The Court of Appeal has dismissed an appeal by three men against orders requiring permits to fish specified parts of the Gweebarra Fishery in County Donegal. The orders, made after a High Court summary hearing, also restrained them and people acting with them from entering or fishing those waters without permits issued by or with the authority of Inland Fisheries Ireland (IFI).
In a judgment delivered by Ms Justice Máire Whelan on 18 November 2022, the court held that the High Court was entitled to decide the claim on affidavit evidence. It found the appellants had not shown a real or bona fide defence with a fair or reasonable probability of success. The court said IFI’s possession and management of the fishery gave it standing to seek relief against trespass; it did not need to prove title to succeed against defendants who claimed no right to possession themselves.
The dispute arose from proceedings begun in 2009 over fishing access on the Gweebarra River. In 2012, after a six-day modular trial, the High Court found that IFI had the right to manage and regulate access to the sections then considered and rejected the appellants’ counterclaim for fishing rights. The Supreme Court later refused their application to introduce new title evidence, and they abandoned that appeal. In 2020, their remaining counterclaim was dismissed by consent.
The appellants argued that historical evidence, including records of 1911 hearings and a 1913 report, supported the possibility that fishing rights had passed to a local or tenant collective. The Court of Appeal said that material did not establish such a transfer or provide a defence to IFI’s claim. It also held that asserting a possible superior right in an absent third party could not answer a trespass claim when the appellants themselves asserted no right to possess the fishery. The court noted that findings concerning the southern bank made in 2012 had not been appealed and could not be reopened in this case.
The appeal against the High Court orders and costs was dismissed. The Court of Appeal upheld the order that the appellants pay the proceedings’ costs, excluding the costs of IFI’s 2009 interlocutory injunction motion, as agreed. On the costs of the appeal, the court’s view was provisional: IFI was entitled to costs, but the appellants may file written submissions within 28 days; the court said an oral hearing could follow if needed.