IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION 1 2 3 4 5 6 7 8 9 10 11B E T W E E N : Before: MR.

JUSTICE ARNOLD

No. CH/2010/0709

Royal Courts of Justice Friday, 18th February 2011

12 13 NIGEL PETER MOORE 14 15 - and 16 17 BRITISH WATERWAYS BOAD 18 19 _________ 20 21 22 Transcribed by BEVERLEY F. NUNNERY & CO 23 Official Shorthand Writers and Tape Transcribers 24 Quality House, Quality Court, Chancery Lane, London WC2A 1HP 25 Tel: 020 7831 5627 Fax: 020 7831 7737 26 info@beverleynunnery.com 27 28 _________ 29 30 31 32THE CLAIMANT appeared in Person. 33 34MR. C. STONER (instructed by Shoosmiths) appeared on behalf of the Defendant. 35 36 37 38 39 40 41 PROCEEDINGS

Claimant

Defendant

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1MR. JUSTICE ARNOLD: Good morning, Mr. Moore. It is probably worth 2 explaining at the outset that this is an application by you for permission to 3 appeal, as I am sure you appreciate, and it is in the nature of these applications 4 that they are generally listed for no more than half an hour. Furthermore, 5 although I see that Mr. Stoner QC is present, he does not have any right to be 6 heard on this occasion. Obviously, if I need to hear from him I will. But this 7 is primarily for you to convince me that you have a case that is worth going 8 forward to a full hearing. 9 10 The next point which I think would be worth point out is that I have read the 11 papers in this case with some care. So, I think I have got a pretty good grasp 12 of what it is about. I think it might be worth explaining to you at the outset 13 why I thought when I considered the matter on the papers that an appeal would 14 not have a real prospect of success. I think it can be illustrated by taking what 15 I understood to be your first two points. 16 17 Firstly, you complain that the Master has stood on its head his previous order 18 of 26th May. But when I look at the order of 26th May it seems to me you are 19 misreading it. It is fair to say that the way it has been set out in the order, in 20 terms of the punctuation, is perhaps not desperately helpful. In particular, the 21 way that brackets have been put into it. Nevertheless, I think the sense of it is 22 pretty clear. It says: 23 24 “The defendant do serve on the claimant, using the draft list of issues 25 provided by the claimant for the purposes of the case management 26 conference as a starting point, an amended draft list of issues if 27 appropriate, adding to the list provided by the claimant any further 28 issues the defendant considers arsing on the pleadings.” 29 30 So what that says is: take your list of issues as a starting point and if 31 appropriate add to it. Now, I do not regard that as an order which constrains 32 the Defendant to merely take your list of issues and only add to it. But even if 33 that were the correct interpretation of para.2 of the order, it then goes on to say 34 that the parties are to endeavour to agree a list of issues, and that in default of 35 agreement the matter has to come back before the Master (para.5) for final 36 determination of the list of issues if not agreed. So, even if I read para.2 as 37 you want me to read it, I cannot see that that can have bound the Master 38 because para.5 of the order of 26th May quite clearly leaves it up to him, in the 39 event of disagreement, to decide what is the final list. So, that is briefly why 40 I was unimpressed with your first point. 41 42 Your second point, you say the Master’s final list of issues leaves out what you 43 describe as the primary issue of public rights of navigation. Well, when I look
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1 at the list of issues, that does not seem to me to be correct, and it does not 2 seem to be correct in at least two different ways. 3 4MR. MOORE: Can you give me the page number? 5 6MR. JUSTICE ARNOLD: I am going to look at the list of issues, p.3. 7 8MR. MOORE: I am sorry, my Lord. Have you got a reference number in the 9 bundle? 10 11MR. JUSTICE ARNOLD: I do not have a bundle so I cannot help you. The 12 Master’s order of 15th October. This is the order you are trying to appeal 13 against. 14 15MR. MOORE: Yes. 16 17MR. JUSTICE ARNOLD: If you then go to the attached final list of issues. 18 19MR. MOORE: Sorry. I only seem to have the June one. 20 21MR. JUSTICE ARNOLD: It should be annexed to the Master’s order of 15th 22 October. 23 24MR. MOORE: Thank you very much. My apologies, my Lord. I am sorry .... 25 26MR. JUSTICE ARNOLD: Maybe you have got it attached to your Appellant’s 27 notice. I do not know how your bundle is organised, I am afraid. (After a 28 pause) Mr. Stoner, do you have a spare copy? 29 30MR. STONER: I do. 31 32MR. JUSTICE ARNOLD: Right. Good. Thank you. So, have you got the final 33 list of issues? 34 35MR. MOORE: I have, my Lord. 36 37MR. JUSTICE ARNOLD: Right. So, if you turn to p.3, Issue 1: “What is the 38 proper construction of Section 43 of the Grand Junction Canal Act 1793? (a) 39 Did Section 43 protect and maintain all pre-existing rights enjoyed over the 40 River Brent prior to the construction of the canal?” Now, all pre-existing 41 rights covers the public right of navigation over the river. If one is in any 42 doubt about that, it becomes clear when you get to Issue 6. Issue 6: “Whether 43 British Waterways in the exercise of its statutory navigation powers, but
