Norbrook Laboratories Ltd & Anor v Carr

Introduction

This judgment is concerned with a long-running dispute between two prominent members of the Cumbria community arising out of their membership of the Eden Owners’ Association (“EOA”), a voluntary or unincorporated association of those with fishing interests in the River Eden. The dispute has been conducted in six separate but related actions in the Queen’s Bench Division in London. Two of these actions were libel actions that have already been settled. Two of the surviving actions are concerned with whether the first defendant, Mr James Carr with, in the second action, Mr John Garnett, misused their respective positions as secretary and chairman of the EOA to harm the membership and proprietary interests of the first claimant, Norbrook Laboratories Ltd (“Norbrook”), and the personal reputation and the membership and proprietary interests of the second claimant, Lord Ballyedmond. The first of these actions has been settled and the only remaining issue in that action is as to who should pay the costs of each of the three parties to it. The second action continues but in a much reduced form since only a limited number of the allegedly injurious actions of Mr Carr and Mr Garnett remain in issue. The two actions are now, in reality, concerned with the huge costs bill that each of the parties involved in each of them have incurred. These costs disputes dwarf the underlying proprietary, membership and reputational issues that are, or have been, at stake. The fifth action is also now confined within narrow boundaries and is concerned with the disclosure and delivery up of a small number of documents which came into existence when Mr Carr was acting, or purportedly acting, as secretary of the EOA. The sixth action was also concerned with disclosure and delivery up, in its case of documents held by Mr Robson and which came into existence when he was acting as treasurer of the EOA.

The parties to the two actions that are concerned with membership issues, which I will refer to as the misconduct actions since that is what the parties now call them, have agreed that I should first decide a group of issues which will conclude all remaining issues of liability and which will enable the difficult costs issues then to be determined at a further costs hearing. I must also decide the remaining issues of liability in the third of the remaining actions which I will refer to as the privilege action.

General Factual Introduction

The River Eden runs through some of the most beautiful countryside in the United Kingdom and is itself a magnificent and historic river and one of the foremost freshwater salmon and trout rivers in the United Kingdom. It is entirely Cumbrian and is one of the few large rivers in England that flows northwards. The source of the river is on the high limestone fells above Mallerstang Common, near the North Yorkshire border. It then makes its way across eastern Cumbria to Carlisle, with the hills of the North Pennines to the East and the fells of the Lake District to the west. Near Carlisle, the River Eden merges with other rivers to form the great Solway Firth estuary, before reaching the open sea, 90 miles from its source. On its way to the coast, the river passes through Great Corby which is 6 miles to the east of Carlisle.

Corby Castle is located on the east bank of the River Eden on the southern edge of Great Corby within the Estate (“the Estate”). This magnificent building was originally constructed in the 13^th Century as a red sandstone tower house by the Salkeld Family who also owned the nearby Salkeld Hall of similar age. It was sold in 1611 to Lord William Howard, the third son of Thomas Howard, 4^th Duke of Norfolk who added a 2-storied L-shaped house onto the peel tower. The present façade was built for Henry Howard by Peter Nicholson between April 1812 and September 1817. Henry Howard had inherited the Estate from Sir Francis Howard, Lord William Howard's second son. Corby Castle remained in the Howard family until 1994 when it and the rest of the Estate were sold by Sir John Howard-Lawson and Lady Howard-Lawson in 1994 to Lord Ballyedmond, then Dr Edward Haughey, who has since carried out a total refurbishment of Corby Castle (Footnote: ¹ ) . Following his acquisition of the Estate, Lord Ballyedmond passed title to the Estate to Norbrook.

Corby Castle is located within the Estate whose western boundary runs along the eastern river bank of the River Eden for an appreciable distance. Corby Castle is, naturally, the Estate’s most prominent feature. The Estate comprises, in addition to the mansion house or Castle, approximately 80 acres of gardens and parklands, 1,200 acres of agricultural land and 300 acres of wood. It also includes a village hall, playing fields, a public house, many houses and cottages, a former factory and forge which are situated in and around the village of Great Corby. The Castle and some of the other buildings are listed as Grade I and the grounds and parkland as Grade II. The Estate’s recorded history dates back to the 10^th Century and its gardens and parkland were on the traditional Grand Tour of England. One of its principal features is a cascade which falls over two hundred feet from below the Castle walls towards the River Eden.

In addition to fishing and boating rights, some of which were sold off during Sir John Howard-Lawson’s time, the Estate owns and has ancient privileges over the historic Corby Coops (“the Coops”). These are surrounded by an island on one side and an historic walk on the other and the span the stretch of river between the island and the east bank of the River Eden. The origins of this feature are thought to be a Roman Lock that was built to accommodate the ferrying of stone up the River Eden to assist in the construction of Hadrian’s Wall. It was subsequently converted to salmon Coops by monks from the adjacent Wetheral Priory in the 11^th Century who used them to catch salmon until the dissolution of the monasteries 400 years later.

The Coops comprise three separate coops which are, in effect, traps separated by free gaps that allow fish to by-pass them. They are constructed within a stone weir which consists of partially bridged stone piers and abutments. A coop is a timber frame device for catching salmon and sea trout migrating up river to spawn. It consists of two wood frames angled at 45˚ with a 9-inch gap at the apex through which the fish swim and a sluice gate which bars their progress. The frames and their inserted panels are lowered into the weir and are controlled by a complex and ingenious arrangement of trap-doors, sluice gates, timber supports and a chain mechanism which enables the fish swimming up stream during the open season between June and August each year to be caught. There is a sandstone weir located up river which gives rise to one of Lord Ballyedmond’s complaints against Mr Carr.

Historically, the Estate only caught a limited number of fish each year. Down to 1992, the annual average was about 50 but in recent years, Lord Ballyedmond has limited the number to a handfull. He has, however, ensured that this historic and Grade I listed feature has remained in good working order and arranged for extensive renovations and remedial action to be taken in 1995 and 2007. The Coops are fixed engines as defined by section 41 of the Salmon and Freshwater Act 1975 and which could not, therefore, have been used for taking or facilitating the taking of fish. However, the Coops were certified in 1867 under the Salmon Fishery Act 1861 as being operated in accordance with an ancient right or mode of fishing since they had been operated since at least the reign of Edward IV. As a result, they attracted a certificate of privilege and were exempt from the restrictions of the 1975 Act so long as a free gap of 7 feet wide was maintained in the weir between the Coops.

It follows that the Coops were not subject to the same strict regulatory regime as other fisheries in the River Eden. The certificate of privilege entitled the Corby Coops to trap fish without limit from June to August with a 48-hour close time at weekends. This Certificate only provided exemption to the three Coops so long as they retained the physical dimensions and gaps between them that are stipulated in the certificate of privilege. Given the voluntary limitation on catching salmon imposed by Lord Ballyedmond and his predecessors, the Coops are in practice well-preserved historic structures of great interest but with little consequence to the fishing and fish stocks in the River Eden. It was well-known on the River that virtually no catches were made. Furthermore, the EA used the Coops to capture fish for radio trapping and in the years between 1998 and 2004, it trapped only a very limited number of salmon and virtually no sea trout even though it fished the Coops continuously with the free gap closed. Thus, even if no voluntary restraint of keeping caught fish was in operation, the Coops would not have removed more than an average of 15 salmon in each annual 3-month trapping season.

It is clear that other fishing rights holders, particularly Mr Carr, were unhappy, suspicious and possibly resentful that all other fisheries in the River Eden except the historic Coops were heavily regulated even though the evidence shows that Lord Ballyedmond exercised considerable voluntary restraint in the exercise of his ancient privilege so that very few fish have ever been caught without being allowed to escape since he first acquired the Estate in April 1994.

Lord Ballyedmond was born Edward Haughey and is principally resident in Northern Ireland where he still owns Ballyedmond Castle in Rostrevor in addition to owning Corby Castle and a residence in London. He has had a distinguished and lengthy career as an industrialist and politician. His principal interest since 1968 has been in the veterinary pharmaceutical manufacturing business and he has been chairman of Norbrook and Norbrook Holdings Ltd since 1980. The Norbrook Group is based in Newry and it currently employs 1,300 people worldwide, 1,000 of them in Northern Ireland and some others in the laboratories and offices that Norbrook now occupies on the Estate. He has also been involved in helicopter chartering and between 2000 and 2006 his business interests owned the lease of Carlisle Airport. His political career has included his sitting as a Senator in the Seanad Ếireann as a nominee of Taoiseach Reynolds between 1994 and 1997 and of Taoiseach Ahern between 1997 and 2002. In 2004, he was made a Life Peer as Baron Ballyedmond of Mourne and since then he has frequently sat in the House of Lords. He bought Corby Castle in 1994 from the Howard family and the Estate was subsequently transferred to Norbrook.

As with other landowners adjoining the River Eden, the Estate has historically held extensive riperian fishing and boating rights on and in the River Eden. However, many but not all of its fishing rights were sold to the Yorkshire Fly Fishers’ Club, usually known as the Yorkshire Fly, by the Howard Family prior to Lord Ballyedmond’s acquisition of the Estate but it has retained some fishing rights including the historic rights to catch salmon and trout held by the Coops. Lord Ballyedmond has paid particular interest in the improvement and upkeep of the Estate to ensure that it is maintained in its historic style and to its original standards. This interest has, in particular, involved the regular upkeep and repair of the Coops. He does not have a personal interest in fishing or angling but has always been keen to ensure that the salmon and trout resources of the River Eden are maintained and are fairly shared between, and remain accessible in a controlled manner to, all types of recreational fishing and catching.

Mr Carr. Mr James Carr and his wife are prominent and distinguished members of the Cumbrian community. They have lived for many years at Moorhouse Hall, Warwick on Eden and the Moorhouse Estate has riperian fishing rights on the River Eden. The Estate’s riperian rights are located about one mile down river from the Corby Estate. Mr Carr’s life-long passion has been fishing and he has pursued this passion with dedication and considerable public service since moving to Cumbria. He is, by profession, an accountant and has been retired for some time. During his working career, he was chairman of two publicly quoted companies and he was chairman of the Cumberland Building Society for ten years and has also been the treasurer of the Cumbria Community Foundation. He served as deputy-Lieutenant of Cumbria in 2003 and High Sheriff in 2010. Mrs Carr, who does not have any involvement in this dispute, has been a long-standing and prominent member of the Great Corby Parish Council as both a member and, more recently, as its chairman.

Mr Carr interest in fishing has led to his keen interest and involvement in the conservation of fish stocks and with the riverine environment. He has served as Chairman of the Regional Fisheries Advisory Committee for the National Rivers Authority (North West Region) and its successor the Regional Fisheries, Ecology, Recreation and Advisory Committee (North West Region) between 1992 and 2002. He was also instrumental in the formation of the Eden Rivers Trust whose objectives include the conservation and improvement of the River Eden and its tributaries and he has been chairman of or served on a number of charitable Boards involved with fish conservation including the Salmon and Trout Association. He was a founding member of the EOA in 1986 and he served as its Secretary from 28 October 1994 until 15 February 2010.

Mr John Garnett has an involvement in this dispute as a result of him being chairman of the EOA for a limited period, between 16 May 2008 and 29 January 2010. Mr Garnett is a retired businessman who lives in Yorkshire. He has been a keen angler all his life and his interest and involvement in fishing on the River Eden arose from his acquisition of riperian rights on a stretch of the river known as Park Broom Fishing. This stretch is upstream from the Corby Estate and Mr Garnett transferred it into his family settlement trust in 1997. The trustees of the settlement are Mr Garnett, his wife and his son and daughter. Park Broom Fishing became a member of the EOA in 1996 and remained a member until it resigned its membership in January 2010. Mr Garnett has also been a member of the Yorkshire Fly for many years and, because of its acquisition of some of Corby Estate’s riperian rights, the Yorkshire Fly became a member of the EOA until it resigned its membership on 19 March 2008. Mr Garnett was, in consequence a member of the EOA through his interest as a trustee of the Park Broom Fishing settlement and through his membership of the Yorkshire Fly. He was not a member of the Committee of the EOA until he was elected chairman and his involvement prior to that election had been limited to attending and voting at some, but not all, of such of the AGMs of the EOA that were held during his time as a member. His limited involvement in these claims arises from his conduct or, as Lord Ballyedmond sees it, his misconduct of the EOA AGM held on 29 March 2009, being the only meeting of the EOA that he chaired.

The Eden represents one of the largest populations of Atlantic salmon or Salmo salar in northern England. It is an excellent example of a large river system that flows over varied, base-rich geology. This, coupled with its large range in altitude, has resulted in the development of distinct habitat types that support diverse plant and invertebrate communities. The high ecological value of the river system and the fact that the salmon are able to use most of the catchment even above Ullswater, a large natural lake on the main river, mean that the River Eden is able to maintain a large population of salmon. It is a UK Special Area of Conservation and its fishing rights are highly prized, very valuable and much sort-after.

Haafnetting, sometimes called heave netting, is a traditional and long-established method of fishing for salmon and trout in the rivers of the North West including the Solway estuary. The method dates back to the Viking who raided and sometimes settled in the area at the end of the 1^st millennium and was in common use in the early 19^th century. The Viking word “haaf” means a sea net and the technique involves a net mounted on a rectangular frame 18 feet long by 5 feet high supported by three legs. The frame is placed across the current by a fisherman standing behind the net in the cold water and holding the central leg upright. The fishermen, usually fishing in a line with each using an individual haafnet, walk out into the flat, shallow waters of the Solway sands and mudflats and place their nets in front of them facing the floor or ebb tides. The tide causes the net to stream out in the water and bags or pokes form in the net. As soon as a fish swims into the net, the legs of the frame are allowed to float to the surface and they trap the fish which is then disabled by a blow from a wooden club carried by the fisherman which is called a nep, priest or killer.

Currently, haafnetting is only permitted on the Solway and the limited number of Haafnetters carry on this historic form of fishing as a recreation largely for family and historic reasons. Haafnetters feel harassed and under threat due to the ever tightening controls imposed by the Environment Agency (“EA”). Since 2008, these have limited the number licensed to fish in this manner on the Solway to 102 licenses, and by virtue of a Net Limitation Order (“NLO”), the EA has limited the halfnetting season to 15 weeks from June to August, the fishing days to weekdays and the netting hours from 6am to 6pm. The number of fish that are caught have to be declared to the EA and historically, Haafnetters have been thought to have significantly under-reported the numbers that had been caught and to have sold their catches to the lucrative available fish market. This led to a number of prosecutions for under-declaration in the early 2000s but it is clear that, with the limitations in place since then, only a very small number of salmon and trout were being caught and many of those that were caught were being voluntarily returned to the water. However, members of the EOA, particularly Mr Carr, considered, and still consider, that Haafnetters are endangering the dwindling salmon and trout stocks in the River Eden and that their activities should be further restricted or, if it turns out that the Solway haafnetting fishery is a mixed fishery, that is a fishery providing fish for more than one river, it should be eliminated altogether.

Salmon and trout fishing is highly regulated by the EA. Regulation is achieved in a number of ways. Gravel extraction and other alterations to the river bed and river bank require a license. Each beat, or fishery, requires a license that limits the number of permitted rods and the season, days and hours and number of fished that are bagged or removed from the River are all severely restricted. These restrictions are coupled with various initiatives aimed at maintaining and improving the spawning of fresh stocks, maintaining and improving the river environment and continued and ever more onerous conservation measures. This regulatory framework is undertaken by the EA with the assistance of various voluntary and charitable conservation groups.

EOA. The EOA was set up to represent the interests of owners of fisheries on the River Eden in furthering that river as a salmon and sea and brown trout fishery, to act as a forum for the dissemination and exchange of information relating to the furthering those interests and to represent its members in negotiation with the EA. It was established in 1986 and had, when established, 25 members.

River Eden Trust. This trust (“RET”) is the only charity dedicated to the conservation and protection of the River Eden, its tributaries and its surrounding countryside. It was set up in 1996 and has undertaken more than 200 projects to improve the condition of the river for its wildlife and for the enjoyment of the public. Much of its other work is educational and it works with local schools to encourage schoolchildren to develop an interest and knowledge in the River and its fish population.

River Eden and District Fisheries Association. The River Eden and District Fisheries Association (“REDFA”) was formed following the demise of the Cumberland River Board in 1951 to represent and proclaim the interests of the River Eden. It held its first meeting in 1952 and has continuously fulfilled that role since then with membership representing the bulk of those fishing the River Eden. From its source to the Solway, these representatives have included the Kirkby Stephen and District Angling Association, in the upper Eden and its higher tributaries; the Appleby Angling Association, whose fisheries are immediately downstream of Kirkby Stephen; the Penrith Angling Association, with its fisheries comprising the very important tributaries of Lowther and Eamont; the Yorkshire Flyfishers Club, with its many beats around Penrith and lower down the river and the EOA, which administers much of the river not in the hands of the clubs, mostly through the lower middle reaches. REDFA’s objective is to co-operate with the national administrative and conservation bodies such as the EA and ERT.

Solway Haafnetters Association. The Solway Haafnetters Association (“SHA”) is a loosely structured body representing the interests of Haafnetters in the Solway Firth. It was reported that, following the 2007 NLO, the number of licenses that were still held halved from about 100 permitted by the NLO to less than 50.

The origin of the dispute between Lord Ballyedmond and Mr Carr was undoubtedly the undoubted hostility felt by Mr Carr towards Lord Ballyedmond which dated back to the early days after Lord Ballyedmond acquired Corby Castle and the Estate in 1994. That hostility had lain dormant until 2003 when the threat posed to all those catching fish on the River Eden and in the Solway Firth by rod, net or coop started to develop. This threat arose from the growing shortage of salmon and trout in these waters and with the resultant growing likelihood of the imposition of further regulatory restrictions on catching fish. These developments were of considerable interest to members of the EOA and they gave rise to very considerably heightened activity in EOA affairs by Mr Carr to whom the Committee had left everything to do with policy formation, liaison with outside bodies and the drafting of representations. The evidence suggests that Mr Carr was not prepared to involve Lord Ballyedmond in the discussions and activity within the EOA about this growing threat or about the EOA’s relationship with, and representations about fishing, the Haafnetters or the Coops and that that attitude led to his attempts to shut Lord Ballyedmond out of the EOA loop in relation to all these important issues.

Concerns about the imposition of heightened regulatory restrictions arose in about 2004 at about the same time as Mr Carr stopped calling AGMs at which the membership could receive a report of past activities and proposals for future action. No AGM took place between 17 April 2003 and 16 May 2008 and only two informal and poorly attended meetings occurred in that time. These additional meetings did not take any formal decisions or ratify anything that Mr Carr had previously done. Although there was no direct evidence as to why AGMs were suspended for five years, it is hard to avoid the conclusion that this was, at least in part, motivated by Mr Carr’s wish to keep Lord Ballyedmond out of the loop.

