CaRT V Wingfield Day 1)

IN THE CHESTERFIELD COUNTY COURT
No. 3NG01237
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Tapton Lane
Chesterfield S41 7YW
Monday, 3rd March 2014
Before:
HIS HONOUR JUDGE PUGSLEY
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15B E T W E E N :
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CANAL & RIVER TRUST
Claimant
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- and 22
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ANDY WINGFIELD
Defendant
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_________
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Transcribed by BEVERLEY F. NUNNERY & CO.
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Official Court Reporters and Audio Transcribers
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Tel: 020 7831 5627 Fax: 020 7831 7737
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info@beverleynunnery.com
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_________
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39MR. J. FOWLES (instructed by Shoosmiths) appeared on behalf of the Claimant.
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41MISS V. EASTY (instructed by Community Law Partnership) appeared on behalf of the Defendant.
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_________
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PROCEEDINGS
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INDEX
Page No.
7Discussion re bundles
8Opening submissions by Mr. FOWLES
9Submissions re bias by Miss EASTY
10Opening submissions by Mr. FOWLES continued
11Submissions by Miss EASTY re the legislation
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14Mr. STUART GARNER,
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affirmed
Examined by Mr. FOWLES

Cross-examined by Miss EASTY
Re-examined by Mr. FOWLES
20Discussions
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re settlement
23Transcribers note:
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Prepared without access to case documents

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Recording started late at 10.28.31
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3JUDGE PUGSLEY: Yes, I have an opening skeleton argument on behalf of the

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claimant. I have a skeleton argument on behalf of the defendant. I have
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defendants case law and I have a case summary.
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7MR.
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FOWLES: Your Honour, do you have my authorities bundle as well. There

should be a claimants----
10JUDGE
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12MR.
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PUGSLEY: Yes, index to claimant.
FOWLES: Yes, and my learned friend just wants to clarify that you have hers
as well, which is, I think, a white bundle of authorities.
15JUDGE PUGSLEY: I do not think I extend

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case law bundle, which is loose leaf.
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to a bundle, but I do have defendants
18MISS EASTY: Yes, I think the other one will be at Nottingham.

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proper bundle. I gave an extra copy in, but I have one here.
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There should be a
21JUDGE PUGSLEY: Okay, fine, lovely, red, yes. (Same handed) Thank you. Your
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opening skeleton argument, which was fairly fleshed out, is the only skeleton
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argument you have done. I am not suggesting that you should have done
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another one.
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26MR.
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FOWLES: It is the only one I have done.
28JUDGE PUGSLEY: And your defendants skeleton

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one you have done, Miss Easty, yes?
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31MISS
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EASTY: Yes.
33JUDGE
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35MR.
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PUGSLEY: Yes, fine. Yes?
FOWLES: Your Honour, I am assuming that, since the bundles have only
recently arrived from Nottingham, or have otherwise been copied for you,
whilst your Honour is on top of the broad issues in the case, it will be
necessary for me to do an opening?
40JUDGE PUGSLEY:
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may say so.
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Well, you set it out pretty well in your skeleton argument, if I
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argument equally is the only
1MR.
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FOWLES: I appreciate that, thank you, your Honour. It may just be helpful
for your Honour if I went through some of the factual background----
4JUDGE
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6MR.
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PUGSLEY: Yes.
FOWLES: --and the legislation, because it is not the easiest set of legislation
in the world to see how it fits together.
9JUDGE PUGSLEY: No. Can you just help me as to one

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consultation papers for the Lee & Stort Navigation.
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12MR.
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thing? I have various
FOWLES: Your Honour, I am unable to help you there. I am not sure what
the relevance of those is. Perhaps my learned friend can assist.
15JUDGE PUGSLEY: I achieved 45 per cent for geography, sagacity for getting a
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pass and an ample demonstration of my contempt for geography as an
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academic subject, being a pot pourri of other disciplines, but is Lee & Stort not
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down in Hertfordshire?
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20MISS EASTY: That is right, your Honour. The reason why it is in is to
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demonstrate the most recent consultation in respect of the continuous cruising
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licence. The extent of navigation required etc., etc., has been the Lee & Stort
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Navigation, where the consultation came back with certain conclusions in
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respect of what was reasonable in all the circumstances and what the public
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and canal users thought of the extent of the neighbourhood. It is relevant, of
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course, to the Lee & Stort, but there has not been one here, as far as I am
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aware, your Honour, so that is why. It is just to basically demonstrate the---28
29JUDGE PUGSLEY:
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and should take
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It is a template, you would say, of how a consultation could

place?
32MISS EASTY: More that the results of the consultation

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inform CRTs approach in cases such as this.
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35JUDGE
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is something that should
PUGSLEY: Yes.
37MISS EASTY: It is as simple as that, but, your Honour, no, of course, I am not
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particularly good at geography either, but I do know that it is not up near here.
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40JUDGE PUGSLEY: Right, that is all we need to know, but, yes, I can see the point.
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The other thing, so that I can just make sure that I am not proceeding on a
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totally false basis, is that the Claimants, by a series of machinations of Acts of
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Parliament and the like, have taken over the powers of the old British
Waterways Board.
4MR.
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FOWLES: Yes, your Honour. That happened in July 2012. Your Honour,
essentially, the powers, rights, liabilities and assets of the British Waterways
Board were vested in the Canal & River Trust and it is necessary, for the
purpose of this case, to look back to the history of the powers and assets of the
British Waterways Board to understand what is going on here.
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This claim, of course, is for a declaration in support of the Canal & River
Trusts exercise of its statutory powers to remove vessels in certain
circumstances and for injunctive relief in support of that enforcement.
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The defendant I think this is uncontroversial lives on a boat called The

Hildegarde and he says in his witness statement that, since February 2013, he
has been moored at the County Hall Steps. I will go on to matters of
geography shortly. I understand in fact that he has moved somewhere else
recently, but essentially what has happened is that, in the last few years since
around 2010 when Mr. Wingfield lost his permanent mooring, he has moved
around the River Trent and the Nottingham & Beeston Canal which joins it.
Primarily, in the 2012 period, he was moving between an area called Beeston
and an area called Holme Lock.
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Now, your Honour, the maps in the bundle may not assist you as much as some
maps that I am hoping are agreed as things that I can introduce now.
27MISS EASTY: Your Honour, I hope

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not gone through them with my
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30JUDGE
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we will be able to agree those maps, but I have

client. They were given to me----
PUGSLEY: Well, there is a map at SG1.
32MISS EASTY: They are additional maps, your Honour, which I do not think are in
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your bundle, but we will look at them and take instructions on them as soon as
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possible. They were handed to me shortly before this hearing.
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36JUDGE
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38MR.
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FOWLES: Sorry, which page, your Honour?
40JUDGE
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42MR.
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PUGSLEY: Yes, okay. If we look at SG1 at 45205, yes?
PUGSLEY: Page 20.
FOWLES: Yes, your Honour.
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1MISS EASTY: Your Honour, I do not want to get up particularly, but, in terms of
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the matter that you raised this morning that you represented on behalf of BWB
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back in the day, yes, your Honour, we have concerns in respect of that. I asked
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my client, said what you said and said What do you think about that and he
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said Well, thats over for me or equivalent. So he has concerns.
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7JUDGE PUGSLEY: Have
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might be relevant?
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you any authorities that you would like to suggest that
10MISS EASTY: Well, not with me, your Honour, but, in terms of
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bias, that is something that is not for me necessarily to say.
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eye of the beholder, and in this case that is the defendant.
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14JUDGE PUGSLEY: Yes,
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subjective belief.
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bias and apparent

It is in terms of the
but the eye of the well informed beholder, not of
17MISS EASTY: No, but, again, the appearance of it is of significance. The reason
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why I raise it, your Honour, and again we only had the very briefest of
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discussions, as you will appreciate, because we only had five minutes to
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discuss the matter, if I had had longer, then maybe I could have gone into it in
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greater length, but the reason why I raise this is because I think, and I think my
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learned friend has made clear, that the CRT seek guidance in respect of various
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approaches to this legislation and there is a possibility that certainly we will
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seek clarification, whichever way it goes, from the higher courts. In terms of
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that---26
27JUDGE
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PUGSLEY: Sorry, I missed that. You dropped your voice.
29MISS EASTY: I think there is a very real possibility, whichever

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we will seek clarification from the higher courts.
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32JUDGE
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way it goes, that
PUGSLEY: Are you legally aided?
34MISS EASTY: Yes, your Honour, but, your Honour, certainly from where I am
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standing it will be the other side who will be seeking guidance from the higher
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courts, but the difficulty is that, if you have an individual who possibly, on the
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face of it, appears to have a familiarity or confidence or whatever, and again I
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do not intend to use---39
40JUDGE
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42MISS
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PUGSLEY: Have a what?
EASTY: I am talking about you having had----
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1JUDGE PUGSLEY: I acted for British

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most, I left the Bar in 1985.
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4MISS
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EASTY: I am not trying to cause----
6JUDGE PUGSLEY:
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matter off.
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9MISS
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Waterways Board over 20 years ago, at the
Well, it looks as though your client is just trying to put this
EASTY: No, not at all.
11JUDGE PUGSLEY: Unless you can produce any authority or reasons. I mentioned
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it because it is right you should be able to deal with it, but, at the moment, I am
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totally mystified as to why I should have bias for someone who instructed me
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25/30 years ago.
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16MISS EASTY: Well, your Honour, as I pointed out as well, I only had the very
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briefest opportunity to mention this or discuss this with my client and so all I
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said to him is what I said to you at the outset he said. If my client is aware that
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it was so many years ago and etc., etc., that may well allay his fears and I am
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not---21
22JUDGE
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24MISS
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EASTY: Your Honour, I am really seriously not trying to delay this.
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28MISS
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PUGSLEY: I do not take it personally.
PUGSLEY: Yes, but that is for me to say, is it not?
EASTY: Yes, well I can also say that I am----
30JUDGE PUGSLEY:
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hasten to add.
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33MISS EASTY:
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say.
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36JUDGE
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I am not suggesting that you are acting unprofessionally, I
But it is an issue that we should deal with at the very start is what I
PUGSLEY: Yes, certainly.
38MISS EASTY: That is why I jumped up, as it were. Again, I do not have authority
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in front of me, your Honour, because I did not anticipate this. Now, it may be,
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if I can take a few more minutes to explain to my client the situation, how long
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ago it was, etc., etc., that may allay his fears, because I only had a few minutes
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to mention it.
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PUGSLEY: Yes, all right, have five minutes or as long as you need.
EASTY: Thank you, Sir.
5JUDGE PUGSLEY: I mean, as far as I can recall, I left the Bar in 1985 and I do
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remember receiving briefs from the British Waterways Board. As a judge, I
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have never been asked to recuse myself because I know the barristers
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concerned, but I sit in a different area from where I practised, but I do not
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think I have had cases where I have known solicitors or the solicitors firm. Of
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course, it would be a very different matter if an immediate party to
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proceedings was a friend, you know, if I not only had a professional but a
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social relationship. I cannot envisage there are circumstances in which one
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would ever continue if that persons evidence was in issue, but I have
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mentioned it and perhaps unwisely, but I felt I ought to mention it, but I have
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to say I will need some persuading because it has not stopped me trying
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mining cases where I have acted for the claimants when we had a mining
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industry. We occasionally get mining cases.
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19MR.
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FOWLES: Your Honour, I do not have the relevant authorities with me,
although, if there was a short adjournment, I am sure we would be able to find
them for you. My first point is that, of course, it is for my learned friend to
make clear what her position is and whether she is applying for your Honour
to recuse himself.
25JUDGE
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27MR.
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FOWLES: Therefore, it is for her to make that application and make the
position clear.
30JUDGE
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32MR.
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PUGSLEY: Yes.
PUGSLEY: Yes, but she ought to have time in which to do so.
FOWLES: The second point is, just as a matter of common sense, it would be
absurd if your Honours situation could lead to your recusal in circumstances
where many judges who sit in the Chancery Division, for example, used to be
Treasury Counsel and Treasury Counsel would have acted for a number of
departments within the Government and yet would often hear Chancery cases
in which a Government department was a----
39JUDGE PUGSLEY: Or, if I may say so, to use an even more appropriate, more
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widespread issue, does a judge who has practised in Manchester, Leeds or
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Birmingham solemnly recuse himself from any case in which the CPS are
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involved because his main client when he practised there was the CPS? Sorry,
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it is a rather less refined view.
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FOWLES: Yes, but exactly.
4JUDGE PUGSLEY: In fairness,

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ought to have time.
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7MISS
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let me say to Miss Easty, I raised it and I think you
EASTY: That is all I am asking for.
9JUDGE PUGSLEY: Yes. I have not closed the door. There may be aspects of the
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case which have not occurred to me and you must have the opportunity to
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consider them.
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13MISS
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EASTY: That is all I am asking for at this stage.
15JUDGE PUGSLEY: I should say at the moment I do not at all hold against your
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client that you have nodded it through and he is perfectly entitled to raise it.
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At the moment, I am somewhat doubtful, but judges can change their minds
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like anybody else. I have not heard the argument.
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20MISS
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EASTY: I will take a few minutes if I may.
22JUDGE
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PUGSLEY: Yes, okay, half past.

Short adjournment
Recording started from 11.30.17
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27JUDGE
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PUGSLEY: and I suspect a lot earlier.
29MISS EASTY: Then I think

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make any application.
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32JUDGE PUGSLEY:
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with it.
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35MISS
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No. Good, thank you, but it is right that you had time to deal
EASTY: Thank you.
37JUDGE
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39MR.
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my client finds that reassuring, so I do not need to
PUGSLEY: Yes.
FOWLES: Your Honour, I was about to show you some maps, which it may
be I can do now, can introduce them into the bundle, if my learned friend is
happy for me to do so.
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1MISS EASTY: Your Honour, we have no objection to the maps, but we have not
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been provided with a full map of the entire location. I understand from my
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learned friend that that will be coming, in which case, when that comes, I have
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no objection to that.
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6MR.
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FOWLES: There is a full map in the bundle, your Honour, but I am just
seeking to introduce more close-up maps which would give your Honour a
better idea of the location.
10JUDGE
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12MR.
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FOWLES: May I hand these up?
14MISS
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16MR.
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PUGSLEY: Yes, okay.
EASTY: Yes, but could you please provide the entirety?
FOWLES: There is one in the bundle which I will take your Honour to. My
learned friend can interrupt me if she feels I am overstepping the mark.
19MISS
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EASTY: I would----
21JUDGE PUGSLEY: Come on, let us get on with this case. Sorry, unless you are
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suggesting someone is going to fraudulently produce a map which has not yet
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been devised, I mean, let us get on with it. (Same handed) This is a map of?
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25MR.
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FOWLES: The first map, I have numbered these maps pp.260 to 263.
27JUDGE
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29MR.
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FOWLES: To go at the back of the bundle, but perhaps it is best to keep them
out of the bundle for the moment. The first page shows the point at Meadow
Lane Lock which the Nottingham & Beeston Canal to the north diverges from
the River Trent. Do you see that there is one waterway at the bottom?
34JUDGE
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36MR.
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PUGSLEY: It is in blue, the Beeston Canal?
FOWLES: Yes, exactly. So the two lines, the bottom line is the River Trent.
38JUDGE
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40MR.
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PUGSLEY: Yes.
PUGSLEY: Yes.
FOWLES: And the top line is the Nottingham & Beeston Canal.
42JUDGE
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PUGSLEY: Yes.
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FOWLES: Now, my understanding is that, until very recently, the defendant,

