Moore V BWB On Human Rights

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
No. HC07C02340
1 2 3 4 5 6 7 8 9 10B E T W E E N : 11 Before: MR. JUSTICE HILDYARD
The Royal Courts of Justice Thursday, 16th February 2012
12 NIGEL PETER MOORE 13 14 - and 15 16 BRITISH WATERWAYS BOARD 17 18 19 20 _________ 21 22 23 Transcribed by BEVERLEY F. NUNNERY & CO 24 Official Shorthand Writers and Tape Transcribers 25 Quality House, Quality Court, Chancery Lane, London WC2A 1HP 26 Tel: 020 7831 5627 Fax: 020 7831 7737 27 Email: info@beverleynunnery.com 28 29 30 _________ 31 32 33THE APPLICANT appeared in person. 34 35MR. C. STONER (instructed by Shoosmiths) appeared on behalf of the Respondent. 36 37 _________ 38 39 40 P R O C E E D I N G S A.M. ONLY
Applicant
Respondent
BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2 3
1 2 3 4 5 6 7OPENING 8 9 Mr. STONER 10 Mr. MOORE 11 12 13 14
INDEX Page No.
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1MR. JUSTICE HILDYARD: Before giving judgment may I just mention that a 2 gremlin has crept into the system in the following way. Because I have made 3 some amendments from the draft in every case in order to accommodate your 4 very helpful comments and to try and make sure that whether right or wrong 5 what I had stated was clear, I have made a number of amendments. I had 6 hoped that the tracked version would signify precisely where those 7 amendments were, but the gremlin has crept in and there are some 8 amendments in the final draft - and I hope you have a copy of that final draft 9 which is in the closed space print - which do not appear in your tracked 10 version. Now, in particular there are three references, just so that you should 11 know the format which I intend to prove. There is a chance at paragraph 108 12 which is not in the tracked draft. It is not of great moment. It is really a matter 13 of editorial substitution of the word absolute for extensive. Then more 14 materially at 139 there is a change. I have slightly changed the end of that, if 15 you would like to read through that. Then lastly at paragraph 230, that has 16 been changed but does not show up in your tracked draft for reasons beyond 17 my ken. Are those clear? In that case, for the reasons that I have set out in 18 the closed typed version, copies of which have been available to you in draft, I 19 find in terms of the conclusions that I have sought to set out in paragraph 233 20 of the judgment. I should say that the judgment I now hand down is subject to 21 editorial corrections in case there are any further - and I would be very grateful 22 for any to be pointed out - but subject to that caveat, a copy may be used by 23 court reporters, if any, for reporting purposes, and a copy of the final judgment 24 will be produced after receipt of any further editorial comments you may have 25 by my clerk by tomorrow and will then be posted on the usual websites. 26 27 We now have to deal principally with matters which I felt able only to express 28 a provisional - and by that I truly mean provisional - that is to say I am still 29 open to persuasion on both limbs with respect to my concern as to 30 infringement of the claimants human rights. We then have to deal with any 31 other matters which ordinarily arise after judgment of this kind. Thank you 32 very much, both of you, for very helpful written submissions, which I have 33 read, but which I would still like assistance. The fact that in the human rights 34 arena change is constantly afoot is demonstrated by, I think, two decisions in 35 2011 of the Supreme Court, each with a board of seven I think. So it is a 36 matter which I want to tread with care and with your assistance. Who would 37 like to go first? 38 39MR. STONER: My Lord, I am entirely in your hands, but in circumstances where 40 your preliminary view was that my clients had breached Mr. Moores human 41 rights, perhaps it would fall on me to go first. The other point is that in the 42 written submissions - I know my Lord has been provided with a copy of 43 Pinnock and Powell.
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1 2MR. JUSTICE HILDYARD: Thank you. 3 4MR. STONER: I do not know if Mr. Moore has copied them off the internet, but if 5 not there are copies there of those cases. 6 7MR. JUSTICE HILDYARD: You will also be addressing, will you, what ---8 9MR. STONER: Legitimate expectation. 10 11MR. JUSTICE HILDYARD: Yes, the response of the court to that. 12 13MR. STONER: Yes. My Lord, I will take the matter relatively shortly because of 14 course I have set out my position fairly extensively in writing. 15 16MR. JUSTICE HILDYARD: Yes. 17 18MR. STONER: On the human rights, although this is not actually a claim for 19 possession, there is unquestionably a clear correlation to the possession cases, 20 both Manchester City Council v Pinnock (which I will refer to as Pinnock, if 21 I may) and Hounslow Borough Council v Powell (which I will refer to as 22 Powell if I may) were different types of possession cases under the various 23 Landlord & Tennant legislation, but ultimately in this particular instance 24 Article 8 is engaged because Gilgie is Mr. Moores home and in my 25 submission the same principles apply. The key, in my submission, is to look at 26 the Pinnock decision as a starting point. This was the first in time of the two 27 judgments of the Supreme Court. It in fact involved a demoted tenancy. So it 28 was a relatively self-contained aspect of Landlord & Tenant law. But to no29 ones surprise the Supreme Court in the subsequent decision of Powell applied 30 the reasoning of Pinnock in the wider application of the Powell case. In 31 Pinnock , if I can pick it up at the beginning of paragraph 51, [2011] 2 AC 126. 32 In Pinnock it was a panel of 7 but the judgment of the court was that of Lord 33 Neuberger. He had, prior to this, set out the various European Court 34 judgments. Perhaps I should observe that back at paragraph 45, having 35 summarised those European Court of Human Rights decisions, after (d), the 36 new paragraph, he says, 37 38 Although it cannot be described as a point of principle, it seems that the 39 EurCtHR has also franked the view that it will only be in exceptional 40 cases that article 8 proportionality would even arguably give a right to 41 continued possession where the applicant has no right under domestic law 42 to remain... 43
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1 In my submission, that is another key link with these cases with Mr. Moores 2 circumstances in that as a result of my Lords judgment you have determined 3 that the vessel has no right in domestic law, if I can put it that way, to remain 4 where it is. 5 6MR. JUSTICE HILDYARD: Yes. 7 8MR. STONER: So the question then becomes: what is the effect of that. The core 9 of the decision in Pinnock begins at paragraph 51. 10 11MR. JUSTICE HILDYARD: 51 and 52 really because ---12 13MR. STONER: 52 is the absolute core. 14 15MR. JUSTICE HILDYARD: My understanding is - and I noticed it was a nine16 man court in Pinnock ---17 18MR. STONER: I am sorry, yes. 19 20MR. JUSTICE HILDYARD: My understanding is that whilst accepting that it 21 would be quite difficult for someone to raise a successful human rights 22 argument, bearing in mind that the court could not get into subtle management 23 and proprietary issues, nevertheless proportionality in the true sense of it rather 24 than Whensbury unreasonableness, proportionality in the true sense would 25 always be a factor if raised by the defendant. 26 27MR. STONER: Yes, and my understanding globally of Pinnock and Powell 28 subsequently is that unless there is cogent evidence to go behind the decision 29 as per paragraph 52 of Pinnock , if the public authority is exercising ownership 30 rights, that is not relevant here for reasons we know. Or it is exercising its 31 management duties - and I say that is precisely what British Waterways was 32 doing in this case. Then unless there is a cogent reason to go behind that, it is 33 taken as a given - as is put in certain passages - that that is proportionate for a 34 legitimate aim. Of course, the purpose, in my submission, behind that is that if 35 that were not the case, then in British Waterways case every time they took a 36 decision in relation to a vessel which was someones home, or fell within the 37 category of someones home (and there could be all sorts of arguments there, 38 not just necessarily as here where Mr. Moore lives permanently on the vessel), 39 then that decision would be subject to scrutiny by the courts on a human rights 40 aspect. In my submission it was that sort of everything coming before the 41 court that the Supreme Court were desperately keen to avoid. 42
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1MR. JUSTICE HILDYARD: I mean all analogy is ultimately inaccurate but one 2 finds it in a field where I am frankly more experienced, which is in the 3 company law field. The court will never second-guess a matter of 4 management because otherwise it would be running every cake and ale stall in 5 the country. So you have to show some reason either why what was decided 6 was improper, i.e. without the management function, or seems to be for a 7 purpose which the court simply cannot follow and needs to explore, if I can 8 put it that way. 9 10MR. STONER: What I say in the context of the present case is that Mr. Moore ran 11 two arguments. One was that the section 9 notices were served for reasons of 12 and I do not mean anything necessarily by this term - but a conspiracy with the 13 developers. 14 15MR. JUSTICE HILDYARD: Yes. 16 17MR. STONER: Secondly as a separate argument, as my Lord has addressed in his 18 judgment, he ran an argument that British Waterways served these notices for 19 an improper purpose. They had an improper motive in serving the notices. As 20 I understand my Lords judgment, my Lord has said no to both of those 21 arguments. In my submission that may have been the sort of cogent evidence 22 that would be necessary for the court to say: actually this is taken out of the 23 ordinary management decision and into the situation where we have to 24 consider it more carefully. My clients note very much the criticisms that my 25 Lord has levied at them in frankly the entire process, but at the core is a 26 management decision. If the court in my submission is in the field of: well, it 27 would have perhaps taken a slightly different decision at a different point, or 28 had gone about it in a slightly different way, that is not the cogent evidence 29 that is necessary. Of course, one could always say with every management 30 decision that unless it is absolutely a tick-box decision that it could perhaps 31 have been done in a different way on a different day etc. 32 33MR. JUSTICE HILDYARD: I am sorry to interrupt you because you have been 34 very helpful, but the concerns that I have in a nutshell are these: first, unless 35 you show me otherwise, there has been no cogent explanation as to why these 36 vessels had to be removed. The context in which that sort of question arises in 37 my mind is the fact that in the past there has been no objection, which is a 38 point made by Mr. Moore in his written submissions as previously. Whilst I 39 have, as you quite rightly say rejected the notion of a conspiracy, the way in 40 which it was proceeded with gives rise to a concern that there was no real 41 reason for the exercise of what you accept is a very draconian power. 42
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1MR. STONER: What I say is those concerns, in the human rights context, do not 2 get anywhere near the level of the cogent evidence. In response to the points 3 about others on the waterways, my Lord has not heard evidence about those 4 others and we do not accept, necessarily, what is said. I am aware, for 5 example, that British Waterways has leasing arrangements with individuals up 6 and down that stretch of waterway. Whether or not that is relevant - I am not 7 saying necessarily it is - but there may well be explanations. The 8 concentration has to be, in my submission, on these vessels. I am not 9 encouraging this for one moment but if my Lord were minded to go down a 10 finding on the human rights which was fact-dependent, I think my Lord would 11 have to consider as to whether there should be a further hearing to determine 12 the factual background for that. In my submission those matters do not arise. 13 14 To also answer, I think, the other point I have not yet answered in relation to 15 what my Lord raised, the reality of the situation - and in my submission it is 16 clear from Mr. Farrows statement (whether it was right or whether it was 17 wrong) that the reason that these vessels were served with notices is because 18 they were unlicensed on the waterway. That is what I sought to do in my 19 written submissions, putting aside the issue of whether they needed a licence 20 or not, ultimately another way of putting that is that the decision was taken 21 because they had no entitlement to be there. In my submission that is a 22 perfectly legitimate management function and decision to take that, and that 23 falls outside of the scope of what the court would consider on a human rights 24 challenge. So that was the stated reason; that was the evidence. My Lord, I 25 do not under-estimate the point I made in my written submissions. It may be 26 that there is an element of speculation about it but if ultimately Gilgie is 27 allowed to remain simply because - or in circumstances where it has no legal 28 entitlement to be there, but simply because it is someones home, and there is 29 no particular reason for British Waterways to move it on, not only does that, in 30 my submission, fly in the face of the approach that we know from the Supreme 31 Court, but as a matter of fact it really does encourage the possibility and 32 probability that the tidal stretch of the Grand Union Canal will fill with vessels 33 which are peoples homes which British Waterways, on the face of it, would 34 be powerless to stop until the congestion perhaps got so bad that one could 35 show, in relation to a specific vessel, that it was clearly interfering and 36 obstructing navigation. In my submission, it is a perfectly legitimate 37 management aim to say, in effect, we prefer the situation where if someone is 38 not entitled to be there, we will move them on and we will keep the waterway 39 managed on that particular basis. 40 41 In many respects, if I have understood my Lords judgment correctly, the main 42 criticisms were really with the haste with which these notices were served. 43
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1MR. JUSTICE HILDYARD: I think the main criticisms were, yes, the haste and 2 my finding that you took a risk that this was a home. 3 4MR. STONER: Yes. 5 6MR. JUSTICE HILDYARD: And that was in breach of your own practices and 7 although they are separate issues they feed into another, and I think in one of 8 the cased - it may have been Kay - there was an express reflection of the fact 9 that a breach of even a procedural legitimate expectation may feed an 10 infringement of human rights. 11 12MR. STONER: Yes. Another aspect is that the court would have to be very clear 13 as to what the actual breach is going to be. In my submission there is none, 14 but if you were against me and you were to find that there was a breach, that 15 would have to be clearly identified because if it were a procedural breach from 16 a human rights perspective, in my submission, the obvious relief - I have put in 17 my written submissions that in those circumstances in effect it is a defence, but 18 my clients would be entitled in those circumstances, if they breached their 19 procedure, to go back and not ignore the last four and a half years worth of 20 litigation, but rather to send Mr. Moore.... In fact, I would venture to suggest, 21 I was going to say the standard letter, the Live-aboard 1 as it is known. That 22 may not actually on its wording be particularly appropriate, but to have an 23 amended form of saying in light of the decision of his Lordship, etc, etc. 24 25MR. JUSTICE HILDYARD: I take your point that one has to determine whether it 26 is a substantive or procedural breach. If substantive then there will be all sorts 27 of questions, including compensation etc. If procedural, then that is more 28 unlikely to arise. 29 30MR. STONER: Yes. I will come on in due course to legitimate expectation where 31 my Lord has already indicated that was a procedural breach. 32 33MR. JUSTICE HILDYARD: Yes. 34 35MR. STONER: Just dealing with human rights at the moment, in my submission it 36 is rather difficult to see what substantive breach there might be because really 37 one is there only left with the factors of firstly this being Mr. Moores home 38 and second British Waterways not actually being able to show a positive 39 reason as to why the vessel should go. That is why I say this simply falls 40 down or the argument falls down at that stage because of Pinnock and Powell. 41 There is not that cogent evidence to get over that high threshold that is referred 42 to. The European Court of Human Rights preferred the phrase 43 exceptionality whereas the Supreme Court preferred the fact - and in fact
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1 Lord Neuberger refers to the fact that Lady Hale had pointed out in argument 2 that exceptionality is an outcome, not a guide, and hence the reason they 3 preferred the straight concept of proportionality. 4 5 Ultimately, in my submission, this was a management decision that was taken 6 by British Waterways to remove a vessel which your Lordship has found had 7 no entitlement to be there. British Waterways is vested with the management 8 function for that waterway for the public, including protecting public rights of 9 navigation and matters of that sort, and they are perfectly entitled to do that. 10 Mr. Moores human rights have simply not been breached. 11 12 Is there anything else I can assist on the human rights argument? 13 14MR. JUSTICE HILDYARD: No. Well, let me think about that. I understand your 15 point that at most it is a question of process fed by the breach of legitimate 16 expectation, given that it turned out to be his home. 17 18MR. STONER: Yes. 19 20MR. JUSTICE HILDYARD: Do you say that it is relevant and if so how relevant 21 that at the time the notices were served actually his home was Platypus and 22 only subsequently did he move to "Gilgie"? 23 24MR. STONER: I say it is relevant. I have not put it at the forefront of my 25 arguments. I noted that my Lord raised the point and I was not simply going 26 to jump on to that because it was in the draft judgment. Its key relevance, in 27 my submission, is this: it shows what I have described, and perhaps it is not 28 the best wording, but the futility when one comes to the procedural breaches or 29 alleged breaches, because in my submission as an exercise in proportionality 30 the court has to have regard to the fact that we have had four and a half years 31 worth of heavily contested litigation in which every conceivable argument that 32 Mr. Moore could wish to have raised has been ventilated. Now, that is 33 relevant, in my submission, because if I can draw a rather inelegant analogy, 34 but on the possession footing as well, I am not sure how familiar my Lord will 35 be with the standard possession procedure, but if it was a possession action and 36 they had issued their Part 55 (claim rather like the Part 8) it would come for 37 the initial hearing, of which the court would either make a decision or give 38 directions. Well, if at that initial hearing which may, in idealistic theoretical 39 hopes, be within about four weeks of issue, if the boater turned round and said: 40 well, actually I had a legitimate expectation that you would go through this 41 procedure and your procedure means that notices will not be served until after 42 42 days as a minimum because Live-aboard 1 says 28 days, Live-aboard 2 says 43 14 days, then in those circumstances there may be a very good ground for
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1 saying: yes, British Waterways, go back to home base. You have 2 disappointed the legitimate expectation and you have to address that. Four and 3 a half years worth of litigation is a rather different circumstances. Touching 4 upon legitimate expectation ---5 6MR. JUSTICE HILDYARD: I am sorry, but my initial question was: does the fact 7 that he was on Platypus and moved to "Gilgie" signify in terms of whether 8 there is an infringement or any obligation under Article 8? 9 10MR. STONER: In my submission the answer ultimately is yes. What I am saying, 11 rather inelegantly, is that where it becomes difficult is because of the passage 12 of time and because he is not now even on the same vessel, it shows the real 13 difficulties, given what has happened, of on a procedural breach, ultimately 14 giving relief which, in my submission, can only mean that the process has to 15 be restarted because if my Lord were to give relief either on legitimate 16 expectation or human rights, saying there has been a procedural breach 17 because British Waterways did not go through the notice procedure, if I can 18 put it in that way, then in my submission it would not be proper - and I do not 19 understand the court to be posing - that the relief that would be granted would 20 prevent British Waterways from going through that procedure after this case is 21 finished. That is why I say about the futility of if the legitimate expectation 22 has been breached, after four and a half years worth of litigation, to go back 23 and then my clients have to write to Mr. Moore and say: You are now on 24 Gilgie. You have no entitlement to be there. Please move the vessel within 25 28 days or regularise the position, or we will contemplate serving Section 8 26 notice and quite possibly a section 13 notice as well. The comparison, when 27 dealing with legitimate expectation, with the Ng Yuen Shiu case, is that there 28 of course Mr. Ng Yuen Shiu had a legitimate expectation that a consultation 29 exercise would take place before a deportation order was made, if a 30 deportation order was to be made. Of course, what the courts there did is they 31 quashed that deportation order and said: you must go back and you must have 32 the consultation. But that is entirely without prejudice to the fact that you may 33 come to the same conclusion - rather not come to the same conclusions; that 34 would be inaccurate, but the same conclusion may bear out. Where I say there 35 is a clear demarcation in this case is that Mr. Moore has had that consultation. 36 If one considers what the procedural breach or expectation that has been 37 disappointed actually was, it was an opportunity for two things. One was a 38 period to put his case, and the second was the sanctity and the safety of 39 knowing that British Waterways would not take action without the sanction of 40 the courts. Well, actually of course British Waterways gave the undertaking 41 that it would not do anything without the sanction of the court at a very early 42 stage. My Lord has seen from the forest of papers that we have got - not
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1 suggesting of course that they are all correspondence - but there was extensive 2 correspondence. 3 4 Ultimately perhaps a way of looking at it, my Lord, is this. If the Section 8 5 notices were set aside and the procedure would be started afresh, would there 6 be a different outcome? I think that is where my four and a half years worth 7 of litigation comes in because in my submission the answer is no. That is 8 why in my submissions on legitimate expectation I highlighted the passages in 9 the cases where I said sometimes there may be a finding of legitimate 10 expectation but nothing more arises from that. I think it is highly relevant in 11 this context that until the preliminary issues were determined Mr. Moore did 12 not even accept that British Waterways had any locus in relation to this stretch 13 of waterway. So that point would have to have been overcome. 14 15MR. JUSTICE HILDYARD: Sorry to interrupt and do correct me if I am wrong 16 because I am feeling my way here. 17 18MR. STONER: Of course. 19 20MR. JUSTICE HILDYARD: In the unpronounceable case one could not know 21 really what the process of consultation would result in. It might result in the 22 same and it might result - and this was the point ----23 24MR. STONER: Absolutely. 25 26MR. JUSTICE HILDYARD: ---- in something different. Here you say there is no 27 something different; it is merely process. Therefore you have to ask what 28 difference has the failure of process as a pure pragmatic matter make? 29 30MR. STONER: The word I think I used in my written submissions is in Ng Yuen 31 Shiu had been deprived of something. He had been deprived of the 32 opportunity to have consultation which might have led to a different outcome 33 and that is why the Privy Council said it is entirely without prejudice to the 34 fact that another deportation order may follow. But perhaps they thought it 35 was one of those cases where it probably would, but that did not obviate the 36 fact that Mr. Ng Yuen Shiu had a legitimate expectation that he would have an 37 opportunity, as I understood the consultation. It would be an interview, so he 38 would have his opportunity to plead his case. Contrast this case: in my 39 submission Mr. Moore, by reason of the procedural breach, has simply not 40 been deprived of anything because we have had hugely expensive litigation 41 and despite the criticisms of this side, I hope the criticisms are not universal. 42 In my submission one of the notable features is that my clients have not sought 43 for me to take pleading points in relation to this case. They have sought to
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1 meet any points that Mr. Moore has sought to raise. Perhaps an illustration of 2 that is the property point. The property point was parked for the purposes of 3 this trial, but as my Lord records in the judgment, ultimately that came back to 4 the position that we said should have been the case in the first instance; we 5 were just relying on a navigation authority. Mr. Moore has not been deprived 6 of anything and he cannot say, at the end of this case, No, I have not been 7 given my opportunity to put point X and that is the critical factor. That is 8 why procedural human rights and also legitimate expectation, in my 9 submission - I drafted up a minute yesterday and it is entirely right, in my 10 submission, and in the light of my Lords judgment that it be recorded in the 11 judgment by way of a declaration that his legitimate expectation has been 12 breached; but equally the order then, in my submission, should continue that 13 there be no further order required in that respect. 14 15MR. JUSTICE HILDYARD: One thing puzzled me, but I think it is answered by ... 16 Wandsworth LBC v Winder: because it is always so hard to shed the clothes of 17 the past, one always expects these sorts of matters to be dealt with by the 18 Admin Court with orders for certiorari and that sort of thing. 19 20MR. STONER: Yes. 21 22MR. JUSTICE HILDYARD: My appreciation or perception of the cases - in 23 particular Wandsworth v Winder - is that there is no straight jacketed process 24 and this court could do what the Admin Court could do, if satisfied that it was 25 warranted. 26 27MR. STONER: My Lord, yes, understanding the overlap as well. In that way it 28 would make no sense if this court were of the view that the Section 8 notice 29 should be quashed. 30 31MR. JUSTICE HILDYARD: Yes. 32 33MR. STONER: For this court to say that it did not feel that it had the jurisdiction, 34 so to encourage yet further proceedings at yet further expense for another court 35 to consider in effect whether that should be the case. So I take no point there. I 36 just rely on the substance and say this is actually a case which falls well short 37 of any relief being appropriate. 38 39MR. JUSTICE HILDYARD: Beyond a declaration. 40 41MR. STONER: Beyond a declaration. And when it comes to human rights I 42 simply say that the correct approach is actually to perhaps reverse the 43 situation, fi I may it that way, from my Lords preliminary views in the