It is of course the case that Lord Ballyedmond had not taken any significant interest in the salmon and trout stocks in the River Eden following his acquisition of the Estate in 1994 save for his interest in the restoration and maintenance of the Coops. He is not personally interested in fishing as a recreation and most of its fishing rights had been sold to The Yorkshire Fly some years before his arrival. However, he became actively interested in River Eden fish catching activities when it came to his attention that Mr Carr had, as he saw it, arrogated to himself the EOA’s involvement in the affairs of the Solway Haafnetters and liaison with the EA and, at the same time, had apparently actively sought, in the name of the EOA, to undermine the interests of the Estate, the Coops and the limited fishing interests that remained in the Estate’s hands. Furthermore, he also perceived Mr Carr to be seeking in the name of the EOA to kill off or seriously undermine Solway haafnetting. Since he wished to maintain and preserve historic fishing and fish catching activities in Cumbria, he became incensed at what he considered to be Mr Carr’s high-handed, unauthorised and unconstitutional behaviour when acting in the name of the EOA.

First action. The first action to be issued was the first libel action issued on 23 July 2008. It was the first of the two libel actions started by Lord Ballyedmond and his son, the Honourable Edward Haughey and the defendant was Mr Carr. The action arose out of a report or Note that Mr Carr wrote and circulated to all members of the EOA with the papers for the AGM to be held on 16 May 2008. The Note reported on the meeting that he, Mr Gubbins and Mr Robson had had with members of the SHA on 7 March 2008. The meeting was also attended by Mr Edward Haughey who attended as the representative of Lord Ballyedmond. Mr Haughey arrived at the meeting about 30 minutes after it had started, having received a message that the starting time was 6.00pm but which, as he discovered on arrival, had in fact been 5.30pm. At the request of his father, Mr Haughey had attended in order to ask those present to adjourn the meeting to another date since he wished to be present and the meeting had been arranged, according to Lord Ballyedmond, without taking his convenience into account because Mr Carr did not want him to attend. On arrival, Mr Haughey asked those present to adjourn the meeting for a week. This request was ultimately agreed to by those present, albeit with considerable ill-feeling on Mr Carr and Mr Gubbins’ part. The Note prepared by Mr Carr of this meeting suggested that Mr Haughey had broken up the meeting having stated that the EOA representatives were acting ultra vires. Lord Ballyedmond and his son alleged that the report’s natural meaning was to the effect that Mr Haughey had acted, to adopt the words of the pleading in describing the words used:

“… boorishly and without legitimate reason to further their own personal interests and those of the Haafnetters at the expense of the interests of the EOA”.

Second action. The second action, known subsequently as the first misconduct action, was issued on 26 September 2008 and was brought by Norbrook and Lord Ballyedmond against Mr Carr who was sued in his personal capacity and as a representative of the Committee of the EOA. The action claimed two groups of declarations. Firstly, it claimed declarations that the AGM held on 18 May 2008 was of no effect because the votes were a nullity due to defects in the voting procedure adopted at the meeting. Secondly, it claimed declarations that Mr Carr had acted without the authority of the members and contrary to the interests of the Estate and the two claimants in respect of his actions concerning the Coops and the Haafnetters and the information he had provided to the AGM about his dealings with the Haafnetters. The claim sought relief against Mr Carr personally was to the effect that he should be restrained from acting as secretary of the EOA, compelled to disclose various documents and compelled to act and to be restrained from acting in various ways in relation to the Coops and the Haafnetters. The relief claimed against him in his representative capacity as a member of the Committee of the EOA was by way of declarations and orders that the AGM had not been conducted in accordance with the Constitution and that it should be re-convened and that any vote taken at that meeting should be a recorded vote.

Settlement of the first action. The first libel action was settled on 23 December 2008 by Lord Ballyedmond and Mr Haughey accepting Mr Carr’s CPR Part 36 offer to settle all claims arising from the publication of the Note of the meeting with the Haafnetters by the payment of £5,000 to Lord Ballyedmond and £7,500 to Mr Haughey. The Part 36 offer stated that it was made “without any admission of liability and purely to avoid the expenditure of these disproportionate costs” but those words were not incorporated into any order and the claimants were informed that they could contact the 26 people who received the Note to tell them of the settlement of the proceedings. Moreover, Mr Carr made an offer of amends which included an offer to make a suitable correction of the defamatory statements, a sufficient apology and a reasonable publication of the correction and apology. The claimants accepted the Part 36 offer and donated the payments to a charity set up by the Haafnetters to study fish stocks without also accepting the offer of amends because, as Lord Ballyedmond explained in evidence, he did not want to get involved in a long dispute about the wording of the apology.

Third action. The third action, being the second libel action, was issued on 29 April 2009. This was also brought by Lord Ballyedmond and Mr Haughey against Mr Carr and the claim was based upon the republication of part of the defamatory statements that had formed the basis of the first libel action. The republication occurred in a document sent out with the papers for the AGM to be held on 20 March 2009 at which the membership was to be asked to ratify the decisions taken at the previous AGM held on 16 May 2008. The particular words that were re-published were contained in a document included in the papers apparently through the unwitting mistake of the individual in Mr Carr’s solicitors who had been asked to check the relevant papers to be sent out to ensure that they did not contain any defamatory statements who had inadvertently allowed this particular document to remain in the papers. The particular words complained of were these:

“[Mr Victor Gubbins] was anxious to continue as Chairman of the Eden Owners Association but following the break up of the meeting with the officers of the Solway Haaf Net Association by Mr Edward Haughey (see agenda item 8)…”.

The fourth action. The fourth action, known subsequently as the second misconduct action, was issued on 11 May 2009 and was brought by Norbrook and Lord Ballyedmond against Mr Carr and Mr Garnett sued in their personal capacities only. As originally pleaded, the claim alleged that Mr Carr had circulated misleading and inaccurate information about the meeting with the Haafnetters held on 7 March 2008 and about the outcome of the first libel action and had failed to disclose to the AGM that the Yorkshire Fly had resigned from the EOA on the day before the AGM and had also failed to disclose the notes taken at an earlier Committee meeting. Finally, the claim alleged that Mr Garnett had failed to conduct the AGM properly. The claim sought declarations that both Mr Carr and Mr Garnett had failed to discharge their duties as officers of the EOA, injunctions compelling their resignation as secretary and chairman respectively and an order requiring them to provide a full and candid account of the meeting with the Haafnetters to the members of the EOA. Damages were also claimed for the loss that both Lord Ballyedmond and Mr Haughey had suffered in obtaining advice as to what they could do to secure the proper running of the EOA.

Settlement of the third action. The third action was settled by the payment of £2,000 and the publication of this apology from Mr Carr:

“I acknowledge that the comments in the report to which you took exception were incorrect and defamatory. This was not how I intended the meeting note to be read, but with hindsight I accept that due to the words used my comments could be read in that way, and if so would be incorrect and defamatory.”

The apology was set out in a letter dated 23 December 2009 and the action was finally settled by a Tomlin order dated 13 April 2010.

Settlement of the second action. The second action was settled in these circumstances, taking them from the judgment of the Court of Appeal in a procedural appeal following orders made by Judge Seymour QC following that settlement (Footnote: ² ) :

“25.

Not surprisingly therefore on 28^th January 2010 Master Eyre ordered both actions to be tried together. But in February 2010 both Mr Carr and Mr Garnett resigned. As a consequence, most of the injunctive relief sought in both actions to compel their resignation and to prevent them from continuing to represent the Association became unnecessary. In Claim 1 this left only the declaratory relief sought in respect of the conduct of the 2008 AGM and the claim for costs. In Claim 2 it left the claim for a mandatory injunction to provide a report about the Haafnetters meeting and the libel action and the claim for damages and costs.

26.

This turn of events led to further correspondence between solicitors as to what relief was now sought by the claimants in the two actions and ultimately to the application by the defendants which has led to this appeal. The tone of much of this correspondence on the claimants' side was, in my view, unnecessarily confrontational and included one letter (of 26^th February 2010) commenting on Mr Carr's state of health which should never have been written. The claimants' solicitors rejected the suggestion that they should discontinue Claim 1 and maintained that the claimants should have the costs of the claim even though it was no longer necessary to seek any further relief in those proceedings. I should mention at this point that in a letter of 11^th March the claimants' solicitors indicated that their clients were no longer seeking the declarations about the validity of the resolutions passed at the 2008 AGM because these had been re-considered at the 2009 AGM. Nor, for the same reason, was it any longer necessary to ask for an order re-convening a general meeting. It has also been made clear to us by Mr Fenwick QC, on behalf of the claimants (and is evident from the particulars of claim in Claim 2), that although claims for damages are maintained against Mr Carr and Mr Garnett for failing to act properly in their conduct of the 2009 AGM, the validity of the resolutions passed at that meeting is not challenged.

27.

On 26^th March 2010 the claimants' solicitors wrote a letter confirming that the only relief which they continued to seek in the two actions were damages and costs. This meant that Claim 1 was now being pursued merely to recover the costs of that action. It is also to be noted that, although claimed as damages in Claim 2, the items of special damage comprise the legal costs incurred by the claimants in obtaining advice from solicitors and counsel about the ongoing dispute. There will obviously be a serious issue as to whether these items are properly recoverable as damages at all but it means that both actions continue to be pursued largely (if not wholly) to recover the legal costs involved.

28.

In the letter of 26^th March the claimants' solicitors invited the defendants to withdraw their defences and to agree to pay the damages and costs claimed. The defendants' response was that they would continue to prepare for trial in Claim 2 but that in Claim 1 the most proportionate way of dealing with the action was for the parties to agree to an order under which the claim would be discontinued but the question of costs would be dealt with by the judge at the same time as the costs in Claim 2 on the basis that the costs orders in both actions "will turn on similar issues".

29.

In the light of the confirmation by the claimants that they would limit their claims to damages and costs, an order of this kind was strictly unnecessary. The trial judge could have been informed of the change in circumstances which had led to the abandonment of most of the relief claimed and would then go on to decide what remained in issue in the actions. But it was obviously sensible for directions to be given for the conduct of the trial given the changed position and for the parties to consider with the Court whether the matters in issue could now be limited with a view to saving costs. The most obvious question was whether the trial judge need determine all the issues raised by the particulars of claim in Claim 1 in order to decide the incidence of costs in those proceedings. In general, that is a course to be avoided. But the judge will often be able to form a view about the likely outcome of the action without the need for the in-depth analysis provided by the full trial process. How far he needs to go into the various matters is a question for him to decide having regard to the weight which he thinks it right to attach to the likely success or failure of the parties on these issues when determining what order for costs to make.

30.

On 6^th May 2010 the defendants issued an application for orders dismissing the claim in Claim 1 save for the question of the costs of and occasioned by the claim. They sought a direction that those costs should be determined at the same time as the costs in Claim 2. The witness statement in support of the application by Mr Grogan of Messrs Dickinson Dees exhibited the correspondence between solicitors on this issue and repeated that the costs of Claim 1 could conveniently be dealt with at the same time as the costs in Claim 2 because they would turn on similar issues. The reason given for the application was that Mr Carr wished to seek confirmation that the first claim should be dismissed in line with what the claimants' solicitors stated in their letter of 26^th March 2010. The purpose of the application was therefore to limit the claimants to seeking relief in the form of costs. No directions were sought limiting the basis upon which the issue of costs in Claim 1 should be determined. But it was obviously contemplated that the judge would make his decision having heard evidence and argument on most of the relevant issues in the context of the trial in Claim 2.”

Judge Seymour’s procedural order was set aside and in its place the Court of Appeal imposed a stay in that action in these terms:

“38.

I would therefore allow the appeal and substitute a stay of Claim 1 for paragraph 1 of the judge's order. It will be for the trial judge (unaffected by the judgment under appeal) to decide, after full argument, whether the claimants' case on the construction of the Constitution and on the implication of terms is correct as a matter of law and whether the defendants have or have not conducted themselves in accordance with their duties under the Constitution. I would only echo what Rix LJ said at the conclusion of the hearing, which is that litigation of this kind, pursued only to recover costs, can be both dangerous and destructive. It is to be hoped that, even at this late stage, some sensible steps can be taken to resolve what has, I think, become a completely unnecessary dispute.”

Application to amend fourth action. At the trial, Lord Ballyedmond and Norbrook applied to amend the fourth action by adding to its’ particulars of claim paragraphs 11 to 17 and 28 to 32 of the particulars of claim of the stayed second action in support of a claim for damages totaling £32,705.49 plus VAT representing fees paid by both claimants to their solicitors for legal advice and legal services relating to their disputes with Mr Carr and Mr Garnett. That application is opposed and I must decide whether to grant it as part of this judgment.

At the trial, the claimants confined their claim to their damages claim since they accepted that it was no longer necessary for them to seek declarations or orders. Both Mr Carr and Mr Garnett had by the date of the trial resigned as officers and from the EOA and there was no longer perceived to be a need for the declarations, injunctions or mandatory orders that were originally sought.

Fifth action. The fifth action was originally started in the Chancery Division by Norbrook on its own behalf and as representatives of the members of the EOA and by the newly appointed secretary of the EOA, Ms Caroline Waters, acting as a representative of the members of the EOA. The claim was issued on 3 March 2011 and it was transferred to the Queen’s Bench Division by an order dated 20 July 2011. In this action, the claimants sought orders for the delivery up of all documents which had been in the possession of either of the defendants which they now claimed an entitlement to. These documents were all those that had come into the possession of Mr Carr in his capacity of secretary of the EOA, some of which had been passed by him to his solicitors, the second defendant. Most of the documents had subsequently been passed over to the claimants but two categories of documents remained which Mr Carr, and as a result his solicitors, declined to hand over. It therefore remains for me to determination to determine whether the claimants were entitled to receive these documents and, if so, whether they can nonetheless be withheld on the grounds that they are protected from being handed over by legal professional privilege.

Sixth action. The sixth action was issued on 3 August 2011 and it claimed similar relief from Mr Robson as had been claimed against Mr Carr and Dickinson Dees in the fifth action. The documents in question had all come into the possession of Mr Robson in his capacity as treasurer of the EOA and he handed over all the documents which were claimed. The only remaining issue for me to determine in this action is as to the appropriate costs order that should be made.

I must determine two procedural issues at the outset. The first concerns the claimants’ application to amend their claim form and particulars of claim in the second misconduct claim. The amendment that is sought is to provide particulars of the claim for damages and to further particularise the breaches that it is alleged requires the defendants liable to pay those damages as being the loss flowing from the breaches relied on. These additional particulars of breach were, essentially, the particulars of breach pleaded in the first misconduct claim which has now been stayed. The principle objection was that those particulars and any loss the underlying breaches caused was, or should have been, claimed in the first misconduct claim which had now been stayed since the first claim had now been abandoned. There is some force in that objection but it is clear that the damages that are now claimed had, albeit briefly and without adequate particularisation, been claimed in the second misconduct claim as well as in the first. I will therefore allow the amendment but will, in deciding whether the claim succeeds, consider whether it should be dismissed on the grounds of abuse of process in addition to considering the claim on its merits.

The second procedural issue is whether I should consider and admit into evidence some additional documents which were only available to Lord Ballyedmond and Norbrook when they were handed over to them following the issuing of the fifth action and after the evidence had closed in the second and fourth actions. It was contended on behalf of Mr Carr that it was too late for these documents to be introduced and, in any event, the parties had agreed to limit discovery in the misconduct actions and it was unfair to extend that agreement so late in the history of the actions.

There is little force in the objections put forward on behalf of Mr Carr. The documents in question are clearly highly relevant to the Haafnetters’ issues and both parties were able to provide detailed submissions on the relevance and effect of these documents to the allegations made against Mr Carr and to his response to those allegations. I therefore have considered the contents of these documents and the relevant submissions that relate to them and have based my relevant findings upon them in addition to all other relevant evidence.

Lord Ballyedmond and Norbrook submitted that I should not make any findings in the misconduct actions until I had decided the outstanding disclosure, delivery up and privilege issues in the fifth action since, if I held that the outstanding documents should be disclosed, these should also be considered when deciding the misconduct issues. Although that submission has some logic, I have decided that it would be disproportionate and unnecessary to hold up my decisions in the misconduct actions. There is more than enough evidence already and it is clear to me that whatever is revealed by these additional documents cannot and would not affect or alter the findings that I am now able to make.

There was a huge amount of documentary evidence adduced in relation to the four actions in which I must decide liability or costs issues. In addition, five witnesses gave evidence at the one-day hearing. During that evidence, each was cross-examined and re-examined and a full transcript was provided of their evidence. The cross-examination was time limited although both cross-examining counsel, with skill and considerable expertise, in fact covered the entirety of the ground that would have been covered had there been no time limits. The essential purpose of the oral evidence was to enable me to determine whether the claims were bona fide and whether Mr Carr and Mr Garnett were acting, or attempting to act, in the best interests of the EOA and without authority. In addition to the four personal parties, brief evidence was given by Mr Graham who had been the leading member of the group of three Haafnetters who had attended the meeting with EOA officers and, belatedly, with Mr Haughey that was held on 7 March 2008.

The evidence of these five witnesses was supplemented by written witness statements from the Right Honourable Oliver Henley, adduced by Lord Ballyedmond and from Mr Richard Hughes and Mr Giles Mounsey-Heysham adduced by Mr Carr. These short statements did not add significantly to the evidence but they, with the other evidence, have been taken into account when I made my findings of fact.

Factual Background

The parties agreed a list of issues which they jointly considered needed to be decided by me in order to enable me to decide the outstanding damages claim and also to enable the parties to make appropriate costs submissions in both misconduct actions and for me to then resolve those costs issues. In addition, I must decide as a further issue the outstanding contentions with regard to the few remaining documents that Mr Carr has declined to hand over because of his claims based on ownership and privilege. The judgment will be handed down with all those findings contained within it and the parties will then return to make costs submissions in relation to all four actions (Footnote: ³ ) following which I will hand down formally my judgment on all issues including the costs issues.

General background. It is clear that before 2004, the EOA operated with the consent of its membership in an informal manner and that the elected Committee was delegated to conduct its day-to-day affairs. The EOA met formally at the AGM and at these annual meetings, the Committee reported on its activities in the preceding year and obtained the membership’s authority to act in the forthcoming year in those matters which were not already delegated to it by the Constitution. However, the Committee in turn conducted its business very informally. It never appeared to meet or to record its activities in any formal way and in reality left everything to Mr Carr, the elected secretary, save for financial matters and routine administrative matters that were left to Mr Robson, the elected treasurer. The elected chairman, Mr Gubbins, was evidently a figure-head who presided at those AGMs that were held but who played no other obvious role. There were, it is clear, informal discussions between these three when they met on social occasions or in occasional telephone calls and emails but these were not recorded and cannot be regarded as more than friendly social exchanges between men who were close friends of long-standing who shared common interests and outlooks.