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1 having regard to public rights of navigation, and any rights protected by 2 Section 43 of the Grant Junction Canal, as replied upon by Mr. Moore, is 3 entitled...” and so on and so forth. So, it seems to me to be abundantly clear 4 that the issues as framed in this list do encompass the question of the public 5 right of navigation over the river. You are in no way debarred by this list of 6 issues from putting forward your case on that point. So, as I say, that is an 7 illustration of why it seemed to me that you were very unlikely to have a 8 prospect of success in disturbing the Master’s order just looking at the 9 substance of the points. 10 11 The other reason, which I mentioned in the paper decision, which is a more 12 general one, is that it is not my job to second guess the Master. Case 13 management is an exercise which in our system is carried out by the Masters. 14 There is a lot of law which says that I am not entitled to interfere with case 15 management decisions by Masters unless the Master has plainly and obviously 16 gone wrong. That is why I said it is a high hurdle for you to overcome. The 17 Master considered all of this over two different hearings, spent a lot of time 18 and effort on it, and it seems to me that it is very difficult in those 19 circumstances to say that he has obviously gone wrong. 20 21 Having explained to you why I think you have problems, now let me allow 22 you to try and persuade me that I am wrong. 23 24MR. MOORE: Thank you, my Lord. Without going into too much detail following 25 that, the main problem I had regarding the public right navigation issue was 26 that it was removing – although I take your point that it is buried in here, that 27 is what it is, burying it in what was the first prime issue as something that is an 28 incidental question. Whereas my case in my particulars of claim made a 29 series, and a fairly brief series, of claims that I wanted the court to make a 30 declaration on, mostly getting it subsumed, if you like, in a rota of other 31 things, this has been rendered almost incidental. If your Lordship is clear, as 32 he has been saying, that I do have liberty to present the case as presented in my 33 particulars of claim, then that would be fine. 34 35MR. JUSTICE ARNOLD: So far as that issue is concerned, there is nothing in the 36 Master’s order that stops you from presenting the claim as set out in your 37 particulars of claim. The whole reason why the Master made the order he did 38 was because the case seemed to be growing like Topsy and a whole series of 39 additional issues had appeared later down the line which were not mentioned 40 in your particulars of claim, and it was so as to ensure that everybody knew 41 what the issues where that the order was made. If the matter had been 42 confined to what was in your particulars of claim, there would not have been 43 any need for the order in the first place. I think you can take it that he does not
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1 prevent you from advancing the case that is in your particulars of claim, save, 2 obviously, to the extent that the order of the Court of Appeal determines some 3 of the subsidiary issues arising. I am sorry, not the Court of Appeal, Mr. Mann 4 QC. 5 6MR. MOORE: I am sorry, but could you repeat that last bit? 7 8MR. JUSTICE ARNOLD: Obviously, you cannot reargue the points that were 9 decided by Mr. Mann QC and which were not changed by the order of the 10 Court of Appeal. So, in so far as those points have been decided, that is final. 11 But those, as I see it, are fairly subsidiary in the scheme of things, as the case 12 now stands. Save to the extent that Mr. Mann’s order was left intact by the 13 Court of Appeal, it is open to you to run the case in your particulars of claim. 14 15MR. MOORE: Yes. To clarify that, my Lord, then the three issues that were left 16 alone are not issues that I had wanted in the first place to engage in anyway. 17 18MR. JUSTICE ARNOLD: Fine. 19 20MR. MOORE: Initially, number one, which was quashed, was the one that 21 contained within it the arguments over the public right of navigation and the 22 arguments over the retained rights of – they were not to do with the public 23 rights of navigation, they were to do with .... So, yes, those were the ones that 24 the Appeal Court did actually direct would be returning to the main trial. 