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1 judgment and say: well, actually the management decision is a given. It is 2 over to Mr. Moore to show why it is disproportionate that he should move off, 3 and I have highlighted a number of reasons. It is a feature of this case that Mr. 4 Moore has not produced evidence in relation to that. It is also a notable feature 5 of this case that one of the points that he has prayed in aid is that this vessel 6 has a home mooring elsewhere in Brentford. So this is not even a case where, 7 as sometimes happens with boaters for British Waterways where one of the 8 points that the court has to consider is that actually this person may have to 9 move away from their friends, their job etc, which is not a determinative 10 factor, but it is a factor for the court. That does not arise in this particular 11 instance. So for all the reasons I have put in writing I say it simply does not 12 get off the ground on human rights in this case, in my submission. 13 14MR. JUSTICE HILDYARD: What you would say, being entirely brutal about it, is 15 this: whatever I might feel in the round, in reaching a provisional conclusion I 16 have too lightly stepped over the hurdle which is for Mr. Moore to surmount of 17 showing why the court should go behind the curtain of a management 18 decision? 19 20MR. STONER: Yes, I do say that. In fact I think perhaps even slightly stronger, if 21 I may, I say what my Lord has concentrated on is the lack of explanation from 22 British Waterways as to justification, whereas I say the relevant law shows that 23 that is precisely what my client does not have to prove. It is for Mr. Moore to 24 show that actually he can overcome the hurdle, and it is a high hurdle, to show 25 that his particular circumstances - and that is why I put in the written 26 submissions the quote from the Disability and Services Commission as a sort 27 of example that actually if someone has got particular difficulties then that 28 may well be the sort of thing that the court would wish to consider. So to take 29 perhaps a silly example Mr. Moore is moored where he is. If he had to have a 30 24 hour oxygen supply which could not be done through tanks but piping had 31 been installed to the vessel by the Local Authority because that was necessary 32 in case of a particular incident, then that would be a highly relevant factor. It is 33 that sort of unusual factor, in my submission. However, there is simply 34 nothing here. 35 36MR. JUSTICE HILDYARD: If I were against you on this, both as regards 37 legitimate expectation and as regards infringement, and as Mr. Moore, I am 38 sure, will elaborate, he says that he should receive compensation. 39 40MR. STONER: Yes. 41
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1MR. JUSTICE HILDYARD: I know your argument that this is mere say-so and 2 there is no evidence of loss, but that could be dealt with by adjourning the 3 hearing yet further. 4 5MR. STONER: It could. 6 7MR. JUSTICE HILDYARD: In order that there be some sort of enquiry or 8 evidential analysis of that. 9 10MR. STONER: My Lord, that is right. What I say is on the human rights first of 11 all the cases that Mr. Moore has referred to in his written submissions are 12 European Court of Human Rights cases, and what my Lord must be careful not 13 to do is to conflate the jurisdiction of the European Court of Human Rights 14 and this court. In fact this court does have jurisdiction to award damages in 15 human rights cases, but it is actually Section 8 of the Human Rights Act 1998. 16 17MR. JUSTICE HILDYARD: Yes. 18 19MR. STONER: It makes it plain - it is Section 8(3) - I am just reading from the 20 White Book now ---21 22MR. JUSTICE HILDYARD: Page? 23 24MR. STONER: It is in Volume II, page 1308. If I start with 8(1). (1) In relation to 25 any act... - as it would be in this case - ... (...) of a public authority which the 26 court finds is (or would be) unlawful, it may grant such relief or remedy, or 27 make such order, within its powers as it considers just and appropriate. That 28 is fine. 29 30MR. JUSTICE HILDYARD: Yes. 31 32MR. STONER: (2) But damages may be awarded only by a court which has power 33 to award damages... I think the civil high court has power to award damages. 34 Then the critical aspects is 8(3) No award of damages is to be made unless, 35 taking account of all the circumstances of the case, including - (a) any other 36 relief or remedy granted, or order made, in relation to the act in question...; 37 (b) the consequences of any decision (...) in respect of that act - the court is 38 satisfied that the award is necessary to afford just satisfaction to the person in 39 whose favour it is made. Then in the notes at 3D/41 there is a reference half40 way down the note to Anufrijeva v. London Borough of Southwark. It said: 41 42 The court made clear its view that damages are not available as of right 43 like damages for tort, but only as a discretionary remedy of last resort.
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1 The guiding remedial principle is restitutio in integrum so that the 2 claimant should, as far as possible, be put in the position in which he 3 would have found himself if Convention rights had not been infringed. 4 However, account must first be taken of effect of any other remedies 5 which the court has been able to provide. Any remaining significant 6 pecuniary loss caused by the breach should usually be assessed and 7 awarded, but caution is to be exercised when deciding whether to award 8 damages for non-pecuniary loss and if so how much. The consequences 9 of the breach must be serious. The damage must be more than distress 10 and frustration, and the scale and manner of the violation can be taken 11 into account. 12 13 Now in this particular instance, in my submission, breaking it down, if my 14 Lord were against me and there were a breach of human right it would be a 15 procedural breach. That procedural breach would in effect entitle the vessel to 16 stay where it is until such time as that procedural breach is remedied. That 17 would be the appropriate relief and therefore one simply does not get on to the 18 question of damages. When it comes to the legitimate expectation, in my 19 submission the argument is much the same because in the decision of Lord 20 Woolf I referred to in my written submissions, he breaks it down into the three 21 categories. This is a procedural expectation, and he says that what the court 22 will do is if there has been a procedural legitimate expectation disappointed it 23 will require the consultation to take place and that would be the appropriate 24 relief. 25 26MR. JUSTICE HILDYARD: Yes. 27 28MR. STONER: If you are against me on all of that, then unfortunately we would be 29 into a further hearing scenario because Mr. Moore has asserted that he has lost 30 sums and that he could not carry on the business. What the court has not 31 examined are factors such as why the business could not be continued in 32 circumstances where British Waterways had given an undertaking that it 33 would not take any action on the Section 8 notices pending the outcome of this 34 case. 35 36MR. JUSTICE HILDYARD: Sorry, there may be - carry on actually. 37 38MR. STONER: Also in relation to the allegations of certain individuals have 39 moved vessels away because of the Section 8 notices, that again would have to 40 be something that would have to be examined. In so far as a caveat applicable 41 only to legitimate expectation, of course in the circumstances in which 42 legitimate expectation arose in this case, that plainly was not on the plate for
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1 trial because it was a point that was only explored afterwards, so my client 2 must have, in my submission, the opportunity to deal with that. 3 4MR. JUSTICE HILDYARD: Yes. 5 6MR. STONER: In my submission, for the reasons I have set out, we do not actually 7 get to that stage. 8 9MR. JUSTICE HILDYARD: I put this through you partly so that Mr. Moore can 10 be thinking about it in the meantime. It does seem to me that Mr. Moore would 11 have to persuade me that I can take into account other vessels, bearing in mind 12 in the case of legitimate expectations and the human rights infringement, if 13 there was one. It is very specific to the loss of his home. Secondly, and 14 perhaps another facet of that, one would have to show loss, not in consequence 15 of any other boats being there or not being there, but in consequence of the 16 loss or worry about the loss of hope. In other words, I would expect the court 17 to be fairly precise as to what the thing which needs just satisfaction is. 18 19MR. STONER: Yes, especially the matters of a disappointment and the threat of 20 the Section 8 notices, as per the extract from the White Book - non-pecuniary 21 losses. The court should be very slow to consider that sort of matter. 22 23MR. JUSTICE HILDYARD: It is hard to know how the court ever does assess it 24 but perhaps the court in its mysterious way just comes up with figures. 25 26MR. STONER: Yes. What I would say, and it was not appropriate for today, but I 27 have the Clayton & Tomlinson tome on human rights. There is a whole 28 section in there, unsurprisingly, on damages. It appears from quickly looking 29 at that - I was going to say if the court was going to go down that route, I think 30 that would have to be another day because one would have to consider those 31 cases. But as I understand it from that short extract, if the court is minded that 32 there should be damages, the assessment is as per a tortious liability. So there 33 would have to be causation shown and matters of that sort in terms of 34 pecuniary loss. Non-pecuniary loss is very difficult. My Lord, if I can assist 35 you in any way in relation to either of the points.... 36 37 Perhaps the only other point directly in relation to the different vessels, Mr. 38 Moore said that he lost his home Platypus because the owner decided to 39 move that vessel away, although that would have been about half-way through 40 the currency of these proceedings. But again, in my submission, there is just 41 no evidence in relation to exactly why that happened. 42
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1MR. JUSTICE HILDYARD: It is not unusual, but I must say that I have found it 2 difficult in separating what is assertion and what is evidence. 3 4MR. STONER: Yes. 5 6MR. JUSTICE HILDYARD: I do not blame Mr. Moore for that because he has 7 done a very thorough job in terms of presenting his case. But it has 8 complicated issues and I think it is right that if there were any question of 9 damages, then we would have to have another hearing with directions as to 10 exactly what must be done. 11 12MR. STONER: Yes. 13 14MR. JUSTICE HILDYARD: I may very well need your assistance again. 15 16MR. STONER: Of course. 17 18MR. JUSTICE HILDYARD: Mr. Moore, would you like a go now? Do you need 19 any time to think things through, or are you content to proceed? 20 21MR. MOORE: My Lord, thank you. I strongly suspect that ... as you know I will 22 not be frightfully learned about this. 23 24MR. JUSTICE HILDYARD: Oh, I would not say that at all. I think your learning 25 has been very helpful and impressive. I have read carefully your written 26 submissions, so I assume that I have. 27 28MR. MOORE: The latest one, my Lord? 29 30MR. JUSTICE HILDYARD: Yes. 31 32MR. MOORE: I do not think I can say terribly much more than what I have put in 33 there. If I can address just some of the points as I see are relevant from what 34 Mr. Stoner said, which is why I believe it was useful for him to have gone 35 first. 36 37MR. JUSTICE HILDYARD: Yes. 38 39MR. MOORE: As far as the question of proportion is concerned, and this being 40 relevant to the management decision, I am saying that it is a very important 41 factor because if this was going to be regarded as a proportionate action, then 42 all boats that were in exactly the same situation would have to have been
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1 treated in the same way, which they were not. I take your point that you would 2 perhaps need more evidence on that ---3 4MR. JUSTICE HILDYARD: All I know about is the vessels which have been 5 named. My understanding is that in the case of Rocking Horse and Lazy 6 Daze which were the two ones which were allowed to be left, as I understand 7 it ---8 9MR. MOORE: I also referred you, my Lord, to the adjacent moorings where you 10 have a varying number of boats but never less than about six or nine in exactly 11 the same position. 12 13MR. JUSTICE HILDYARD: I think you are right that I would need evidence of 14 that. I think the case has been, rightly or wrongly, confined in terms of 15 evidence to what the position was with respect to the vessels which were 16 identified precisely and their movements. It may very well be, and I quite 17 understand from photographs that there were other boats, but I do not think I 18 have sufficient evidence to draw any conclusions in that regard. 19 20MR. MOORE: I understand that, my Lord. What I can say is that I did raise that 21 question. 22 23MR. JUSTICE HILDYARD: Yes. 24 25MR. MOORE: It would be perfectly possible to produce such evidence as you 26 thought was required. 27 28MR. JUSTICE HILDYARD: What would it really go to? It would go to selectivity 29 or it would go to undermine their management decision, or both? It would 30 suggest it was not a proper management decision because it was not a rule 31 that was done fairly. 32 33MR. MOORE: I am saying because if it was a management decision on the basis 34 that was alleged then that would be applied across all boats that fell into the 35 same circumstance. 36 37MR. JUSTICE HILDYARD: Unless you could show some improper purpose, 38 would that not be a matter which the court simply could not enquire about 39 without itself becoming a Board member, if you see what I mean. I think what 40 Mr. Stoner is saying is that unless there is something very, very rum, the court 41 must let the managers get on with their job and let itself continue. It cannot 42 revisit. It cannot second-guess decisions. Unless you are saying that leaving 43 other defined vessels signifies that it actually was just being wholly
