Moore v BWB, Human Rights Debate, Feb 2012

7/21/2019 Moore v BWB, Human Rights Debate, Feb 2012

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BEVERLEY F NUNNERY & CO

OFFICIAL SHORTHAND WRITERS

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

No. HC07C02340

The Royal Courts of Justice

Thursday, 16th

February 2012

Before:

MR. JUSTICE HILDYARD

B E T W E E N :

NIGEL PETER MOORE Applicant

- and -

BRITISH WATERWAYS BOARD Respondent

_________

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 APPLICANT appeared in person.

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

_________

P R O C E E D I N G S A.M. ONLY


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I N D E X

Page No.

OPENING

Mr. STONER 1

Mr. MOORE 15

_________


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1

MR. JUSTICE HILDYARD: Before giving judgment may I just mention that a1

gremlin has crept into the system in the following way. Because I have made2

some amendments from the draft in every case in order to accommodate your3

very helpful comments and to try and make sure that whether right or wrong4

what I had stated was clear, I have made a number of amendments. I had5hoped that the tracked version would signify precisely where those6

amendments were, but the gremlin has crept in and there are some7

amendments in the final draft - and I hope you have a copy of that final draft8

which is in the closed space print - which do not appear in your tracked9

version. Now, in particular there are three references, just so that you should10

know the format which I intend to prove. There is a chance at paragraph 10811

which is not in the tracked draft. It is not of great moment. It is really a matter12

of editorial substitution of the word absolute for extensive. Then more13

materially at 139 there is a change. I have slightly changed the end of that, if14

you would like to read through that. Then lastly at paragraph 230, that has15

been changed but does not show up in your tracked draft for reasons beyond16

my ken. Are those clear? In that case, for the reasons that I have set out in17

the closed typed version, copies of which have been available to you in draft, I18

find in terms of the conclusions that I have sought to set out in paragraph 23319

of the judgment. I should say that the judgment I now hand down is subject to20

editorial corrections in case there are any further - and I would be very grateful21

for any to be pointed out - but subject to that caveat, a copy may be used by22

court reporters, if any, for reporting purposes, and a copy of the final judgment23

will be produced after receipt of any further editorial comments you may have24

by my clerk by tomorrow and will then be posted on the usual websites.25

26

We now have to deal principally with matters which I felt able only to express27

a provisional - and by that I truly mean provisional - that is to say I am still28

open to persuasion on both limbs with respect to my concern as to29

infringement of the claimants human rights. We then have to deal with any30

other matters which ordinarily arise after judgment of this kind. Thank you31

very much, both of you, for very helpful written submissions, which I have32

read, but which I would still like assistance. The fact that in the human rights33arena change is constantly afoot is demonstrated by, I think, two decisions in34

2011 of the Supreme Court, each with a board of seven I think. So it is a35

matter which I want to tread with care and with your assistance. Who would36

like to go first?37

38

MR. STONER: My Lord, I am entirely in your hands, but in circumstances where39

your preliminary view was that my clients had breached Mr. Moores human40

rights, perhaps it would fall on me to go first. The other point is that in the41

written submissions - I know my Lord has been provided with a copy of42Pinnock and Powell.43


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2

1

MR. JUSTICE HILDYARD: Thank you.2

3

MR. STONER: I do not know if Mr. Moore has copied them off the internet, but if4

not there are copies there of those cases.56

MR. JUSTICE HILDYARD: You will also be addressing, will you, what ----7

8

MR. STONER: Legitimate expectation.9

10

MR. JUSTICE HILDYARD: Yes, the response of the court to that.11

12

MR. STONER: Yes. My Lord, I will take the matter relatively shortly because of13

course I have set out my position fairly extensively in writing.14

15

MR. JUSTICE HILDYARD: Yes.16

17

MR. STONER: On the human rights, although this is not actually a claim for18

possession, there is unquestionably a clear correlation to the possession cases,19

bothManchester City Council v Pinnock(which I will refer to as Pinnock, if20

I may) andHounslow Borough Council v Powell(which I will refer to as21

Powell if I may) were different types of possession cases under the various22

Landlord & Tennant legislation, but ultimately in this particular instance23

Article 8 is engaged because Gilgie is Mr. Moores home and in my24

submission the same principles apply. The key, in my submission, is to look at25

the Pinnockdecision as a starting point. This was the first in time of the two26

judgments of the Supreme Court. It in fact involved a demoted tenancy. So it27

was a relatively self-contained aspect of Landlord & Tenant law. But to no-28

ones surprise the Supreme Court in the subsequent decision of Powellapplied29

the reasoning of Pinnock in the wider application of the Powellcase. In30

Pinnock, if I can pick it up at the beginning of paragraph 51, [2011] 2 AC 126.31

In Pinnock it was a panel of 7 but the judgment of the court was that of Lord32

Neuberger. He had, prior to this, set out the various European Court33judgments. Perhaps I should observe that back at paragraph 45, having34

summarised those European Court of Human Rights decisions, after (d), the35

new paragraph, he says,36

37

Although it cannot be described as a point of principle, it seems that the38

EurCtHR has also franked the view that it will only be in exceptional39

cases that article 8 proportionality would even arguably give a right to40

continued possession where the applicant has no right under domestic law41

to remain...4243


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3

In my submission, that is another key link with these cases with Mr. Moores1

circumstances in that as a result of my Lords judgment you have determined2

that the vessel has no right in domestic law, if I can put it that way, to remain3

where it is.4

5MR. JUSTICE HILDYARD: Yes.6

7

MR. STONER: So the question then becomes: what is the effect of that. The core8

of the decision in Pinnock begins at paragraph 51.9

10

MR. JUSTICE HILDYARD: 51 and 52 really because ----11

12

MR. STONER: 52 is the absolute core.1314

MR. JUSTICE HILDYARD: My understanding is - and I noticed it was a nine-15

man court in Pinnock----16

17

MR. STONER: I am sorry, yes.18

19

MR. JUSTICE HILDYARD: My understanding is that whilst accepting that it20

would be quite difficult for someone to raise a successful human rights21

argument, bearing in mind that the court could not get into subtle management22

and proprietary issues, nevertheless proportionality in the true sense of it rather23

than Whensburyunreasonableness, proportionality in the true sense would24

always be a factor if raised by the defendant.25

26

MR. STONER: Yes, and my understanding globally of Pinnock and Powell27

subsequently is that unless there is cogent evidence to go behind the decision28

as per paragraph 52 of Pinnock, if the public authority is exercising ownership29

rights, that is not relevant here for reasons we know. Or it is exercising its30

management duties - and I say that is precisely what British Waterways was31

doing in this case. Then unless there is a cogent reason to go behind that, it is32

taken as a given - as is put in certain passages - that that is proportionate for a33legitimate aim. Of course, the purpose, in my submission, behind that is that if34

that were not the case, then in British Waterways case every time they took a35

decision in relation to a vessel which was someones home, or fell within the36

category of someones home (and there could be all sorts of arguments there,37

not just necessarily as here where Mr. Moore lives permanently on the vessel),38

then that decision would be subject to scrutiny by the courts on a human rights39

aspect. In my submission it was that sort of everything coming before the40

court that the Supreme Court were desperately keen to avoid.41

42


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4

MR. JUSTICE HILDYARD: I mean all analogy is ultimately inaccurate but one1

finds it in a field where I am frankly more experienced, which is in the2

company law field. The court will never second-guess a matter of3

management because otherwise it would be running every cake and ale stall in4

the country. So you have to show some reason either why what was decided5was improper, i.e. without the management function, or seems to be for a6

purpose which the court simply cannot follow and needs to explore, if I can7

put it that way.8

9

MR. STONER: What I say in the context of the present case is that Mr. Moore ran10

two arguments. One was that the section 9 notices were served for reasons of -11

and I do not mean anything necessarily by this term - but a conspiracy with the12

developers.1314


16

MR. STONER: Secondly as a separate argument, as my Lord has addressed in his17

judgment, he ran an argument that British Waterways served these notices for18

an improper purpose. They had an improper motive in serving the notices. As19

I understand my Lords judgment, my Lord has said no to both of those20

arguments. In my submission that may have been the sort of cogent evidence21

that would be necessary for the court to say: actually this is taken out of the22