25 26 I would make the point that I have not myself gone beyond what my original 27 claim in the particulars of claim are. There are a plethora of other issues, a lot 28 of which, I would say, are actually confusing the issue. One of my complaints 29 is that ... did not have any concern and, in fact, had the effect of confusing 30 what the issues were. For example, on the public right of navigation, I had a 31 great deal of problems, but other than ... Mr. Mann QC, and even of the appeal 32 judges, it took some time to actually get through – and I did not in the end 33 succeed fully in that either – what the point of the public right of navigation 34 was because it had been steered in different directions. So, the judges were 35 actually looking at why I was arguing the public right of navigation from a 36 different point of view as to what I was doing .... 37 38 The one major issue, other than that, my Lord, that has definitely been taken 39 out of the claim is the question of the extent of British Waterways Board’s 40 land ownership, which was there in my particulars of claim, and elaborated on 41 in the witness statements later, and which are absolutely essential to the two 42 matters concerning the Section 8 notices. If you go through the documentation 43 that I took the Master through from the publications that the British
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1 Waterways Board have made available as to the basis of their ability to charge 2 for moorings, the whole of it is based upon their right as a land owner. In 3 2006, when they were publishing the legal basis for the mooring provisions – 4 as I say, there is no public law regarding the moorings, it is entirely a matter 5 for the British Waterways Board as landowners. I have put in here the most 6 succinct, I think, in the calculation of the British Waterways Board as to their 7 powers to control ... moorings. 8 9MR. JUSTICE ARNOLD: Two points on that. First of all, my understanding, 10 which may be incomplete, is that the Waterways Board is primarily relying 11 upon its statutory authority rather than upon its rights as a landowner. But, in 12 any event, assume I am completely wrong about that, look at p.4 of the list of 13 issues, issue 4. Issue 4: 14 15 “Whether British Waterways has any entitlement to authorise moorings 16 in the location where the claimant’s vessels are moored if British 17 Waterways is unable to establish title to that element of the bank to 18 which Mr. Moore’s vessels are moored.” 19 20 So, that squarely addresses the issue which you just said had been taken out. 21 22MR. MOORE: Not quite, my Lord. 23 24MR. JUSTICE ARNOLD: Why not? 25 26MR. MOORE: Because, for a start, it is just asking if they are unable. Supposing 27 that it was said, yes, if they are unable to establish title they cannot authorise 28 mooring in this location, then it still leaves to be determined whether they do. 29 So, they are still leaving something up in the air. The other thing is that the 30 ability to charge for the moorings, as opposed to simply authorising, is tied in 31 with the ownership of the riverbed as well. If you give me a moment, my 32 Lord, I will read the actual publication of the British Waterways Board that 33 actually explains the provisions on this. 34 35MR. JUSTICE ARNOLD: But, again, I do not see why that is not covered. Issue 36 6, which we were looking at earlier, goes on: 37 38 “Whether British Waterways is entitled (1) to require Mr. Moore to 39 obtain a licence for his vessels to be on the Grand Union Canal/River 40 Brent, (2) to require Mr. Moore to obtain a mooring permit for his 41 vessels, (3) to charge fees in respect of the licence and/or mooring 42 permit.” 43
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1 So, that squarely addresses the question of whether they are entitled to charge 2 fees. 3 4MR. MOORE: The question, my Lord, I would ask is whether or not these issues, 5 as you have explained them, do enable me to argue against the basis that BW 6 have for this, what they are entitled to do, because as I read para.6 there it is 7 whether in the exercise of its statutory navigation powers. 8 9MR. JUSTICE ARNOLD: Yes. 10 11MR. MOORE: It is not addressing the question of whether they actually own the 12 navigation in the first place. So, for example, the Section 8 notice itself 13 demand that the boats be removed from the Board’s property, and if it is not 14 the Board’s property then there is no point to the Section 8 notice. If you are 15 saying that this para.6 enables me to argue that the British Waterways Board 16 do not own the riverbed, as well as the riverbank, then with that assurance, my 17 Lord, I would be content. But I would need to know that I can argue that, 18 because that is the fundamental basis upon which the British Waterways Board 19 themselves claim the right to charge for the moorings. Without that there is no 20 right. 21 22MR. JUSTICE ARNOLD: I am not sure that is accurate. 23 24MR. MOORE: Well, can I refer you to the publication, my Lord? 25 26MR. JUSTICE ARNOLD: By all means. 