Moore v BWB, Handing Down Proceedings, March 2009

7/29/2019 Moore v BWB, Handing Down Proceedings, March 2009

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IN THE HIGH COURT OF JUSTICECHANCERY DIVISION

Case No. HC/07C02340

Court No: 15

Royal Courts of JusticeStrandLondon

WC2A 2LL

Thursday, 12th March 2009

Before

MR MANN QC SITTING AS DEPUTY JUDGE

NIGEL PETER MOORE

and

BRITISH WATERWAYS BOARD

Transcribed from the official Tape RecordingUbiqus

Cliffords Inn, Fetter Lane, London EC4A 1LDTel: +44 (0)20 7269 0370

MR MOORE appeared IN PERSON

MR C STONER appeared on behalf of the DEFENDANT

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WHOLE HEARING

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Court rises.

JUDGE MANN: You have been provided with the approved judgment now. I understood

there are no typographical errors or anything of that kind, so this will stand as the

authentic judgement of the Court. I have a number of copies. The court will need

one, so I will hand that down. If the shorthand writers or anyone else needs them,

then here are another three. Please have a coloured copy of the plan of the

[inaudible] in them. There is another one here.

MR STONER: The approved judgment hasnt yet reached us.

JUDGE MANN: Well it should have done. In which case, these can be taken as the

approved judgment.

MR STONER: Thank you very much.

JUDGE MANN: It should have been e-mailed to you yesterday afternoon.

MR MOORE: Certainly, I didnt receive any e-mail.

JUDGE MANN: For that then, I will apologise on behalf of whoever is responsible, other

than myself and make it my responsibility.

I have been provided with a draft minute of order, Mr Moore, have you seen that?

MR MOORE: The draft minute of order, My Lord?

JUDGE MANN: Yes.

MR MOORE: Yes, I have.

JUDGE MANN: Do you have any observations to make on that?

MR MOORE: Yes, My Lord. With respect, but predominantly to issue number one.

Because I am finding myself slightly bemused, in terms of the judgment, with what

you had said in the course of the judgment and with the fact that it is essentially,

issue one is not really being answered.

JUDGE MANN: Well it has, as a matter of fact. Issue one is set out, in fact, in the part

minute of order but it is also at the back of the approved judgment. And the

question the Master raised, order to be determined as issue one, was whether the

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rights concerning the Waterway between [Becks Mill?] 0:114 and the River

Thames, as describe in the Grand Junction Canal, remain in force and unaffected by

the provisions of the Transport Act 1968. And the answer to that is that the private

right of navigation, which was what the Act created, was repealed by the 1968 Act.

MR MOORE: Yes, My Lord. What my request had been in terms of this issue was that

the rights that were described, the rights that were pre-existing, did remain in force

and were not repealed. Not in respect of any-

JUDGE MANN: -if you mean the public right of navigation, then that is not affected

because the private right is the only right which was created by the Act of 1793.

The existing public right was not destroyed by the Act of 1793 but continues so far

as exercise.

MR MOORE: Well My Lord, yes, I am happy that you did so find that, but that was a

large part of my argument respecting this.

JUDGE MANN: Yes, well the public right of navigation will still exist but whether it can

be used to full advantage is another matter.

MR MOORE: Well, I understand that, My Lord. Obviously this, as we discussed in the

hearing was a preliminary, on the preliminary issues, of which this was one. The

consequences of that, as to whether it was going to assist me in my case was yet to

be determined in the case, as it followed on from these preliminary issues. So it was

important that if it found that the rights, including predominantly the public right of

navigation, does still exist and those private rights, whether navigational or riparian,

as did exist at the time; and as described as pre-existing-

JUDGE MANN: What I have done, Mr Moore, is to answer the question. The rights

concerning the waterway, as described, and the rights concerning the waterway, as

described, include the public right. But the one right which it creates, which has

been dealt with by the Transport Act 1968, has been repealed. So you have the

answer. If you want the answer to be extended, I will have to hear Mr Stoner about

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it, to the effect that the public right as described in the Act continues to exist, then

so be it. Riparian rights are clearly not rights with which you are concerned for the

very reasons that I said in the judgment. And the riparian rights are not described,

as I recall it, in the 1793 Act.

MR MOORE: Well, My Lord, with respect, I do disagree on that score.

