England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/04/2013

Sir William Blackburne :

Introduction

1. These proceedings are concerned with a private fishery on the eastern side of the Wash. The question is whether the defendants infringed the claimant's fishery rights when fishing in the area between July and September 2007. This involves a consideration of the seaward extent of the fishery and precisely where the defendants were, and what they were doing, when the actions complained of took place. The proceedings also raise several questions of law of a fairly arcane nature concerned with the consequences in law of alterations to the foreshore as a result of natural forces (wind and tide and the effects of siltation) and in particular with their effect on a long held fishery, and also with the general approach to determining the seaward limit of a private fishery.
2. In order to aid an understanding of the issues a chart is appended to this judgment showing features, in particular channels and sandbanks, which have a role in this dispute. The chart (with north at the top of the page) was prepared by the defendants for the purposes of these proceedings.
3. A private or, as it is referred to in the authorities, "several" fishery (the expression "several" can sound confusing to the modern ear) is an exclusive right to fish in tidal waters, including the foreshore area when covered by tidal waters. The right includes a liberty to cross the foreshore to exercise the right in cases where ownership of the foreshore is in a third party. (See Anderson v Alnwick District Council [1993] 1 WLR 1156 at 1166; and Crown Estates Commissioners v Roberts [2008] EWHC 1302 (Ch); [2008] 4 All ER 828 at [115]) The private fishery displaces what would otherwise be the right of the general public to fish in the waters in question. In De Jures Maris Lord Hale stated that "…the common people of England have regularly a liberty of fishing in the sea or arms thereof, as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers where either the King or some particular subject hath gained a propriety exclusive of that common liberty." The private fishery therefore carries with it the right to exclude the public from exercising any public right of fishery within its area.
4. But private fisheries are rare animals. In origin, as the passage from Hale relates, they derived from grants by the Crown. Because they displaced the public fisheries in the areas in question their creation came to be regarded as a usurpation of the public right. They became a matter of contention. It has long been taken to be the case, and was common ground before me, that Magna Carta in 1215 prohibited the Crown from making any such further grants. But that charter left unaffected all private fisheries granted no later than the reign of Henry II who died in 1189. More recent jurisprudence enables the existence of a private fishery to be established by resort to the doctrine of prescription on the basis of long user. This is reflected in the general approach to proof of a private fishery in tidal waters stated by Willes J, giving the advice of the judges, in Malcolmson v O'Dea (1863) 10 H.L. Cas. 618:

"The soil of 'navigable tidal rivers,' … so far as the tide flows and reflows, is prima facie in the Crown, and the right of fishery prima facie in the public. But for Magna Charta, the Crown could, by its prerogative, exclude the public from such prima facie right, and grant the exclusive right of fishery to a private individual, either together with or distinct from the soil. And the great charter left untouched all fisheries which were made several, to the exclusion of the public, by Act of the Crown not later than the reign of Henry II.

If evidence be given of long enjoyment of a fishery, to the exclusion of others, of such a character as to establish that it has been dealt with as of right as a distinct and separate property, and there is nothing to show that its origin was modern, the result is, not that you say, this is usurpation, for it is not traced back to the time of Henry II, but that you presume that the fishery being reasonably shown to have been dealt with as property, must have become such in due course of law, and therefore must have been created before legal memory. "

5. The private fishery in issue in these proceedings was established in this manner as I shall later relate.
6. What species of fish does a private fishery embrace? Authority, which I do not need to recite, supports the proposition that shellfish resting on or buried in the soil of the waters in question are to be treated in the same way as floating fish and are thus within the scope of the fishery in question. This approach has been adopted in the relevant legislation. These proceedings are concerned with shellfish, in particular cockles which are a valuable commodity.
7. The private fishery in this case is owned by the Part 20 defendant, Michael Le Strange Meakin. Members of the Le Strange family have been Lords of the Manor of Snettisham, Heacham, Hunstanton and Ringstead with Holme and Lord of the Hundred of Smithdon over very many generations. It was in that capacity – it is not necessary to distinguish between the various lordships - that they established a prescriptive right to the fishery. The estate, in the person of the Part 20 defendant, was represented before me by Jennifer Meech. Apart from the private fishery, the estate (as I shall refer to the relevant interests in the area which belong to the Le Strange family) owns a portion of the foreshore and other items of property on the eastern side of the Wash towards Hunstanton in the north and towards Kings Lynn in the south. The existence, as well as the physical extent, of the private fishery was at one stage in issue in these proceedings so that the estate was a necessary party to enable these matters to be decided. In the event, the fishery's existence and its ownership by the estate have since been conceded but the seaward limit of its physical extent has remained in issue. In the interests of keeping the costs down the estate has allowed the claimant to make the running on these matters and has been content therefore to adopt the position asserted by the claimant as regards the extent of the fishery.
8. The defendants now accept, although at one stage this too was in issue, that the private fishery is leased to the claimant, John Henry Loose ("Mr Loose"). He originally held the fishery on the terms of a lease dated 25 November 1965 granted to him by Hamon Le Strange. That lease was for seven years calculated from 6 April 1961. A further lease was granted to him by Mr Le Strange on 22 July 1970, this time for a term of three years from 6 April 1969. It therefore expired by effluxion of time in April 1972. No steps were then or have since been taken to renew the lease or grant another but it is common ground that Mr Loose holds over on the terms set out in it. The fishery was previously leased to Mr Loose's grandfather, William Henry Loose, in 1935, initially for one year and subsequently for three years, and before that to others. Quite a number of the earlier leases stretching back to 1857 were in evidence. I was taken to them to see the varying ways in which, over the years, the private fishery was described. The significance of doing so was to shed light on the perception from time to time of the estate as to the extent of the fishery which it was content to let to others. I see no point in rehearsing these matters. The significant thing is that the existence and, subject to the arguments now advanced on behalf of the defendants, the extent of the fishery are now established by Court of Appeal authority which, if not strictly binding on the defendants, is for all practical purposes conclusive on the matter and which I come to in due course. Mr Loose was represented before me by Michael Davey.
9. The defendants, who were represented before me by Guy Fetherstonhaugh QC and Philip Sissons, are owners of fishing vessels which Mr Loose claims wrongly fished in the private fishery for cockles between July and September 2007. The defendants deny that they did and, in any event, deny that they landed the quantities of cockles which Mr Loose asserts. They also deny that the cockles had the value per tonne which Mr Loose attributes to the quantities, whatever they might turn out to be, which they landed.
10. The issues for decision are, in the event, as follows. (1) What is the physical extent of the private fishery? (2) Did the defendants trespass upon the fishery (by fishing for cockles within it) between July and September 2007? (3) If they did, what is the extent of the damage thereby suffered by Mr Loose? (4) If, by contrast, any of the defendants did not trespass as alleged, what is the damage which they suffered as a result of an undertaking in damages given by them to Mr Loose on 20 September 2007?
11. Each of those issues requires a little more explanation at this stage. Issue (1) is concerned not with the northern and southern boundaries of the fishery, namely the boundaries from the land out to sea at both extremities of the fishery, but with the seaward boundary. The position of the southern boundary was at one time very much in dispute. It resulted in an action entitled Le Strange v Lynn Corporation which came before Lord Coleridge CJ in January 1885 and, on an unsuccessful application for a retrial, before the Divisional Court in June of the same year. That litigation determined the line of the southern boundary. Wrapped up in issue (1) are three sub-issues: (a) how what has been described as the doctrine of accretion applies where, as is claimed to have happened here, the foreshore over which the fishery lies has increased in extent by the process of siltation where the siltation has had the effect of joining sandbanks to the foreshore when exposed at low tide; (b) whether the prescriptive basis upon which the Le Strange estate has established its private fishery applies without more to any area of the foreshore which has become such by accretion howsoever caused; and (c) identification of the outer seaward boundary of the fishery and how it is to be measured. Issues (2) and (3) concern where precisely the defendants' boats were on the occasions when they are alleged to have been wrongly fishing for cockles and, assuming they were in the area of the private fishery, whether they were fishing there at the time and, if they were, what the catch was and how it is to be valued. Issue (4) only arises if the defendants can establish that they were not fishing in the area of the fishery on the occasions about which Mr Loose complains.

Some history of the geography of this part of the Wash

12. The nature of the claims of the estate, and therefore of Mr Loose whose leased fishing rights are said to be co-extensive with those of the estate, is very much bound up with the shifting nature of the sandbanks and channels which are so much a feature of the eastern side of the Wash. I was taken in this regard to a series of charts going back over four centuries. The earliest was from 1588, the year of the Spanish Armada, and the next (and rather more informative) Henry Bell Chart (so-named after the person during whose mayoralty of King's Lynn the chart was drawn) was from 1693. In those days King's Lynn exercised an admiralty jurisdiction in its area of the Wash. Those and later charts show that whereas in earlier times tidal waters ran close to the shoreline of the area bordered by the relevant lordships, with clearly marked sandbanks separated from the foreshore at low tide, nevertheless with the passage of time and the effect of siltation and other natural phenomena the fresh water and tidal channels altered, both in terms of width and of direction, so that what were once distinct sandbanks became, when exposed at low water, part of the foreshore and thus accessible on foot from the shoreline. A striking example of this process is provided by the so-called Stubborn Sand. In the 16^th and 17^th centuries, this appears on the charts as an island at low tide, separated from the shore on its eastern side by a distinct channel of water and on its western side by what was known as the Old Channel. It was not then accessible on foot from dry land. The Old Channel led to King's Lynn which lies to the immediate south and served as a navigable means of access to that port. By the 19^th century Stubborn Sand had become and has since remained, when exposed at low water, a part of the foreshore. In effect it has ceased to be distinguishable as a distinct sand bank although it continues to bear that name. Indeed, as the later charts show, the Old Channel has long ceased to be a navigable channel and is nowadays really no more than a tongue of water when exposed at low tide: access by boat to King's Lynn must now be by a channel lying further to the west.
13. Another example of the process of change in this part of the Wash concerns the line of what is known as Wolferton Creek. This is a fresh water outlet draining the land between Wolferton and Sandringham on the Norfolk coast to the east. In the earlier charts and maps this stream is shown as flowing into the Wash at low water in roughly an east/west direction. Later charts show the flow of the stream at low water as following a more northerly course. Its gradual shift to the north gave rise to a dispute as to the precise position of the fishery's southern boundary. The details do not matter. In Le Strange v Lynn Corporation, to which I have already referred, the issue was settled by a determination that the boundary was the east/west line followed by the stream in earlier days.
14. Other sandbanks, notably the Sunk and Ferrier Sands, have ceased to be distinct "islands" at low tide. Both are now accessible on foot from the shoreline where it is bordered by the estate lordships. Although once it did not, the estate, and through it Mr Loose, now claims that its fishery extends seaward over sands which are now identified on contemporary charts (moving from north to south) as the South Sunk Sand, the Outer Ferrier Sand, the Ferrier Sand and (as to its northern part) the Peter Black Sand. These were formerly inaccessible at low water from dry land but with the silting up of the channels that once separated them from the dry land are now accessible on foot at low water from the eastern shoreline. These sands are marked on the appended chart. As will appear, the defendants claim that this extension of the seaward extent of the fishery is without justification in law. They contend that it amounts to an unwarranted annexation of areas which were once freely available as part of the publicly regulated fishery governing that part of the Wash.