27 28MR. MOORE: This is British Waterways general information sheet relating to 29 offside, as in end of garden moorings. They say: 30 31 “The power to charge for end of garden moorings...” (what they are 32 talking about here is private property, it is not BW’s riverbank, it is 33 owned by somebody else) “...arises from the combined effect of 34 common law and the provision of the Transport Acts 1962 and 1968. 35 All use of BW’s canals is permissible.” 36 37 In other words, by licence of the land owned by the British Waterways Board. 38 They are talking about the abolition under the Transport Act 1968 of all public 39 and private rights of navigation. They quote at Section 105(5) of the Transport 40 Act 1968: 41 42 “ ... waterways, so far as it includes any public or private right of 43 navigation ... shall cease to have effect.”
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And then they go to Section 115 of the Act, which provides: “Reference to any right of navigation over a waterway or canal includes references to any right to use or keep any vessel or craft on a waterway or canal.” ‘Or keep’ is emphasised, and that they know that is their added emphasis. What they are saying is that if you need BW’s permission to be on a stretch of waterway the boat needs to be licensed because there is no right to use it on the waterway once the public right of navigation has been abolished, and by definition of the Act that means even if you are not in ... navigation would be moving from one place to the another. But even if you are just keeping the boat, in other words, if it is tied at the bottom of your own garden, the fact that you are floating on their water means that because the public right of navigation has been abolished therefore you still need to have a boat licence, even though you are not boating .... They explain that these two steps effectively abolish any statutory public rights to use or keep boats on BW’s own or managed canals and substituted .... Then they, having established that one, they go to the 1962 Act, Section 43(3), which is the section that deals with the charges. It provides: “...the British Waterways Board shall have power to demand taking any cover or waive such charges for their services as they see fit.” And Section 43(8) provides that that includes the use of any inland waterways by any ship or boat. Then it says: “Accordingly, a boat moored in a British Waterway’s canal is floating over the bed of the canal which is in BW’s ownership and BW has the common law right of a landowner to give or withhold consent for such use of its land and to charge for that use even though the boat may be adjacent to the end of the garden in other..., and in absence of such consent the board is trespassing.” So, what they are relying on is the fact that even if somebody else owns the bank, if they own the bed then they can charge for that use, because you are trespassing if you are just floating over the top of it. Later on they have a section where they are talking about the natural parts of the rivers which are managed by BW but are not owned by it. It says:

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1 “Where BW has navigational authority but does not own the bed of the 2 river a boater needs a licence from BW to cruise the river. However, 3 the boater does not need to pay BW a mooring fee as well as because 4 BW does not own the riverbed.” 5 6 Now, that is their whole rationale here for ---7 8MR. JUSTICE ARNOLD: Yes, but I do not understand why this is a problem for 9 you. I am not going to get into the question of the extent to which the riverbed 10 is or is not an issue properly on the pleadings, or covered by the list of issues 11 settled by the Master. But the point is this: let us make two assumptions. Let 12 us assume that you are right, that that issue is not covered by the list of issues, 13 and let us also assume that you are right, that the British Waterways Board 14 relies upon its ownership of the riverbed as the basis for its ability to charge 15 fees. Now, upon those two assumptions that is not a problem for you, it is a 16 problem for them, because on those two assumptions the basis upon which 17 they are trying to charge fees is outwit the list of issues. So, it is not a problem 18 for you, it is a problem for them. As I say, that is on those two assumptions, 19 and I am not pronouncing as to whether either of those assumptions is correct. 20 I am merely trying to see whether you have any grievance about this list of 21 issues. But, as I say, on the two assumptions that you are asking me to make 22 I cannot see that you do have a grievance. 