Fixtures: Appeal returns fish to the water

In the December 2019 edition of Agricultural Lore, we highlighted the High Court decision in Borwick Development Solutions ltd v Clear Water Fisheries Ltd [2019]. The High Court found that fish stocks in a commercial fishery were subject only to a qualified personal right, which did not attach to the land or pass with the sale of land. In May 2020 the Court of Appeal overturned this decision.

The facts

By way of recap, the facts in Borwick were as follows: Borwick owned a commercial fishery, including a number of lakes and solar panels. A fixed charge receiver sold the fishery to Clear Water. The sale contract did not mention the fish in the lakes or the solar panels. Borwick claimed that these items remained its property. The High Court found that the Solar Panels had passed to Clear Water, but the fish had not. Clear Water appealed the finding in relation to the fish stocks. The finding relating to the solar panels was not challenged.

Court of Appeal

The Court of Appeal did not dispute the High Court’s finding that there was no absolute property in a living wild animal or that it was possible to have a qualified property to the fish. However, there was disagreement between the Court of Appeal judges as to whether this right arose in the present case as a result of Borwick’s efforts in introducing the fish and isolating them within a closed water system or whether through the mere fact of ownership of the land.  In the event this question was not necessary to answer as the Court went on to find that these rights could only subsist whilst the fish were in Borwick’s possession. As no rights of access to enable Borwick to take the fish had been retained on the sale of the land, Borwick did not have possession of the fish and their former rights were extinguished.

Consequences of this decision

This case underlines the importance of recording in sale documentation which assets are intended to pass with the sale. The case also demonstrates the importance of reserving fishing, sporting and access rights on a sale or lease, where the land owner intends to maintain any rights over wild animals.

The case also has implications for fixed charge receivers appointed over land containing wild animals. Whilst the Court found that the receivers were correct to conclude that the fish were not subject to the security, it was noted that the security would have included the exclusive fishing rights. In order to comply with their duties, receivers would be wise to factor in the existence of such rights when valuing charged property.