handing down afternoon moore_v__british_waterways_16.2.12_(pm_pro)

8/2/2019 Handing Down afternoon Moore_v__British_Waterways_16.2.12_(PM_Pro)

1/34

BEVERLEY F NUNNERY & CO

OFFICIAL SHORTHAND WRITERS

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

No. HC07C02340

The Rolls Building

Thursday, 16th

February 2012

Before:

MR. JUSTICE HILDYARD

B E T W E E N :

NIGEL PETER MOORE Claimant

- and -

BRITISH WATERWAYS BOARD Defendant

_________

Transcribed byBEVERLEY F. NUNNERY & CO

Official Shorthand Writers and Tape Transcribers

Quality House, Quality Court, Chancery Lane, London WC2A 1HP

Tel: 020 7831 5627 Fax: 020 7831 7737Email: [email protected]

_________

THE CLAIMANT appeared in person.

MR. C. STONER QC (instructed by Shoosmiths) appeared on behalf of the Defendant.

_________

P R O C E E D I N G S ( P.M. O N L Y)
mailto:[email protected]:[email protected]:[email protected]


2/34



I N D E X

Page No.

OPENING

Mr. MOORE 1

Mr. STONER QC 1

(For judgments see separate transcript)

_________


3/34



1

(The short adjournment)1

2

MR. JUSTICE HILDYARD: Yes, Mr. Moore.34

MR. MOORE: Having given it a little thought, my Lord, I would say that I would5certainly appreciate the punctiliousness of the court with Lady Justice Arden6

and yourself in bringing to the fore the sort of bolt-on things of human rights7

and legitimate expectations, which were not things that I had brought into the8

case, even if some of them I had been aware of. I have done the best I could to9

assist your Lordship in resepct of both those. I honestly do not think that I can10

usefully add anything more than I have done, so I would say that I would not11

wish to take up the time of the court or the other parties in deferring for the12

sake of trying to come up with something that I am not sure that I could do.13

14

MR. JUSTICE HILDYARD: Thank you very much. It is very characteristic of you15

that you have not sought to make a point just for the sake of it. So I am16

obliged. Mr. Stoner, I am wary of giving a full judgment but conscious that17

one might be required given the nature of the case.18

19

MR. STONER: My Lord, yes.20

21

MR. JUSTICE HILDYARD: Unless you can see any objection, I think I owe it to22

you to say the brought outline of my decision and the reasons for it, but I will23

seek to either improve on what is stated or simlpy hand down a judgment in24

due course, if that would be agreeable to both of you.2526

MR. STONER: My Lord, that is perfectly sensible. The only thing that occurred to27

me over the short adjournment is that if - and it may well be particularly in28

light of Mr. Moores indication that he does not want any further hearing - but29

if there were to be any further hearing as a consequence of any relief, or any30

finding, then we would have to consider whether all elements of the relief be31

adjourned to the end of that hearing. Mr. Moore has indicated in his written32

submissions his desire to appeal on the legislation point, for example. It would33plainly be unfortunate if there was an appeal on-going whilst there was still34

first instance elements to be unresolved.35

36

MR. JUSTICE HILDYARD: Yes.37

38

MR. STONER: That is the only point I make in relation to that particular aspect.39

40

MR. JUSTICE HILDYARD: Well, it is very tempting to adjourn it over and to41

think of setting it out in a judgment. I am wondering about that. The trouble42


4/34



2

is in this case I am constantly aware of costs and the delay involved in a1

further hearing.2

3

MR. STONER: My Lord, yes. If there is to be no further hearing contemplated on4

proportionality, then it must be that what my Lord has indicated is a very5correct and sensible course. I merely raise that if there were to be a further6

hearing on ----7

8

MR. JUSTICE HILDYARD: If Mr. Moore had thought of things that he wanted to9

elaborate on or expand in evidence, yes.10

11

MR. STONER: Yes. Even on the short form findings, if I can put it that way, this12

afternoon, as I understand my Lord would be able to formulate the appropriate13

order.1415

MR. JUSTICE HILDYARD: Yes. I have not drafted an order, I am afraid. But I16

will want to discuss that with you in due course.17

18

MR. STONER: Yes, of course. I have got a draft to work from.1920

MR. JUSTICE HILDYARD: I will give an indicative ruling, if I can put it that21

way.22

23

MR. STONER: That would be incredibly helpful, my Lord.24

25

(For judgment see separate transcript)26

27

MR. JUSTICE HILDYARD: As I have indicated and with apologies for a rather28

meandering account, I will try and tighten that up in due course. But I hope29

the result of my conclusions is sufficiently clear.3031

MR. STONER: My Lord, that is. Thank you very much. Can I take this32

opportunity to hand up a draft minute?3334

MR. JUSTICE HILDYARD: Yes. I am right about the timing, am I?35

36

MR. STONER: Three months.37

38

MR. JUSTICE HILDYARD: Three months, yes.39

40

MR. STONER: This is a version I circulated, it has to be said, really rather late last41

night.4243


5/34



3

MR. JUSTICE HILDYARD: Yes. Mr. Moore, have you had an opportunity to1

consider this?2

3

MR. MOORE: My Lord, rather briefly yes, but Mr. Stoner handed me a copy ----4

5MR. JUSTICE HILDYARD: Last night.6

7

MR. MOORE: No. I got an email which I picked up at half-nine, quarter to 10 last8

night. I was not able to print it out and Mr. Stoner brought in a hard copy this9

morning.10

11

MR. JUSTICE HILDYARD: Are you content to go through it?12

13

MR. MOORE: Yes, my Lord.1415


17

MR. STONER: What I had anticipated was literally going through it paragraph by18

paragraph.1920


22

MR. STONER: The first is a declaration which goes back to the riparian rights23

issue. If I can explain the wording, hopefully I have encapsulated it by saying24

that a riparian owner has no entitlement simply by reason of that riparian25

ownership to moor a vessel because that would not obviate any particular or26

special factors. But, in my submission, that encapsulates the finding that my27

Lord has made in the judgment.28

29

MR. JUSTICE HILDYARD: This is the sort ofRatte case really.3031

MR. STONER: It is, yes. The second is a declaration I canvassed in my written32

submissions and it is really the nod towards the fact that Mr. Moore claims33certain relief. Really by way of concessions as the case has gone on these34

things have not been fought, but hope again that that accurately encapsulates35

that British Waterways remains bound by section 43, which preserves the36

public right of navigation, special and particular rights. I have taken that37

wording really from my Lords judgment - and identified that it is on the38stretch of the Grand Union Canal between Baxs Mill or the Boatmans39Institution (however it is referred to) and the junction of the canal with the40

River Thames. Then thirdly ----41

42


6/34


7/34



5

MR. JUSTICE HILDYARD: What is the liability which faces him at present?1

2

MR. STONER: The liability of costs to date?34


MR. STONER: The indication ----7

8

MR. JUSTICE HILDYARD: I think it was 6,000, was it not?9

10

MR. STONER: No. It was 40% of the costs - my clients costs on the preliminary11issue. And the payment on account was 6,000. What I should just indicate12

so that my Lord is aware, I attended judgment (perhaps slightly unusually) in13

the Court of Appeal to raise the point of whether the Court of Appeal should14

reduce that payment on account in view of the reduction from 60% to 40% -15

and they elected not to.16

17

MR. JUSTICE HILDYARD: Yes. So my judgment this morning was correct as18

printed ----1920

MR. STONER: Yes.21

22

MR. JUSTICE HILDYARD: That there is an outstanding obligation for 6,000.23

24

MR. STONER: There is because that is the payment on account. That was the one25

where there was the offer to pay at 1 a ----26

27

MR. JUSTICE HILDYARD: Yes. In a nutshell you say that the PRN point28

encapsulated in two has already been reviewed by two courts.29

30

MR. STONER: Yes, in a nutshell. Paragraph 3 is a declaration that Gilgie is not31

exercising public rights of navigation or any special particular right, and has32

no entitlement to moor in its current location; it is unlawfully moored. I hope33that that accurately encapsulates my Lords judgment.34

35

MR. JUSTICE HILDYARD: Yes. I had two points here. Is it personal to the36

vessel or personal to the owner - do you see what I mean - when you exercise37

PRN?38

39

MR. STONER: I hesitate because that could be quite an interesting academic40

debate, but the vessel itself is actually the thing that is navigating. One can41

imagine in the course of a particular navigation one could have - and Mr.42Moore will forgive me if my language is inappropriate here - but a couple of43


8/34



6

skippers on one particular navigation. I think that this particular declaration is1

directed at the boat because the boat has been in the same location. Before that2

it was Platypus but Platypus has gone, so it would be academic to be3seeking relief in relation to that. So, in my submission, if one looks at that4

water space in Brentford today, Gilgie is there. It is not exercising public5rights of navigation or any other particular right, and so it has no entitlement to6

moor. Of course, the notice is a notice to the owner to remove the vessel. If7

my Lord is not against me on that it would have to be that it would be ... is8hereby declared that Mr. Moore is not using the vessel Gilgie to exercise9

public rights of navigation or any special particular right... - or something10

along those lines. But that is the formulation that I put forward, my Lord.11

12

MR. JUSTICE HILDYARD: Yes. I wish I could think of a ----13

14

MR. STONER: What I had in mind as well was your revised paragraph 160 where15

you say I have already concluded that the claimant cannot show any lawful16entitlement to moor vessels permanently (that is to say, otherwise for17

temporary purposes ancillary to or in the process of navigation, such as to18

shelter from bad weather... The other way of formulating it would be to say19that It be and is hereby declared that Mr. Moore has not established... - to20

check the wording again - ... that the vessel, Gilgie is exercising public21rights of navigation or any special or particular right and as such it has no22

entitlement to moor in its current location and is unlawfully moored.23

Something along those lines. In my submission paragraph 3 as drafted, I24

hope, identifies correctly the thrust of my Lords judgment.2526

MR. JUSTICE HILDYARD: If you said something like, and I am not drafting, but27

if you declared that the vessel Gilgie is unlawfully moored, it not being28moored in the course of the exercise of public rights of navigation, nor29

pursuant to any entitlement to moor, would that capture it?3031

MR. STONER: My Lord, it probably would. In my submission it would be a32

different way of saying the same thing.3334

MR. JUSTICE HILDYARD: I just want to impersonalise it and to get over the35

conclusion really, which is that it is unlawfully moored and the reason is36

because it is not in the course of navigation, and no lawful right to moor it has37

been established.38

39

MR. STONER: Yes. Where I am nervous, being candid, is having seen Mr.40

Moores further submissions as well and this point about what appears to41

develop at the end - some form of suggestion about actually what is42permanence. There seems to be a suggestion that actually the fact it has43


9/34



7

been there for four and a half years is in the circumstances within the public1

right of navigation. I may have misunderstood that.2

3

MR. JUSTICE HILDYARD: I tried to deal with that in my revised judgment. I do4

not think that I would attempt a definition of permanence, but what it seems5to me to connote, as I have said in the judgment, is mooring otherwise than in6

the course of navigation.7

8

MR. STONER: My Lord, I think that must be absolutely correct. I am probably9

the one who is at fault for introducing the word permanent or permanence,10

but it was in contradistinction to a vessel which was more temporarily in the11

course of navigation, as my Lord ----12

13

MR. JUSTICE HILDYARD: And that might be quite a long time because the14

repair might be both urgent and excessive.15

16

MR. STONER: Yes.17

18

MR. JUSTICE HILDYARD: Or the storm may last three months.1920

MR. STONER: My Lord has said one of the cases refers to a season. The way that21

British Waterways in other respects puts it is to say 14 days, unless it is a22

special circumstance. It would always depend on the circumstances.23

24

MR. JUSTICE HILDYARD: That is a sort of indicative test.2526

MR. STONER: It is, yes. It must be.27

28

MR. JUSTICE HILDYARD: Do you think we could have a think as to that29

paragraph to see whether you can get closer, subject to anything30

Mr. Moore ----31

32

MR. STONER: Yes. If I can get closer to your paragraph ----3334

MR. JUSTICE HILDYARD: I feel the declaration should say it is unlawfully35

moored in that it is moored there not in the exercise of any public right of36

navigation or pursuant to any special or particular right.37

38

MR. STONER: Yes. I will play with the wording on that.39

40

MR. JUSTICE HILDYARD: Would you?41

42


10/34



8

MR. STONER: Of course, yes. Then paragraph 4 is an order that Mr. Moore be1

required to move the vessel from the waterways managed by British2

Waterways on or before - and that is going to be the three months, provided3

that the three months is satisfactory. That is my proposal. Whatever the4

equivalent date is three months from today. So 16th

May.56

MR. JUSTICE HILDYARD: There are a couple of points. I am worried about, in7

line 2, the tidal element on the stretch because my understanding is that8

although technically probably some of that stretch is only partly tidal, I have9

proceeded on the agreed assumption that the whole of that stretch is tidal.10

11

MR. STONER: Yes. I have tried to counter that by then going on to say between12

Baxs Mill/The Boatmans Institute and the mouth of the ----1314

MR. JUSTICE HILDYARD: So you do not need the tidal element then.15

16

MR. STONER: That is fine, yes.17

18

MR. JUSTICE HILDYARD: So there is no discussion as to whether that is only a19

part of the relevant stretch.20

21

MR. STONER: Yes. My Lord, I need to make a correction here. Save in as far22as Mr. Moore exercises his public rights of navigation... I think I would say23

over the tidal stretch because that is the only element. There are public24rights. Then the word continually can come out because this introduces a25complication to refer to continual cruising.26

27


29

MR. STONER: So it is ... and or cruises British Waterways managed inland30waterways in accordance with the terms and conditions of the licence. It is a31

vessel. I have to reflect the fact that it has got a licence. Then ... failing32

which after 16th May 2012 British Waterways be entitled to exercise the33statutory powers vested in it by Section 8 of the British Waterways Act 1983.34

35

MR. JUSTICE HILDYARD: If it says over such stretch (being treated as36

tidal) ----37

38

MR. STONER: Yes.39

40

MR. JUSTICE HILDYARD: Would that capture it, or is it unnecessary. You must41

say if it is unnecessary. You have reserved your position.4243


11/34



9

MR. STONER: Yes. What I am trying to do is to draw the distinction that the1

public rights of navigation exist over the tidal stretch, but obviously the Grand2

Union Canal then continues and there are not such rights there. So what my3

clients have to recognize as a result of my Lords judgment is that the vessel4

could come in, cruise up to the Gauging Locks and go back out again - and5that would be exercising its public rights of navigation. Hopefully that6

encapsulates that.7

8

MR. MOORE: My Lord, if I can just make this clear.9

10


12

MR. MOORE: I would have said that Mr. Stoners wording in that respect was13sufficient - was a good way of putting it.14

15

MR. JUSTICE HILDYARD: Okay. I am content if you are both content with that.16

Both at the beginning and at the end, and in the middle - the tidal element?17

18

MR. MOORE: Yes.1920

MR. JUSTICE HILDYARD: All right. That is fine.21

22

MR. STONER: As the person to whom the order is directed, that must be good.23

Thank you very much, Mr. Moore. Then in paragraph 5 what I have said is an24

injunction - Mr. Moore be forbidden, to use the standard form now, whether25by himself or by instructing or encouraging any other person on or after... -26

and that would be 16th

May 2012 - ... from mooring the vessel Gilgie or any27other vessel in its control on the tidal element of the Grand Union Canal ...28

other than temporarily whilst exercising public rights of navigation.29

30

MR. JUSTICE HILDYARD: Is temporarily going to cause a problem?3132

MR. STONER: I could reword it to borrow the wording from your paragraph 160,33my Lord. ... other than for temporary purposes ancillary to or in the process34of navigation.35

36

MR. JUSTICE HILDYARD: Yes, ancillary to the rights of navigation. Are you37

happy with that, Mr. Moore?38

39

MR. MOORE: Yes.40

41

MR. STONER: Do forgive me, my Lord, if I just make a note of that. (Pause)42Paragraph 6 is the declaration that Mr. Moores legitimate expectation has43


12/34



10

been breached. Paragraph 7 records that no further order is required in respect1

of the aforementioned breach of legitimate expectation. My Lord, it is2

probably at this juncture - I have not covered it of course - but whether there3

should be a similar declaration or couple of paragraphs in relation to the4

human rights.56

MR. JUSTICE HILDYARD: Yes. I said I would hear further on that. What is7

your submission on that?89

MR. STONER: My Lord, my only concern in relation to there being a formal10

declaration, which is all it would be, is the effect that that might have of11

encouraging others in other circumstances where to allege a breach of human12

rights.... Inside this courtroom we know the fact-specific circumstances of that,13

but if there was a formal declaration of a breach of human rights because the14

process was lacking in some respect, then I am concerned about encouraging15

anybody to think that any lapse of a procedure by British Waterways,16

especially in circumstances where ultimately the relevant statutory provision17

merely says one has to give 28 days notice, could be encouraged to think that18that is somehow going to harbour a human rights argument. So for that reason19

I ask that there be no declarations in relation to human rights.20

21

MR. JUSTICE HILDYARD: Mr. Moore, do you have a view on that?22

23

MR. MOORE: My Lord, I would think it was appropriate, it having been found24

that there was some breach regardless of whether that should make any25

difference.26

27

MR. JUSTICE HILDYARD: But you have got the record of that in the judgment.28

Okay.29

30

MR. STONER: Thank you, my Lord. One paragraph I introduced in fact31

overnight, paragraph 8, it suddenly struck me that there was Mr. Moores32

application for injunctive relief. As I understand my Lords judgment there is33no need to deal with that. It was in a separate bundle, which was bundle F. It34

was the one where Mr. Hales was not joined as a party but was named.35

36

MR. JUSTICE HILDYARD: Yes. I did go over that as well. I must say that I do37

read Mr. Justice Floyd as having noted and accepted that there was only one38

defendant.39

40

MR. STONER: Yes. I was not actually there on that day, but I know it was very41

much a point that Mr. Hales was not joined as a party. In the light of my42Lords judgment it seems to me that it is simply a question of no order on that.43


13/34



11

1


3

MR. STONER: Then I have said Save as aforesaid and as provided for costs, there4

be no further order on either the claimants claim or the defendants5counterclaim. Then we come to the question of costs. I foreshadowed this in6my written submissions ----7

8

MR. JUSTICE HILDYARD: Can I just say one thing I will add to the judgment I9

have just given is that I accept that in the circumstances probably the most10

appropriate way of looking at the human rights aspects is whether there is any11

defence to the counterclaim.12

13

MR. STONER: I am obliged, yes. My Lord, overall on the basis that costs14

normally follow the event, this is a claim where, in my submission, my clients15

have been successful. The argument that we have had today must not shift16

focus from the substantial arguments in this case. The arguments we have had17

today relate to firstly an argument that my Lord raised after judgment had18

closed; and secondly a further argument, the human rights argument, the19

genesis of which in this action was one of the Court of Appeal, through Lady20

Justice Arden. The way, as I recollect it, she put it to me was to say as a public21

authority you will identify to Mr. Moore any human rights arguments he may22

have. It was then recorded in Lord Justice Mummerys judgment. We then23

had two separate half days before Master Bragge trying to agree and24

understand what the issues were in this case. The reality is that we identified25

that if there was to be a human rights argument, it would be an Article 826

argument. I think at one stage Kay would be the appropriate authority, but that27

was then overtaken by Pinnockand Powell.28

29


MR. STONER: But again, that has been very much at the tail end primarily of32

today and of the written submissions before that. Obviously there has been a33technical breach, if I can put it in those terms, without underestimating it at all.34

In my submission, my clients have been successful but they do not simply seek35

the costs of the action. They recognise the criticisms that my Lord has made36

during the course of the judgment. In all of those circumstances this has been37

an expensive exercise. It has been somewhat galling for my clients that Mr.38

Moore has adopted the position that these are matters which are to be litigated39

at British Waterways expense, but British Waterways have had to defend40them. But it is my submission that the appropriate order, bearing in mind the41

criticisms and everything - and it would be a generous position - but that Mr.42Moore pay British Waterways 50% of its costs of the action, such costs to be43


14/34



12

the subject of a detailed assessment if not agreed. We seek a payment on1

account. My Lord because there is no summary assessment of costs I do not2

have a schedule, but what I have are some instructions. The costs, after the3

appeal which is really before then treating the costs as costs of the preliminary4

issues, to date (and I exclude VAT because my client can recover VAT so5costs do not include VAT) is some 105,000. In my submission the starting6

point for a payment on account is often 50%. That is very much a starting7

point. I recognise the reality of what Mr. Moore has said about his own8

financial circumstances on the previous payment of account, and that is why9

the relatively small sum of 10,000 on account is sought in this particular10

instance. The only other thing I foreshadowed on the order is permission to11

appeal. I did that because of what was in Mr. Moores written submissions.12So with the amendments we have discussed, that is the order I put before my13

Lord.1415

MR. JUSTICE HILDYARD: On that last point, I think permission would be16

required because it does not fall within one of the exceptions.17

18

MR. STONER: No.1920

MR. JUSTICE HILDYARD: It would be a first appeal. It is not within one of the21

exceptions which are illustrated. Are you seeking permission to appeal?22

23

MR. STONER: I am not seeking permission. If the order is in these terms then I24

am not seeking permission to appeal.2526

MR. JUSTICE HILDYARD: Mr. Moore, let us just work out - I will want you to27

try and agree a form of order, subject to the question of costs and appeal, and28

to send it to my clerk. If I have any difficulty I will correspond with you by29

open email if I may. I just think that under the pressures we are under at the30

moment we may not get the best result, either of us. I am keen that we should31

get something which is clear. By all means make points on the form of the32

order up to paragraph 8, some of which you have already made, so that I know33what you are thinking about. But the actual drafting, with respect to Mr.34

Stoner, may probably be even further improved, and I would like you to do35

that.36

37

MR. MOORE: Yes, my Lord. I would just say in broad terms that in respect of the38

order of issues that are done, I prefer the order that your Lordship adopted in39

your conclusions.40

41

MR. JUSTICE HILDYARD: Right.4243


15/34



13

MR. MOORE: Understandably I think I prefer your wording on your sub-1

paragraph (i) in respect of the Section 43 rights. What Mr. Stoner has written2

in his paragraph 2 I would be happy, as paragraph 2 after the paragraph 1 - as3

you have written. The only other point I would say then is regarding the4

declaration as to the entitlement to moor, I think it was important to5incorporate in the actual order the fact that the basis for the judgment for6

saying that Gilgie is unlawfully moored is because there is no right to moor7attached to the ownership of the land. I think that should be part of it. I think8

from your suggestion that you were incorporating that, but I am making that as9

a point that I would ----10

11

MR. JUSTICE HILDYARD: I am not sure it is accurate to capture it in that way. I12

think looking at it in two parts, my appreciation - one cannot rewrite a13

judgment so that you understand - is that there were two ways of looking at14

this case. Either you could assert a right or you could assert an immunity from15

the exercise of right. You did not succeed on the first because a riparian right16

does not help you and there was no, or no sufficient, proof of any special right.17