23 24MR. MOORE: Well, my grievance – I am not quite sure if I follow – is whether or 25 not I am entitled to present the evidence as to what the extent of their 26 ownership is, because that is a basis on which they ---27 28MR. JUSTICE ARNOLD: No. No. It is completely the wrong way round. If it be 29 the case that the British Waterways Board wishes to try and justify its charging 30 of fees purely on the basis of its ownership of the riverbed, then that is 31 something that they have got to establish, and it has to be covered by the list of 32 issues. So, therefore, you can rest content, if you are right, that that is what 33 they are relying on, and it is not within the list of issues, because they are shut 34 out. 35 36MR. MOORE: What happened, my Lord, between the two case management 37 conferences is that in the interim period the British Waterways Board 38 proceeded in persuading the Land Registry to register the riverbed to them. 39 Now, that is something that is still the subject of litigation. I believe the court 40 has required information from other parties that were involved in a case before 41 the Land Registry adjudicator that immediately preceded this registration that 42 – the parties there were being asked to provide information as to the charges of

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1 fraud that were involved, which were never addressed by the Land Registry 2 adjudicator. So, to the extent, it is up in the air, but this is the reason why ---3 4MR. JUSTICE ARNOLD: I appreciate that, because that is mentioned in the 5 second recital to the list of issues. That refers to the registration as freehold 6 title owner of the bed of the river, and it refers an application for permission to 7 appeal and an application for judicial review. 8 9MR. MOORE: Yes. The thing is, my Lord, in my particulars of claim I said that 10 the British Waterways Board do not own any part of the navigation, and the 11 Master accepted that that was an issue, for the reasons of going through the 12 BW publications that I have just read out, as well as others. The reason that it 13 was allowed to be dropped following the October order is because he said: 14 “Now that it has been decided by a competent judge in a competent court you 15 cannot re-litigate it”. What I am saying is that if you have got one party ... in 16 this case, because I registered my objection to the Land Registry subsequent to 17 the filing of this case, and my friend, Mr. ..., went in in September 2007, and it 18 was a year or so later when a case was put before the adjudicator with other 19 parties, not mine, to determine their objections, and the grounds for their 20 objection formed no part of any arguments I presented in my pleadings in this 21 case. I presented my pleadings to the Land Registry and it was eventually 22 decided that my objections were not without foundation, that they would wait 23 until further things had been resolved before addressing the issue. 24 25 The fact is that whether it is bureaucratic inefficiencies, or whatever, the 26 gentleman who was dealing with my case left, people got forgotten, the matter 27 was never referred to the adjudicator, and my objections were never resolved. 28 As I pointed out to them, I said: “This is a matter that is contained within the 29 pleadings in this case and it is a travesty of justice if the British Waterways 30 Board are going to be able to get the Land Registry to register the riverbed in 31 their name when the Land Registry are bound to refer any unresolved 32 objection to the adjudicator”. That never was done, and nor was the 33 adjudicator informed that I did have my outstanding objections to the 34 registration incorporated into my witness statement and pleadings in this case. 35 That is something that I may or may not be able to address as a witness in 36 other parties squabbling over the issue. But I have maintained from the 37 beginning that there are a whole series of arguments that I have contained 38 within the pleadings in this case regarding the ownership, and the extent of 39 BW’s ownership. Although at first I said they do not own any of that, 40 subsequent to that then they made this application to the Land Registry and 41 I got documentation, I realised that, yes, in fact they did own some of it, but 42 not to the extent that affects my place. 43
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The fact that this court was seized of that matter in the pleadings in this case, must be acknowledged as a reason why the Land Registry are not entitled to go forward and register the land when it is as yet unresolved. The matter is further complicated by the fact that the Land Registry adjudicator was not informed, either by the Land Registry themselves, who had the pleadings in this case, nor by the British Waterways Board, who were asked to reveal the detail of any case that affected this particular application. Neither party did that. So, the fact that I have been ... for years now, and ... the pleadings, needs to be acknowledged as something that I need to continue and resolve. I have written to the Land Registry objecting to their failures in this regard, and they have acknowledge that – well, they basically shrugged their shoulders and said: “We will be bound by whatever determination the court makes at the end of your proceedings”. But in order