Salmon welfare activist loses appeal against interdict against approaching fish farms

About this case:

• Citation:
  [2024] SAC (Civ) 8
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Pursuer and respondent Mowi Scotland Ltd obtained the interdict against defender and appellant Don Staniford on the basis that he admitted the conduct described. Mr Staniford, who had not attended one of the pursuer’s farms since 2021, argued on appeal that the interdict was not justified in the absence of harm to the pursuer’s property, while the pursuer accepted that some parts of it went beyond admissions on record.

The appeal was heard by Sheriffs Principal Derek Pyle and Nigel Ross, and Appeal Sheriff Thomas McCartney. Campbell KC and Crabb, advocate, appeared for the appellant and Barne KC for the respondent.

Groundless and unmerited

The pursuer was the operator of numerous fish farming sites in Scotland, consisting mostly of salmon farms. For many years the defender had been involved in campaigning to raise awareness of issues in the salmon farming industry, and to that end had attended at several of the pursuer’s farms. On each occasion, he would approach the floating salmon cages by a dinghy or kayak and carry out monitoring and recording activities, including taking video footage of the activity of the fish in the cages.

It was admitted by the defender that he had carried out these activities up until 2021, which he explained as justified due to reports of breaches of health and safety regulations and environmental laws. His view was that the pursuer had no right to stop his activities, and he had a right to navigate on the waters around the sea farms. He denied allegations that he had also used drones to survey the sites.

The sheriff granted permanent interdict in the terms sought, finding that the defender’s actions did not fall into freedom of navigation on water and rejecting an argument that interdict was unnecessary and disproportionate. The terms of the interdict prevented the defender from interacting with or going within 15 metres of 47 named sites belonging to the pursuer and from flying drones above them.

Senior counsel for the defender submitted that interdict was not justified where there was no harm. The litigation was a strategic one designed to impose a groundless and unmerited restriction on his lawful actions. For the pursuer it was submitted that the appeal should be refused, or alternatively that interdict be granted de novo if adjustment was necessary.

Not relevant considerations

Delivering the opinion of the court, Sheriff Principal Ross said of the test for interdict: “An award of perpetual interdict does not require harm to be established. Interdict is available to prevent unlawful conduct. The pursuer has a right of ownership in the structure of the marine farms, extending to the whole of the structure. It is entitled, as of right, to prevent the defender entering upon or interfering with the structures.”

He continued: “The defender’s pleadings contain extensive averments as to his motivation and justification for entering onto the marine farm structures. We cannot take these matters into account in the present action, as they do not override the law of property. The motivation of a trespasser does not influence the nature of the underlying property rights, or the entitlement to interdict. For their part, the pursuer’s pleadings refer to industry regulation, animal welfare, and the safety of persons in the vicinity of the marine farms. These are not relevant considerations either, and we have not taken them into account.”

Assessing the argument on free navigation, Sheriff Principal Ross said: “The defender does not claim that any of the pursuer’s marine farms interfere with his ability to sail or row on the waters on which they float. His contention is solely that he can ‘navigate’ by climbing over the structure of the marine farms. We find no support in the authorities for that proposition. The defender enjoys all the public rights of navigation which he would otherwise have if the marine farms were not present.”

However, on whether the scope of the interdict was too wide, he concluded: “Following discussion of the scope of the interdict, it was recognised that in parts it went beyond admissions on record, for example in reference to drones, use of which is denied and has yet to be proved. It also raised questions of entitlement to a 15-metre exclusion zone. Senior counsel for the pursuer moved to restrict the terms of the interdict granted by the sheriff.”

A new interdict was therefore pronounced in substantially the same terms as the previous interdict, however the references to unmanned aircraft and the 15-metre exclusion zone were removed.