Regulating fisheries and the East Wash area

15. Although the Crown's prerogative to grant private fisheries ceased with Magna Carta, Parliament has possessed, and regularly exercised, the power to create so-called "regulating fisheries." It is a power which has been exercised in the area of the Wash. It will be useful, therefore, to set out - as concisely as I can – the relevant legislative history, in particular as it has impinged on this part of the Wash. It will serve to explain the interface between the estate's fishery and the adjoining area subject to statutory control as a regulating fishery. I have taken what follows largely from the opening skeleton argument of Mr Fetherstonhaugh and Mr Sissons which in turn was dependant in great part on the researches of Mr Paul Garnett, the brother of the fourth defendant. Mr Garnett, in addition to holding degrees in mathematics and computer science, looked into the history of the fishing industry in the Wash. The fruits of this detailed labour were to be found in a lengthy witness statement, backed up by a wealth of exhibits. This scholarly piece of work was sparked by his family background in the local fishing industry and the involvement of his brother as a defendant in this litigation.
16. The need for some form of statutory intervention to regulate and protect fish stocks was well illustrated in the problems which faced the Corporation of Lynn, which had for long regulated the fisheries in its area of the Wash. The Corporation found it increasingly difficult to police matters once its Admiralty jurisdiction was taken away which happened in 1838. The Lynn fishermen petitioned the Fisheries Committee of the Corporation in 1858 to stop the taking of undersized fish by others which was ruining the future of the fishery. The Corporation however was powerless to prevent the depredations upon the mussel stocks either by fishermen from further afield, or by farmers seeking a ready source of manure for their fields. Instead, along with others, it appealed for legislative intervention.
17. This and other like appeals resulted in Parliament enacting the Sea Fisheries Act 1868 ("the 1868 Act"). In Isle of Anglesey County Council v Welsh Ministers [2009] 3 WLR 813 at [78], Pill LJ explained the genesis of the Act:

"The 1868 Act followed the report of commissioners appointed to inquire into the Sea Fisheries of the United Kingdom (1866). The report acknowledged, at p 167, para VI, that: 'Fishermen cannot be expected to dredge the public grounds without immediate returns, unless the exclusive benefit derived there from be secured to them; we might as well expect one of the public to spend money in cultivating a public common, the benefit of which would be shared by all and not confined to himself, as that one or more fishermen should dredge a public ground without immediate return.' The commissioners went on to state at p 169: 'It is obvious, therefore, that if it be desirable to encourage the formation of oyster beds, either for fattening or breeding, some further powers must be given'. "

18. The 1868 Act applied initially to oysters and mussels, but was extended to cockles by the Sea Fisheries Act 1884 and subsequently to other shellfish and floating fish. In 1967, Parliament took the opportunity to consolidate and amend the law by way of the Sea Fisheries Act 1967. This Act repealed the 1868 Act and re-enacted the relevant sections. The current relevant statute is The Marine and Coastal Access Act 2009.
19. Section 29 of the 1868 Act enabled the Board of Trade, on the application of one or more interested persons, to make orders for the "Improvement ... Maintenance and Regulation" of oyster and mussel fisheries. It did so in the following terms:

" An Order for the Establishment or Improvement, and for the Maintenance and Regulation, of an Oyster and Mussel Fishery on the Shore and Bed of the Sea, or of an Estuary or tidal River, above or below, or partly above and partly below, Low-water Mark (which Shore and Bed are in this Part of this Act referred to as the Sea Shore), and including, if desirable, Provisions for the Constitution of a Board or Body Corporate for the Purpose of such Order, may be made under this Part of this Act, on an Application by a Memorial in that Behalf presented to the Board of Trade by any Persons desirous of obtaining such an Order (which Persons are in this Part of this Act referred to as the Promoters)."

20. Sections 30 to 38 dealt with the procedure by which the Board of Trade could make an order under section 29. In particular, provision was made for the publication of draft orders, for the consideration of objections, and for inquiries. By section 34, following the consideration of objections and the report of the inquiry, the Board of Trade could either refuse the proposal, or make an order on such terms as it considered expedient. Section 37 required any such order to be confirmed by Act of Parliament. (A substituted section 37, passed in 1938, limited the requirement for a confirming Act to cases in which it was specifically called for by a person affected by the order.) Section 39 enabled the Board to make amending orders from time to time, subject to the same procedures.
21. The orders so made could be of broadly two kinds. The Board was enabled by section 40 to grant a several (or private) fishery and by section 41 to establish what was described as a "regulating" fishery. In the case of the several fishery the grantee was given (subject to any restrictions and exceptions set out in the order) the exclusive right within the area of the fishery of "depositing, propagating, dredging, and fishing for, and taking" oysters and mussels. In the case of a regulating fishery section 41 of the 1868 Act provided that:

"Where an Order of the Board of Trade under this Part of this Act ..., confers a Right of regulating an Oyster and Mussel Fishery, and imposes Restrictions on or makes Regulations respecting the dredging and fishing for and taking Oysters and Mussels ... within the Limits of the regulated Fishery, or imposes Tolls or Royalties upon Persons dredging, fishing for, and, taking Oysters and Mussels ... within the Limits of such Fishery, the Persons obtaining the Order ... shall, by virtue of the Order and of this Part of this Act, but subject to any Restrictions and Exceptions contained in the Order, have the power to do all or any of the following Things; namely,

(a) To carry into effect and enforce such Restrictions and Regulations;

(b) To levy such Tolls and Royalties;

(c) To provide for depositing and propagating Oysters and Mussels within the limits of the Fishery, and for improving and cultivating the Fishery.

All such Restrictions, Regulations, Tolls, and Royalties shall be imposed on and apply to all Persons equally, and shall be for the Benefit of the Fishery only, and the Tolls and Royalties shall be applied in the Improvement and Cultivation of the Fishery ..."

22. Thus a regulating fishery enabled the fishermen in the area to have the benefit of the fishery but on terms, as to tolls and the like and the application of such tolls, which had as their purpose the improvement and cultivation of the fishery.
23. Section 44 of the 1868 Act prevented the Board of Trade from conferring a several fishery (under section 40) or a regulating fishery (under section 41) for longer than 60 years and, importantly for present purposes, section 48 provided for the effect of any order made on existing fishery rights. It did so in the following terms:

"No Order made by the Board of Trade under this Part of this Act shall take away or abridge any Right of Several Fishery, or any Right on, to, or over any Portion of the Sea Shore, which right is enjoyed by any Person under any Local or Special Act of Parliament, or any Royal Charter, Letters Patent, Prescription, or immemorial Usage without the Consent of such Person."

24. Orders under the 1868 Act were made by the Board of Trade as early as 1870. The first such order, the Lynn Deeps Fishery Order ("the 1872 Order"), which applied to the eastern half of the Wash, was made in 1872 and established a regulating fishery.
25. The Orders initially made under the 1868 Act were followed by: (1) the Lynn Deeps Fishery Order 1912 ("the 1912 Order") which amended the 1872 Order; (2) the Le Strange Fishery (Amendment) Order 1927 which added cockles to the scope of control; (3) the Lynn Deeps Fishery Order 1932 ("the 1932 Order") which effectively re-enacted the provisions of the 1872 Order for a further period of years subject to certain other powers, and with a saving for the rights (if any) of the estate coupled with a non-admission of the existence of any rights; and (4) the Wash Fishery Order 1992 ("the 1992 Order") which established for 30 years, effectively in place of earlier orders which had expired, (a) a several fishery and (b) a regulating fishery, in both cases in respect of oysters, mussels, cockles and other species, and with the same saving for the rights (if any) of the Le Strange estate and the same non-admission as appeared in the 1932 Order.
26. To complete the statutory picture, the regulation of fisheries was taken a step further in 1888 with the passage of the Sea Fisheries Regulation Act 1888. This gave the Board of Trade power to create sea fisheries districts, and committees to manage those districts. Under section 2, sea fisheries committees were given wide powers to make bye-laws in the interests of the sea fishery. The powers conferred under the 1888 Act were re-enacted and consolidated in the Sea Fisheries Regulation Act 1966. The Eastern Joint Sea Fisheries Committee was established pursuant to these Acts, with the power and duty to regulate fishing under the Fishery Orders. Its role was then taken over by the Eastern Inshore Fisheries Conservation Authority by virtue of the Marine and Coastal Access Act 2009 and ancillary legislation.

Loose v Castleton

27. As has already been seen, the estate has been vigilant over the years in the assertion and protection of its rights. In recent years the burden of this has been taken up by Mr Loose as tenant of the fishery. The most recent passage of arms, before the current dispute, involved a claim by Mr Loose against Alan Castleton arising out of an incident in March 1971 when Mr Castleton and two others were spotted after they had removed a quantity of mussels from a mussel-scalp in the vicinity of the Stubborn Sand. They had reached the scalp by means of a rowing-boat on an ebb-tide. It resulted in proceedings which came before Judge Moylan in the King's Lynn County Court in 1976. Judgment was delivered on 4 January 1977.
28. Judge Moylan had to decide three issues. The first was whether the estate (through which Mr Loose claimed) could establish an entitlement to a private fishery in that part of the seashore where the mussels were taken. Assuming it could, the second was to establish the seaward boundary of the fishery, it being common ground that the mussels taken by the defendant were taken from a point that was seaward of the mean low-water mark of ordinary tides. Relevant to this issue was that the Mr Loose conceded for the purposes of the litigation, but not otherwise, that the furthest seaward extent of the fishery rights claimed was the mean low-water mark of spring tides (or "MLWS" for short). Mr Castleton contended for a higher low-water mark, namely mean low-water of ordinary tides (or "MLW" for short). The third issue (which arose if the claimant succeeded on the second) was whether the point where defendant was taking mussels was on the landward or the seaward side of that line. Much of the trial was taken up with the first issue which involved a consideration of a great deal of historical matter since it was necessary for Mr Loose to establish an entitlement which predated Magna Carta. As was observed by Bridge LJ when the case came on appeal before the Court of Appeal in 1978 (see (1981) 41 P & CR 19 at 26): "The real protagonists in this litigation are the Le Strange estate on the one hand and the defendant (possibly representing the interests of fisherman in King's Lynn generally) on the other."
29. Mr Loose succeeded on all three issues. On the first (that the estate enjoyed the right of fishery that was claimed), Judge Moylan reached his conclusion in reliance on the doctrine of prescription. On the second, he held that the proper inference from the evidence was that the seaward boundary "is and always has been at least as far out as the line of Low Water Mean Springs wherever they may be from time to time." The significance of the reference to "at least" was that, irrespective of previous litigation involving the estate, Mr Loose was content in that case to limit his claim to that tidal level. On the third issue he found on the evidence that Mr Castleton was taking the mussels above, that is to the landward side, of that level.
30. As I have mentioned the case went to appeal. The appeal was dismissed. The main issue was the existence of the prescriptive right of fishery. This turned on the application of the approach to the establishment of a prescriptive right to a private fishery enunciated by Willes J in the passage from Malcolmson v O'Dea set out in paragraph 4 of this judgment. On the question as to the seaward limit of the fishery Bridge LJ (with whom Megaw LJ agreed) rejected an argument that a rule of law existed that, where a several fishery subsists in tidal waters on a stretch of open coastline, or on a stretch of coastline adjoining a large estuarial area such as the Wash, its extent cannot be further than low-water mark of ordinary tides. After referring to Gann v Free Fishers of Whitstable (1865) 11 HL Cases 192, Bridge LJ stated (at 32):

