A four-year-old dispute between two fishermen and the Environment Ministry was brought before the Court of Appeal yesterday in an effort by Government to overturn an earlier Supreme Court judgment.

On June 27, Puisne Judge the Hon. Mr. Justice Meerabux declared that the Ministry was wrong and unfair to deprive the fishermen, Mr. Eugene Barnes and his son Michael, of cash payments for shutting down their fishpot business.

Four years earlier, then Environment Minister the Hon. Ann Cartwright DeCouto closed the fishpot industry and was therefore bound as a matter of policy to compensate all licensed fishermen on the basis of how many fishpots they were licensed to use.

After initially informing the Barnes that they would be entitled to $49,525, Mrs. Cartwright DeCouto discovered that Michael Barnes had been hauling more than his legal limit in pots and decided to withhold the payment.

The Minister had earlier warned the Barnes that only those fishermen who obeyed the terms and conditions of their licences would be compensated.

The Barnes' licence allowed for the use of no more than 30 pots.

When the matter was taken to the Supreme Court, Mr. Meerabux ruled in the Barnes' favour, noting that the father and son had never been "charged or convicted of any offences under the Fisheries legislation'' and were consequently "treated differently (by the Ministry) to other commercial fishermen.'' Yesterday, however, the English lawyer that is representing the Crown in its appeal of the June decision told the three-man panel of judges the Ministry was under no legal obligation to provide compensation because the money had been offered to the fishermen ex gratia .

Said Mr. Michael Tugendhat QC: "All cases depend on their own facts, but this was truly an example of an ex gratia payment.'' Even if the money hadn't been offered ex gratia , Mr. Tugendhat argued, the Barnes had in effect given up their claim to compensation when they violated the conditions of their fishing license.

"Just as the Minister of the Crown must honour her obligations, so too must the citizen,'' he told the panel. "If Mr. Barnes had honoured his obligation under the law, we wouldn't be here. It's not just a question of looking at one side of the problem.'' Citing a previous case in which it was shown that the Crown "is just as entitled to fairness as the citizen,'' the lawyer added: "Fairness is not a one-way street. It doesn't behove the plaintiff to come here now and say `I can do whatever I want' and the Minister is stuck.'' Neither Barnes was in court yesterday to hear the Crown's appeal. The pair are represented in the matter by Mr. Kieron Unwin of Mello, Hollis, Jones and Martin.

Mr. Tugendhat will continue to argue his case before the panel this morning.