Five law lords have over-ruled part of earlier court decisions in which a group of cockle fishermen’s claim of rights to fish in waters off Hunstanton were rejected.
The ruling, which was delivered in the Supreme Court this morning, is the latest phase of a long-running and bitter legal battle over access to the banks of the Wash.
But, although the case is already thought to have racked up more than £1 million in legal bills, further High Court proceedings could now follow to determine exactly where fishing should take place.
Lawyers on behalf of Lynn Shellfish Ltd and the fishermen argued that since time immemorial the general public have exercised the right to take shellfish from the areas concerned. Their arguments have gone back to times even earlier than the Magna Carta.
However, John Loose, tenant of a private fishery that dates back to 1761, challenged the claims of the cockle fishermen and argued that his rights have been infringed by the fishermen and that they are guilty of trespass.
The eastern area of the Wash, which is at the centre of the dispute, contains sandbanks over which the public have exercised the right to take shellfish.
Over time, the banks have become connected to the foreshore at low tide. Mr Loose argued that this makes them part of the foreshore and in those circumstances rendered the actions of the fishermen taking cockles from them as trespass.
But today the five law lords, headed by the country’s senior law lord, Lord Neuberger ruled that, despite the findings of the High Court and Appeal Court, Mr Loose was wrong in his argument that he could lay claim to the areas that have been connected to the foreshore at low tide.
They effectively allowed the last ditch challenge by the cockle fishermen and held that they are entitled to gather cockles from the areas in dispute. However, those precise areas are yet to be defined.
The Law Lords dismissed one aspect of the cockle fishermen’s arguments relating to the way that the way in which low water in the area should be established.
But, they allowed the fishermen’s appeal on the second vital issue relating to whether Mr Loose’s rights extended to sandbanks which having previously been separated from the foreshore have now become attached to it as a result of the gradual silting up channels separating the banks from the foreshore.
Lord Neuberger said that they dismissed the appeal in so far as it related to the seaward, western, boundary of the area but would allow the appeal in respect of the sandbanks.
This, however, still leaves a question mark hanging over the precise area which the cockle fishermen are entitled to fish. The law lords said that it would be possible to define that if the parties were able to agree it after consideration of the court’s judgment.
But, in the main judgment, Lord Neuberger said that if agreement could not be reached then the best solution would be for the case to return to the High Court for a judge there to now establish the precise area on which the fishermen were entitled to gather cockles.
QCs, junior barristers and top law firms have been involved in the battle so far. Experts now anticipate legal bills will easily top £1 million.
During the Supreme Court hearing in February Guy Fetherstonhaugh QC for the cockle fishers claimed that Mr Loose’s claims were “illogical and unprincipled” and that the cockle fishermen’s case was “orthodox and supported by authority”.
He had branded the case put forward by the fishery owners as “unprincipled, unnecessary, unorthodox and unfair.”