Mr. Wingfield, on that map was at County Hall Steps. Do you see where
County Hall is on that?
5JUDGE
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7MR.
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FOWLES: Page 261 shows a zoom out, if you will, of that particular area. So
where you have Holme Lock on the right, that is the River Trent flowing
east/north east.
11JUDGE
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13MR.
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PUGSLEY: Yes.
PUGSLEY: Yes.
FOWLES: Ultimately towards Newark.
15JUDGE PUGSLEY:
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Humber?
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18MR.
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FOWLES: Yes, your Honour, I think that is right. Then, to the left-hand side
of Meadow Lane Lock, again, to the north you have the Nottingham &
Beeston Canal and, to the south, you have the continuation of the River Trent.
Now, the reason why, as I understand it, the Nottingham & Beeston Canal
exists is because, beyond a certain point near County Hall Steps, the River
Trent is no longer navigable, so that the Nottingham & Beeston Canal is a sort
of bypass of that area of the River Trent.
26JUDGE
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28MR.
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PUGSLEY: It is to the east actually.
38JUDGE
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40MR.
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PUGSLEY: Right, yes.
FOWLES: Going further to p.262, this is, as it were, to the west of p.261, so,
if you place 261 on the right and you place 262 on the left, you see that
Beeston Roadside Moorings is on the Nottingham & Beeston Canal just near
the point where the River Trent and Nottingham & Beeston Canal join each
other.
34JUDGE
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36MR.
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Well, ultimately towards Goole, is it not? It comes out on the
PUGSLEY: No, sorry, it is to the west of Nottingham.
FOWLES: It is to the west of Nottingham and just to the east of the

confluence of the Trent and the canal.
43JUDGE
PUGSLEY: Yes.
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FOWLES: Which is at Beeston Weir. Following on p.262, the Trent further

down to the west, you will see a sort of crossroads of waterways. This is
where p.263 comes in, because p.263 shows Loughborough, which is to the
south of that crossroads and that is on the River Soar, and the River Soar runs
down south from the confluence on p.262.
8JUDGE PUGSLEY: So where you get the meeting in the Trent Valley way down
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through Attenborough, Thrumpton, Trent Valley, all right you then get the
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Trent continuing to go its merry way towards Burton-on-Trent and ultimately
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Stoke-on-Trent, yes?
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13MR.
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15JUDGE
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17MR.
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PUGSLEY: You have got bisecting that a canal.
FOWLES: I think it is the River Soar, your Honour.
19JUDGE PUGSLEY:
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navigable?
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22MR.
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The River Soar, okay, and there you go due south. Is the Soar
24JUDGE PUGSLEY: Right down

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Canal? It ends at Beeston?
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27MR.
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FOWLES: Well, the Nottingham & Beeston Canal, if your Honour looks at
p.261.
30JUDGE
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32MR.
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to Loughborough? What happens to the Beeston
PUGSLEY: Yes.
FOWLES: You will see where the Beeston Canal starts off to the north and
west at Meadow Lane Lock and then it ends by rejoining the River Trent on
p.262.
36JUDGE PUGSLEY: I see, yes, so it was a purely local diversion because of the fact
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that the Trent was not navigable at that point but becomes navigable at a later
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point.
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40MR.
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FOWLES: Yes, your Honour. Now, your Honour will find a broader scale
map at p.144, and this is where I am trying to allay my learned friends
concerns. On p.144 of the bundle----
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FOWLES: --you will see an overall picture, which shows how, in the top
right-hand corner, you have Newark-on-Trent, which is to the north east.
6JUDGE
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8MR.
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PUGSLEY: Yes.
FOWLES: And then further on down the Trent, it goes past the A453 and then
gets to the confluence with the Soar and the Soar heads down to
Loughborough, to the south. So the main area, just staying on p.144, at least
on the claimants case, the main area where Mr. Wingfield has been moving up
and down when he has been moving, has been between the dot at Beeston on
that map and the dot which includes a yellow dot to the right of West
Bridgford. That is essentially the area between Beeston & Holme Lock.
21JUDGE
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23MR.
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PUGSLEY: Yes.
FOWLES: The Trent is flowing down to near West Bridgford, where the
Nottingham & Beeston Canal creates a diversion for it.
11JUDGE
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13MR.
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PUGSLEY: Yes.
PUGSLEY: Can anyone give me a distance?
FOWLES: Well, that distance, it is thought, is about 12km, if one takes into
account the length of the Nottingham & Beeston Canal.
26JUDGE PUGSLEY: I know there is a rule

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the Trent coming up from the south.
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29MR.
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FOWLES: Sorry, what ends at the Trent, the rule that you have to go metric?
31JUDGE
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33MR.
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PUGSLEY: Yes, we do not believe in it here.
FOWLES: 12km I think is maybe around nine miles, but I would have to
check that, your Honour. (Counsel conferred) Your Honour, I did do some
conversion in my skeleton argument which may assist.
37JUDGE
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39MR.
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that you have to go metric, but it ends at
PUGSLEY: Yes, I saw that.
FOWLES: 5km is three miles.
41JUDGE
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PUGSLEY: Yes.
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FOWLES: So 10km is six miles, so it is going to be around about seven or

eight miles, is it not?
4JUDGE PUGSLEY: Yes, so your case is that, effectively, Mr. Wingfield

5
moving between West Bridgford and the Holmes Lock?
6
7MR.
8
FOWLES: No, between Beeston and----
9JUDGE
10
11MR.
12
PUGSLEY: Yes.
FOWLES: Now, I have to just point out in fairness that this map, which was
produced by the claimant and the dots are produced by the claimant, does also
show that he was sighted on occasion in Newark, which is to the north east,
and we say he was sited there in July 2012. That is the yellow dot.
37JUDGE
38
39MR.
40
41
PUGSLEY: And then joined the Trent just beyond West Bridgford?
30JUDGE
31
32MR.
33
34
35
36
PUGSLEY: And he was doing that by going up the Beeston Canal?
FOWLES: Yes, your Honour, he had to because that part of the River Trent is
not navigable.
26JUDGE
27
28MR.
29
PUGSLEY: On the plan at 244?
21JUDGE
22
23MR.
24
25
PUGSLEY: Is it stamped yellow?
17JUDGE
18
19MR.
20
PUGSLEY: Sorry, between Beeston and Holmes Lock.
FOWLES: And Holme Lock, as I referred to earlier, is on p.261.
13JUDGE
14
15MR.
16
PUGSLEY: Yes.
FOWLES: The colour coding you will see on the left. Then November 2012
he was cited in Loughborough, which is the red dot down at the bottom.
42JUDGE
43
PUGSLEY: Yes.
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FOWLES: But, broadly speaking, and I actually do not understand this to be

particularly controversial, broadly speaking, he was in that 12km gap between
Beeston and Holme Lock.
5JUDGE
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7MR.
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FOWLES: My learned friend points out that 12km is 7 miles, 803 yards and
my instructing solicitor says that it is 7.45 miles, so they are the same thing.
Seven and a half miles let us call it.
11JUDGE
12
13MR.
14
PUGSLEY: Yes.
PUGSLEY: Yes.
FOWLES: It is the same thing.
15JUDGE PUGSLEY: Yes. The gist of what you are saying is that, if we exclude the
16
exciting trips out to Loughborough and the equally exciting trips up to
17
Newark, it is your case that, for practical purposes, he was holing up or
18
parking up, whatever the correct word is, in the seven and a half or seven to
19
eight miles between Beeston and Holme Lock.
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21MR.
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FOWLES: Yes, your Honour. It has just been pointed out to me by my

learned friend that the defendant also maintains that he was at Long Eaton at a
certain point.
25JUDGE
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27MR.
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30
FOWLES: But, presumably, that would have been on the way to

Loughborough, because that is on the way to Loughborough on the River
Trent.
31JUDGE
32
33MR.
34
35
36
PUGSLEY: Yes.
PUGSLEY: Yes.
FOWLES: Now, one of the issues that is taken by my learned friend is that the
County Hall Steps or perhaps other part of the Trent as well are not within the
ownership of the Canal & River Trust and my learned friend----
37JUDGE PUGSLEY: Nor is

38
delights of the canal.
39
40MR.
41
42
43
the Nottingham Crown Court, which is adjacent to the
FOWLES: Well, I cannot help your Honour with that. That no doubt is so,
but, for that reason, I would, if I may, just like to take your Honour through the
legislation so that your Honour sees where I differ from my learned friend on
that particular point, because my learned friend also relies on a Court of
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Appeal case called Moore v British Waterways Board. I need to explain to

your Honour why that case is distinctive and distinguishable.
4JUDGE PUGSLEY:
5
legislation in it,
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7MR.
8
FOWLES: Yes, and Lord Justice Lewison.
9JUDGE
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11MR.
12
Well, probably, if you go to the case, that will have the

will it not? Is it a decision of Lord Justice Mummery?
PUGSLEY: Well, I suspect that has everything in it.
FOWLES: Okay, your Honour. Well, I will just say something about----
13JUDGE PUGSLEY: Take whatever course you want. Do not worry. We are
14
always fond of judgments from Lord Justice Mummery. They make so much
15
more sense than the legislation does.
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17MR.
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FOWLES: Your Honour, I would like, if I may, to take your Honour to the
legislation first----
20JUDGE
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22MR.
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24
25
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FOWLES: --because what I would need to do to explain the Court of Appeal

decision is to take you to the lengthy decision at first instance of Mr. Justice
Hildyard. Mr. Justice Hildyard does himself go through the legislation so, in
order to understand the position, I think it would be helpful just to take you to
the statutes, if I may.
28JUDGE
29
30MR.
31
32
PUGSLEY: Sorry, is this Index to the Claimants Authorities?
FOWLES: It is actually in the trial bundle, p.21 of the trial bundle. Mr.
Garner, in his witness statement, helpfully explains the statutory position and,
accordingly, many of the background statutes are included in the exhibit. So,
at p.21, you have the Transport Act 1962.
40JUDGE
41
42MR.
43
PUGSLEY: Yes, fine.
FOWLES: Now, the first statute your Honour will need to have in mind is at
p.21 of the trial bundle.
33JUDGE
34
35MR.
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37
38
39
PUGSLEY: Certainly.
PUGSLEY: Yes.
FOWLES: Section 1 basically created three boards, among whom the function
and the property of the British Transport Commission were divided, which
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included the British Waterways Board. At p.23, you have s.31 of the same Act
and this is to do with, as I say, the distribution of the property, rights and
liabilities of the Commission in the relevant boards. On the next page,
subsection (5), p.24, your Honour will see:
There shall be transferred to the British Waterways Board the
property, rights and liabilities comprised in the part of the
Commissions undertaking constituted by
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(a) Their invalid [and that is a typo, it should be their inland]

waterways and
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(b) The harbours listed in Part III of the Third Schedule to this
Act.
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So one goes back to what the British Transport Commission had vested in it to
understand what the British Waterways had, unfortunately.
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At p.26, you have the Transport Act 1947. Essentially, the effect of s.12 on
this page is that the undertakings of certain bodies, which historically had
control or ownership of particular waterways and in fact railways in this case,
were transferred to the British or vested in the British Transport Commission.
So s.12 refers to those bodies as being those identified in Schedule 13.
25JUDGE
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27MR.
28
FOWLES: Schedule 13.
29JUDGE
30
31MR.
32
PUGSLEY: Whereas this is Schedule?
FOWLES: No, sorry the Third Schedule, which is on p.28.
33JUDGE
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35MR.
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40
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PUGSLEY: Section 13 or Schedule?
PUGSLEY: Yes.
FOWLES: Part I is to do with the railway bodies, which is irrelevant. On p.29

you see the canal and inland navigation undertakers. You will see that the
British Transport Commission had vested in it the undertakings of (around
about the middle of that column) the Lord Mayor, Aldermen and Citizens of
the City of Nottingham in respect of the Trent navigation undertaking and,
below that, the Trent Navigation Company. Those are the relevant bodies with
responsibility for the areas in question in this case, but I can go further and just
identify the specific areas by reference to the Transport Act 1968, which
appears on p.30.
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Now, on p.30, Parliament divided the waterways into commercial waterways

on the one hand and to cruising waterways on the other. The breakdown was
specified in Schedule 12 of that Act and p.33 shows Part II of Schedule 12 and,
on p.34, you will see the relevant areas for our purposes. Towards the end of
that column before Schedule 13, you have:
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The Trent Navigation from Shardlow to the tail of Meadow Lane

Lock, Nottingham, by way of the Beeston Canal and part of the
Nottingham Canal and including the branch to the River Soar and the
length of the River Trent from its junction with the Nottingham
Canal to Beeston Weir.
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Now, I do not want to trouble your Honour by taking you back to the maps, but
my understanding is that that area includes the area I have shown on the maps
because Shardlow is a long way to the west of the confluence with the River
Soar and Gainsborough Bridge is a long way to the east of Newark. So there
is no question that the Canal & River Trust, who is the successor body to the
British Waterways Board, had ownership or control of all of the relevant areas
in this case.
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Now, for the purpose of it carrying out its responsibilities as navigational

authority, the British Waterways Board (and now the Canal & River Trust) has
certain duties and powers, clearly. The relevant powers for the purposes of this
case are, first of all now is the time for my authorities bundle, your Honour
at tab 3 of my authorities bundle, you will find the British Waterways Act
1971. Your Honour may find it helpful just to look at the preamble which
appears a few pages in.
30JUDGE PUGSLEY: Would it not be marvellous if someone could find a binder

31
did not have an imperialistic tendency to mess up the space? They would
32
make a mint, clearly.
33
34MR.
35
36JUDGE
37
38MR.
39
40
PUGSLEY: Yes.
FOWLES: So this was an Act to make provision for regulating the use of
pleasure boats and houseboats on certain of the inland waterways.
41JUDGE
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PUGSLEY: Yes.
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that
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FOWLES: And the relevant section for our purposes is s.13, which deems it
not lawful to:
moor, place, keep or maintain any houseboat in an inland waterway
(whether or not the houseboat shall have been so moored or placed
before the passing of the Act) unless a certificate, in this Act referred
to as a houseboat certificate in relation to it is then in force.
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That is the key provision, and what the rest of s.13 sets out is a notice
procedure whereby a notice is served to the person having control of the
houseboat and, following service of that notice and the expiration of that
notice in subsection (3), the board can have the power to remove or demolish
the houseboat in the notice. I would just like to repeat, because this is
important from the point of view of the Court of Appeal case, that s.13 very
clearly states:
It shall not be lawful to moor, place, keep or maintain any
houseboat in an inland waterway
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I will, obviously, need to come back at some point to the definitions of inland
waterway and houseboat. Broadly speaking, the definition of houseboat
includes reference to a houseboat not including one used for bona fide
navigation. So there are obvious parallels with s.17 of the 1995 Act.
25JUDGE PUGSLEY: Can we

26
statutory provisions?
27
28MR.
29
get away from the Hampton Court of the maze of
30JUDGE PUGSLEY: In plain language,

31
houseboat, a certificate?
32
33MR.
34
35JUDGE
36
37MR.
38
39
PUGSLEY: Yes?
FOWLES: Otherwise it will not be lawful to be on the waterways. In that

case, your Honour, I will move straight onto the cases.
40JUDGE
41
42MR.
43
you have to have, if you are going to have a
PUGSLEY: Fine.
FOWLES: Now, it is important to be clear that in Moore v British Waterways

Board----
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PUGSLEY: Which is at page?
FOWLES: It is in my learned friends authorities bundle. First instance is at

tab 4.
7MISS EASTY:
8
red folder.
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10JUDGE
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12MR.
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PUGSLEY: Are we looking at the Court of Appeal?
FOWLES: We are looking at first instance, tab 4,your Honour.
19JUDGE
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21MR.
22
PUGSLEY: Yes.
FOWLES: Now, it is important to be clear what this case was about. Mr.
Moore----
15JUDGE
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17MR.
18
First instance is the first case in our authorities bundle. It is in the
PUGSLEY: I am sorry, I do not have any pagination on the tabs.
FOWLES: It should be the final tab.
23JUDGE
24
PUGSLEY: Yes.
25MR.
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FOWLES: I will just do a bit of explaining, your Honour, because it is a long

judgment. Mr. Moore was the owner of a bank of the River Brent and he
moored his boat on the bank of the River Brent and he claimed to have a
public right of navigation on the River Brent which entitled him to moor there.
He said that his public rights of navigation, essentially, included a riparian
right of mooring because he was the owner of the bank. Mr. Justice Hildyard
rejected the idea that he had a riparian right of mooring, that any right of
mooring flowed from his ownership of the bank and he also held that, since
Mr. Moore did not have a licence to use the River Brent or the Grand Union
Canal, his mooring there was unlawful, because he said that nothing in the preexisting law made it lawful to be moored there without a licence. So, as a
matter of fact, the British Waterways Board served enforcement notices on Mr.
Moore on the basis that he was unlicensed and Mr. Moore then challenged the
validity of those enforcement notices in the High Court.
40
41
42
43
The crucial point for present purposes is that s.13, which I have just referred
you to, was not relied upon at all by the British Waterways Board. If you turn
to para.56 of Mr. Justice Hildyards judgment, you will see that s.13 is
mentioned as something that was referred to in submissions.
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FOWLES: Over the page or, rather, at para.57, Mr. Justice Hildyard
essentially acknowledges the potential relevance of the section but, in para.59
he makes clear:
Whether this is the explanation or not, at all events BWB has not
invoked section 13 of the 1971 Act in this case. The notices in
dispute do not relate or refer to it: they refer only to section 8 [of the
1983 Act]
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PUGSLEY: Yes.
So, essentially, the s.13 case was never put before Mr. Justice Hildyard.
15JUDGE
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PUGSLEY: Yes.
17MR.
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FOWLES: Now, in the Court of Appeal, which is at tab 1 of this same bundle,
the first tab, what essentially the Court of Appeal did was they had two points
they needed to deal with. The first question was whether Mr. Justice Hildyard
had been right to decide that the common law rights of the owner of the bank
included riparian rights of mooring, and the Court of Appeal held that Mr.
Justice Hildyard had been right about that.
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The second and crucial point is that they said that Mr. Justice Hildyard had
been wrong to decide that, simply because the boat was unlicensed, the British
Waterways Board had power to remove the boat. The essence of the decision
is actually quoted in my learned friends skeleton, but I take you to the relevant
paragraphs in this judgment. At para.41 onwards in the judgment of Lord
Justice Mummery----
31JUDGE PUGSLEY: The