ordinary management decision and into the situation where we have to23

consider it more carefully. My clients note very much the criticisms that my24

Lord has levied at them in frankly the entire process, but at the core is a25

management decision. If the court in my submission is in the field of: well, it26

would have perhaps taken a slightly different decision at a different point, or27

had gone about it in a slightly different way, that is not the cogent evidence28

that is necessary. Of course, one could always say with every management29

decision that unless it is absolutely a tick-box decision that it could perhaps30

have been done in a different way on a different day etc.31

32

MR. JUSTICE HILDYARD: I am sorry to interrupt you because you have been33very helpful, but the concerns that I have in a nutshell are these: first, unless34

you show me otherwise, there has been no cogent explanation as to why these35

vessels had to be removed. The context in which that sort of question arises in36

my mind is the fact that in the past there has been no objection, which is a37

point made by Mr. Moore in his written submissions as previously. Whilst I38

have, as you quite rightly say rejected the notion of a conspiracy, the way in39

which it was proceeded with gives rise to a concern that there was no real40

reason for the exercise of what you accept is a very draconian power.41

42


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5

MR. STONER: What I say is those concerns, in the human rights context, do not1

get anywhere near the level of the cogent evidence. In response to the points2

about others on the waterways, my Lord has not heard evidence about those3

others and we do not accept, necessarily, what is said. I am aware, for4

example, that British Waterways has leasing arrangements with individuals up5and down that stretch of waterway. Whether or not that is relevant - I am not6

saying necessarily it is - but there may well be explanations. The7

concentration has to be, in my submission, on these vessels. I am not8

encouraging this for one moment but if my Lord were minded to go down a9

finding on the human rights which was fact-dependent, I think my Lord would10

have to consider as to whether there should be a further hearing to determine11

the factual background for that. In my submission those matters do not arise.12

13

To also answer, I think, the other point I have not yet answered in relation to14

what my Lord raised, the reality of the situation - and in my submission it is15

clear from Mr. Farrows statement (whether it was right or whether it was16

wrong) that the reason that these vessels were served with notices is because17

they were unlicensed on the waterway. That is what I sought to do in my18

written submissions, putting aside the issue of whether they needed a licence19

or not, ultimately another way of putting that is that the decision was taken20

because they had no entitlement to be there. In my submission that is a21

perfectly legitimate management function and decision to take that, and that22

falls outside of the scope of what the court would consider on a human rights23

challenge. So that was the stated reason; that was the evidence. My Lord, I24

do not under-estimate the point I made in my written submissions. It may be25

that there is an element of speculation about it but if ultimately Gilgie is26

allowed to remain simply because - or in circumstances where it has no legal27

entitlement to be there, but simply because it is someones home, and there is28

no particular reason for British Waterways to move it on, not only does that, in29

my submission, fly in the face of the approach that we know from the Supreme30

Court, but as a matter of fact it really does encourage the possibility and31

probability that the tidal stretch of the Grand Union Canal will fill with vessels32

which are peoples homes which British Waterways, on the face of it, would33be powerless to stop until the congestion perhaps got so bad that one could34

show, in relation to a specific vessel, that it was clearly interfering and35

obstructing navigation. In my submission, it is a perfectly legitimate36

management aim to say, in effect, we prefer the situation where if someone is37

not entitled to be there, we will move them on and we will keep the waterway38

managed on that particular basis.39

40

In many respects, if I have understood my Lords judgment correctly, the main41

criticisms were really with the haste with which these notices were served.4243


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6

MR. JUSTICE HILDYARD: I think the main criticisms were, yes, the haste and1

my finding that you took a risk that this was a home.2

3

MR. STONER: Yes.4

5MR. JUSTICE HILDYARD: And that was in breach of your own practices and6

although they are separate issues they feed into another, and I think in one of7

the cased - it may have been Kay- there was an express reflection of the fact8

that a breach of even a procedural legitimate expectation may feed an9

infringement of human rights.10

11

MR. STONER: Yes. Another aspect is that the court would have to be very clear12

as to what the actual breach is going to be. In my submission there is none,13

but if you were against me and you were to find that there was a breach, that14

would have to be clearly identified because if it were a procedural breach from15

a human rights perspective, in my submission, the obvious relief - I have put in16

my written submissions that in those circumstances in effect it is a defence, but17

my clients would be entitled in those circumstances, if they breached their18

procedure, to go back and not ignore the last four and a half years worth of19

litigation, but rather to send Mr. Moore.... In fact, I would venture to suggest,20

I was going to say the standard letter, the Live-aboard 1 as it is known. That21

may not actually on its wording be particularly appropriate, but to have an22

amended form of saying in light of the decision of his Lordship, etc, etc.23

24

MR. JUSTICE HILDYARD: I take your point that one has to determine whether it25

is a substantive or procedural breach. If substantive then there will be all sorts26

of questions, including compensation etc. If procedural, then that is more27

unlikely to arise.2829

MR. STONER: Yes. I will come on in due course to legitimate expectation where30

my Lord has already indicated that was a procedural breach.31

32


MR. STONER: Just dealing with human rights at the moment, in my submission it35

is rather difficult to see what substantive breach there might be because really36

one is there only left with the factors of firstly this being Mr. Moores home37

and second British Waterways not actually being able to show a positive38

reason as to why the vessel should go. That is why I say this simply falls39

down or the argument falls down at that stage because of Pinnock and Powell.40

There is not that cogent evidence to get over that high threshold that is referred41

to. The European Court of Human Rights preferred the phrase42exceptionality whereas the Supreme Court preferred the fact - and in fact43


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7

Lord Neuberger refers to the fact that Lady Hale had pointed out in argument1

that exceptionality is an outcome, not a guide, and hence the reason they2

preferred the straight concept of proportionality.3

4

Ultimately, in my submission, this was a management decision that was taken5by British Waterways to remove a vessel which your Lordship has found had6

no entitlement to be there. British Waterways is vested with the management7

function for that waterway for the public, including protecting public rights of8

navigation and matters of that sort, and they are perfectly entitled to do that.9

Mr. Moores human rights have simply not been breached.10

11

Is there anything else I can assist on the human rights argument?12

13

MR. JUSTICE HILDYARD: No. Well, let me think about that. I understand your14

point that at most it is a question of process fed by the breach of legitimate15

expectation, given that it turned out to be his home.16

17

MR. STONER: Yes.18

19

MR. JUSTICE HILDYARD: Do you say that it is relevant and if so how relevant20

that at the time the notices were served actually his home was Platypus and21

only subsequently did he move to "Gilgie"?22

23

MR. STONER: I say it is relevant. I have not put it at the forefront of my24

arguments. I noted that my Lord raised the point and I was not simply going25

to jump on to that because it was in the draft judgment. Its key relevance, in26

my submission, is this: it shows what I have described, and perhaps it is not27

the best wording, but the futility when one comes to the procedural breaches or28

alleged breaches, because in my submission as an exercise in proportionality29

the court has to have regard to the fact that we have had four and a half years30

worth of heavily contested litigation in which every conceivable argument that31

Mr. Moore could wish to have raised has been ventilated. Now, that is32

relevant, in my submission, because if I can draw a rather inelegant analogy,33but on the possession footing as well, I am not sure how familiar my Lord will34

be with the standard possession procedure, but if it was a possession action and35

they had issued their Part 55 (claim rather like the Part 8) it would come for36

the initial hearing, of which the court would either make a decision or give37

directions. Well, if at that initial hearing which may, in idealistic theoretical38

hopes, be within about four weeks of issue, if the boater turned round and said:39

well, actually I had a legitimate expectation that you would go through this40

procedure and your procedure means that notices will not be served until after41

42 days as a minimum because Live-aboard 1 says 28 days, Live-aboard 2 says4214 days, then in those circumstances there may be a very good ground for43