"That, then, being the law, one must next turn to see what were the facts in so far as they bore on the question of the seaward boundary of the le Strange several fishery. First, there were the series of leases of fishery rights that had been granted at various dates ranging from 1857 up to 1970. If one looks at the earliest and latest of the leases in that series, one finds this. There is a lease from 1857 to 1867 that defines the seaward boundary of the fishery rights that were demised as "the extreme low-water mark of the sea on the extreme west." The two latest leases are one from 1965 to 1970, in which the demise was of " the foreshore and so much of the seabed as belongs to the landlord," and, finally, the current lease under which the plaintiff in this action claims, which defines the seaward boundary in these words: " ... as far as can be worked without boats at extreme low water which lie within the landlord's fishery." Those are the first pieces of evidence supporting the view, for which the plaintiff contended and which the judge accepted, that the seaward boundary extended at least to the mean low-water mark of spring, as opposed to ordinary, tides. Secondly, there was evidence, in particular from a Mr. Thursby, who was very familiar with the rights as they had in fact been exercised, that de facto the le Strange estate and its lessees had claimed and worked the mussel scalps between the low-water mark of ordinary tides and the low-water mark of spring tides for at least 17 years prior to this litigation. Finally, however, and perhaps most importantly of all, there was clear evidence, which the judge accepted, that the best mussel grounds, the favourite habitat of the mussel on this length of coast, lay between the low-water mark of ordinary tides and the low-water mark of spring tides. In the light of that evidence, one is entitled to ask oneself the question: is it really to be supposed that, when the Crown was granting to favoured subjects a valuable right such as a several fishery relating to shellfish in the tenth or the eleventh century, it was doing so by reference to an artificial line on a map - mean low water at ordinary tides - that, so far as I am aware, is a purely modern concept that emerged in the nineteenth century, and doing so in order to deny to the favoured subjects the primary benefit that one would suppose was intended to be conferred on them, namely the benefit of exploiting the fishery where it could best be exploited? The answer to this question is, obviously: "no, one would not suppose that."

31. In reaching that view Bridge LJ considered and rejected an argument that relied on leases between 1903 and 1925 which defined the seaward boundary of the demised fishery as that of the 1872 Order, in particular that part of it which described the landward boundary of the regulating fishery thereby established. He pointed out that, as a result of the decision in Le Strange v Corporation of Lynn, the plans annexed to the 1872 Order were to prevail over the express language of the Order. This meant that as the plans showed (as did the plans annexed to the Lynn Deeps Fishery Order 1932) Admiralty chart datum, rather than mean low-water of ordinary tides, as the boundary between the area of the public fishery and the estate which, he said, "is at least as far seaward as, if not further seaward than, the mean low-water mark of spring tides" there was nothing in the 1872 Order to limit the seaward extent of the estate fishery. He also pointed out that the 1932 Fishery Order contained (in article 19) an express reservation of any right, power or privilege of the estate. He noted too (at 34) that in so far as the leases defined the seaward boundary by reference to the estate's foreshore "[l]aymen – possibly many lawyers – frequently use the word 'foreshore' in its ordinary connotation as referring to the whole of the shore that is from time to time exposed by the receding tide."
32. Ormrod LJ, in his judgment agreeing with Bridge LJ, said this on the issue as to the seaward boundary of the fishery (at 38):

"So far as the extent of the fishery is concerned, I venture to think that it is totally artificial to suppose, or to argue, that there is any particular limit on the seaward side of the fishery. We have to approach this matter on the basis that, at least in theory, we are dealing with a right that was at some time the subject of a grant from the Crown - and it has to be, owing to Magna Carta, a grant prior in date to 1189. I doubt very much whether, in 1189, those who were granting rights of fishery were particularly concerned about tide levels of any particular description. What they were granting was the right to fish for shellfish - and shellfish from "the shore," or "the foreshore." Prima facie, it would seem to me, once a several fishery is established, unless there is some evidence to the contrary one would suppose that that fishery extends far enough to enable the grantee to get the fish (mussels in this case) where they normally grow. We have seen the evidence of Dr. Loose as to the habits of mussels. It is not, therefore, to my mind, necessary or useful, or anything but artificial, to try to limit a fishery such as this by reference to some purely abstract line on a chart. I say "abstract" because all "means" are of necessity abstract, and it would be quite ludicrous to try to apply a line on a chart to the physical conditions prevailing in an estuary such as this. As Mr. Claiborne [counsel for Mr Castleton] said more than once, obviously the seaward boundary of this fishery will shift; there will be changes in the tide and changes, perhaps, in sandbanks in the neighbourhood there, or even possibly elsewhere. The ordinary, sensible conclusion must be that the fishery extends to where the mussels are exposed at low tide, wherever that is."

33. A petition for leave to appeal to the House of Lords was dismissed by the Appeal Committee later that year.
34. The defendants accept that as a result of the conclusions reached in Loose v Castleton the estate has a private fishery running along the coast from the position of Wolferton Creek at it was shown on the plan attached to the 1872 Order in the south, to Thornham Creek to the north. It is the seaward extent of the boundary to the fishery that they challenge. They do so notwithstanding what was said by the Court of Appeal in that case.
35. Mr Fetherstonhaugh began by pointing out that the estate's (and therefore Mr Loose's) fishery rights are claimed to extend over the whole of the foreshore when exposed at the lowest spring tide (and in fact a little more as it is said that the rights extend as far as a man can wade out to sea from the furthermost point at that lowest of tides). He submitted that, as the evidence showed, there are times of the year when chart datum – effectively, Lowest Astronomical Tide (or "LAT" for short) - is exceeded as a result of unusual atmospheric conditions. This, when it happens, was described as Extreme Low Water (or "ELW"). The result of applying ELW is to produce an unpredictable boundary. This is because the precise seaward boundary and therefore the precise area of claim are only ascertainable on a day when low tide is at this unpredictable extreme. He submitted that this makes for an unworkable basis for determining the boundary between the estate's private rights and the fishing community's public rights and, for that reason, a source of dispute and, as this case demonstrates, litigation.
36. In his challenge to Loose v Castleton Mr Fetherstonhaugh identified two particular matters which, he submitted, are of importance: (1) that the estate's claim made assumptions about the operation of what has been referred to as the doctrine of accretion, and (2) that, in any event, its claim was based on prescription, not express grant, so that it depended on user over time whereas the acts of user sufficient to support the fishery stemmed almost entirely from the 19^th century with 1629 as the first reference to the taking of mussels from the foreshore. It is to those issues that I now turn.

How does the doctrine of accretion apply to the Le Strange fishery?

37. The process whereby the boundary of land bounded by tidal waters is liable to change as a result of natural forces may result, depending on the effects of those forces, in a gradual increase (accretion or, as it is sometimes described, alluvion) or decrease (by erosion or diluvion) of the land in question. The doctrine operates to adjust the legal boundary of the land so affected. But, he submitted, it has a limited operation. It only applies where the process is gradual and imperceptible; it does not apply where the change in the boundary is as a result of a sudden and substantial occurrence.
38. In this connection Mr Fetherstonhaugh drew my attention to the passage from the judgment of Lord Wilberforce, when delivering the advice of the Privy Council in Southern Centre of Theosophy v South Australia [1982] AC 706 at 716, in which the nature of the doctrine of accretion and its limits are explained:

"This is a doctrine which gives recognition to the fact that where land is bounded by water, the forces of nature are likely to cause changes in the boundary between the land and the water. Where these changes are gradual and imperceptible (a phrase considered further below), the law considers the title to the land as applicable to the land as it may be so changed from time to time. This may be said to be based on grounds of convenience and fairness. Except in cases where a substantial and recognisable change in boundary has suddenly taken place (to which the doctrine of accretion does not apply), it is manifestly convenient to continue to regard the boundary between land and water as being where it is from day to day or year to year. To do so is also fair. If part of an owner's land is taken from him by erosion, or diluvion (i.e. advance of the water) it would be most inconvenient to regard the boundary as extending into the water: the landowner is treated as losing a portion of his land. So, if an addition is made to the land from what was previously water, it is only fair that the landowner's title should extend to it. The doctrine of accretion, in other words, is one which arises from the nature of land ownership from, in fact, the long-term ownership of property inherently subject to gradual processes of change. When land is conveyed, it is conveyed subject to and with the benefit of such subtractions and additions (within the limits of the doctrine) as may take place over the years. It may of course be excluded in any particular case, if such is the intention of the parties. But if a rule so firmly founded in justice and convenience is to be excluded, it is to be expected that the intention to do so should be plainly shown. The authorities have given recognition to this principle. They have firmly laid down that where land is granted with a water boundary, the title of the grantee extends to that land as added to or detracted from by accretion, or diluvion, and that this is so whether or not the grant is accompanied by a map showing the boundary, or contains a parcels clause stating the area of the Land, and whether or not the original boundary can be identified."