Up to late 2007, Lord Ballyedmond’s direct involvement in the EOA was limited but he clearly kept himself informed of the EOA’s activities from a diligent study of such papers as were sent out to the membership by the Committee. He appears to have attended one AGM himself, in March 2000 when Corby Castle hosted the meeting, and another representative of the Estate and Coops attended other AGMs held in 1997 – 1999 inclusive, 2002 and 2003. For no apparent reason, an AGM was not held in 2001.The records do not appear to record the AGMs held before 1997 and what, if any, involvement there was by the Estate and Coops interests but it would seem likely that those interests were either represented at the meetings held in 1995 and 1996 after Lord Ballyedmond acquired the Estate or sent apologies since these particular fisheries’ memberships and involvement in the EOA were obviously punctilious. It is clear therefore, that Lord Ballyedmond and Norbrook retained a continuing interest in the affairs of the EOA through the Estate and the Coop’s involvement in AGMs and in the consideration of such limited paperwork as was sent to the membership and that until 2005 there was no dissent from the policies being pursued by the Committee or in the Committee’s lax conduct of the EOA’s internal constitutional affairs.

The general policy being pursued by the Committee as authorised by the membership at the AGMs was clearly and succinctly summed up by Mr Carr in his witness statement. He was speaking of the general policy that he considered as prevailing throughout the period that he was secretary, being the period between 28 October 1994 and 15 February 2010. He put it in these terms:

“Its objectives are not commercial and [the EOA] exists in order to further the interests of those owning fisheries on the River and it seeks to promote enjoyment of recreational (rather than commercial) salmon and trout fishing on the River. The EOA also exists to provide members with a collective voice to make public representations on issues affecting fishing on the River that came up from time to time. For example, there are issues involving unauthorised canoeing on the river which have required and still require action. Also, those owning fisheries have at various times been affected by changes in legislation and bye-laws relating to the regulation of their fisheries and the EOA has been seen by members as an effective way of collectively making representations about those changes to the relevant authorities on behalf of EOA members.”

It is also clear that Mr Carr had, as a result of his passionate interest in fresh water fishing on his own beat and his wider interest in salmon fishing and related conservation and environmental issues, acquired an encyclopedic knowledge of the breeding, fishing, conservation and regulation of salmon and trout and had an almost tireless energy in promoting the EOA’s general policy that I have set out. This inevitably and understandably had the effect that the members in general and the Committee in particular left the EOA’s activities to Mr Carr save for routine matters of administration, accounts and the collection of the very modest annual subscription which were left to Mr Robson, the treasurer. Mr Carr’s work was unremunerated and he does not appear to have even claimed any payment for his expenses in relation to the multitude of meetings and telephone calls that he made in the more than fifteen years that he served as Secretary.

Before 2003. The personal relationship between Lord Ballyedmond and Mr Carr was poor throughout the period of their dispute and it had obviously soured soon after Lord Ballyedmond acquired the Estate in 1994. The parties did not give much evidence about this period and it is not necessary to describe it save in outline. However, it is essential to take account of their evident mutual dislike since this is an essential part of the context in which the events relevant to their dispute took place. The origins of their mutual feelings towards each other were partly explained in their respective property interests and partly in personal terms.

Mr Carr was clearly resentful of the privilege that the Coops enjoyed from the regulatory regime affecting all other River Eden fishery interests including his own. This privilege enabled the Estate to undertake gravel movements and other work without restriction if these were necessary to maintain the Coops in the way that they had been maintained historically whereas the River Eden beats required EA authorisation for any gravel movement even if this was reasonably necessary to repair and reinstate the effects of stormy weather. Such authorisation was rarely given. It also enabled the Estate, at least theoretically, unlimited rights to capture and retain fish caught in the Coops in those months when they were permitted to catch fish. This was clearly a theoretical concern since at least the start of Lord Ballyedmond’s time since the Estate in his time, and it would appear for many years before then, had voluntarily limited its retention of captured salmon and trout to a tiny number and had returned the remaining captured fish into the river for unimpeded journeying further upstream or downstream. However, it would seem that Mr Carr had been hopeful of buying the Coops off the Estate once Lord Ballyedmond had acquired it and appears to have been more than a little upset when his informal but firmly intended offer to buy the Coops was rejected. He had made this offer to Lord Ballyedmond during a social engagement that both had attended soon after Lord Ballyedmond’s acquisition of the Estate. Mr Carr claimed when giving evidence that his offer had been made jocularly but it is clear that, however it was phrased, it had been made for the firm purpose of acquiring and hence controlling the Coops and their possible effect on the spawning salmon population upstream of his beat.

A further incident occurred early in Lord Ballyedmond’s time as owner of the Estate. The Estate is both vast and highly attractive and it was clearly a significant factor in Lord Ballyedmond’s decision to acquire the Estate that he would become the owner of the entirety of this historic and most unusual entity. It was therefore more than a little irritating for him to find, in the early years, that he was having to battle against the attempts by Great Corby Parish Council, at the behest of Mrs Carr who was its chairman at the time, to register part of the Estate as a village green. Although successful in his efforts to remove the registration of the Estate as a village green, this event clearly caused him much disquiet about both Mr and Mrs Carr that was compounded by Mr Carr’s informal offer to acquire the Coops.

In personal terms, these two pillars of Great Corby society clearly disliked each other from an early stage of their time as relatively close neighbours. This was probably as a result of their both being strong characters and, in their very different ways, prominent members of the Great Corby and wider Cumbrian communities. However, it is clear that each considered that the other had been both rude and disrespectful of him and had caused the other unnecessary social embarrassment on a number of occasions.

What appears to have cemented their mutual dislike of each other was the extensive repairs carried out by the Estate to the Coops in 1995 and the ensuing judicial review in 1996 brought by Lord Ballyedmond against the Environment Agency. In outline, the relevant events were as follows. The Coops had become exceedingly rundown by the time that Lord Ballyedmond acquired the Estate. As part of, but a major part of, his renovation of the Estate and the Castle, he undertook extensive and no doubt expensive remedial works and put the Coops and their historic engines into good working order. This involved, amongst other work, restoring aggregate material into the crest of an adjacent weir to replace material that had been eroded by the river flow. The work was necessary to restore the water levels in coops 1 and 2 and in the free and gridded gaps between them but it was not undertaken, as the EA’s predecessor and Mr Carr and others appear to have thought, so as to increase the rate of flow of water and hence of the number of caught salmon passing through the Coops.

Mr Carr and some other then members of the EOA were most concerned at this work being carried out since, as he and they saw it, its purpose was to enable the Coops to be used to trap and catch large quantities of salmon and trout. Moreover, as he explained in evidence, he was party to correspondence between EOA members and with the National Rivers Authority who was the relevant regulatory agency at that time. The purpose of that correspondence in 1995 was to seek regulatory intervention to put a stop to what were perceived to be the making of impermissible alterations to the river course with the consequent hindrance to, and heightened danger of the entrapment of, fish attempting to swim up river to spawn. The NRA, no doubt responding to the concerns that had been brought to its attention, decided to intervene by the somewhat highhanded and indirect method of refusing to renew the Estate’s fishing licences for the Coops on 25 January 1996. Lord Ballyedmond sought judicial review of that decision which was granted by Brooke J on 3 May 1996. The basis of that decision was that it was disputed whether or not the works required authorisation and that that dispute needed to be resolved before any question of non-renewal of the licenses arose. The NRA did not take any further action, no doubt in the light of the extensive evidence that had been filed on behalf of Lord Ballyedmond to the effect that the works were solely restorative and were, in consequence, covered by the certificate of privilege and in consequence were neither unauthorised nor required NRA approval.

Lord Ballyedmond had, at that time, an outstanding application to represent the Estate and the Coops in substitution for the representation by the previous owners and, following his success in having his licences restored by his judicial review, he was invited to attend a meeting of the EOA to explain what work was being undertaken to the Coops. Mr Carr contended that he declined to attend such a meeting with the result that everyone was left with the impression that the works were detrimental to fish and fish stocks in the River Eden. Lord Ballyedmond disputed that there was any detriment or that he had discourteously or otherwise failed to explain what had been done to the Coops. Since the judicial review judgment was available for all to read and since the EOA accepted Lord Ballyedmond as the owner’ of the Estate and the Coops membership of the EOA in October 1996, it seems unlikely that any member retained adverse thoughts about the work that had been carried out. However, this matter could only have heightened the animosity that each protagonist had for the other. It is significant, however, that Mr Carr accepted that he was unaware of any ill-feeling about Lord Ballyedmond from other members of the EOA prior to the outbreak of the present series of disputes between them.

Origins of Mr Carr’s views about the Haafnetters. Historically, haaf netting was a popular and, for many, well-remunerated pastime and many of the fish that were caught were sold for profit locally and for sale in fishmarkets and fishmongers both locally and in London. Mr Carr referred in his evidence to his anger at what he understood to be a trade in Solway salmon caught by Haafnetters passing through a smoke house in Penrith and ending up as wild Solway salmon selling at a high price in Fortnum & Mason. This practice, which appears to have been prevalent in the late 1990s but to have receded subsequently, he compared with his own self-imposed policy of at least 50 percent of all fish caught on his beats being returned alive to the river to breed. However, with the growing concerns about fish stock preservation, environmental concerns and the need to balance the interests of recreational fishermen and conservationists, a series of greater restrictions were imposed on haafnetting using a licensing system imposed through net limitation orders (“NLOs”). These restrictions further limited the number of licenses, the hours and months during which fishing could occur and the number of fish that could be removed from the Solway and required the accurate reporting of the numbers and types of fish caught. These restrictions proved hard to enforce because, so it was alleged by rod fishermen and the EA, the Haafnetters consistently under-declared the number of fish that they netted.

Through the 1990s and into the 2000s, there were successful prosecutions of Haafnetters and their number declined. Mr Carr remained highly skeptical about the integrity of the Haafnetters and in 2002 he was in touch with the EA to seek to counter arguments that had been put to the EA on behalf of the Haafnetters that they should be granted an exemption from the then prevailing NLO. This application was not successful. This initiative could not be said to have had any great impact on what would appear to have been the Haafnetters forlorn attempt to obtain an exemption and it was clearly one that fell within the ambit of the authority that the Committee had previously been given to keep a watchful eye on the activities of the Haafnetters.

2003. The first AGM that was held that is directly relevant to this dispute was the meeting that was held on 17 April 2003. It is particularly significant to these current disputes that this was the last AGM to be held for five years since the next one was held on 16 May 2008 albeit that informal meetings of the EOA were also held on 10 November 2005, 1 November 2006 and 8 January 2008. It would appear that this AGM was very much the same as previous meetings had been. The minutes record that the three officers were present along with four others. There were recorded apologies from nine others including Lord Ballyedmond (still then Dr E Haughey). Thus, sixteen members, through their respective appointed representatives, were either present or sufficiently interested in the affairs of theca to register an apology for non-attendance. The minutes of the meeting are both full and informative but non-attending representatives would not obtain any detailed knowledge of what occurred until they received a copy of the unapproved minutes with their papers sent out for the ensuing AGM which, as it happened, did not take place until five years later on 16 May 2008. Indeed, given the long delay, the 2003 minutes were not sent out with the 2008 agenda.

The meeting unanimously re-appointed the officers and Committee en bloc and during the 84 minutes that it is recorded as lasting, a wide range of matters were discussed. These focused on reports of the activities of REDFA and the Eden Rivers Trust, two of the bodies that the EOA liaised with and who were also concerned with conservation, breeding and environmental issues affecting the River Eden and its fish stocks.

The only issue of note that was raised concerned the Haafnetters. They were, like the EOA, represented in REDFA which was described in the minutes as the official consultation point on the River Eden which represented all types of fishery including the Haafnetters. Mr Eckroyd briefed the meeting on the potential for Haafnetters to take massive numbers of fish out of the Solway during the extremely low water levels within the River Eden and the meeting authorised him to canvass REDFA on that matter.

It was agreed at the meeting that the Chairman and two other members would each lobby one of the three particular individuals who were named who were interested in the Haafnetters’ issue through their individual association with REDFA, the EA and DEFRA.

It is clear that no overall policy about or approach to the regulation of fishing, netting, catching and conservation in and around the River Eden was discussed or formulated at this meeting which was principally concerned with keeping a weather-eye on the fear, albeit unfounded, that Haafnetters would be taking unfair and unlawful advantage of low water levels in the River Eden to the detriment of EOA fisheries. What is also clear is that in 2003 and subsequently, Mr Carr did not act on the basis that the Coops were full and paid-up members of the EOA in their own right and as a separate member to the Estate, so that he did not appear to recognise that its interests as catchers and trappers of fish in the River Eden were as much a part of EOA’s concern as the interests of rod fisheries in thee matters. Furthermore, he did not act on the basis that it was an essential underpinning of the protection and improvement of River Eden fisheries’ interests that these fisheries should work in harmony with the Haafnetters and the SHA and that a jointly agreed strategy and approach to future regulation should, if at all possible, be formulated and presented to the EA. He clearly did not accept that there was any linkage between the interests of rod exploitation on the one hand and coop and net exploitation on the other or that any representations to the effect that haafnetting should be further curtailed could lead to the curtailment of the Coops’ activities and vice versa. These views may well have been both reasonable and desirable but, unless formally adopted by the EOA after informed debate, they cannot be regarded as being EOA policy or views that Mr Carr had authority to promote formally or informally in the name of the EOA.

2004. There were reports of a number of successful prosecutions of Haafnetters flouting the terms of their licenses in 2004 and of 19 Haafnetters being successfully prosecuted in 2005. Mr Carr would have been aware of these prosecutions since he was carefully monitoring Haafnetters’ activities in the Solway. By 2004, it is clear that he was personally of the view that haafnetting was being carried out in a way that was seriously detrimental to the conservation of salmon and trout stocks and to fresh water recreational fishing in the River Eden and that haafnetting should be more strictly regulated than it was then being regulated under the regime of the then current NLO which was not due to expire until 31 December 2007. In consequence, without reference to any EOA member, save possibly an informal word with Mr Gubbins the then chairman, Mr Carr contacted the EA Environmental Manager, Mr McLaughlin in April 2004 to suggest that the EA should make a start on its review of the NLO. Although I was not provided with a copy of his letter, it is clear from the EA’s response that Mr Carr was seeking a meeting with Mr McLaughlin in order to seek to persuade him to consider promoting the introduction of a new NLO which would severely restrict the activities of the Haafnetters.

Mr Carr was informed by Mr McLaughlin that a review was due to start during the financial year starting in April 2005 and that that review was intended to be open and transparent, to involve all interested parties and, it was hoped, to avoid a public enquiry. He stressed that he would endeavour to conduct the review in a way that would avoid any allegations of bias in favour of any one party of the kind that had been made at the existing NLO enquiry. The letter was a clear and early warning to Mr Carr that the EA should not be approached by any interested party, including the EOA, in anything other than an open and even-handed manner.

The letter from Mr Carr, given that it had come from him in his capacity as the secretary of the EOA and would therefore be seen as having been written on its behalf, should have been formally sanctioned by the Committee before it was sent and should also have been considered by the whole membership of the EOA in general meeting or at an AGM prior to its being made since it was an approach that was potentially of considerable significance to all EOA fisheries and was not one of such urgency that it would not have been possible to obtain the views and approval of the membership as a whole before it was sent.

No AGM was held in 2004. There is no explanation provided for this omission. As just explained, however, there was a need to consult the EOA membership at that time given the EA’s response to Mr Carr’s general enquiry. That response showed that it was both necessary and desirable for the EOA in the latter part of 2004 to formulate a general policy relating to regulation and conservation on and around the River Eden and a general strategy of how to achieve this policy. This should have involved the membership in taking decisions as who the EOA was to work with and as to how it should attempt to persuade the EA to develop its future regulatory regime in a way that would achieve a generally accepted outcome for all its fishery members. This policy development was necessary so that the full and informed agreement of the entire membership to the EOA line was obtained before the start of the EA’s proposed timetable of consultations about an improved regulatory regime. This timetable was to start with an initial consultation process in 2005 and was then planned to proceed thereafter without any formal or public examination of its proposals in a public enquiry.

2005. In January 2005, Cumbria was hit by significant flooding and this greatly affected the River Eden. The flood proved to be a major event. Rainfall was very high for the period between 6 and 8 January, during which two months' worth of rainfall were released in 24 hours. This rainfall followed a month of high rainfall in the Carlisle area, so the ground was saturated and water could no longer infiltrate it so that surface run-off was excessive. The result was rapidly rising water levels in a number of rivers including the River Eden. The effect of the flooding was to cause an excess of gravel to be deposited on the River bed which hampered the fishing in most of the EOA member fisheries including the Coops and Mr Carr’s fishery. A number of fisheries, including Mr Carr’s, either applied or considered applying to the EA for permission to remove excess gravel deposited in the beats by the flooding that had occurred but all these applications were refused. However, the Estate and applied for 3 consents in 2006 to enable it to carry out land drainage work on the island adjacent to the Coops. These applications for consent, which all involved a significant movement of gravel, were granted. It subsequently emerged that the EA had granted them because the work that was involved would re-instate the Coops to their condition at the time of being granted their certificate of privilege and the EA consequently considered that it had no option but to grant them.

Perhaps unfortunately, neither Lord Ballyedmond nor the Estate informed any of the members of the EOA of the Estate’s intention to carry out the reinstatement works nor explained what work was intended or when it would be carried out. However, even more unfortunately, neither Mr Carr nor Mr Gubbins thought it appropriate to approach Lord Ballyedmond informally in order to ascertain his intentions and to satisfy themselves that no EOA fisheries’ interests would be adversely affected by these works.

In October 2005, the EA sent an informative round-robin letter to those associations having an interest in the conservation and management of Solway Firth migratory salmonids. Mr Carr received a copy of this letter in his capacity as secretary of the EOA and the SHA would also have received one. The letter explained that the EA regulated a number of fisheries in the Solway Firth area including the haafnet fishery in the Solway, various in-river rod fisheries including those of the River Eden and the Coops. It pointed out that there was a need to review the current regulations controlling fishing and catching by those fisheries set out in the relevant byelaws and the haafnet fishery NLO that expired in 2007. The letter enclosed a brief paper which summarised the various fisheries that were involved in the review and explained that the review was at an informal stage which would end in June 2006. This would be followed by the publication of draft new regulatory proposals in July 2006 to enable new regulations to be in place before the end of 2007 (Footnote: ⁴ ) .