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8

saying: yes, British Waterways, go back to home base. You have1

disappointed the legitimate expectation and you have to address that. Four and2

a half years worth of litigation is a rather different circumstances. Touching3

upon legitimate expectation ----4

5MR. JUSTICE HILDYARD: I am sorry, but my initial question was: does the fact6

that he was on Platypus and moved to "Gilgie" signify in terms of whether7

there is an infringement or any obligation under Article 8?8

9

MR. STONER: In my submission the answer ultimately is yes. What I am saying,10

rather inelegantly, is that where it becomes difficult is because of the passage11

of time and because he is not now even on the same vessel, it shows the real12

difficulties, given what has happened, of on a procedural breach, ultimately13

giving relief which, in my submission, can only mean that the process has to14

be restarted because if my Lord were to give relief either on legitimate15

expectation or human rights, saying there has been a procedural breach16

because British Waterways did not go through the notice procedure, if I can17

put it in that way, then in my submission it would not be proper - and I do not18

understand the court to be posing - that the relief that would be granted would19

prevent British Waterways from going through that procedure after this case is20

finished. That is why I say about the futility of if the legitimate expectation21

has been breached, after four and a half years worth of litigation, to go back22

and then my clients have to write to Mr. Moore and say: You are now on23

Gilgie. You have no entitlement to be there. Please move the vessel within24

28 days or regularise the position, or we will contemplate serving Section 825

notice and quite possibly a section 13 notice as well. The comparison, when26

dealing with legitimate expectation, with theNg Yuen Shiu case, is that there27

of course Mr. Ng Yuen Shiu had a legitimate expectation that a consultation28

exercise would take place before a deportation order was made, if a29

deportation order was to be made. Of course, what the courts there did is they30

quashed that deportation order and said: you must go back and you must have31

the consultation. But that is entirely without prejudice to the fact that you may32

come to the same conclusion - rather not come to the same conclusions; that33would be inaccurate, but the same conclusion may bear out. Where I say there34

is a clear demarcation in this case is that Mr. Moore has had that consultation.35

If one considers what the procedural breach or expectation that has been36

disappointed actually was, it was an opportunity for two things. One was a37

period to put his case, and the second was the sanctity and the safety of38

knowing that British Waterways would not take action without the sanction of39

the courts. Well, actually of course British Waterways gave the undertaking40

that it would not do anything without the sanction of the court at a very early41

stage. My Lord has seen from the forest of papers that we have got - not42


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9

suggesting of course that they are all correspondence - but there was extensive1

correspondence.2

3

Ultimately perhaps a way of looking at it, my Lord, is this. If the Section 84

notices were set aside and the procedure would be started afresh, would there5be a different outcome? I think that is where my four and a half years worth6

of litigation comes in because in my submission the answer is no. That is7

why in my submissions on legitimate expectation I highlighted the passages in8

the cases where I said sometimes there may be a finding of legitimate9

expectation but nothing more arises from that. I think it is highly relevant in10

this context that until the preliminary issues were determined Mr. Moore did11

not even accept that British Waterways had any locus in relation to this stretch12

of waterway. So that point would have to have been overcome.1314

MR. JUSTICE HILDYARD: Sorry to interrupt and do correct me if I am wrong15

because I am feeling my way here.16

17

MR. STONER: Of course.18

19

MR. JUSTICE HILDYARD: In the unpronounceable case one could not know20

really what the process of consultation would result in. It might result in the21

same and it might result - and this was the point -----22

23

MR. STONER: Absolutely.24

25

MR. JUSTICE HILDYARD: ---- in something different. Here you say there is no26

something different; it is merely process. Therefore you have to ask what27

difference has the failure of process as a pure pragmatic matter make?2829

MR. STONER: The word I think I used in my written submissions is in Ng Yuen30

Shiu had been deprived of something. He had been deprived of the31

opportunity to have consultation which might have led to a different outcome -32

and that is why the Privy Council said it is entirely without prejudice to the33fact that another deportation order may follow. But perhaps they thought it34

was one of those cases where it probably would, but that did not obviate the35

fact that Mr. Ng Yuen Shiu had a legitimate expectation that he would have an36

opportunity, as I understood the consultation. It would be an interview, so he37

would have his opportunity to plead his case. Contrast this case: in my38

submission Mr. Moore, by reason of the procedural breach, has simply not39

been deprived of anything because we have had hugely expensive litigation40

and despite the criticisms of this side, I hope the criticisms are not universal.41

In my submission one of the notable features is that my clients have not sought42for me to take pleading points in relation to this case. They have sought to43


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10

meet any points that Mr. Moore has sought to raise. Perhaps an illustration of1

that is the property point. The property point was parked for the purposes of2

this trial, but as my Lord records in the judgment, ultimately that came back to3

the position that we said should have been the case in the first instance; we4

were just relying on a navigation authority. Mr. Moore has not been deprived5of anything and he cannot say, at the end of this case, No, I have not been6

given my opportunity to put point X and that is the critical factor. That is7

why procedural human rights and also legitimate expectation, in my8

submission - I drafted up a minute yesterday and it is entirely right, in my9

submission, and in the light of my Lords judgment that it be recorded in the10

judgment by way of a declaration that his legitimate expectation has been11

breached; but equally the order then, in my submission, should continue that12

there be no further order required in that respect.1314

MR. JUSTICE HILDYARD: One thing puzzled me, but I think it is answered by ...15

Wandsworth LBC v Winder: because it is always so hard to shed the clothes of16

the past, one always expects these sorts of matters to be dealt with by the17

Admin Court with orders for certiorariand that sort of thing.18

19

MR. STONER: Yes.2021

MR. JUSTICE HILDYARD: My appreciation or perception of the cases - in22

particular Wandsworth v Winder- is that there is no straight jacketed process23

and this court could do what the Admin Court could do, if satisfied that it was24

warranted.25

26

MR. STONER: My Lord, yes, understanding the overlap as well. In that way it27

would make no sense if this court were of the view that the Section 8 notice28

should be quashed.29

30


32

MR. STONER: For this court to say that it did not feel that it had the jurisdiction,33so to encourage yet further proceedings at yet further expense for another court34

to consider in effect whether that should be the case. So I take no point there. I35

just rely on the substance and say this is actually a case which falls well short36

of any relief being appropriate.37

38

MR. JUSTICE HILDYARD: Beyond a declaration.39

40

MR. STONER: Beyond a declaration. And when it comes to human rights I41

simply say that the correct approach is actually to perhaps reverse the42situation, fi I may it that way, from my Lords preliminary views in the43


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11

judgment and say: well, actually the management decision is a given. It is1

over to Mr. Moore to show why it is disproportionate that he should move off,2

and I have highlighted a number of reasons. It is a feature of this case that Mr.3

Moore has not produced evidence in relation to that. It is also a notable feature4

of this case that one of the points that he has prayed in aid is that this vessel5has a home mooring elsewhere in Brentford. So this is not even a case where,6

as sometimes happens with boaters for British Waterways where one of the7

points that the court has to consider is that actually this person may have to8

move away from their friends, their job etc, which is not a determinative9

factor, but it is a factor for the court. That does not arise in this particular10

instance. So for all the reasons I have put in writing I say it simply does not11

get off the ground on human rights in this case, in my submission.12

13

MR. JUSTICE HILDYARD: What you would say, being entirely brutal about it, is14

this: whatever I might feel in the round, in reaching a provisional conclusion I15

have too lightly stepped over the hurdle which is for Mr. Moore to surmount of16

showing why the court should go behind the curtain of a management17

decision?18

19

MR. STONER: Yes, I do say that. In fact I think perhaps even slightly stronger, if20

I may, I say what my Lord has concentrated on is the lack of explanation from21

British Waterways as to justification, whereas I say the relevant law shows that22

that is precisely what my client does not have to prove. It is for Mr. Moore to23

show that actually he can overcome the hurdle, and it is a high hurdle, to show24

that his particular circumstances - and that is why I put in the written25

submissions the quote from the Disability and Services Commission as a sort26

of example that actually if someone has got particular difficulties then that27

may well be the sort of thing that the court would wish to consider. So to take28

perhaps a silly example Mr. Moore is moored where he is. If he had to have a29

24 hour oxygen supply which could not be done through tanks but piping had30

been installed to the vessel by the Local Authority because that was necessary31

in case of a particular incident, then that would be a highly relevant factor. It is32

that sort of unusual factor, in my submission. However, there is simply33nothing here.34