JUDGE MANN: But the judgment itself deals with the question of riparian rights, as you

have read.

MR MOORE: I have read that, My Lord, yes. But, as I have attempted to have that issue

couched-

JUDGE MANN: Well it was not cast, as I understood it, by the question. Maybe the

question was deficient?

MR MOORE: If that is so, My Lord-

JUDGE MANN: If the question had been something like: Whether the rights, that is to

say the right, if any, created by the Act and/or the public right of navigation and/or

the riparian rights, concerning the waterway, as described or otherwise affected by

that Act, remain in force and unaffected by the provisions of the Transport Act

1968. That could have been answered in that way. So the answer would have

been: Public right not affected, private right repealed, riparian rights not affected.

MR MOORE: Well, that is effectively-

JUDGE MANN: -and it may be that that is something you can agree with Mr Stoner, I do

not know, he may not want to agree that but that is the result of the judgment but

the question is answered, in my view, the first issue was answered by the answer

that I have given.

MR MOORE: My Lord, obviously from what you have added there is something that I

would have agreed with, if we are saying, that such an answer was only possible had

I phrased the question more-

JUDGE MANN: -well I do not think you mis-phrased it, I think, presumably the Master

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phrased it, did he, or?

MR MOORE: -with help, but basically myself, in agreement Shoosmiths, My Lord.

Because I was trying to embrace all of the rights, as described.

JUDGE MANN: Well the problem is [inaudible] language and, if possible, I can default it

on that part. The right, as described-

MR MOORE: -were numerous.

JUDGE MANN: Well, the rights concerning the waterway were not that numerous. The

rights concerning the waterway concerned how and whether you can go up and

down it as a private individual or in the public right, as hitherto. So, as hitherto, if

exercising the public right in so far as that public right is still exercisable and

continues to subsist. But the private right, which is what we seem to be more

concerned about, has gone.

MR MOORE: My Lord, I would disagree that I am, at all, concerned with a private right

of navigation. I am concerned principally and, of course, in subsequent trial would

be what I would develop from, that there was a reason why the public right of

navigation is germane to my case; and I would argue as to the unaffected riparian

rights as to they being objectable. The private right of navigation, in so far as there

are any that were created by the Act, is not important, for so long as, the public

right of navigation is concerned.

JUDGE MANN: Well the answer to the question raised by issue one is fairly dogmatic

about the private right. It says nothing about the public right and so it, by necessary

implication, the public right continues to subsist. In so far as it can be exercised.

So there is not a problem is there?

MR MOORE: Well the problem I would say, My Lord, would be in terms of whether or

not it is found that I am right on issue one or-

JUDGE MANN: -if during the further conduct of this proceeding, you will be arguing that

the public right gives you the rights that you wish to claim and assert, then this

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result does not affect you. If all what you want to do in the further conduct of these

proceedings is to assert a private right, then this answer does affect you because it

has gone as a consequence of the 1968 Act. I think that that will be common

ground.

MR MOORE: I understand that, My Lord. But there is the question of costs in this case

as to whether I have succeeded in issue one or not.

JUDGE MANN: Yes, I follow that. But I do not think that Mr Stoner has argued that the

public right had gone.

MR MOORE: Well he was doing so much.

JUDGE MANN: I do not think he was. You can point to how he put it that it had gone.

He might have said, during the course of the proceedings, that it would not be

exercisable, fully exercised because there will be those new cuts where it could not

be exercise because it did not run through those new cuts.

MR MOORE: Well there was a multi-layered argument from Mr Stoner.

JUDGE MANN: Yes, of course there was because that is the way one would have

expected him to go about it.

MR MOORE: Correct, My Lord, but I cant say more than I desired to have the answer to

issue one, specifically embracing all the I have had to say, yes, those rights

described belonging in Section 43, that were described as pre-existing must,

necessarily, be unaffected by the Transport Act; even though there are such rights,

as might be private rights, as might have been created-

JUDGE MANN: Yes but the way I have answered the question, leaves those rights in

existence. The only right that I have said has been repealed by the Transport Act is

the right created or conferred by the 1793 Act, which is the private right.

MR MOORE: I beg your pardon, My Lord?

JUDGE MANN: -is the private right.

MR MOORE: Yes.

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JUDGE MANN: There was never any argument before me that any right, which was not

created or conferred by the 1793 Act, had been repealed.