On that point, as I reflected in the judgment, I rather took you to reckon, to use18

your quite graphic phrase, if that was the question it was rather like shooting19

fish in a barrel. So I think that the declarations ought to reflect what ultimately20

became the true issue, which was whether BWBs rights extended to the tidal21waters - extended to preventing mooring in tidal waters. That is basically what22

it came to. So I would imagine that subject to your flattering reference to23

paragraph (i) I would have thought that that is where it should rest. I do not24

know whether you have any views on that, Mr. Stoner?2526

MR. STONER: I think it should rest there, yes.27

28

MR. JUSTICE HILDYARD: All right. I will ask you later about (i) if you can be29

thinking about that. Paragraph 1 is all right if prefaced by the earlier (i). Is30

that right?31

32


MR. JUSTICE HILDYARD: Paragraph 2: you like that, do you not?35

36

MR. MOORE: Mr. Stoners 2?3738


40

MR. MOORE: I am happy for that to follow your (i).41

42


16/34



14

MR. JUSTICE HILDYARD: Yes. 3 you are going to rework together, but I have1

suggested a way. Do you have any further observations on that?2

3

MR. MOORE: Not currently.4

5MR. JUSTICE HILDYARD: 4, I think you thought when I wondered about the6

tidal element but I think I was probably gilding the lily - I think you are happy7

with.89

MR. MOORE: My Lord, can I just say before we get on to 4, Mr. Stoners10

paragraph 1 ----11

12


14

MR. MOORE: Were you proposing perhaps that that might be part of Mr. Stoners15

paragraph 3 to be worked together. If that was going to be a separate one,16

then it should be either immediately before or after his paragraph 3.17

18

MR. JUSTICE HILDYARD: I can see that they go together, but they are slightly19

different. They are different sides of the same coin, but they are different.20

21

MR. MOORE: I am just saying, because we started off with 1 and then this (i) and22

then 2 ----23

24

MR. JUSTICE HILDYARD: Yes, I can see that.2526

MR. MOORE: So with paragraph 4 the only thing that I am slightly hesitant about27

is anything implied in the terms and conditions of the licence issue, but I28

basically do not think there is anything off hand that I would complain about29

with that wording.3031

MR. JUSTICE HILDYARD: What are we doing about continually? You are32

taking that out?3334

MR. STONER: Yes. The word continually comes out. It just says over the said35tidal stretch and/or cruises British Waterways manage...36

37

MR. JUSTICE HILDYARD: In accordance with.3839

MR. STONER: Yes.40

41

MR. JUSTICE HILDYARD: Yes. All right.4243


17/34



15

MR. MOORE: It was important just in the sense that there are different terms and1

conditions if you like that applied to a licence on the basis of it being2

continually cruised. So I am happy with that as it is written.34

MR. JUSTICE HILDYARD: Can I just be absolutely sure I know what I am doing5then. The licence that you took out without prejudice in respect - or the owner6

did - in respect of Gilgie - (short discussion re pronunciation) - was not a7continuous cruising licence; it was a home mooring licence - as long as that is8

identified. Because I think what is got at is obviously having paid for it, you9

are entitled, over and above any other freedom, to use your rights as paid for.10

So the terms and conditions would be on that variety of licence.11

12

MR. STONER: Exactly. That is why it was important to remove the word13

continually and it was my mistake last night to put that in.1415

MR. JUSTICE HILDYARD: Thank you very much.16

17

MR. MOORE: I cant think of anything immediately now in terms of the following18paragraphs up to 8, my Lord.19

20

MR. JUSTICE HILDYARD: If you do, I am not going to shut you out in these21

special circumstances. You can raise it and I can adjudicate on it if you are22

both content with that.23

24

MR. MOORE: I appreciate that.2526

MR. JUSTICE HILDYARD: So it is really costs and permission to appeal which27

we need to deal with. What do you say about costs?28

29

MR. MOORE: My Lord, with respect to the effect of the finding on what had30

always been my main issue, what Mr. Stoner said regarding the Appeal Court,31

what the Appeal Court found, as Mr. Stoner described, setting the issue 132

aside, it was still not.... That issue was forwarded to this court for33determination. As I understand it the costs on the preliminary trial then were34

in respect of that which British Waterways had won. It was not that: oh well,35

there is not going to be a decision on preliminary issue 1; that was forwarded36

to this court. So if, for example, the finding of this court had been made in the37

preliminary issues as regarding your sub-paragraph (i) there, then the effect of38

that would have been that we would each have won an issue, but mine is the39

one that both the Appeal Court and Mr. Martin Mann himself recognized as40

the one on which most time was spent and which was the most significant. So41

I would have said that if you take the effect of this judgment and insert that,42


18/34



16

then there would not have been a costs order at all against myself; rather the1

reverse.2

3

MR. JUSTICE HILDYARD: I may have misunderstood this, but I am not sure that4

that is the way it is put or the fact. My understanding is that what Mr. Stoner5was putting a marker down for is that by incorporating the declaration, which6

you would have liked Mr. Mann to have given and would seem to flow from7

his judgment, and which was not disturbed in the Court of Appeal, that that8

should be deployed by you itself as a reason for costs. I will take that into9

account and I know you say yet one of your reasons for fighting was to make10

quite sure that you got a declaration to that effect, and I will have to balance11

those two. What we cannot do is revise the disposition - the decisions on costs12

- before Mr. Mann and the Court of Appeal as regards the costs of fighting the13

preliminary issues. We have done that. It has all been decided. Do you see14

the distinction?15

16

MR. MOORE: I do indeed.17

18

MR. JUSTICE HILDYARD: Is that right, Mr. Stoner?1920

MR. STONER: My Lord, yes. My point very much is that the costs of that21

element up to the concession that I made on behalf of ----22

23

MR. JUSTICE HILDYARD: Have already been dealt with.24

25

MR. STONER: ---- have already been dealt with and we stood by that concession26

every moment from then on.27

28

MR. JUSTICE HILDYARD: I.e. When the Court of Appeal was deciding to come29

down to 40% it took into account the fact that you had sub silentio, because30

there was no declaration, won to that extent. Do you see what I mean?31

32


MR. JUSTICE HILDYARD: Okay.35

36

MR. MOORE: I do not have anything more off the top of my head for the moment.37

38

MR. JUSTICE HILDYARD: As it seems to me the question of success in this39

action is more difficult than Mr. Stoner suggests. It depends what the question40

is. If the question is as you highlighted it to be, and as to some extent - though41

I will ask Mr. Stoner to comment on this - BWB promoted it to be was: does a42vessel exercising only PRN in a tidal stretch require a licence? On that issue,43


19/34



17

on that highlighted issue, you won. You lost on the bigger issue which was1

unlawfully moored for want of a right, which Mr. Stoner rightly identifies as2

having been his ... case ab initio. It is not easy to see; I cannot really tell.3

Supposing they had accepted that no licence was required, what would have4

happened? It is more difficult to identify. You won on legitimate expectations5and at any rate to that extent you demonstrated some infringement, even if6

procedural, of your human rights and you have my remarks as to my concerns7

about the way the matter proceeded. Those are your points really on costs, as I8

see them, and expected them. It is very daunting for you to have to do this, but9

is that a fair summary of where you feel we are?10

11

MR. MOORE: I believe so.12

13

MR. JUSTICE HILDYARD: So I have to ask Mr. Stoner to reply why I should14

look at it in either mooring terms success - and why I should not just look at it15

on the basis that the section 8(2) notice, even this morning, was justified on the16

basis that there was no licence.17

18

MR. STONER: Yes. My Lord, it was justified this morning in the sense of I19

hopefully candidly accepted that the evidence was that that was the reason it20

was served.21

22


24

MR. STONER: In my submission, my Lord, in fact it is not as simple as saying that25

