502 THE ADVOCATE
VOL. 79 PART 4 JULY 2021
tions with Clear Water Fisheries Ltd. (“Clear Water”) for a sale of the land
for (initially) £700,000, and for a sale of “all stock of fish in the lakes” for
£200,000. These negotiations came to nothing. In June 2016, the receivers
sold the land to Clear Water for £625,000. The receivers advised Borwick
that they did not consider that the lender’s charge extended to the fish and
that they had given no warranties to the purchaser in relation to the transfer
of ownership of the fish on completion.
Clear Water took the position that Borwick had no right to the fish following
the sale. Borwick, on the other hand, demanded that Clear Water not
operate a business using what Borwick claimed to be Borwick’s fish stocks,
which Borwick intended to remove.
However, the removal would have been a difficult and time-consuming
process, which Borwick was advised would take between four and six
months. Because of the cost and disruption that this would have involved,
Borwick changed its position: it would leave the fish in place but claim damages
against Clear Water for conversion, rather than seeking an injunction.
One of Bracton’s authors, Azo, wrote in a tractate on acquiring dominion
over fish that fish are “owned by no one” and therefore may be reduced to
ownership by the first person to take possession, “no matter where they
may be taken”.5 However, later in Bracton, the author states that “things
which by the natural law ought to be the property of the finder … actually
belonged to the King of England”.6
In determining who owned the proprietary rights to the fish, Sir Timothy
Lloyd thoroughly analyzed the Roman law, as interpreted by English
authorities, in classifying fish in English law, stating:
8 … Despite the disapproval of the use of Latin in court proceedings,
it seems to me sensible to use the traditional Latin labels, namely animals
ferae naturae wild animals and animals domitae naturae tame animals,
to mark this distinction, because merely to refer to wild animals,
as if it were an ordinary use of English rather than a term of art, might be
misleading.
The court went on to comment:
14 The classification of animals has consequences for property rights
as well as for liability for damage done by animals. An animal domitae naturae
can be the subject of ownership just like an inanimate chattel,
whereas live animals ferae naturae cannot.
15 The law as to proprietary rights in relation to animals ferae
naturae is derived from Roman law. It is summarised in Halsbury’s Laws
of England, vol. 2 (2017) paragraph 8, as follows:
“There is no absolute property in wild animals while living, and
they are not goods or chattels. There may, however, be what is
known as a qualified property in them, either: