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Moore v BWB, Appeal Skeleton against Mann Judgment on Prelim. Issues

Moore v BWB, Appeal Skeleton against Mann Judgment on Prelim. Issues

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Published by Nigel Moore
Skeleton Argument for why Mann Judgment on first preliminary issue on public rights of navigation should be quashed.
Skeleton Argument for why Mann Judgment on first preliminary issue on public rights of navigation should be quashed.

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


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Case No: HC07C02340APPEAL COURT REFERENCE: 2009/0731NIGEL PETER MOOREAppellantvsBRITISH WATERWAYS BOARDRespondentSKELETON ARGUMENTin support of Grounds for AppealIntroduction
The genesis of this action lay in the serving of “section 8” notices on severalboats in my care. The relevant reasons given were that the boats wereunlicensed and/or on an unauthorised mooring.2.
In answer to both those reasons I wrote to British Waterways Board (BWB)noting that these moorings had been used by our business for years withoutdispute and stating that
“all these boats are on a free public right of navigation, moored against our private riparian property. As you in particular 
(Mr Nigel Johnson, Legal Director)
are aware, the enabling Act of 1793 took  particular care that the GJCC were to maintain and respect these rights alongthe tidal section between the Thames and what is now the ‘Boatman’s Institute’.”
Mr Johnson’s reply was that
“all rights of navigation on BW managed waterways, whether public or private, arising under any local enactment (which includes the Act of 1793 to which you refer) were abolished by section105 of the Transport Act 1968. Section 115 of that Act defines the ‘right of navigation’ that is abolished as including ‘any right to use or keep any vesselor craft on the waterway
or canal’.”
(Tab 6)4.
Following the issue of proceedings and exchange of pleadings, several otherrelated issues and argument arose, and it was suggested that an initial trial of preliminary issues be heard.5.
By Order of Master Bragge four issues were to be determined in a trial of preliminary issues. Three had been proposed by BWB, and at Master Bragge’ssuggestion the initial issues raised in my Particulars of Claim wereencapsulated within a single statement as issue (i). The intent of that issuewhich I had drafted was to have the two fundamental claims that I hadproposed to BWB - and which had been rejected by them – determined judicially prior to any hearing on further issues.6.
By agreement between the parties by the time of the hearing, two of the issueswere agreed, leaving two live issues before the court: -(i)
Whether the rights concerning the waterway between Bax’s Mill andthe River Thames, as described in the Grand Junction Canal Company
 3Act of 1793, remain in force and unaffected by the provisions of theTransport Act 1968.(iii) Whether the Defendant is the relevant statutory navigation authority forthat element of the Grand Union Canal which now or formerlycomprised tidal waters of the River Brent.7.
In his Judgment of 12
February, Deputy Judge Mr Martin Mann QC (the judge) correctly identified that
“the legality of the section 8 notices rests primarily on the outcome of issue (i).”
(Tab 4, page 6, paragraph 15) Howeverhe later concluded that
“strictly speaking issue (i) does not need to bedetermined because a public right of navigation does not include an ancillaryright to moor other than temporarily in the course of navigation (issue (iv)).”
 (Tab 4, page 12, paragraph 33)8.
As a result of this opinion the judge has only said in his Order that issue (i)
“isanswered (in so far as is necessary) in the following terms: the private right of navigation granted by section 43 of the 1793 Act was repealed by the 1968  Act.”
Issue (iii) was answered “Yes” in favour of the Defendant and I am notseeking to appeal against that finding.10.
In the course of handing down the judgment, while I was struggling to come toterms with the procedural niceties of an appeal against the determination of 

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