Mr. Moore has necessarily established the licensing point because of course he26

has established that in so far as a vessel is exercising a public right of27

navigation, it does not require a licence. We conceded that there were public28

rights of navigation and frankly this vessel was never exercising a public right29

of navigation. So that particular point was an entirely academic debate within30

the context of the proceedings. What Mr. Moore has not established, and in31

fact as I understand my Lords judgment you have not finally determined32

because you did not need to, is whether in fact this vessel, because it was not33exercising a public right of navigation and it was not exercising a special right,34

could well still require a licence through the Section 43 route. There is the35

Houseboats Certificate route as well. So Mr. Moore has not succeeded. If one36

looks at it as that is the main thrust of his claim, then in fact he has only37

succeeded on a point which has no ultimate effect in the context of this case.38

In asking for 50% of the costs I concentrated earlier on the criticisms of me39

being made, but what I also do is recognise the fact that my clients have not40

been 100% successful. If one drew up a list of 1-20 in this case, it would not41

be 20-nil. What I do say, however, is that the list of ticks in my clients favour42would be substantially more than they would be in Mr. Moores favour. That43


20/34



18

is why it is always slightly incongruous taking a percentage, but it strikes me it1

would be wholly inappropriate to do an issue-by-issue approach because that2

would just be horrific on a detailed assessment.34

If one steps away from the issue-by-issue approach one is then left with what5is the appropriate percentage. In my submission, my clients have succeeded6

more. Ultimately they have defended a claim which was brought against them7

because Section 8 notices were served, and it was said: you do not have8

authority over this stretch of waterway; you cannot serve these notices; and I9

do not have to move. What has been established is that British Waterways10

have authority over this stretch of waterway; they were entitled to serve the11

Section 8 notices - I might add, as my lord observed in the judgment, that the12

wording covers an unlawfully moored vessel which was British Waterways13primary argument in that respect - and as a consequence the vessel has to14

move. So in that respect, put that way, it is total success from my clients15

perspective. However, I recognise that the reality is that above those headline16

points there are a number of other points. My clients have not been successful17

on all of them, as I say, but in the overall scheme of things in my submission18

50% is the appropriate order in this particular instance.1920

MR. JUSTICE HILDYARD: Yes. To make sure I have got it entirely right, I want21

to address the various things I have to take into account. One is success - and22

you have made your submissions on that.23

24

MR. STONER: Yes.2526

MR. JUSTICE HILDYARD: The other is ----27

28

MR. STONER: Conduct.29

30

MR. JUSTICE HILDYARD: Sorry?31

32

MR. STONER: Just looking at 44.3: conduct of all the parties. There are no33particular conduct issues as such. I suppose what I would say is that there has34

been a vast amount of documentation that Mr. Moore has put forward that my35

clients have had to deal with. That has been expensive to deal with and they36

successfully repelled at the large elements of that because ultimately in so far37

as Mr. Moore has had a limited success, it is on simple interpretation of38

legislation. Also ... whether a party has succeeded on part of his case, even if39he has not been wholly successful. I think that is what I candidly say. I say I40have succeeded on the vast majority of the parts of my case. In fact I could41

seek to make an argument that I have succeeded on my case. I have42successfully defended this action and in so far as I have counterclaimed, then43


21/34



19

the relief that was technically sought in the counterclaim was not really1

appropriate come trial because I had to reflect the fact that the vessel had been2

licensed in the meantime. Once that is taken on board, then that has also been3

successful on my part. There are no payments into court obviously. There are4

no Part 36 offers in this case for you to consider.56

The other matters you have to take into account: Conduct before, as well as7during, the proceedings and whether it was reasonable for a party to raise,8pursue or contest a particular allegation or issue. Well, it may well be that a9

number of the points that Mr. Moore raised, it was not actually appropriate.10

As my Lord records in the judgment, it also became if not quite a cause11

celebre, it was a situation where Mr. Moore was not looking simply at his own12

position but was trying to almost be a champion with the Waterways. In my13

submission this was only ever a case ultimately about the particular vessels in14

issue.15

16

Then The manner in which the party has pursued or defended his case:17

nothing particular there. Whether a claimant who has succeeded in his claim,18in whole or in part, exaggerated his claim. I do not think either party have19exaggerated their claims. That is not relevant. So it is really taking into20

account all of those sorts of circumstances in deciding what is the appropriate21

order.22

23

MR. JUSTICE HILDYARD: Yes. I am going to test you a bit on those.24

25

MR. STONER: Of course.26

27

MR. JUSTICE HILDYARD: First of all does your estimate of 105,000 include28

costs reserved from pervious hearings?29

30

MR. STONER: That does not include the preliminary issues, no.31

32

MR. JUSTICE HILDYARD: It does not include the applications before Mr. Justice33Floyd or Mr. Justice Arnold.34

35

MR. STONER: It is everything since the appeal concluded. It will not include Mr.36

Justice Floyd because that was beforehand.37

38

MR. JUSTICE HILDYARD: One might think that given that I have found a39

breach, that is a relevant consideration, is it not - conduct-wise?40

41


22/34



20

MR. STONER: It is, but it is something that I think would fall within putting1

forward 50%. I have taken it into account because I emphasize the criticisms2

that were made. So that is taking into account those matters.34

MR. JUSTICE HILDYARD: The witness evidence, which occupied us for a little5while - I mean that really went to the issues of conduct, did it not, rather than6

issues you won on, which was effectively laborious legislation.7

8

MR. STONER: My Lord, I think Mr. Johnsons statement - a lot of that goes to9

human rights issues, although perhaps in slightly wider terms than has been10

necessary to consider in detail today, but also about the general management11

of the Waterways. In so far as Mr. Farrow and Mr. Bennett came along, as the12

control officer concerned at the time and the enforcement officer now, in my13

submission they were not inappropriate witnesses. It may well be that if Mr.14

Farrow had not come along, if we had not called Mr. Farrow, we would not be15

here now because my Lord would not necessarily have been so concerned16

about the processes. So that is not a matter of criticism for British Waterways;17

it is just open. This is what has happened. Here are the people involved.18

They are being tendered for cross-examination on any issues that is relevant.1920

MR. JUSTICE HILDYARD: But they went to issues where I found your conduct21

not the best.22

23

MR. STONER: Certain evidence from Mr. Farrow, yes, but not all of the evidence24

of those witnesses.2526

MR. JUSTICE HILDYARD: Take Mr. Johnson, for example. Mr. Farrow was the27

one who gave the evidence with respect to four months. Mr. Johnson gave that28

long third witness statement to explain his breach.29

30

MR. STONER: He did, and again part of my thinking of the 50% is that that will31

account for the fact that in essence the costs of that third witness statement will32

not be recovered. If my Lord thought it particularly appropriate, my Lord33could always say that the costs of that third witness statement are to be borne34

by British Waterways in any event.35

36

MR. JUSTICE HILDYARD: To what extent is it relevant conduct? I mean you37

say it is all part of the 50%, all the breaches, the infringements and the38

breaches; you say that is all part of the discount.39

40

MR. STONER: Yes, because ultimately as well on the breaches, my Lord found41

there was no breach of the contractual undertaking. There was then the breach42of the court undertaking, albeit that my Lord accepted that that was43


23/34



21

inadvertent; there had been an apology and that the matter should rest there.1

So that was necessary to have evidence in relation to that, but as I say, that is2

encapsulated within the 50%. In relation to the other breaches, in reality my3

Lord I think I would say that there is the four month point. In my submission4

actually what has happened is that unfortunately four weeks has been5transposed, dates, but that is by-the-bye. The actual time involved in those6

evidential factors is really very, very small. It is deminimis in the context of7

the claim because my clients have not run a case denying that they served the8

notices on 21st

July. They have not run a case denying that they did not serve9

the letters before or anything of that sort. So really there has been relatively10

uncontroversial evidence. It is just the consequences of it.11

12

MR. JUSTICE HILDYARD: What is weighing with me is standing back and13

reflecting what I said in my judgment, Mr. Moore was I think unhappy with14

some of my description, my worry is that in the way your clients proceeded15

with this - you know Section 105 is bowled out and then they come off it;16

confusion as to the identification issues; breaches of undertaking; undue haste.17