MR MOORE: Well, my positive arguments before you, My Lord, were to the effect that

there always had been a public right of navigation and that that still continues and

that there were freedom from charges.

JUDGE MANN: But freedom from charges has got nothing to do with the pre-existing

rights. It has got everything to do with the private right.

MR MOORE: Well, My Lord, it was described as pre-existing.

JUDGE MANN: No, I think if you read the Section properly. Let us go back to first

principles, the public right of navigation does not entail paying for that right, unless

there is some legislation which requires a payment to be made. So far as the

1793 Act is concerned it created, put it this way, it empowered the canal company

to impose charges. So that was a charge super-imposed on the private right,

except in relation to those exempted from paying those charges, which were those

who had the benefit of the private right, newly created.

MR MOORE: I follow the argument, My Lord, I would dispute that.

JUDGE MANN: I can follow that you dispute it, but if the right created is the right which

has gone. No other rights have gone, as a consequence of the Transport Act

operating on the 1793 Act. That is the substance of the question, how has the 1968

Act operated on any right created or conferred by the 1793 Act, because that is the

only way it can operate.

MR MOORE: Yes in most terms, My Lord, I have no argument with your phraseology. I

am basically, and probably repeating myself here, saying that it is only by implication

agreeing with the positive aspects that I was arguing for. Perhaps I should wait

until the question of the costs comes up as to whether that makes any difference

because it seems to me, reading through what you had said and listening to you

now, what I saw it as to an answer to issue one, is answered in my favour.

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Whereas, on the issue of BWs authority, it is against me.

JUDGE MANN: Let us come to it when the question of costs is raised, because I see

where you are leading and I quite understand that.

MR STONER: My Lord, on the fourth paragraph one, obviously, my proposal was as per

paragraph one. I have heard what Mr Moore has had to say, I think it is primarily a

cost point not a reform of the order and in my respectful submission, paragraph one

not only is, have I lifted that unashamedly, from the end of My Lords judgment but

the reason for that is that that reflects My Lords judgment, in the way My Lord has

approached the question.

JUDGE MANN: Yes, there would be no difficulty in supplementing the consequences of

that finding.

MR STONER: And, obviously, the judgment would have to be considered in the context

of these being preliminary issues.

JUDGE MANN: Yes, well I must say, I was a bit baffled by how it could be a preliminary

issue and the case still continue.

MR STONER: Well the reason, in fact, in paragraph two that I have simply asked that

there be a case management conference is that the pleadings were obviously

somewhat voluminous in this case but our initial reaction is that it may well be the

case, where our initial reaction is that there is nothing left in Mr Moores claim. It

wont, as My Lord says, strips it back to its bare bones, its that my clients werent

entitled to serve Section 8 notices on the vessels and seeks a declaratory injunction

relief accordingly. We say, in light of these preliminary issues, there is nothing left.

And, indeed, that is why we have pushed for the preliminary issues so that all of the

other issues fall away.

Therefore, we are asking for a CMC so that we can actually reflect that it may well

be that the appropriate course for my client is to simply make an application seeking

a dismissal of the claim, in judgment on his counterclaim. But that is not a matter

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for today, but certainly-

JUDGE MANN: Well, it is something that I could do. I am not inviting you to do it

because I think it would be proper and sensible for Mr Moore to have the

opportunity to reflect on the way this case is going. Especially in light of what he

has just said.

MR STONER: Yes, because certainly it is my understanding, looking back at the pleadings

that this perhaps is edging onto perhaps a costs point. When one looks at the

particulars of the claim, Mr Moores pleading is very clear, the original pleadings

are plain. He says there was certain public rights of navigation and riparian rights

and they have not been affected by the 1793 Act. In public rights of navigation it

has always my clients pleading position, that in respect of the public right of

navigation that does not extend to a right to permanently moor.

Now that is obviously pregnant with, an acceptance that there is a public right of

navigation but saying that, that does not assist Mr Moore.

JUDGE MANN: That is, as I understand, you put it at the hearing. There is a concession

that the public right of navigation exists to that extent but that it does not allow

permanent mooring, or anything which could be described as.

MR STONER: And is subject to-

JUDGE MANN: -or shall we say, not rightfully the exercise of a riparian right.

