THE ADVOCATE 501
VOL. 79 PART 4 JULY 2021
BRACTON AND ROMAN LAW IN THE
COMMON LAW COURTS: IN EXEMPLUM
By George Douvelos
De legibus et consuetudinibus Angliae (On the Laws and Customs
of England),1 commonly known today as Bracton, is a treatise
attributed to Henry of Bratton, who was an English judge of
the court known as coram rege (later the King’s Bench) from
1247 to 1250 and again from 1253 to 1257. Bracton was a remarkable attempt
to make sense of the English law in terms of the ius commune, which was a
combination of Roman and canon law, written over several decades
between the 1220s and the 1260s.2
It has been 800 years since Henry of Bratton is said to have commenced
his treatise, but it remains a source of law in the common law courts.3
Recently, the English Court of Appeal in Borwick Development Solutions
Ltd. v. Clear Water Fisheries Ltd.4 grappled with determining proprietary
rights to fish. Briefly, Borwick Development Solutions Ltd. (“Borwick”) had
purchased land in 2002 with planning permission to develop the land as a
commercial fishery. The land encompassed nine lakes that stocked carp and
other fish. There was an agreement that the nine lakes would be kept separate
and isolated from each other. So, the fish stock would be confined to the
relevant lake and could not move between lakes. The fish stock included a
number of large specimens, some of which became well known and
acquired given names. Borwick contended that the fish were of great value.
In 2003, Borwick granted a lease of the relevant land, including the lakes,
to the British Waterways Board (the “Board”), which ran a commercial fishery
there. There may already have been some relevant fish in the lakes at
that time, but the Board bought more fish to increase the stock. The Board’s
lease came to an end in 2005, and Borwick did not compensate the Board
for the fish then in the lakes.
From 2005, Borwick ran the fishery and spent more money by adding to
the stock of fish, maintaining the lakes and the fish within them. In 2012, it
constructed a restaurant and cafe facility to expand its business. To do so, it
borrowed money from a lender on the security of a legal charge over the
land. In January 2016, the lender appointed receivers in relation to the site.
Borwick was already trying to sell the land itself. It entered into negotia-