In the way that they have proceeded I worry that a case which ought never18

really - which ought to have been capable of some resolution between sensible19

men has had to be fought.20

21

MR. STONER: I agree, my Lord. In any case one can say between sensible men22- and I am not suggesting Mr. Moore is not sensible, but I do emphasize it is23

not a point that has troubled your Lordship because it was determined at the24

preliminary hearing stage. But for the first two years of this litigation, Mr.25

Moore did not accept that British Waterways had any regulatory authority over26

this stretch of waterway. So we could all, in many different ways, express27

hopes that if this had happened and that had happened the case would have28

been avoided. Mr. Moore had strongly held views and those were not capable,29

realistically, of agreement and the only way they were going to be sensibly30

resolved was unfortunately by the intervention of the court.31

32

MR. JUSTICE HILDYARD: Mr. Moore, do you want to add anything?3334

MR. MOORE: Yes, my Lord. I would like to come back to the question of the35

inception of the case and the question of the importance of the original main36

issue, which Mr. Stoner is attempting, understandably, to diminish in terms of37

the importance of the case as a whole. I would like to remind your Lordship of38

is that the very initial correspondence of what I had said to Mr. Johnson, and39

Mr. Johnson coming back. There were the two things. One was: I have got a40

right to be on the waterway; the other is I have got a right to moor to private41

property. Mr. Johnsons response, if you remember, paraphrasing, forgetting42about whether it is your land and you have got rights there or not, that does not43


24/34



22

give you rights to keep and use a boat on the waterway. He quoted the 19681

Act as those are the rights that have been abolished - and that was his case to2

support it. Leaving aside the riparian issue, the licence requirement because3

the 1968 Act is the one that - forget about that, that is what matters. That was4

the principal issue on which we went to trial.56

MR. JUSTICE HILDYARD: 105?7

8

MR. MOORE: Yes.9

10

MR. JUSTICE HILDYARD: But they come off that quite early.11

12

MR. MOORE: They have come off it after litigation and after I went to appeal.13

14

MR. JUSTICE HILDYARD: No. I am not sure that is right. I thought they15

dropped it before appeal.16

17

MR. MOORE: Well, you would have to look through the judgment of Mr. Martin18

Mann QC. It was only in my discussion ----1920

MR. JUSTICE HILDYARD: I have not got chapter and verse, but I did look into21

this and I think it was dropped early on, was it not, Mr. Stoner?22

23

MR. STONER: My Lord, I feel we are back to what I raised earlier which is the24

point about whether Mr. Moore was accepting before Mr. Mann that I was not25

arguing against public rights of navigation.26

27

MR. MOORE: Well, I do not want to go backwards and forwards on that28

obviously. I am just saying that that was the inception of the case. That was29

how I saw it, and in fact on that particular issue I did win. Just to refer to the30

business about the regulatory authority, I think that needs to be a little more31

specific. First of all, it forms no part of the case that I presented. I did, in32

subsequent pleadings, in response to BWs defence, say that I did not accept33that they were the statutory navigation authority. What I did make clear in that34

preliminary trial was that that was not the same thing as saying that they did35

not have any authority, or that this was not within their undertakings. I was36

taking perhaps a technical point, but that is a different thing from arguing the37

case on that basis. I was not arguing the case on that basis; I argued the issue38

itself because BW insisted on bringing it in as a result of what I had mentioned39

in one of the response to pleadings.40

41

MR. STONER: My Lord, in case it assists because it is a contemporaneous paper,42if you have bundle D2 the first tab, tab 30, is the judgment of Mr. Martin43


25/34



23

Mann. Can I ask you to turn to page 428? I will not go through this in great1

detail but you can see at line 10 the learned judge says to me, That is as I2understand. You put it at the hearing there is a concession that the public right3

of navigation exists to that extent, but it does not allow permanent mooring or4

anything which could be described as.... Then ultimately at line 15 I say:5Yes, and it is subject to British Waterways regulation being the regulatory6authority has also been established. So the point there was that as the learned7

judge himself understood there had been the concession on the public right of8

navigation right at the outset. What my clients were maintaining, as they9

maintained in the Court of Appeal in the concession, was that we wished to10

argue as to the effect of the subsequent legislation. I hope that that has been a11

consistent approach throughout.12

13

MR. MOORE: My Lord, I would just comment on it. That is the transcript; not14

the judgment.15

16

MR. STONER: That is the transcript, yes. It starts with the judgment at the tab and17

it is the transcript on the consequentials hearing from the hand-down of that18

judgment.1920

MR. MOORE: Exactly, at which Mr. Mann did say: Oh well I dont think they21were arguing against thatand when I said But Mr. Stoner had presented a22multi-layered argument against it he then said, Well, of course. That is what23

I would expect.2425

(For judgment on costs see separate transcript)26

27

MR. JUSTICE HILDYARD: Mr. Moore, do you want permission to appeal?28

29


MR. JUSTICE HILDYARD: Why?32

33MR. MOORE: On the strictly limited question, I think, of whether there is a right34

to moor that attaches to the land.35

36

MR. JUSTICE HILDYARD: Incidental to the riparian right, do you mean?37

38

MR. MOORE: Well, very specifically they are the rights that, as you know, were39

identified by the 1995 Act that have either come as a result of customary use40

or arise out of an incident of land, or which rights had been conferred. As your41

Lordship noted and removed ----4243


26/34



24

MR. JUSTICE HILDYARD: (vi)?1

2

MR. MOORE: Yes. So my position is that Section 105 did not affect the non-3

navigational rights and Mr. Stoner has recognised in subsequent submissions4

to your Lordship, having gone through all the legislation that could be of5possible relevance, and agreed that the rights that were conferred by the 17936

Act do remain intact. In view of the fact of that and the recognition by the7

1995 Act that these forms of rights can attach to that, I would say that is8

arguable and I do have a good case on that. Your Lordship did not address, for9

example, the evidence for the customary use of this place for moorings, even10

though you did refer to ----11

12

MR. JUSTICE HILDYARD: I had to abide by the confines of the case in hand as13

defined, which did not include proprietary rights.1415

MR. MOORE: My Lord ----16

17

MR. JUSTICE HILDYARD: If I am wrong in that, I am wrong, but I had thought18

that although the question of riparian - whether it was an incident of riparian19

right should be argued without it being conceded that you went out to assert20

that, whatever your status - i.e. whether you were in occupation, possession or21

anything else. Then subject to that, the only question was whether you could22

show a right pre-existing 1793. I did not feel that you could. Otherwise it was23

a question of the regulatory power. Maybe I am wrong, but that is what my24

understanding was.2526

MR. MOORE: What I understood you to present, your Lordship, was some avenue27

whereby there was a discernible right, on any basis, that does attach to the28

land.29

30

MR. JUSTICE HILDYARD: I will ask Mr. Stoner, because I would be31

discontented if I have not approached my task properly. My understanding32

was that both of you agreed, and that is why we did not trawl through the33various grants, etc, which comprise at least two volumes, that we were not to34

get into rights of property.35

36

MR. MOORE: Yes, but the ----37

38

MR. JUSTICE HILDYARD: Is that right?39

40

MR. STONER: That is absolutely right as reflected in the written concessions that41

you required to be handed up, yes. Of course, it was reflective of..... On this42side we were very content because we said, as my Lord has observed in the43


27/34



25

judgment, as originally pleaded this is a case about navigation, or my clients1navigational control, and we have established that.2