32
end of the matter?
33
34MR.
35
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40
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link between the two, no? However, that is not the
FOWLES: Yes. So Lord Justice Mummery has just dealt with the question of
whether the ownership of the bank gave a riparian right to moor and he says in
paragraph 40 that Mr. Moore has failed to establish any positive right to be on
the waterway or to moor at this particular point. Lord Justice Mummery goes
on and says:
As BWB can only require the removal of vessels unlawfully on the
GUC, it is necessary to ask whether, even in the absence of an
established riparian right to moor, the claimant, on the particular
facts of this case, was committing any wrong at common law or
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under statute, which made what he was doing unlawful? If he was

not, what power had BWB under s.8 to require removal of the
vessels?
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I should just explain that s.8 just says that, essentially, if a boat is unlawfully
on the waterway, then it can be removed by notice procedure.
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The Court of Appeal, Lord Justice Mummery giving the leading judgment,
held that Mr. Moore, on the particular facts of this case, was not doing
anything wrong, that the basic principle of English law is that, just because
you do not have a positive right----
13JUDGE PUGSLEY: Everything is permitted except that which is expressly

14
forbidden, which is dictum from Mr. Justice Megarry (as he was).
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16MR.
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FOWLES: Exactly, your Honour. Now, that proposition is entirely irrelevant

in this case. In this case, by contradistinction with the Moore case, the Canal
& River Trust rely on s.13 of the 1971 Act; and section 13 says that it shall be
unlawful to be on the waterway without a houseboat certificate.
21JUDGE
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23MR.
24
FOWLES: The Court of Appeal did not consider s.13.
25JUDGE
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27MR.
28
PUGSLEY: If you do not have a licence, you will have your boat nicked.
FOWLES: Yes.
40JUDGE
41
42MR.
43
PUGSLEY: Yes.
FOWLES: So that is what I say about ownership. The fact is that the Canal &
River Trust is the statutory navigation authority for these areas of the Trent and
Nottingham & Beeston Canal. It has statutory powers in respect of those
areas.
36JUDGE
37
38MR.
39
PUGSLEY: There was not an argument put before them.
FOWLES: No, your Honour, and that is why Moore is completely irrelevant.
29JUDGE
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31MR.
32
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35
PUGSLEY: Yes.
PUGSLEY: Yes, okay.
FOWLES: There is also a point raised in my learned friends skeleton

argument about whether we needed to join the local council, because they
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owned the County Hall Steps, and I am not sure whether that point is being
pursued any longer.
4MISS EASTY: I think my learned friend is reading something into my skeleton

5
argument which is not there. It is a simple point, and let me put it even more
6
simply, which is they cannot get an injunction over somebody elses land. It is
7
as simple as that. That is why the case is put on that particular narrow point.
8
9JUDGE PUGSLEY:
10
move on?
11
12MISS
13
14MR.
15
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17
EASTY: Sir, I am not asking the County Council to be joined.
FOWLES: Well, your Honour, if my learned friend is not asking for that, that
is fine. As to the injunction, your Honour, I think we are both agreed that quia
timet injunctions are being sought in this case.
18JUDGE
19
20MR.
21
22
Well, I shall listen to the argument with interest, but can we
PUGSLEY: Yes.
FOWLES: And that the test in that respect is that there should be a real danger
of actual violation of the law, in effect.
23JUDGE PUGSLEY: Yes.

24
an abstract problem.
25
26MR.
27
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29
30
FOWLES: No, your Honour. I have dealt with the first big issue, which is the
legislative picture and, of course, the legislative picture leads one into
consideration of the question of whether there has been use for bona fide
navigation.
31JUDGE
32
33MR.
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35
36
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39
PUGSLEY: Yes.
FOWLES: Because you only get a houseboat certificate if you can show
either that you have a permanent mooring or that you can satisfy the Board or
the Canal & River Trust that you are using the waterway for bona fide
navigation within the period of your consent and moving it every 14 days or
within a reasonable period. Will your Honour forgive me for just taking you to
that part of the statute, because it is the most important part?
40JUDGE
41
42MR.
43
You should not get a theoretical injunction to deal with
PUGSLEY: Yes.
FOWLES: At tab 3----
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FOWLES: My authorities bundle, which is a black bundle.
5JUDGE
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the Board may refuse a relevant consent in respect of any vessel

unless
So the Board has general power to refuse the relevant consent unless all of
these conditions are satisfied in the subparagraphs; and the crucial
subparagraph is (c) on the following page, and those are the key subparagraphs
for this case, in effect. So the first requirement is that there be a mooring or
other place where the vessel can reasonably be kept. That is what I would
refer to as the permanent mooring requirement. Alternatively, you can:
satisfy the Board that the vessel to which the application relates will
be used bona fide for navigation throughout the period for which the
consent is valid without remaining continuously in any one place for
more than 14 days or such longer period as is reasonable in the
circumstances.
So, your Honour will see that that is the basis upon which the Canal & River
Trust may refuse consent. Now, further---PUGSLEY: Sorry, it has?
FOWLES: It has the power to refuse consent unless one of those two things
are shown.
39JUDGE
40
41MR.
42
43
PUGSLEY: Tab 5?
FOWLES: Yes, your Honour, I am sorry, s.17 of this Act, which is the British
Waterways Act 1995 is the crucial section. Really the action starts here at
subsection (3):
34JUDGE
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36MR.
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38
PUGSLEY: Yes.
FOWLES: Sorry it is tab 5 in fact.
9JUDGE
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11MR.
12
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PUGSLEY: Of?
PUGSLEY: To what, to grant a houseboat certificate?
FOWLES: Yes, if you go to the top of s.17, so subsection (1), you will see the
definition of relevant consent means:
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a houseboat certificate, a licence or a pleasure boat certificate.
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And houseboat certificate takes you back to the Act of 1971, and that is
where s.13 appeared, if you remember.
6JUDGE
7
8MR.
9
FOWLES: Unless all of those things in subsection (3) are made out.
10JUDGE
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12MR.
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PUGSLEY: Yes.
FOWLES: And the same test applies when someone has a relevant consent
already, including a houseboat certificate, and the Canal & River Trust wishes
to revoke it. So, in subsection (4), if those conditions do not apply, or one of
those conditions does not apply:
the Board may give notice requiring the holder of the relevant
consent to remedy the default within such time as may be
reasonable.
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PUGSLEY: So they can refuse a houseboat certificate.
And, subsection (5):

the relevant consent shall determine on the date the notice
expires.
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26JUDGE PUGSLEY: Yes,

27
presents in this case.
28
29MR.
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32
FOWLES: Yes, your Honour. Well, no, that is not quite right. The position is
as follows. Until 2010, Mr. Wingfield had a permanent mooring and,
therefore, he was able to obtain a houseboat certificate.
33JUDGE
34
35MR.
36
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40
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well let us get the position in the factual context that

Did the defendant ever have a houseboat certificate?
PUGSLEY: Yes.
FOWLES: He lost his permanent mooring around 2010. Thereafter, he

obtained a different kind of licence I think it was a pleasure boat certificate
on the basis that what he was doing was continuous cruising. He was using
the boat bona fide for navigation. So, in the period between about 2010 and
February 2013, he had this pleasure boat certificate and that, as I say, was
premised on the idea that he was continuously cruising. Now, I referred to it
as a pleasure boat certificate because it was called a pleasure boat certificate
because that was what was assumed. It was actually a houseboat certificate on
the basis of continuous cruising.
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FOWLES: Exactly.
6JUDGE
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FOWLES: Yes, so that was the basis on which he had the certificate. He had
a houseboat certificate.
16JUDGE
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18MR.
19
PUGSLEY: A houseboat certificate with qualified rest periods.
FOWLES: In effect.
20JUDGE
21
22MR.
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24
PUGSLEY:
Bona fide for navigation throughout the period for which the
consent is valid without remaining continuously in any one place for
more than 14 days or such longer period as is reasonable in the
circumstances.
8
9
10
11
12
13MR.
14
15
PUGSLEY: That is at subsection (ii)?
PUGSLEY: You could not do it beyond 14 days.
FOWLES: The premise of the houseboat certificate was that he was moving
around within the meaning of that subsection.
25JUDGE
26
PUGSLEY: Yes.
27MR.
28
29
30
31
FOWLES: In February 2013, following a great deal of correspondence in

which the Canal & River Trust said to him You are not moving around
enough, in effect, you are not continuously cruising, the licence was revoked
and it was revoked under this section, under s.17.
32
33
34
Subsequently, Mr. Wingfield has applied for a new licence and he has been
refused it basically on the same basis.
35
36
37
38
39
On the same date that the certificate was revoked, the Canal & River Trust
served Mr. Wingfield with s.8 and s.13 notices, the notices that presaged the
removal of the boat. So that is the factual context in which we find ourselves.
Mr. Wingfield had a houseboat certificate and----
40JUDGE PUGSLEY: Okay, let

41
houseboat licence?
42
43MR.
us get it clear. Initially, permanent mooring, a
FOWLES: Yes.
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2JUDGE PUGSLEY: He loses his permanent mooring, but has the section (c)(ii)
3
type of licence. You have got a boat for navigational purposes, it is a
4
houseboat, but you are not allowed to reside in any one place for a period in
5
excess of 14 days or such even longer period as is reasonably necessary.
6
7MR.
8
9JUDGE PUGSLEY: The claimants revoked that on the basis

10
complying with the essential condition of mobility.
11
12MR.
13
FOWLES: Yes.
14JUDGE
15
16MR.
17
that he is not
PUGSLEY: And it ceased to be for navigational purposes. Yes?
18JUDGE PUGSLEY: His application for a houseboat licence is thereafter

19
and you bring this action effectively to get the boat off the water.
20
refused
21MR.
22
23
24
25
26
27
28
FOWLES: Yes, your Honour, and that is really the essence of the case. I am
not proposing to say much more because your Honour has the case really, but
obviously a large part of what my learned friend will say will be about public
law defences and Article 8 and I would just like to say that the essential
disagreement between my learned friend and me on Article 8 as a matter of
law is whether or not the Article 8 point is at large or whether its consideration
is restricted.
29
30
31
32
33
34
35
36
37
38
Your Honour referred earlier to possession claims by public authorities and in

recent cases the Supreme Court has held that, in such cases in possession
claims by public authorities, the court does have to have the power to consider
the proportionality of the local authoritys action and the possession order in
the particular case. In the cases called Powell and Pinnock respectively, the
Supreme Court essentially held that the threshold for showing that there was
an arguable case under Article 8 in those kinds of cases was a high one and
that you had to establish a seriously arguable case for the judge to consider
Article 8 at all.
39JUDGE
40
41MR.
42
43
PUGSLEY: Yes.
FOWLES: What my learned friend says, as I understand it, is Pinnock and

Powell do not apply in this kind of situation; this is not analogous to a
possession claim by a public authority; this is just a straightforward situation
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where a public authority is seeking to exercise powers which engage Article 8

and, therefore, it is really just a question of the question at large, which is
whether there is a proportionate interference which is necessary in a
democratic society and so on. Does your Honour see the distinction that I am
drawing between our two approaches, that I say essentially Pinnock and
Powell apply so that it is only going to be in relatively unusual cases that the
CRT will be prevented from getting this kind of order; whereas my learned
friend says No, in every single case there is no sort of starting point, it has
just to be considered in the round whether or not the action is a proportionate
interference.
12JUDGE PUGSLEY: Yes, I think the Pinnock line of authority was concerned with
13
restraining Circuit Judges from becoming housing managers and taking on,
14
with judicial imperialism, extending the empire of judicial power and to
15
recognise that the old Wednesbury test ultimately still applied and that the
16
courts should show a proper modesty. They probably could not even get the
17
signpost in the right street if it was left to them, so they could only interfere in
18
something where it was beyond the ambit of a reasonable response in the
19
decision making process. I have not looked at the cases recently, but that is
20
more or less not an inaccurate summary, is it?
21
22MR.
23
FOWLES: No, no, your Honour.
24JUDGE
25
26MR.
27
28
FOWLES: So, your Honour, that is my summary, if you like, of the case. I
am sorry I had to take you through some of the legislation----
29JUDGE
30
31MR.
32
PUGSLEY: You did not vote for it.
FOWLES: Your Honour, if I may, just on that point, may I just draw your
attention to something in the legislation which does slightly potentially
complicate the picture?
39JUDGE
40
41MR.
42
43
PUGSLEY: Not at all, it is not your fault.
FOWLES: --but it has unfortunately not been simplified.
33JUDGE
34
35MR.
36
37
38
PUGSLEY: Yes.
PUGSLEY: Of course.
FOWLES: It is really in the 1971 Act where the distinction between

houseboat and pleasure boat is drawn.
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1JUDGE
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3MR.
4
5
6
7
FOWLES: It is tab 3 of my authorities bundle. That is the bundle you have in

front of you. Now, in s.3 you have the definitions and you will see that the
definition of houseboat appears on that first page of s.3(1). Your Honour
will immediately see----
8JUDGE
9
PUGSLEY:
Houseboat means any boat or barge or any vessel or structure or
any part, remains or wreckage thereof but does not include any
boat, barge, vessel or structure
10
11
12
13
(a) which is bona fide used for navigation
14
15
16MR.
17
18
PUGSLEY: Yes. Help me, that is in?
FOWLES: So your Honour will immediately have noticed the relevance of

that subsection. The use of the phrase----
19JUDGE PUGSLEY: Counsel always say that when

20
clue what you are talking about, but go on.
21
22MR.
23
24
25
26
FOWLES: Your Honour, the phrase used is bona fide used for navigation.
So the starting point is you cannot have a houseboat which is bona fide used
for navigation because, if it is bona fide used for navigation, then it has to
be something else. That is the effect of s.3(1).
27JUDGE
28
29MR.
30
31
32
33
34
35
36
37
PUGSLEY: (a).
FOWLES: Exactly, your Honour. Now, the effect of the 1995 Act, on the
other hand, is to carve out a small exception in the case of houseboat
certificates and say Well, although houseboats are not used bona fide for
navigation, if you have a houseboat and you use it bona fide for navigation and
you move it every 14 days and so on, then that is fine, you can keep your
houseboat certificate. So, in effect, although the same phrase is used in the
definition here and in the 1995 Act, you cannot entirely read it across because
there are different contexts.
38JUDGE
39
40MR.
41
PUGSLEY: Do you mind, if you could shut your arms off for a second.
FOWLES: I am sorry.
42JUDGE
43
PUGSLEY: Do not worry, go on again.
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they know you do not have a
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1MR.
2
3
FOWLES: So houseboat is contradistinguished from pleasure boat, which

appears on the next page.
4JUDGE PUGSLEY: Yes, on the

5
fide used for navigation.
6
7MR.
8
9
basis, on the negative basis, that it is not bona
FOWLES: No. Your Honour, can I take you to the definition of pleasure
boat on the next page?
10JUDGE PUGSLEY: Well, does not include any

11
which is bona fide used for navigation.
12
13MR.
14
15
16
17
FOWLES: So, subject to s.17 of the 1995 Act, which allows you to have a
houseboat certificate if you are bona fide navigating, and in fact precisely
because you are bona fide navigating, the distinction between a houseboat and
a pleasure boat----
18JUDGE PUGSLEY: Sorry, coming back to 3(1): Houseboat means any boat
19
barge or any vessel or structure or any part, remains or wreckage thereof
20
whether or not the same shall be used or intended to be used for human
21
habitation, right?
22
23MR.
24
FOWLES: Yes.
25JUDGE PUGSLEY: So, even though

26
on, it can still be a houseboat.
27
28MR.
29
that intended use might be a boat for living
FOWLES: Yes.
30JUDGE PUGSLEY: But it does not include any

31
which is bona fide used for navigation.
32
33MR.
34
or
FOWLES: No, your Honour.
35JUDGE PUGSLEY: Or on the waterway with written permission, it being broken