39. Basing himself on that passage, Mr Fetherstonhaugh submitted that the doctrine cannot apply where the gradual silting up of a channel causes an area of land, for example a sandbank which has hitherto been separated at all states of the tide from dry land, to become linked at low tide to the foreshore so that the person to whom the foreshore belongs or who has rights exercisable over that foreshore thereby acquires ownership of the sandbank or an extension of his rights over that sandbank. Such a process, he submitted, would amount to annexation of the sandbank, not accretion to the foreshore. There is, he said, no support in authority for this sudden and perceptible (as against gradual and imperceptible) territorial expansion. It would be sudden and perceptible, rather than gradual and imperceptible, because at one moment the sandbank is wholly out in the sea, even at low water, and at the next – when the channel separating the sandbank from the shore has finally silted up - the sandbank is all of a sudden linked to the foreshore at low water.
40. Mr Fetherstonhaugh went on to submit that the true and only extent to which the estate can claim any extended rights by the process of land accretion is by investigating the extent to which territorial increase has resulted from the gradual and imperceptible addition of material to the original foreshore where it abuts the estate manors. This necessitates, he said, an investigation into the historical extent of that foreshore. He submitted that the estate was unable even to speculate on the position prior to 1872. This was in reference to paragraph 65 of Mr Loose's witness statement in which, when describing the accretion of the Ferrier Sand to the foreshore, he says in terms that the position before 1872 Order (to which a plan was attached which showed how matters were at that date) "would be mere speculation." Mr Fetherstonhaugh drew my attention to the Henry Bell Chart of 1693 which shows the Stubborn Sand as separated from the estate foreshore and shows a vestigial foreshore along the coast as far as Wolferton Creek. The evidence, such as it is, shows, he submitted, that roughly the northern half of the estate fishery was confined to the then shore and was divided from the Stubborn Sand by a channel giving access to nearby Heacham Harbour. He submitted that the fishery should be confined to that strip of the shore. He accepted that the foreshore of the southern half of the fishery does not appear from the Henry Bell Chart to have been similarly confined and that (subject to the prescription issue which I come to next) the doctrine of accretion was capable of applying to the westward extension of that part of the foreshore as shown in the various 19^th century charts. But, he continued, the estate would have to prove to what extent the silt that blocked the Old Channel (which, as I have earlier explained, was the channel, since replaced by a channel lying further to the west, which in former days provided a means of navigation to King's Lynn) accreted to the (eastern) Stubborn side of that Channel, rather than to its western side. It was therefore necessary to exclude from the calculation (as being impermissible on a true understanding of the doctrine) any areas of land (predominantly if not exclusively the various sandbanks, namely South Sunk, Outer Ferrier, Ferrier, Peter Black and, possibly, Sunk Sands) made accessible on foot at low tide from the shoreline by the silting up of the former channels which separated them from the shore (as all once were). In short, a proper application of the doctrine of accretion has the consequence that those sandbanks, long separated from the estate's part of coast by the sea and by former navigational channels, form no part of the estate fishery or its foreshore.
41. The fact, said Mr Fetherstonhaugh, that the process of establishing the true extent of the fishery and foreshore might be very difficult and that conventional tidal measures could not provide a means of doing so was not of the defendants' making. It was for the estate and Mr Loose to establish the extent of their ever-expanding claims if they wished to assert them against people such as the defendants. Summarising the defendants' case on the application of the doctrine of accretion, he submitted, first, that the estate had failed to make a case for claiming any rights over the sandbanks formerly standing off the foreshore (including the South Sunk, Outer Ferrier, Ferrier, Peter Black, Styleman's Middle and Sunk Sands, as well as the Stubborn Sand) and, second, that even if it were assumed, contrary to the evidence, that the Stubborn Sand was part of the estate foreshore, the estate had not established that any of the accretion, properly so called, consisting of the silting up of the Old Channel should be treated as accruing to the Stubborn Sand rather than to the other sandbanks (which were not part of the accreted estate foreshore so that the accretions to them should equally not be so treated).
42. I cannot accept this argument. I see no reason in principle for limiting the doctrine's application to some types of alteration in the boundary between land and sea and not to others. Aside from the practical difficulties of distinguishing between one type of alteration and another I do not see that it matters that, provided the process of change has been gradual and imperceptible (in the sense that it occurs only slowly and change is not noticeable from one day to the next), the change may result in some natural feature, whether it is a sandbank or a reef, becoming a part of the accreted land.
43. Moreover, the argument, if correct, has the consequence that Stubborn Sand which, as Mr Fetherstonhaugh pointed out, the Henry Bell Chart of 1693 shows as a separate sandbank at low water but which, with the silting up of the channel that once separated it from the shoreline, has long since been accessible on foot at low water is not to be regarded as having become part of the estate fishery whereas the former channel, now long since silted up, is to be. Such a conclusion is not to be reconciled with the findings in Loose v Castleton. In that case no issue was taken over the fact that to reach low-water to fish for mussels it would be necessary to walk over, for example, Stubborn Sand to where low-water is on the western edge of that sandbank. The argument, if correct, would therefore mean that the decision of the Court of Appeal in that case was wrongly reached. In any case, as Mr Davey pointed out, if, as the court there held, the grant was of a right to fish over the foreshore (as it varies from time to time) at least to MLWS, then accretion simply does not come into play: it is taken into account in the nature of the grant.
44. In my judgment the doctrine of accretion, if it is relevant at all, does not exclude from its operation a sandbank which was once always surrounded by the sea, even at the lowest of low tides, and which, by the slow process of siltation of the adjacent channels, has become accessible from the shoreline at low tide. It follows that Stubborn Sand, to take that example, has by this process long since become a part of the area subject to the estate fishery. It also follows that the decision in Loose v Castleton was not incorrectly reached (even if it were open to me to say so) because the point now taken was not taken in that case.
45. Mr Fetherstonhaugh submitted that to extend the operation of the doctrine of accretion in this way could mean that in course of time the estate's fishery might, with the gradual silting up of the channels in the eastern half of the Wash, extend gradually further and further to the west and encompass other sandbanks, for example Styleman's Middle which lies to the west of Ferrier Sand and thereby diminish even further the areas of fishing available to members of the public such as the defendants. So be it. The movements of the seas and the effects of wind and tide are never-ending. Who is to say that with climate change and the prospect of rising sea levels the processes which the defendants so lament will not be put into reverse to their advantage? The defendants' own expert evidence (I come later to the experts) was to the effect that what is described as a "coastal squeeze" of intertidal regions is predicted to occur within the next hundred years such that rising sea levels (resulting from climate change) will outpace the rate of sedimentation leading to a significant reduction in the area of intertidal regions and, quite possibly, to a reduction in the area of the Stubborn and Ferrier Sands.

Do fishery rights founded on prescription extend to land added by accretion?

46. This brings me to Mr Fetherstonhaugh's argument based on prescription. This assumed that he did not succeed on his point concerning the true scope of the doctrine of accretion. He submitted that as the Le Strange estate established its fishery in reliance on the doctrine of prescription and as there can have been no use, such as must be shown for the application of the doctrine, on those parts of today's foreshore which historically formed inaccessible parts of the seabed, it followed that the estate's fishery rights cannot extend to those parts of the estate foreshore that have become such by accretion in modern times. Were that not so, the argument ran, it would be as if new fishery rights have arisen otherwise than by Act of Parliament. It would be as if the Crown had granted rights over the accreted area notwithstanding that such a grant has not been possible since the death of Henry II. He therefore submitted that as and when the foreshore increases in extent by accretion, there is no scope for prescriptive fishery rights over the foreshore to increase with it.
47. Mr Fetherstonhaugh sought to find support for his submission in Corporation of Carlisle v Graham (1869) LR 4 Ex 361. But that case was not concerned with rights over land added by accretion to a foreshore in private ownership. The question for decision was whether a private fishery in a tidal river (the river Eden), the course of which altered so that the river flowed in another channel and ceased altogether to flow in the former channel (in which the fishery subsisted) shifted so that it followed the altered course of the river. The Court of Exchequer held that it did not. The doctrine of accretion was not in point. The only similarity is that the shift in the river from the one channel to the other happened over time and by slow degrees.
48. The question rather is whether land added by accretion takes the character, and therefore becomes subject to the same rights over it, as the land to which it has been added. This was the very issue that arose in Mercer v Denne [1904] 2 Ch 534 and in a similar context inasmuch as it concerned a right acquired by prescription. The right in issue was a custom for fishermen to spread their nets to dry upon the beach. The beach belonged to a private owner. Much of the case at first instance was concerned with whether the custom was one capable of subsisting as a valid legal custom - it was held that it could - and whether various documents were admissible in evidence to prove the existence of the custom in former times. A quite separate issue was whether the custom, if otherwise established, could apply to land added by accretion to land over which it could be shown that the custom existed. At first instance Farwell J held (at 557-560) that it could. His decision was upheld on appeal (at [1905] 2 Ch 538). Giving judgment on this issue, Stirling LJ said (at 581-582):

"It is next said that a considerable portion of the "beach ground" consists of an accretion during the last fifty or sixty years, and that the custom cannot extend to that part. Custom, it is argued, is a local law, which must have existed from time immemorial - that is, from the beginning of the reign of Richard I - and cannot be applicable to land which can be shewn to have emerged from the sea in modern times. In Rex v. Lord Yarborough… it was established that lands "formed by alluvion, that is by gradual and imperceptible deposit, on the shore of the sea," belonged, not to the Crown as owner of the foreshore, but to the owner of the demesne lands of a manor, which were formerly bounded by the sea, as parcel of those demesne lands. Every manor must have existed prior to the statute of Quia Emptores; but it was not suggested that the operation of the rule was excluded by reason of the accretions having taken place in modern times. The reason of that rule is stated by Alderson B. in In re Hull and Selby Ry. Co… to be "that which cannot be perceived in its progress is taken to be as if it never had existed at all." This was approved by Lord Chelmsford in Attorney-General v. Chambers…, and has been applied in the present case by Farwell J., who held that this accretion is to be treated as though it had occurred in 1189."

49. Cozens-Hardy LJ was to like effect (at 584):

"It is contended that the "local law" can only affect a definite close, which must have been available for the exercise of the customary right in the reign of Richard I., and that the evidence shews that a considerable part of the "beach ground," now eleven acres in extent, was at that time covered by the sea, and therefore could not have been used for drying nets. In my opinion this contention ought not to prevail. It appears certain, from the evidence of geologists and from the discovery of Roman remains immediately to the west of the "beach ground," that at least the western part of the "beach ground" existed in and long prior to the reign of Richard I. in substantially the same condition as it does at present. Within living memory the sea has gradually receded on this part of the coast, but there is nothing improbable in the suggestion that the reverse process may have gone on since the reign of Richard I., with the result that the line of high water is now practically the same as at that date, in which case the point under discussion would not arise. Assuming, however, that the sea has gradually and continuously receded, I think the land which has been added by accretion to the defendant's land must be subject to the customary right. The principle stated by Alderson B. in In re Hull and Selby Ry. Co.…, that "that which cannot be perceived in its progress is taken to be as if it never had existed at all" - a principle which is applied between two private owners, and between the Crown and a private owner - should be applied here. In the view of the law this is the same close as that which was affected by the local law in the time of Richard I. It is urged that this extension of area renders the custom uncertain, and, if the sea should still further recede, unreasonable. I cannot assent to that argument. It must not be forgotten that the persons claiming under the custom are bound to exercise their rights reasonably and with due regard to the interest of the owner of the soil."

50. Vaughan-Williams LJ agreed with both judgments on this issue.
51. So also here. Land added by accretion takes on the same character and becomes subject to the same rights as the land to which it has become added. The fact that the process of accretion has caused sandbanks to become adjoined to the foreshore at low water does not in my judgment prevent the principle from applying to the sandbanks. There is practical sense in this, given the nature of the fishery rights that are in play. For, as Mr Davey observed, although it is theoretically possible for a grant of a foreshore to be of a particular fixed area or of a moveable area (by which I understood him to mean one affected by changes in the coast line) it is highly unlikely to be fixed in its seaward extent if the grant is of a fishery since its very nature requires it to cover the area where shellfish are to be found from time to time. Or, as it was put by Sir Robert Megarry, V-C, in Baxendale v Instow Parish Council [1982] Ch 14 at 25D: "one would expect sea-grounds, oyster-layings, shores and fisheries to follow the sea as it advances or retreats."
52. I conclude therefore that the estate's private fishery extended to the land (including the sandbanks) which, by the process of accretion, became accessible on foot at low water from the estate's coast line.