3


5MR. MOORE: But the ----6

7

MR. JUSTICE HILDYARD: If you wish me to clarify it, as I think I did this8

morning, that if subsequently you were to establish a prescriptive or customary9

right, I cannot stop you doing that and nothing that I have said is intended to10

decide one way or the other. I do not think I have decided that.11

12

MR. STONER: No. The only point on customary rights is I think there is a13

mention in the judgment because in effect, as I understood it, Mr. Moores14evidence was those plans and some photographs of the mooring posts along15

there. I think my Lord does mention that you really do not derive anything16

from those. In my submission, that is absolutely correct.17

18

MR. JUSTICE HILDYARD: I think for your purposes, and I think you have done19

this, I suspect there would be no alternative but to trawl through the20

entitlements as recorded in the past - and I do not think we have undertaken21

that.22

23

MR. MOORE: But what we did do was go through the terms of the 1793 Act24

which did give rights to the riparian owners to construct mooring places, and25

those are intactby Mr. Stoners ---2627

MR. JUSTICE HILDYARD: This is Section 82 in a sense. I think I dealt with28

those and I did not agree with you.29

30

MR. MOORE: Understood, my Lord.31

32

MR. JUSTICE HILDYARD: But you want to appeal on the basis that 82 through3388 of the 1793 Act conferred rights which have persisted.34

35

MR. MOORE: Yes, my Lord, although I did not persuade your Lordship ----36

37

MR. JUSTICE HILDYARD: No, of course.38

39

MR. MOORE: ---- on that and on the customary rights.40

41

MR. JUSTICE HILDYARD: Well, you must not be shy because judges at first42instance get very used to the process of appeal. You must not be shy and if43


28/34



26

you think there is a point which needs to be tested further, do not be shy about1

that; that is perfectly accepted. But I think, unless I have misappreciated my2

task, I think you must be bound by your written concession in that respect.34

MR. MOORE: Yes, my Lord, but my written concession was not to take any point5over the ownership of the land; the concession on my part was ownership of6

the river bed - not over the land itself. The rights that were granted by the7

1793 Act in particular were rights that were granted to the adjacent land owner8

in circumstances where the river bed was in the ownership of the ----9

10

MR. JUSTICE HILDYARD: That is true. You say The Claimant does not assert11or rely upon a claim to ownership of the bed of the River Brent/GUC as12

entitling him to moor any vessels. All right, so you want to appeal on that.1314

MR. MOORE: Yes. My Lord, there is also an issue which comes from the15

decision I am appealing against that there were no such rights, which is to say16

that thereby we were moored unlawfully.17

18

MR. JUSTICE HILDYARD: I am not following that. Sorry. Take your time.1920

MR. MOORE: One of the points that I sought to make was what bodies or21

authorities, might be in a position to authorise this sort of use of land, because22

there is no statutory authority in British Waterways to authorise such. The23

point I did make was that the local planning authority does have that power24

and that power is of course immaterial as far as the land ownership is25

concerned. They are the ones who can give the permission or deny26

permission. They can deny that to British Waterways, as I made the point. So27

what I am saying is that even if, which I do not accept, that I do not have a28

right to say: these boats can moor to my land, the local planning authority29

have the power to say that land can be used for moorings.3031

MR. JUSTICE HILDYARD: No. I do not think I am touching on that. It is a bit32

unfair of me to say this, but as to parts of this you want the Court of Appeal to33shoot fish in a barrel, as it were.34

35

MR. MOORE: Shooting fish in a barrel was, if I recall, my Lord, in respect of36

trying to assert a right to moor permanently. That is a completely different37

thing from asserting that there are rights that have been granted where you are38

not actually..... I mean, for example, whether it is the Local Authority giving39

you a certificate of approved use for moorings here of one sort or another. The40

whole temporal question does not even enter into it.41

42


29/34



27

MR. JUSTICE HILDYARD: I have tried to clarify that. I am not quite sure the1

exact parts of the judgment and the exact decisions, because reasoning can be2

wrong and reviewed, but it is really the result that has to be appealed. Which3

result are you appealing?4

5MR. MOORE: The result is that there is no lawful authority for boats to be moored6

to my home.7

8

MR. JUSTICE HILDYARD: Right. Mr. Stoner, what do you say?9

10

MR. STONER: My Lord, in relation to the judgment my Lord has expressed his11

reasons. They are clear. I do not understand Mr. Moore to put forward any12

particular reasons as to why he may suggest that they are wrong as distinct13

from the fact that he does not agree with them. In my submission, this is a14

case where it is appropriate to refuse permission. Of course, that does not15

deny Mr. Moore the opportunity of making an application on paper to the16

Court of Appeal and it may well be that he will be able to formulate any17

particular points rather more particularly. It is rather difficult to respond18

because I am not sure I fully understand what is being sought. But in so far as19

it is suggested that Mr. Moore wants to appeal the riparian land owner not20

having an entitlement point, and I think it was Sections 82 through to 85 and21

then Section 90 something. In my submission there is nothing in those. There22

is no reason to suggest why my Lords reasoning is wrong in any of those.23

24

MR. JUSTICE HILDYARD: What do you say about the more general point that25

this is complex. The point put in his written submissions - that this is complex26

legislation on which in effect different minds could differ?27

28

MR. STONER: As a general view there is complex legislation, but if one breaks it29

down, the riparian land point is not a point of legislation; it is a pure point of30

common law. Then aside from that the points on the 1793 Act and the sections31

in the 80s and the 90s are just pure points of construction on those particular32

statutes. Again, there is a complete absence of any reason as to why my Lord33is said to have been wrong in reaching the conclusions that my Lord reached.34

And, I might add, I took a fairly light touch during the trial, but there was a35

reason for that. In my submission, it is not really seriously arguable that there36

is any assistance in those provisions.37

38

MR. JUSTICE HILDYARD: In the 82-85?39

40

MR. STONER: Yes, and the 90 something.41

42MR. JUSTICE HILDYARD: I think I did deal with it.43


30/34



28

1

MR. STONER: You most certainly did because one of the points you mentioned as2

well was that I said in so far as there was a right conferred, that then that was3

correct, although you did not accept it in relation to certain provisions because4

it was limited to navigation. I totally accept that. I only intended the5navigation point, but you certainly dealt with those provisions, absolutely.6

7

MR. JUSTICE HILDYARD: Anything more, Mr. Moore?89

MR. MOORE: I would just say that in so far as I have referred to not only the 179310

Act but the authority of Parliament in the 1995 Act, that in itself does ----11

12

MR. JUSTICE HILDYARD: Show me that.13

14

MR. MOORE: Sorry.15

16

MR. JUSTICE HILDYARD: What is your point there so that I understand it, in17

case we can crystallise a point on appeal.18

19

MR. MOORE: It is the 1995 Act and it is Section 20 that is the one I am referring20

to, my Lord. It is entitled Private rights of mooring. The sequence is21slightly odd because I would have thought Section 20 should come after 2122

because it is referring to the powers granted under Section 21. Section 21 was23

power of British Waterways to certify the safety or otherwise of mooring24

apparatus, if that was installed in the navigation. Section 20 is saying that in25

applying the powers that are granted to them in Section 21 they must be26

careful of interfering with private rights of mooring that arise through27

customary use or from an incident of land, and the context of that, as I28

certainly did in the written presentation, I included quite a bit of the Select29

Committee minutes to show the background of that. That Section 20 was30

affirming the rights such as the 1793, 88 and so on, very specifically. Section31

20 is a direct reflection of that, which I submit is actually very evident within32

Section 20 anyway, without having to go beyond. So I am saying that33Parliament, in Section 20 of the Act, recognised that there were conferred34

rights that were maintained; they were not going to abolish them as they had35

been asked to, and further to such conferred rights there were rights incidental36

to use of land, in England and Wales at least, and that customary rights of37

mooring should also not be interfered with, even with the powers that38

Parliament was giving to British Waterways in respect of control of moorings.39

40

MR. JUSTICE HILDYARD: I think the difficulty in this case is identifying41

precisely what the point of appeal might be. I think that although I think it fair42to record that I found this an interesting but difficult case in very complex43