35

MR. JUSTICE HILDYARD: If I were against you on this, both as regards36

legitimate expectation and as regards infringement, and as Mr. Moore, I am37

sure, will elaborate, he says that he should receive compensation.38

39

MR. STONER: Yes.40

41


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12

MR. JUSTICE HILDYARD: I know your argument that this is mere say-so and1

there is no evidence of loss, but that could be dealt with by adjourning the2

hearing yet further.3

4

MR. STONER: It could.56

MR. JUSTICE HILDYARD: In order that there be some sort of enquiry or7

evidential analysis of that.8

9

MR. STONER: My Lord, that is right. What I say is on the human rights first of all10

the cases that Mr. Moore has referred to in his written submissions are11

European Court of Human Rights cases, and what my Lord must be careful not12

to do is to conflate the jurisdiction of the European Court of Human Rights and13

this court. In fact this court does have jurisdiction to award damages in human14

rights cases, but it is actually Section 8 of the Human Rights Act 1998.15

16


18

MR. STONER: It makes it plain - it is Section 8(3) - I am just reading from the19

White Book now ----2021

MR. JUSTICE HILDYARD: Page?22

23

MR. STONER: It is in Volume II, page 1308. If I start with 8(1). (1) In relation to24

any act... - as it would be in this case - ... (...) of a public authority which the25

court finds is (or would be) unlawful, it may grant such relief or remedy, or26

make such order, within its powers as it considers just and appropriate. That27

is fine.2829


31

MR. STONER: (2) But damages may be awarded only by a court which has power32

to award damages... I think the civil high court has power to award damages.33Then the critical aspects is 8(3)No award of damages is to be made unless,34

taking account of all the circumstances of the case, including - (a) any other35

relief or remedy granted, or order made, in relation to the act in question...;36

(b) the consequences of any decision (...) in respect of that act - the court is37

satisfied that the award is necessary to afford just satisfaction to the person in38

whose favour it is made. Then in the notes at 3D/41 there is a reference half-39

way down the note toAnufrijeva v. London Borough of Southwark. It said:40

41

The court made clear its view that damages are not available as of right42like damages for tort, but only as a discretionary remedy of last resort.43


15/45



13

The guiding remedial principle is restitutio in integrumso that the1

claimant should, as far as possible, be put in the position in which he2

would have found himself if Convention rights had not been infringed.3

However, account must first be taken of effect of any other remedies4

which the court has been able to provide. Any remaining significant5pecuniary loss caused by the breach should usually be assessed and6

awarded, but caution is to be exercised when deciding whether to award7

damages for non-pecuniary loss and if so how much. The consequences8

of the breach must be serious. The damage must be more than distress9

and frustration, and the scale and manner of the violation can be taken10

into account.11

12

Now in this particular instance, in my submission, breaking it down, if my13

Lord were against me and there were a breach of human right it would be a14

procedural breach. That procedural breach would in effect entitle the vessel to15

stay where it is until such time as that procedural breach is remedied. That16

would be the appropriate relief and therefore one simply does not get on to the17

question of damages. When it comes to the legitimate expectation, in my18

submission the argument is much the same because in the decision of Lord19

Woolf I referred to in my written submissions, he breaks it down into the three20

categories. This is a procedural expectation, and he says that what the court21

will do is if there has been a procedural legitimate expectation disappointed it22

will require the consultation to take place and that would be the appropriate23

relief.24

25


27

MR. STONER: If you are against me on all of that, then unfortunately we would be28

into a further hearing scenario because Mr. Moore has asserted that he has lost29

sums and that he could not carry on the business. What the court has not30

examined are factors such as why the business could not be continued in31

circumstances where British Waterways had given an undertaking that it32

would not take any action on the Section 8 notices pending the outcome of this33case.34

35

MR. JUSTICE HILDYARD: Sorry, there may be - carry on actually.36

37

MR. STONER: Also in relation to the allegations of certain individuals have38

moved vessels away because of the Section 8 notices, that again would have to39

be something that would have to be examined. In so far as a caveat applicable40

only to legitimate expectation, of course in the circumstances in which41

legitimate expectation arose in this case, that plainly was not on the plate for42


16/45



14

trial because it was a point that was only explored afterwards, so my client1

must have, in my submission, the opportunity to deal with that.2

3


5MR. STONER: In my submission, for the reasons I have set out, we do not actually6

get to that stage.7

8

MR. JUSTICE HILDYARD: I put this through you partly so that Mr. Moore can9

be thinking about it in the meantime. It does seem to me that Mr. Moore would10

have to persuade me that I can take into account other vessels, bearing in mind11

in the case of legitimate expectations and the human rights infringement, if12

there was one. It is very specific to the loss of his home. Secondly, and13

perhaps another facet of that, one would have to show loss, not in consequence14

of any other boats being there or not being there, but in consequence of the15

loss or worry about the loss of hope. In other words, I would expect the court16

to be fairly precise as to what the thing which needs just satisfaction is.17

18

MR. STONER: Yes, especially the matters of a disappointment and the threat of19

the Section 8 notices, as per the extract from the White Book - non-pecuniary20

losses. The court should be very slow to consider that sort of matter.21

22

MR. JUSTICE HILDYARD: It is hard to know how the court ever does assess it23

but perhaps the court in its mysterious way just comes up with figures.24

25

MR. STONER: Yes. What I would say, and it was not appropriate for today, but I26

have the Clayton & Tomlinsontome on human rights. There is a whole27

section in there, unsurprisingly, on damages. It appears from quickly looking28

at that - I was going to say if the court was going to go down that route, I think29

that would have to be another day because one would have to consider those30

cases. But as I understand it from that short extract, if the court is minded that31

there should be damages, the assessment is as per a tortious liability. So there32

would have to be causation shown and matters of that sort in terms of33pecuniary loss. Non-pecuniary loss is very difficult. My Lord, if I can assist34

you in any way in relation to either of the points....35

36

Perhaps the only other point directly in relation to the different vessels, Mr.37

Moore said that he lost his home Platypus because the owner decided to38

move that vessel away, although that would have been about half-way through39

the currency of these proceedings. But again, in my submission, there is just40

no evidence in relation to exactly why that happened.41

42


17/45



15

MR. JUSTICE HILDYARD: It is not unusual, but I must say that I have found it1

difficult in separating what is assertion and what is evidence.2

3

MR. STONER: Yes.4

5MR. JUSTICE HILDYARD: I do not blame Mr. Moore for that because he has6

done a very thorough job in terms of presenting his case. But it has7

complicated issues and I think it is right that if there were any question of8

damages, then we would have to have another hearing with directions as to9

exactly what must be done.10

11

MR. STONER: Yes.12

13

MR. JUSTICE HILDYARD: I may very well need your assistance again.14

15

MR. STONER: Of course.16

17

MR. JUSTICE HILDYARD: Mr. Moore, would you like a go now? Do you need18

any time to think things through, or are you content to proceed?19

20

MR. MOORE: My Lord, thank you. I strongly suspect that ... as you know I will21

not be frightfully learned about this.22

23

MR. JUSTICE HILDYARD: Oh, I would not say that at all. I think your learning24

has been very helpful and impressive. I have read carefully your written25

submissions, so I assume that I have.26

27

MR. MOORE: The latest one, my Lord?2829


31

MR. MOORE: I do not think I can say terribly much more than what I have put in32

there. If I can address just some of the points as I see are relevant from what33Mr. Stoner said, which is why I believe it was useful for him to have gone34

first.35

36


38

MR. MOORE: As far as the question of proportion is concerned, and this being39

relevant to the management decision, I am saying that it is a very important40

factor because if this was going to be regarded as a proportionate action, then41

all boats that were in exactly the same situation would have to have been42


18/45



16

treated in the same way, which they were not. I take your point that you would1

perhaps need more evidence on that ----2

3

MR. JUSTICE HILDYARD: All I know about is the vessels which have been4

named. My understanding is that in the case of Rocking Horse and Lazy5Daze which were the two ones which were allowed to be left, as I understand6