36
up [belongs to] the Board or consists of a floating or fixed pier or jetty
37
bona fide used by pleasure boats. So the essence of a houseboat is that it
38
should not be a shipping boat used for navigation. That is what the 1971 Act
39
says.
40
41MR.
42
43
FOWLES: Your Honour, may I just take instructions? (Mr. Fowles took
instructions) Your Honour, in practice, a houseboat is anything static, broadly
speaking.
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4MR.
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FOWLES: And that is distinguished from pleasure boat on the next page.
6JUDGE
7
8MR.
9
PUGSLEY: Yes.
FOWLES:
Pleasure boat does not include a vessel being used solely as a tug
or for the carriage of goods or a houseboat or a mooring stage or a
pontoon.
10
11
12
13
14JUDGE
15
16MR.
17
PUGSLEY: Yes.
PUGSLEY: Yes. So it is a negative definition.
18JUDGE PUGSLEY: Basically, if you can move it, it is unlikely to

19
unless you get that special exemption for a limit of 30 days.
20
21MR.
22
23
24
FOWLES: Well, your Honour, it is important to just have in mind the different
purposes of these two, this section and the provisions in section 17 of the 1995
Act.
25JUDGE
26
27MR.
28
29
30
31
be a houseboat
PUGSLEY: Yes.
FOWLES: The point of the 1995 Act is that it determines when you can get a
certificate when you are allowed to have a pleasure boat on the water. Now,
the prima facie requirement is that, if you are going to have a houseboat, you
need to have a permanent mooring.
32JUDGE PUGSLEY: But, if you do not have a permanent mooring but keep moving
33
and are static within the prescribed limits, although there is an overriding
34
discretion in one of the clauses---35
36MR.
37
38
FOWLES: Well, you do not necessarily have to be static within the prescribed
limits. What s.17 says is that you have to use it bona fide for navigation.
39JUDGE
40
41MR.
42
43
PUGSLEY: Yes.
FOWLES: And, therefore, in effect, you have to bring it outside the definition
of houseboat in s.3.
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1JUDGE PUGSLEY: Sorry, are you trying to help

2
further into a totally futile inane discussion?
3
4MR.
5
FOWLES: I am trying to help you, your Honour.
6JUDGE PUGSLEY:
7
exclusion test?
8
9MR.
10
me or are you trying to lead me
Right. The interpretation of the 1971 Act, do you agree is an
11JUDGE PUGSLEY: Namely, what you are not and, if

12
purpose of navigation, it cannot be a houseboat.
13
14MR.
15
you have got it for the
16JUDGE PUGSLEY: So, if the Queen Mary or whatever P&Os liner is now called
17
is lodged in its moorings in Southampton, it is not a houseboat, because it is
18
not in an inland waterway, which is a minor detail, but its paramount use is for
19
navigation. So you cannot sail a liner up The Thames, plonk it outside the
20
Tower of London and say Right, who wants some permanent residential
21
accommodation, yes?
22
23MR.
24
25JUDGE PUGSLEY: Because that is not the

26
Now, the second limb of s.17, is it?
27
28MR.
29
30JUDGE
31
32MR.
33
purpose of the boat. It is for transport.
PUGSLEY: Of the which Act?
FOWLES: The 1995 Act at tab 5.
34JUDGE PUGSLEY: It says, if we can get to it, we have to have an insurance policy
35
and it has to be compliant with certain safety standards. It is either that there is
36
a mooring place, yes?
37
38MR.
39
40JUDGE PUGSLEY: Or the applicant satisfies the Board that the vessel to which
41
the application relates will be used bona fide for navigation throughout the
42
period for which the consent is valid as long as I am putting it in plain
43
English, I hope you cannot stay more than 14 days [in any one place] or
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such longer period as is reasonable in the circumstances. In other words, you

have to keep moving. You are not static.
4MR.
5
6
7
FOWLES: Yes, your Honour. Where I think I frustrated your Honour was that
I was just trying to point out that you will see that there is a potential
contradiction between s.17 of this Act and the definition in the 1971 Act.
8JUDGE
9
10MR.
11
PUGSLEY: Oh I agree, yes, sorry, sorry, sorry.
FOWLES: That is all I was trying to say.
12JUDGE PUGSLEY:
13
of the 1971 Act
14
15MR.
16
17
FOWLES: Yes, and, your Honour, what I was trying to say, perhaps ineptly,
was that----
18JUDGE
19
20MR.
21
22
23
PUGSLEY: Yes.
FOWLES: And that rather suggests, in my submission----
28JUDGE
29
30MR.
31
32
33
34
PUGSLEY: No, no, no, I was just getting a bit testy. It is not your fault.
FOWLES: --whereas s.17 says that you can have a houseboat certificate if you
can show use for bona fide navigation, s.3 of the 1971 Act excludes from the
definition of the houseboat a boat that is used bona fide for navigation.
24JUDGE
25
26MR.
27
Oh no, no, no, no, no, there is a potential conflict between 3(1)
and s.17 of the 1995 Act. It is 17(3)(c), I think.
PUGSLEY: That the Parliamentary draftsman was sleeping on the job.
FOWLES: Or that perhaps they are two independent tests, that they are not
quite the same test in each section, partly because of the surrounding words.
The surrounding words of s.17 of the 1995 Act are quite significant, in my
submission, but I will leave that there because obviously one----
35JUDGE PUGSLEY: Okay, houseboat is very clearly applicable to those boats

36
that you see mainly in London which are totally static and may not even have a
37
working engine and may not have an engine, if you are down by Kew Bridge.
38
Have you ventured that far to the west?
39
40MR.
41
FOWLES: I have been to Kew, yes.
42JUDGE PUGSLEY:
43
also you can be
Well, there are a whole load down by Kew Bridge. Okay, but
within the definition of a houseboat, although it is marring
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pure statutory interpretation, but you can be within the definition of a

houseboat as long as, although you are using it for navigation purposes, you
have a sort of limited status that you can hole up for 30 days or in extreme
circumstances for longer periods, as necessary, but nevertheless your prime
purpose is to keep roaming and rolling, the sort of Toad of Toad Hall of the
inland waterways, yes?
8MR.
9
10JUDGE PUGSLEY: In either of those cases, you come within the definition of a
11
houseboat although, as you point out, there is a rather fundamental conceptual
12
difficulty between, in one case, saying you must not be able to navigate and
13
the other thing you are saying you can but not for long.
14
15MR.
16
17
18
19
20
FOWLES: It is best looked at in terms of the licensing regime, your Honour.

As I understand it, the reason why that second limb of bona fide navigation
was inserted in the licensing regime is because, as a matter of practice, people
had houseboats which they were using for navigation as practice and, as a
concession to them, they could still have a houseboat certificate.
21JUDGE
22
23MR.
24
25
26
27
28
29
30
31
32
33
34
35
FOWLES: But the intention, in my submission, behind those two limbs is to

ensure that people do not just not have a permanent mooring and hang around
somewhere on the basis that, for example, theyre near their doctors surgery
or theyre near their post box or whatever. The intention is that people do not
clog up the waterways when they do not have a permanent mooring. So there
is a different intention between s.17 of the 1995 Act and the definition of
houseboat in the earlier legislation. Here, s.17 does not have the purpose of
simply bringing in within the definition of houseboat things that would
otherwise be houseboats. The purpose of s.17 is specifically concerned with
ensuring that people who do not have permanent moorings are subject, if they
want to keep their houseboat certificate, to an obligation of genuine bona fide
navigation.
36JUDGE
37
38MR.
39
PUGSLEY: Yes.
FOWLES: So, even though it is----
40JUDGE
41
42MR.
43
PUGSLEY: Yes.
PUGSLEY: But how does that affect this case?
FOWLES: Well, it affects this case because Mr. Wingfield does not have a
permanent mooring.
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FOWLES: He, therefore, has to show that he was entitled to a houseboat

certificate by virtue of continuous cruising; that is to say bona fide navigation.
7JUDGE
8
9MR.
10
11
12
13
14
15
PUGSLEY: How do you put the case?
FOWLES: I put the case on the basis of the decision of His Honour Judge
OMalley in British Waterways Board v Davies.
30JUDGE
31
32MR.
33
PUGSLEY: Now, take a deep breath.
FOWLES: Yes.
25JUDGE
26
27MR.
28
29
PUGSLEY: I agree with the last three words.
FOWLES: Thank you, your Honour, but it was important that your Honour
saw the same----
21JUDGE
22
23MR.
24
PUGSLEY: Yes.
FOWLES: And I am saying that he had a houseboat certificate for a certain

number of years and that was revoked on the basis of s.17 and an application
was subsequently refused to renew it on the basis of s.17. The reason why I
drew your Honours attention to the earlier definition is simply because it uses
the same phrase, but otherwise, because of the potential contradiction, I am not
sure it is actually particularly helpful.
16JUDGE
17
18MR.
19
20
PUGSLEY: Yes.
PUGSLEY: No, on the statutory basis?
FOWLES: On the statutory basis?
34JUDGE
35
PUGSLEY: Yes.
36MR. FOWLES: I say that Mr. Wingfield was not using his boat bona fide for
37
navigation because all he was doing was moving his boat up and down a
38
stretch of canal. He wanted to be close to relevant facilities and so on.
39
40JUDGE
41
short
PUGSLEY: Doctor, postman and all the rest of it, yes.
42MR. FOWLES: He was using his boat primarily not for navigation but just as a
43
replacement for a house, and the fact that he happened to be moving up and
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down did not mean that he was navigating. Therefore, the Canal & River Trust
was entitled to refuse him a licence and to revoke his licence in the first place.
4JUDGE PUGSLEY: Let us assume I am in a landlocked canal like the Brecon &
5
Abergavenny Canal. I have my doctor, my children have their school, I have a
6
post restante post office and I am registered in the nearest town which gives
7
out giro cheques because I am on benefits. You say I cannot work the system
8
(this is just in plain language) if I do not have a mooring, that I cannot gently
9
potter up the 12 or 13 miles of the length of that canal stopping off at 28 days
10
on each and effectively turn a number of transient stopping places into
11
effectively a mooring place, but for the purposes of navigation means that I
12
am cruising and I may need to stop off ancillary to the cruising, not I am a
13
resident of a particular area and I have to move it, rather like barristers and
14
solicitors move their car from one parking bay to another over the lunchtime
15
adjournment.
16
17MR. FOWLES:
18
way---19
20JUDGE
21
22MR.
23
Exactly, your Honour. Your Honour has put it very well. Another
PUGSLEY: Thank you.
FOWLES: I am sorry, your Honour, with respect.
24JUDGE
25
PUGSLEY: Do not bother about respect, it drives me up the wall.
26MR. FOWLES: Your Honour, another way of looking at it is, if you are simply
27
going to move your boat to ensure that you comply with the second limb of
28
s.17, then that is not bona fide. It is bona fide navigation. You can stop off for
29
a brief period to repair your boat or because, for example, it is flooding or
30
something like that, because that would be what a true navigator had to do.
31
What you cannot do is just move it from place to place up and down the same
32
stretch of canal, not really going anywhere, just---33
34JUDGE PUGSLEY: Use of the parking meter, I mean, I think actually
35
meter is unlawful, is it not, but put that on one side. The question
36
about the weather, is it?
37
38MR. FOWLES:
39
is 14 days.
40
41JUDGE
42
43MR.
Well, it is just simply to clarify that the period of days in the statute
PUGSLEY: 14, yes.
FOWLES: Or what is reasonable in the circumstances if longer.
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is ask him
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1
2JUDGE PUGSLEY: What you are saying is, if there is a parking meter or your
3
parking place which is limited to two hours and you cannot return within 24
4
hours, this is not an exact analogy but I think it is relevant, I cannot go to meter
5
1 and come back and put it in meter 2 and then come back in meter 3. It is
6
breaking the spirit. Whether it is breaking the letter can we leave on one side,
7
but it is breaking the spirit and the reasonable prohibition to ensure that I am
8
not clogging up for a bay a parking space which is designed to keep parking
9
spaces free for up to two hours for people coming into the road, for people
10
entering the town for lawful purposes. If I happen to own a house adjacent to
11
the parking meters, I am in fact, by constantly buzzing around, frustrating the
12
end purpose of there not being residents car parks at that part of the road, and
13
you will say that, if it is just a substitute to give me by any other name a
14
permanent mooring, albeit it is split over an area of four or five miles, it is not
15
on.
16
17MR.
18
19JUDGE
20
PUGSLEY: Yes.
21MR. FOWLES: The essential test is one of purpose, and that is where
22
Davies case and that is what His Honour Judge OMalley held.
23
24JUDGE
25
I rely on the
PUGSLEY: Shall we have a look at that?
26MR. FOWLES: Yes, your Honour. It is in my authorities bundle at tab 12. We

27
need to create indestructible bundles that survive the DX. That is the essential
28
thing. Your Honour, this judgment, of course, does not bind you. It is a
29
judgment---30
31JUDGE
32
PUGSLEY: No, it is persuasive.
33MR. FOWLES: Yes, a matter of judicial comity, in my submission, you ought to

34
follow it unless you are persuaded that it is wrong. That is the essential test
35
with judgments of coordinate jurisdiction. Now---36
37JUDGE
38
39MR.
40
FOWLES: Well, your Honour, I am just referring to the rule of precedent.
41JUDGE
42
43MR.
PUGSLEY: Coordinate jurisdiction?
PUGSLEY: Yes, yes, very jurisprudential.
FOWLES: Sorry.
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2JUDGE PUGSLEY: It is not binding, but I have to have
3
refusing to follow it. It is persuasive, not binding.
4
a reasonable reason for
5MR. FOWLES: In effect, your Honour, yes. Now, in this case, there was a man
6
called Mr. Davies who had his licence for a boat refused on the Kennet &
7
Avon Canal and Mr. Davies contended that, under s.17, by regular movement
8
from mooring to mooring, he had fulfilled the requirement of bona bide
9
navigation, but the British Waterways Board sought the removal of the boat.
10
In the proceedings, it was argued on behalf of Mr. Davies that he ought really
11
to have been granted the licence, and that was the defence to the claim. Now,
12
in para.6 you will see the extent of the stretch of canal we are talking about and
13
also how much Mr. Davies moved his boat.
14
15JUDGE
16
PUGSLEY: Yes.
17MR. FOWLES: And then the learned judge goes on to summarise some of the
18
legislation and also to summarise the arguments of the two QCs in the case.
19
20JUDGE
21
22MR.
23
PUGSLEY: The argument of?
FOWLES: The two QCs in the case.
24JUDGE
25
PUGSLEY: Oh right.
26MR. FOWLES:
27
it was fully
28
29JUDGE
30
31MISS
32
This is one reason why it is a good authority, your Honour, because

argued by two Silks, if I may say so.
PUGSLEY: I do not think your opponent agrees.
EASTY: No.
33JUDGE PUGSLEY:
34
for Silk.
35
36MR. FOWLES:
37
my point is
38
39JUDGE
40
No one is obliged to say how many times they have applied
Your Honour, within Silk, I would also include Senior Counsel, but
simply that.
PUGSLEY: Yes, yes, okay.
41MR. FOWLES: Para.14 is where the essential reasoning

42
your Honour simply reading para.14. (pause)
43
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applies. It may be worth
1JUDGE
2
3MR.
4
PUGSLEY: Yes. This was not the subject of an appeal?
FOWLES: No, it was not.
5JUDGE
6
PUGSLEY: Yes.
7MR. FOWLES: Then he goes on to clarify his decision. In para. 15, his Honour
8
Judge OMalley essentially says that, whilst he finds for the claimants, he does
9
not entirely endorse their guidance and, as a result of this decision in fact, the
10
guidance was revised in 2011, so the 2011 guidance in fact reflects this
11
decision. He goes on to say at the bottom of the page:
12
It is possible to envisage use of a vessel which fell short of the