MR STONER: Yes, and it is subject to on British Waterway regulation being the

regulatory authority, as has also been established. But just dealing purely with the

terms of the Order I left for that I respectfully suggest that I understand

Mr Moore may disagree, but that is a slightly different matter. But the form of the

Order paragraph one accurately reflects My Lords judgment and should stand.

JUDGE MANN: Mr Moore, you have heard that. Is there anything you wish to add to the

debate about paragraph one of the draft minute of order.

MR MOORE: Yes, My Lord. It does I believe need to be slightly clarified and I have

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obviously been at fault in being able to specifically say exactly why there are reasons

for a public right of navigation that, nothing to do with the actual mooring.

Because the Section 8 notices are basically relying on one or both of two basis.

One of them is with the craft being unlicensed and the other is being on an

unlicensed mooring. And the issue of a public right of navigation has got nothing

to do with the actual mooring issue at all. It has to do with the need to pay for a

licence to be on public waters.

JUDGE MANN: Well I understand your point but that is something I think that you will

have to take up with the CMC because that will be a basis upon which you will

explain to The Master that there is something left in these proceedings. Do you

follow what I am saying?

MR MOORE: Yes.

JUDGE MANN: So, whereas I could dismiss the proceedings today, it appears to me, I am

not going to do that. I am going to defer to the draft minute of order and direct that

there be a CMC. If anything arises from that you can bring it back to me but I hope

it would not.

MR MOORE: My Lord, there are other-

JUDGE MANN: Well I shall make an order in terms of paragraph one and I shall make an

order in terms of paragraph two. There was then the question of a small

amendment, which I have dealt with at the time. So paragraph three of the draft

properly deals with that. The costs thrown away will be paid by the British

Waterways Board, but I imagine that will not be very much, if anything at all. There

is then the question of costs for the preliminary issues, which you have already

started arguing. Do you wish to say anything more about that?

MR MOORE: I dont think so, My Lord, other than I perhaps wanted to clarify that, in

those areas within your judgment, where it appears to me that you have somewhat

gone beyond the preliminary issues to determine whether or not the moorings were

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legal or not and then come back and said, well in that case, the public rights of

navigation etc. arent really relevant.

If I did not formerly request permission to appeal against such items, within your

judgment, that arent appearing in the order but are within your judgment. Would

that be necessary, is that sustainable?

JUDGE MANN: I hope the order is only that I get to decide the issues directed to be

determined, that what it is. No doubt, the judgment will be influential later, but I

have only decided those questions.

MR MOORE: Well thank you My Lord, that makes that much clearer yes.

JUDGE MANN: So on those questions; it appears to me, that you have not succeeded on

the preliminary issues. You have succeeded, in so far as it remained an issue in

establishing that public navigation rights continue to subsist. But, as I understood

it, it was not being contested that those public navigation rights did continue to

subsist.

MR MOORE: That is putting me in a slight-

JUDGE MANN: I am not intending to put you in a spot, but that is how I understood the

submissions.

MR MOORE: I am grateful My Lord. I am merely, elucidating[?] the fact that I find

myself in a slight quandary as to what my reaction should be in that discussion on it,

with the issue one, is in accord as I would see it, with what I have been wanting to

argue and yet it has been found against me.

JUDGE MANN: One thing you did want to argue was that no charges could be imposed

under the Act, as a consequence of the 1793 Act.

MR MOORE: And-

JUDGE MANN: And it follows from the determination that there is no exoneration from

any charges which the regulatory body can impose because the 1793 Act was being

that part of it, and in fact all of it, so far as rights are concerned has been repealed.

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So on that part you have lost.

MR MOORE: Well, that would be implicit-

JUDGE MANN: It is implicit. But that was what you recon was important to you thought

was it not.

MR MOORE: It is My Lord. But it is only, I would submit, only implicit in the

understanding of which private rights were granted as opposed to confirmed.

JUDGE MANN: The only right which carried the right to exoneration from charges, which

otherwise would have been imposed under the 1793 Act, was the one that was

created.

MR MOORE: And, as I do believe, I did bring out in the hearing My Lord, the initial

British Transport Act did acknowledge that this Section was to be free, which in my

argument demonstrates that parliament in 1947 did so agree that these should

continue.