On 10 November 2005, Mr Carr arranged for an informal meeting of the EOA at which non-members were present including representatives of the EA. With the subsequent consent of some of the membership, no minutes were made of this meeting since it was intended as a meeting which would convey information to the membership and it was attended by non-members who provided useful contributions to the discussions that took place. The EA paper was used as the focus of the discussions and it is clear that the membership who were present became aware, from both the chairman’s letter that accompanied the agenda for the meeting and from the discussion, that fisheries on the River Eden faced the real possibility that the EA would impose a reduction in exploitation levels for both netsmen and rod fishermen and that it was very important that fishery owners took a united position and adopted a voluntary policy of restraint whose effect would be to achieve a 50% return rate so as to seek to head off more draconian and less flexible measures being introduced by the EA.

After the meeting, a questionnaire was sent to the membership seeking information about the voluntary measures currently being employed which it was stated would provide the basis of an appropriate response to the EA’s request for comments about the conservation management measures that were currently being employed. It was stated that Mr Gubbins or Mr Carr would formulate a response to the EA and would send to the EA. That response was clearly of significance and should have been one which was circulated to the membership in draft for approval and final comments before it was sent out to the EA.

Since the EOA had not yet formulated or approved its general policy with regard to regulation and conservation, it should have developed one at an AGM or other meeting that should have been held soon after the consultation meeting held in November 2005. The EA policy letter represented one of the most significant events in the history of the EA since it heralded the introduction of draconian restrictions on the exploitation of fish stocks in the River Eden and of fish entering the River Eden from the Solway Firth. No doubt the Chairman’s letter and the informal contacts that Mr Carr had been developing over the previous two years could have rapidly been worked up into a proposed statement of policy which could first have been endorsed by the Committee and then placed before the entire membership at an AGM or EGM or in some other appropriate forum with an appropriate explanation about its scope and content but, without that approval, Mr Carr had no authority to submit any formal response on behalf of the EA to any regulatory proposals the EOA might put out for consultation or to engage in informal approaches to the EA or any other body in the name of the EOA with the aim of promoting the EOA’s general interests in relation to regulation.

2006. In the early part of 2006, and again in October and November 2006, Mr Carr was involved in informal discussions with the EA. The nature and purpose of these discussions was summed up in this extract of a letter from the EA to Mr Carr dated 19 July 2006:

“As I believe you are aware, since October 2005 we have been engaged in informal consultation with organisations which have a direct interest in the fisheries of the Solway and its associated river. The objective of this consultation has been to obtain the views of those who would be directly affected by any changes to regulation prior to the Agency deciding on what if any changes are required.

Having obtained these views, we have now proposed a package of measures which have been endorsed by RFERAC [the Regional Fisheries Ecology and Recreation Advisory Committee – a statutory advisory Committee advising DEFRA and the EA]. Whilst it is your view that the proposals favour the nets, there are those who hold the view that the proposed measures favour the rods. Given these widely differing views, it is unlikely that we will ever reach a consensus.”

It would appear from documents disclosed by Mr Carr in the discovery proceedings in the fifth action that he was in communication with the EA with the aim of influencing the NLO review in a number of ways that would have been adverse to the haafnetsmen. In particular, he suggested that the EA’s proposals might have made erroneous and unduly favourable assumptions about the limited size of the netsmen’s catches given that they had historically under-declared their catches. He therefore sought to persuade the EA to consider limiting the time that haafnetsmen should be permitted to net in any netting day and also to persuade them that the Solway Haafnetters were operating a mixed stock fishery thereby placing it in the category of a fishery which it was the EA’s policy to phase out altogether. His final approach was to seek to persuade the EA that its proposals were generally unfair and unduly unfavourable for fishermen when compared to the unduly favourable proposals that it was considering introducing for netsmen.

Mr Carr’s views as expressed to the EA about possible further limitations on Haafnetting did not, in early 2006, fall within the wide ambit of the authority that he had been given by the EOA to act on its behalf since his principal objective in undertaking these initiatives was to seek to persuade the EA that no further limitations should be imposed on the River Eden fisheries and at the same time, further severe limitations on, or even the elimination of Solway haafnetting and Coops entrapment should be introduced. Mr Carr’s proposals as to the further limitations that should be considered for Haafnetting and Coups entrapment were clearly not favoured by the EA as can be seen from the extract of the EA’s letter that I have just quoted since the letter suggested that they would not be included in the EA’s formal proposals when these were finally published. That does not excuse Mr Carr’s apparent failure to consult the entire EOA membership about these general matters of great importance to them, particularly as an AGM was by then long overdue.

In the later part of 2006, Mr Carr was also in discussion with the EA about the works being carried out to the Coops. Mr Carr did not reveal to Lord Ballyedmond or, indeed, to anyone else, that he was engaging in these discussions and they came to nothing but they formed the basis of one of Lord Ballyedmond’s principal complaints about Mr Carr’s conduct as Secretary of the EOA and I will deal with them under issue 6 below (Footnote: ⁵ ) .

By October 2006, it was clear to Mr Carr that the EA proposals would soon be published and that they would contain significant additional restrictions on both rod and net catching in both the Solway and the River. As a result, he foresaw the real likelihood of a public enquiry being held in 2007 at which the draft regulations and draft NLO would be examined and reported on and at which the EOA would need to be represented and to put forward defensible and strong objections to these proposed restrictions. He therefore arranged another informal meeting of the EOA to be held on 1 November 2006. A knowledgeable representative of the EOA attended that meeting and he gave a presentation which explained why there was a significant and urgent need to reduce exploitation of River Eden salmon. Following his departure from the meeting, there was a detailed discussion as to how theca should proceed. It was agreed that Mr Carr would prepare the EOA’s response to the written proposals once these had been published and that that response should be defensible at a public enquiry if such was held. It was also agreed that the EOA should be legally represented at the enquiry and that £5,000 of the EOA’s reserves, namely half its then reserves, should be ear-marked for that purpose. Following the meeting, Mr Carr interviewed and then appointed a firm of solicitors who would be ready to represent the EOA at short notice if an enquiry was ordered.

The Estate and Coops were represented by Mr Clark at this meeting and it would seem that he raised no objection to the general line that Mr Carr was being instructed to pursue. However, the meeting was an informal one and no policy was adopted or agreed to save that the EOA’s response should be “defensible” at a public enquiry. Since, as Mr Carr already knew, it was unlikely that such an enquiry would be held and since, in any event, there had never been any discussion within the membership as a whole as to what should be the content of a defensible policy, it was essential for the outlines of the policy that was to be promoted with the EA or at an enquiry to be formulated in the immediate future and to be agreed and adopted by the membership in time for Mr Carr’s formulation of an official response which it was clear would be needed within the next six months.

2007. Mr Carr was, of course, not able to prepare the EOA’s response to the regulatory proposals until these had been formulated and published although he could have used the time to workup and obtain agreement for the EOA’s general policy with regard to regulation of fisheries, including the Coops, on the River Eden and haafnetting in the Solway. This could, and probably should, have included meetings with the SHA since no such meeting had yet taken place. Indeed, it can now be seen that a series of meetings with that Association starting in 2004 could and probably should have taken place at which an acceptable joint policy and a joint strategy with regard to regulation and influencing the EA could have been devised and implemented. The importance of ensuring that the EOA had developed and approved its general policy and had agreed that general policy with the Haafnetters and the owners’ of the Coops before the EA’s proposals were published was highlighted by the fact that, as had already made clear to Mr Carr, the EA was determined to avoid a public enquiry into its proposals if at all possible as a result of the lengthy and protracted wrangle that had occurred at the previous public enquiry that had examined the details of the NLO which was about to expire.

The EA did not publish its proposals until June 2007 and these were in a nearly complete form since they were published in the form of a draft NLO and draft bye-laws. When these were published, the EA informed all interested parties that any objections or comments would have to be received within a 3-month period ending in mid-August 2007. This placed Mr Carr in considerable difficulties because he only had a few weeks to finalise his research, draft detailed and defensible objections and consult with the membership. This was a particularly onerous task since it was clear that there would be no public enquiry, that the regulations were more restrictive than had been envisaged and that they were less favourable for rod fishing than for net catching. Furthermore, the three-month period allowed to Mr Carr included the holiday month of August. It is not surprising, therefore, that Mr Carr did not call a meeting of the EOA although he did consult with individual members of the Committee and other River Eden fishermen from some of the fishery members on points of detail. That does not, however, excuse his failure to submit the draft response to the membership and an emergency general meeting should have been summoned to comment on and approve a draft in time for the final version to be prepared and submitted within the timetable set by the EA.

Throughout the entire period between 2004 and 2008, Mr Carr particularly overlooked two matters. Firstly, each member of the EOA was entitled to be consulted about any significant policy initiative or the contents of any formal representations submitted on its behalf in a way that would enable that member’s views to be heard and taken account of by all other members before a final decision was taken by the membership. Secondly, Lord Ballyedmond had had considerable experience in public affairs and in working with regulatory and legislative processes and the Estate and the Coops were undoubtedly prominent members of the EOA so that his potential contribution to the discussions would be of particular interest to, and assistance for all the other members of the EOA. It was in consequence, of particular importance to consult him.

The final version of the EOA’s representations, entitled a Memorandum, was submitted within the stipulated timescale for comments and objections. It is noteworthy that this document was a joint submission of the EOA and the Esk and Liddle Improvement Association which was an association that represented the interests of riperian owners on the Border Esk and Liddle. It was therefore even more unfortunate that the EOA membership was not consulted about the contents of the Memorandum whereas representatives of the Esk and Liddle Association were not only consulted but were persuaded to submit the Memorandum that Mr Carr had drafted to the EA as the joint submission of both associations.

It is not necessary to consider the detail of this Memorandum save to note that it contended that the proposed restrictions on rod fishing imposed by the new bye-laws were unfair when compared with the suggested more favourable restrictions on netting imposed by the new NLO and its concluding section concluded with this overall proposal:

“Whilst the Associations [the Memorandum was submitted jointly by the EOA and the Esk and Liddle Improvement Association] believe that the continuation of a haaf net fishery in its current form cannot meet the requirements of NASCO and ICES and should therefore be phased out, the Associations also believe that there is room for a truly recreational fishery whereby the traditions and know-how of a fishery which has heritage value is preserved.

The Associations believe that there is a place for a well policed recreational fishery with daily catch restrictions no greater than those proposed for the recreational rod fishermen and with a licence fee structure whereby there is approximate equality in cost on a fish killed basis between each recreational fishery. … The Associations are today concerned with the principle of ‘fairness’ which the Associations consider to be missing from the current proposals and which lies at the basis of our various objectives.

The Associations believe that the anglers of the Eden and Border Esk have shown both restraint and responsibility towards the conservation of migratory salmonids and should not be further limited by the apparent inability and unwillingness of the Agency to restrict the net fishery in which a relatively small number of netsmen kill the bulk of salmon and sea trout killed in the catchments.

The Associations suggest that a possible way to achieve the Agency’s escapement targets and share the resource fairly between various recreational interests would be to impose a limit of 2 fish per day on both anglers and netsmen throughout their respective seasons.”

That overall proposal should be seen in the context of the detailed adverse comments that the Memorandum made about Solway haafnetting. The Memorandum highlighted what it considered to be the bias in the proposed regulations in favour of the haafnetsmen, it dwelt at length with their suggested historic dishonesty of under-declaring their catch, it stressed the need for more extensive daily close periods for catching than those provided for in the draft NLO, it highlighted the need to prohibit haafnetsmen from selling any of their catches, it objected to the unfairness of the haafnetting proposals compared to those for rod fishermen, it contended that current guidelines that were said to favour rod caught fish over net caught fish were not being followed and it asserted that the proposals were biased in favour of haafnetsmen.

It followed that the Memorandum was almost entirely focused on putting forward reasons why the draft NLO should be amended so as to make the new NLO significantly more restrictive of the activities of the haafnetsmen than the draft provided for. Even if the balance and content of the Memorandum were acceptable to the membership, it should have been involved in the formulation of the policy that led to it and in the detailed content of the Memorandum once it had been drafted. The Membership had not been involved in the formulation of the policies promoted by the Memorandum or in approving its tone and content. Furthermore, the Committee had similarly not been involved save for limited informal discussions that Mr Carr had had on a one to one basis with the chairman and, possibly, with the treasurer on points of detail.

2008. The NLO and the bye-laws were promulgated as proposed and they took effect on 21 November 2007. The haafnetsmen were particularly aggrieved at the severity of the restrictions that the NLO imposed on them which, although not as severe as were being sought by the EOA, were nonetheless significantly more severe than those imposed under the previous NLO and bye-laws. Two haafnetsmen issued judicial review proceedings seeking to set aside the NLO and bye-laws on the grounds that the anomalies that they allegedly contained were irrational. The proceedings were issued on 20 February 2008 and permission to apply was refused on 15 September 2008. The haafnetsmen then agreed that the claim should be dismissed on terms set out in a consent order dated 18 November 2008.

Following the promulgation of the bye-laws, the Committee decided that the time had come to hold a further EGM. The membership was circulated with an agenda and papers and the meeting was fixed for, and held on, 9 January 2008. The meeting was not held as an AGM since four representatives of the Eden Rivers Trust were present and both its chairman and its scientific officer gave presentations of its work. The principal business discussed arose out of a “Decision Paper” – an obvious misprint for “Discussion Paper” – prepared by Mr Carr which summarised the new regulations for both anglers and netters, highlighted the unsatisfactory way that the EA had undertaken its consultation process and explained his view that the regulations unfairly differentiated between nets and rods and that the EA had failed to carry out scientific work necessary to show that the Solway haafnet fishery was not a mixed stock fishery. Mr Carr firmly believed that it was a mixed fishery and should be dealt with on that basis but the paper accepted that until the DNA testing of the fish in the Solway that it urged should be undertaken was undertaken, it would not be possible to persuade the EA that it was a mixed fishery.

The paper recommended that the EA should be pressed to review the NLO after two years to consider whether or not it was meeting the EA’s prediction, which had been the basis for the restrictions that had been imposed, that these restrictions would reduce the number of fish killed by the haaf nets by at least 50%. Mr Carr was firmly of the view that no such significant reduction would be achieved. This option would also involve the EOA pressing for scientific research to be carried out in order to obtain a better understanding of the make-up of the catch in the various Solway net fisheries and that if this research showed that the Solway haafnet fishery was a mixed stock fishery, to persuade the EA to re-open the NLO issue and to replace it with proposals that would comply with its policies of eliminating mixed stock fisheries or of imposing very significant restrictions on the exploitation of mixed stock fisheries.

Lord Ballyedmond, who was attending a meeting of the EOA for the first time, became very heated about this proposal and about the EOA’s involvement in, and hostility for, haafnetting since he did not believe that haafnetting was the business of the EOA at all. He also expressed the view that the EOA should work with the Haafnetters rather than against them and that any further regulatory restrictions should be headed off by everyone working together to persuade the regulatory authorities to adopt a less repressive regulatory regime. In consequence, he suggested that there should be an early meeting between the EOA and the SHA to discuss matters of mutual concern including the NLO. This suggestion was agreed to by the meeting. No formal resolution was passed to that effect and no decision was taken as to who should attend it on behalf of the EOA if it took place. It is clear, however, despite Mr Carr’s contrary recollection, that the consensus of views expressed at the meeting was to the effect that Lord Ballyedmond should be one of those attending the meeting if he wished to attend and that Lord Ballyedmond so indicated.

Immediately following this meeting, Lord Ballyedmond consulted his solicitors who sent the first of a long series of letters to Mr Carr on 11 January 2008. This correspondence made wide-ranging complaints about the way that the Committee, and in particular Mr Carr, had allegedly mismanaged the affairs of the EOA, had failed to hold meetings or to elect its officers in accordance with the requirements of the Constitution and had been subject to a number of conflicts of interest, had been involved in the affairs of the Haafnetters although this was not any of the EOA’s business and had been bullying them instead of supporting them in their historic recreational activities. It was undoubtedly this correspondence that had confirmed in Mr Carr’s mind his decision that Lord Ballyedmond would not be permitted to attend the meeting with the Haafnetters and, when it became clear that Lord Ballyedmond would not countenance a meeting without his presence, accepting that he should attend but without taking or asking Mr Robson to take, active and urgent steps to ensure that the meeting was arranged so that Lord Ballyedmond could attend. Unfortunately, for reasons that remain unclear, Lord Ballyedmond was only notified of the date and time of the meeting on the morning of 7 March 2008, being the date of the meeting, and he was unable to attend at such short notice. This notification came indirectly rather than being emailed or telephoned to him directly and Lord Ballyedmond arranged for his son to attend in his place to seek an adjournment of the meeting. Unfortunately, for reasons that never became clear, Mr Haughey was informed that the meeting started at 6.00pm whereas it actually started at 5.30pm so that he arrived at least 30 minutes late for it.

The meeting held with the Haafnetters and the subsequent AGM held on 16 May 2008 form a significant part of the complaints dealt with in the first and second actions and are dealt with in issues 5 and 7 - 12 below (Footnote: ⁶ ) . Between that AGM and the next AGM held on 20 March 2009 the Committee in consultation with the membership, drafted a Policy on Haafnetting for the EOA to consider and adopt. During this process of consultation and policy formulation, an amended bye-law was introduced with effect from 1 February 2009 prohibiting the sale of rod-caught salmon. At the AGM held on 20 March 2009, the following policy was adopted unanimously, one of those voting for its adoption being Lord Ballyedmond:

“Eden Owners Association

Policy on Haafnetting

The Eden Owners Association supports the continuance of a genuine recreational haaf net fisher in the Solway whereby fish killed are for personal use of the netsman. It does not support the use of the fishery by some netsmen for commercial purposes.

In recent years the majority of members of the Eden Owners Association have encouraged the release of rod caught fish. The Association welcomes the introduction of daily bag limits for recreational rod fishermen thereby helping to ensure an adequate spawning escapement necessary to maintain a healthy Eden salmon population.

This Association believes that all recreational fishermen should be treated on an equal basis, that catch restrictions should be imposed on the netsmen that are not dissimilar to those imposed on rods and that the sale of all fish caught by way of ‘recreation’ should be banned.”

2009 - 2011. The AGM held on 20 March 2009 formed the basis of the complaints in actions third and fourth actions and are dealt with in issues 7 – 10 and 12 below (Footnote: ⁷ ) . The Yorkshire Fly informed Mr Robson in a letter dated 19 March 2009, which he received by fax on that day, that it was resigning as members of the EOA. No reason was given for that decision save that the Club:

“… consider that the current climate existing in the Eden Owners Association is not conducive with our sporting interests.”