What is the correct measure for determining the fishery's seaward boundary?

53. This brings me to the next issue which is scarcely less technical than the other two and is of equal practical importance. It concerns the measure to be applied in determining the estate fishery's seaward boundary. It is of practical importance because it determines the point beyond which, to landward, the public (and therefore the defendants) may not fish, whether at low water or at high. The question here, leaving aside for the moment the complications that would arise if Mr Fetherstonhaugh's accretion argument were correct, is whether the measure is, as Mr Loose contends (supported in this by the estate), LAT or whether, as the defendants contend, it is "MLW".
54. Mr Davey submitted that the issue was decided by the Court of Appeal in Loose v Castleton where it was held, in agreement with Judge Moylan at first instance, that the fishery extended "at least as far as the mean low-water mark of spring tides" (per Bridge LJ at 34) or "to where the mussels are exposed at low tide, wherever that is" (per Ormerod LJ at 39). I have already set out the relevant passages.
55. Mr Loose said in cross-examination that in his understanding "the whole of the shore that is from time to time exposed by the receding tide" (the description favoured in Loose v Castleton) meant LAT. That measure is the modern method (adopted in charts first published in 1972) of indicating how far the tide recedes in normal conditions. Given that as the years pass and the foreshore changes the boundary is inevitably one that varies, Mr Davey submitted that it was a practical and principled measure: it was practical because LAT is the measure taken for chart datum on current Admiralty charts and was the measure on which the 1992 Order was based; it was principled because it was consistent with the terms of the grants in the various leases granted over the past century and a half by the estate and with the approach favoured in Loose v Castleton.
56. Mr Fetherstonhaugh submitted that MLW, rather than any lower measure, was the appropriate level for four reasons: (1) it was in accordance with the authorities, (2) it represented the way in which the estate chose to limit its fishery in the 19^th century, (3) it was consistent with the way in which the estate had behaved in relation to the boundary over time, and (4) it enjoyed practical common sense considerations.
57. As to authority, Mr Fetherstonhaugh referred me to four cases for the proposition that MLW is the appropriate seaward limit. They were Blundell v Caterall (1821) 5 B & Ald 268, Scratton v Brown (1825) 5 B & C 485, Attorney-General v Chambers (1854) 4 De G M & G 206 and, much more recently, Stephens v Snell The Times 5 June 1954.
58. In Blundell v Caterall the question for decision by the Court of King's Bench was whether there existed a common law right for members of the public to pass over the shore for the purpose of bathing in the sea. The court held that no such right existed. In the course of the judgments that were delivered reference was made to the shore as being the land between the high and low water marks. Holroyd J (at 291) said that this was "according to Lord Hale's definition of the sea-shore, between those marks at ordinary tides, that is to say, between the ordinary flux and reflux of the sea." Such area belonged prima facie to the Crown. The case was not concerned with the physical limits of a private fishery.
59. In Scratton v Brown, also a decision of the Court of King's Bench, the question concerned what was meant in a lease by a grant of "sea-grounds, oyster layings, shores, and fisheries" extending "between high and low-water mark". The issues were (1) whether the grant was of the soil between those two levels or merely of the rights over it and (2), if of the soil, whether the area so granted was as it existed at the time of the grant, which had been in 1773, or whether, as the sea had gradually encroached, it was that land which from time to time lay between high and low-water marks. The court held that the grant was of the soil and not merely of the rights over it and that it was of the land between the high and low-water marks from time to time. On the second issue Bayley J said this (at 498-499):

"The land between high and low-water marks originally belonged to the Crown, and can only vest in a subject as the grantee of the Crown. The Crown by a grant of the sea-shore would convey, not that which at the time of the grant is between the high and low-water marks, but that which from time to time shall be between those two termini. Where the grantee has a freehold in that which the Crown grants, his freehold shifts as the sea recedes or encroaches. Then what was the object of the parties to the deed of 1773? To grant the land within certain limits. Those to the east and west were ascertained, but those on the north and south were to be ascertained by the high and low-water marks. I think that these words must be construed with reference to the rule of the common law upon the subject of accretion, and that as the high and low-water marks shift, the property conveyed also shifts."

60. The court in that case was not concerned to define what those limits were.
61. In Attorney-General v Chambers the question concerned the landward extent of the Crown's ownership of the seashore. The dispute was over some valuable coal seams which extended from the land under the seashore below the line of high water and thence under the sea. In his judgment the Lord Chancellor, Lord Cranworth (assisted by Alderson B and Maule J), after stating the question was whether the Crown's ownership of the seashore was so much as is covered by ordinary spring tides, or something less, said this (at 218):

"…we can only look to the principle of the rule which gives the shore to the Crown. That principle I take to be that it is land not capable of ordinary cultivation, and so is in the nature of unappropriated soil. Lord Hale gives as his reason for thinking that lands only covered by the high spring tides do not belong to the Crown, that such lands are for the most part dry and maniorable; and taking this passage as the only authority at all capable of guiding us, the reasonable conclusion is, that the Crown's right is limited to land which is for the most part not dry and maniorable.

The learned judges whose assistance I had in this very obscure question point out that the limit indicating such land is the line of the medium high tide between the springs and the neaps. All land below that line is more often than not covered at high water, and so may justly be said, in the language of Lord Hale, to be covered by the ordinary flux of the sea. This cannot be said of any land above that line; and I therefore concur with the able opinion of the Judges, whose valuable assistance I had, in thinking that medium line must be treated as bounding the right of the Crown."

62. It is to be noticed, however, that that case was concerned with ownership of the shore, in particular where, absent a specific grant, the boundary lies of the Crown's ownership. It was not concerned with rights exercisable over or on the shore, such as a private right of fishery. It could be said that different considerations are in play where that is the nature of the right claimed. Not the least of those is that the ownership of the shore may be separate from ownership of the fishery. I do not find that this decision really assists.
63. Stephens v Snell is more in point. In that case the main of purpose was to fix the seaward boundary of the fishery. In his judgment, which is very shortly reported, Vaisey J said, agreeing with the claimant in the case, that he was satisfied, "inconvenient and uncertain though such a boundary might be" that the fishery "extended to the seaward as far as the line of the mean low-water mark of ordinary tides between springs and neaps as it existed from time to time." The judge then referred to a passage from the 6^th edition of Coulson and Forbes on the Law of Waters. This was to the effect that "the low water-mark of ordinary tides was the legal seaward limit of the Kingdom and therefore of any manor of the Kingdom on the coast" with the consequence that "the land below such low-water mark, whether at any particular moment it was left bare or covered with water, was not and could not be any part of the Kingdom or of any manor in the Kingdom."
64. There are three points to make about that authority. The first is that the case is so briefly reported that it is not evident quite what was argued, not least what the defendants were arguing. The second point is that the successful claimant was the party concerned to assert that the seaward limit was further out from the shoreline rather than closer in to it whereas the defendants who were local fishermen were presumably concerned to argue for a seaward limit as close to the shoreline as possible. For all that the report discloses it may well be that the claimant was content to argue for the mean low-water mark of ordinary tides between springs and neaps as rather than some lower level. It is scarcely likely that the defendants would have argued for an even lower level. The third point is that the reference to Coulson and Forbes, like the decision in Attorney-General v Chambers, was concerned with ownership of the soil, not with the seaward boundary of a private fishery.
65. Whatever conclusions are to be drawn from those authorities, the fact of the matter is, as Mr Davey pointed out, that Mr Fetherstonhaugh was faced with the clear decision of the Court of Appeal in Loose v Castleton, concerned with this very fishery, to the effect that the seaward limit of the fishery was "as far as [it] can be worked without boats from the shore at extreme low water." Mr Fetherstonhaugh was driven therefore to submit that the decision was wrongly reached and that I should not follow it. He submitted that Judge Moylan was wrong to be swayed in his decision by what was said in Gann v Free Fishers of Whitstable and that the Court of Appeal was too. Likewise, he said, Judge Moylan and the Court of Appeal should not have placed reliance on modern shell fishing practices and instead should have concentrated on what the practices were in the 19^th century (and therefore on the seaward boundary that was then sufficient for those practices).
66. In Gann the Company of Free Fishers claimed to have acquired manorial rights to the seabed, an oyster fishery and the collection of a toll for anchorage, extending two miles from the Whitstable coast and well beyond the foreshore. The House of Lords held that it was not open to the Company to exact an anchorage toll, notwithstanding the immemorial exaction of such a toll. The objection made by Mr Fetherstonhaugh to the reliance placed on Gann in Loose v Castleton was that Gann decided nothing about the extent of the oyster fishery. Instead its validity was assumed because it was conceded to exist for the purpose of the case. That is correct but the significance of Gann, and the reason it was cited as supportive of the proposition that a private fishery could extend to seaward of MLW, was that not only was it assumed on all sides that a private fishery (in that case an oystery) could extend well beyond MLW but also because Parliament had so assumed in enacting a statute in 1793 which incorporated the Company and was "for the better ordering and government of the Fishery." The point, and an objection to the placing of any reliance on Gann similar to Mr Fetherstonhaugh's, was dealt with thus by Bridge LJ (at 32):

"Mr. Claiborne [counsel for Mr Castleton] submits that there is no authority to support that proposition as stated in Mr. Moore's work. With respect, I cannot agree. It seems to me that clear authority in support of it is to be found in the well known case of Gann v. Free Fishers of Whitstable. As Mr. Claiborne rightly submitted, that was not a case in which the right of oyster-fishery claimed by the Company of Free Fishers and Dredgers of Whitstable in the bed of the sea off Whitstable was directly in issue. What was in issue before their Lordships' House was the legality of a claim of right by the company to levy an anchorage toll on ships navigating in the area when they anchored anywhere within the area of the oyster beds and whether or not damage to the oyster beds was thereby occasioned. That notwithstanding, I take the case as clear authority for the proposition that a several fishery in private ownership can lawfully subsist in relation to areas seaward of the mean low-water mark of ordinary spring tides, for these reasons: the statement of facts in the report refers to a deed of 1792 that recited that:

within the limits of the said manor of Whitstable there is, and for many hundred years now last past hath been, a fishery for the growth and improvement of oysters, extending from the sea-beach to a very considerable distance into the sea, and which fishery, during all that time, hath been managed and carried on by, and at the expense of, a certain company of free dredgers called " the Whitstable Company of Dredgers," who have held the same from time to time as tenants under the lord of the said manor, and claim to be entitled to hold the same as free fishers, on payment of such annual rents as are hereinafter mentioned.