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1 unreasonable, Machiavellian or something like that, that it is a management 2 decision. I have not put that very well, but do you see what I mean? 3 4MR. MOORE: I believe I do, my Lord. I would still contest that the very fact that 5 others are not there does not make the decision a matter of addressing some 6 pressing management urgency. That is one way of putting it. You can say: 7 fine, they have the possibility to do this because all these boats are here on 8 your finding unlawfully. The fact that they choose to do one or two and leave 9 the rest is a matter for them. I understand that point, but the fact that they do 10 and are so selective is, in my submission, a very strong indication that the 11 decision is not being made for the purposes alleged, shall we say. 12 13MR. JUSTICE HILDYARD: So not a proper management decision? 14 15MR. MOORE: Yes. I would also say in opposition of course to what Mr. Stoner 16 went on to say later that if the management decision was taken, as he 17 recognises, on misplaced grounds, then against him I would say that does 18 matter because the justification they were relying on has failed. So if that was 19 the basis of the management decision, then the actions taken - if the basis of 20 the management decision was wrong - has to be factored in. 21 22MR. JUSTICE HILDYARD: It is a curiosity, that. I may be right, or I may be 23 wrong in this, but my conclusion is that providing you are only exercising 24 within the tidal stretches your public rights of navigation, you do not need a 25 license. But if you go beyond that, either in terms of where you choose to do 26 your boating or in terms of what you do with your boat by permanent mooring, 27 then you are subject to the control under Section 8, if I can put it that way. 28 29MR. MOORE: I understand that, my Lord. 30 31MR. JUSTICE HILDYARD: I understand your point that it flows from that that 32 semantically the reason given, i.e. no licence, was incorrect; nevertheless 33 substantively they were saying: whatever you were entitled to do you cannot 34 moor permanently. Do you see what I mean? 35 36MR. MOORE: Yes. All I am saying is if that was the reason they took the 37 decision ---38 39MR. JUSTICE HILDYARD: It is flawed. 40 41MR. MOORE: Yes. Also in line with that, I would say going on to the point with 42 Shiu and whether or not there was an opportunity given, I am saying for all 43 those boats that have since left because of the action taken, if they had been
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1 given the opportunity for discussion beforehand on the basis that British 2 Waterways were serving the notices, and the basis was accepted or, as you 3 found, to be flawed, then the position would have been that British Waterways 4 could say: well, we got it wrong. 5 6MR. JUSTICE HILDYARD: What is the consequence? Your argument that the 7 decision is flawed would take one to the proposition that the decision should 8 be revisited - not made by this court because I have no idea about boating. But 9 it should be remitted to the Board to make the decision again upon the footing 10 that it cannot rely on the want of licence (under the terms of my judgment at 11 any rate) but it can rely on no right of permanent mooring. You say that they 12 might make a different decision once they had spotted that difference. 13 14MR. MOORE: They could have gone back ---15 16MR. JUSTICE HILDYARD: But would they now? Do you see what I mean? Do 17 you say that it is possible that they would now? 18 19MR. MOORE: I can say - well, no I cannot. I would presume that they would say: 20 very well, we cannot give you a Section 8 on the basis that we decided to in 21 the first place. We will now give you a Section 8 but for a reason that the 22 judge has now given us. 23 24MR. JUSTICE HILDYARD: They might say: unlawfully moored is unlawfully 25 moored. Yes, it is true that we added additional words unlawfully moored 26 because you did not have a licence whereas we should have said unlawfully 27 moored because you have got no entitlement to moor. I do not want to be fair 28 in any sense, but I am struggling with practicalities of the matter as to whether 29 that could realistically make a difference. 30 31MR. MOORE: I would say, if it is of any help, that in the circumstances of the 32 time, the boats, and those boats and others, had been allowed to moor there for 33 the previous 10 years. I would have said back then it would be unlikely that 34 they would try to serve a Section 8 on the basis that those boats should not 35 have been at those moorings, when they had been permitting those boats to be 36 moored there for that length of time. It seems a very unlikely justification for 37 them to do. 38 39MR. JUSTICE HILDYARD: As I have sought to imply or indicate the suddenness 40 with which BWB did this has caused me anxiety. But ultimately I did not feel 41 that there was a case for improper or collateral purpose. Having reach that 42 conclusion, right or wrong, at the moment I am finding it difficult to see any 43 practical utility in asking them to consider again the wording they used to
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1 describe their conclusion that your boat should not be allowed to stay where it 2 is. This is a court of law and I must be legalistic, but one has to examine the 3 practicalities, I think. 4 5MR. MOORE: I would have said, as with the Hong Kong case, the Privy Council 6 there did not recognise - as Mr. Stoner has quoted - that it was entirely open 7 for the Attorney-General to turn round and give another notice should he ---8 9MR. JUSTICE HILDYARD: After the process of consultation? 10 11MR. MOORE: Yes. 12 13MR. JUSTICE HILDYARD: It may be that as a practical matter, though none is 14 pleaded, that there is some expectation that boaters will be consulted, but there 15 is no proof of that nor anything in the rules that I have read. If you thought 16 that you had had a right to be listened to and to make all these points about the 17 fact of vessels being allowed to remain there for so long, the difficulties that 18 you face, and that that would have weighed if you had had an audience, I could 19 understand that. But if you have got no right in that respect, I am not sure I 20 can take it into account. 21 22MR. MOORE: But if in terms of both legitimate expectation and presumably 23 human rights, I have a right to raise the issue of proportionality and purpose of 24 the management decision, given the circumstances, then I think that is an area 25 that I should be given the opportunity ---26 27MR. JUSTICE HILDYARD: I think what Mr. Stoner says, as you know - I am 28 sorry to repeat it but just so we get absolutely to the point - I think what he 29 says is that you have to open the gate before you are entitled to look at 30 proportionality, and the gate is the gate marked management decision. So he 31 is saying in effect that I am wrong in my approach in my judgment that I can 32 go straight to proportionality. He says you cannot; you have got to find the 33 key to the gate first. That is as I understand, putting it rather inelegantly, what 34 Mr. Stoner is saying. I think you have to address whether he is right about that 35 in terms of theory, and that really requires a look at Pinnock and Powell - and 36 if he is right about that, whether you have got the key by reference to the 37 factual situation. 38 39MR. MOORE: The cases that I looked at in the last few days were things like the 40 Gillow v. The United Kingdom, plus the Kay case as it went to the European 41 Court because with Gillow v The United Kingdom you had the finding where 42 the couple had a house that they owned but the owners - I cannot remember 43 which one it was - they were foreigners in effect, even though they were UK
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1 citizens inhabiting a home and they eventually ended up, after about a year of 2 litigation, selling up the home at a loss and moving on. The court did find that 3 their human rights were abused. I believe that that was purely on the 4 procedural aspect, that they have come ---5 6MR. JUSTICE HILDYARD: Do you have that case? The thing is I am afraid I 7 have to admit to the fact that I do not have the sort of encyclopaedic grasp of 8 all these cases. Is this something which we have to take into account? Does it 9 show a different approach than Pinnock and Powell ? If so, can it survive 10 them, bearing in mind what the Supreme Court has uttered? 11 12MR. MOORE: If you just give me a moment, I did put this in. 13 14MR. JUSTICE HILDYARD: Did I overlook it? 15 16MR. MOORE: On my paragraph 55 I made reference to it, my Lord. Gillow v The 17 United Kingdom which was under the heading of the Law Commissions 18 report. 19 20MR. JUSTICE HILDYARD: I thought that this really went to the next stage of 21 what the proper response, so-called, of a finding of infringement was. Am I 22 wrong about that? 23 24MR. MOORE: I suspect you are right about that, my Lord. I do not think I got to 25 read through the case itself as to what facts were found, other than what I have 26 just said to you. 27 28MR. JUSTICE HILDYARD: I am inclined to accept that if there was a breach of 29 your human rights which cannot be made good except by some further 30 compensation, then the approach of the court and the amount at stake would 31 have to go to another hearing. I do not think it would be fair to either of you 32 for me to leap to some conclusion in that regard. I do not think you would 33 probably suggest it was fair, and Mr. Stoner suggests it is not. So I should 34 imagine that we would only get to Gillow and the Law Commissions report 35 and they are quite difficult assessments as to the proper response - at that 36 subsequent hearing. So really I am looking at the gate, and if you are through 37 the gate, proportionality. That is what I am looking at at the moment. 38 39MR. MOORE: My Lord, I think I have said all that I can come up with in that 40 respect. Any further help I could be would purely be in response to any 41 question your Lordship had. 42
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1MR. JUSTICE HILDYARD: Yes. I want to know, even though it is asking for 2 evidence and I hope Mr. Stoner will not mind, this business in paragraph 40 of 3 legitimate temporary mooring facilities, which you say have been used for 10 4 years. That is simply your observation. The vessels in question were off line, 5 were they not? 6 7MR. MOORE: My Lord, we had both off line and on line. I mean the actual 8 evidence for these pontoons is brought out in Mr. Farrows reports. We went 9 through those. I know I took up quite some time in that going through, 10 pointing out the boats that were under my control, that were on the mooring. 11 So that did show that 10 year history of the boats being used on the pontoon 12 and alongside the blue land - and there were photographs and things as well 13 showing up. So I do not think there is a problem of evidence. 14 15MR. JUSTICE HILDYARD: I can ask Mr. Stoner about that, but yes. It is 16 suggested by Mr. Stoner that given that "Gilgie" has a home mooring, because 17 you were very assiduous to correct that it applied on the basis of continuous 18 cruising and it was accepted on the part of BWB that you were right and they 19 were wrong ... why can "Gilgie" not be moved to what is the home mooring 20 and you to have a home with a different view on the same vessel, subject of 21 course to the owners? 22 23MR. MOORE: Well, it is very subjective to the owners wishes, my Lord. 24 25MR. JUSTICE HILDYARD: Yes, but I cannot legislate for that, can I? Neither 26 can BWB. If you lose your home because the owner does not want you there, 27 I am not sure that is a matter which I can deal with. What is wrong with that? 28 29MR. MOORE: The only thing I can say in that respect, my Lord, is that the 30 investment that I have made over the years in the facilities that the boats there 31 are using would be no longer of any value to me. 32 33MR. JUSTICE HILDYARD: Apologies for being rather bald about it, but what you 34 are really saying is you want to be around that place because that is where you 35 did your work and you just want to - the last remaining thing in your grasp of 36 that area. Is that right? 37 38MR. MOORE: There is that, my Lord, but there is also the fact that I am relying on 39 remaining there in terms of our claim on the land so that if "Gilgie" had to go, 40 then I would have to find some way of camping out under the bridge or 41 whatever to remain there. 42
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1MR. JUSTICE HILDYARD: Do you say this would foreclose your proprietary 2 claim - your property right? Is that what you are saying? 3 4MR. MOORE: Yes, my Lord. 5 6MR. JUSTICE HILDYARD: Because it is only in right of your possession or 7 occupation that you are able to sustain your ---8 9MR. MOORE: My right of ---10 11MR. JUSTICE HILDYARD: Your claim as to adverse user. 12 13MR. MOORE: Yes. 14 15MR. JUSTICE HILDYARD: Is that what it goes down to? 16 17MR. MOORE: It does, my Lord, yes. 18 19MR. JUSTICE HILDYARD: I am asking this because, to be absolutely frank, I 20 have read but I have not grasped the full extent or nature of the other dispute 21 which is being adjudicated. That is what it comes down to? 22 23MR. MOORE: Yes, my Lord. 24 25MR. JUSTICE HILDYARD: It would have this knock-on effect. 26 27MR. MOORE: I think I did mention that in our submission, that there are two cases 28 at the moment in the High Court awaiting a hearing - one of them next month, 29 which is the appeal against the adjudicator decision regarding the river bed and 30 adjacent land. 31 32MR. JUSTICE HILDYARD: Your submission is that if I allow you to be moved 33 on, that kicks the stool from underneath you for that process, does it? 34 35MR. MOORE: That is right, my Lord. 36 37MR. JUSTICE HILDYARD: I will have to ask Mr. Stoner about this, but I am 38 going to accept immediately that I have not explored it. One of the very few 39 things I have not explored in the case - that proprietary element. 40 41MR. MOORE: Naturally enough, my Lord, because the currently contested issue of 42 BWs wider land registry claim within that, when I first heard of it, they 43 agreed to withdraw from that claim the area that I currently now occupy.