Between March 2009 and 28 January 2011, no AGM was held but Mr Garnett resigned as chairman, Mr Carr as secretary and Mr Robson as treasurer and 11 of the 18 members resigned as members. At the AGM held on 28 January 2011, three new members were admitted; being Lady Ballyedmond, Professor James Haughey and the Honourable Edward Haughey and Lord Ballyedmond was elected chairman, Ms Caroline Waters secretary and Ms Madeleine Irwin treasurer. Following that meeting, Ms Waters, in her capacity of secretary, sought the handover from Mr Carr and Mr Robson of all documents in their respective possession that were the property of the EOA and which were, therefore, appropriately to be handed over to and held by the current secretary. The fifth and sixth actions were subsequently started by Lord Ballyedmond and Ms Waters in order to obtain orders for the delivery up of those documents that the claimants considered were EOA’s property but which, respectively, Mr Carr and Mr Robson were, or were perceived to be, refusing to hand over to Ms Waters.

Lord Ballyedmond and Norbrook’s claims in each of these three actions are based on alleged breaches of their contractual rights arising out of their membership of the EOA. The parties markedly disagree about the nature and scope of those rights and the extent to which the court can and should provide a remedy for proved interference with those rights so that it is helpful to consider a number of generic issues of law and construction that these contentions have identified before embarking on a determination of the individual issues that I must decide.

The EOA is an unincorporated association. It is, therefore a group of individual members – who need not themselves have independent legal personality - and it has no independent legal personality of its own. Each member of an unincorporated association agrees to be bound by the constitution and rules of the association on becoming a member and membership creates a private contract between each member and every other fellow-member whose terms are those that are set out in the association’s constitution and rules. An unincorporated association is a group of two or more members who are bound together for common purposes which are not commercial profit making purposes. Since the rules will usually have been drafted by non-lawyers and have been used and interpreted by the members acting collectively over many years, they are to be interpreted reasonably, fairly, broadly, liberally and in the interests of all concerned in the association. Furthermore, gaps in the rules and any loose or unclear wording should be filled in and construed in the light of the association’s purpose and in a sensible and common-sense manner adopting any interpretation that has been generally accepted by the membership as a whole (Footnote: ⁸ ) .

This flexible and pragmatic approach to an unincorporated association’s rules is particularly apposite for the EOA’s constitution. The EOA was formed on 24 November 1986 by those with a recreational interest in fishing and catching fish in the River Eden. The constitution is short and informal in both its nature and content, the membership is small and ill-defined, its annual subscription and turn-over are nominal, its objectives are loosely defined and very specific in nature, its activities are confined to an AGM and a limited number of further annual meetings and it possesses only limited property and assets.

The generic issues of construction that arise in this group of cases may be summarised as follows:

The identity of the members of the EOA.

The objects of the EOA.

Implied terms in the constitution.

AGMs and election of Committee members.

The role and duties of the Committee and Committee members.

The relationship between individual members

Breaches of contract.

Records and documents of the EOA.

Remedies for breach of contract.

The role of the court.

Membership of the EOA is defined by the constitution in this way:

“Membership of the Association shall be limited to Owners’ (sic) of Fisheries in the River Eden or any of its tributaries.”

Neither “Owners’” nor “Fisheries” are defined so that their meaning must be derived from a consideration of the Constitution as a whole, the natural meaning of those words in their context and the relevant factual background interpreted in a general and common sense way taking account of any obvious meaning in relevant particular contexts that the membership as a whole can be seen to have adopted.

Fisheries are individual stretches of the River Eden or other identifiable areas of sea or freshwater and, in relation to rivers, comprise what in fishing parlance are called a beat or a number of beats. A beat in this context is defined as:

“An area of land or stretch of riverbank on which sportsmen hunt or fish.” (Footnote: ⁹ )

In the context of the River Eden, which is entirely owned privately, that stretch of land or area of water may well be in more than one land ownership, particularly since the relevant fishing rights are not corporeal but a arise from a profit-à-prendre that provides rights of fishing or catching fish in or on the River Eden. The relevant right or collection of rights making up the fishery might be attached to the freehold of the adjacent river bank or to a separate ownership or it or they might be owned by someone with no other land interest since a profit-à-prendre may be held in gross so that it can be created separately or severed from the relevant stretch of land or river.

Fishing rights in the River Eden are held in a variety of ways including being owned, jointly owned and owned in common as a freehold interest or as a lease or a sub-lease. The holding might be by an individual, a group of two or more individuals, a company limited by shares or guarantee, a charitable organisation, the trustees of a settlement, a fishing club or unincorporated association, a partnership or a limited liability partnership. Finally, any ownership held in trust might be held for a beneficiary or beneficiaries who are themselves individuals, a charity or an unincorporated association. It can be seen that members of the EOA in 2007 included members in most of these categories including individuals, trustees of a family settlement, an angling association (Footnote: ¹⁰ ) , a charity (Footnote: ¹¹ ) and both a private company and a limited liability partnership. Moreover, the Constitution listed the founder members and these were an equally diverse group of owners’ and these members, additionally, were the beneficiaries of certain fishing rights acquired by the EOA which were held on trust for all these original contributing members. Two such founder members, whose membership continued throughout the events I am considering, were the Estate and the Coops.

It is clear therefore that “Owners’” in the sense that that word is used in the clause of the Constitution that defines membership is used in a wide, loose and general non-technical sense. For example, the chairman of the EOA until 2008, Mr Victor Gubbins, was one of three trustees of the trust that had legal title to the Eden Lacy Trust Fishery and, as such, he was unquestionably a member of the EOA. It follows that there were and remained a variety of different kinds of owner of the Fisheries on the River Eden including individuals, shareholders of companies and the companies themselves, companies limited by guarantee, trustees, beneficiaries, a charitable corporation and an unincorporated association. It is also clear that, from the outset, these legal niceties did not trouble the EOA membership and that the “Owners’ of Fisheries” were considered to be any one or more of the individuals who participated in the ownership, management and proprietorial use of a fishery and that the word was loosely interpreted to mean whoever could be regarded as the person or group of people who owned, managed and made personal use of that fishery at any given time. The EOA membership and the treasurer, who was the Committee member responsible for managing membership matters, regarded each and every member of the EOA as being the group of individuals comprising the Owners’ of the fishery in the wide sense meant by the words “the Owners’ of the fishery” in the definition of members set out in the Constitution, each member as being the fishery itself, each member as being known by the name of that fishery and each member of that member’s Owners’ group as having signed up to the Constitution and as being contractually bound by its terms.

The collective Owner’, under the terms of the Constitution, only had one vote and one membership, For convenience, each fishery nominated an individual associated with that particular fishery to hold its vote at an AGM. Thus, the two fisheries associated with Corby Castle, being its Estate and its Coops, comprised two members and two votes were available to them. The owners’ of those two fisheries, in the loose and flexible sense used in the EOA Constitution, were, and were considered to be, Lord Ballyedmond and Norbrook since Lord Ballyedmond was the principal shareholder of Norbrook in whom the legal title of the Estate was vested. Everyone considered Lord Ballyedmond to be the owner, in a broad and loose sense, even though Lord Ballyedmond’s company was the registered proprietor of the Estate in a legal and real property sense. It is clear that the Estate throughout the lifetime of the EOA had had two memberships and was always considered to contain two separate fisheries, the Estate and the Coops. Those two fisheries were founder members of the EOA and each was, in consequence, a separate beneficiary of the trust set up for those original members who had contributed towards the acquisition of the property held on trust by trustee members of the EOA. There was no evidence that this separate membership merged subsequently so that, strictly speaking, the Estate and the Coops were, throughout the history of these disputes, separate fisheries holding separate memberships of the EOA.

Succession of membership. When the Owners’ or any particular member of the Owners’ of a fishery changed, whether as a result of the fishery being transferred into a family trust or settlement or by way of a sale and purchase of the legal interest giving rise to that fishery or of the beats that it was comprised of or because one trustee was replaced by another or in any other way, the membership of the EOA associated with that fishery did not change even though its Owners’ had changed. It is clear that, throughout the history of the EOA, the members regarded membership as being that of the fishery so that a change of owners did not have the effect of that fishery ceasing to be a member and then having to re-apply for a fresh membership. In technical language, membership was treated as running with the fishery. Thus, for example, when the personal ownership of the fishery of the then-chairman, Mr Victor Gubbins, passed into a family trust, the “owners’” of that fishery were not considered to have changed in a way that led to it leaving and then rejoining the EOA. Instead, its’ Owners’ increased in number from one, Mr Gubbins, to three, being the three trustees of which he was one. Mr Gubbins, with the authority of his two fellow trustees, did, however serve notice on the treasurer that he had the trustees’ authority to represent and to exercise the single vote on behalf of that particular fishery at meetings of the EOA but that was an administrative matter signifying who had the authority to represent and to vote on behalf of the new Owners’ at EOA meetings.

The Yorkshire Fly might be considered by some to be a possible exception to this sensible and common sense approach to membership and succession to membership. At some stage prior to Lord Ballyedmond’s acquisition of the Estate, the then owners of the Estate, no doubt for financial reasons, sold off most, but not all of its’ fishing rights to the Yorkshire Fly. The Estate retained its membership of the EOA and the fishing rights acquired by the Yorkshire Fly were treated as passing into its existing membership. Thus, the EOA treated what had occurred as no more than a redrawing of the boundaries of two existing member fisheries with no practical consequences for their separate memberships. That seamless and practical approach to membership is, therefore, an example of the construction and interpretation of the Constitution that I have set out and shows both that the words “Owners’” and “membership” in the Constitution were interpreted in a broad and sensible way by the membership, that the membership of a particular fishery continued after a change of ownership in the strict legal sense without the need for the new Owners’ to re-apply to re-join the EOA and that the individual owners only remained parties to the Constitution whilst they were participating in the ownership of a particular fishery that was itself a member.

It follows that Lord Ballyedmond and Norbrook became the new owners’ of both the Estate and the Coops when Lord Ballyedmond purchased the Estate and then transferred legal title to Norbrook. However, the founder membership of the Estate and the Coops survived and continued without the need for the new Owners’ to apply for the re-admission of either the Estate or the Coops to membership. In other words, the Estate and the Coops has held continuous membership of the EOA from its inception to the present day.

Conclusion. The membership of the EOA comprised the group constituting the Owners’ of each fishery member, that is the group of individuals who were in a loose and popular sense those who were currently involved in the ownership, management and personal use of that fishery. From the moment when a fishery became a member of the EOA, anyone who was actively involved in that fishery or who exercised joint or several proprietorial rights over it was, whilst he, she or it acted in that way, became a contracting party to the Constitution. When, subsequently, someone joined that group and first acted as an owner, he or she thereby acknowledged acceptance of the contract created by the EOA Constitution with each of its members and was to be taken to have accepted that he or she was contractually linked with all other owners who were bound by the Constitution. That contractual liability persisted whilst that individual’s fishery remained a member of the EOA and that individual continued to exercise ownership rights over the fishery member.

From the moment that the EOA was formed in 1986 and throughout its history to the present day, the membership of the two fisheries comprised by the Estate and the Coops has continued and has been uninterrupted. When Lord Ballyedmond acquired the Estate and the Coops, the trustees of the Howard-Lawson settlement ceased to be contractually bound by the EOA Constitution and Lord Ballyedmond became contractually bound and when title in the Estate passed from Lord Ballyedmond to Norbrook, it also became contractually bound in addition to, and not in substitution for, Lord Ballyedmond. At the same time, the two sets of Owners’ voting rights in the EOA passed from the trustees to Lord Ballyedmond or his nominee once his notification of the change of Owners’ of each of those two fisheries had been notified to, and accepted by, the treasurer of the EOA. The person entitled to vote on behalf of each of these two fisheries at AGMs and other meetings of the EOA could do so once that individual’s authority to vote at the meeting in question or his or her general authority to vote had been notified by Lord Ballyedmond or Norbrook to the treasurer before the meeting or to the chairman at the meeting.

The objects of the EOA

The objects of the EOA are provided for in the Constitution as follows:

(a)

To represent the interests of the members of the Association in furthering the River Eden as a salmon, sea trout and brown trout fishery.

(b)

To negotiate on behalf of its members for the purchase or lease either in its own right or through any other legal structure agreed by its members, of any rights (whether rights of taking fish by netting or any rod or boat rights or rights of any other sort whatever) now or in the future existing in or over any part of the River Eden its tributaries and estuary.

(c)

To manage, let, sell or arrange a sale of any such rights including leaving them unused in such manner as the Association may from time to time decide.

(d)

To represent its members in negotiation with or representations to North West Water Authority or any other Authority having statutory or other powers affecting the River Eden.

(e)

To provide a forum for the dissemination and exchange of information relating to the interests of its members.

These implied terms are contended for as being reasonably necessary to enable the relevant Committee member to act in situations where his interests conflict with those of other members of the EOA so that he would be unable to act in such situations. However, the Constitution does not preclude the possibility of a Committee member acting in this way. It would be strange if it did since one of the EOA’s major objects is to seek to harmonise the, at times, diverse and conflicting interests of its members and to promote policies which, in effect, protect the highest common factor arising from diverse views on major policy issues. For example, the interests of the beats clearly conflicted with the interests of the Coops since they were more highly regulated than the Coops and, in theory, were at a severe disadvantage when it came to the extent to which they could extract salmon and trout from the River Eden. Likewise, it could well occur that a fishery or fisheries located in one or more parts of the river would be at a distinct advantage or disadvantage to one or more of those located in other parts of the river. In such situations, a member, or Committee member might be voting or acting with the majority in a way that would assist his own interests and disadvantage the interests of another member.

The reality is that the Constitution provides for disagreement and possible conflict by providing that the only matters that the Committee might deal with without recourse to the membership and for which it has express authority to act by virtue of the terms of the Constitution were matters of management. All other matters, including the formulation of policy, the agreement as to strategy and as to actions that should be taken in furtherance of the EOA’s objectives could only be taken if first authorised by the membership of the EOA. Before any decision was taken, all members would have to be fully and fairly informed of the issue and be given an opportunity to explain any divergent view that they might have to their fellow-members. Once a decision had been taken, that decision would be authorised by the membership and any dissentient would be bound by it and would have no grounds to complain about the implementation of that decision even if it was against that member’s interests and that those voting in favour were, additionally, supporting a decision which would favour that member’s interests when adopted and implemented. The dissenting and disadvantaged member would, at that point, either have to accept defeat or resign from the EOA.

If the action that was taken adversely affected the interests of a member and it had not been authorised, the action would not have been that of the EOA and the affected member’s remedy would be, in the first instance, to seek to have the action nullified by the membership and then, if the consequences of the unauthorised actions warranted recourse to the court and a remedy from the court, to bring a claim against the member or members concerned in implementing the unauthorised action. Of course, the membership might ratify the unauthorised action retrospectively. That could, but would not necessarily, righten the original wrong in taking unauthorised action but in most cases where the unauthorised action was ratified retrospectively, the complaining member would have no further cause of complaint.

With those principles in mind, it can be seen that the suggested implied term set out in sub-paragraph a above is not needed since it is self-evident without the need to imply a term that authorised actions must be carried out and any authority exercised in a reasonable manner, in accordance with the principle of natural justice (i.e. fairly) and in accordance with the constitutional aims of the EOA. The implied terms pleaded in sub-paragraphs b and c do not arise since there can be no obligation to desist from authorised actions merely because that would adversely affect the interests of particular members. The implied term pleaded in sub-paragraph d does not arise as drafted since there is no obligation to act in accordance with the interests of all members – assuming the actions complained of have been authorised. However, there is a general obligation which is imposed on all members of all unincorporated associations – subject to the terms of their Constitutions – to act in the best interests of the association that they are members of. The effect of that is that any decision of the association and the actions of any of its members must be taken so as to best promote the objects of the association, even if the result is to harm the interests of a minority. Of course, the actions must be taken bona fide and not in fact taken to harm the minority. The implied term pleaded in sub-paragraph e is not needed since the documents referred to are ones in the power and ownership of the EOA and were only held by the secretary as agent and in safekeeping for the current membership and are not the personal property of the secretary. Subject to the request being a reasonable one and there not being some overarching legal obligation requiring the withholding of the document in question, the secretary had a duty to make the document available on reasonable terms.

The Constitution requires there to be an AGM to be held each year for the purpose of electing officers and the auditor and to receive reports and take any other appropriate decisions. This obligation reinforces the construction of the Constitution to the effect that the membership must decide on policy and the Committee are only authorised to act on its own initiative in relation to matters of management, that is in relation to administrative matters and on the implementation of policy decisions taken by the membership.

The officers should be appointed or re-appointed by vote at the AGM. In this case, an AGM was not held for five years between 2003 and 2008. It was contended on behalf of Lord Ballyedmond that the effect of that was that the officers ceased to have any authority to act on behalf of the EOA between 2004 and 2008. That is, however, an untenable contention. It would be a breach of the Constitution not to hold an AGM but since an officer is stated to hold office “until the end of the next Annual General Meeting”, and in any event by virtue of the doctrine of necessity, the officers’ terms of office continued until 2008. No-one objected and, if there was an objection, the objecting member could have called for an AGM and if this was refused seek to requisition a special general meeting with the assistance of ten requisitioning members (including that member). The member might, of course, have an entitlement to modest damages if the failure to hold an AGM gave rise to particular loss for that member and might also be entitled to a declaration but it would only be in the most exceptional circumstances that the member would also be entitled to a mandatory order compelling the calling of an AGM. The requirements that I have summarised are set out in clauses 6 and 7 of the Constitution.

The only additional issue that arises under this heading is as to whether or not Committee members owe a fiduciary duty to other members. It was contended on behalf of Lord Ballyedmond that there was such a duty, by analogy with the duty owed by directors to the company that they are directors of. There is no warrant for that submission. Firstly, it would run counter to the nature of an unincorporated association whose members are bound by, and only by, the constitution of that association unlike company directors who are directors of an entity with separate legal personality and whose fiduciary duties are imposed by statute. Secondly, a fiduciary duty could only arise in equity since there is no statutory basis for such a duty. It would be contrary to equitable principles to impose a fiduciary duty on an individual in relation to decisions taken by that individual that he has a contractual duty to take. It is not possible to impose a fiduciary duty in such circumstances unless the Constitution expressly imposes one. This is particularly so in relation to the decisions and actions taken by Mr Carr that are challenged in this case. Whatever their contractual faults, these decisions and actions were taken in what was intended to be the formulation and implementation of policy intended to preserve members’ fishing opportunities, head off regulatory challenges and enhance the conservation of salmon and trout stocks. These are not activities protected and regulated by equitable duties of utmost good faith. Thirdly, the Committee members’ authority was solely derived from the decisions of the members and their contractual duty was to implement and give effect to the wishes of the membership and in the best interests of the EOA. In consequence, that duty was not further circumscribed by an overarching fiduciary duty.

