assert rights such that BWB cannot exercise against him the powers they have sought to enforce,requires not only a review of the provisions of the 1793 Act but also consideration of common lawriparian rights (including a right to moor) which the Claimant contends he has by virtue of his possessionor occupation of (or of part of) land along the GUC near Ridgeways Wharf.4.Although some issues have melted away or been restricted by agreement (as I shall explain later), anddespite BWB's protestations that it has been dragged into legislative undergrowth it had no wish to trawlthrough, the dispute has developed into something of a test of the rights of users of the GUC and thepowers of BWB in that regard.5.The matter has already travelled to the Court of Appeal. This was in relation to the adjudication by MrMartin Mann QC, sitting as a Deputy High Court Judge, of 4 preliminary issues. These were designed todetermine some of main issues raised in the pleadings in respect of the use of the GUC between Bax'sMill (now more usually called the "Boatman's Institute") and the River Thames. Not for the first time inlitigation these preliminary issues have achieved less than had been hoped in terms of confining thetrial.
The Preliminary Issues already adjudicated
6.The 4 preliminary issues, and the answers given to each at first instance, were as follows:i) Preliminary Issue (1): whether the rights concerning the waterway between Bax's Milland the River Thames, as described in the Grand Junction Canal Company Act of 1793("the 1793 Act") remain in force and unaffected by the provisions of the Transport Act 1968("the 1968 Act"); to which Mr Mann QC answered (though doubting that an answer wasnecessary in light of his other conclusions) that the private right of navigation, which hedescribed as having been granted by section 43 of the 1793 Act, was repealed by the1968 Act.ii) Preliminary Issue (2): whether the GUC extends down stream to the mouth of the RiverBrent into the mouth of the River Thames; to which Mr Mann QC answered: Yes.iii) Preliminary Issue (3): whether the BWB is the relevant statutory navigation authority forthat element of the GUC which now or formerly comprised tidal waters of the River Brent;to which Mr Mann QC answered: Yes.iv) Preliminary Issue (4): whether a public right of navigation includes an ancillary right tomoor other than temporarily in the course of navigation; to which Mr Mann QC answered:No.7.The Claimant's appeal focused on Preliminary Issue (1), and on the order for costs (to the latter of whichI return at the end of this Judgment). Indeed (as recorded in the judgment of the Court of Appeal) that isthe only one of the Preliminary Issues for which the Claimant sought permission to appeal. PreliminaryIssue (2) was agreed. Preliminary Issue (3) had been resolved by the fact that the regulation of the GUC(generically referred to as 'the Navigation') had devolved to BWB which in fact does and is entitled toregulate it. Preliminary Issue (4), though not agreed, ceased to be actively contested, it being clear thatthe public right of navigation has never included an ancillary right to moor, other than temporarily in thecourse of a voyage on the GUC, and it not being suggested that any of the vessels concerned in thiscase was temporarily stopped in the course of such a voyage.8.The Court of Appeal endorsed what by then was or became the shared view of the parties that theDeputy Judge's ruling on Preliminary Issue (1) was unsatisfactory and could not stand. As Mummery LJput it in his Judgment (
Nigel Moore v British Waterways Board
 EWCA Civ 42at paragraph 5),
"Something had gone wrong with it, not least because it was in terms for which neither side had contended."
The Court of Appeal set aside the ruling and directed that Preliminary Issue (1) shouldproceed to trial along with all other issues not resolved by the Deputy Judge's ruling.
The scope of this Trial
9.However, in the course of the hearing in the Court of Appeal, and after the Claimant had refined andmore specifically explained his case in reliance upon a riparian right, being to the effect that the relevantcanal bank by Ridgeways Wharf is a wharf which carries the riparian right to moor alongside, BWBstated that it does not seek to argue that if, prior to 1793, there was a pre-existing right to moor, it has