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1 2MR. JUSTICE HILDYARD: Right. Anyway, your answer is it might address your 3 needs for a home but it would remove a right, as you assert it to be. 4 5MR. MOORE: Yes. 6 7MR. JUSTICE HILDYARD: The answer, I think, inevitably is going to be: you 8 just have not got that right because a judge has said you are entitled to be 9 moved on or removed. Consequences may be more serious than are 10 immediately apparent, but in a sense that is simply a consequence which 11 flows. 12 13MR. MOORE: My Lord, I am answering as best I can the question you posed as to 14 what is the problem. 15 16MR. JUSTICE HILDYARD: I am not in any sense wanting to diminish your 17 argument. I just want to make sure I have got the very best from you in 18 response to points which I feel might be made. I am not diminishing your 19 points, nor seeking to argue the toss with you. Notwithstanding how much 20 you have put into this - and you have been terrific - nevertheless in terms of 21 presenting your case I just want to make sure that I have got, on this aspect, the 22 best from you. 23 24MR. MOORE: I appreciate that, my Lord. As I say, it is not only the land claim 25 but the investment in the actual facilities and utilities that I have provided there 26 for all of the boats there. It is something that is part of a still continuing 27 business. However, much it is true that I do not get a financial remuneration 28 from it, it is still something that I have a feeling of responsibility for and which 29 other people do... To be there and my being there is part of what makes the 30 others feel that there is a caretaker, which is basically ---31 32MR. JUSTICE HILDYARD: What you are doing. And that is the source of your 33 income, such as it is. 34 35MR. MOORE: I do not derive any income from it, my Lord. What I do derive is a 36 payment in kind as it were in the fact of having a home there. 37 38MR. JUSTICE HILDYARD: Yes. With apologies for interrupting, my perception 39 of what you are saying to me is that with regard to the gate their decision was 40 flawed because they misunderstood the licensing position and therefore 41 addressed it from the wrong perspective and was flawed in terms of process 42 both by reference to the legitimate expectations point that I have been 43 canvassing, and the haste point; and in point of detail, though quite an
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1 important detail, in point of the fact that the basis on which the Section 8 2 notices were actually served, you had been there for three months, whereas in 3 fact ---4 5MR. MOORE: Four months. 6 7MR. JUSTICE HILDYARD: Four months, whereas in fact it is accepted you had 8 not been there at all, and this was a twice-affirmed wrong situation. 9 10MR. MOORE: Yes. And that that takes you through the gate because it shows 11 sufficient flaw in the decision - in the exercise of management powers to get 12 you through the gate. You are therefore through to proportionality and in 13 terms of proportionality you say that bearing in mind their previous acceptance 14 of offline mooring, whether with right or not ---15 16MR. MOORE: On line mooring. 17 18MR. JUSTICE HILDYARD: Sorry, online mooring. I am so sorry. Online 19 mooring whether pursuant to a right or not, and bearing in mind that they had 20 not shown any instant urgency, if I can put it that way, they should stay their 21 hand or I should stay their hand. Is that a fair summary? 22 23MR. MOORE: I believe it is, my Lord. 24 25MR. JUSTICE HILDYARD: How long do you say and by reference to what 26 criteria do you say I should stay their hand on that footing? 27 28MR. MOORE: I would have to leave that to your judgment. 29 30MR. JUSTICE HILDYARD: Yes, but help me out with what you say should be my 31 proper approach. 32 33MR. MOORE: I would have thought that it was proper to quash the notice and 34 leave it to British Waterways to decide whether from that point it was a sound 35 management decision that they needed to take to bring a notice on different 36 grounds on this and/or any other boats, at which time I would say that they 37 would certainly need to be prepared to give a reason then as to why all boats in 38 exactly the same position are not addressed in the same way, if that is the 39 purpose. I would say that it is not inevitable that BW takes such a decision. It 40 would in fact be, in my view, a sensible and realistic management decision to 41 take that the situation as it always had been previously should be continued 42 because it is not interfering with the good management of the waterways. 43
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1MR. JUSTICE HILDYARD: They did not take the point in the past, but they are 2 now taking the point that they do not want people - they worry that if they 3 allow this sooner or later, and I know there is a thin end of the wedge 4 element in this, but sooner or later the relevant stretch of water will become 5 less navigable or may give rise to obstruction of some kind. 6 7MR. MOORE: That, my Lord, is only something that they can apply to exactly that 8 scenario, where something did come and increase. If one takes the view that 9 they are happy with the number and placement of boats as they currently exist, 10 as they have been, and in fact they have in the past put forward plans to 11 encourage more of them on both sides of the Canal, then the alleged concern, 12 my Lord, is not actually true. By maintaining the status quo, even though they 13 have in the past wanted to encourage more boats to be moored there, 14 maintaining it at the level that it currently is not going to be a problem to them. 15 No other boats can actually come on to a mooring and stay without the consent 16 of the land owner. I am taking your Lordships finding on the fact that a land 17 owner has no power of consent to his land for mooring. 18 19MR. JUSTICE HILDYARD: I am not saying that, am I? Why do you say that? If 20 there is a special right established, then I am not, so far as I am aware, saying I 21 am precluding that right. I am just saying that you have not got it. 22 23MR. MOORE: The basis of a land owner being able to give consent or withhold 24 consent to the use of his land is presumably a factor because that is the specific 25 argument that British Waterways advance in the garden moorings, to which I 26 directed your Lordship, where they say a land owner has the right to agree or 27 disagree to whether you use it. 28 29MR. JUSTICE HILDYARD: We had better clarify this. My understanding on the 30 end of garden mooring is the British Waterways Board accept that their only 31 right in this regards is either in respect of those numbers of mooring places 32 where they are owners and can give permission in right of ownership; and that 33 otherwise they are entirely independent on their regulatory powers. That is 34 British Waterways position, as I understand it. I do not think anything I have 35 said in my judgment conflicts with that and is certainly not intended to. 36 Looking at it from the position of other land owners, I have said that the mere 37 ownership of a riparian right does not give that person a right, and therefore 38 does not give that person any rights to permit anybody else, to moor there, 39 other than in the course of navigation. 40 41MR. MOORE: My Lord, what I was wanting to have clarified is whether he is 42 thereby precluded from his veto, if you like. In other words, the fact that he
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1 cannot give permission to someone to moor there, is he thereby prevented 2 from saying: you cannot moor there because it is my land? 3 4MR. JUSTICE HILDYARD: Is the land owner able to injunct someone from using 5 it? 6 7MR. MOORE: Yes. 8 9MR. JUSTICE HILDYARD: I am not sure we canvassed the question of what a 10 land owners rights were in respect of a temporary mooring in the course of an 11 application. I have not considered that. 12 13MR. MOORE: No, but what we did ---14 15MR. STONER: We did not, my Lord. I think what we would say, so that Mr. 16 Moore is clear, is that if there is a land owner of any river bed where there are 17 public rights of navigation, then that ownership is subject to public rights of 18 navigation. The prime example is the Crown who owns a large area of land 19 which is subject to public rights of navigation, their ownership is subject to 20 those public rights. 21 22MR. JUSTICE HILDYARD: So for example if someone - in the Kay case where 23 the example is given that someone in the course of bona fide navigation may 24 need to stay at a place for some considerable time because something terrible 25 has gone wrong with the weather or the boats, or even a season - I think they 26 give the example in the Scottish case. I would imagine that a land owner 27 would have to accept that that public right of long user overrides to that extent 28 his private right to dictate what should happen on his land, but beyond that he 29 will only be able to rule the roost if he has a specific property right entitling 30 him to allow mooring or wharfage - not in right of a riparian ownership but 31 because he has a specific right. That is, I hope, what I sought to say. 32 33MR. MOORE: My Lord, what I am addressing at the moment is the reversal of 34 that; whether he has the right to deny because one of the arguments that were 35 not adjudicated on between us was the fact that in the preliminary issues we 36 were agreed that there is no right to a permanent mooring ancillary to 37 navigation. There was a question of specifically in the context of this case we 38 are not addressing mooring in the river bed, but we are mooring to the bank. 39 40MR. JUSTICE HILDYARD: Yes. 41
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1MR. MOORE: The position that I took is that there is no right whatsoever given by 2 the public right of navigation to moor even momentarily to private land. I 3 mean that is ---4 5MR. JUSTICE HILDYARD: I do not think I have adjudicated on that, but I would 6 imagine that that is quite a difficult argument. I say no more because I am too 7 ignorant to commit myself really. I do not think we have dealt with the issue of 8 the interface between property rights and regulatory rights, and the public right 9 of navigation. 10 11MR. MOORE: My Lord, if I can continue just a little bit to explain why I am 12 bringing this up ----13 14MR. JUSTICE HILDYARD: Yes. 15 16MR. MOORE: It is established in case law that that is the case, even though we are 17 not ---18 19MR. JUSTICE HILDYARD: What is the case? 20 21MR. MOORE: That a public right of navigation does not give the right of access to 22 a private bank so the land owner has the right to say you cannot ---23 24MR. JUSTICE HILDYARD: If it is established, then there is the answer. 25 26MR. MOORE: So what I am saying, my Lord, provided that there was nothing that 27 I understood from your finding that runs against that ---28 29MR. JUSTICE HILDYARD: No, I would not dream of seeking to undermine 30 established authority if there be such. I must say that I had not read ... in that 31 light, but I do not know. In so far as you need clarity that I am not seeking to 32 undermine that sort of authority, you have that confirmation from me. 33 34MR. MOORE: Thank you, my Lord. The reason I am going there is to address this 35 question of: oh, well we could have everybody coming up and establishing 36 themselves and us not being able to do anything because of the human rights. 37 Whereas the simple fact is that any of the land owners, including where they 38 are - an area of dispute - but there is no dispute that there are areas they do 39 own, they have the right to say you cannot moor there on that basis. That 40 bit of towpath we own or more properly I would suspect ---41 42MR. JUSTICE HILDYARD: They could not really delegate their responsibilities to 43 the particular preferences of a given land owner.