it ----7

8

MR. MOORE: I also referred you, my Lord, to the adjacent moorings where you9

have a varying number of boats but never less than about six or nine in exactly10

the same position.11

12

MR. JUSTICE HILDYARD: I think you are right that I would need evidence of13

that. I think the case has been, rightly or wrongly, confined in terms of14

evidence to what the position was with respect to the vessels which were15

identified precisely and their movements. It may very well be, and I quite16

understand from photographs that there were other boats, but I do not think I17

have sufficient evidence to draw any conclusions in that regard.18

19

MR. MOORE: I understand that, my Lord. What I can say is that I did raise that20

question.21

22


24

MR. MOORE: It would be perfectly possible to produce such evidence as you25

thought was required.26

27

MR. JUSTICE HILDYARD: What would it really go to? It would go to selectivity28

or it would go to undermine their management decision, or both? It would29

suggest it was not a proper management decision because it was not a rule30

that was done fairly.31

32

MR. MOORE: I am saying because if it was a management decision on the basis33that was alleged then that would be applied across all boats that fell into the34

same circumstance.35

36

MR. JUSTICE HILDYARD: Unless you could show some improper purpose,37

would that not be a matter which the court simply could not enquire about38

without itself becoming a Board member, if you see what I mean. I think what39

Mr. Stoner is saying is that unless there is something very, very rum, the court40

must let the managers get on with their job and let itself continue. It cannot41

revisit. It cannot second-guess decisions. Unless you are saying that leaving42other defined vessels signifies that it actually was just being wholly43


19/45



17

unreasonable, Machiavellian or something like that, that it is a management1

decision. I have not put that very well, but do you see what I mean?2

3

MR. MOORE: I believe I do, my Lord. I would still contest that the very fact that4

others are not there does not make the decision a matter of addressing some5pressing management urgency. That is one way of putting it. You can say:6

fine, they have the possibility to do this because all these boats are here on7

your finding unlawfully. The fact that they choose to do one or two and leave8

the rest is a matter for them. I understand that point, but the fact that they do9

and are so selective is, in my submission, a very strong indication that the10

decision is not being made for the purposes alleged, shall we say.11

12

MR. JUSTICE HILDYARD: So not a proper management decision?1314

MR. MOORE: Yes. I would also say in opposition of course to what Mr. Stoner15

went on to say later that if the management decision was taken, as he16

recognises, on misplaced grounds, then against him I would say that does17

matter because the justification they were relying on has failed. So if that was18

the basis of the management decision, then the actions taken - if the basis of19

the management decision was wrong - has to be factored in.2021

MR. JUSTICE HILDYARD: It is a curiosity, that. I may be right, or I may be22

wrong in this, but my conclusion is that providing you are only exercising23

within the tidal stretches your public rights of navigation, you do not need a24

license. But if you go beyond that, either in terms of where you choose to do25

your boating or in terms of what you do with your boat by permanent mooring,26

then you are subject to the control under Section 8, if I can put it that way.27

28

MR. MOORE: I understand that, my Lord.29

30

MR. JUSTICE HILDYARD: I understand your point that it flows from that that31

semantically the reason given, i.e. no licence, was incorrect; nevertheless32

substantively they were saying: whatever you were entitled to do you cannot33moor permanently. Do you see what I mean?34

35

MR. MOORE: Yes. All I am saying is if that was the reason they took the36

decision ----37

38

MR. JUSTICE HILDYARD: It is flawed.39

40

MR. MOORE: Yes. Also in line with that, I would say going on to the point with41

Shiuand whether or not there was an opportunity given, I am saying for all42those boats that have since left because of the action taken, if they had been43


20/45



18

given the opportunity for discussion beforehand on the basis that British1

Waterways were serving the notices, and the basis was accepted or, as you2

found, to be flawed, then the position would have been that British Waterways3

could say: well, we got it wrong.4

5MR. JUSTICE HILDYARD: What is the consequence? Your argument that the6

decision is flawed would take one to the proposition that the decision should7

be revisited - not made by this court because I have no idea about boating. But8

it should be remitted to the Board to make the decision again upon the footing9

that it cannot rely on the want of licence (under the terms of my judgment at10

any rate) but it can rely on no right of permanent mooring. You say that they11

might make a different decision once they had spotted that difference.12

13

MR. MOORE: They could have gone back ----14

15

MR. JUSTICE HILDYARD: But would they now? Do you see what I mean? Do16

you say that it is possible that they would now?17

18

MR. MOORE: I can say - well, no I cannot. I would presume that they would say:19

very well, we cannot give you a Section 8 on the basis that we decided to in20

the first place. We will now give you a Section 8 but for a reason that the21

judge has now given us.22

23

MR. JUSTICE HILDYARD: They might say: unlawfully moored is unlawfully24

moored. Yes, it is true that we added additional words unlawfully moored25

because you did not have a licence whereas we should have said unlawfully26

moored because you have got no entitlement to moor. I do not want to be fair27

in any sense, but I am struggling with practicalities of the matter as to whether28

that could realistically make a difference.29

30

MR. MOORE: I would say, if it is of any help, that in the circumstances of the31

time, the boats, and those boats and others, had been allowed to moor there for32

the previous 10 years. I would have said back then it would be unlikely that33they would try to serve a Section 8 on the basis that those boats should not34

have been at those moorings, when they had been permitting those boats to be35

moored there for that length of time. It seems a very unlikely justification for36

them to do.37

38

MR. JUSTICE HILDYARD: As I have sought to imply or indicate the suddenness39

with which BWB did this has caused me anxiety. But ultimately I did not feel40

that there was a case for improper or collateral purpose. Having reach that41

conclusion, right or wrong, at the moment I am finding it difficult to see any42practical utility in asking them to consider again the wording they used to43


21/45



19

describe their conclusion that your boat should not be allowed to stay where it1

is. This is a court of law and I must be legalistic, but one has to examine the2

practicalities, I think.3

4

MR. MOORE: I would have said, as with theHong Kongcase, the Privy Council5there did not recognise - as Mr. Stoner has quoted - that it was entirely open6

for the Attorney-General to turn round and give another notice should he ----7

8

MR. JUSTICE HILDYARD: After the process of consultation?9

10

MR. MOORE: Yes.11

12

MR. JUSTICE HILDYARD: It may be that as a practical matter, though none is13

pleaded, that there is some expectation that boaters will be consulted, but there14

is no proof of that nor anything in the rules that I have read. If you thought15

that you had had a right to be listened to and to make all these points about the16

fact of vessels being allowed to remain there for so long, the difficulties that17

you face, and that that would have weighed if you had had an audience, I could18

understand that. But if you have got no right in that respect, I am not sure I19

can take it into account.2021

MR. MOORE: But if in terms of both legitimate expectation and presumably22

human rights, I have a right to raise the issue of proportionality and purpose of23

the management decision, given the circumstances, then I think that is an area24

that I should be given the opportunity ----25

26

MR. JUSTICE HILDYARD: I think what Mr. Stoner says, as you know - I am27

sorry to repeat it but just so we get absolutely to the point - I think what he28

says is that you have to open the gate before you are entitled to look at29

proportionality, and the gate is the gate marked management decision. So he30

is saying in effect that I am wrong in my approach in my judgment that I can31

go straight to proportionality. He says you cannot; you have got to find the32

key to the gate first. That is as I understand, putting it rather inelegantly, what33Mr. Stoner is saying. I think you have to address whether he is right about that34

in terms of theory, and that really requires a look at Pinnock and Powell - and35

if he is right about that, whether you have got the key by reference to the36

factual situation.37

38

MR. MOORE: The cases that I looked at in the last few days were things like the39

Gillow v. The United Kingdom, plus the Kaycase as it went to the European40

Court because with Gillow v The United Kingdomyou had the finding where41

the couple had a house that they owned but the owners - I cannot remember42which one it was - they were foreigners in effect, even though they were UK43


