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

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

Background

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

Staniford is one of a very small group of committed individuals campaigning against fish farms. He combines scientific knowledge with boat handling skills in order to record and document what is going on inside the hundreds of salmon cages along the Scottish coast, and to give the public reports that the current Scottish government would rather we didn’t get.

The evidence uncovered by Staniford shows that below the surface of the farms are creatures in distress. His cameras capture images of fish being eaten alive by sea lice, eyes missing, and with gaping holes in their skin. Further down, the weaker fish move more slowly – at the foot are piles of mortalities.

Figures released by the industry itself, in reports to the Scottish government, have shown in recent months between 25 per cent and 40 per cent of the salmon on some sites dying through sea lice or viral and other diseases. In short, there’s clearly something going on in our waters which the public should know about.

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

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

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

The live issue

MOWI’s case sought interim and permanent interdicts against Staniford in respect of three separate types of activity, namely the two mentioned above, and from “boarding, entering onto, physically occupying, attaching himself to, or attaching vessels to all structures, docks, walkways, buildings, floats or pens of the following salmon aquaculture farming sites of the pursuer [here the writ lists the names of the sites]”.

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

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

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

The appeal

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

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

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

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

Comments

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

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

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

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

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

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

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

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

Public interest

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

Ewan Kennedy worked as a solicitor in general practice in Glasgow for over 40 years and was also at times a part-time academic and tribunal chair. Over the last 20 years he has become involved in researching and campaigning against industrial aquaculture on the west coast.