JUDGE MANN: In 1968, anything that arises from the 1793 Act affecting navigation of

the Waterway ceased to be effect in statute law. What did not cease was any

consequences of the exercise of the public right.

MR MOORE: But, my Lord, in the 1968 Act it said, as regards charges, it confirmed the

fact where charges had been previously forbidden, that they should stay so. Which

as late as amendment in 2005 remains on the statute books.

JUDGE MANN: It is a very short Section is it not?

MR MOORE: Yes.

JUDGE MANN: And what it says is that any rights created by a private Act would be

repealed. And a right that is created is a right not to be charged in relation to the

exercise of the private right.

MR MOORE: There are two separate Sections that we are talking about, My Lord.

JUDGE MANN: Which one are you talking about?

MR MOORE: I am talking about in the 1968 Act where it refers to charges, which was

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quite a separate issue from the rights of public and private rights of navigation.

JUDGE MANN: Section 57?

MR MOORE: I would have to rely on Your Lordships memory, My Lord.

JUDGE MANN: That is the regulatory provision, which empowers the company to impose

penalties and fines of various kinds, which would not affect the private right,

exercise the private right.

MR MOORE: No, but it would affect the ability to make charges for the exercise of a

public right of navigation.

JUDGE MANN: Well, I do not think so. Because matters of the exercise of the public

rights is all dealt with in subsequent in relation to British Waterways Acts, in

particular the 1995 Act or is the 1975 Act. Those are the Acts which impose the

regulatory regime which now subsists.

Anyway I do not think there is going to be profit in this. Maybe that is something

you will have to take up at the CMC because it looks to me that you are going to be

arguing again that the Section 8 notices were unlawful because they ignored the fact

that there is some statutory provision somewhere, which exempts you and the boats

that you are interested in, in some way, from having to pay and have licences.

Then Mr Stoner will look at the judgment and say, well the private right has gone

and the public right of way subsists because I did not seek to challenge that it did

subsist. And there will be an argument about whether an Act, which is no longer in

force, to the extent that it created private rights, helps you out. That is what will

happen at the CMC and I think that is probably right is it not Mr Stoner?

MR MOORE: One thing, My Lord, if as is coming out in this discussion, I am going to be

constrained by the findings in-

JUDGE MANN: Well the only way in which this will constrain you is that the private right

has gone. And that means the whole and every incident of the private right, which

would include the exoneration of any charges.

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MR MOORE: Including of the rights that had existed previously.

JUDGE MANN: No, only the private right because the judgment does not say that the

public right has gone. It says quite to the contrary, it says it is still there. All that

happened was that parallel rights were created, even in so far as necessary, to make

sure that the canal can be used, in particular, by adjoining and neighbouring owners

between Becks' Mill and the mouth of the Thames, that is what the judgment is

saying and that is how the answer was arrived at.

MR MOORE: Well then in, without-

JUDGE MANN: -the rest of the issues are perfectly straightforward, you do not have any

problem with those?

MR MOORE: Obviously, I disagree with issue three but with issues two and four I have

got no problem with that whatsoever. I do not even, necessarily, have a problem

with issue three either, as I said at the-

JUDGE MANN: -well I would not go any further if I was you, it is there and, unless and

until it is successfully appealed. You can argue about it before the CMC is to

whether that stops you from continuing with your proceedings, but it is there, as a

determination. So if you start saying to me now that you do not have a problem

with it, then that is not going to help you is it?

MR MOORE: Thank you My Lord. But really what I am looking at now, from how I can

proceed, if you like in a practical way, is whether or not I need to list point to apply

for legal aid in more effective representation to which I am entitled.

JUDGE MANN: You are one of the fortunate few.

MR MOORE: I do not know whether it is necessarily fortunate My Lord.

JUDGE MANN: Well it is fortunate to be entitled to have funded legal assistance, because

most people are being deprived of that, over many years of government cut backs.

Certainly, in civil jurisdiction.

MR MOORE: Yes, My Lord. Well obviously apart from anything else, merely this affects

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my own [inaudible], if you like. And the question would be whether or not it was

necessary to ask leave to appeal and whether, just on the judgment now, and/or the

cost issues, in order to-

JUDGE MANN: Well I will determine the question of costs now. Do you want to say

anything about costs now?

MR STONER: My Lord no, I had come prepared through the pleadings but, in my

submission, the costs of the preliminary issues should be dealt with today and the

court obviously should look at it from the perspective of who has won the

preliminary issues.

