The salmon run

Access to justice and angling make for unlikely bedfellows.

For many people, including lawyers, the notion of spending a day motionless, waiting for a salmon to take in the dark peaty pools of a Highland river, or watching a fly anxiously in the shallows of the Trent, might seem only marginally more attractive than watching paint dry.

And few legal historians would imagine that the Anglers Conservation Association (ACA), has much to add to the annals of costs law and practice.

That would be a mistake. For the story of the ACA offers a fascinating insight into both how access to justice and a campaign against environmental pollution has been quietly pursued over 50 years to remarkable effect.

The account that follows, is drawn from “Saving Our Streams” by Dr Roger Bate, published by the Institute of Economic Affairs (2001).

By the mid 1940s, there had been no fewer, than 16 Acts of Parliament, aimed at preventing or at least mitigating, the effects of pollution from the discharge of sewage and industrial waste into rivers and streams, the effect of which was to devastate the rivers and turn them into polluted,sterile, stinking open drains.

All of the Acts of Parliament had conspicuously failed, not least because some of the biggest polluters, were the very local authorities charged with enforcing the legislation.

The effect on the fish, inhabiting those waters, of unmitigated and unchecked pollution was devastating: the rivers were dying not in spite of the action of the state, but in large part because of it.

John Eastwood KC was an angler and a barrister. He had pondered the problem for many years, and in the periodical Country Fair, in 1951 wrote

While pollution was inevitable in Queen’s Victoria’s time, this was no longer the case. During this century science has made such strides that far the greater part of existing pollution can be stopped. This discovery completely alters our sense of values. If a vital industry can get rid of its effluent only by poisoning a river, there seems to be no answer; but if the effluent can be made harmless, is the industry entitled to destroy the pleasure of millions merely for the sake of cheaper production? An entirely new orientation of rights and duties has thus arisen. There is the relative duty of an industry to its shareholders, or a local authority to its ratepayers, and the wider duty of both to the general public. My second discovery was this. To all intents and purposes every Act of Parliament dealing with pollution is a penal Act-that is to say it creates pollution offence which are punishable in a criminal court. There is no Act dealing with the civil rights of an injured person. This has never been necessary because civil rights are part of the common law of the land. They are the basis of freedom, and prescribe that an individual shall enjoy what is his without undue interference.

What John Eastwood knew, was the common law of England and Wales, enabled the owner of land adjoining a river or watercourse to protect it from pollution and excess abstraction of water, through the system of riparian rights.

If a landowner’s water is polluted by another landowner, upstream, the victim of the pollution has a good cause of action against the polluter: this can include both a claim for damages, and also, and more valuably the granting of an injunction to stop the pollution and to restrain any future pollution from the same defendant.

By purchasing, or leasing, land on the banks of rivers and watercourses, individual anglers and angling clubs, gained not only a freehold or leasehold interest in the land, but also the riparian rights which accrued to it: when the watercourse was polluted, and the fish killed or driven off, they had perfectly good causes of action at common law, against the polluters.

But the costs of taking action, and the adverse costs, if an action were lost, were potentially enormous. Many of the defendants in the middle of the twentieth century were nationalised industries, local authorities and blue chip corporations, who might defend the cases robustly.

John Eastwood came up with a novel solution. He devised the idea of an association designed to spread the risk of an action in common law, by raising annual subscriptions among all those with property interests to provide an indemnity or guarantee in respect of legal costs. The association would look for, and pursue suitable test cases, to stop environmental pollution and enforce the riparian rights, necessitating a clean up of affected watercourses. Using a team of solicitor, counsel and expert witnesses, common law actions could be pursued, without fear that a defeat would ruin the individual or club, which brought them.

Thus the ACA (originally the Anglers Co-operative Association) was born.

Eastwood’s appeal was not to notions of public service, but to self-interest: the interests of all anglers, in good clean water, which in turn would mean a plentiful supply of fish.

The most famous case brought by the ACA is undoubtedly the Pride of Derby and Derbyshire Angling Association Limited and the Earl of Harrington.v.British Celanese Ltd, the Derby Corporation and the British Electricity Association [1952] 1 All ER179 and [1953] 1 All ER 1326, which went to the Court of Appeal. 8 miles of the River Derwent were dead, as was 3 miles of the River Trent: the water of the rivers was described as “black, opaque, hot and stinking; the bottom was carpeted with sewage fungus and the temperature of the water was extremely high: often between 90 to 95 degrees fahrenheit. In summer it was completely deoxygenated”.

In 1942 salmon had still run in the Derwent. In 1950, the only life were mosquitos. Fish released into the river died within minutes.

British Celanese was extracting 72 million gallons of water a day from the river. The Derby Corporation and British Celanese were discharging 80 million gallons of untreated effluent a day.

The total flow of the river was only 100 million gallons a day.

The British Electricity Association’s role, was to heat the river water, to a temperature, which was hotter than the Red Sea.

Mr Justice Harman found against all the defendants and issued injunctions against all of them. The Court of Appeal upheld his decision.

By 1958, the last of the injunctions was discharged. The area along the Derwent is now a nature reserve, and the clean river supports, chub, dace, gudgeon, perch, pike, roach and barbel.

And so it continued, with action after action brought over the ensuing years, making the ACA, a voluntary, service led, stakeholder rich private organisation by far the most effective environmental enforcement body in legal history.

As we look at a legal system in 2014, where Legal Aid is disappearing, as a viable means of funding access to justice, and vast numbers of meritorious claims for judicial review against various emanations of the state, or claims under the Equality Act 2010 do not qualify for Qualified One Way Costs shifting, it is worth thinking about the lessons that can be learnt from the anglers, and to contemplate, what other, solutions might exist for those claims despite, rather than because of the actions of the state in facilitating access to justice.

 

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