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Moore v BWB, CMC Appeal proceedings

Moore v BWB, CMC Appeal proceedings

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Published by Nigel Moore
Appeal against Case Management Order to remove river ownership issue from trial.
Appeal against Case Management Order to remove river ownership issue from trial.

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Categories:Business/Law
Published by: Nigel Moore on Jan 19, 2013
Copyright:Attribution Non-commercial

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01/19/2013

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IN THE HIGH COURT OF JUSTICECHANCERY DIVISION No. CH/2010/0709Royal Courts of JusticeFriday, 18
th
February 2011Before:MR. JUSTICE ARNOLDB E T W E E N : NIGEL PETER MOOREClaimant- and -BRITISH WATERWAYS BOAD Defendant _________ 
Transcribed by
 BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HP 
Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com
 _________ THE CLAIMANT appeared in Person.MR. C. STONER (instructed by Shoosmiths) appeared on behalf of the Defendant.
P R O C E E D I N G S
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MR. JUSTICE ARNOLD: Good morning, Mr. Moore. It is probably worthexplaining at the outset that this is an application by you for permission toappeal, as I am sure you appreciate, and it is in the nature of these applicationsthat they are generally listed for no more than half an hour. Furthermore,although I see that Mr. Stoner QC is present, he does not have any right to beheard on this occasion. Obviously, if I need to hear from him I will. But thisis primarily for you to convince me that you have a case that is worth goingforward to a full hearing.The next point which I think would be worth point out is that I have read the papers in this case with some care. So, I think I have got a pretty good graspof what it is about. I think it might be worth explaining to you at the outsetwhy I thought when I considered the matter on the papers that an appeal wouldnot have a real prospect of success. I think it can be illustrated by taking whatI understood to be your first two points.Firstly, you complain that the Master has stood on its head his previous order of 26
th
May. But when I look at the order of 26
th
May it seems to me you aremisreading it. It is fair to say that the way it has been set out in the order, interms of the punctuation, is perhaps not desperately helpful. In particular, theway that brackets have been put into it. Nevertheless, I think the sense of it is pretty clear. It says:“The defendant do serve on the claimant, using the draft list of issues provided by the claimant for the purposes of the case managementconference as a starting point, an amended draft list of issues if appropriate, adding to the list provided by the claimant any further issues the defendant considers arsing on the pleadings.”So what that says is: take your list of issues as a starting point and if appropriate add to it. Now, I do not regard that as an order which constrainsthe Defendant to merely take your list of issues and only add to it. But even if that were the correct interpretation of para.2 of the order, it then goes on to saythat the parties are to endeavour to agree a list of issues, and that in default of agreement the matter has to come back before the Master (para.5) for finaldetermination of the list of issues if not agreed. So, even if I read para.2 asyou want me to read it, I cannot see that that can have bound the Master  because para.5 of the order of 26
th
May quite clearly leaves it up to him, in theevent of disagreement, to decide what is the final list. So, that is briefly whyI was unimpressed with your first point.Your second point, you say the Master’s final list of issues leaves out what youdescribe as the primary issue of public rights of navigation. Well, when I look 
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at the list of issues, that does not seem to me to be correct, and it does notseem to be correct in at least two different ways.MR. MOORE: Can you give me the page number?MR. JUSTICE ARNOLD: I am going to look at the list of issues, p.3.MR. MOORE: I am sorry, my Lord. Have you got a reference number in the bundle?MR. JUSTICE ARNOLD: I do not have a bundle so I cannot help you. TheMaster’s order of 15
th
October. This is the order you are trying to appealagainst.MR. MOORE: Yes.MR. JUSTICE ARNOLD: If you then go to the attached final list of issues.MR. MOORE: Sorry. I only seem to have the June one.MR. JUSTICE ARNOLD: It should be annexed to the Master’s order of 15
th
October.MR. MOORE: Thank you very much. My apologies, my Lord. I am sorry ....MR. JUSTICE ARNOLD: Maybe you have got it attached to your Appellant’snotice. I do not know how your bundle is organised, I am afraid.
(After a pause)
Mr. Stoner, do you have a spare copy?MR. STONER: I do.MR. JUSTICE ARNOLD: Right. Good. Thank you. So, have you got the finallist of issues?MR. MOORE: I have, my Lord.MR. JUSTICE ARNOLD: Right. So, if you turn to p.3, Issue 1: “What is the proper construction of Section 43 of the Grand Junction Canal Act 1793? (a)Did Section 43 protect and maintain all pre-existing rights enjoyed over theRiver Brent prior to the construction of the canal?” Now, all pre-existingrights covers the public right of navigation over the river. If one is in anydoubt about that, it becomes clear when you get to Issue 6. Issue 6: “Whether British Waterways in the exercise of its statutory navigation powers, but
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