In my submission, there is no doubt that my client has won issues two, three and

four. The public right of navigation is in fact also an element of part one, in so far

as, as I mentioned earlier, Mr Moores originally pleaded case was to identify that

there were public rights of navigation and riparian rights and those had not been

affected by the 1793 Act.

Now, as a consequence of the judgment in the other action of Mr Dowling QC,

before last December. The riparian rights issue took a very different form.

Obviously, in My Lords judgment that doesnt assist Mr Moore in this case. The

public right of navigation point, the core point was, that it doesnt include a right to

permanently moor. To a large extent that had fallen away before the hearing but the

clear import of My Lords judgment is that therefore, looking at this case, what are

the rights that may be relevant. There was the one right and My Lord has

determined that and that has gone against Mr Moore. Of course, certain arguments

that I advance, My Lord objects in the judgment, that is the nature of litigation but

that doesnt mean that my clients have not been successful and should not be

entitled to their costs.

They have been brought to court, having served some notices, and a whole array of

issues have been placed before them that they are forced to deal with and the

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preliminary issues of an expensive exercise. I hope a very useful exercise, but I

think there will certainly, if the action does go forward and My Lord has already

heard my initial reaction on that, but certainly if the action does go forward it would

be on a very much more focused point or points. And the Court should reflect that

in an award of costs at this stage of the preliminary issues, in my submission.

JUDGE MANN: Very well. I have heard the submissions of Mr Moore and Mr Stoner

about costs and the effect so far as the determination that I have made on the issues,

if any, which continue to subsist in the litigation as a whole. It appears to me the

extent it was an issue whether the public right of navigation continued to subsist

notwithstanding the Transport Act 1968 that Mr Moore has won on that point, but

that he has lost on all the other points and issues.

Issue one took up the bulk of the time and evolves[?] in the argument of his

preliminary issues. And although issues three and four were important, they really

did not take up an enormous amount of time. Much of the time spent was

examining the historical background of the 1793 Act and the statutory sequences

chronologically thereafter which plainly involved an examination of how the private

right impacted on a public right and as to why there needed to be a private right in

all the circumstances.

It is always very difficult to try to calculate out, in a particular or specific way,

where costs should fall. But in my judgment, the balance favours an order that

Mr Moore should pay the costs of the preliminary issues as to four-fifths, so that he

takes the benefit of one-fifth of the costs himself. So, that is the order I would like.

MR STONER: My Lord, inaudible. The only other part of the order I sought. Some of

the double-barrelled aspects of the costs was the payment on account in respect of

that costs. There is no schedule because this isnt a summary assessment but those

instructing me have provided me with figures.

JUDGE MANN: Have they provided Mr Moore with figures?

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MR STONER: I have not provided them to Mr Moore, in effect, I have received an email

of what my fees are. There is a print out of Shoosmiths fees. Those total 44,000.

The way they are calculated is from April of last year, so all the costs have been

incurred in the action after the Order for these preliminary issues.

My Lord, taking account of the fact, for example, my costs, I had a conference

down in Brentford and attended a site view and can well understand on a cost judge

argument that that was relevant for the action as a whole as well as the preliminary

issues but it certainly it very safe to therefore say that the costs of 40,000, that is

exclusive of VAT my client is registered for VAT and so can reclaim that VAT. In

fact the sum I am instructed to ask for, on account, the usual rule that I would

submit would be a starting point of 50% but in fact the sum I ask for, on account, is

10,000.

JUDGE MANN: Is there any pressing need for the British Waterways Board to have these

costs now?

MR STONER: There is the pressing need in the sense of, well there are two points, the

first point in my submission is the CPR does make the point that if the court makes

an award of costs, there should be a payment on account. The second point is that,

of course, the costs British Waterways are largely public funded. The costs that are

incurred in these proceedings are therefore taken away from the running of the

Waterways and it is constantly a battle in press cutting and funding etc. and this is a

substantial sum so, in that respect, in my submission, my client should have a

payment on account.

