IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION [2011] EWHC 633 (Ch)

No. CH/2010/0709

Royal Courts of Justice Friday, 18th February 2011 Before: MR. JUSTICE ARNOLD BETWEEN: NIGEL PETER MOORE - and BRITISH WATERWAYS BOARD __________ Transcribed by BEVERLEY F. NUNNERY & CO Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com __________ Defendants Claimant

THE CLAIMANT appeared in Person. MR. C. STONER QC (instructed by Shoosmiths) appeared on behalf of the Defendant.

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JUDGMENT (As approved by the Judge)

MR. JUSTICE ARNOLD: 1 2 This is a renewed application for permission to appeal by Mr. Nigel Moore against an order of Master Bragge dated 15 October 2010. This is a complicated piece of litigation that arose out of the purported service by the Defendants, the British Waterways Board, of notices under section 8 of the British Waterways Act 1983 on some vessels under the control of Mr. Moore back in 2007. There were preliminary issues directed to be tried, which were the subject of a trial before Mr. Martin Mann QC, sitting as a Deputy High Court Judge, which he adjudicated upon in a judgment dated 12 March 2009. Subsequently, there was an appeal by Mr. Moore to the Court of Appeal, the result of which was that the Court of Appeal set aside Mr. Mann QCs order with regard to the first preliminary issue, but otherwise did not disturb his adjudication. That decision was given on 5 February 2010. Subsequent to that, a case management conference was held before Master Bragge on 26 May 2010, at which there was a lengthy debate between the parties as to what the issues were which remained outstanding and required to be determined at trial. In the light of that debate, the Master made an order providing for a mechanism for the parties to seek to agree a list of issues, and in default of agreement for a further case management conference to take place before him at which he would finally determine the list of issues if not agreed. Unhappily, the parties were unable to agree a list of issues and accordingly the matter returned to Master Bragge on 15 October 2010. He considered the matter in detail and made an order determining a final list of issues. That list was substantially based upon that which had been proposed by the British Waterways Board at the hearing before him, but with certain minor modifications. He also gave directions for the trial of the issues so identified. Mr. Moore has sought to appeal against the Masters order. His primary complaint is as to the final list of issues, although he has also challenged some of the other directions. I refused the application on paper on 21 December 2010, and this morning he has renewed his application. Having considered what Mr. Moore had said in his written materials, and listened to him this morning, I remain of the view which I expressed in my written decision, that his proposed appeal has no real prospect of success. As I pointed out in my written decision, the Masters decision was a case management decision. That

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being so, Mr. Moore has a high hurdle to overcome in order successfully to challenge that decision. That is particularly so in circumstances where the Master considered the matter in detail and with care, and where all his order does is seek to identify the parameters of the dispute which is going forward to trial. 8 As I explained to Mr. Moore this morning, it seems to me that a number of the points that Mr. Moore has raised by way of objection to the Masters order are based on a misunderstanding either of his previous order of 26 May 2010 or of the order in question itself. The one point that has given me any pause for consideration is a point that Mr. Moore raised this morning about the impact of the order with regard to the question of ownership by the British Waterways Board of the riverbed in the area in question. The final list of issues, as determined by the Master, recites that the British Waterways Board has been registered as owner of the riverbed, subject to a pending application for permission to appeal and a pending application for judicial review. Mr. Moore expressed the concern that, first, the British Waterways Board was relying upon its ownership of the riverbed as a basis for requiring boat owners to take licences and to pay it fees, and, secondly, that the list of issues, as determined by the Master, would not permit him to challenge that. As counsel for the British Waterways Board accepted, however, Mr. Moore is entitled to raise such points as he wishes, and the list of issues, as framed, does not prevent him from doing that. What the recital does do is to make clear that the British Waterways Board will be relying upon the fact that it is the registered owner of the land in question. In those circumstances, it seems to me that Mr. Moore need not be concerned that he is shut out by the Masters order from raising such challenges to British Waterway Boards ability to issue licences and charge fees on the basis of its ownership of the riverbed that he wishes to raise. Whether those points will be successful is, of course, another matter entirely. That matter having been clarified, I adhere to the view that the proposed appeal has no real prospect of success. Accordingly, I dismiss this application for permission to appeal. ___________

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