Boards concept of continuous cruising but which still qualified the
vessel for a licence under s.17(3)(c)(ii). What is clear to me is that
the defendant who is clearly living on the boat cannot successfully
claim that he is using the boat bona fide for navigation by moving
it every so often up and down a short stretch of canal.
13
14
15
16
17
18
19
20
21
22
23
That, I say, is this case, that what Mr. Wingfield has essentially been doing,
with a couple of exceptions, is moving his boat up and down the same short
stretch of canal.
24JUDGE
25
26MR.
27
PUGSLEY: Yes.
FOWLES: Your Honour asked about whether this had ever been appealed.
28JUDGE
29
PUGSLEY: Yes.
30MR. FOWLES: I feel I should mention, although it is not relevant, that there were
31
recently judicial review proceedings in relation to the guidance issued by the
32
Canal & River Trust, but those judicial review proceedings were essentially
33
inconclusive. What ended up happening is, after a number of first instance
34
decisions that leave should not be given for judicial review by a man called
35
Mr. Brown, Lord Justice Jackson gave permission for the judicial review to
36
proceed on the basis that essentially it was arguable, and this was concerned
37
with s.17. Then what happened is that there was a hearing quite recently
38
before Mr. Justice Lewis, where the full judicial review was to be heard, but
39
the application was discontinued during that hearing, so Mr. Justice Lewis
40
never came to a decision upon the interpretation of this section or the
41
lawfulness of the guidance. So, whilst Davies has not been appealed and also
42
it has not been considered in any citable authority, the issue has been, as it
43
were, kicked around in the High Court.
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PUGSLEY: But not the subject of any determinative decision?
4MR. FOWLES: No. There is a judgment of Mrs. Justice Cox in those proceedings
5
which does, to a certain extent, deal with the issue, but it was of course the
6
subject of Lord Justice Jacksons permission for judicial review, so she refused
7
leave to bring judicial review proceedings.
8
9JUDGE
10
11MR.
12
PUGSLEY: Mrs. Justice Laura Cox.
FOWLES: Mrs. Justice Cox, yes.
13JUDGE
14
15MISS
16
PUGSLEY: Laura Cox?
EASTY: Yes.
17MR. FOWLES: Yes, your Honour. I am sorry, I do not know her, but Lord Justice
18
Jackson then gave permission for the judicial review to proceed and that is
19
why---20
21JUDGE PUGSLEY: So the only relevant authority at the moment is not binding on
22
me, but it is persuasive authority, and that says you cannot be a clever clogs. If
23
your purpose of having that houseboat is to live on it, you cannot repair the
24
fact that you have not got a permanent mooring by putting your house for
25
transport periods of up to 14 days at other mooring sites.
26
27MR.
28
FOWLES: No, your Honour.
29JUDGE PUGSLEY: That is the gist of it, that you

30
short stay moorings a permanent mooring.
31
32MR.
33
34JUDGE
35
36MR.
37
cannot create out of a number of
PUGSLEY: That is really the crux of it.
FOWLES: Yes, your Honour, thank you.
38JUDGE
39
PUGSLEY: Is it not?
40MR. FOWLES: Yes, I very much appreciate the way your Honour has put it. It
41
will be an indicator that perhaps bona fide navigation is not going on if
42
someone is moving up and down over a short stretch. I think it is particularly
43
important that His Honour Judge OMalley referred to moving it every so
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often up and down a short stretch of canal because that really indicates that
you are trying to stay in the same area to be near the things that are important
to you.
5JUDGE
6
7MR.
8
FOWLES: It is not really navigation in the sense of a clear sense of----
9JUDGE
10
11MR.
12
PUGSLEY: Yes.
PUGSLEY: Well, it is moving the car in the parking bay, is it not?
13JUDGE PUGSLEY: I am not allowed to park here

14
aggregate in seven different meters, all right?
15
16MR.
17
all day in this point, but I can
18JUDGE
19
PUGSLEY: Right, now are you going to call any evidence?
20MR. FOWLES: Yes, your Honour, unless my learned friend wishes to say anything
21
before we do. There is a witness statement which my learned friend wishes to
22
put in and it may be that she will do that when she calls her evidence.
23
24JUDGE PUGSLEY: Can I just clarify, is oral evidence necessary? I am not either
25
saying yes or no. I am delighted to see people come into the witness box and
26
witness statements and they come to Chesterfield and what greater reward
27
should there be than giving evidence but, if there is not any real dispute?
28
29MR. FOWLES: Your Honour, I had in mind that there are minor areas of dispute
30
and, to my mind at least, oral evidence would be useful in clarifying the extent
31
of movement.
32
33JUDGE PUGSLEY: By all means, if you want to call it, you must call it, of course,
34
but it is sometimes said with your leave and I do not have power to refuse it.
35
36MR. FOWLES:
37
Mr. Garner
38
Your Honour, I have in mind the time. Would your Honour like
to go into the witness box now or should he be taken after lunch?
39JUDGE PUGSLEY: Shall we say two oclock so that we do not break his evidence,
40
which means you cannot talk to him and he will have the strain of giving
41
evidence and it being broken off shortly. So you will be calling Mr. Garner
42
and you will be calling?
43
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1MISS
2
EASTY: Mr. Wingfield, your Honour.
3JUDGE PUGSLEY: Yes. Whereas I think the calling of Mr. Garner is entirely a
4
matter for you, I do not think jurisprudentially it is essential if it was agreed. I
5
think you would be in a very difficult position if you did not call your client,
6
but it is entirely a matter for you, because in fact, on its analysis, it really is for
7
you to satisfy the Board or, in a failure, satisfy me as to what his state of mind
8
was.
9
10MISS EASTY: On my
11
that you would be
12
learned friends opening, that is doubtless the impression

left with.
13JUDGE PUGSLEY:
14
purposes?
15
Was he just playing the system or was it for general navigation
16MISS EASTY: Yes,

17
given you.
18
your Honour, that is the impression that my learned friend has
19JUDGE
20
PUGSLEY: Yes.
21MISS EASTY: And very fundamentally with both his approach to the legislation,
22
his analysis of the legislation, the approach to be given to dates etc., etc.
23
24JUDGE
25
26MISS
27
EASTY: But, on his case, yes.
28JUDGE
29
30MISS
31
PUGSLEY: On his case, that is the inference.
EASTY: How he puts it, yes.
32JUDGE
33
34MISS
35
PUGSLEY: Yes, I rather gathered that.
PUGSLEY: What do you say the purpose of s.17 is?
EASTY: The purpose of s.17, your Honour.
36JUDGE
37
PUGSLEY: Only if you want to. You can tell me later if you like.
38MISS EASTY: Well, of course I am in your hands. Let me just get it up. I think
39
my case differs, obviously. In terms of putting it in the most simple way, it is
40
that the Act says exactly what it does bona fide for navigation. Unless there
41
is reasonable excuse, you can stay for a period of 14 days. The Davies case
42
bears closer reading, because, in that case, the boat, as far as I can see, and I
43
am just summarising or paraphrasing---BEVERLEY
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PUGSLEY: Yes.
4MISS EASTY: --shuttles back and forth over something like a mile and to the same
5
spot again and again and back and forth and, on the particular facts of that
6
particular case, the judge found that was not sufficient. Whilst my learned
7
friend would possibly also say that, if he moved from, let us say Lime House
8
to Manchester, say, within a week and stayed in Lime House again and then
9
stayed in Manchester again, that would not be sufficient on his analysis, which
10
clearly cannot be right because the guidance does not say you must move two
11
miles, 10 miles, 20 miles, 100 miles, 300 miles, so what we can say from
12
Davies is that a mile is not enough and also going from the spot back and
13
forward is not enough, okay, that is absolutely right, but how far that can be
14
extrapolated in terms of principle is an entirely different matter because it
15
would appear you must move from place to place. Now, how big is a place?
16
17JUDGE
18
PUGSLEY: I see.
19MISS EASTY: So, no, it is not quite as straightforward in terms of that section. In
20
terms of the Article 8, again, in terms of the Article 8 approach, now, of course,
21
post-1998, we have to look at these Acts as being compatible with Article 8
22
and so that imports other considerations.
23
24JUDGE
25
PUGSLEY: Article 8 saying?
26MISS EASTY: The right to

27
that are relevant here.
28
a private life, the right to a home. Those are the limbs
29JUDGE PUGSLEY: Have you any authority? I tow my mobile home onto some
30
land which, for the purpose of this argument, I own. I have no planning
31
permission. Are you saying the Article 8 would defeat a claim for eviction by
32
the local authority if I have no requisite consent to put a residence on a house?
33
34MISS EASTY: Yes, I
35
House of Lords.
36
37JUDGE
38
would rely on Wrexham Borough Council v Barry in the
PUGSLEY: That is in the bundle?
39MISS EASTY: No, it is not in

40
learned friends Powell.
41
42JUDGE
43
the bundle because I put it in in response to my
PUGSLEY: I am sorry, has that authority already happened?
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1MISS EASTY: No, your

2
which is the---3
4JUDGE PUGSLEY:
5
the bundle?
6
7MISS
8
You are now asking me to look at an authority which is not in
EASTY: Your Honour, yes.
9JUDGE
10
11MISS
12
Honour, simply because my learned friend put in Powell,
PUGSLEY: And not mentioned in your skeleton argument?
EASTY: No, because it is put in response to my----
13JUDGE
14
PUGSLEY: Yes, I am only getting to the facts. I am not criticising.
15MISS EASTY: No, it was in response to my learned friend. My learned friends

16
approach is that Powell requires a restricted assessment in relation to Article
17
which I find somewhat surprising because Powell relates specifically to the
18
statutory regime relating to tenancies and secure tenancies, introductory
19
tenancies. This is not that kind of regime. It is, as your Honour says, much
20
more akin to somebody moving onto land without permission in a mobile
21
home and, therefore, in those circumstances, the test to be operated when an
22
injunction is applied for. I agree.
23
24JUDGE
25
PUGSLEY: I will have a look at it.
26MR. FOWLES: Your Honour, I

27
not even mentioned to me.
28
29JUDGE
30
31MR.
32
do not have a copy of Wrexham and in fact it was
PUGSLEY: No.
FOWLES: So may I have a copy?
33MISS EASTY: I do
34
adjournment.
35
36JUDGE
37
38MISS
39
not have another copy, but I can get some in the short
PUGSLEY: Do you need this copy to do that?
EASTY: I will get two in the short adjournment.
40JUDGE PUGSLEY: Do you need this copy as

41
go on for 104 paragraphs? Yes, it does.
42
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the dominant copy? Does this really
1MISS EASTY: Yes. It is all the

2
all said the same thing so it
3
4JUDGE PUGSLEY:
5
but okay.
6
7MISS
8
judges, all five of the very learned House of Lords,

is pretty much the same judgment.
One wonders why they need to give five speeches to do that,
EASTY: I will get these photocopied and I will hand it in.
9JUDGE PUGSLEY: Yes, okay, shall we say 2.15 in view of the time we have
10
taken? Right, are we going to be finished oral argument by tomorrow?
11
12MISS
13
14MR.
15
EASTY: Yes, I think without any oral doubt.
FOWLES: Sorry, finished with oral argument today?
16MISS
17
18MR.
19
EASTY: Tomorrow.
FOWLES: Tomorrow, yes.
20JUDGE PUGSLEY:
21
judgment by 12
22
Am I going to be left in the position of considering my

oclock tomorrow?
23MR. FOWLES: I doubt it, your

24
questions of Mr. Garner by
25
Honour. Your Honour, I would like to ask some

way of expansion.
26JUDGE PUGSLEY: I am sorry, this is

27
time for me to give a judgment?
28
29MR. FOWLES: Yes, your
30
tomorrow morning.
31
a two day case. Are we going to finish in
Honour, it just may be that oral argument takes all of
32JUDGE PUGSLEY: Well, I would hope that

33
one oclock apart from my judgment.
34
35MR.
36
now
we will have finished everything by
FOWLES: It is quite possible, your Honour. I would hope so.
37JUDGE PUGSLEY:
38
happens.
39
Well, I would hope it is not quite possible. I hope that
40MISS EASTY: Your Honour, we are at one oclock after an opening. I understand
41
my learned friend wishes to ask some questions of his own witness.
42
43JUDGE
PUGSLEY: Do you?
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FOWLES: Yes, your Honour, if I may.
4JUDGE PUGSLEY:
5
by all means.
6
7MR.
8
But I thought you were not going to call him. If you want to,
FOWLES: I would like to, just a few short questions.
9JUDGE PUGSLEY: Yes, but, look, I want to finish this case. I do not want to be
10
giving a reserved decision which will take a long time. I want to try and give
11
decision tomorrow. That is only going to be realistic if all argument and
12
evidence has been concluded by one oclock.
13
14MR.
15
FOWLES: Yes, your Honour, it will be.
16JUDGE
17
18MR.
19
PUGSLEY: And I cannot see why that should not be the case.
FOWLES: Your Honour, I am determined it will be.
20MISS EASTY: I think it very much depends

21
because we are going to be short.
22
23JUDGE
24
25MISS
26
on my learned friends time estimate,
PUGSLEY: That is what all counsel say.
EASTY: But I am going to be short.
27JUDGE PUGSLEY: Some

28
everlasting concept.
29
30MISS EASTY: Your
31
ten minutes.
32
33JUDGE
34
concept of time with members of the Bar is a most
Honour, I think I have managed to explain two of my points in
PUGSLEY: Yes, very well, see you at a quarter past two.
35
36
Adjourned for a short while
37JUDGE PUGSLEY: Can I just say to whoever is going to give evidence please bear
38
this in mind. This is a difficult room acoustically. We sometimes get a rush of
39
traffic and sometimes we do not, but I have glaring you probably cannot hear
40
it the air conditioning in the winter and the central heating in the summer,
41
you know. So when you give evidence, can I say this, you are looking at me
42
now because I am talking to you. When you give evidence, avoid the
43
temptation of looking at the barristers because your voice then drops
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somewhere around there. If you look straight ahead, I will be able to follow
you and your barristers will be able to follow you. There is a more important
reason than just being heard. When we speak, it is not only the words, it is the
way they come out, the body language and, if you turn round, particularly to
the barrister who is nearest the window, there is a sort of terrible temptation to
drop your voice, but it looks as though you do not mean it, as though you are
having a sort of private conversation and I cannot see your body language,
which often in understanding is very important. Okay, lecture over, but I do
not want all of you to give evidence, to endlessly have your evidence
punctuated by Could you speak up. There has never been a case that anyone
has ever been criticised for shouting in this court, okay?
13MR.
14
FOWLES: Thank you, your Honour.

MR. STUART GARNER, affirmed
Examined by MR. FOWLES
15
16
17
18MR. FOWLES: Your Honour, before I start asking Mr. Garner questions, there is
19
just one uncontroversial point about his exhibit, which is that there is a page
20
which was mistakenly inserted in there which I would ask you to remove from
21
your Honours bundle. At p.72 there is a map which is not anything to do with
22
this case in fact.
23
24JUDGE
25
26MR.
27
FOWLES: Can I just ask that it be removed from the trial bundle?
28JUDGE
29
30MR.
31
PUGSLEY: Yes.
FOWLES: Page 72.
32JUDGE
33
34MR.
35
PUGSLEY: Oh how interesting, yes.
PUGSLEY: Yes, where is that of?
FOWLES: Sorry?
36JUDGE PUGSLEY: Page 72?

37A
I believe it is a misprinted map of Lancashire
38
your Honour. I dont know why its in there.
39
way or Cheshire way, I believe,
40Q
41
42
I was born in Liverpool but left at three years. Yes, I do not think we need
worry about it, ok. And your statement is at page?
43MR.
FOWLES: Page 10.
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2JUDGE
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PUGSLEY: Yes.
4MR. FOWLES: Could

5A
Stuart Garner.
6
7Q
8A
9
I ask you first just to confirm your name?
And what is your occupation?

Enforcement Officer.
10Q
11A
12
What is your address?

My home address or my work address?
13Q
14A
15
Your work address.

It is The Kiln, Mather Road.
16JUDGE PUGSLEY:
17A
Newark.
18
Newark.
19JUDGE PUGSLEY: Yes, are we going

20
the written evidence as evidence?
21
22MR.
23
to proceed on the normal basis that we take
24JUDGE PUGSLEY: And then

25
supplemental thereto.
26
you add anything if you want to ask anything
27MR. FOWLES: Thank you, your Honour.

28
you recognise this document?
29A
Yes, I do.
30
If you turn to p.10, which you are on, do
31Q
32A
33
And could you turn to p.18? Do you recognise the signature?

Yes, I do.
34Q
35A
36
Whose signature is it?

Thats mine.
37Q
38A
39
And what is this document?

Its my witness statement.
40JUDGE PUGSLEY: Have you read it this

41A
I havent read it this morning, no.
42
43Q
morning?
Have you read it recently?
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1A
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Yes, I have done.
3Q
4A
5
Is there anything about it that is not accurate?

No.
6Q
7A
8
Is there anything you want to add to it?

No, your Honour.
9Q
10A
11
So there is nothing you want to amend?

No.
12MR. FOWLES:
13A
Yes, I do.
14
Could you turn to p.138? Do you recognise this document?
15Q
16A
17
What is it?
It is my witness statement.
18Q
19A
20
And could you turn to p.140? Do you recognise the signature?

Yes, I do.
21Q
22A
23
Whose signature is it?