22/45



20

citizens inhabiting a home and they eventually ended up, after about a year of1

litigation, selling up the home at a loss and moving on. The court did find that2

their human rights were abused. I believe that that was purely on the3

procedural aspect, that they have come ----4

5MR. JUSTICE HILDYARD: Do you have that case? The thing is I am afraid I6

have to admit to the fact that I do not have the sort of encyclopaedic grasp of7

all these cases. Is this something which we have to take into account? Does it8

show a different approach than Pinnock and Powell? If so, can it survive9

them, bearing in mind what the Supreme Court has uttered?10

11

MR. MOORE: If you just give me a moment, I did put this in.12

13

MR. JUSTICE HILDYARD: Did I overlook it?14

15

MR. MOORE: On my paragraph 55 I made reference to it, my Lord. Gillow v The16

United Kingdomwhich was under the heading of the Law Commissions17

report.18

19

MR. JUSTICE HILDYARD: I thought that this really went to the next stage of20

what the proper response, so-called, of a finding of infringement was. Am I21

wrong about that?22

23

MR. MOORE: I suspect you are right about that, my Lord. I do not think I got to24

read through the case itself as to what facts were found, other than what I have25

just said to you.26

27

MR. JUSTICE HILDYARD: I am inclined to accept that if there was a breach of28

your human rights which cannot be made good except by some further29

compensation, then the approach of the court and the amount at stake would30

have to go to another hearing. I do not think it would be fair to either of you31

for me to leap to some conclusion in that regard. I do not think you would32

probably suggest it was fair, and Mr. Stoner suggests it is not. So I should33imagine that we would only get to Gillowand the Law Commissions report -34

and they are quite difficult assessments as to the proper response - at that35

subsequent hearing. So really I am looking at the gate, and if you are through36

the gate, proportionality. That is what I am looking at at the moment.37

38

MR. MOORE: My Lord, I think I have said all that I can come up with in that39

respect. Any further help I could be would purely be in response to any40

question your Lordship had.41

42


23/45



21

MR. JUSTICE HILDYARD: Yes. I want to know, even though it is asking for1

evidence and I hope Mr. Stoner will not mind, this business in paragraph 40 of2

legitimate temporary mooring facilities, which you say have been used for 103

years. That is simply your observation. The vessels in question were off line,4

were they not?56

MR. MOORE: My Lord, we had both off line and on line. I mean the actual7

evidence for these pontoons is brought out in Mr. Farrows reports. We went8

through those. I know I took up quite some time in that going through,9

pointing out the boats that were under my control, that were on the mooring.10

So that did show that 10 year history of the boats being used on the pontoon11

and alongside the blue land - and there were photographs and things as well12

showing up. So I do not think there is a problem of evidence.1314

MR. JUSTICE HILDYARD: I can ask Mr. Stoner about that, but yes. It is15

suggested by Mr. Stoner that given that "Gilgie" has a home mooring, because16

you were very assiduous to correct that it applied on the basis of continuous17

cruising and it was accepted on the part of BWB that you were right and they18

were wrong ... why can "Gilgie" not be moved to what is the home mooring19

and you to have a home with a different view on the same vessel, subject of20

course to the owners?21

22

MR. MOORE: Well, it is very subjective to the owners wishes, my Lord.23

24

MR. JUSTICE HILDYARD: Yes, but I cannot legislate for that, can I? Neither25

can BWB. If you lose your home because the owner does not want you there,26

I am not sure that is a matter which I can deal with. What is wrong with that?27

28

MR. MOORE: The only thing I can say in that respect, my Lord, is that the29

investment that I have made over the years in the facilities that the boats there30

are using would be no longer of any value to me.31

32

MR. JUSTICE HILDYARD: Apologies for being rather bald about it, but what you33are really saying is you want to be around that place because that is where you34

did your work and you just want to - the last remaining thing in your grasp of35

that area. Is that right?36

37

MR. MOORE: There is that, my Lord, but there is also the fact that I am relying on38

remaining there in terms of our claim on the land so that if "Gilgie" had to go,39

then I would have to find some way of camping out under the bridge or40

whatever to remain there.41

42


24/45



22

MR. JUSTICE HILDYARD: Do you say this would foreclose your proprietary1

claim - your property right? Is that what you are saying?2

3

MR. MOORE: Yes, my Lord.4

5MR. JUSTICE HILDYARD: Because it is only in right of your possession or6

occupation that you are able to sustain your ----7

8

MR. MOORE: My right of ----9

10

MR. JUSTICE HILDYARD: Your claim as to adverse user.11

12

MR. MOORE: Yes.1314

MR. JUSTICE HILDYARD: Is that what it goes down to?15

16

MR. MOORE: It does, my Lord, yes.17

18

MR. JUSTICE HILDYARD: I am asking this because, to be absolutely frank, I19

have read but I have not grasped the full extent or nature of the other dispute20

which is being adjudicated. That is what it comes down to?21

22

MR. MOORE: Yes, my Lord.23

24

MR. JUSTICE HILDYARD: It would have this knock-on effect.25

26

MR. MOORE: I think I did mention that in our submission, that there are two cases27

at the moment in the High Court awaiting a hearing - one of them next month,28

which is the appeal against the adjudicator decision regarding the river bed and29

adjacent land.30

31

MR. JUSTICE HILDYARD: Your submission is that if I allow you to be moved32

on, that kicks the stool from underneath you for that process, does it?3334

MR. MOORE: That is right, my Lord.35

36

MR. JUSTICE HILDYARD: I will have to ask Mr. Stoner about this, but I am37

going to accept immediately that I have not explored it. One of the very few38

things I have not explored in the case - that proprietary element.39

40

MR. MOORE: Naturally enough, my Lord, because the currently contested issue of41

BWs wider land registry claim within that, when I first heard of it, they42agreed to withdraw from that claim the area that I currently now occupy.43


25/45



23

1

MR. JUSTICE HILDYARD: Right. Anyway, your answer is it might address your2

needs for a home but it would remove a right, as you assert it to be.3

4

MR. MOORE: Yes.56

MR. JUSTICE HILDYARD: The answer, I think, inevitably is going to be: you7

just have not got that right because a judge has said you are entitled to be8

moved on or removed. Consequences may be more serious than are9

immediately apparent, but in a sense that is simply a consequence which flows.10

11

MR. MOORE: My Lord, I am answering as best I can the question you posed as to12

what is the problem.1314

MR. JUSTICE HILDYARD: I am not in any sense wanting to diminish your15

argument. I just want to make sure I have got the very best from you in16

response to points which I feel might be made. I am not diminishing your17

points, nor seeking to argue the toss with you. Notwithstanding how much18

you have put into this - and you have been terrific - nevertheless in terms of19

presenting your case I just want to make sure that I have got, on this aspect, the20

best from you.21

22

MR. MOORE: I appreciate that, my Lord. As I say, it is not only the land claim23

but the investment in the actual facilities and utilities that I have provided there24

for all of the boats there. It is something that is part of a still continuing25

business. However, much it is true that I do not get a financial remuneration26

from it, it is still something that I have a feeling of responsibility for and which27

other people do... To be there and my being there is part of what makes the28

others feel that there is a caretaker, which is basically ----29

30

MR. JUSTICE HILDYARD: What you are doing. And that is the source of your31

income, such as it is.32

33MR. MOORE: I do not derive any income from it, my Lord. What I do derive is a34

payment in kind as it were in the fact of having a home there.35

36

MR. JUSTICE HILDYARD: Yes. With apologies for interrupting, my perception37

of what you are saying to me is that with regard to the gate their decision was38

flawed because they misunderstood the licensing position and therefore39

addressed it from the wrong perspective and was flawed in terms of process40

both by reference to the legitimate expectations point that I have been41

canvassing, and the haste point; and in point of detail, though quite an42important detail, in point of the fact that the basis on which the Section 843


