Oyster farmer seeks damages on appeal

Roger Pearson reports on a Cornish oyster farmer granted a second chance to sue Plymouth Council for loss of earnings.

A CORNISH oyster farmer has won the right to mount a second damages claim against Plymouth City Council over the loss of oysters he claims were worth u43,000.

He says they died as a result of the council's indecision in stipulating how they were to be treated once harvested.

The Appeal Court judges in London have given Mev-agissey-based Thomas O'Connell, who has already had one claim dismissed, the green light to take the council back to court.

The battle stems from a 1992 contract O'Connell had with a Suffolk company to dredge oysters from its beds in the River Lynher. In order to meet the contract, he sought approval from the council.

At the time, dredging activities of this nature were believed to be regulated by two orders made by the council under the Public Health (Shellfish) Regulations 1934.

The first order in July 1966 provided for the oysters to be subjected to "a satisfactory process of cleansing at an approved establishment" before being sold.

The second, allegedly made in December 1985 but which later turned out to be invalid, provided for the oysters to be subjected to the same cleansing process but went on to stipulate that they should be "re-laid in clean water for such period and in such place" as might be approved by the council.

In 1993, O'Connell sued the council for damages for loss of oysters, blaming a delay in its advice, and took action over the processes it wanted him to put the oysters through.

His claim was dismissed at Plymouth County Court in October 1995 on the basis that he could not prove the death of the oysters was the result of a delay by the council. And, in March last year, a second action was also dismissed on the grounds that the matters at issue had been decided in the previous case.

Now the Court of Appeal has ruled that O'Connell should be allowed to go on with the second action.

Lord Justice Clarke said O'Connell had assumed, as no doubt everyone else in the shellfish industry did, that the council had been acting lawfully in the requirements it had made in respect of the treatment of the oysters.

He said now that it has emerged that the 1985 order under which he was required to carry out a pre-cleansing fresh water process was invalid, he should be given an opportunity to raise the point in court.