Mr Carr’s evidence explained how the Committee operated. The Committee rarely if ever met in the period I am considering in any formal sense and no record or minutes of their deliberations was kept. The Committee was entirely happy to leave the affairs of the EOA in the hands of the two officers who were active in running the affairs of the EOA, namely himself and the treasurer, Mr Robson. They had separate responsibilities and the bulk of the responsibility for dealing with outside bodies and individuals and in formulating a response to the EA’s proposals for changing the regulatory structure affecting the catching of salmon and trout in the River Eden was left to and taken on by himself. His evidence was to the effect that he would on occasion speak to the chairman Mr Gubbins and would meet or speak to other members of the Committee, usually at social occasions. The Committee members were close friends and he was able to liaise sufficiently with them in that way. He was also of the view that all that he did had the full support of the membership and that, in any event, the Constitution delegated all management decisions to the Committee and the Committee delegated all management matters to him so that everything he did had the full authority of the entire membership. I accept this evidence as factually accurately stating what happened particularly as there was obviously little or no written or email communication between himself and other members of the Committee.

It was contended on behalf of Lord Ballyedmond that this method of running the affairs of the EOA and of its Committee was unlawful and in significant dereliction of the duties of the Committee in general and of Mr Carr in particular. The breadth of the attack on the Committee’s working methods was, however, misplaced. It is clear that the EOA membership had historically approved of the way that the EOA was run and administered. Its involvement was traditionally left to attendance at an AGM at which reports of the work of the Committee in the previous EOA year were received and any proposed activity for the coming year was approved. This informality was both sanctioned by the Constitution and in harmony with the wishes of the membership. Since the Estate and the Coops were represented at these annual meetings held in and before 2003, those two members also appear to have approved of this informal, friendly and practical method of operation. However, for possibly the first time in its working life, the EOA was faced with the need to react proactively in relation to its core objectives in about 2003, namely in trying to head off what were perceived to be the twin challenges posed by a new bye-law regime and the threat caused by Mr Carr’s perception of unlawful over-catching of salmon and trout by the Solway Haafnetters.

For unexplained reasons, those challenges occurred in a sustained six-year period during which no AGMs were held and no full, informed consultation of the entire membership was undertaken. This shortcoming is not answered by Mr Carr’s pointing to the retrospective approval of what he had done by the membership or his confidence that what he was doing was fully supported and in agreement with the wishes of the membership. Fairness required all members to be equally and fully informed in advance of any action being taken and to be given an equal and collaborative opportunity to approve and sanction any significant policy initiative and any formulation and implementation of any strategy or any detailed representations taken on behalf of the EOA before those decisions and actions were implemented.

Apart from a meeting in January 2009, there was no evidence of any formal meeting of the Committee. Mr Carr explained in his evidence that he liaised informally with other members of the Committee as the need arose. However, since no letters or emails passing between himself and other members of the Committee were disclosed, it would seem that this liaison was entirely verbal. However, these shortcomings were not compounded by the informal way that the Committee operated. The Constitution provided that it should manage the affairs of the EOA in such manner as it should think fit. Clearly, that authority only extended to matters of management and whatever wider issues that the membership asked it to undertake. All these matters could be undertaken as the Committee saw fit and thus, by delegating most of its management business and any other business that chose to undertake to Mr Carr, the Committee was acting as it saw fit. The Committee could not delegate its residual duty of monitoring the activities of Mr Carr and in calling him to account if, for example, he did not call an AGM when it was required or in sending out representations on behalf of the EOA without first consulting them. In a small association undertaking limited objectives, there can be no objection for the Committee to act in the way it did, particularly if there were no complaints received from the membership as was the case until 2008 but objection could reasonably be taken of Mr Carr for not calling AGMs and for acting in an unauthorised manner and of the other Committee members in not taking steps to call AGMs when it became clear that these were not being held and in not calling on Mr Carr to seek the authority of the membership before taking the major policy initiatives and submitting significant representations on its behalf..

The relationship between members and between a member of a collective of Owners’ to every other member and member of a collective of Owners’ was contractual and each individual was entitled to bring a private action against any other individual or collection of individuals or member or group of members who were parties to the contract created by the Constitution alleging a breach of any of the terms of the Constitution. It is clear from the authorities concerned with the performance of contractual duties of members of an unincorporated association to each other, that each member or individual bound by the Constitution must perform his, her or its duties and act towards any other member reasonably, fairly, in good faith, in compliance with the Constitution and for the good of and so as to promote and not frustrate the objects of the association in question. These requirements can be said to arise from necessity and from the implication of implied terms into the Constitution.

One member acted towards another in breach of contract if the interests of that member were adversely affected by the acts or omissions of that other member or if they deprived the complaining member of an entitlement he or she had that was provided for by the Constitution. However, a member complaining of a failure to comply with the Constitution ought ordinarily first to seek a remedy for his or her complaint from the membership unless the actions complained of were ones left to the final decision of the Committee, in which case the remedy should be sought from the Committee. Equally, a member could not reasonably be expected to seek a remedy from the membership if the actions he or she was complaining about were no longer capable of being satisfactorily remedied and the member could not reasonably have been expected to have complained earlier at a time when the breach was capable of remedy.

The records and documents that were kept by the Committee and each member of the Committee which related to the business of management undertaken by the Committee were brought into being or received by that member as the agent or purported agent of the EOA. As such, the document was owned by, and was the property of, the entire membership and not of the individual in whose possession it was held. Since the association survived any change of membership, and since each member lost the rights of ownership on ceasing to be a member of the association, the records and documents held by each committee member were to be surrendered to the current members of the EOA or to an officer or Committee member for safekeeping on behalf of the current members when that Committee member resigned from or left the Committee. In other words, the historical records and documents owned by the membership remained in the ownership of the current members of the EOA for as long as the EOA survived as an association and was not dissolved.

As with any other breach of contract, a complaining owner would have to show that he or she had been directly injured by, or subject to a contractual disadvantage by the actions or omissions of the complained about member. Loss would need to be proved in order to recover damages and the ordinary contractual principles of remoteness would apply. However, any loss that could be proved to have occurred could be recovered as a matter of right, the court would have no discretion to decline to award those damages. Where direct loss could be shown to have occurred, remedies by way of injunction, specific performance or a declaration of rights might also be recovered in appropriate circumstances but only in the discretion of the court. Even if no direct loss had occurred, these other remedies would be available together or separately in appropriate cases in the discretion of the court.

In deciding whether to grant one of the discretionary remedies, the court would have to consider all relevant circumstances including the nature and extent of the breach, the extent to which the complaint remained live, the conduct of the parties, the extent to which there was continuing practical utility in granting relief, the fairness of being granted or refused a remedy and any other relevant circumstance in question.

Specific Issues

Issue 1 reads:

Approach to the issue. I approach this issue on the basis that “individual members” and “members” in its wording are references to individual owners of fishery members of the EOA and not to each group of Owners as a whole. On that basis, the issue is specifically focusing on the views and interests of Lord Ballyedmond and Norbrook since they are to be regarded as the Owners of the Estate and the Coops.

Lord Ballyedmond’s views. On behalf of Lord Ballyedmond it was contended that the Committee owed a fiduciary duty to the members of the EOA analogous to the duty owed by company directors to the company. Mr Carr and his fellow Committee members, when acting on behalf of the EOA, had to consider the views of all members of the EOA and not merely the majority view and had to act in the best interests of the EOA. In doing so, they were not entitled to place themselves in a position in which they acted as Committee members in ways that conflicted with the interests and views of Lord Ballyedmond and Norbrook that they were contractually obliged to protect.

Mr Carr’s views. On behalf of Mr Carr, it was contended that the views of Lord Ballyedmond and Norbrook could not be fulfilled since they involved the proposition that the EOA could not act against the interests of any of its members, even if the relevant interest was that of a minority of one member (such as an action affecting only the Coops’ interest). He accepted that Committee members were required to act in the best interests of the EOA as a whole. However, they were, as members of the Committee, empowered to manage the affairs of the EOA as they saw fit and so long as they acted in good faith and in what they considered to be the best interests of the EOA, they could not be criticised for acting in a way that amounted to an unacceptable conflict of interest.

Discussion. This issue cannot be considered without first taking account of the objects of the EOA and that these are both limited and very specific. The Constitution made it clear that the functions of the EOA were to provide relevant information to the membership about the recreational catching of salmon and trout in the River Eden, to promote the formulation of collective thought and action to enhance and maintain such activities, to work with others to protect these activities from being harmed by the regulatory activities by the EOA. The evidence also showed the EOA membership accepted that it had an overriding object of seeking to obtain unanimity of views of the membership and to assist the membership to work harmoniously and to resolve disagreements in a friendly way so as to enable it to present a united front in the furtherance of its objects. In these circumstances, it is unlikely that the Constitution would have had the effect of enabling these core functions to be delegated to the Committee in a way that enabled it to formulate and execute policy in these matters without first enabling there to be full collective discussion amongst the membership and the opportunity of obtaining its express approval.

The Constitution did not give Committee members an unfettered power to act without first consulting with and obtaining the authority of the entire membership of the EOA. Instead, it only allowed them to act as they saw fit and without obtaining prior authority when managing the affairs of the EOA and even in those circumstances, they had to act in the best interests of the EOA. The management of the affairs of the EOA was limited to the day to day running of the EOA and the execution of policies and practices that had already been expressly authorised or instructed by the membership as a whole. Thus, the Committee had no authority to implement a policy that it had formulated without first obtaining the approval of the membership to adopt and implement that policy. The requirement to obtain the express approval of the membership embraced decisions as to when and how to approach the EA on behalf of the EOA and as to the line to take in those approaches. Similarly, the membership had to be consulted on the strategy that should be adopted in attempting to influence the EA in any future regulatory course of action.

Thus, the content of any document drafted with the intention of persuading the EA to act in a particular way should have been agreed by the membership who should have been shown a draft of the proposed policy, strategy or response before this was sent off or put into effect. Moreover, every member should have been given an opportunity to comment on and make suggestions about the draft in an informed way and to seek to influence all other members in relation to the issue being dealt with. Of course, the Committee would have had the authority to act without prior authority in an emergency that left no time for consulting the membership but, in such circumstances, it would need to inform the membership as to what had been done and to obtain its ratification of this action as soon as reasonably possible after the event. The Committee should also have planned the work it was proposing to do in relation to any response that could reasonably be anticipated in such a way that sufficient time was allowed for consultation before the response was finalised.

There might be a fine issue of judgment in some cases as to whether a particular course of action had already been authorised by the membership but in such cases, the Committee should first have referred membership the proposed course of action to the membership and have obtained its express authority to act in the way that was proposed. Whenever it communicated with the membership, the Committee would need to provide it with sufficient information to enable it to take a collective and informed decision. Once membership approval had been obtained, the Committee could then have implemented the membership’s decision save in the exceptional situation where the proposed course of action was obviously not in the interests of the EOA.

It follows that neither the Committee nor an officer delegated by the Committee was entitled to act without express authority save that it could rely on the provision of the Constitution allowing it to manage the affairs of the EOA in the name of the EOA in relation to anything that had not been previously authorised by the members at an AGM or otherwise. However, that power was limited and could only be relied on so long as the actions that were taken were confined to the narrow range of activities constituting the management of the EOA’s affairs.

The Committee had to provide the entire membership with a full and fair opportunity to seek to influence the views of the other members and with sufficient information to enable each member to take an informed decision but, if such a decision was taken in accordance with the Constitution, the Committee or any member of the Committee could put that resolution into effect even if, in doing so, it was acting in a way that was favourable to the Committee member or unfavourable to an individual member so long as it or he acted in good faith.

The Committee as a whole had delegated to Mr Carr its approval for him to be solely responsible for deciding what action should be taken in relation to the threatened more onerous regulatory regime; in relation to the Coops and in any submission or approach to the EA even though those matters did not fall within the Constitutional provision permitting the Committee unfettered discretion to act in matters of management without further recourse to the membership. That sub-delegation only had the authority of the membership and was only authorised by the Constitution so long as the actions in question were matters of pure management. Where, as here, the actions in relation to the possible content of the new regulatory regime involving the catching of fish by rod or Coop in the River Eden that were taken by Mr Carr were not matters of pure management but were actions involving issues of policy of great importance and of particular difficulty that went to the core of the EOA’s objects and raison d’étre, Mr Carr acted beyond his limited authority in accepting the Committee’s sub-delegation of authority to act in these matters and then in himself acting without first obtaining the express and informed prior approval of the membership as a whole. He compounded this difficulty by not arranging for AGMs to be held in a five-year period between 2003 and 2008.

The matters which appear to fall within the principle that Mr Carr, when acting as secretary and as a Committee member, was not entitled to act without first obtaining the express and informed authority of the entire membership included a wide range of matters that he was directly involved with. These included his dealings with the EA in relation to the Coops; his strategy of how to set about seeking to influence the EA in relation to any changes to the current regulatory regime governing both the River Eden and the Solway; his decision not to have contact with the SHA and his active attempts to seek to persuade the EA to limit Solway haafnetting activities further. He should also have obtained the express prior approval of the membership for the type of amendments to the current regulatory regime what he wished to persuade the EA to adopt and for the content of the detailed representations to the EA in relation to the draft new NLO and bye-laws affecting fishing and Coop entrapment on the River Eden and netting by Haafnetters in the Solway.

Issue 1(i) - summary. The officers of the EO could only act or take decisions that were already covered by the express authority of the membership as a whole. The only exception to this general principle was for limited range of actions and decisions that related exclusively to the management of the affairs of the EOA. If that authority was provided by a majority because there were dissenting views, it was for the membership to decide, again by a majority decision if necessary, whether and how to give effect to those dissenting views when the majority decision was being implemented.

Issue 1(ii) - summary. There was a general failure to obtain express authority for most of the approaches, representations and actions taken by Mr Carr and for the strategies and policies that he sought to implement in the period between the 2003 AGM and the EOA meeting held in January 2008 in relation to the regulation of River Eden fishing, the operation and maintenance of the Coops and Solway haafnetting and Haafnetters. Since the other members of the Committee were entitled to manage its affairs by leaving these matters to Mr Carr and since no separate complaint is made that they failed to supervise him properly or to prevent him from acting in an unauthorised manner, the failings that I have identified are failings that are to be attributed to Mr Carr alone acting in his personal capacity and any claim that he acted in breach of the Constitution to the detriment of Lord Ballyedmond and Norbook acting as Owners’ of the Estate and Coops fisheries was also only applicable to him acting in that capacity.

Mr Carr contended that each initiative that he took in relation to the EA, the Haafnetters and the Coops was taken with the agreement of the Committee and the approval and consent of the members. However, he accepted that this agreement, approval and consent had in the main been provided by a limited number of individuals and usually in the course of social contact on a one-to-one basis. He never once sought Lord Ballyedmond’s views on any of these matters in the entire five-year period and, indeed, adopted a policy of not contacting him either formally or informally and of attempting to prevent his involvement in contacts with the Haafnetters, in approaches to the EA about the Coops and in not arranging for any AGMs in that period. Mr Carr sought to explain these apparent failings by pointing to the informal meetings of the EOA that had taken place in November 2005, November 2006 and January 2008. However, the first two were informal meetings held with outsiders and were principally held for the admirable purpose of enabling those outside experts to provide information to members who attended. No formal decisions were taken, no minutes or summaries of what was discussed were circulated and no clear consensus emerged that could be characterised as being authority for any of the relevant decisions, representations or actions that were taken by Mr Carr. The meeting held in January 2008 did decide not to follow the first and second of the three options for future action put forward by Mr Carr but ratification of past actions and a formulation of relevant policy for the future only occurred at the 2008 and 2009 AGMs.

Issue 2 reads:

Can an individual with a conflict of interest between his individual interests and the interests of the EOA and/or an individual who has acted in a position of conflict be compelled by the Court to resign as Chairman or Secretary of the EOA?

This issue cannot be addressed in the terms it is couched since, as has already been explained, there was no general principle that prevented an officer of the EOA acting in a way that created a conflict between his individual interest and his interest in acting in the best interests of the EOA or on behalf of the membership as a whole. It is, however, possible to express the general approach that a court would take if faced with a claim that an officer of the EOA had acted in a way that directly harmed the interests of another member without the authority of the EOA and so as to further his own interests. In such a situation, the officer would ordinarily be acting in breach of contract. That breach would be actionable by the affected member who could, if no remedy was forthcoming from the membership, seek damages for any directly inflicted loss and an appropriate declaration. If the action complained of had been taken without the authority of the EOA, it would have been unauthorised and taken outside the delegated powers and authority provided by the Constitution and would, in consequence, amount to unauthorised action taken by the chairman or secretary acting in their personal capacities.

However, a court will not, save in the most exceptional circumstances, intervene in the internal affairs of an unincorporated association so as to order an officer to resign or declare that that officer’s election was unlawful or void. This is so even if the officer in question had been elected was not eligible to be an officer, for example where someone was elected as chairman of the EOA who was not an Owner of a fishery, or if the elected officer had acted in breach of the Constitution, whether before or after his election as an officer. The court would not normally intervene since members are entitled to change or not to follow the Constitutional provisions and are also entitled to elect any member or eligible person or to waive the Constitution’s eligibility requirements or to maintain the office of an officer. This would be the case so long as the decision or action giving rise to the election of the officer or to his continuance in office had been taken after full and fair consultation and was not oppressive of the complaining member. Where the complaint was that an officer was elected or who continued in office notwithstanding his unfair or unauthorised conduct as an officer, a member who was affected by that conduct, or who wished to have the officer removed from office, would first need to raise his complaint with the membership of the EOA on due notice having been given and to abide by the informed decision of the majority. However, if a minority of members seized control of the EOA unconstitutionally or if the membership declined to intervene in an election or rejected a motion seeking to remove an officer from office in exceptional circumstances amounting to bad faith, oppression or ulterior motive, the complaining member or members might succeed in obtaining mandatory relief from the court. There appears to be no reported case in which the circumstances were so extreme that the court was persuaded to intervene by removing, or causing the removal of, an officer of an unincorporated association from office where the election process or the decision to maintain an officer in office conformed to the Constitution but was in some way exceptional or oppressive. It follows that, in general terms, the court will not intervene to remove an officer from office or to declare his election void or unlawful.

Issue 3 reads:

Did Mr Carr act without requisite authority and/or in breach of the terms of the Constitution in his communications with the Haafnetters?