26/45



24

notices were actually served, you had been there for three months, whereas in1

fact ----2

3

MR. MOORE: Four months.4

5MR. JUSTICE HILDYARD: Four months, whereas in fact it is accepted you had6

not been there at all, and this was a twice-affirmed wrong situation.7

8

MR. MOORE: Yes. And that that takes you through the gate because it shows9

sufficient flaw in the decision - in the exercise of management powers to get10

you through the gate. You are therefore through to proportionality and in11

terms of proportionality you say that bearing in mind their previous acceptance12

of offline mooring, whether with right or not ----1314

MR. MOORE: On line mooring.15

16

MR. JUSTICE HILDYARD: Sorry, online mooring. I am so sorry. Online17

mooring whether pursuant to a right or not, and bearing in mind that they had18

not shown any instant urgency, if I can put it that way, they should stay their19

hand or I should stay their hand. Is that a fair summary?2021

MR. MOORE: I believe it is, my Lord.22

23

MR. JUSTICE HILDYARD: How long do you say and by reference to what24

criteria do you say I should stay their hand on that footing?25

26

MR. MOORE: I would have to leave that to your judgment.27

28

MR. JUSTICE HILDYARD: Yes, but help me out with what you say should be my29

proper approach.30

31

MR. MOORE: I would have thought that it was proper to quash the notice and32

leave it to British Waterways to decide whether from that point it was a sound33management decision that they needed to take to bring a notice on different34

grounds on this and/or any other boats, at which time I would say that they35

would certainly need to be prepared to give a reason then as to why all boats in36

exactly the same position are not addressed in the same way, if that is the37

purpose. I would say that it is not inevitable that BW takes such a decision. It38

would in fact be, in my view, a sensible and realistic management decision to39

take that the situation as it always had been previously should be continued40

because it is not interfering with the good management of the waterways.41

42


27/45



25

MR. JUSTICE HILDYARD: They did not take the point in the past, but they are1

now taking the point that they do not want people - they worry that if they2

allow this sooner or later, and I know there is a thin end of the wedge3

element in this, but sooner or later the relevant stretch of water will become4

less navigable or may give rise to obstruction of some kind.56

MR. MOORE: That, my Lord, is only something that they can apply to exactly that7

scenario, where something did come and increase. If one takes the view that8

they are happy with the number and placement of boats as they currently exist,9

as they have been, and in fact they have in the past put forward plans to10

encourage more of them on both sides of the Canal, then the alleged concern,11

my Lord, is not actually true. By maintaining the status quo, even though they12

have in the past wanted to encourage more boats to be moored there,13

maintaining it at the level that it currently is not going to be a problem to them.14

No other boats can actually come on to a mooring and stay without the consent15

of the land owner. I am taking your Lordships finding on the fact that a land16

owner has no power of consent to his land for mooring.17

18

MR. JUSTICE HILDYARD: I am not saying that, am I? Why do you say that? If19

there is a special right established, then I am not, so far as I am aware, saying I20

am precluding that right. I am just saying that you have not got it.21

22

MR. MOORE: The basis of a land owner being able to give consent or withhold23

consent to the use of his land is presumably a factor because that is the specific24

argument that British Waterways advance in the garden moorings, to which I25

directed your Lordship, where they say a land owner has the right to agree or26

disagree to whether you use it.27

28

MR. JUSTICE HILDYARD: We had better clarify this. My understanding on the29

end of garden mooring is the British Waterways Board accept that their only30

right in this regards is either in respect of those numbers of mooring places31

where they are owners and can give permission in right of ownership; and that32

otherwise they are entirely independent on their regulatory powers. That is33British Waterways position, as I understand it. I do not think anything I have34

said in my judgment conflicts with that and is certainly not intended to.35

Looking at it from the position of other land owners, I have said that the mere36

ownership of a riparian right does not give that person a right, and therefore37

does not give that person any rights to permit anybody else, to moor there,38

other than in the course of navigation.39

40

MR. MOORE: My Lord, what I was wanting to have clarified is whether he is41

thereby precluded from his veto, if you like. In other words, the fact that he42


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26

cannot give permission to someone to moor there, is he thereby prevented1

from saying: you cannot moor there because it is my land?2

3

MR. JUSTICE HILDYARD: Is the land owner able to injunct someone from using4

it?56

MR. MOORE: Yes.7

8

MR. JUSTICE HILDYARD: I am not sure we canvassed the question of what a9

land owners rights were in respect of a temporary mooring in the course of an10

application. I have not considered that.11

12

MR. MOORE: No, but what we did ----1314

MR. STONER: We did not, my Lord. I think what we would say, so that Mr.15

Moore is clear, is that if there is a land owner of any river bed where there are16

public rights of navigation, then that ownership is subject to public rights of17

navigation. The prime example is the Crown who owns a large area of land18

which is subject to public rights of navigation, their ownership is subject to19

those public rights.2021

MR. JUSTICE HILDYARD: So for example if someone - in the Kaycase where22

the example is given that someone in the course of bona fidenavigation may23

need to stay at a place for some considerable time because something terrible24

has gone wrong with the weather or the boats, or even a season - I think they25

give the example in the Scottish case. I would imagine that a land owner26

would have to accept that that public right of long user overrides to that extent27

his private right to dictate what should happen on his land, but beyond that he28

will only be able to rule the roost if he has a specific property right entitling29

him to allow mooring or wharfage - not in right of a riparian ownership but30

because he has a specific right. That is, I hope, what I sought to say.31

32

MR. MOORE: My Lord, what I am addressing at the moment is the reversal of33that; whether he has the right to deny because one of the arguments that were34

not adjudicated on between us was the fact that in the preliminary issues we35

were agreed that there is no right to a permanent mooring ancillary to36

navigation. There was a question of specifically in the context of this case we37

are not addressing mooring in the river bed, but we are mooring to the bank.38

39


41


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27

MR. MOORE: The position that I took is that there is no right whatsoever given by1

the public right of navigation to moor even momentarily to private land. I2

mean that is ----3

4

MR. JUSTICE HILDYARD: I do not think I have adjudicated on that, but I would5imagine that that is quite a difficult argument. I say no more because I am too6

ignorant to commit myself really. I do not think we have dealt with the issue of7

the interface between property rights and regulatory rights, and the public right8

of navigation.9

10

MR. MOORE: My Lord, if I can continue just a little bit to explain why I am11

bringing this up -----12

13


15

MR. MOORE: It is established in case law that that is the case, even though we are16

not ----17

18

MR. JUSTICE HILDYARD: What is the case?19

20

MR. MOORE: That a public right of navigation does not give the right of access to21

a private bank so the land owner has the right to say you cannot ----22

23

MR. JUSTICE HILDYARD: If it is established, then there is the answer.24

25

MR. MOORE: So what I am saying, my Lord, provided that there was nothing that26

I understood from your finding that runs against that ----27

28

MR. JUSTICE HILDYARD: No, I would not dream of seeking to undermine29

established authority if there be such. I must say that I had not read ... in that30

light, but I do not know. In so far as you need clarity that I am not seeking to31

undermine that sort of authority, you have that confirmation from me.32

33MR. MOORE: Thank you, my Lord. The reason I am going there is to address this34

question of: oh, well we could have everybody coming up and establishing35

themselves and us not being able to do anything because of the human rights.36

Whereas the simple fact is that any of the land owners, including where they37

are - an area of dispute - but there is no dispute that there are areas they do38

own, they have the right to say you cannot moor there on that basis. That39

bit of towpath we own or more properly I would suspect ----40

41

MR. JUSTICE HILDYARD: They could not really delegate their responsibilities to42the particular preferences of a given land owner.43