A year after the date of that deed (as the statement of facts again indicates), there was enacted a statute, 33 Geo. 3, c. 42, the purpose of which was to incorporate the Company of Free Fishers and Dredgers of Whitstable by statute, and that statute, again, recited that there had been, time out of mind, an oyster-fishery within the limits of the manor and royalty of Whitstable, extending from the sea-beach a very considerable distance into the sea. In the light of those statements of fact it is to be observed that, as it seems to me, none of their Lordships in their speeches in any way questioned the legality of the fishery claim that was there made and that had received Parliamentary recognition. Indeed, the speech of Lord Westbury L.C. proceeded expressly on the basis that the claim, albeit not in issue, was one that was proper to be taken as established."

67. It is not open to Mr Fetherstonhaugh to seek to re-open before this court a point that was decided by the Court of Appeal in that case and with which, with respect, it is impossible to quarrel.
68. As to the point regarding modern shell fishing practices it is to be noted that in Mercer v Denne (referred to earlier) Farwell J said (at 552), in reference to the prescriptive custom there in issue (that of drying nets on a beach near Walmer in Kent) and in answer to an argument similar to the point raised by Mr Fetherstonhaugh, that "if the fisherman of Walmer may dry their nets only on condition of fishing for such fish and at such times and with such nets as the fishermen in the reign of Richard I used to do, all improvements and progress are debarred. But there is no authority or principle for any such contention. A custom is not uncertain because it is not invariable in every part." Farwell J went on later (at 553) to refer to the case of Fitch v Rawling (1795) 2 Hy Bl 393 where a custom for all the inhabitants to play all kinds of lawful games, sports and pastimes in a particular place at all seasonable times of the year was held to justify the playing of cricket there even though it was reasonably certain that cricket was unknown until long after the time of Richard I. In the Court of Appeal in Mercer v Denne [1905] 2 Ch 538 Stirling LJ referred (at 581) to what was said by Lord St Leonards in Dyce v Lady Hay (1852) 1 Macq 305 at 312 to the effect that "those who are entitled to the benefit of a custom ought not to be deprived of that benefit simply because they take advantage of modern inventions or new operations, so long as they do not thereby throw an unreasonable burden on the landowner." Cozens-Hardy LJ was to like effect (at 585-586). I do not therefore consider that the fact that shell fishing practices have changed over the years means that those practices are not relevant to the manner in which a person may legitimately exercise his private fishery and, if it be the case, that the person may not, by using those modern practices, exercise his private fishing rights further to seaward than in earlier years. I see no reason for thinking that the courts in Loose v Castleton were in any way misled, much less in error, in this regard either.
69. That brings me to Mr Fetherstonhaugh's second point which is how the estate chose to limit its fishery in the 19^th century. The area covered by the regulating fishery established by the 1872 Order was described both in words and by reference to a chart deposited at the Board of Trade. The eastern boundary of the area, where it abuts the western edge of the estate's fishery, was defined in the following terms:

"... to the Wolferton Creek, and thence following the course, at low water, of the said creek to the point where the water of this creek discharges itself into the old channel, thence in a northerly and north easterly direction along the line of ordinary low water mark, by the western side of the Stubborn Sand ..."

70. The reference there to "the line of ordinary low water mark" is to MLW. The boundary line thus described included (as part of the regulating fishery thereby established) the Old Channel, the Ferrier Sand to the west down to a point well to the south of the current claim by the estate, and the Sunk Sand at the northern end of the area.
71. The estate went further than simply failing to assert any right to a fishery to the west of the 1872 Order boundary when, some years later, it chose to define the western boundary of its fishery consistently with the definition of the eastern boundary of the public fishery established by the 1872 Order. This occurred when the estate sought a fishery order for in the early 1880s. It resulted in the making of the Le Strange Fishery Order 1883 ("the 1883 Order"). The draft Provisional Order, dated 25 May 1882, dealt with two areas: (a) the northern area by Hunstanton, and (b) the southern area "between high and low water marks of ordinary tides" between Snettisham to the north, "and on the south by the old channel of Wolferton Creek". The plan accompanying the draft showed that the western boundary of this area was designed to be contiguous with the eastern boundary of the Lynn Fishery Order area.
72. Mr Fetherstonhaugh submitted that this was deliberate, and was intended to delineate with precision the western extent of the estate's foreshore claim. He submitted that this was plain from the submissions of the estate's counsel in the Le Strange v Corporation of Lynn litigation of 1885. In the course of his opening in that case, counsel is reported as stating that the issue was "as to what is the boundary between their [i.e. the Corporation's and the estate's] respective fisheries on the seashore, these fisheries being coterminous". Counsel in that case later referred to the history of the estate having to defend its title against trespassers, and continued:

"Mr le Strange determined to apply for an order defining the limits of his shore fishery and this he did, and obtained an order in March 1879. The Corporation had already got a similar order defining the limits of their fishery, and if you will be kind enough to look at that map, you will see that the Corporation Fishery is included within the whole of those red lines. ... It runs along Wolferton Creek and so along above the Stubborn sand to a point called Gore Point. I need not trouble you with anything further except to point out to you that the Stubborn Sand — or between that line and the coast — is left to Mr le Strange; Mr le Strange claiming, so far as these orders are concerned, only the oyster and mussel fishery and so forth, upon the shore from coastline down to low watermark, which is delineated by a red line just beyond the words Stubborn Sand."

73. Mr Fetherstonhaugh had three points to make about this passage: (a) the estate was avowedly determined to set out all its rights in the southern area, and not simply some of them; (b) although these rights were confined to oysters and mussels, it is not credible that the estate would have wished to claim more extensive rights in the case of cockles; and (c) the estate was claiming such rights (as "the limits of his shore fishery") only down to MLW.
74. As it happens, when the 1883 Order came to be made it related only to the northern area. It excluded the southern Wolferton Creek area, apparently because of an objection to it that had been taken by the local Fisheries Committee. This, it appears, was an objection by the Fisheries Committee to the estate's title, and not an objection by the estate to the Corporation's fishery. Mr Fetherstonhaugh submitted that that should not detract from the significance of the stance taken publicly by the estate to the limits of its fishery at its western edge.
75. Mr Fetherstonhaugh's third (and related) point was that the estate's behaviour over time showed that until recently it always expected its fishery rights to be confined to the line of MLW. There is really no dispute that up to the second half of the 19^th century, indeed until rather later, the estate made no attempt to claim any rights beyond the existing foreshore in the area of the Stubborn Sand. By 1961, as Mr Loose himself stated (in paragraph 61 of his witness statement), it was possible to cross to the Ferrier Sands at their southern end. Yet it was only in the mid-1980s that he began to assert the estate's claim to any rights in that area. In elaboration of this point Mr Fetherstonhaugh pointed to the following matters concerning the absence of any claim by the estate to rights over the Ferrier Sand: (1) the fact that although the Old Channel had silted up by the early part of the last century and it was possible to cross from the Stubborn Sand to Ferrier Sand at low water to the north of Wolferton Creek the estate did not appear to regard the Ferrier Sand as part of the fishery inasmuch as it did not include it within the area demised by the lease which (the then) Hamon Le Strange granted to Robert and Samuel Osborne in May 1903, (2) the apparent absence of any attempt by the estate to argue that the Ferrier Sand should not have been included in the 1912 Order, (3) a suggestion in the evidence of John Richardson, a retired fisherman, that when he worked for Mr Loose's grandfather in the late 1940s neither he nor Mr Loose senior fished on the Ferrier Sand, (4) Mr Loose's inability to explain why the plan to the 1965 lease granted to him by Hamon Le Strange failed to include (as part of the fishery leased to him) the whole of the Ferrier Sand, (5) the fact that the plan attached to Mr Loose's 1970 lease omitted (as part of the fishery leased to him) so much of the Ferrier Sand as lay on the seaward side of the silted up Old Channel and (6) the fact that when in the course of the Loose v Castleton litigation the plan attached to the 1970 lease was amended the effect of the amendments was to reduce the area of the Ferrier Sand included within the demise to him so that the area so demised corresponded with what was outside the area shown on the plans to the 1872 and 1932 Orders as bounding the seaward limit of the estate's fishery where it adjoined the Ferrier Sand. Mr Fetherstonhaugh submitted that given the zeal with which the estate protected it rights in the 19^th century and subsequently these matters suggested that the arguments now mounted by the estate (and Mr Loose) were recent afterthoughts.
76. I see the force of Mr Fetherstonhaugh's second and third points. There are, I think, two answers to them. The first is that in the absence of any argument based upon estoppel or acquiescence or the like it is difficult to see where they get the defendants. It is frequently the case that a litigant only wakes up late in the day to what his rights are and can be criticised for failing to assert them any sooner. In an area of law as obscure as this I do not find it surprising that some of the points now pursued are ones which were not taken up in earlier times. The second is that the disjunction between the wording of the 1872 Order (coupled with the estate's stance at the time that it was seeking its own fishery order and went about granting leases of the fishery) was considered by the Court of Appeal in Loose v Castleton. The court found that these matters did not constitute an obstacle to Mr Loose's claim. I have summarised (at paragraph 31 above) what Bridge LJ had to say about them.
77. Coming to Mr Fetherstonhaugh's last point (practicality), it was submitted that it made sense to adopt MLW as the measure because it was no more than the average of the lower tidal ranges, thereby evening out tidal extremes and avoiding what were referred to as the vagaries of meteorological effects and daily estimation, and because it was more likely to be what ordinary fishermen, lacking complicated and expensive measuring equipment, would have used. The truth, however, is that viewed from the standpoint of a fisherman any measure presents practical problems. With imperceptible but constant alterations over time to the channels and sandbanks, MLW is just as much of an arbitrary and gradually shifting line on a chart as is any other measure. It is difficult to see why practicality should lead to a conclusion different from what was decided in Loose v Castleton even if I did not consider myself to be bound by that authority.

Where then does the seaward boundary lie of the Le Strange fishery?