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1 2MR. MOORE: No, but ---3 4MR. JUSTICE HILDYARD: There we are. I think what you say - forgive me if I 5 am wrong and add what you like - is that it is a thin end of the wedge 6 argument and that that was not a justification really offered at the time, and 7 that if that was the justification, it should be revisited. 8 9MR. MOORE: My Lord, I think what I am saying most specifically, my Lord, is 10 that the scenario that Mr. Stoner painted in order to persuade you that this 11 would be the outcome if you were to do as I wished is not a realistic one 12 because there is the ordinary power to say: no, you cannot even start to 13 establish a right where we would need to come along and dispossess you. 14 15MR. JUSTICE HILDYARD: What he was saying is: beware of treading in 16 management areas you do not understand. 17 18MR. MOORE: I am just addressing the picture. 19 20MR. JUSTICE HILDYARD: Well, as I say with the benefit of your written 21 submissions, is there anything you want to say further on either Powell or 22 Pinnock which really rose up late in the day? Therefore if you want five or 10 23 minutes to consider anything further on that, I would be very happy to allow 24 you that. 25 26MR. MOORE: I have not had a chance to look at it, but I doubt it if ---27 28MR. JUSTICE HILDYARD: Do you want 5 or 10 minutes to have a look? Powell, 29 I think, rode into town this morning in your case because I had asked for a 30 copy you may not have had. I am not hedging for time. It is an important 31 matter to you, Mr. Moore, and you have invested a great deal of time and 32 trouble. If you want another 10 minutes, I am most content that you should 33 have it. I think Mr. Stoner has identified the particular parts of each case, and 34 can do so again for your assistance. 35 36MR. MOORE: Perhaps, yes. 37 38MR. JUSTICE HILDYARD: Would you like 10 minutes? Are you content with 39 that, Mr. Stoner? 40 41MR. STONER: Of course, my Lord. 42
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1MR. JUSTICE HILDYARD: I want to finish this by the short adjournment time, 2 and we have one or two other things to deal with. If we reconvene at quarter 3 past, will that be sufficient for your purposes or at least identify whether you 4 need further time. 5 6MR. MOORE: Very well, my Lord. 7 8MR. JUSTICE HILDYARD: We will adjourn until quarter past then. 9 10 (Adjournment) 11 12MR. JUSTICE HILDYARD: How have you got on? 13 14MR. MOORE: I will not take up much more time. 15 16MR. JUSTICE HILDYARD: Okay. 17 18MR. MOORE: Just briefly going through, Mr. Stoner has kindly lent me his 19 highlighted copy. 20 21MR. JUSTICE HILDYARD: Just give me a moment, would you? (Pause) 22 23MR. MOORE: He has given me his highlighted versions. Going through swiftly, 24 in paragraph 33 of Powell - sorry, I think I have got that wrong. 25 26MR. JUSTICE HILDYARD: That is all right. 27 28MR. MOORE: No, I am sorry, my Lord. It is paragraph 33- G, just referring to the 29 concept of home and the protection of Article 8, it says, It will depend on 30 the factual circumstances namely the existence of sufficient and continuous 31 links with a specific place. For however much it would assist the case, my 32 home has been at this particular location. The actual shelter that I have had on 33 this location is first Platypus and then "Gilgie", so I would have said that 34 however mobile those homes were, they were significantly attached in these 35 terms to this particular location as being my home. The case in my instance 36 would be a much stronger one than the situation where it was a caravan that 37 had arrived at s site and only there for two days where still it was not contested 38 that the question of Article 8 would not come up. It also goes on to the 39 legitimate aims. I am not going to go further on that one, my Lord. That was 40 as much as I could pick up from going in that one. 41 42 As far as looking at Pinnock was concerned, from paragraph 45, it says 43 anybody in principle should have the right to raise the question of
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1 proportionality even if the right of occupation has come to an end. The 2 conclusion at the end of that paragraph 45 is talking about what the European 3 Court of Human Rights has flanked in terms of the views they took on Article 4 8 and continued possession. Both this and all the other case law so far as I can 5 see, other than the one I referred to, Gillow v. The United Kingdom is all 6 dealing with a balance between one persons right of possession and another. 7 What I am saying is that this is not the same question. I understand that Mr. 8 Stoner has raised the fact that it can be rights of possession or management 9 decisions. From looking through these cases I understand it to be looking at 10 management decisions only in respect of the role of the property-owning 11 authority managing its property. It is in the light of competing property 12 interests, not as I would see it a question of management decisions only. That 13 is about as much as I can usefully add, my Lord, so far as those cases are 14 concerned. 15 16MR. JUSTICE HILDYARD: It seems to me that you may argue that there is no 17 two - stage but only a one-stage process. You do not have to find the key to 18 the lock. You have got to accept - or Mr. Stoner must accept you when you say 19 that proportionality in the European sense is always to be addressed, but the 20 person alleging that the act was not proportionate is going to have to, in real 21 terms, surmount an obstacle which is the reluctance and refusal of the court to 22 become involved in management decisions. I think you may very well submit 23 to me, in thinking about it, that there is not a two-stage approach; that Powell 24 has confirmed that there is a one-stage approach, but the burden is very much 25 on you to demonstrate why the prima facie position that managers should be 26 entitled to manage should be upset. I sense that Mr. Stoner may accept that. 27 So you would say, therefore, we must look at proportionality in the round. 28 This is not a case where you could simply be satisfied with the management 29 decision made. This is an exceptional case where the management process has 30 been flawed and hurried. Therefore we should consider all the matter in the 31 round. I think that is what your position is, is it not? 32 33MR. MOORE: I would say so, my Lord, with the additional aspect, whether you 34 accept it or not, of the fact that the cases as far as I have read and understood 35 them refer to management decisions over the control of property - given that it 36 is the property law that we are balancing - the competing rights of possession. 37 38MR. JUSTICE HILDYARD: I think it may go broader than that. I understand 39 what you are submitting, but I think it may go broader than that to 40 management decisions. It is not right of ownership. It is right of control really 41 which his in issue and the exercise of rights of control as a management 42 matter. I take your point. Can I just ask one further point, unless you wish to 43 add on this? You do not say, do you, that if I were to conclude that there was a
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1 flawed management process that I necessarily have to quash the notices. I 2 could, for example, and I will ask Mr. Stoner about this as well - I could say I 3 wish the matter to be reconsidered and any proportionality arguments to be re4 addressed at a future date. The reason I ask this is that if I quash the notices I 5 simply set up another long case for the courts and I think that that would, of 6 itself, be disproportionate. I am trying to find a way. Do you see what I 7 mean? I do not think you were saying that I would have to quash, are you? 8 9MR. MOORE: I would certainly ---10 11MR. JUSTICE HILDYARD: You would urge me to do so. 12 13MR. MOORE: Yes, exactly. 14 15MR. JUSTICE HILDYARD: But you are not saying I am railroaded into it. I 16 should do it. 17 18MR. MOORE: I could not back that up with anything more than the example of the 19 cases I have shown where that was the instance. 20 21MR. JUSTICE HILDYARD: Where there was a quashing. 22 23MR. MOORE: Yes. I would also add, I think, that the inevitability of anything 24 going further is not demonstrated. One of the things that I did - I mean, that 25 would be entirely, I suppose, a matter for BW, but as the court itself had had 26 urged on both of us back in 2009, to consider whether or not this could not be 27 resolved through alternative dispute resolution of some description. That is 28 something that, I think, that is always ---29 30MR. JUSTICE HILDYARD: Yes, later one may have regrets, but I am not saying 31 either one of you. I am not apportioning blame. It is a terrible shame that this 32 matter has had to grind through the courts. It is terrible. 33 34MR. MOORE: If this is quashed it is not an inevitable outcome unless British 35 Waterways ---36 37MR. JUSTICE HILDYARD: It is, is it not, because then you would rely on your 38 human rights to have a court adjudicate on the validity. In the real world I 39 cannot really shut my eyes to that. It may be a consequence I have to accept. 40 If I quash this, unless British Waterways Board simply decide they do not 41 want to proceed at all, then they will have to serve notices which gives you the 42 opportunity to go to court and some other poor chap in my position will have 43 to grind through the whole thing again. That is right, is it not?