JUDGE MANN: Mr Moore, I do not think that will be very attractive to you, that idea,

that you should pay 10,000 despite the clear desire on Mr Stoners clients part to

try to accommodate you by reducing the amount that it asks to by a fairly

considerable amount. I have not seen the schedules; I do not know what the costs

will eventually come to. But I can well understand that they will be quite

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considerable. That is the way of things unfortunately with litigation. What do you

say about having to pay 10,000 within a period of, well the suggestion is, early

April? I would not be minded to make an order of that kind. I would be minded to

make an order, if I do make one, that there be no payment, on account, until 28

days after the CMC has taken place?

MR MOORE: Well, My Lord, putting things at its simplest, it doesnt make a great deal of

difference what the time frame is because I-

JUDGE MANN: -because you cannot pay it.

MR MOORE: Because I cannot pay it, no. So it is-

JUDGE MANN: I know what you are saying and I understand it.

I shall make an order, Mr Stoner, that there be a payment on account which takes

into account your clients offer but which also takes into account that your client

will only get four-fifths of his costs. I shall then knock off a bit, so whereas it would

have been 8000, it will now be 6000, on account, which is as low as, in my

judgment, I can make it consistent with the practice and the practice directions.

And that is to be paid by a date 28 days after the determination of the issues on the

CMC which will be on a date to be fixed. So I cannot tell you when it will be that

you will have to pay but it certainly will not be in the next couple of months.

MR MOORE: My Lord, thank you. It gives me some degree-

JUDGE MANN: -it does not help you very much but it takes into account the special

difficulties which you have.

MR MOORE: Thank you My Lord, yes. In this respect, if it proved necessary and I

needed that as a part of the whole of this to request permission to appeal the

judgment. Is that something that comes up in the CMC, or is that something that-

JUDGE MANN: No, if you wish to protect your position for the purposes of appeal, then

you should ask for leave to appeal the judgment now and if you wish to appeal only

part of it then you need to say which part of it you wish to leave to appeal. You

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should do it now.

MR MOORE: Well, then may I formally do so My Lord.

JUDGE MANN: Yes, you can. Do you wish to appeal the whole of the judgment or just

certain parts of it?

MR MOORE: Just that part of it in issue one, regarding the scope of the private rights.

JUDGE MANN: Well, is this what you wish to appeal, that the private right of navigation

which was granted by the Section 43 of the Act was repealed by the 1968 Act?

MR MOORE: No, My Lord, because I am not concerning myself with private rights of

navigation but rather with the rights that were described in Section 43 pertaining to

the owner and occupiers of-

JUDGE MANN: Then you do not need to appeal that because I have not made a finding,

other than that which I have said I have.

MR MOORE: Well the implications of it.

JUDGE MANN: If you appeal the determination under issue one, then there is nothing to

appeal. Do you see what I mean? The appeal will have no content because I have

not determined that the other rights of which you speak have been repealed. I think

Mr Stoner will agree with that. So, if you ignore the answer for a moment, what is

it that you wish to appeal?

MR MOORE: Well then, My Lord-

JUDGE MANN: Do you see my difficulty with that? I am trying to help you.

MR MOORE: I am very appreciative of that-

JUDGE MANN: -I will give you leave of appeal if you persist but I do not want you to ask

for leave to appeal the answer for the private right of navigation as repealed, if you

think it has been repealed.

MR MOORE: I do not know whether this is appropriate, but you have been helpful, if I

ask for leave to appeal say for example on issue three, which is the one that would

then effect, in your judgment, the various issues that we have been talking about. Is

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that something that I have to follow through if, in a case management conference, it

is determined that it is not necessary-

JUDGE MANN: -you do not have to pursue an appeal, but there may be some costs of

discontinuing an appeal. But if you do it quickly and great costs have not been

incurred, but I cannot tell you what would be incurred, I am afraid, and Mr Stoner is

better able than me to do that, after reflection. The costs would not be very high, so

you can protect your position by asking for leave on issue three, if you like, and

then discontinue the appeal before Mr Stoners client has incurred costs.

And I think Mr Stoner will try to help you because that is his obligation as counsel

where there is a Litigant in Person by pointing out to you what costs might be

incurred and at which stages or leave it too long before you decide you are not

going to go ahead. Is that something you are comfortable with, Mr Stoner?

MR STONER: My Lord, I have always indicated to Mr Moore throughout these

proceedings and, indeed, the ones before that if he has any questions, I will do my

best to assist. If it assists, whilst I am on my feet, if Mr Moore does seek

permission, obviously permission can only be granted if My Lord is satisfied that

that part of the judgment is wrong.