30/45



28

1

MR. MOORE: No, but ----2

3

MR. JUSTICE HILDYARD: There we are. I think what you say - forgive me if I4

am wrong and add what you like - is that it is a thin end of the wedge5argument and that that was not a justification really offered at the time, and6

that if that was the justification, it should be revisited.7

8

MR. MOORE: My Lord, I think what I am saying most specifically, my Lord, is9

that the scenario that Mr. Stoner painted in order to persuade you that this10

would be the outcome if you were to do as I wished is not a realistic one11

because there is the ordinary power to say: no, you cannot even start to12

establish a right where we would need to come along and dispossess you.1314

MR. JUSTICE HILDYARD: What he was saying is: beware of treading in15

management areas you do not understand.16

17

MR. MOORE: I am just addressing the picture.18

19

MR. JUSTICE HILDYARD: Well, as I say with the benefit of your written20

submissions, is there anything you want to say further on either Powell or21

Pinnock which really rose up late in the day? Therefore if you want five or 1022

minutes to consider anything further on that, I would be very happy to allow23

you that.24

25

MR. MOORE: I have not had a chance to look at it, but I doubt it if ----26

27

MR. JUSTICE HILDYARD: Do you want 5 or 10 minutes to have a look? Powell,28

I think, rode into town this morning in your case because I had asked for a29

copy you may not have had. I am not hedging for time. It is an important30

matter to you, Mr. Moore, and you have invested a great deal of time and31

trouble. If you want another 10 minutes, I am most content that you should32

have it. I think Mr. Stoner has identified the particular parts of each case, and33can do so again for your assistance.34

35

MR. MOORE: Perhaps, yes.36

37

MR. JUSTICE HILDYARD: Would you like 10 minutes? Are you content with38

that, Mr. Stoner?39

40

MR. STONER: Of course, my Lord.41

42


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29

MR. JUSTICE HILDYARD: I want to finish this by the short adjournment time,1

and we have one or two other things to deal with. If we reconvene at quarter2

past, will that be sufficient for your purposes or at least identify whether you3

need further time.4

5MR. MOORE: Very well, my Lord.6

7

MR. JUSTICE HILDYARD: We will adjourn until quarter past then.8

9

(Adjournment)10

11

MR. JUSTICE HILDYARD: How have you got on?12

13

MR. MOORE: I will not take up much more time.14

15

MR. JUSTICE HILDYARD: Okay.16

17

MR. MOORE: Just briefly going through, Mr. Stoner has kindly lent me his18

highlighted copy.19

20

MR. JUSTICE HILDYARD: Just give me a moment, would you? (Pause)21

22

MR. MOORE: He has given me his highlighted versions. Going through swiftly,23

in paragraph 33 of Powell - sorry, I think I have got that wrong.24

25

MR. JUSTICE HILDYARD: That is all right.26

27

MR. MOORE: No, I am sorry, my Lord. It is paragraph 33- G, just referring to the28

concept of home and the protection of Article 8, it says, It will depend on29

the factual circumstances namely the existence of sufficient and continuous30

links with a specific place. For however much it would assist the case, my31

home has been at this particular location. The actual shelter that I have had on32

this location is first Platypus and then "Gilgie", so I would have said that33however mobile those homes were, they were significantly attached in these34

terms to this particular location as being my home. The case in my instance35

would be a much stronger one than the situation where it was a caravan that36

had arrived at s site and only there for two days where still it was not contested37

that the question of Article 8 would not come up. It also goes on to the38

legitimate aims. I am not going to go further on that one, my Lord. That was39

as much as I could pick up from going in that one.40

41

As far as looking at Pinnock was concerned, from paragraph 45, it says42anybody in principle should have the right to raise the question of43


32/45



30

proportionality even if the right of occupation has come to an end. The1

conclusion at the end of that paragraph 45 is talking about what the European2

Court of Human Rights has flanked in terms of the views they took on Article3

8 and continued possession. Both this and all the other case law so far as I can4

see, other than the one I referred to, Gillow v. The United Kingdomis all5dealing with a balance between one persons right of possession and another.6

What I am saying is that this is not the same question. I understand that Mr.7

Stoner has raised the fact that it can be rights of possession or management8

decisions. From looking through these cases I understand it to be looking at9

management decisions only in respect of the role of the property-owning10

authority managing its property. It is in the light of competing property11

interests, not as I would see it a question of management decisions only. That12

is about as much as I can usefully add, my Lord, so far as those cases are13

concerned.14

15

MR. JUSTICE HILDYARD: It seems to me that you may argue that there is no16

two - stage but only a one-stage process. You do not have to find the key to17

the lock. You have got to accept - or Mr. Stoner must accept you when you say18

that proportionality in the European sense is always to be addressed, but the19

person alleging that the act was not proportionate is going to have to, in real20

terms, surmount an obstacle which is the reluctance and refusal of the court to21

become involved in management decisions. I think you may very well submit22

to me, in thinking about it, that there is not a two-stage approach; that Powell23

has confirmed that there is a one-stage approach, but the burden is very much24

on you to demonstrate why the prima facie position that managers should be25

entitled to manage should be upset. I sense that Mr. Stoner may accept that.26

So you would say, therefore, we must look at proportionality in the round. This27

is not a case where you could simply be satisfied with the management28

decision made. This is an exceptional case where the management process has29

been flawed and hurried. Therefore we should consider all the matter in the30

round. I think that is what your position is, is it not?31

32

MR. MOORE: I would say so, my Lord, with the additional aspect, whether you33accept it or not, of the fact that the cases as far as I have read and understood34

them refer to management decisions over the control of property - given that it35

is the property law that we are balancing - the competing rights of possession.36

37

MR. JUSTICE HILDYARD: I think it may go broader than that. I understand38

what you are submitting, but I think it may go broader than that to39

management decisions. It is not right of ownership. It is right of control really40

which his in issue and the exercise of rights of control as a management41

matter. I take your point. Can I just ask one further point, unless you wish to42add on this? You do not say, do you, that if I were to conclude that there was a43


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31

flawed management process that I necessarily have to quash the notices. I1

could, for example, and I will ask Mr. Stoner about this as well - I could say I2

wish the matter to be reconsidered and any proportionality arguments to be re-3

addressed at a future date. The reason I ask this is that if I quash the notices I4

simply set up another long case for the courts and I think that that would, of5itself, be disproportionate. I am trying to find a way. Do you see what I6

mean? I do not think you were saying that I would have to quash, are you?7

8

MR. MOORE: I would certainly ----9

10

MR. JUSTICE HILDYARD: You would urge me to do so.11

12

MR. MOORE: Yes, exactly.1314

MR. JUSTICE HILDYARD: But you are not saying I am railroaded into it. I15

should do it.16

17

MR. MOORE: I could not back that up with anything more than the example of the18

cases I have shown where that was the instance.19

20

MR. JUSTICE HILDYARD: Where there was a quashing.21

22

MR. MOORE: Yes. I would also add, I think, that the inevitability of anything23

going further is not demonstrated. One of the things that I did - I mean, that24

would be entirely, I suppose, a matter for BW, but as the court itself had had25

urged on both of us back in 2009, to consider whether or not this could not be26

resolved through alternative dispute resolution of some description. That is27

something that, I think, that is always ----2829

MR. JUSTICE HILDYARD: Yes, later one may have regrets, but I am not saying30

either one of you. I am not apportioning blame. It is a terrible shame that this31

matter has had to grind through the courts. It is terrible.32

33MR. MOORE: If this is quashed it is not an inevitable outcome unless British34

Waterways ----35

36

MR. JUSTICE HILDYARD: It is, is it not, because then you would rely on your37

human rights to have a court adjudicate on the validity. In the real world I38

cannot really shut my eyes to that. It may be a consequence I have to accept.39

If I quash this, unless British Waterways Board simply decide they do not want40

to proceed at all, then they will have to serve notices which gives you the41

opportunity to go to court and some other poor chap in my position will have42to grind through the whole thing again. That is right, is it not?43


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32

1

MR. MOORE: I am sorry that ----2

3

MR. JUSTICE HILDYARD: I am sorry, I indicated a sort of sense upon me, which4

I do not wish to indicate to me, but it has been a long and expensive process. I5would not wish it to happen again of my own motion. Is there anything else6

that you want to add?7

8

MR. MOORE: Not that I can think of, my Lord.9

10

MR. JUSTICE HILDYARD: Mr. Stoner, I have two points really, unless you have11

anything further in reply.12

13

MR. STONER: I was just going to mention a couple of points briefly in reply on14

whether it is a one-stage or two-stage.15

16


18

MR. STONER: I think really I rely on paragraph 37 of Powell. What I say there,19

or what the Supreme Court said there, Lord Hope, was because

Documents

Moore v BWB, Human Rights Debate, Feb 2012