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1 2MR. MOORE: I am sorry that ---3 4MR. JUSTICE HILDYARD: I am sorry, I indicated a sort of sense upon me, which 5 I do not wish to indicate to me, but it has been a long and expensive process. I 6 would not wish it to happen again of my own motion. Is there anything else 7 that you want to add? 8 9MR. MOORE: Not that I can think of, my Lord. 10 11MR. JUSTICE HILDYARD: Mr. Stoner, I have two points really, unless you have 12 anything further in reply. 13 14MR. STONER: I was just going to mention a couple of points briefly in reply on 15 whether it is a one-stage or two-stage. 16 17MR. JUSTICE HILDYARD: Yes. 18 19MR. STONER: I think really I rely on paragraph 37 of Powell . What I say there, 20 or what the Supreme Court said there, Lord Hope, was because of the 21 management duties he said, ... in the overwhelming majority of cases, for the 22 local authority to explain and justify its reasons... - there is no need for that. 23 It will be enough that the authority is entitled to possession because the 24 statutory pre-requisites have been satisfied... So in this case I say the statutory 25 pre-requisites, as my Lord has found, entitled to serve a Section 8 notice. 26 Then he goes on to say, The court need be concerned only with the occupier's 27 personal circumstances and any factual objections she may raise... So 28 whether it is a one-stage or two-stage, in my submission it is the seamless test. 29 As is put elsewhere in Pinnock and in Powell , it is a given in relation to the 30 management duties. 31 32 The only other thing I was going to say is Mr. Moore referred to Gillow. It is 33 a case I read a long time ago. All I can say is that the Supreme Court did refer 34 to it in Powell , but in the context of what the meaning of the home was. So 35 they obviously did not think that it needed to be referred to in relation to 36 proportionality. It is not disputed that the vessel itself was a home here. The 37 only other point I was going to mention by way of reply, Mr. Moore referred 38 to the historical use of the mooring. It is a long time ago now, but Mr. Farrow 39 gave some evidence - and he addresses it in his witness statement as well 40 where he agreed with Peter Collis that the pontoon would be put across the 41 entrance to the workhouse dock, and as far as he was concerned - and I 42 remember he said in the witness box, whether it was right or wrong - what was 43 on Workhouse Docks site was not going to be his responsibility or British
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1 Waterways responsibility, but what was on the Canal side would be. He said, 2 yes vessels would maybe come along there and they would moor up, but that 3 was to wait until the tide was sufficient to get them into Workhouse Dock, so 4 that would just be public right of navigation - not the sort of mooring use that 5 Mr. Moore was referring to. Those were the quick points of reply that I 6 wanted to mention. My Lord had a couple of questions for me. 7 8MR. JUSTICE HILDYARD: Yes. On the question of home I think that you very 9 fairly made two points. One is that you did not want to be opportunistic in 10 latching on to what I had said in that regard. I think you accept, and I have put 11 this badly, but broadly the proposition that Mr. Moores home was in the area 12 sometimes in Platypus and sometimes on Gilgie. 13 14MR. STONER: Yes. The distinction I drew, and I maintain, that was in the written 15 submissions is that the home is in a vessel because that may be important, 16 because it is not a question necessarily of evicting someone from their home as 17 opposed to requiring them to move their home, which is a unique feature 18 compared to the bricks and mortar cases. 19 20MR. JUSTICE HILDYARD: You are not relying very much on the fact that 21 because Platypus was withdrawn, he stepped not so neatly but in fact on to 22 "Gilgie"? 23 24MR. STONER: I am not, and one of the reasons is that if I am right in thinking it 25 was a procedural breach, then that would have occurred on 21st July or round 26 about 21st July 2007. 27 28MR. JUSTICE HILDYARD: Yes. 29 30MR. STONER: The only other point I should mention - or perhaps if I reserve the 31 right I will just answer my Lords questions at the moment. 32 33MR. JUSTICE HILDYARD: All right. The second question I had was this, in 34 respect of is it a two-stage or a one-stage seamless process: what I do not quite 35 understand from the guidance given by the Supreme Court is if it is in danger 36 of being an exceptional case or is found to be so, i.e. one of those cases where 37 in the process it gradually becomes apparent that there is a case to answer, if I 38 can put it that way. 39 40MR. STONER: Yes. 41
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1MR. JUSTICE HILDYARD: The guidance appears to be slightly difficult to follow 2 in one sense because the relevant Local Authority, believing there not to be a 3 case to answer, will not have put in a case on proportionality of any depth. 4 5MR. STONER: Yes. 6 7MR. JUSTICE HILDYARD: Do you think the Supreme Court is envisaging that 8 there would be a pause or an adjournment to enable the Local Authority to 9 back up its decision? 10 11MR. STONER: What the Supreme Court do, and perhaps we have not focused on 12 that, is that they say quite categorically that actually it is a given. It is for the 13 defendant to raise issues, and of course those issues could relate to whether it 14 was a proper exercise of a discretion or a management function. They 15 encourage that that should be dealt with summarily. The summary 16 determination is in effect to see if there is a seriously arguable case that is 17 necessary. So that would happen in a possession scenario of course at an early 18 stage in those possession proceedings. It may well be - it would be a matter 19 then of case management - but it may well be that then what is anticipated is 20 that the court would say to the Local Authority: want you to plead this out. 21 Certainly what they say in paragraph 43 of Pinnock is that there may be a 22 circumstances that the Local Authority wants to plead itself, but it may have a 23 special circumstance. So the management duty is a given but they say in a 24 particular case the Authority may have what it believes to be a particularly 25 strong or unusual reason for wanting possession, for example that the property 26 is the only occupied part of a site intended for immediate development for 27 community housing. So that might be, if I can put it in this rather inelegant 28 way, that they envisage that if there is a factor which takes the hurdle beyond 29 passage, then that should be pleaded. Certainly in response to my Lords 30 question I would anticipate it is to be dealt with summarily. If the court feels 31 that actually there is a seriously arguable case, then there is always the ability 32 to either plead that out or require witness statements directed to that particular 33 issue. 34 35MR. JUSTICE HILDYARD: Yes. I am troubled by this. It seems to me that this is 36 a cusp case where there has been a flaw in the process - the month etc. And 37 where I am unsettled about simply accepting that the management had 38 proceeded in line with their management responsibilities and I must not revisit 39 that. I am asking you really supposing that were my conclusion, would it be 40 right, therefore, to sign over the matter not for pleadings but for a detailed 41 identification of the reasons why you say the vessel should be moved on? 42
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1MR. STONER: I regret to say that I think the answer to that would have to be 2 yes. What I emphasize again is that in circumstances where my Lord has 3 already rejected the reasons which might undermine the management decision. 4 I understand my Lords unease in relation to certain aspects of it, but there was 5 not an improper purpose here and there was not a conspiracy with ---6 7MR. JUSTICE HILDYARD: No, the point that really troubles me - I will be plain 8 about it - is the four month/one month. It seems to me that management 9 decision made upon the basis, as I must accept it was made, that these boats 10 had been there for four months is a very different management decision than if 11 they have just been there for one month. 12 13MR. STONER: My Lord, yes. What I would say - also being entirely candid in 14 relation to that - is I very much regret that I did not get Mr. Farrow to correct 15 that statement when he was giving his evidence in chief. He has been retired 16 for some time, so he was going back. 17 18MR. JUSTICE HILDYARD: Yes. 19 20MR. STONER: In my submission it was just simply an error on dates because there 21 has never been any dispute as to the date in which the vessels were ---22 23MR. JUSTICE HILDYARD: He had said the very same in a previous process. 24 25MR. STONER: He did, but if one looks at the totality of his witness statement in 26 that action, one will see a very clear overlap. So in so far as there may well 27 have been a mistake, it was made in the Geronimo action and unfortunately it 28 has found its way through ---29 30MR. JUSTICE HILDYARD: Do you see what I mean? It slightly unsettles ones 31 faith in the management approach? 32 33MR. STONER: Yes. But the reality of the situation, of course, is that Section 8 34 does not require any particular time. Under Section 8 if British Waterways 35 were aware that a vessel was unlawfully moored it would be entitled to serve a 36 notice on that first day. We then come back simply to the voluntary system it 37 has in place of saying: actually if it is aware that it is a home, or thinks it is a 38 home, then it will go through the notification procedure - and I am not going to 39 rehearse all the arguments of what I say about the futility of any relief there. 40 The only other caveat I would say in relation to the going off is for the court to 41 ask itself the question of what relief would be appropriate because ultimately 42 whether it goes off would be a matter for the court, but ---43
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1MR. JUSTICE HILDYARD: Do you mean goes off to another hearing? 2 3MR. STONER: Yes. To another hearing. But if the reality is that the situation is 4 we are just going to have.... If we go through that other hearing, if my client is 5 unsuccessful, the day after that hearing it could start the process properly and 6 afresh, then one has to question the proportionality of that approach. I very 7 much agree with my Lords comment to Mr. Moore earlier, that the court I 8 think has to have regard to the fact that we have had this hugely expensive and 9 time-consuming litigation. What the court should, in my submission, seek to 10 avoid is a scenario where it is simply - I am not going to suggest it happens 11 again because there is a judgment now - but where there is further litigation 12 between the parties. 13 14 Going back to the point on the four week/one week, in my submission the 15 managements decision is to serve the Section 8 notice. I mentioned earlier 16 this morning, one can always come back and say there can be timing issues on 17 management functions and perhaps it should have been taken next month, or it 18 should have been taken last month - or matters of that sort. In my submission 19 that is part of the given, the barrier, which the court should not intrude upon. 20 21MR. JUSTICE HILDYARD: Yes. Supposing I were against you on that and I just 22 feel that the only evidence is that they thought they had been there for three 23 months; they misconceived the effect of section 105; there have been 24 suggestions of flaws in their process and hurrying all along and that therefore 25 the matter should be revisited. Presumably there would be nothing to stop me 26 saying: I will not quash these notices. I will have another hearing to 27 determine, after the matter has been reassessed by the Board and its reasons for 28 proportionality advanced, what I should do as regards the timing for giving 29 effect to those notices. 30 31MR. STONER: Yes. 32 33MR. JUSTICE HILDYARD: Would that be permissible? 34 35MR. STONER: I cannot say that that is not permissible. What may happen of 36 course is that my clients could, tomorrow, serve a further letter without 37 prejudice to its position in this case. In fact we could go through the proper 38 process before we can be back in court. I simply mention that to emphasize 39 what I have described as the futility of ---40 41MR. JUSTICE HILDYARD: Inherent in the notices surely is a legitimate 42 expectation that you would still have to go back to court. 43
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1MR. STONER: We would and what we could do is to ask for that, as a matter of 2 proportionate case management, to be listed at the same time. 3 4MR. JUSTICE HILDYARD: Yes. But it all amounts to the same thing which is a 5 court, and probably me because listing will probably say so - and I think I 6 would probably recommend it because it is a lot to get through - would simply 7 have to deal then and there with the question of proportionality and the 8 response of the court. 9 10MR. STONER: Yes. I think so. What I say, to be clear, is that it is not open to my 11 Lord to second-guess - that is my phrase but borrowed from elsewhere - the 12 elements of the management decision that my Lord has been mentioning, 13 having determined that the decision was not taken for an improper purpose, 14 encompassing the various aspects of that because otherwise one can have a 15 proportionality assessment which really comes down to perhaps if they had 16 waited another four weeks but we come back to the argument that by that 17 time it is going to be almost certainly five years after the notices were served 18 and Mr. Moore has not been deprived in any shape or form, and I think this is 19 the most extreme example of the case, of being able to ventilate every single 20 point that he possibly would wish to ventilate. Ultimately I do not accept that 21 those matters fall outside of the given. They are not the cogent evidence. 22 They are only guidance. 23 24MR. JUSTICE HILDYARD: If I were not with you there, the question is would 25 you yourself be pressing for another hearing on proportionality? 26 27MR. STONER: I will just take instructions. (Pause) My Lord, having ironically 28 regard to the proportionality of it and particularly the costs scenario that has 29 gone before, my instructions are that we would not push for a further hearing. 30 31MR. JUSTICE HILDYARD: Now, the third question I have for you is the cris de 32 coeur almost which is that if "Gilgie" and Mr. Moore moved on and have to go 33 to a permanent home mooring that because his is an occupational possessory 34 right, he will have lost a substantive right in consequence. 35 36MR. STONER: I fundamentally do not accept that. The reason I do not accept that 37 is one has to draw a clear distinction between Mr. Moores occupation of the 38 bank and the vessel being in the waterway. This case is not dealing with 39 ownership issues, by concessions early on. In so far as Mr. Moore has an 40 extant claim to the river bank, which is fenced off, the fact that his vessel 41 moves from there affects that not at all. 42
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1MR. JUSTICE HILDYARD: So it could be a matter of record, as it were, that this 2 does not affect what possessory or occupational rights he has which he is 3 seeking to assert in another place. 4 5MR. STONER: If he is seeking to assert possessory rights by virtue over the river 6 bed by virtue of the fact that the vessel is there, then in my submission 7 emphatically that cannot be a valid reason because it cannot be a valid reason 8 to say that human rights should intervene to protect someones time period 9 continuing to run to enable them to claim adverse possession; that simply 10 cannot be right. I drew a distinction at the beginning of the trial - and this is 11 one of the reasons we were happy that property did not come into it - because 12 when it comes to the river itself, that is subject to the regulation of British 13 Waterways. So if, as a matter of regulation, British Waterways can move that 14 vessel on, any ownership has got to be subject to that regulation. I absolutely 15 say there in relation to the river bank, the combination of saying that a riparian 16 owner cannot have a vessel alongside as a matter of right unless there is a 17 special right, and the vessel going, in my submission it is difficult to concede 18 how that would influence a tribunal of whatever nature considering the 19 question of whether Mr. Moore has shown sufficient possession for the 20 purposes of the Limitation Act to establish any form of title to the river bed. 21 22MR. JUSTICE HILDYARD: It may be that this is an improper or irrelevant 23 consideration. The way Mr. Moore put it is that he would have to sort of sleep 24 out on the bank, if you see what I mean, to retain his possessory interest. 25 26MR. STONER: Well, I would not accept that claiming adverse possession equates 27 to someone actually living on property. One can adversely possess agricultural 28 land by grazing sheep or cows. 29 30MR. JUSTICE HILDYARD: I may be worried that you would not have a sufficient 31 presence to maintain it. 32 33MR. STONER: Yes. That may be because of other arguments we have got in other 34 forums where we say we have a better right to that land. The key fact, subject 35 to an argument that my clients and Mr. Moore have had over the interpretation 36 of Mr. Nicholas Dowding QC in Geronimo is there is a fence up in relation to 37 the area of the river bank. 38 39MR. JUSTICE HILDYARD: Can I ask you what may be a rather airy-fairy 40 question, but does the issue of proportionality go to the exercise of power or 41 does it go to the appropriate relief? 42
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1MR. STONER: In my submission on the Supreme Courts analysis, the issue of 2 proportionality goes to the impact, in this case, of Mr. Moore. 3 4MR. JUSTICE HILDYARD: As a management decision. 5 6MR. STONER: Yes. 7 8MR. JUSTICE HILDYARD: So you are really only looking at nature of order. 9 10MR. STONER: In essence, yes, because the court has determined - if we were here 11 in 1997 we would have finished some time ago because it would have been a 12 question of just saying my Lord, you have determined in your judgment that 13 there is no entitlement for this vessel to be in the current location. So that is 14 unaffected by the Human Rights Act. It is really just a question of whether as 15 an exercise of proportionality, yes, is it right to remove Mr. Moores vessel? 16 The key thing is, in my submission, are his personal circumstances such that it 17 would be in appropriate that the natural consequence of that vessel having no 18 entitlement to be there should be disturbed in terms of the relief? What is 19 absolutely glaringly startling in this case is that there are no personal 20 circumstances really advanced on Mr. Moores side of the balancing equation 21 of proportionality. 22 23MR. JUSTICE HILDYARD: So you put it in terms that the question for me is: are 24 his personal circumstances such as to trump your right? 25 26MR. STONER: Yes, because, to use the gate analogy that was mentioned earlier, 27 and in fact I had scribbled down that if Mr. Moore, through the procedural 28 aspects - if my Lord is against me - if he gets to the gate and he opens the gate, 29 there is nothing beyond. If he opens the gate, that enables him to put his ---30 31MR. JUSTICE HILDYARD: Proportionality. 32 33MR. STONER: Proportionality forward. I actually wrote down an empty field 34 but perhaps it just should be an expanse of water (whatever). There is just 35 nothing there. That is where, in my submission, Mr. Moore falls down, even if 36 you are against me on the procedural aspects. 37 38MR. JUSTICE HILDYARD: Because he simply has not adduced evidence. 39 40MR. STONER: No. 41 42MR. JUSTICE HILDYARD: If he were to say to me I mis-appreciated this and I 43 would like to put in evidence what would your response be?