Thats my signature.
24Q
25A
26
Have you read this statement recently?

Yes, I have.
27Q
28A
29
And is it true to the best of your knowledge and belief?

It is, yes.
30MR. FOWLES:
31
witness?
32
33JUDGE
34
Your Honour, may I ask some supplemental questions of the
PUGSLEY: Certainly.
35MR. FOWLES: Thank

36
para.10, you say:
37
38
39
40
41
42
43
you, your Honour. If you just stay on p.140, Mr. Garner, in
Should the Defendants or any other boat wish or require to moor in

a certain area for long periods of time, a home mooring should be
obtained for their vessel, as is clearly stated in CRTs General Terms
and Conditions for boat licences.
Why does the CRT require a home mooring to be obtained?
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1A
2
3
4
Obviously, financially it will help, its a source of income for a mooring fee
obtained and it would also prevent the waterways being clogged up on visitor
moorings and other mooring sites.
5Q
6
And can you turn to page----
7JUDGE PUGSLEY: Before you leave that, do you mind if I

8
at this stage? Do you have some home mooring sites?
9A
Yes, we do.
10
just clarify something
11Q
12A
13
Has the defendant ever claimed them?

Sorry?
14Q
15A
16
Has the defendant ever sought to have one from you?

Not that I am aware of.
17Q
18
19A
20
Your home, remind me again, if I want to have a residential use of my boat,

what is the licence I need?
It would be a houseboat certificate.
21Q
22A
23
A?
Houseboat certificate.
24Q
25A
26
Yes. Is there any limit on the houseboat certificates?

How do you mean?
27Q
28A
29
Well, do you have a number, you will issue 10 a year or any quota like that?
No.
30Q
31A
32
So, if I have a mooring, yes, which is not from you, as I can have, yes?
Yes.
33Q
34A
35
Do I have a right to a home, a licence, if I satisfy the criteria?

Are you referring to the Craft Licence, the Boat Licence?
36Q
37A
38
39
Yes.
Yes. If you were to get a home mooring from a third party, you would be
entitled to a boat licence.
40Q
41
42A
43
Subject to the other criteria set out of standard of boat and it being insured and
that sort of thing.
Yes, yes.
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1Q
2A
3
So, in effect, you have an entitlement if you fulfil the criteria?

Yes.
4Q
5A
6
You sound a bit hesitant? Do you want time to reconsider that?

No.
7Q
8
9
10A
11
So I have a boat, it is insured and it is in a comparable condition that is

allowed. I come to you and I say I want to live near Trent Bridge, or
wherever it is, there is the money. I would get one?
The moorings work on an auction basis at certain sites.
12Q
13A
14
Oh yes, but, assuming I had a mooring from someone?

Just to clarify, is it a mooring from ourselves or from?
15Q
16A
17
From you or from a third party.

And, just to clarify, are you saying to leave your boat, say, at Trent Bridge?
18Q
19
20A
21
Yes, I only selected that because it is one of the few places I know in
Nottingham. Anywhere? If I get a mooring---Yes.
22Q
23
24A
25
--from you or from someone else and the boat satisfies the criteria, is that it?
Can I demand a licence for a home, a non-moving craft as a residence?
Yes, as long as it complies with the necessary----
26Q
27A
28
Conditions of eligibility.
--conditions, yes.
29Q
30A
31
But you have no discretion thereafter?

No.
32MR. FOWLES: Your Honour, may I interrupt? In many ways this is a question
33
law and it is clear from s.17 that the CRT may only refuse consent if those
34
conditions are not satisfied.
35
36JUDGE PUGSLEY: Yes, that is what I am just
37
if people have satisfied the conditions---38A
Yes.
39
40Q
41
42A
43
clarifying. As a matter of practice,
--even though you do not want the canal cluttered up with a lot of residential
boats, that cannot be a factor?
No.
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1JUDGE
2
PUGSLEY: That is all I am trying to clarify, yes.
3MR. FOWLES: Can I just ask you about some of the documents at the back of the
4
bundle? It may be that they have not been introduced. Your Honour, I realise
5
that I do not actually have a spare copy of the maps for the witness bundle,
6
but, if I may, I will just ask Mr. Garner about geography. What would you say
7
is the distance between Castle Meadow and Trent Bridge?
8A
Approximately 5km.
9
10Q
11A
12
And the distance between Trent Bridge and Holme Lock?

Again, approximately 3km.
13Q
14
And the distance between Beeston and----
15JUDGE PUGSLEY:
16
Castle Meadow
17
18MR. FOWLES:
19
said.
20
Sorry, Castle Meadow to Trent Bridge 5km and then was it

to?
It was Trent Bridge to Holme Lock and 3km is what Mr. Garner
21JUDGE PUGSLEY: And

22A
Yes, your Honour.
23
that is what is shown as yellow on one of the maps, 3km?
24MR. FOWLES: And the distance between Beeston Roadside

25
Lock, what would you estimate for that?
26A
Beeston to Holme Lock, approximately 12km in total.
27
Mooring and Holme
28JUDGE PUGSLEY: For the avoidance of doubt, because there can sometimes be
29
mistakes, Beeston, yes, is in the area of the town of Beeston? I mean, you
30
have to get over a railway line and also the A52, I suspect, but Beeston
31
Roadside Mooring is not some other area other than in Beeston?
32A
No, it is not.
33
34Q
35A
36
I mean, that is what it looks like on the map, that it is the outer part of Beeston.
It is. It is Beeston town centre.
37Q
38
39
40A
41
42
If you look at 262. I am just clarifying, forgive me, that there are not,
sometimes places do not correspond with their apparent place name, but in this
case it seems to.
Beeston Roadside Moorings is ever so slightly just outside the town centre of
Beeston.
43JUDGE
PUGSLEY: Beeston, yes. Thank you very much.
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1
2MR. FOWLES: Could you turn to p.144 of the
3
briefly say what this map shows?
4A
This map is what we call a sightings map.
5
6JUDGE PUGSLEY: Sorry?
7A
A sightings map, showing
8
corresponding months.
9
trial bundle, please? Could you just
the locality of Mr. Wingfields boat in the
10Q
11A
12
So that gives where he has been sighted?

Yes, your Honour.
13Q
14
15A
16
So, for example, Loughborough, it is a bit difficult to tell from the colour with
my eyesight, but was that November?
It is, your Honour, yes.
17Q
18A
19
And July on the way to Newark?

Yes, your Honour.
20Q
21
22A
23
And is there one just out of sight? Yes, there is, a yellow one. In July, he was
seen both on the way to Newark and at Newark.
Yes, your Honour.
24Q
25
Yes.
26MR. FOWLES:
27A
2012.
28
29Q
30A
31
So, just to be clear, which year is this map relating to then?
Thank you. Over the page, on p.145, what is this document?

Again, this is a sightings map, showing the sightings of Mr. Wingfields boat.
32JUDGE PUGSLEY:
33A
2013.
34
In which year?
35MR. FOWLES: This being a map, could you just explain how this close-up relates
36
to the wider area? What is above the dots on the right-hand side?
37A
I am sorry, I apologise, I am just trying to get my bearings. The dots on the
38
right-hand side, that is County Hall in Nottingham and, at the top of the page,
39
you have the injunction with Meadow Lane Lock, which is the beginning of
40
the Nottingham & Beeston Canal.
41
42Q
43
Thank you.
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1JUDGE PUGSLEY: So that shows some movement, for the avoidance of doubt,
2
round about July and is it August or February the blue dots under the word
3
Bridge?
4A
There is July.
5
6Q
7A
8
That is a yellow.
Yes.
9Q
10A
11
And the blue?

I believe one is February.
12Q
13A
14
Yes.
And I would say the other is June.
15Q
16
17A
18
Now, at that stage, he was meant to be? I mean, by 2013, he had no fixed
mooring?
No.
19MR. FOWLES: In fact, if you turn to

20
statement, Mr. Garner, you say:
21
I refer to two plans and schedules the defendants boat was

located between April 2012 and March 2012 and April to July 2013.
22
23
24
25
26
Is there anything you would like to say about that paragraph?
27JUDGE
28
PUGSLEY: Sorry, page?
29MR. FOWLES:
30A
It is, yes.
31
32Q
33
34
35
36
37
38
39
40
41
42A
43
p.139 of the bundle to your witness
Page 139, paragraph 9. Is that paragraph correct?
Thank you. Could I just take you to p.197? I will just be forgiven for saying
that this is Mr. Wingfields witness statement. Mr. Wingfield, in para.15 on
p.197, says, about three-quarters of the way down the paragraph:
I have moved from the place where I am now at County Hall Steps
in one direction to Sainsburys, which is three miles away, and then
back to County Hall and then in the opposite direction to Hope Pier
Point, which is a further three miles away.
Do you know where this Sainsburys is that he is referring to?
Sainsburys is at Castle Meadow on the Nottingham & Beeston Canal.
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1Q
2A
3
And where is Hope Pier Point?

Holme Pier Point.
4Q
5A
6
Oh it is Holme Pier Point.

It is located at Holme Lock on the River Trent.
7Q
8
9A
10
And he says Where I am now at County Hall Steps. What do you say to that
in relation to Mr. Wingfields location?
In relation to, sorry?
11Q
12
Where is Mr. Wingfield now? Where is he----
13JUDGE
14
PUGSLEY: Sorry, today?
15MR. FOWLES: Where is his boat today as far as you know?

16A
As far as I am aware, Mr. Wingfields boat is currently moored
17
moorings on Meadow Lane on the River Trent.
18
19Q
20A
21
And, if you turn back to p.18, which is your---Sorry 18, 1-8?
22Q
23
Yes.
24JUDGE
25
26MR.
27
PUGSLEY: Of?
FOWLES: Page 18 of the trial bundle.
28JUDGE
29
PUGSLEY: Yes, whose statement?
30MR. FOWLES:
31A
It is.
32
33Q
34
35
36
37
38
39
40
41
42A
43
It is your statement, Mr. Garner.
You say in para.36:

I believe that, unless CRT is granted an injunction against the
defendant which extends beyond the location of the property, the
defendant will simply move or tow the boat to another mooring on
the RT or another canal or inland waterway controlled by the
Claimant.
Why do you believe that?
I believe that, as the defendant, sorry Mr. Wingfield, has currently not
complied with the Continuous Cruiser Guidelines, if the injunction were not
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1
2
3
granted, he would just simply move to another area and continue the current
behaviour of not moving and not complying.
4JUDGE PUGSLEY: What evidence have you to rebut that which he says in his
5
statement, namely that he was getting letters from you that he should move and
6
that he did move?
7A
There obviously are signs of movement, but not sufficient to comply with the
8
Continuous Cruiser Guidelines.
9
10Q
11
12A
13
14
In crude terms, can you help me cost-wise? If I were to seek a houseboat

licence from you, how much would that cost?
Obviously, it would differ from site to site, dependent on the facilities available
and the size of the boat. As a rough estimate, it could be roughly 800 a year.
15Q
16
17A
18
And, if I were to go on sites, mooring sites, up and down on continuous

cruising, what would I be looking at?
Do you mean as in to pay?
19Q
20A
21
Sorry?
How do you mean, sorry?
22Q
23
24
25A
26
27
28
If I were to pay for single nights or five nights or whatever, if I were to live on
my canal but did not have a single mooring, would it be as expensive, more
expensive or about the same?
We dont charge for visitor moorings. There may be private landowners that
may charge per night. I know public houses do charge, some charge, for an
overnight stay. We, we dont.
29Q
30
31
32A
33
So, if I were to confine my wandering to what I am trying to get at is, assume

for the moment you are right and he is parking outside, for example, the steps
of the County Hall, or whatever it is called, the town hall, what is it?
County Hall.
34Q
35A
36
Or in the Meadow Hall moorings, is that free?

Yes, it is.
37Q
38
39A
40
So the purpose of having a houseboat licence, from your point of view, is (a)
you get revenue?
Yes.
41Q
42
43
I am not putting them in an order of priority, but there are different reasons.
You get revenue and you can avoid the river becoming just a sprawl of
narrowboats.
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1A
2
Yes, your Honour.
3JUDGE
4
PUGSLEY: Or barges, yes. Would you like your witness back?
5MR. FOWLES: Thank you, your Honour. Just in relation to his Honours
6
questions, what is the difference between a visitor mooring and a permanent
7
mooring?
8A
The visitor moorings will have a specified time limit. Some, the general
9
consensus is 14 days. There are certain local restrictions that apply which may
10
be 24, 48 or 72 hours.
11
12Q
13A
14
15
And what about permanent moorings?

A permanent mooring is obviously a place where you can leave your boat
whilst it is not being used for cruising.
16JUDGE PUGSLEY: So you

17A
Yes, yes you could.
18
could leave it all year round?
19MR. FOWLES: How is the fact of permanent

20
sprawl that his Honour was referring to?
21A
Sorry, how do you mean?
22
moorings consistent with avoiding a
23JUDGE PUGSLEY: It is not that there are permanent moorings that are causing
24
sprawl. It is that, if boats are not licensed, sorry if boats can park up
25
anywhere, you are likely to have a continuous sprawl of houseboats---26A
Yes.
27
the
28Q
29A
30
--in areas that are inappropriate.

Yes.
31Q
32A
33
Sewerage disposal being the most obvious one.

Yes.
34Q
35
36A
37
But other considerations as well. Is that right? Do not let me put words into
your mouth.
Yes, yes, your Honour.
38Q
39
40
41
42
43A
I mean, applying sort of town and country planning procedures, do you try and
confine areas of moorings, in the sense that, if you are applying to turn a barn
into a house, it is more likely to get through on Government circulars if there is
already some sort of settlement there rather than if it is a house bang in the
middle of nowhere. It may not be a safe analogy, so tell me if it is not.
No.
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1
2Q
3A
4
It is not.
No.
5Q
6A
7
You do not require a number of residential moorings to be grouped together?

No, no.
8MR. FOWLES: And, just exploring this question of permanent moorings, in

9
relation to the flow of the waterway, where do the permanent moorings tend to
10
be?
11A
They can be anywhere along the stretch generally. The permanent moorings
12
will tend to have facilities such as showers, toilets, things like that for the
13
boaters to use, electricity for example.
14
15Q
16
17A
18
19
20
21
What is the position as regards the availability of permanent moorings in the

Nottingham and Beeston area?
I think I mentioned it earlier. The moorings that we provide are based on an
auction basis. They go to the highest bidder and these are available online and,
if the customer doesnt have access to the internet, we can also provide a postal
auction service for them to bid.
22Q
23
24A
25
26
And his Honour mentioned third party moorings. Is that something you can
speak to in that area?
We dont, we dont provide details of third party moorings. It would be up to
the customer or the boater to explore those avenues.
27JUDGE PUGSLEY: Any idea? I think you said that a residential mooring would
28
vary, of course, depending on the size of the boat and location, but I think you
29
said it was something like, was it, 8,000?
30A
800 a year.
31
32Q
33
34
35A
36
But would there be sorry to take an analogy from London if you had
someone at Kew Bridge or in Central London, it would cost more than if you
had somewhere half way between Watford and Barnet on the Grand Union.
Yes, there are more popular sites which cost more money.
37MR. FOWLES: So, just to be clear on cost, can you distinguish just between the
38
cost of a permanent mooring and the cost of a houseboat licence? How much
39
does a permanent mooring cost for a year, say?
40
41JUDGE PUGSLEY: About
42A
Yes, approximately.
43
800.
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1MR. FOWLES:
2A
Again, it is
3
And how much does a houseboat licence cost?

dependent on the size of the craft.
4JUDGE PUGSLEY: Yes, but saying that it is, what, 72ft

5A
I would estimate it at approximately 500 to 600.
6
7Q
8A
9
by 56?
A year?
Per year, yes.
10Q
11A
12
And for a non-houseboat licence?

It would be the same.
13Q
14A
15
So it is no more expensive then?

No.
16MR. FOWLES: Just returning to your statement, Mr. Garner, at p.17, para.30,
17
recall a phone call from the defendant stating that he was trying to get a
18
mooring:
19
20
21
22
23
24
you
He said he had not been able to cruise because of the floods. I

explained we had not been in flood for the entire length of the
licence and he had not been complying with the terms and conditions
of his licence and this is why his licence was revoked.
25
26
27A
28
29
30
Could you just say, in the period between April 2012 and April 2013, how
much was the river and canal in flood?
I couldnt give exact dates. Obviously, there were times of flooding between
December and February/March time. I couldnt give exact dates, but it
certainly wasnt in flood for that entire period.
31Q
32A
33
So December which year?