for that to happen the court must hear the arguments that I have presented to date in these proceedings. If I am to be ..., my Lord, for no reason other than an argument against agreeing litigation, then my ability to answer the charges that British Waterways bring against me, is cut out from underneath me, even though the issues and the arguments that I presented in my pleadings have never claimed any part of anything that ever went before the Land Registry adjudicator. They are unresolved gestures, and the court has not made a determination on them. The reason that the Master gave, as I say, was that to carry on and address all the arguments that I have made to date would constitute relitigation. My point is that it cannot possibly constitute re-litigation because none of the arguments that I have presented thus far have ever been litigated. What went before the adjudicator was no part of any argument that I ever made. Plus, so far as I am aware, and I am naturally very ignorant on most of these sorts of things, my Lord, they are not the same parties involved. So, the parties are not the same and the arguments are not the same. Where does relitigation come into it? I do not see that, my Lord. If it was going to be said that any one party in a dispute can take that dispute out of a court that has been seized of the issue and take it and address it in another court, with different parties on different grounds, and win an argument, I believe that that is completely unlawful. So far as I am aware, you cannot dispossess a court of a matter that is before it by simply going to another court. If that was the case, my Lord, then I could turn around and say there is case, ..., in which the judge has held that the British Waterways Board do not have any rights to charge mooring fees .... I am not bringing that forward and saying: “Describe all the issues to deal with moorings here because it has already been determined by another court, and if you are going to carry on you are going to be relitigated”. I am not doing that. But what is sauce for the goose is sauce for the

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1 gander. If the principle that is relied upon is to ban me litigating the issues that 2 I have raised in proceedings, on the basis that somebody else has already 3 decided them, then ---4 5MR. JUSTICE ARNOLD: I do not think the Master’s order is banning you from 6 litigating the issues that have been raised, it is trying to identify what the issues 7 are. 8 9MR. MOORE: My Lord, it was very obvious at the last case management 10 conference that he agreed with the British Waterways Board, that that issue on 11 the ownership should be dropped because it would constitute re-litigation. 12 I wish I could have afforded to have got the transcript of the proceedings, but 13 that is why that issue was dropped. 14 15MR. JUSTICE ARNOLD: All right. Anything else? 16 17MR. MOORE: No. 18 19MR. JUSTICE ARNOLD: Thank you. Mr. Stoner, is there anything you want to 20 say about this issue of the riverbed? I do not ask that you address me on 21 anything else. 22 23MR. STONER: My Lord, no, just if it assists, on the riverbed we do rely upon the 24 fact that that land is now registered. That is why it is in the recital, because of 25 the previous litigation. What I should add, and this documentation was shown 26 to the Master, is that shortly after these proceedings commenced in 2007 there 27 was correspondence between those instructing me and Mr. Moore, and the 28 Land Registry. The application that ultimately went before the adjudicator 29 was a small element of a much larger application which covered 14 plans, in 30 effect, seeking registration of the Grand Union Canal right through Brentford 31 and beyond. The relevant plan for the locus of Mr. Moore’s case was plan 3, 32 and consensually with Mr. Moore plan 3 was altered to take out of the 33 application that was being made for registration the riverbank, which was 34 understood to be the area that Mr. Moore was disputing. I cannot speak, of 35 course, for the Land Registry, my Lord, but the clear difference between the 36 riverbank and the riverbed is that Mr. Moore was claiming an entitlement to 37 the riverbed, hence that was taken out of the application for registration 38 because ---39 40MR. JUSTICE ARNOLD: You mean the riverbank? 41 42MR. STONER: The riverbank. I am sorry. But in relation to the riverbed, 43 Mr. Moore has never claimed himself, certainly as I understand it, any title to
