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Moore v BWB, Handing Down Proceedings, March 2009

Moore v BWB, Handing Down Proceedings, March 2009

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Published by Nigel Moore
Transcript of proceedings and argument at handing down of judgment on the preliminary issues respecting validity of Section 8 Notices.
Transcript of proceedings and argument at handing down of judgment on the preliminary issues respecting validity of Section 8 Notices.

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Categories:Types, Business/Law
Published by: Nigel Moore on Jan 19, 2013
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01/19/2013

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IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONCase No. HC/07C02340Court No: 15Royal Courts of JusticeStrandLondonWC2A 2LLThursday, 12
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March 2009BeforeMR MANN QC SITTING AS DEPUTY JUDGE NIGEL PETER MOOREandBRITISH WATERWAYS BOARDTranscribed from the official Tape RecordingUbiqusClifford’s Inn, Fetter Lane, London EC4A 1LDTel: +44 (0)20 7269 0370MR MOORE appeared IN PERSONMR C STONER appeared on behalf of the DEFENDANT---------WHOLE HEARING---------
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Court rises.
JUDGE MANN: You have been provided with the approved judgment now. I understoodthere are no typographical errors or anything of that kind, so this will stand as theauthentic judgement of the Court. I have a number of copies. The court will needone, so I will hand that down. If the shorthand writers or anyone else needs them,then here are another three. Please have a coloured copy of the plan of the[inaudible] in them. There is another one here.MR STONER: The approved judgment hasn’t yet reached us.JUDGE MANN: Well it should have done. In which case, these can be taken as theapproved judgment.MR STONER: Thank you very much.JUDGE MANN: It should have been e-mailed to you yesterday afternoon.MR MOORE: Certainly, I didn’t receive any e-mail.JUDGE MANN: For that then, I will apologise on behalf of whoever is responsible, other than myself and make it my responsibility.I have been provided with a draft minute of order, Mr Moore, have you seen that?MR MOORE: The draft minute of order, My Lord?JUDGE MANN: Yes.MR MOORE: Yes, I have.JUDGE MANN: Do you have any observations to make on that?MR MOORE: Yes, My Lord. With respect, but predominantly to issue number one.Because I am finding myself slightly bemused, in terms of the judgment, with whatyou had said in the course of the judgment and with the fact that it is essentially,issue one is not really being answered.JUDGE MANN: Well it has, as a matter of fact. Issue one is set out, in fact, in the partminute of order but it is also at the back of the approved judgment. And thequestion the Master raised, order to be determined as issue one, was whether the
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rights concerning the Waterway between [Becks’ Mill?] 0:114 and the River Thames, as describe in the Grand Junction Canal, remain in force and unaffected bythe provisions of the Transport Act 1968. And the answer to that is that the privateright of navigation, which was what the Act created, was repealed by the 1968 Act.MR MOORE: Yes, My Lord. What my request had been in terms of this issue was thatthe rights that were described, the rights that were pre-existing, did remain in forceand were not repealed. Not in respect of any-JUDGE MANN: -if you mean the public right of navigation, then that is not affected because the private right is the only right which was created by the Act of 1793.The existing public right was not destroyed by the Act of 1793 but continues so far as exercise.MR MOORE: Well My Lord, yes, I am happy that you did so find that, but that was alarge part of my argument respecting this.JUDGE MANN: Yes, well the public right of navigation will still exist but whether it can be used to full advantage is another matter.MR MOORE: Well, I understand that, My Lord. Obviously this, as we discussed in thehearing was a preliminary, on the preliminary issues, of which this was one. Theconsequences of that, as to whether it was going to assist me in my case was yet to be determined in the case, as it followed on from these preliminary issues. So it wasimportant that if it found that the rights, including predominantly the public right of navigation, does still exist and those private rights, whether navigational or riparian,as did exist at the time; and as described as pre-existing-JUDGE MANN: What I have done, Mr Moore, is to answer the question. The rightsconcerning the waterway, as described, and the rights concerning the waterway, asdescribed, include the public right. But the one right which it creates, which has been dealt with by the Transport Act 1968, has been repealed. So you have theanswer. If you want the answer to be extended, I will have to hear Mr Stoner about
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