The issue refers to Mr Carr’s communications with and about the Haafnetters. The only communications with the Haafnetters occurred at the request of the members acting in general meeting when asking Mr Carr to arrange an exploratory meeting with them at the meeting held on 9 January 2008. However, there were at least four respects in which Mr Carr acted without requisite authority in connection with the Haafnetters. These were in 2004 in seeking to persuade the EA to begin the process of consultation to change the NLO due to expire some three years later adversely to the interests of the Haafnetters without express approval; in November 2005 in not circulating the membership with a full explanation of why the officers were adopting and implementing a policy of seeking to obtain a limitation on the catching of salmon and trout by the Haafnetters; in 2006 in lobbying the EA for a more severely restricted regulatory regime for haafnetting activities without first consulting the membership about the content of that lobbying and in August 2007 in not securing approval for the contents of the Memorandum of objection before this was sent off to the EA.

Issue 4 reads:

Did Mr Carr make representations in the judicial review proceedings instigated by the Haafnetters? If he did, did he breach any terms of the Constitution?

This issue no longer arises because it is accepted that Mr Carr did not make any representations or take any part or have any involvement in the Haafnetters’ unsuccessful judicial review application.

Issue 5 reads:

Did Mr Carr give full disclosure of his dealings with the Haafnetters at the meeting on 16 ^th May 2008?

Introduction. The meeting that took place with the Solway Haafnetters on 7 March 2008 was the occasion for the most significant of the controversies between Lord Ballyedmond and Mr Carr. In order to determine whether full disclosure of Mr Carr’s dealings with the Haafnetters was provided by Mr Carr to the AGM held on 16 May 2008, it is necessary to determine what occurred before and during that meeting. The following are material pieces of that history:

These findings of fact are in conflict with significant parts of the contents of a note headed “Meeting with the haafnetsmen” that was prepared by Mr Carr and provided to all EOA members with their agenda papers that they were sent prior to the 2008 AGM. The relevant parts of this note read as follows:

“It was therefore decided to invite the Officers of the Solway Haafnetters Association to an informal meeting at [Mr Robson’s] offices for a full and frank exchange of views on 7^th March (copy invitation letter attached) (Footnote: ¹⁴ ) . [Mr Robson] was informed that three officers from the haafnetsmen would attend and it was therefore felt appropriate that [Mr Gubbins, Mr Carr and Mr Robson] would attend from the EOA. [Lord Ballyedmond] was informed of these arrangements by a letter dated 27^th February (copy attached). Although the officers felt under no obligation to invite [Lord Ballyedmond] to this meeting, it was agreed that he should be allowed to attend given his strong wish to do so. [Lord Ballyedmond] objected to these arrangements (see correspondence attached).

In the event, the meeting commenced as planned and continued for an hour during which the officers felt some useful progress had been made. At that point, Mr Haughey ([Lord Ballyedmond’s] son interrupted the meeting, greeting the half netters representatives warmly, ignored the proffered hands of [Mr Gubbins, Mr Carr and Mr Robson], advised the Haafnetters that the representatives of the Association were acting ultra vires, and that his father disagreed with the position of the Association regarding the NLO and Byelaws. He repeatedly refused to allow any of the EOA attendees a chance to respond or to contradict his allegations. He demanded that the meeting be reconvened at 5.30 the following Friday in order to suit his father’s diary with no consideration for the availability of those representing the Association or the Association’s members who Mr Haughey stated that his father wished to be invited.

…

In view of the position taken by Mr Haughey when breaking up the meeting with the netsmen and in view of [Lord Ballyedmond’s] position as set out in the correspondence, it is not felt that a meeting with the netsmen would be productive if either [Lord Ballyedmond] or Mr Haughey is present as it would seem that it is their intention to discount the democratically approved position of the Association and to advance an alternative approach which is a personal view and one that is not agreed by the Association’s membership.”

The sequence of events leading up to the meeting with the Haafnetters that I have summarised in my findings of fact is based upon the evidence of Mr Haughey and Mr Graham which I accept in its entirety. It is also corroborated by the allegations made by Lord Ballyedmond and Mr Haughey in the first libel action which set out the various facts set out in Mr Carr’s Note summarising these events that they pleaded as being defamatory of both of them. That libel action and the subsequent libel action that was based on a repetition of the libel in the first action to the effect that Mr Haughey had broken up the meeting with the Haafnetters were both settled by Mr Carr in circumstances amounting to an admission by him that his version of the facts was untrue. This is because he settled the first action by paying a substantial sum to each claimant and, when part of the libel was repeated in 2009, he paid them a further sum coupled with an apology and an offer to make amends. He also stated in his evidence at this trial that he stood by the apology that he had previously made.

In those circumstances, Mr Carr was in error in stating that there was no obligation to allow Lord Ballyedmond to attend the meeting, that Mr Haughey had arrived late at the meeting so as to be able to break it up, that he stated having arrived that the meeting was unconstitutional and ultra vires, that he broke up the meeting, that he had behaved rudely and in a way that was embarrassing for the EOA whilst at the meeting, that he had attempted to arrange the adjourned meeting for a date that was convenient to Lord Ballyedmond but without any consideration for the convenience of the other people who would be attending and that both Lord Ballyedmond and Mr Haughey should not attend any further meeting with the Haafnetters since they were only concerned to break up such a meeting and to take a line which they knew was in conflict with the wishes of all other members of the EOA.

Conclusion. The summary of what occurred contained in these extracts from the note Mr Carr prepared for and presented to the 2008 AGM are a travesty of what actually occurred as can be seen from the summary of my findings of what actually occurred. It is therefore clear that Mr Carr did not give a full, fair and accurate disclosure of his dealings with the Haafnetters in his note sent to members before the AGM which he confirmed at that meeting and, in doing so, he was acting unfairly towards Lord Ballyedmond and Norbrook and in a way that can now be seen to have been other than in the best interests of the EOA.

Issue 6 reads:

Did Mr Carr act without requisite authority and/or in breach of the terms of the Constitution in his communications about Coops with the Environment Agency?

Introduction. The origins of Mr Carr’s actions in relation to the Coops and in not consulting with Lord Ballyedmond on any relevant matter between 2003 and 2008 lie in his intense dislike of Lord Ballyedmond. An added component was Mr Carr’s obvious resentment that the Coops had what he perceived to be the unfair advantage of holding a certificate of privilege that permitted the Estate to undertake repairs, including gravel extraction to the Coops and the adjacent island when other beats were not allowed to undertaken such work. He also resented the fact that the Coops had, in theory albeit not in practice, unlimited rights to catch salmon and trout during their catching season without the requirement of returning the fish that they trapped into the River Eden. Thus, when it came to Mr Carr’s attention that Lord Ballyedmond was carrying out gravel movement work in the River Eden that was associated with the Coops following the flooding that had occurred in 2005, he decided that he would find out what work was being undertaken by approaching the EA directly without making any attempt to discuss the matter with Lord Ballyedmond first. He took this action because he assumed that the work being undertaken would improve the capability of the Coops to trap salmon and trout and he wanted the information to further his intention of seeking to have the Coops more closely regulated or even to be prevented from catching salmon and trout altogether.

Mr Carr did not appear to recognise that the Coops was a separate member of the EOA to the Estate and that it followed that the EOA was concerned not only with the best interests of rod fishermen fishing in the River Eden but also with the best interests of the Coops which caught fish in the River by trapping them rather than by hooking them. It was therefore inexcusable for him to approach the EA without first contacting Lord Ballyedmond and to suggest to the EA, as he did in an email dated 3 October 2006:

“Whilst I accepted in our last meeting that when catching a dozen or so fish a year the Coops were not an issue, it is no linger likely to be the case in which case it would be grossly unfair if restrictions were not imposed on the Coops at the same time as on the rods and haaf nets. Can you confirm that possible restrictions on the Coops will be included in your proposed plans for the river if exploitation increases?

I am sure that all the above are questions that all owners will be interested in.”

Mr Carr explained that he did not approach Lord Ballyedmond because he would have been unable to get answers to his questions as to what work was being carried out, given the frosty reception that he had received from Lord Ballyedmond when he had attempted to ascertain details of the work being carried out ten years earlier in 1996. Mr Carr also sought to justify his actions by stating that several members had asked him informally to obtain information about the work being carried out to the Coops. These explanations do not justify the steps that he took or his failure to contact Lord Ballyedmond before taking any action or of the answers that he had received from the EA once he had contacted it. This was a particularly glaring omission since Mr Carr was told by the EA, in effect, that it did not believe that the works carried out by the Estate, which had received its consent, would result in an increase in catch from the Coops and therefore it did not intend to change its view that there was no need to impose further regulations on the Coops. There was no reason why Mr Carr, even if he felt unable to face up to Lord Ballyedmond himself, did not ask the chairman Mr Gubbins to approach Lord Ballyedmond privately to notify him of the members’ concerns and to obtain an explanation of the work being carried out. Instead, Mr Carr acted unilaterally in approaching the EA directly without first informing EOA membership as a whole of his concerns and the EOA was only informed about these exchanges at the AGM held in 2008 nearly 18 months later.

Conclusion. Mr Carr acted without the authority of the EOA membership and in breach of his contractual obligation to Lord Ballyedmond in contacting the EA in relation to the Coops. The relevant breaches were of his obligation to Lord Ballyedmond to act fairly, reasonably and openly and with full disclosure of his actions. No action should have been taken without, firstly, a concerted attempt being made to iron out any difficulties in relation to the Coops in personal discussion with Lord Ballyedmond and, secondly, in raising any unresolved difficulties with the membership as a whole. The truth of the matter was that Mr Carr was deliberately using his and the Estate’s and the Coops’ EOA membership as a means of furthering his animosity towards Lord Ballyedmond. He was therefore not acting in the EOA’s best interests because he was acting in a way that would clearly cause disharmony amongst the membership and a disruption of other members’ fishing and catching rights in the River Eden.

Issue 7 reads:

Was the reference to “the break up of the meeting with the officers of the Solway Haaf Net association by Mr Edward Haughy” in the documentation circulated with the 2009 AGM agenda for item 7.1 inaccurate? If it was, did the circulation of that documentation involve any breach of the Constitution by either Defendant?

The reference was inaccurate and, as was accepted and acknowledged by Mr Carr in both libel actions and in his evidence at the trial of these actions, defamatory of both Lord Ballyedmond and Mr Haughy. The circulation of an inaccurate and defamatory document with the AGM agenda was a breach of the contractual obligation Mr Carr owed to Lord Ballyedmond and Norbrook to act fairly and reasonably towards them when undertaking his managerial duties as a member of the Committee and of his obligation to undertake those duties in the best interests of the EOA.

Issue 8 reads:

By putting forward for ratification at item 7.8 of the 2009 AGM agenda the resolution passed at the meeting on 16 May 2008, did either Defendant breach the terms of the Constitution?

Introduction. The Committee decided that, in view of Lord Ballyedmond’s challenge to the validity of the 2008 AGM, the resolutions passed at that meeting should be retabled and voted on again at the 2009 AGM. The 2008 AGM had before it the lengthy and defamatory note that had been prepared by Mr Carr (Footnote: ¹⁵ ) . During the discussion at the meeting, Lord Ballyedmond drew attention to the highly inaccurate, misleading, incomplete and defamatory statements in the note about both himself and his son. Mr Carr did not respond to Lord Ballyedmond’s complaints and his failure to offer any correction to his note or to apologise for the suggestion that Lord Ballyedmond was instrumental in arranging for Mr Haughey to attend and break up the meeting added to its defamatory effect. Indeed, the chairman, Mr Gubbins, is noted as having shown his disapproval of Lord Ballyedmond’s explanation of the note’s highly defamatory content by exclaiming when he started to speak: “Deary me”.

The meeting had before it three resolutions arising out of the note. These were:

“- To confirm that [Mr Gubbins, Mr Carr and Mr Robson] were following instructions given to them at the meeting held on 9^th January 2008 by holding an informal meeting with the officers of the Solway Haafnetters Association and that they were not acting ultra vires in holding such a meeting.

-

To express regret for the action of [Lord Ballyedmond and Mr Haughey in breaking up the meeting held at Rosehill on 7^th March and for the embarrassment caused to [Mr Gubbins, Mr Carr and Mr Robson] and to the Officers of the Solway Haafnetters Association.

-

To empower the Officers of the Association to re-open a dialogue with the Solway Haafnetters Association and to report back to the Committee who will then decide on the way forward. A full report will then be made to the next General Meeting.”

The first resolution was confirmed by a vote of 14 – 1 with two abstentions that was taken by a show of hands and the third was confirmed unanimously. The second resolution was minuted as not having been put because the chairman felt that it would serve no purpose. It follows that those who were present would have been left with an unfair and erroneous understanding of the events leading up to the meeting with the Haafnetters and of the role and intentions of Lord Ballyedmond and his son in relation to it. As a result, they would have been left with the misunderstanding that Lord Ballyedmond had acted in a manner and with an intention which were wholly contrary to the best interests of the EOA and that Mr Carr had acted reasonably and fairly in the arrangements that he made for the meeting and in proposing that a further meeting should be held without either Lord Ballyedmond or Mr Haughey present. Indeed, had Lord Ballyedmond and Mr Haughey acted in the ways suggested by the note, the membership would have had an almost unanswerable case for voting to expel both the Estate and the Coops from the EOA altogether.

At the 2009 AGM, the first and third resolutions were put forward again. Before the first of these resolutions was put forward, Lord Ballyedmond suggested that the EOA had agreed at the meeting held on 9 January 2008 that there would be a meeting with the Haafnetters at which any member who wished to attend could be present. Mr Ecroyd is minuted as having stated that there no such resolution was passed. The first resolution was then passed with all present voting in favour save for the abstentions of Mr Carr and “the Church” [i.e. the representative of the Church Commissioners] and with Lord Ballyedmond voting against. The third resolution was unanimously supported but Lord Ballyedmond’s request to be allowed to attend any meeting with the Haafnetters was responded to by the chairman, Mr Garnett, who stated that it was up to the Committee to decide who attended, a response which the meeting as a whole accepted without a vote.

On behalf of Lord Ballyedmond it was suggested that, if any resolution was to be put forward relating to the meeting with the Haafnetters, it should have been accompanied by an accurate account of the meeting. On behalf of Mr Carr and Mr Garnett it was suggested that there was no substantial inaccuracy in the information the EOA was provided with about the meeting and that Lord Ballyedmond had had an opportunity to correct any errors or misunderstandings had he wished to do so.

Conclusion. If any aspect of the Haafnetters’ meeting was to be discussed or voted upon, the AGM should first have been provided with a full, fair and accurate account of what had occurred before and during the meeting with the Haafnetters which corrected the inaccuracies in the previous note and explained that he now accepted that the previous inaccuracies were unfair and were ones which he no longer stood by. Lord Ballyedmond should have been invited by Mr Carr to place his own account of what had occurred before the meeting in a note prepared by him that was also sent out with the agenda papers. The AGM should then have been invited to pass a resolution accepting these revised and accurate accounts of the meeting and, if this was the general will following informed discussion of these matters, have re-passed the third resolution with a rider that stated that arrangements should be made to enable Lord Ballyedmond to attend the adjourned meeting with the Haafnetters which had still not taken place.

Issue 9 reads:

Did the minutes of the Committee meeting which took place on 6 January 2009 give a misleading report of the outcome of the defamation proceedings brought by the Second Claimant and his son against the First Defendant? If they did, was the inclusion of the minutes on the agenda for the 2009 AGM a breach of the terms of the Constitution by either Defendant?

The relevant Committee minutes gave a misleading report of the outcome of the defamation proceedings. These minutes were circulated to the membership with the papers for the 2009 AGM. They contained this statement:

“8.

Case against James Carr for defamation.

It was noted that James Carr had been advised that an award (if any were to be ordered) is likely to be very low and insignificant compared with the potential legal costs of defending the matter at trial. He therefore recently agreed a settlement with Lord Ballyedmond and his son which did not include any admission of liability, retraction or apology.”

This statement was highly misleading. The reader would have assumed from this statement that Mr Carr was confirming that the original note was true and accurate but that, for purely legal and tactical reasons, Mr Carr had formally settled the libel action since he could not afford to continue to defend it because of its potentially ruinous cost whereas Lord Ballyedmond could have continued with it because of his greater financial resources.

This suggestion was not only inaccurate but it heightened the unfairness and defamatory nature of the previous note since it gave the impression that Lord Ballyedmond was pursuing his libel action for oppressive reasons and with an ulterior motive. In fact, the effect of the settlement was that Mr Carr accepted that he had libelled Lord Ballyedmond and Mr Haughey. He had agreed to settle the first libel action and had paid what amounted to substantial damages to both Lord Ballyedmond and Mr Haughey for a publication to only 22 individual members of a private unincorporated association. Although the settlement offer stated that it was made without any admission of liability, it was nonetheless the settlement of the libel action coupled with a substantial payment by way of damages. As further confirmation that Mr Carr was to be taken to be admitting the defamatory nature of the note, he subsequently settled the second libel action in relation to the same libel in terms that included an acceptance that he had defamed both Lord Ballyedmond and Mr Haughey. Furthermore, as I have already found, the evidence that was adduced in this trial unequivocal confirmed that Mr Carr was not telling the truth in stating that Lord Ballyedmond and Mr Haughy were involved in breaking up the meeting with the Haafnetters and wished to disrupt the OEA’s attempts to have a dialogue with the Haafnetters. The meeting was not broken up, Mr Haughey only sought an adjournment for one week because Mr Carr had intentionally failed to inform Lord Ballyedmond of the meeting until it was too late for him to get to it and Lord Ballyedmond’s intention was solely motivated by his wish that common ground should be reached between the EOA and the Haafnetters and that in the future the two organisations should work together and maintain a harmonious relationship.

This inclusion of a misleading report of the settlement of the first libel action in a note which was seen by the Committee and the wider membership which failed to make it clear that the defamatory passages in the original note were factually incorrect and had been accepted as such by Mr Carr amounted to a breach by Mr Carr of his contractual obligation owed to Lord Ballyedmond to act fairly and reasonably towards him and to act in the best interests of the EOA.

Issue 10 reads:

By not disclosing the resignation of the ‘Yorkshire Fly’ did either Defendant breach the terms of the Constitution? If so, was either the resignation or the reasons for it highly material to the members’ consideration of the matters before them?

Notification of the resignation of the Yorkshire Fly was only received by Mr Robson 24 hours before the 2009 AGM. It was regrettable that this significant resignation was not brought to the attention of the meeting but that potential shortcoming was not sufficiently egregious to constitute a breach of the Constitution by the Committee or by any of its officers.

Issue 11 reads:

Have the Defendants failed and refused to disclose to the Claimants copies of the hand written minutes of the meeting held on 9 January 2008? If so, did either Defendant breach the terms of the Constitution?