Sorry, 2012.
34Q
35A
36
And February/March?
February/March-time 2013.
37MR. FOWLES: Your Honour, I am just checking. That may be all my questions,
38
but I just need to check, if that is okay. (pause) Just a general question. What
39
would be the practical impact of your failing to enforce the conditions of
40
houseboat certificates against Mr. Wingfield?
41A
It would lead to an increase of such cases, therefore, leading to more
42
unlicensed boats and more boats (to excuse the term) clogging up the system
43
without satisfying the criteria.
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1
2Q
3A
4
5
Why would it lead to that?

With no home mooring, therefore boats would be allowed to moor anywhere
along the system if these rules werent enforced.
6MR.
7
FOWLES: Thank you very much, Mr. Garner.
8JUDGE PUGSLEY: Forgive me, can you just help me technically? If, for example,
9
on any sort of bog sized, ordinary width canal, if you had no mooring sites and
10
boats could just park up at will, would the canals be wide enough to take that
11
to allow free passage of a boat?
12A
They would be wide enough for passage. It would create problems with
13
maintaining the canals.
14
15Q
16
17A
18
Take a canal like the one that runs along the A38 between Derby and
Litchfield.
Yes.
19Q
20
21A
22
23
Could that take a narrowboat of conventional width on one side and another
and still leave a traffic-free passage?
No, if there were boats on both sides, there wouldnt be sufficient room for a
passing boat.
24Q
25
26A
27
Do you have any byelaws to punish people who park in other than the official
mooring places?
How do you mean official mooring?
28Q
29A
30
31
Well, have I the right to moor wherever I want?

Yes. You can moor a boat anywhere along the towpath, obviously where it is
safe to do so.
32Q
33
34
35A
36
But if, for example, you had a demonstration and a whole fleet of narrow boats
came up and parked on both sides, thereby obstructing the passage of others,
have you any statutory right to stop that?
I dont know. I will be honest, I dont know.
37Q
38A
39
So, if I have a canal boat, I can moor up anywhere?

Yes.
40Q
41
42A
43
If I moor up on one side and you moor up on the other side, we would obstruct
the canal?
Yes.
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1Q
2A
3
You cannot require me to moor up in a recognised mooring?

No. If, if there was an obstruction, we can require people to move.
4Q
5A
6
If we both moored on opposite sides?

Yes, yes.
7Q
8A
9
But I, subject to that, do not have to use one of your mooring sites?
No.
10Q
11A
12
Nor the Pig & Whistles mooring site a mile down the canal?
No.
13Q
14A
15
I can moor wherever I want?

Yes.
16MR. FOWLES: Your Honour, would it be helpful for me to just take

17
particular subsection of the statute just to help your Honour?
18
19JUDGE
20
you to a
PUGSLEY: Yes.
21MR. FOWLES: I am at tab 4 of my authorities bundle. This is the 1983 Act.

22
Section 8 is one of the sections on which the Canal & River Trust rely; and it
23
just to give you an example of a situation in which the board or the Canal &
24
River Trust can remove a craft if it is an obstruction and a source of danger,
25
and that is subsection (5) of s.8.
26
27JUDGE
28
is
PUGSLEY: Obstruction or a source of danger?
29MR. FOWLES: Yes, and also where something is not a vessel, if it is just a sort of
30
object of some kind, then there is a power to remove things which are likely to
31
interfere with navigation in s.9. So, whereas s.8 relates to vessels or other
32
relevant crafts which are left without lawful authority, s.9 relates to things
33
other than vessels which cause obstruction or interference.
34
35JUDGE PUGSLEY: So I am just trying to build up a picture. Bill and Molly
36
decide to take a holiday from an obvious area and they are entitled, without
37
paying any costs, to moor up at any of the Trusts mooring sites?
38A
Yes.
39
40Q
41
42A
43
And, if they do so, they will have the benefit of a loo and a shower, maybe
some hot water.
Yes.
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1Q
2A
3
And they are not charged for it?

No.
4Q
5
6A
7
They decide, stuff that, they will use the chemical loo and the bowl in the craft
and they moor anywhere?
Yes.
8Q
9A
10
What I am not allowed to do is to moor for 28 days in any one site?

It is 14.
11Q
12
13A
14
14 days in any one site and, if I wanted to live on it, I am entitled to do so as

long as I keep going and do not stop at and moor up for more than 14 days.
Yes, thats correct.
15Q
16
17
18A
19
What I am not allowed to do, you say, is to hone in on a particular site, not
have a full-time mooring but more flip around just within a short proximity to
make sure that I do not spend more than 14 days in any one site.
Yes, thats correct.
20MR. FOWLES: If I may, your Honour, I am instructed that there are byelaws under
21
which the Canal & River Trust can remove obstructions, for example, but the
22
practice of the CRT is not to use those because they may obviously impact on
23
peoples human rights, so the approach is relatively lenient in that particular
24
regard.
25
26MISS EASTY: Your Honour, if I may assist, the CRT do have powers to remove
27
obstruction either under statute or under byelaw, if it is an obstruction or is
28
interfering with the right of navigation. In so far as there is that issue, we
29
accept that.
30
31JUDGE
32
33MISS
34
EASTY: But it is not under the----
35JUDGE
36
37MISS
38
PUGSLEY: Yes.
PUGSLEY: This legislation, but delegated byelaw legislation.
EASTY: Yes, we accept that.
39MR. FOWLES: So the distinction, I understand, is it would be possible to

40
prosecute such people under the byelaws, but the CRT avoids criminalising
41
boaters. In relation to---42
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an
1JUDGE PUGSLEY: I suspect also they

2
if the byelaws are of some age, but
3
might be mindful that the fines are derisory

yes.
4MR. FOWLES: In relation to a section like subsection (5) of s.8, which is an

5
emergency power to remove an obstruction, that is where the concern will be:
6
Well we do not want to interfere with the boaters human rights. So, with
7
the byelaws, it is a question of avoiding prosecution to avoid criminalising
8
boaters and with respect to a subsection like subsection (5) or s.8, that is
9
concerned about human rights.
10
11JUDGE PUGSLEY:
12
just after a long
13
14MR.
15
FOWLES: Yes, that would, absolutely, your Honour. Thank you.
16JUDGE
17
18MR.
19
Yes, but it is also concerned with safety. With an obstruction

tunnel, it would be----
PUGSLEY: Have you finished?
FOWLES: Your Honour, that concludes my questions.
20JUDGE
21
22MISS
23
PUGSLEY: Yes.
EASTY: Thank you very much, your Honour.

Cross-examined by Miss EASTY
24
25
26MISS EASTY: I will just start off with that point. In terms of when there is an
27
obstruction or another interference with the free navigation of the waterways,
28
CRT have proper powers to be able to deal with that if they decide it
29
appropriate, do they not?
30A
Yes, they do.
31
32Q
33
34
35A
36
37
In terms of the judges example, in terms of having a permanent mooring, are

there any currently available permanent moorings that CRT possess in this
locality, area, whatever you want to call it?
Without checking, I wouldnt know. Like I say, they are all available on the
website.
38Q
39A
40
41
I did check and I could not find any. Are you aware at all?
Im not aware of any current vacancies, but, like I said, without checking I
couldnt categorically say.
42Q
43
And, if I am wrong in that, I am sure you can check overnight and come back
in the morning.
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1A
2
Yes.
3Q
4
5A
6
7
Now, in terms of other marinas or private moorings, are you aware of any
vacancies at all in respect of any permanent residential moors?
Im not aware of any vacancies within private marinas. Its not something we
get involved with.
8JUDGE PUGSLEY: Sorry, do you mind, there can be two meanings to that answer.
9
It is a perfectly proper question and perfectly proper answer, but not aware of
10
any vacancies can imply that There are no vacancies, I would know if there
11
were, or it could be, I havent got a clue, I dont know either way.
12A
Yes, sorry I dont know. Just to clarify, I dont know.
13
14Q
15A
16
Either way?
Yes, sorry.
17MISS EASTY: Now, let us just

18
types of licence. If I had a
19
you my mooring fee.
20A
Yes, thats correct.
21
go quickly to the financial basis of the different

CRT permanent residential mooring, I would pay
22Q
23
24A
25
And I would also, if it was on the navigable canal, be expected to have a

licence, would I not?
Yes, thats correct.
26Q
27
28A
29
And it is the licence which, in your example, was 800 roughly or was it the
mooring---The mooring was 800.
30JUDGE PUGSLEY: The mooring was 800, the

31A
No, the licence is roughly 500 to 600.
32
33Q
34A
35
Sorry, the same for whatever use.

Yes, yes.
36Q
37
Either a houseboat or a touring boat.
licence was the same.
38MISS EASTY: And so let me just say that again to clarify. So, if
39
residential licence, I would be paying 500 to 600 roughly.
40A
Is that for the boat licence?
41
42Q
43A
Yes the boat licence.

Yes, thats correct.
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I had a permanent
1
2Q
3
4
5A
6
And, in terms of the boat in the current place and we will look at the boat in
the current place it is 27ft, so that boat would be paying in the order of,
roughly?
As a rough estimate, roughly 800.
7Q
8
9
10
11A
12
13
No, I am talking about, if this boat was moored at pardon me, it is my fault
if this boat was moored at one of your residential permanent moorings and
paying the mooring fee and the license fee, what they would be paying as well
would be in the order of?
It would differ from site to site. Like I said previously, different sites offer
different facilities so, therefore, are more expensive.
14Q
15A
16
I am asking about the licence.

Oh sorry the licence.
17Q
18A
19
Yes.
Apologies, the licence, without looking at a price list for that size of boat----
20Q
21A
22
Roughly, I am not going to make a big fuss about it.

Roughly, it would be about 500.
23Q
24
25A
26
Roughly 500 and, in terms of the continuous cruising licence, roughly how
much?
That would include the continuous cruising part of the licence.
27JUDGE PUGSLEY: There is no difference?

28A
There is no extra cost for the continuous
29
30Q
31
32
33
34A
35
cruising licence.
Or, sorry, I think we must get this clear, take a boat size, whether it is 28ft, 46,
56, 72, can we just exclude the size, but the principle, as I understand it, tell
me if I am wrong, you do not pay any more for a licence for a residential boat
than you do for a touring boat?
No, thats correct.
36MISS EASTY: Now, in terms of the continuous cruiser

37
that is a term of art and I will use it if I may.
38A
Yes.
39
licence and, again, I know
40Q
41A
42
In terms of that, continuous cruisers live on their boats, do they not?

Yes, they do.
43Q
And there is nothing wrong with that. That is not a problem for the CRT?
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1A
2
No.
3Q
4A
5
The point is whether they fulfil the criteria of being bona fide for navigation.
Yes, thats correct.
6Q
7
8
9A
10
And it is also the point that I think, again, I may well be wrong on this and I
am sure you can correct me, but the navigable part of the River Trent is about
90 miles, something like that?
Roughly, give or take, yes.
11Q
12A
13
Roughly, roughly.
Yes.
14JUDGE PUGSLEY: Where

15A
On the River Trent?
16
can you go?
17Q
18A
19
20
Yes.
From Shardlow down to Gainsborough. Gainsborough Bridge is the limit and
then I believe it is down to Ports Authority.
21Q
22A
23
It is down to?
Ports Authority.
24Q
25A
26
The Humber?
Yes.
27Q
28A
29
30
So, beyond Shardlow, you cannot go up to Burton and Burton to Stoke?

Im not familiar with that part of the River Trent. I dont cover that part of the
country.
31Q
32A
33
So you do not know how far navigable it is if at all---Not at that end.
34Q
35A
36
--to the west of Shardlow?

No, no.
37Q
38
39A
40
But you can go from Shardlow to Gainsborough, which in crude terms is

Nottingham, Newark and Gainsborough?
Yes.
41MISS EASTY:
42
down?
43
Again, about that, roughly, and I am not going to be pinning you
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1JUDGE
2
PUGSLEY: What did you put the distance at?
3MISS EASTY: About 90 miles.

4A
Roughly, yes, thats correct.
5
6Q
7
8
9
10
11A
12
And, in terms of that, again I am using this as an example, in terms of that, if

you wish to go up and down the canal in your boat, you could moor on the
towpath side throughout the length of that, subject to say, local restrictions
like, for example, you may have This is a weir, dont moor here or This is a
lock, dont moor here or This is a bridge, dont moor here.
Yes.
13Q
14
15A
16
But, subject to those local restrictions, you can moor anywhere along that
length; that is right?
Yes, that is correct.
17Q
18A
19
And there is no charge for those moorings?

No.
20Q
21
22A
23
And so a continuous cruiser can moor entirely lawfully anywhere along where
it is permitted to do so without local restrictions over that length, yes?
Yes.
24Q
25
26
27A
28
But they receive, in terms of generally those moorings, they receive no

facilities, for example you do not have taps and loos and showers along the
whole of that 90 miles?
No, no.
29JUDGE PUGSLEY:
30A
There are some
31
will not do.
32
Some you will have but most not.

mooring sites that will offer facilities. The more remote ones
33Q
34A
35
You will have to pay where there are facilities, or may have to?
Not for our moorings. We dont charge for them.
36Q
37A
38
Anything?
No.
39Q
40A
41
I thought you said that, where there are facilities, you might do?
Some private landowners and publicans may do.
42MISS EASTY: Now, again, I think you would accept quite easily that, when the
43
canal or river, whichever, is in flood, you would not expect someone to move
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1
2
3A
4
through those conditions if they considered, in their opinion, that it was

dangerous to do so?
No, never.
5Q
6
And also I think, well no, you do not accept, you----
7JUDGE
8
PUGSLEY: Sorry, hang on, I have to make a question out of this.
9MISS EASTY:
10
December
11A
Yes.
12
Sorry. You are aware that the Trent was in flood at times between
and February/March.
13Q
14
15A
16
17
18
Would you accept that, where Mr. Wingfield was, it was in flood throughout
that period?
Like I said earlier, it was in flood for parts during that period, but I couldnt
give specific dates for when it was in flood, but it was not in flood for that
entire length of time.
19Q
20A
21
So, again, I am going to press you on this. When was it not in flood?
I dont know. I dont have specific dates of when it wasnt in flood.
22Q
23
24A
25
The reason why I ask, of course, is because that is when you would be of the
view that it would be reasonable for him to move, no?
If the river is in flood, I would not expect anyone to move.
26JUDGE PUGSLEY: Is there a definition of in flood? I mean, does anyone

27
know?
28A
There are water markers to indicate water level. Green, amber and red, I
29
believe they are, obviously red being in flood.
30
31MISS EASTY: Would it be of assistance to you to have a look at some of the
32
pictures attached to Mr. Wingfields second statement, just so that the judge
33
can see some of the markings?
34
35JUDGE
36
37MISS
38
PUGSLEY: Page?
EASTY: It is a stand-alone document.
39JUDGE
40
PUGSLEY: Well, it has not stood alone here.
41MISS EASTY: I should make clear that this is yours. This part of it, para.5, has
42
been struck out so please take no notice of that. I am just referring you to the
43
pictures.
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1
2MR. FOWLES: Your Honour, just to clarify, this is a witness statement that was not
3
in the trial bundle. We have agreed to its going in today, subject to the deletion
4
of that paragraph.
5
6MISS
7
EASTY: Yes.
8JUDGE
9
PUGSLEY: Fine, I will not read it.
10MISS EASTY: Yes, so para.5, please, I have scribbled it out in mine and that is
11
why I have handed you mine, but, in terms of the pictures, do you have it?
12A
Yes.
13
14Q
15
16
If you could just show to the Judge what you mean when something is in flood
or how we can tell?
17JUDGE PUGSLEY:
18A
Five and six.
19
What numbers are they?
20MISS EASTY: And can you

21
explain to the Judge?
22
see that there is a red line there or if you could simply
23JUDGE PUGSLEY: Yes.

24A
The marker is such that obviously the red
25
flood and it would not be safe to travel.
26
27Q
28A
29
would indicate that the river is in
At that point it is the Soar, is it not?

I believe these pictures are taken at Beeston Lock.
30MISS
31
EASTY: Yes, those are taken at Beeston Lock.
32JUDGE PUGSLEY: Right, thank you. I mean, to put it rather simplistically, as

33
as either a river or a canal is concerned, if it had in fact risen over the land
34
which encases a canal, you could be in serious difficulty trying to move a
35
vehicle.
36A
Very serious, very serious difficulty, yes.
37
38Q
39A
40
You might still be in some difficulty if it was still moored.

Yes.
41Q
42
43A
But it is not as grave as floating freefall outside the confines of the river or
canal.
Yes.
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far
1
2Q
3A
4
That is a statement of the obvious.