JUDGE MANN: Well the judge can grant permission if he thinks that there is a possibility

that he is wrong.

MR STONER: Yes, well the grounds would be wrong or there was some other reasons,

there is no other particular public reason here. So, in my submission, because the

court of appeal will have to look at the judgment or the order in fact, of course, it is

the Order that is appealed, and say they can only allow an appeal if the order was

wrong-

JUDGE MANN: I had better explain to Mr Moore what will happen if I refuse leave. He

would then have to make a paper application to the court of appeal, which would

not involve costs, it would just involve your time and running around making an

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application. So if you were to ask for leave on three, you ought to try to satisfy me

that there is something in the judgment, which is arguably wrong on that question.

MR MOORE: Yes, thank you My Lord.

JUDGE MANN: I would not try too hard because it might mean going back over

everything we have gone over before.

MR MOORE: Well perhaps just keeping it as short as possible, My Lord, there was

nothing really in the content of your judgment leading up to this that actually

considered the historical continuity of authority over this particular section and you

have not actually examined, in this judgment, you have simply decided that it is a

logical sequence from the 1947 Act onwards that British Waterways would be the

statutory navigation authority because this section is comprised within their

undertakings. And there has been no implant in your judgment here, of the fact that

there are other statutory authorities over the navigation that do exist today.

JUDGE MANN: Well, of course-

MR MOORE: -so there is a question over, as I have only briefly touched upon it in the

hearing, as to what is actually meant by the navigation authority, what is being

controlled? Certainly, as I have said in the hearing, this area is within their

undertakings. The question of, over what do they have authority? Is something that

needs to be particularised perhaps is the word.

So, which is an area of, My Lord, where the question of public rights of navigation,

come into it. Not that, as we have seen from the information that I have produced

in the course of the hearing, that there are areas of public right of navigation that fall

within BWs undertakings. I am not quite sure of what those other areas are but

they are regularised.

But it does put, as the various government publications and British Waterways

publications have acknowledged, a limitation on the powers that they have on the

non-tidal ridges, non-tidal canals. So it is something that has not been properly

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explored, My Lord, and as it does affect the case, I believe it is right that those

issues are aired.

JUDGE MANN: Thank you. So that is on issue three?

MR MOORE: On issue three, yes.

JUDGE MANN: Well I am going to refuse the appeal, Mr Moore. Your base of premise

is that I have not addressed the issue adequately with sufficiently reasoned judgment

[inaudible] by specifically addressing the series of legislation dealing with navigation

rights and charging rights. I did, however say, in the judgment, that I was taken

through all the Acts very carefully and that I have concluded issue three in the way

that I did. But as I say, I looked at the [inaudible] Act, the Port of London

Authority Act and all of the legislation very carefully before drawing to that

conclusion which I took not to be particularly hotly contested. But it is your right

to ask the Court of appeal for leave, as I have refused it, and so be it. Those are my

reasons for refusing on that issue.

MR MOORE: Thank you, My Lord.

JUDGE MANN: Thank you. Anything else?

MR STONER: My Lord, I think that is it on the order; the only point that perhaps I should

reflect on before My Lord formerly makes the order. Paragraph two: I have said

the case management conference should be listed for 30 minutes. I rather wonder,

in the light of this morning whether 30 minutes might be inadequate-

JUDGE MANN: -no, it will not be adequate.

MR STONER: So I wonder, in fact, it should certainly be an hour possibly two hours?

JUDGE MANN: Well we have taken an hour discussing various issues.

MR STONER: Yes, in fairness to The Master, who is going to asked perhaps to-

JUDGE MANN: -I think, in fairness to The Master, it should be an hour and a half CMC.

So you alter the Minute of Order to that effect, so that Mr Moore has the fullest

possible opportunity, within the limits of reasonableness and court time and so on,

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to make the points he wishes to make.

MR STONER: One hour, My Lord?

JUDGE MANN: One and half hours. Which I think is pretty well the length of time we

have [inaudible]. I might be wrong about that. I found it fascinating and deeply

interesting and I was considerably enlightened by your submissions; thank you very

much. Mr Stoner, I [inaudible]. Thank you very much.

Court rise.

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Moore v BWB, Handing Down Proceedings, March 2009

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