The document described as the handwritten minutes of the meeting was in fact no more than the personal notes of the informal minute-taker, Mrs Robinson, that she made during the meeting and these notes, like any other personal notes, were her personal property. There were not, therefore, notes that Mr Carr had any hold over or any obligation or entitlement to produce. However, a copy of the notes that had been taken by Mrs Robinson at the meeting was in fact provided to Lord Ballyedmond’s solicitors on 27 May 2009. It was clear from the evidence that no further or more detailed sets of notes were taken by Mrs Robinson or were in existence and that the notes copied to Lord Ballyedmond’s solicitors had been used by Mr Carr to produce his notes of the meeting that he made subsequently. It follows that neither Mr Carr nor Mr Garnett acted in contractual breach of the Constitution in relation to any notes made by Mrs Robinson or anyone else at the EOA meeting held on 9 January 2008.

Issue 12 reads:

Did the Second Defendant when conducting the 2009 AGM, discharge his obligations as chairman of the meeting in accordance with the Constitution?

The 2009 AGM was recorded and both the transcript and the recording of the proceedings were adduced in evidence at the trial. The meeting was highly charged and, for those present, a most unpleasant experience since the hostility of Mr Carr for Lord Ballyedmond and vice versa was clear and can be seen and heard by reading the transcript and listening to the recording. Mr Carr had instructed his solicitors to be present, ostensibly to advise the EOA and the two solicitors who attended from the firm were able to give advice to both him and to Mr Garnett from time to time during the course of the meeting. Lord Ballyedmond had also instructed his solicitor to be present. The presence of three solicitors, who were in reality present to advise the two protagonists in their on-going personal disputes, clearly contributed to the formal and strained nature of the proceedings and heightened the unpleasantness of the meeting for all present.

Mr Garnett had only accepted the role of chairman of the EOA just before the meeting and did so because no-one else was prepared to undertake this role following the resignation of Mr Gubbins and he did so out of feelings of loyalty and duty to his fellow members of the EOA. He chaired the meeting, with the assistance of advice from the two solicitors present instructed by Mr Carr, without acting in breach of the Constitution. If he was rude or unfeeling towards Lord Ballyedmond, it was not obvious from the transcript or the recording and Lord Ballyedmond’s contractual rights as a member attending an AGM, protected as they were by his solicitor who was present with him, were not infringed save that he was libelled in the document that Mr Carr was responsible for placing in the agenda papers that were circulated to members before the meeting. Mr Garnett acted throughout in accordance with the Constitution in his conduct of the meeting.

Issue 13 reads:

(i)

What is the scope of the damages claim as pleaded in Claim 2?

(ii)

In relation to any damages claim as per (i) above: are the Claimants entitled to damages and if so, in what sum?

Scope of damages. Lord Ballyedmond is claiming a sum totalling £32,705.49 for legal costs and expenses that he claims were incurred in instructing solicitors and counsel to undertake advisory, drafting and related legal services as a result of Mr Carr’s breaches of contract. These costs were incurred in the period 10 January 2008 until 3 February 2010 and represent the chargeable time and related disbursements that were incurred by his solicitor in advising, drafting and corresponding and in instructing counsel and discharging counsel’s fees in relation to those breaches of contract. It is stated that these costs were not incurred in any of the first four actions. However, none of the documents arising from this work were disclosed. It was contended that since these expenses were naturally and directly incurred as a result of the breaches, they could be claimed as damages.

Claimant’s entitlement to damages. There are three cumulative reasons why these costs are not claimable as damages:

Conclusion. The claimants are not entitled to damages in the second misconduct action.

Issue 14 reads:

Were the Claimants entitled to any or all of the declaratory and injunctive relief sought but for the resignation of the Defendants?

Injunctive relief. The claimants would not have been entitled to any of the injunctive and other mandatory relief that was sought in either of the misconduct actions. In summary, the following mandatory relief was sought:

None of these orders would have been available or granted to Lord Ballyedmond or Norbrook for these reasons;

Declarations. The granting of a declaration is discretionary and a declaration is not granted in relation to the affairs of an unincorporated association save in exceptional circumstances. A member who has been adversely affected by another member’s breach of contract would ordinarily be confined to an award of damages. In this case, declarations may have been granted given the exceptional nature of the personally motivated and unauthorised breaches of contract committed by Mr Carr against Lord Ballyedmond and Norbrook. In particular, the court would have had to consider whether it was appropriate to grant declarations in relation to these areas of complaint and issues:

Delivery Up

Introduction. Despite the mass of documents and submissions filed in relation to the outstanding issues in the first delivery up claim, it is now clear that there only remain for determination two short issues. These are described as being:

General. In determining these two issues, it must first be decided who the relevant “members” are. As I have already decided, the membership of the EOA is loosely defined as the Owners’ of a Fishery in the River Eden and “Owners’” for these purposes are those who at any one time constitute the group of those exercising proprietary, management or use rights of the Fishery. Furthermore, although that group may fluctuate and may be a significant number of people at any one time, membership survives any change in the composition of that group and is considered to be a continuous membership of what may loosely be described as “the Fishery” even though that entity does not have legal personality. Thus, once a new member – that is a fresh individual or an individual whose relationship with the fishery has changed from, say, its legal owner to being a trustee of the settlement in whom the legal ownership is vested – becomes a member of the group of Owners’, the membership rights, and in particular the membership proprietary and incorporeal rights, of the member fishery pass from the existing group of Owners’ to its successor group. This transfer of membership and of the rights associated with membership occurs whenever an individual owner left or joined the relevant group of Owners’. In other words, membership passed without further ado from a group of Owners’ to its successor group of Owners’, even if the new Owner’ or group of Owners’ acquired the legal title to the relevant fishery from a different Owner’ or group of Owners’.

Group 1. It follows from this analysis that the 30 documents in group 1 should be handed over to the current secretary of the EOA by Mr Carr or to Norbrook on her behalf. This is because the EOA has not been dissolved or disbanded. It remains in being and is subject to the same Constitution as it always has been subject to. Its secretary is the person who has custody of all its documents, save for those held by its treasurer, and Mr Carr has ceased to be secretary. Norbrook is entitled to inspect and read the contents of all documents lawfully in the possession of its secretary since it is a member of the EOA by virtue of being one of the Estate and the Coops’ Owners’. It has, therefore, acquired the right to inspect these documents even though it was not an owner at the time that the legal advice was provided to the EOA. This is because the Estate and the Coops were both members of the EOA at the relevant times when that advice was obtained by and provided to the EOA albeit that on some of the relevant occasions when that advice was sought and obtained, their Owners’ were Lord Ballyedmond’s and Norbrook’s predecessor Owners’ and title owners. The entitlement to benefit from and read that advice and the legal privilege attaching to it passed from the previous Owners’ to Norbrook when Norbrook became the registered proprietor and legal owner of the Estate.

Group 2. The submissions made on behalf of Mr Carr are a little confused since they assert that the relevant documents were in Mr Carr’s possession as secretary of the EOA but that the only people entitled to inspect the documents are those limited number of members who paid for the advice they contain and on whose behalf the relevant litigation was undertaken. If that was so, the litigation cannot have been undertaken on behalf of the members of the EOA but on behalf of a group of individuals who happened to be members of the EOA. In such circumstances, Mr Carr would have had possession of these documents not as secretary of the EOA but as the convener of a group of people who happen to be members of the EOA but who were not litigating as members but as private individuals unassociated with the EOA.

However, the litigation evidently involved a claim arising out of pollution of the River Eden in the late 1990s and it was obviously carried on by Mr Carr as litigation within the auspices of the EOA. No agreement has been identified by the members as a whole that they would permit the claim to be litigated as an “EOA claim” but that they would not be entitled to see the legal advices as they were received by Mr Carr or to benefit from the litigation in any way. In other words, the advice and the litigation was jointly undertaken and obtained by the group paying for the advice and by the wider group of members of the EOA whose membership included all those who were paying for it.

It follows that all members of the EOA in the late 1990s when the litigation was being conducted were entitled to see and read these documents when they first came into Mr Carr’s possession, that they were owned by the membership of the EOA from time to time from that moment onwards and that Mr Carr possessed them as agent for the Owners’ from time to time so that, at the time of his resignation as secretary, the members who collectively owned the documents and who were entitled to legal privilege in the documents and were entitled to read and inspect the documents included the current Owners’ of the Estate and the Coops, namely Lord Ballyedmond and Norbrook. Furthermore, these documents should be handed over to the current secretary of the EOA and they are not privileged from production to or inspection by Norbrook. The fisheries of the individuals who originally paid for the advice, even if their current Owners’ are not members of the EOA, retain the right to copies of the documents or to inspect them since they were originally entitled to possession and inspection rights in the dual capacity of members of the EOA and fisheries on whose behalf the advice was obtained.

Costs

I gave directions that I would decide the list of agreed issues and send the parties my draft judgment. The parties to the second, fourth and fifth actions would then have an opportunity to present their submissions on costs and I would then hand down my combined judgment on both parts of the hearing. The parties presented detailed written submissions and then supplemented them at a one-day hearing. I propose to deal with the costs in the two misconduct actions together, then the discovery action involving the Carr parties and finally that involving Mr Robson.

I will first set out the relevant provisions relating to costs which apply to the costs decisions that I must make.

(1)

CPR 1

Alternative Dispute Resolution

8.1

Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should consider some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR.

8.2

… Some of the options for resolving a matter without starting proceedings are-

(1)

discussion and negotiation;

(2)

mediation (a form of negotiation with the help of an independent person or body);

(3)

early neutral evaluation (where an independent person or body, for example a lawyer or expert in the subject, gives a binding decision) …;

(4)

arbitration … .

Annex A-Guidance on pre-action procedure where no pre-action protocol or other formal pre-action procedure applies

The Annex sets out a detailed list of the matters that should be set out in the claimants’ letter before claim, the defendant’s acknowledgment of the letter before claim and its full response and the claimants’ reply. The Annex then continues:

Taking Stock

In following the above procedure, the parties will have a genuine opportunity to resolve the matter without needing to start proceedings. At the very least, it should be possible to establish what issues remain outstanding so as to narrow the scope of the proceedings and therefore to limit proceedings.

If having completed the procedure, the matter has not been resolved then the parties should undertake a further review of their respective positions to see if proceedings can still be avoided.

Before I embark on a decision-making process about the costs, I must first set out the general considerations that should apply and be taken into account in relation to the costs disputes in this remarkable set of actions and claims. In doing so, I am taking full account of the parties’ respective written and oral submissions. This is a summary of those considerations.

I now turn to the provisions of CPR 44.3 in relation to the misconduct actions and I make the following findings:

For all these reasons, and by applying the various relevant provisions of CPR 1 and 44 and the pre-action conduct practice direction, I have decided that there should be no order as to the costs of the Norbrook parties and Mr Carr in the two misconduct actions. I do so with a heavy heart in view of the costs expended, the destruction of the EOA and the misguided energies spent in fighting the actions when they could so much more usefully have been spent on admirable work to preserve and enhance freshwater salmon stocks in the River Eden and in the inshore waters of the Solway Firth.

I must also consider the costs of Mr Garnett and the EOA. In Mr Garnett’s case, he is entitled to an order dismissing the claims against him and, since he was entitled to act as the junior partner to Mr Carr in circumstances where his conduct cannot be faulted, he should have his costs on the standard basis, to be assessed if these are not agreed. The Committee of the EOA was joined into the first misconduct action and they are entitled to their costs which will be small given their limited involvement. They are entitled to an order dismissing the claim against them and their costs on the standard basis to be the subject of summary assessment by me if these are not agreed.

The action was in fact one devoted to the recovery of delivery up orders in connection with property that was owned by the EOA in its reconstituted form following the resignation of the previous Committee from office and from membership. It was not an action which should have been brought at all. No pre-action recourse to the pre-action conduct guide appropriate to a chancery discovery action (whose appropriateness in that form had ceased with the late Victorian procedural reforms and which was totally out of place in the CPR-era). The action was also fought with extreme disproportionality in the wrong forum and for the wrong reasons – to open up another front in the war against Mr Carr.

Had it been left there, Lord Ballyedmond would have to pay all the costs for similar reasons to those already applied to the misconduct actions. However, Mr Carr responded in kind by his insistence in turning a delivery up dispute into a disclosure and privilege dispute with the consequence that many authorities were placed before the court on what, on analysis, was a series of non-issues. It also, finally, was decided over a few historic documents since Mr Carr conceded the Norbrook’s claims for almost all the documents. Thus, Mr Carr’s conduct was equally disproportionate.

It follows that there is to be no order as to costs.

There was no justification in joining Dickinson Dees into the action. As Mr Carr’s solicitors, it was holding the relevant documents it was sued about to his order and the firm had both an entitlement and a duty to hold them until the court decided the dispute or Mr Carr instructed it to hand them over. Dickinson Dees is entitled to its costs on the standard basis to be the subject of detailed assessment if not agreed.

There was never any justification in bringing Mr Robson into this dispute. He is entitled to all his costs and the reasonable costs of sorting out and copying the documents in question on the indemnity basis to be the subject of summary assessment if these cannot be agreed.

All parties should join in settling a minute of order to give effect to these decisions. The Norbrook parties are to have carriage of the order which is to be submitted to my clerk in draft within 14 days of the handing down of this judgment.

When taking decisions on behalf of the EOA, whether and if so to what extent officers of the EOA are obliged to have regard to the view of individual members, including those with views that are contrary to the interests or views of the majority of members, when deciding whether and how to act? Did the Defendant(s) fail to do so to any relevant extent?

Can an individual with a conflict of interest between his individual interests and the interests of the EOA and/or an individual who has acted in a position of conflict be compelled by the Court to resign as Chairman or Secretary of the EOA?

Did Mr Carr act without requisite authority and/or in breach of the terms of the Constitution in his communications with the Haafnetters?

Did Mr Carr make representations in the judicial review proceedings instigated by the Haafnetters? If he did, did he breach any terms of the Constitution?

Did Mr Carr give full disclosure of his dealings with the Haafnetters at the meeting on 16^th May 2008?

Did Mr Carr act without requisite authority and/or in breach of the terms of the Constitution in his communications about Coops with the Environment Agency?

Was the reference to “the break up of the meeting with the officers of the Solway Haaf Net association by Mr Edward Haughy” in the documentation circulated with the 2009 AGM agenda for item 7.1 inaccurate? If it was, did the circulation of that documentation involve any breach of the Constitution by either Defendant?

By putting forward for ratification at item 7.8 of the 2009 AGM agenda the resolution passed at the meeting on 16 May 2008, did either Defendant breach the terms of the Constitution?

Did the minutes of the Committee meeting which took place on 6 January 2009 give a misleading report of the outcome of the defamation proceedings brought by the Second Claimant and his son against the First Defendant? If they did, was the inclusion of the minutes on the agenda for the 2009 AGM a breach of the terms of the Constitution by either Defendant?

By not disclosing the resignation of the ‘Yorkshire Fly’ did either Defendant breach the terms of the Constitution? If so, was either the resignation or the reasons for it highly material to the members’ consideration of the matters before them?

Have the Defendants failed and refused to disclose to the Claimants copies of the hand written minutes of the meeting held on 9 January 2008? If so, did either Defendant breach the terms of the Constitution?

Did the Second Defendant when conducting the 2009 AGM, discharge his obligations as chairman of the meeting in accordance with the Constitution?

(i) What is the scope of the damages claim as pleaded in Claim 2?
(ii) In relation to any damages claim as per (i) above: are the Claimants entitled to damages and if so, in what sum?

Were the Claimants entitled to any or all of the declaratory and injunctive relief sought but for the resignation of the Defendants?

The name of the Association is the Eden Owners’ Association.

The objects of the Association are:

(a) Membership of the Association shall be limited to Owners’ of Fisheries in the River Eden or any of its tributaries.

The annual subscription shall be £15 or other such sum as the Association shall from time to time decide by simple majority of members present and voting.

Any member may resign his membership by giving to the Secretary notice in writing to that effect.

An Annual General Meeting shall be held each year for the purpose of:

The Committee may at any time for any special purpose call a special general meeting and/or a meeting of Contributing Members (see Clause 16) and they shall be bound to do so forthwith upon the requisition of any ten members; such requisition shall be in writing and shall state the purpose for which the meeting is required.

A minimum of three weeks written notice shall be given for any general meeting, and for a meeting of Contributing Members (see Claus 16).

(a) Voting at general meetings shall be on the basis of one vote by or on behalf of each member (whether a single owner, trustee, an association or otherwise) present.

(a) The property of the Association shall be vested in not less than three nor more than four trustees who shall be appointed by the Committee and the property of the Association shall be vested in them to be dealt with by them as the Committee may from time to time direct by resolution (of which an entry in the minute book shall be conclusive evidence), but subject always to the rights of Contributing Members under Claus 16. The trustees shall be indemnified against risk and expense out of the Association property.

(a) The Committee shall comprise of the Chairman, Secretary and Treasurer of the Association together with not more than five members of the Association elected at each Annual General Meeting.

The Secretary, the Treasurer, the Auditor and the Trustees need not be members of the Association.

The financial year of the Association shall end on the last day of December in each year to which day the accounts of the Association shall be balanced.

These rules may be added to, repealed or amended by resolution at any annual or special general meeting PROVIDED that no such resolution shall be deemed to have been passed unless it is carried by the votes of at least two-thirds of the members present and voting thereon. The Rights of Contributing Members as defined in Clause 16 may only be changed by a vote passed as defined in Clause 16(c).

If at any time the Association in general meeting shall pass a resolution authorising the Committee to borrow money the Committee shall thereupon be empowered to borrow for the purpose of the Association such amount of money either at one time or from time to time and at such rate of interest and in such form and manner and upon such security as shall be specified in such resolution and thereupon the trustees shall at the direction of the Committee make all such dispositions of the Association property or any part thereof and enter into such agreements in relation thereto as the Committee may deem proper for giving security for such loans and interest. All members if the Association whether voting on such resolutions or not and all persons becoming members of the Association after the passing of such resolution shall be deemed to have assented to the same as of they had voted in favour of such resolution.

(a) This clause relates to all property held by Trustees on behalf of the Association including (but without limitation whatever thereto) land and rights of fishing, and the proceeds of sale of land and rights of fishing.

(a) If at any general meeting a resolution for the dissolution of the Association shall be passed by a majority of the members present and such resolution shall at a special general meeting held not less than one month thereafter (at which not less than one half of the members shall be present) be confirmed by a resolution passed by the votes of three quarters of the members present and voting thereon the Committee shall instruct the Trustees immediately to call a meeting of Contributing Members (see Clause 8 and 16 above).