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1 the riverbed. His argument was a purely negative one, that British Waterways 2 did not own it, and, of course, that matter has now been before the adjudicator 3 who has determine, with other objectors – it is fair to say that the actual 4 hearing was restricted ultimately to one point, because HM Land Registry only 5 referred one limited point that was being taken, they said that the other 6 objections that were being taken were groundless and so they referred one 7 point to the adjudicator. That was determined, and the result was that British 8 Waterways were registered to a title. So, certainly the anticipation on this side 9 is that when it comes to the trial of this action, if and in so far as British 10 Waterways have to rely upon any land ownership, they simply rely on the fact 11 that they are the registered proprietors of the canal bed. In so far as there is a 12 slightly different consequence, because there have been other proceedings, in 13 fact in this division, in a case called Geronimo, which is referred to in ---14 15MR. JUSTICE ARNOLD: But Geronimo was about the bank, as I understand it. 16 17MR. STONER: It was. 18 19MR. JUSTICE ARNOLD: Yes. So, we need not get into that. 20 21MR. STONER: We need not get into that, apart from British Waterways 22 established title to part of the bank. What is left as consequence of those 23 proceedings is there is a small part of the bank over which no one has been 24 able to establish any paper title. 25 26MR. JUSTICE ARNOLD: Quite. But I am not concerned about the bank. The 27 only thing that might concern me is the question of the riverbed. Now, let us 28 be clear, what is concerning Mr. Moore, as I understand it, is the following 29 scenario, namely that he is concerned that BWB will rely upon its ownership 30 of the riverbed as a sole basis for levying licences and fees and that the list of 31 issues shuts him out from contesting that. Now, is it your contention that that 32 scenario arises? 33 34MR. STONER: We do not rely solely in relation to the charges, although there 35 plainly will be some reliance on the fact that my clients are the owners of the 36 riverbed. Mr. Moore, as we see it, and as I understand the Master saw it, is 37 entitled to raise such points as he wishes on British Waterways’ ownership, 38 and we would be inviting the court not to go behind the fact that British 39 Waterways are the registered proprietors of the canal bed. 40 41MR. JUSTICE ARNOLD: That argument, of course, I understand, but the 42 important part for today’s purposes is the present one, namely, you do not 43 dispute that he is entitled to raise such points as he wishes. Obviously,
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1 I understand you say those points are not going to get him anywhere because 2 you will rely on the registration, but you accept he is entitled to raise the 3 points. 4 5MR. STONER: Yes. 6 7MR. JUSTICE ARNOLD: Fine. Thank you for that. Very good. Anything else, 8 Mr. Moore? 9 10MR. MOORE: Just a couple of points regarding what Mr. Stoner has said. I am 11 sure he will verify that in the correspondence between us and the Land 12 Registry, to which he referred, it was made very clear in the letter that I wrote 13 to Shoosmiths, when I agreed that the third alteration of the map they were 14 presenting to the Land Registry had at that stage excluded the riverbank area, 15 I, nonetheless, made it very clear that my objection did extend to the riverbed 16 as well. Now, I am fairly confident that Mr. ... did (I would need to verify it) 17 send that letter to the Land Registry, that there was this outstanding objection 18 to the riverbed. So, I am just making it clear that in my letter of agreement 19 there was no question but that I was agreeing to the fact that they had removed 20 the riverbank element but not the riverbed. 21 22 In so far as I am entitled to raise an objection with the Land Registry on purely 23 negative grounds, I am entitled to do that, and the Land Registry certainly 24 made no quibble about that whatsoever. Indeed, they could not. I have the 25 correspondence with me, just in case there was any feeling from what 26 Mr. Stoner said that he has not made any claims that were wrong at all, but the 27 fact that he said the Land Registry have only sent one matter to the adjudicator 28 it is perfectly correct, but that is not to be taken as saying that they were not 29 outstanding objections, because my objections were classified as not 30 groundless, they just never got sent to the adjudicator because the chap who 31 was dealing with it left and went overseas, and all sorts of other bureaucratic 32 mix ups. But it cannot be said that there were not outstanding objections 33 which were not resolved nor sent to the adjudicator. The Land Registry have 34 accepted that this is a matter that if this court resolved the arguments in my 35 favour then it would have to comply with whatever directions the High Court 36 made in respect of that registration. My point is that I need to be able to do 37 that in order that I can meet the arguments that the British Waterways Board 38 and Mr. Stoner have said, .... 39 40MR. JUSTICE ARNOLD: Very good. Anything else? 41 42MR. MOORE: No, my Lord. 43
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1MR. JUSTICE ARNOLD: Thank you. 2 3 (For Judgment, see separate transcript) 4

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