Mowi gives ground over ban on activist
Fish farmer's lawyer concedes removal of 15-metre exclusion zone
The anti-salmon farming activist Don Staniford is celebrating what he believes will be a partial victory in his appeal against an interdict preventing him from making unauthorised visits to Mowi Scotland fish farms.
A panel of three senior sheriffs who heard the appeal at the Sheriff Appeal Court in Edinburgh on Thursday won’t deliver their verdict for around six weeks, but during the hearing Mowi’s counsel, Jonathan Barne KC, said he would be prepared to accept the removal of three conditions of the interdict (the Scottish version of an injunction), which was imposed by Sheriff Andrew Berry at Oban Sheriff Court last year.
When asked by the panel if Mowi wanted to stick with an “all or nothing” stance on the interdict, Barne said he would agree to the lifting of bans on Staniford approaching closer than 15 metres from a pen, and the removal of a clause forbidding the activist from “encouraging” people to take part in similar activity to his own.
He also conceded that a ban on flying drones over farms – which Staniford says he has never personally done – could be removed if the panel wished to allow a revised interdict to remain in force.
'No appreciable harm'
The concessions came towards the end of four hours of presentations by Staniford’s counsel, John Campbell KC, and Barne, and questioning of both lawyers by the panel, comprising chairman Sheriff Principal Derek Pyle, Sheriff Principal Nigel Ross, and Appeal Sheriff Thomas McCartney. Staniford’s appeal asked the court to dismiss the interdict, or alternatively have it referred back to the Sheriff Court, or to the Court of Session.
Campbell had argued that for an interdict to be imposed there had to be proof of “appreciable harm” to Mowi, and that when Staniford made covert visits to farms he did so to film the conditions of the fish and seabed, not to vandalise property.
“He is not there to cause damage to the property, he has not threatened any person,” said Campbell.
Judgement 'not coherent'
He said Sheriff Berry’s judgement was “regrettably not coherent” and was granted “in the absence of evidence of any actual harm”.
Campbell argued that the interdict restricted Staniford’s right of navigation, which he claimed encompassed the activist’s right to moor his kayak to a pen and climb on to the walkway, film fish, and then return to shore.
All Staniford’s actions during his farm incursions could be classed as “ancillary to navigation”, said the lawyer. “What is the difference between tying up a kayak to a fixed mooring and tying it up to a fish pen. I would suggest there is none.”
This line of reasoning was challenged by the panel, who said it suggested that anyone could tie up any boat anywhere.
The sheriffs asked Campbell if his client would accept a “middle ground” if they decided to change the interdict.
“The argument may be a lot stronger for [an interdict for] the cage than the water around it,” they said. “Is there a scenario where we could pronounce a limited interdict?”
Campbell said he would have to discuss the issue before giving an answer.
Barne asked the panel to dismiss the appeal and asked what the “proof” that Campbell wanted would look like.
Following an earlier discussion on using property rights as reason to exclude Staniford from farm sites, he said: “It is accepted they are trumped by navigation rights, but there is a question of how far they extend.”
He added: “Mowi is seeking to protect its employees and equipment in an environment that is inherently dangerous,” and pointed out that the fish farmer had health and safety and biosecurity procedures followed by its staff and contractors but not by Staniford.
“Confrontations have occurred. In these circumstances an interdict is entirely appropriate,” added Barne.
He pointed out that while Staniford had given an undertaking to a court not to visit Mowi sites while legal action was ongoing, he had refused to agree to Mowi’s request to stop visiting farms otherwise.
Barne said that although there was no criminal law of trespass in Scotland, there was civil trespass which, in the case of repeated occurrences, could be remedied with an interdict.
Referring to the original hearing in Oban, Barne said: “The admissions that were given were sufficient for the Sheriff to reach a judgement.”
Asked why Mowi wanted to keep Staniford 15 metres from its pens, Barne pointed out that that was a safe distance recommended by trade body Salmon Scotland, as there was equipment (guy ropes) under the surface.
Panel chair Derek Pyle said: “The appellant (Staniford) can probably say that they can look after themselves, they do not want your protection.”
Not a zero-sum game
As with Campbell, Barne was then asked by the panel if he would accept a “halfway house” on the interdict and was later pressed on whether he would prefer that or face another hearing in which Mowi would require to furnish proof.
“If the court is of the mind that the Sheriff [in Oban] has erred it does not mean to say that it is a zero-sum game,” Barne responded. “It is not unusual after a debate for the court to give effect to one or two conclusions and remit the rest.”
A discussion then followed about what could be removed from the interdict.