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1 2MR. STONER: Without being unhelpful, I think I would have to listen to how it is 3 put. It would not be a general: that is fine. What I would also say is that I 4 made it very plain in my written submissions, and I know they only went 5 through yesterday morning, that it is personal circumstances - and yet nothing 6 has been brought to the table this morning. And we have had the 7 circumstances where we have dealt with home mooring, and matters of that 8 sort. So it is difficult to see what further evidence there might be. 9 10MR. JUSTICE HILDYARD: Yes. 11 12MR. STONER: In my submission there has to be something particular. The cases 13 refer to it being a high hurdle. There has to be something particular. If there 14 was something particular it would be a very different circumstance if my Lord 15 is saying: what about X? Does that not need to be explored further? But we 16 do not even get to that initial stage, in my submission. 17 18MR. JUSTICE HILDYARD: So you are saying I am looking at the process in the 19 context of human rights whereas I should really be looking at the personal 20 circumstances affected by the exercise of rights. 21 22MR. STONER: Yes, otherwise I know there is the thin end of the wedge 23 argument but one must always tend away from any suggestion, as the Supreme 24 Court has been keen to ensure, of simply because a public authority take a 25 management decision then that of itself may lead to a human rights breach 26 without considering the circumstances or there being special circumstances for 27 the individual. Special circumstances for the individual is what is all 28 important in these cases, in my submission. 29 30MR. JUSTICE HILDYARD: So I would be forced to quash. In effect I would have 31 to say: I am not satisfied. 32 33MR. STONER: For the reasons I have said earlier, even if you find there is a 34 breach of human rights, it does not follow that relief has to follow because of 35 the special circumstances of this case and the fact that we have had such 36 protracted litigation. The core question comes back to: if the court quashes 37 and we go back to base, is there anything that Mr. Moore is going to be 38 advancing that he has been deprived of? 39 40MR. JUSTICE HILDYARD: That is why I asked you whether you would object if 41 he asked me for more? I am trying to think really pragmatically about this. 42 43MR. STONER: Of course.
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1 2MR. JUSTICE HILDYARD: I am sorry about the time. I know you are placed. 3 4MR. STONER: I am in my Lords hands. 5 6MR. JUSTICE HILDYARD: How are you placed, Mr. Moore? I do apologise for 7 it taking so long. 8 9MR. STONER: No, no. It is an important matter. 10 11MR. JUSTICE HILDYARD: I think we will have to reconvene however shortly 12 because we have other matters to deal with. 13 14MR. STONER: Yes. 15 16MR. JUSTICE HILDYARD: That was the purpose of my question to you. I do not 17 want to kick off another process unless I am bound to do so. 18 19MR. STONER: What I say emphatically in that case is that given I have my 20 original trial papers here (I have more papers back in chambers) that there is 21 just no stone that has been unturned in this case. That is a marked contrast to 22 many of these cases where they are dealt with in a general possessions list or at 23 a deferred stage, adjourned hearing after a general possessions list. 24 25MR. JUSTICE HILDYARD: Yes. 26 27MR. STONER: It is a relevant element, in my submission, of proportionality to 28 consider the consequence of the relief. So just as with legitimate expectation, 29 if my Lord were to find actually that you were not with me on human rights 30 and there had been a breach, a declaration that there had been a breach in the 31 circumstances of this case would be absolutely the right relief, and nothing 32 more. 33 34MR. JUSTICE HILDYARD: I am conscious of the fact that although he is a very 35 experienced and helpful litigant in person, the fact is that I must try it very 36 much from his point of view as well. 37 38MR. STONER: Of course. 39 40MR. JUSTICE HILDYARD: So I will ask him what he says about this additional 41 evidence. What do you say about how long? Mr. Moore was not very 42 forthcoming on that. What do you say? 43
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1MR. STONER: What I said in my written submissions is that when it comes to any 2 relief, just generally if the court is going to give a period of time now my client 3 has stated through me in written submissions that it is quiet prepared to listen 4 to any suggestion as to how long. If the process were to be gone through, the 5 process provides for 42 days because it is a 28 day letter and then a 14 day 6 letter. Then realistically there is a few days in between. Then the matter has to 7 go to court. Well, we have been to court. What I built into my minute of 8 order was to ask for an injunctive relief or requiring the vessel to go by a date 9 to be specified. If my Lord might say three months from today, which is far 10 more generous than the procedure, then I think.... Well, I am suggesting three 11 months as opposed to saying that that is acceptable from my clients 12 perspective. 13 14MR. JUSTICE HILDYARD: But that would not, in their view, interrupt them in 15 the exercise of their function of keeping the waterway open. 16 17MR. STONER: Again, I think my answer has to be pragmatic and realistic. This 18 vessel has been here for the last four and a half years. It would be churlish to 19 try and suggest that in the absence of some special factor that water space has 20 to be cleared within the next three months; no, it has not. 21 22MR. JUSTICE HILDYARD: Is there anything else? 23 24MR. STONER: Only if I can be of assistance. 25 26MR. JUSTICE HILDYARD: Mr. Moore, you have heard all that. Do you wish, 27 and if so why, to put in and ask for a further bite of this quite well chewed 28 cherry? 29 30MR. MOORE: Can you just please clarify a bit more? 31 32MR. JUSTICE HILDYARD: It would go to some special circumstances of your 33 own, for which you need evidence, which show why in this case I ought not to 34 let the process unwind - that is to say let the Section 8 notices take effect. 35 That is what it comes down to. 36 37MR. MOORE: This is in relation to the issue of human rights and/or legitimate 38 expectations? 39 40MR. JUSTICE HILDYARD: Yes. Let us bundle them up because I think it would 41 be unnecessary to parcel them out. They will all have to be dealt with 42 together. 43
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1MR. MOORE: So what I am being asked is would I want to give - to have an 2 opportunity to be giving you more of ---3 4MR. JUSTICE HILDYARD: Your particular circumstances. Is there anything you 5 feel you should have said and want to say, and need evidence to say? 6 7MR. MOORE: And this is strictly on my own circumstances and not the question 8 of proportionality of the other evidence that you were suggesting. 9 10MR. JUSTICE HILDYARD: Well, I think Mr. Stoner has reminded us that the 11 exercise of proportionality is not as regards and overseeing of the management 12 function; it is a question of looking at your own individual circumstances. I 13 think that is what he is saying. 14 15MR. MOORE: So is it that there would need to be more that I would need to 16 provide? 17 18MR. JUSTICE HILDYARD: Is there anything that you say I have not taken into 19 account or I am unaware of as regards your personal circumstances which you 20 wish to elaborate on? Do you want to think about this over the short 21 adjournment and let me know at 2 oclock? Otherwise, I would be minded to 22 give my decision, although I may subsequently elaborate it in writing to avoid 23 any further delay, and we will have to go on to the other matters in issue which 24 will include costs and the question of permission to appeal and that sort of 25 thing. 26 27MR. MOORE: Well, if we can do that. 28 29MR. JUSTICE HILDYARD: Shall we reconvene at 2 oclock then? I will 30 reconsider the cases to satisfy myself as to the approach over the short 31 adjournment, but as presently advised I think that I would need some pretty 32 specific reasoning from you as to why you need time to put forward factors 33 relevant to your personal circumstances for further consideration in the context 34 of the same proceedings on a future occasion. That is what I would like your 35 assistance on. 36 37MR. MOORE: Thank you, my Lord. 38 39MR. JUSTICE HILDYARD: 2 oclock. 40 41 (Adjourned for a short while) 42 43 (For P.M. proceedings see separate transcript)
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Moore V BWB On Human Rights

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Moore V BWB On Human Rights

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IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

1 2 3 4 5 6 7 8 9 10B E T W E E N : 11 Before: MR. JUSTICE HILDYARD

The Royal Courts of Justice Thursday, 16th February 2012

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2 3

1 2 3 4 5 6 7OPENING 8 9 Mr. STONER 10 Mr. MOORE 11 12 13 14

INDEX Page No.

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2 3

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

BEVERLEY F NUNNERY & CO 1 OFFICIAL SHORTHAND WRITERS 2

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