31/34



29

legislation, at the moment I find it difficult to crystallise what the particular1

point on appeal would be. I think that in those circumstances I am going to2

acceded to Mr. stoners invitation to suggest that if you do crystallise the point,3then nothing I say can preclude your entitlement to seek permission from the4

Court of Appeal for such parts of the order as you consider are liable to appeal,5and leave it at that.6

7

MR. MOORE: Can I just clarify what it is you are ----89

MR. JUSTICE HILDYARD: I think you must go to the Court of Appeal. I am not10

the final port of call. I put that very badly and I apologise. You have quite11

rightly asked me for my permission to appeal, and I have said, in the particular12

circumstances, no. But that is not the final say. You are entitled to seek the13

permission of the Court of Appeal in order to appeal. They will look at the14

matter afresh and one of three things will then happen. Firstly, they may15

refuse it on paper, in which case you get a right to make oral submissions as to16

why they are wrong to refuse. They will either submit to those or disallow17

them, and if they disallow them that is your lot. Okay? The second is that18

they allow you permission, in which case the matter will proceed on that19

footing. The third possibility is that they will say: we will hear oral argument20

on permission to appeal and if we are impressed the appeal will take place21

immediately thereafter; so it is a conflated process. The long and the short of22

it is that although you must be careful with the time limits - and, as Mr. Stoner23

has been extremely constructive, I believe, throughout, if you ask him he will24

tell you where you can find them - I think it is best that you crystallise what it25

is you wish to appeal and seek to interest the Court of Appeal in it. Is that26

tolerably clear?27

28

MR. MOORE: Yes, thank you, my Lord. I have had help from Mr. Stoner.29

30

MR. STONER: Yes. I have in fact described those very time limits before to Mr.31

Moore. I will happily do so again. My Lord, so that I am clear on the drafting32

of the minute, was my Lord refusing the application for a payment on account?3334

MR. JUSTICE HILDYARD: No. What do you say about that?35

36

MR. STONER: My Lord, if one puts together the 105,000 and then out of that37

there are going to come some costs because of the things that you have....38

Well, the costs of Mr. Justice Floyd we know are not in that, but the costs of39

the third statement of Mr. Johnson are. But if one takes 100,000 roughly and40

says therefore my clients entitlement is going to be a maximum of 25,000,41

10,000 is still some way below the 50% rule of thumb, but if my Lord42considered that to be too high I am not going to press particularly at this time.43


32/34



30

The other way of doing it is to simply say I was asking for 50% and 10,000. I1

have got 25% and it must follow that I should get 5,000.2

3

MR. JUSTICE HILDYARD: Can I just ask you while you are on your feet, I am a4

bit bothered about these outstanding costs. I do think that on any application to5the Court of Appeal that issue should be taken into account as a matter on the6

day. I would have taken that into account because ----7

8

MR. STONER: My Lord, certainly when we were before Master Bragge it was9

raised. One of the difficulties my clients faced before is that if they sought,10

which may well have been permissible under the CPR, it would have been a11

contested matter - sought some form of stay on Mr. Moores claim, the12difficulty is that that would have necessitated the vessel staying where it was.13

So that was a practical difficulty. The fact that there are outstanding costs, my14

Lord has seen I have made complaint about that and the offer that has been15

made to pay those off. It is a matter of concern on this side, and it may well be16

a matter, if the matter proceeds further, to raise in the Court of Appeal.17

18

MR. JUSTICE HILDYARD: Well, I will leave that to you. All I would say is that19

if I had had a definable point for appeal, one of the things I would have20

considered is, in any event, to make it a condition that the amount should be21

paid.22

23

MR. STONER: So that Mr. Moore is clear, if he does seek permission to appeal,24

we will say to the Court of Appeal any permission should be on the basis at the25

very least that outstanding payments on account be paid into court at the very26

least, if not to us.27

28

MR. JUSTICE HILDYARD: Yes. I will come back to that. Mr. Moore, what do29

you say about payment on account?3031

MR. MOORE: My Lord, I would have thought it would have been appropriate to32

have waited - adjourned until the result of an appeal if granted.3334

MR. JUSTICE HILDYARD: I think I must follow - however misplaced the logic35

of my own thought-process - and I think I am going to leave that to the Court36

of Appeal. Therefore, I think Mr. Stoner has made a generous quasi-almost37

concession of 5,000 and I am going to direct that that be paid on account38

because I do wish to emphasize that this process is not for free. Now, the only39

thing that remains, since you are a litigant in person, is the question of a stay40

even though I have refused permission, pending application for permission.41

42


33/34



31

MR. STONER: Yes. What I would say is the permission application, I think, has1

to be 21 days.2

3

MR. JUSTICE HILDYARD: And you have given three months.4

5MR. STONER: We have given three months. If Mr. Moore wants to make an6

application to the Court of Appeal that can easily be included, but that would7

be the appropriate course. If there is an application extant, in other words if8

the Court of Appeal have not concluded the permission application before the9

three months is up, then of course it remains open to Mr. Moore to write to my10

clients and ask forbearance and, if they do not give it, to make an application.11

12

MR. JUSTICE HILDYARD: Mr. Moore, at this late stage in the process do you13

understand what is going on here? May I explain?1415

MR. MOORE: Yes please.16

17

MR. JUSTICE HILDYARD: You would not be entitled to a stay pending appeal,18

given that I have declined to give permission to appeal and said you must go to19

the Court of Appeal. However, were there an imminent threat that your right20

of appeal would be eroded unless I gave a stay pending your application to the21

Court of Appeal to see whether they are more interested in it, then I would22

have jurisdiction to grant a stay so that the ring is held between now and a time23

that the Court of Appeal have decided whether to give you permission. Mr.24

Stoners point is that there is no such risk or urgency because whatever is done25now will not take effect in substance in terms of your having to move, or26

Gilgie having to move, for three months. In that three month period ifyou27are minded still to seek permission to appeal you can couple to your28

application for permission to appeal a stay of the order which I will make.29

Therefore it is wrong for one court to make irrelevant the findings of a superior30

court, but I do not think there is a risk in that regard. Have I explained it31

sufficiently?32

33MR. MOORE: I believe I understand. Thank you, my Lord.34

35

MR. JUSTICE HILDYARD: I am sure Mr. Stoner will help you. Is that it? It36

only remains for me to thank you both most earnestly for all the help that you37

have given me. I am much indebted to you. It is a very complex area and you38

have been very patient with me. I hope I have not caused any inconvenience39

today which took rather longer than I had hoped.40

41

MR. MOORE: My Lord, thank you.4243


34/34

MR. STONER: Thank you, my Lord. I will draft up the minutes and send it to Mr.1

Moore and then if we can agree, we will send it through to your clerk. In the2

past it has not always been possible to agree minutes, but I hope today it will.3

If we do get into an area of disagreement, so that it is flagged up, I have a five4

day action starting in Birmingham on Monday so I might have certain5difficulties next week, but I will email your clerk.6

7

MR. JUSTICE HILDYARD: We will have to fix if I cannot solve it by email. You8

would have to fix sometime early in the morning, quarter to 10, when you are9

back from Birmingham, which will be the week after next.10

11

MR. STONER: Yes. I am very much obliged.12

13

MR. MOORE: Is there a time limit we have in order to agree this?1415

MR. STONER: I would hope to be in a position to top and tail this when I go back16

to chambers. Then after running it past those instructing me, I will email it to17

Mr. Moore tomorrow.18

19

MR. JUSTICE HILDYARD: Yes. The general rule is that we should get this order20

done and dusted, but bearing in mind your position and bearing in mind Mr.21

Stoners commitments, if this is not settled before the week after next, then22that would be understandable.23

24

____________________2526

27

28

29

30

31

32

3334

handing down afternoon moore_v__british_waterways_16.2.12_(pm_pro)

Documents