of cash payments for shutting down their fishpot business, the Supreme Court declared yesterday.

In a damning 46-page judgment, Puisne Judge Mr. Justice Meerabux found the Minister had treated Mr. Eugene Barnes and his son Mr. Michael Barnes "differently to other commercial fishermen.'' On four different aspects of the case, Mr. Meerabux sided with the Barneses who were appealing their treatment at the hands of then Minister the Hon. Ann Cartwright DeCouto.

He quashed the Minister's June 1990 decision to not pay the Barneses $49,525 and ordered it reconsidered "according to law.'' Last night Mr. Michael Barnes said he was delighted by the decision.

"I am very, very pleased, although the case should have been over four years ago.

"It should never have reached this far in the first place.'' Mr. Barnes said he felt he had been harassed by the Ministry and the Fisheries Department.

Throughout his decision, Mr. Meerabux found fault with the Minister's handling of the Barneses' case: On the question of fairness, he said the Minister had "failed to exercise her discretion fairly and impartially according to Government policy and failed to treatment the (Barneses) in a manner similar to the way she treated others in similar circumstances.'' On the matter of alleged misconduct by the Barneses, Mr. Meerabux said the Minister "misdirected herself in respect of the law.'' On the matter of the Barneses having a legitimate expectation of getting the cash payment, he said what happened to them was "not only unfair but unreasonable''; and On the Minister's decision to not give money to the Barneses, Mr. Meerabux said it should be quashed "for irrationality.'' Dr. James Burnett-Herkes, permanent secretary for the Environment, last night could not say whether Mr. Meerabux's decision would be appealed because Government lawyer, Mr. Phillip Holder, was off the Island.

"In the sense that the decision went against us, yes it's damning,'' he said.

"But whether (Mr. Meerabux) got to that decision correctly is something we will have to discuss with our lawyer.'' On March 31, 1990, Mrs. Cartwright DeCouto closed the fishpot industry. As a matter of Government policy, all licensed pot fishermen were offered money based on the number of fish pots they were licensed to use.

In a letter dated January 25 that year, the Barneses were informed they were entitled to $49,525.

On March 8, the Ministry told the Barneses that payments would be made only to fishermen who obeyed the terms and conditions of their licences. The Barneses were reminded that their licence was for the use of no more than 30 pots.

A subsequent exchange of letters focussed on Ministry concerns that Michael Barnes was hauling more than his legal limit in pots. The Barneses' lawyer answered that Michael Barnes was simply helping other fishermen haul their pots.

The Ministry maintained its position that Barneses was breaking regulations and warned them it would withhold the $49,525.

"It would be a gross miscarriage of justice to withhold all or any part of our clients' agreed compensation,'' the Barneses' lawyer answered.

Nevertheless, in late June, the Ministry said the Minister "having regard to all facts and circumstances'' had decided to not make the payment to the Barneses.

It was against that decision the Barneses appealed to the Supreme Court.

In his decision, Mr. Meerabux noted that the Barneses were the only licensed fishermen refused the Government payment, despite no evidence before the court that they were "ever charged or convicted of any offences under the Fisheries legislation...

"I find that (Barneses) were treated differently to other commercial fishermen,'' he said.

"I find that the six commercial fishermen who had been convicted of offences against the Fisheries legislation were given better treatment in respect of compensation than the (Barneses) who were never convicted of any offence under the same legislation.'' Mr. Meerabux said the Ministry's allegation that Michael Barnes was hauling more than his legal limit of pots does not mean he is "automatically guilty of the offence...'' He referred to the Bermuda Constitution's provision that every person charged with a criminal offence "shall be presumed innocent until he is proved or has pleaded guilty.'' Mr. Meerabux also found that payments to fishermen was a Government policy of the "most comprehensive'' wording and application. The Ministry's March 8 letter did not constitute a change of that policy and was inconsistent with the Minister's "unambiguous promise'' of money in her January 25 letter.

The March 8 letter, he said, was "misconceived and it misconstrued and misrepresented the Government's policy...''