Defendant mooring 250 ton barge on river – Plaintiffs alleging interference with fishing rights – Whether defendant estopped by earlier adverse decision on like mooring on different stretch of the river where rights arose from different grant – Plaintiffs obtaining judgment in default – Application to set aside dismissed – Whether application to set aside disclosing real prospect of success at full trial – Appeal allowed
The plaintiffs represented the Hereford and District Angling Association which exercised fishing rights over the River Wye according to a colour-coded plan. Without a boat, the blue sector could only be fished from a south bank site (the blue land), which had been conveyed by the Bishop of Hereford to the city council in 1937 and thereafter used as a public park. The 1937 conveyance reserved the fishing rights to the grantor who retained land on the north bank and whose successors, the Church Commissioners, leased those rights to the association at all material times. In 1988 the defendant bought a 250 ton barge, which he intended to convert into a floating restaurant, and moored it in the yellow sector, lying to the east of the blue land. In proceedings commenced in 1992 the plaintiffs, having established a prescriptive right to fish the yellow sector from the land where the barge lay, obtained an order restraining the defendant from interfering with their fishing rights. In 1993 the defendant moved the barge to the blue land and moored it under an informal licence from the council. On July 1995 the plaintiffs obtained an order restraining the defendant from mooring on the blue land. That judgment was given in default of defence following the refusal of the defendant’s application for an adjournment. Shortly thereafter the defendant moved the barge to another site, the pink land, which gave no cause for complaint. On March 8 1996 the defendant applied unsuccessfully to have the judgment set aside and appealed contending that he had sufficiently demonstrated a real prospect of success at trial.
Held The appeal was allowed.
1. The plaintiffs could not succeed without showing substantial interference: see Peech v Best [1931] 1 KB 1. The judge had erred in holding that the plaintiffs’ success in the 1992 action made that matter one of res judicata as between the parties. Different issues arose. The yellow land mooring was unlicensed by the riparian owner and proportionally occupied much more than the 8% in the present case. Moreover the concurrent recreational use of the blue land made it important to determine the degree of access which the association could reasonably claim, a matter requiring full consideration of the terms and effect of the 1937 conveyance.
2. A full trial would ventilate not only the above issues but also the defendant’s contention that mooring per se did not disturb fishing which he alleged to be so poor, as regards salmon, as to hardly warrant protection. Taken together, those factors satisfied the requirement (laid down in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyds Rep 221) that the defendant should have advanced a defence that carried "some degree of conviction".
Francis Moraes (instructed by Anthony J Weston, of Hereford) appeared for the appellant; David Phillips (instructed by Beaumonts, of Hereford) appeared for the respondents.