78. In her very concise skeleton argument Ms Meech pointed out that Mr Loose's amended particulars of claim and the defendants' counterclaim and also their part 20 claim against her client, Mr Meakin, all asked the court to determine the extent of the estate fishery. In her commendably brief closing submissions Ms Meech again urged me to declare where the boundary lies. The question is whether I should do so.
79. In Loose v Castleton Mr Loose had been content to limit his claim to MLWS. The Court of Appeal in that case did not feel that it was appropriate to define the boundary by reference to modern tidal concepts but instead to approach the matter by adopting a practical approach and asking where the mussels (the shellfish in question in that litigation) could best be exploited. That, they found, was where they were exposed at low tide. They concluded therefore that the seaward limit of the fishery was "the whole of the shore that is from time to time exposed at low tide" (per Bridge LJ) or "to where the mussels are exposed at low tide, wherever that is" (per Ormerod LJ).
80. Should I accept the invitation to tread where the Court of Appeal felt it unnecessary to go and attempt to determine by reference to modern tidal terms where exactly the line is? The question is essentially a practical one, and there are two sides to it. On the one side is the need for the estate and its lessees from time to time (currently Mr Loose and his licensees) to know, in varying tidal states, how far out on foot a man may go to collect fish. On the other is the need for the general public to know how far towards the shoreline they may take their fishing boats when the tide is in. The difference is not slight. The expert evidence before me on this and other matters was twofold. On behalf of Mr Loose there was a report by Patrick Franklin, a marine biologist with eight years of practical experience in the fish and shellfish farming industry and many more as a fisheries and aquaculture consultant. The expert on behalf of the defendants was Dr S. E Taylor who is managing director of a company specialising in, among other matters, electronic navigation and tidal analysis and prediction. Neither expert was called. Instead I was invited to read their reports. They were impressive in the thoroughness of their treatment of the topics which they covered. Dr Taylor pointed out that in this area of the Wash the height difference between MLW and LAT is about 1.5m and that the horizontal distance between the two is about 1.5km resulting in a gradient of about 1:1000. The differences between the various tidal levels in terms of horizontal distance are therefore considerable. This was also evident from Mr Franklin's report.
81. Mr Loose contended that the seaward boundary of the estate fishery was at LAT. He did not think it necessary to go further, as the expert evidence might have justified, and claim that there might be very rare occasions when, as a result of freak conditions (a so-called negative surge combined with high atmospheric pressure and an offshore wind coinciding with a spring tide just after a new moon), low tide might witness a tide lower even than LAT.
82. LAT is defined by the UK's leading tidal authorities as meaning "the lowest level that can be expected to occur under average meteorological conditions and under any combination of astronomical conditions" (according to the Proudman Oceanographic Laboratory), alternatively "the lowest level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions" (according to the Admiralty Tide Tables produce by the UK Hydrographic Office). But as the expert evidence went on to point out, LAT only occurs once every 18.6 years.
83. Two considerations weigh with me in reaching a view on this issue. The first is that, as the authorities cited to me have shown, the courts have traditionally adopted a pragmatic approach when determining where the boundary lies on the shore between what belongs to the Crown and what belongs to the person whose land runs down to the shore. As Attorney-General v Chambers showed, the court in that case adopted the essentially practical test of the line of the medium high tide between spring and neap tides The second is that it seems somewhat odd, where one is looking for a workable definition, capable of everyday application, of where the seaward boundary lies of a commercial fishery, to have regard to a tidal measure that is calculated to occur only slightly more than fives times every century.
84. If I am to venture a view as to where the seaward boundary lies and not leave the issue as a continuing source of dispute, I consider that it must be something less than LAT, let alone ELW. The definition of MLWS is the average heights of low water that can be expected under normal meteorological conditions when the tides are in their spring phase. According to the Proudman Oceanographic Laboratory it is reached by calculating the average height obtained throughout the year (when the average maximum declination of the moon is 23.5 degrees) of two successive low waters during those periods when the range of tides is at its greatest. It is an average founded on frequently occurring low tides in their spring phase, rather than a level – LAT - which occurs roughly once in every generation. MLWS seems to me to be the most practical of the various measures on offer: it is consistent with the conclusion reached in Loose v Castleton although it is expressing a view which the court there thought it unnecessary and, given the prescriptive origin of the fishery, inappropriate to do.

The allegations of trespass

85. There are three matters to be decided. The first is whether the defendants were fishing for cockles in the area of the estate fishery on the occasions that Mr Loose alleges. This involves deciding where exactly they were on those dates and what they were doing. The second is what quantities of cockles the defendants landed as a result of such fishing. The third is the value to be attributed to the cockles landed.

(a) Fishing by the defendants during the period 26 July to 10 September

86. The activities of which Mr Loose complains are alleged to have occurred on various dates between 26 July and 10 September 2007. Mr Loose alleges that during that period thirteen fishing vessels owned or operated by the defendants were seen fishing in the area of the estate fishery and that they were fishing for cockles. The first defendant, Lynn Shellfish Limited ("LSL"), operates a number of such boats, some of which at the time were registered in the name of the second defendant, John Williamson, and others of which were registered in the name of his son, Stephen Williamson, who is the third defendant. John Williamson is the managing director of LSL and Stephen Williamson is its company secretary and also a director. Nine of the vessels said to have been trespassing on the days in question were operated by LSL (and registered in the names either of John Williamson or of his son). One of the other four, the Sarah Louise, was owned by the fourth defendant, Martin Garnett, and his father, Bob Garnett, and another, the Harvester, by Bob Garnett. It appears that father and son frequently swapped the skippering of these two boats so that on one day the one might be in charge one of them and the other of the other and on the next day they might swap boats. Of the remaining two, the Pamela Mary was owned and operated by the fifth defendant, Jason Leman, and the other, the Antares II, was owned by the sixth defendant, Eric Oughton, who at the time in question employed John Ashton to skipper it for him.
87. There is a context to these allegations. It is that the estate's private fishery rights had long been a source of dispute and unhappiness in the local fishing community. The claim, now made good in these proceedings, that the fishery was more extensive in area even than the fishing community had understood and reluctantly accepted only added to the community's general discontent about the matter. For them the greater the area of the estate's fishery the smaller the area left to them to fish. As it is, persons wishing to fish in the publicly available areas of the Wash, namely the areas covered by the regulating fishery operated pursuant to the various Fishery Orders in force from time to time, need a licence to do so and such licences are hard to come by. The discovery that the eastern boundary of the regulating fishery under the 1992 Order (where it abutted the estate fishery) had moved seaward was a cause of further discontent, not least when, as is common ground, the reason for the alteration was the claim by the estate to extended rights and its success in persuading both the Eastern Sea Fisheries Joint Committee and the Crown Estate to exclude from their respective jurisdictions areas that had previously formed part of the public fishery. The fishing community found it hard to accept that the area they had long fished could suddenly change. Their sense of resentment was particularly focused on the Ferrier and Outer Ferrier Sands areas.
88. It seems that, angered by the estate's claim that its fishery included the Ferrier Sand, the Williamsons and others resolved to make a public stand in defence of what they regarded as their historic rights. In his witness statement Stephen Williamson sets the scene for what followed:

"In 1992, during the negotiations for the renewal of the Wash Fishery Order, a large area of the public fishery in the Wash was taken from the public fishery without the consultation or approval of the fishermen and given to the Le Strange Estate; this included the Ferrier and Outer Ferrier Sands. I do not know by what authority this area was taken from us and given to the private sector.

We claim the historic right to fish the Ferrier and Outer Ferrier Sands amongst other areas wrongfully taken from the Wash fisherman and the right to contest an area claimed by the Le Strange Estate by deceit. We would like the area returned to the public fishery under the control of ESFJC [the Eastern Sea Fisheries Joint Committee] and Natural England so that all Wash fishermen can earn a respectable living from this wild and natural habitat [t]aking into consideration that all of the Wash is part of an SSSI site and not just part of it.

I deny the allegation of trespass as claimed by the Claimant as I do not believe that he is entitled to the Ferrier Sands as a private fishery. A number of fishermen, I cannot recall exactly whom, decided to force the issue of the ownership of the Ferrier Sands with the Claimant, by deliberately sailing onto the Ferrier Sands. This was intended to be a protest. This was not done in the dark but in the light of day for everyone to see and to bring this to a head…"

89. There is no dispute about the defendants' motives. Mr Fetherstonhaugh frankly stated that the defendants took the decision to fish in the disputed area and leave it to Mr Loose to sue if he thought fit, that there was nothing underhand or secretive about this, not least when the "incursions" (as he described them) on the first two days were in clear daylight and would have been obvious to Mr Loose and his associates, and that the avowed purpose of the incursions was to fish the disputed area, not to fish in what had been accepted was the "traditional" estate fishery.
90. Alerted to this, Mr Loose arranged for a number of vessels to track the defendants' vessels and note down where they were to be seen fishing for cockles (using, it would seem, a dredging system which sucks up the cockles from the sea bed) within the area of the fishery. Among the observing vessels (which, I understand, were also there to fish) were boats owned by Mr Loose and operated by his three sons, Peter, David and Timothy who each gave evidence about what they did and were cross-examined on their witness statements. Other boats were operated by persons employed by Mr John Lake who, it seems, had a licence from Mr Loose to fish in the estate fishery. He too gave evidence.
91. I do not intend to set out at any length the evidence bearing on what the observing vessels did. The upshot is that I am satisfied (1) that the various defendants' vessels were observed on the dates and at the times and in the positions which are set out in the form of a schedule to be found at trial bundle E, pages 866 to 874 and 876, and (2) that in the course of so doing the observer vessels came close enough to the vessels they were tracking, and had the necessary equipment on board, to be able with reasonable accuracy to identify the vessels they were tracking and note down the co-ordinates of their positions. Their ability to do so was hotly challenged. It was said that as some of the operations after 26 July (the first occasion) were at night when it was dark this would have been very difficult and dangerous, that on their own evidence the Loose brothers stated (or at one stage were stating ) that some of the vessels they were tracking had no lights on and therefore that it would have been exceedingly difficult to have identified the tracked vessel, that it would have been difficult, to say the least, to manoeuvre the observing vessel into position near to the tracked vessel (by passing across its stern) and be able to note down accurately the information needed to compile the schedule, that the coordinates noted down were those of the observing vessel and not of the tracked vessel and it was not evident how far the observing vessel was from the tracked vessel when the reading was taken, that several of the readings were apparently taken from the same observing vessel of different tracked vessels at the exactly the same time and that some of the information was missing, had been wrongly transcribed and was in any event simply inaccurate.
92. The defendants' own evidence was to the effect either that they were not out fishing on all of the occasions in question, or that they could not have been in the area plotted in the schedule as they were somewhere quite different, or that if they were where they were sighted they were not fishing at that particular moment but were simply passing by. I have taken all these and other objections into account in reaching my conclusion accepting the essential accuracy of the plotted positions and times of sighting. In this regard I have had the benefit of a series of charts prepared by Mr Franklin on which, as I understood it, are marked the positions of each tracked vessel using the co-ordinates noted down for that vessel by the observer vessels. With a very few exceptions the charts show the tracked vessels to be landward of the line depicting MLWS. Those exceptions are the Georgie Fisher (two of the positions on 5 September), the Jaleto (two of the positions on 28 August and four of the positions on 5 September) – they were both vessels operated by LSL - and the Harvester (two of the positions on 28 August). There may also be a position plotted for the Antaries II on 28 August which was seaward of MLWS. In case this is of importance I note that none of the charts shows the position of any tracked vessel to be seaward of LAT.
93. Another factor which has weighed with me in accepting the essential accuracy of the plotted positions (and their dates and times) is the absence of any reliable countervailing evidence from those whose vessels were being tracked. I can quite see that this might not have been practicable when they were busy at sea and were suddenly visited by the observer vessel but it is to be expected that on the first day, 26 July, when most of the defendants' vessels made their show of protest they might have taken steps to plot exactly where their vessels were from time to time that evening. But there is no such evidence. As the point of the protest was to assert the right of the fishing community to fish for cockles in an area claimed by the estate as its private fishery, albeit outside the area of that fishery as traditionally understood, it is hardly surprising that the tracked vessels were spotted in that very area and were observed to be fishing for cockles.

(b) The defendants' landings

94. This brings me to the next and rather more difficult issue, namely the quantities of cockles landed by each tracked vessel of the defendants on the occasions in question. On this Mr Loose's evidence was very sparse. LSL and the two Williamsons can be taken together. They and the other three defendants must be considered separately.
95. Mr Stephen Williamson attached to his witness statement a typed-up schedule of the cockles landed from LSL's vessels – of which there nine - "on the dates of the alleged trespass from the Ferrier Sands." The schedule lists the tonnages caught by each vessel. The overall total is 92 tons. (By "ton", I was told, was meant 1000 kg which is more accurately described as a metric tonne.) Later pages set out, vessel by vessel, the tonnages taken on various dates between 26 July and 10 September. The difficulty about these figures, as Mr Davey pointed out, was that they were confined to what was caught from the area of the Ferrier Sand whereas Mr Franklin's charts show that most of the sightings were taken when the defendants' vessels were in the area of the Stubborn Sand. On that footing it is quite possible, indeed likely, as Mr Davey submitted, that the schedule referred to in Mr Williamson's statement understates the quantities landed. Mr Williamson was cross-examined on his handwritten jottings of the quantities landed which went to make up the typed-up figures. Those jottings show a series of tonnages under the heading "public" which meant that the tonnages in question came from the public fishery. Mr Williamson whose job is shore-based said that he merely noted down what he was told by the skippers of the vessels to which the tonnages related and did so as the cockles were landed. He said that he was doing so at this time and not because it was part of his normal duties to do so. The ratio of "Ferrier" derived cockles as against "Public" derived cockles, at any rate on the particular page of jottings on which he was cross-examined, was 3:29 for 27 August and 2:27 for the following day. Mr Williamson denied that he had under-recorded what he had been told.
96. There is a quite separate schedule, to be found in trial bundle E at pages 896a to c, headed "Schedule of Dredge Cockle Invoices" setting out dates, numbers and amounts per vessel for dates between 27 July and 21 September relating to each of the same nine vessels. The fundamental difficulty about this schedule, indeed about this aspect of the dispute, is not so much the quantity of cockles landed by each vessel between the relevant dates - that is information which is or should be readily available and in any case I was given to understand that the invoice amounts shown on the schedule are not challenged – as knowing whether the cockles landed came from the estate fishery or from the public fishery.
97. A separate assessment of what was landed, and then only on 28, 29 and 30 August and 5 and 6 September, was provided by Mr Loose and Mr Lake. This was based upon their observations by the quayside as the vessels landed their catches. The quantities (mostly in terms of bags landed) which, they claimed to have seen being landed are summarised on three lists. There are a number of difficulties about this evidence and the weight that can be attached to it. Not the least of the difficulties is that, according to my note of the dates when the public fishery was open for cockle fishing, each of the four days when Mr Loose and Mr Lake were present to watch what was landed was a day when the public fishery was open. That aside their evidence came in for justified criticism. Thus, some of the vessels noted do not relate to the defendants' vessels; the most detailed list (it relates to observations made on 30 and 31 August and 6 September) was compiled by Mrs Margaret Loose (Mr Loose's wife) who, however, did not attend to give evidence notwithstanding that she had provided a short witness statement. Mr Loose accepted in cross-examination that his wife was seated in a car on the other side of the dock some distance from where the landings were taking place at the time that they recorded what was being landed. Mr Loose Mr Lake stated in his witness statement that it was he who took down the details which appear in the schedule attached to that statement whereas in his oral evidence he said that it was Mr Loose (in whose company he said that he was at the time) who wrote them down. Nor was it clear just where Mr Loose and Mr Lake were when they said that they watched and recorded what was being landed. This is important because the number of bags which they and Mrs Loose noted down were based entirely on quayside estimations of what they thought was being landed. For example, Mr Loose was unclear whether the bags of cockles which he saw being lifted from the vessels were full or less than full. An assumption was made by Mr Loose as to the size of each bag and therefore of the quantity it contained. There was a dispute over the sizes of the bags which the defendants' vessels were carrying. Some of the defendants also disputed the capacity of their vessels to carry the tonnages said by the Looses and Mr Lake to have been landed. This was so in the case of Jason Leman in respect of the Pamela Mary, and in the case of Martin Garnett in respect of the Sarah Louise, and also Mr Ashton in the case of the Antares II.
98. I have come to the conclusion that, in view of the unsatisfactory nature of Mr Loose's evidence, I cannot safely rely on the tonnages which the Looses and Mr Lake claim to have seen on the few days that they were at the quayside to observe what was being landed. Much less am I willing to accept Mr Davey's invitation to "take an average" (based on the limited observations that did occur) and thereby reach figures for those days when there were no quayside observations.
99. Mr Fetherstonhaugh submitted that at the end of the day Mr Loose had shown no proper basis for distinguishing what cockles came from which part of the Wash and that he had only himself to blame for this. Mr Loose, he said, knew what the defendants were doing, had the vessel capacity to track exactly where the defendants were fishing and was therefore in a position to prove on any chosen day where the catch came from that was landed by a tracked vessel. He submitted therefore that I should accept the defendants' evidence of what they landed and not Mr Loose's.
100. I consider that Mr Fetherstonhaugh's criticisms underestimate the difficulties faced by Mr Loose. That said it is for him to prove his loss. I am satisfied that his overall claim which is said to amount to £522,572.75 is well in excess of what, on the evidence I have read and heard, he is able to prove. On the other hand I consider that the evidence of Stephen Williamson dealing with what the nine vessels operated by him and his father through LSL understates the true measure of what was caught from within the estate fishery. I must do the best I can so as to provide appropriate redress for Mr Loose. I must assess what each separate defendants must account for, treating LSL and the two Williamsons as one for this purpose. I do so against a background that it is impossible to reconcile the various figures I have seen in the various returns.
101. The course I propose to take to resolve this is to assume that one third of the total catch of cockles recorded against each of the LSL vessels for each of the days when they were fishing in the estate fishery is attributable to cockles caught in that fishery. I apportion the catch rateably to the different sizes of cockle landed on that day so that if only two sizes were caught the apportionment will be shared rateably between the two sizes. I shall not make any downward adjustment to reflect the likelihood that on 28 August and again on 5 September several of the plotted positions of the Jaleto were to seaward of MLWS or that in the case of the Georgie Fisher two of its sightings on 5 September were probably to seaward of MLWS. This is because I am in any event assuming in the defendants' favour that on each of the days when they were seen fishing in the estate fishery the major part of what was landed came from the area of the public fishery. In the case of the other three defendants I shall likewise assume that a tonnage equal to one third of the quantity of cockles landed derived from the estate fishery. There was limited (and very last-minute) evidence from Mr Jason Leman (for which he was recalled to the witness-box) of the quantities he landed on 3, 4, 5 and 6 September. Otherwise there was little or no disclosure (as far as I am aware) of the quantities landed on each of the days when the Sarah Louise (Mr Martin Garnett's boat) and the Antares II (Mr Oughton's boat) were seen in the estate fishery. Failing reliable returns from those two sources of what each landed on the days in question I shall assume that a quantity equal to one third of the cockle-carrying capacity of the vessel in question was landed on the days when they were in the fishery. I shall make the same apportionment as between the different sizes of cockle as with LSL's vessels. I shall also assume, in the case of Martin Garnett that his catch was from operating the Sarah Louise alone; I shall ignore the Harvester's activities as it is far from clear whether at any given time it was he rather than his father (who owned that boat) who was fishing at the time.
102. I acknowledge that to an extent this method of computation is arbitrary. But I am satisfied that the defendants were not in the area of the estate fishery simply for the fun of it but were there to fish for cockles and were successful in their search for them on those occasions. I do not accept that the quantities said to have been landed by LSL's vessels from the estate fishery are as small as they allege. On the other hand, given the inadequacies of the evidence as to precisely what was landed from the estate fishery, I give to the defendants the benefit of all reasonable doubts on the matter.

(c) The value of the cockles landed

103. The last question is the value to be attached to the cockles landed by the defendants on the occasions when they were sighted within the estate's fishery. The issue here was whether as a result of the landings of those cockles the price per gallon dropped from £21 per gallon for grade 5-6 cockles to £17.50 per gallon and from £19.25 per gallon for grade 6-7 cockles to £15.75 per gallon. This price drop was applied to landings made at the end of July. Thereafter, as I understood it, the price remained constant for the remainder of the period during which the defendants continued to land cockles derived from the estate fishery, that is until 10 September or so. Mr Loose's case was that the fall in price was as a consequence of the defendants' illicit landings. He claimed that the damages payable for the defendants' illicit landings should therefore be assessed on the footing that the value to be attributed to them is the higher price per gallon. As Mr Davey put it: the defendants should not reap the benefit of a drop in the market as a result of their activities.
104. The evidence in support of this was given by David Loose. He claimed no expertise in the matter beyond his experience, which I do not doubt is considerable, as an active fisherman who fishes for cockles in the season and who is familiar with the processes involved. He believed – I had the impression that was really no more than speculation on his part - that the drop in price was attributable to what he described as a loss of exclusivity in that until the trespassing took place Mr Loose and his licensees had the exclusive right to the cockles in the fishery. I can well understand that if the market for cockles had been flooded by the sudden influx of cockles landed by the defendants the price per gallon might drop. But what I find puzzling is that, despite the defendants' continuing activities throughout August and into September, the price remained the same.
105. I have come to the conclusion that I should not accede to this method of assessment and that instead the value of the landings should be assessed on the basis of the prices actually achieved for them. It is not clear what additional landings Mr Loose and his licensees might have made, and over what period, if the defendants had not trespassed. It is not clear to what extent the fact that the public fishery was open for cockle fishing (and therefore that there was scope for additional supply to the market) during this period might have had an effect. I was given the dates when the public fishery was open; those dates amounted to roughly half the 46 or so days between 26 July and 10 September. (I should mention that there was a dispute in the evidence which I am in no position to resolve over the quantity and quality of cockles in the public fishery area at this time.) Above all I would have wanted rather more evidence about the market and, with all due respect to David Loose, from someone better positioned than he, before concluding that it was the defendants' activities which had caused the fall in the market.
106. I will leave it to others to calculate, on the basis of the above findings, what the damages are for which each of the defendants is liable. The task will be to assess the numbers of gallons of cockles which were landed by each vessel from the estate fishery, taking as the price per gallon the price which was actually being achieved on the market for those cockles. It will be necessary I think to translate the tonnages of what was caught into a price per gallon.

Result

107. The claim succeeds to the extent indicated in this judgment. I can discuss with counsel what declarations are appropriate. There will probably need to be an inquiry to determine the precise value of the cockles landed and therefore the damages which the first three defendants collectively and the other three defendants severally must pay. There will be no need to pursue the undertaking in damages which Mr Loose provided on 20 September 2007.
108. I am very grateful to all counsel for their detailed and helpful submissions.