for legislation. Qualified property in wild animals depends on possession. Where possession depends on ownership and control of land, the rights end when that ownership ends, unless an access or other relevant right has been reserved. This applies whether the rights are characterised as arising per industriam or ratione soli. The new landowner then holds the exclusive rights to take and control the fish.

Borwick Development Solutions Ltd operated a commercial fishery in nine enclosed lakes. After receivers sold the land to Clear Water Fisheries Ltd, Borwick claimed that it retained proprietary rights in the fish and sued for conversion. The trial judge entered judgment for Borwick: [2019] EWHC 2272 (Ch). The Court of Appeal considered whether stocked fish could be treated as domestic animals, whether Borwick had qualified property in them per industriam, and whether any such rights survived the transfer of the land.

Appeal allowed. The claim for conversion concerning the fish was dismissed.

1. Classification. Sir Timothy Lloyd held that all fish remain animals ferae naturae as a matter of law. The established classification could not be altered judicially to create a category of captive wild animals capable of absolute ownership. Any such change would require legislation. Lord Justice Peter Jackson agreed with that conclusion.
2. Qualified property. Rights per industriam in living wild animals depend on possession. Close control is required where the claimant has no title to the land on which the animals are found and no relevant right derived from the landowner. A landowner need not demonstrate close control where ownership and control of the land prevent escape, but possession must still exist to some extent.
3. Land-based rights. Rights ratione soli give the landowner the exclusive right to take fish on the land and to authorise others to do so. In the present circumstances, ownership of the land was both necessary and sufficient to support the asserted rights.
4. Effect of the sale. Whether the rights were characterised as per industriam or ratione soli, they ended when the land passed to CWF. Borwick retained no right of access and therefore no continuing possession or control of the fish. The fact that the fish remained enclosed and had not escaped did not preserve Borwick’s rights.
5. Separate observations. Lady Justice Rose agreed that the appeal succeeded and that the precise degree of control was not determinative. Lord Justice Peter Jackson considered that the judge’s separation-and-control test was suitable for modern circumstances, but that wider issue did not need to be finally resolved because the claim failed on the transfer of possession.

Court of Appeal (Civil Division): Appeal allowed. The trial judgment was reversed in relation to the fish, and the conversion claim concerning them was dismissed.

Business and Property Courts in Manchester, Business List: His Honour Judge Hodge QC entered judgment for Borwick for damages for conversion, with assessment of damages to take place if necessary: [2019] EWHC 2272 (Ch).