Yes.
5JUDGE
6
PUGSLEY: Yes.
7MISS EASTY: Thank you. Now, again, when did you start
8
you become an enforcement officer, roughly again?
9A
Roughly July 2009, I think.
10
11JUDGE
12
13MISS
14
becoming, when did
PUGSLEY: Sorry, what was that date?
EASTY: July 2009.
15JUDGE PUGSLEY: What happened in July 2009?

16A
I am sorry, I became an enforcement officer.
17
18MISS EASTY: And what was your training
19A
How do you mean, company training?
20
for that job?
21Q
22
23A
24
Well, I should ask the question first. Had you had canal experience before
getting that job?
No, I was a police officer prior to this job.
25Q
26
27
28A
29
30
So, when you took over the enforcement role, what training did you
undertake? Did you undertake any training or how were you explained the
role of the job?
I was, I was, I had a mentor who I worked with for a period of time who taught
me the legislation, the processes and powers.
31Q
32
33A
34
35
36
And did you receive any, for example, discrimination law training at all, for
example?
We had, we have a, I dont remember the term of the course, but its a fitter
and equal opportunities training course. Forgive me, I cant remember the
proper title.
37Q
38
And did you have any training about how to apply Article 8?
39JUDGE
40
PUGSLEY: Apply?
41MISS EASTY: Apply Article 8. I am sorry, your

42
how to apply Article 8 and human rights.
43
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Honour, I am dropping my voice,
1JUDGE
2
3MISS
4
EASTY: Article 8.
5JUDGE
6
7MISS
8
PUGSLEY: Apply what, sorry?
PUGSLEY: Article 8 of the Human Rights Act?
EASTY: Yes.
9JUDGE
10
PUGSLEY: Yes.
11MISS EASTY:
12A
I have had
13
Of the Human Rights Act to your role as an enforcement officer?

previous human rights training in my time in the police, yes.
14Q
15
16A
17
No, I am asking you in terms of because, again, the role of a police officer and
an enforcement officer are quite different. In terms of this role?
No. No, I havent.
18Q
19
20
21
22A
23
Did you have any internal guidance as to how to consider, again I am only
talking about your enforcement role and how to apply human rights, Article 8
of the Human Rights Act in terms of whether you are considering it? Is there
any policy or guidance in your role?
Yes, there is, yes.
24Q
25A
26
And where is that policy?

Its on the, I think it is called, our internal internet system.
27Q
28A
29
Your network or whatever?

Yes, yeah, however you like to describe it.
30Q
31
And what does it say you should do?
32JUDGE
33
34A
35
PUGSLEY: Look, really, I am sorry----
I dont know. I----
36JUDGE
37
38MISS
39
PUGSLEY: I am sorry, this is not a proper cross-examination.
EASTY: Well, your Honour, I am sorry, I say it is.
40JUDGE
41
PUGSLEY: Well, I am the judge and you are not.
42MISS EASTY: I am
43
respect to that.
sorry, your Honour, I did not mean to be impertinent with
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1
2JUDGE PUGSLEY: This is not a proper cross-examination. I have spent many
3
years listening to arguments about human rights in the context of employment
4
law. You can call for the policy if you want it, but it is just, what is your case?
5
Put that.
6
7MISS
8
EASTY: I am putting my case. I am----
9JUDGE
10
PUGSLEY: You have not put it at all yet.
11MISS EASTY: Your Honour, if I may just explain. I am saying that the CRT,
12
before they revoked the licence and when they decided to seek an injunction,
13
should have considered and come to a balance as to the defendants human
14
rights.
15
16JUDGE
17
PUGSLEY: Well, why not put that to the witness?
18MISS EASTY: That is what I am trying to do. That is why I am

19
what guidance he followed because, as far as I can see---20
21JUDGE PUGSLEY:
22
Act?
23
trying to find out
Is it reduced in writing, the guidance on the Human Rights
24MR. FOWLES: I am sorry, your Honour? (pause) We would need to investigate

25
further, your Honour. We have not been asked for this policy before.
26
27JUDGE PUGSLEY:
28
to the training?
29
Have you asked this for disclosure of all documents relevant
30MISS EASTY: No, your Honour, but what my next question is going to be, and I
31
will ask it immediately because I, of course, do not want to take up too much
32
time, is where is, well, if I may, your Honour, I would ask where this witness
33
has analysed the defendants human rights in any document.
34
35JUDGE PUGSLEY: I have never heard a question in quite that way. Why do you
36
not ask what would be a straightforward question along the lines of Were you
37
aware of the need to consider the relevant issues in the Human Rights Act?
38A
Yes, during the case and dealing with Mr. Wingfield, obviously, we have had
39
conversations and his needs were taken into account. I had conversations with
40
my supervisor, taking into account Mr. Wingfields issues, medical and
41
whatever else they may be, and decisions were made along the way, taking into
42
account all the necessary issues and situations.
43
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1Q
2A
3
4
5
6
7
8
9MR.
10
And what did you identify as being the necessary issues about Article 8?
Mr. Wingfield stated that he had medical, ongoing health issues that would
require him to be in the area for a prolonged period of time. I consulted with
my supervisor about these issues and it was agreed that we would give Mr.
Wingfield an authorised overstay, which means we would grant him a free
mooring for a period of time in the location for him to secure a permanent
mooring that would---WINGFIELD: Continuously cruise. Sorry.
11WITNESS: Apologies, or to
12
resolution to the issues.
13
begin to continuously cruise in order to form a
14JUDGE PUGSLEY: Were you aware of the precise details of his medical condition
15
and what was said to be the consequence of that medical condition?
16A
We applied for, we asked Mr. Wingfield for a medical letter outlining his
17
ongoing health issues.
18
19Q
20A
21
Did you receive such a letter?

Yes, we did.
22JUDGE
23
PUGSLEY: Yes, let us move on from there, shall we?
24MISS EASTY: Now, in your view, in terms of someone who is continuously

25
cruising, if they, for example, are severely disabled and I am not saying it
26
in this case, I am using a neutral example as far as possible someone was
27
severely disabled, would you consider that they should move as far as
28
somebody who was entirely fit?
29A
We would take into account all their needs and the decision would be made
30
based on an individual case.
31
32Q
33
34
35
Now, in terms of this particular case, have you at any time looked at all the
issues put forward by Mr. Wingfield together, cumulatively, his health, his
engine, the floods, everything like that in one place?
36JUDGE
37
PUGSLEY: Sorry, his health?
38MISS EASTY:
39
example?
40
41JUDGE
42
His health, the flood, his engine, the flooding of his engine, for
PUGSLEY: That is quite a mixed bag.
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is
1MISS EASTY: Yes, that is exactly what I am asking, did he consider everything
2
cumulatively, all together, at any one point?
3A
Like I say, discussions were had with my supervisor where the situations were
4
discussed and decisions were made based on the information we had received.
5
6Q
7
8A
9
10
11
Again, in terms of Mr. Wingfield, taking into account his particular

circumstances, how far do you think he should be moving, roughly again?
I think he should be complying either with the Continuous Cruiser Guidelines
or securing a home mooring if the need is such that he needs to be in that
particular area on a more permanent basis.
12Q
13
14
15A
16
In terms of fulfilling that guidance, again, can you give any indication, in these
particular circumstances, how far you think it would be appropriate for
somebody in Mr. Wingfields circumstances to move?
Im not going to, I cant give a specific distance.
17JUDGE PUGSLEY: Well, can you put a question which is based on factual matters
18
such as My client suffers from A, B, C, would that not militate against him
19
complying with continuous cruising rather than ask abstract questions based
20
on an uncertain knowledge of what was brought to this witness attention?
21
22MISS EASTY: Well, your Honour,
23
aware of the health issues.
24
I think it is right to say that the witness was
25JUDGE PUGSLEY: Would you, please, act like a member of the Bar, not act in a
26
free-floating way? Sorry, to be so blunt about it. If it is your case that your
27
client suffered from a particular disability, would you put to the witness what
28
the disability was and the extent to which that will exclude the defendant from
29
the normal day to day considerations that might apply to somebody who was
30
not disabled?
31
32MISS EASTY:
33
Wingfield
34A
Yes.
35
36Q
37
38
Thank you, your Honour. Again, you understand that Mr.

is registered disabled?
You also understand that he has a heart problem which one doctor described as
severe?
39MR. FOWLES:
40
anywhere.
41
42MISS
43
Your Honour, registered disability has not been disclosed

That is a complete bolt from the blue.
EASTY: I think it is the first line of his first statement. (pause)
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1JUDGE PUGSLEY:
2
under pressure?
3
4MISS
5
Would you like me to rise for five minutes so you are not
EASTY: No, your Honour, I do not think that is necessary.
6JUDGE
7
PUGSLEY: Right.
8MISS EASTY:
9
this.
10
11JUDGE
12
PUGSLEY: Well, it is the Disability Discrimination act.
13MISS EASTY:
14
am not.
15
16JUDGE
17
It is in his statement. I do not think there is any issue in respect of
No, I am not saying it is the Disability Discrimination Act at all. I
PUGSLEY: Right.
18MISS EASTY: Paragraph 2 of his statement at p.194: I am currently in receipt of

19
income-related employment and support allowance as I am unable to work.
20
21MR.
22
FOWLES: Is that the same as registered disability? I am not sure.
23MISS EASTY: Well, I can put it as that. Are you aware that he is in receipt of
24
income-related employment and support allowance as he is unable to work?
25A
Im not aware of what Mr. Wingfield claims, no.
26
27Q
28
29
30
31A
32
Now, again, we looked at your map of movements. As you know, Mr.

Wingfield states that, up until the revocation of his licence, he was moving as
best as he could in accordance with the Continuous Cruising Guidelines? That
is our case, yes?
Yes.
33Q
34
35
36
In terms of the movement that you have in respect of this map, the overview
map, what more would you have expected, how much further would you have
expected him to move?
37MR.
38
FOWLES: Sorry, which page?
39MISS
40
41MR.
42
EASTY: It is this map.
FOWLES: Right, page?
43JUDGE
PUGSLEY: Page?
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1
2MISS
3
EASTY: I have it as p.144.
4JUDGE
5
PUGSLEY: Of the principal bundle?
6MISS EASTY:
7
like that.
8
9JUDGE
10
Of course I am talking when the river is not in flood or anything
PUGSLEY: Of course.
11WITNESS:
12
Sorry, could you repeat the question?
13MISS EASTY: My question was, this is a map of his movements. Again, our case
14
is that we were moving every 14 days until the revocation of our licence that
15
is our case in terms of the movement here, can you tell me what you would
16
have expected Mr. Wingfield, where you would have expected him to move in
17
excess of what he already has done?
18A
I cant tell Mr. Wingfield where to go or how far to move.
19
20JUDGE PUGSLEY: No, okay. No, no, let us just turn it round.
21
Loughborough to Newark would be about 70/80 miles?
22A
Roughly, yes.
23
Very crudely, from
24Q
25A
26
Yes, 80.
Give or take.
27Q
28
29A
30
31
32
Would he have satisfied continuous cruising if he had gone up and down from
Newark to Loughborough, taking several days perhaps per week?
The journeys to Newark and Loughborough are simply one-offs. All the other
sightings are in and around the River Trent and Nottingham & Beeston Canal.
Therefore, they would not satisfy the Continuous Cruiser Guidelines.
33Q
34A
35
So, if you stay on the River Trent but not on the---Sorry, to clarify that, in and around the Nottingham section of the River Trent.
36Q
37
38
39A
40
So let us say, we do not know what it is, but something in the order of 80 miles
and he would have gone up and down, not stopping at any one area for more
than 14 days. Would he have satisfied the Continuous Cruiser Guidelines?
Not just going up and down, no.
41Q
Well, what would he need to do to do that?
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1A
2
3
4
In the guidelines, it is stated that it would need to be a genuine navigation, a

genuine journey; whereas Mr. Wingfield has gone up and down the canal from
A to B to B to A.
5MISS
6
EASTY: Your Honour, may I?
7JUDGE
8
PUGSLEY: Of course.
9MISS EASTY: Now, in terms of genuine navigation, let us just imagine again,
10
sorry, I know it is hypothetical but if one was travelling to a mooring because
11
it had a washing machine and then you travelled to a mooring because it had a
12
big supermarket and then you travelled to another one because it had your
13
doctors, for example, it could be anything, is that not genuine navigation, as
14
you would put it?
15A
Yes.
16
17Q
18A
19
So it is not just the distance, it is the purpose, is that fair?

Yes.
20Q
21
22A
23
And so, if the purpose is to go to different places to achieve different things,

then, in your view, that would be sufficient to fulfil the guidelines?
Yes.
24Q
25A
26
Again, it is an example.
Yes.
27JUDGE PUGSLEY: Well, I am sorry, this causes wider issues. I can understand
28
that if all I am doing is travelling up and down within a small ambit from the
29
County Hall Steps and, in the words of a brother judge, the travelling is
30
incidental to maintaining a mooring, not the other way around, but if over a
31
distance of 90 miles, 80/90 miles, I am travelling up and down it now, what
32
does a narrowboat do, four miles an hour?
33A
Yes.
34
35MISS EASTY: That is the speed
36A
It is, thats correct, yes.
37
38JUDGE PUGSLEY:
39A
It is, yes.
40
41Q
42
43
limit, is it not?
That is the speed limit?
So I am probably going to take two days to go up, roughly to Newark and then
two days to come back and two days to get to Loughborough. At what point
does that become, or cease to be, continuous cruising?
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1A
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If----
3MR. FOWLES: Your Honour, may I interrupt? It is a little difficult for Mr. Garner
4
in the absence of a specific factual scenario. It would be, in my respectful
5
submission, more helpful for Mr. Garner to speak about this particular case
6
because, of course, if the question is not simply one of distance, then how is
7
Mr. Garner supposed to address that question?
8
9JUDGE
10
11MISS
12
PUGSLEY: Yes, can we just get this clear? Your map, is it on 144?
EASTY: Yes, your Honour.
13JUDGE PUGSLEY: I mean, how often does it show him being in Loughborough or
14
at Newark-on-Trent? When we have these periods, we have got these periods
15
and there do not seem to have been, I mean can we assume these are the only
16
occasions when he was sighted?
17A
These will have been the times when he has been sighted by a member of staff,
18
yes.
19
20Q
21
22A
23
There appears to be two in June at the self-same place. Would that have come
up?
No.
24Q
25A
26
It would just be shown as one sighting?

One dot, yes.
27Q
28
29
Well, can you flush out 144 and 145 into any pattern of how long, how many
trips he made?
30MISS EASTY: Are you aware of that information?

31A
There would be a list of every sighting of Mr. Wingfields boat. Every time
32
was seen by a member of staff, it is GPS linked, so there is a list of every
33
sighting of Mr. Wingfields boat.
34
35Q
36
I have seen that. We have the page, have we not?
37MR.
38
FOWLES: It is 61, I think.
39MISS
40
41MR.
42
EASTY: 61.
FOWLES: It is p.80 of the trial bundle.
43MISS
EASTY: Is this what you mean?
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he
1
2MR.
3
FOWLES: It is p.80 of the trial bundle.
4MISS EASTY:
5A
Yes.
6
7Q
8
9A
10
Is that what you mean?
You have a list there and these were the dates and times upon which this boat
was sighted?
Yes, that is correct.
11JUDGE
12
PUGSLEY: This is very helpful, or may be.
13MISS EASTY: But, again, of course, you would accept that, if the boat had moved
14
in between those dates and one of your staff had not seen it, it would not of
15
course necessarily be a full picture of this boats movements, would it?
16A
No.
17
18JUDGE PUGSLEY: How likely is that?
19A
Obviously, we cant check every kilometre
20
21Q
22A
23
24
of every canal every day.
No, of course, not.

So there are going to be days where boats do move that we wouldnt see them.
The areas are checked on a very regular basis, as you can tell by the----
25MISS EASTY: Sightings.

26A
--by the dates on the sightings.
27
28JUDGE PUGSLEY: What is the difference
29
just being sighted?
30A
Without getting too technical---31
32Q
33A
34
35
36
between the declared CC sighting to
Do not do that.
--we have a hand-held computer that we log all our sightings on. There is a
drop-down menu for all boats that are registered as a continuous cruiser. There
is a button to press to say that it is declared as a continuous cruiser.
37MISS EASTY: I think the Judge was asking you, if you look at the list there, if you
38
have a look on 25th February 2013, it is declared CC sighting, which is the
39
first one here, and then, at 23rd November 2012, it says sighted. What is the
40
difference? Why are they recorded differently?
41A
There is no difference. It is recorded. There is no difference between the two.
42
It is more to highlight to myself as an enforcement officer, to check the history
43
of that boat in question.
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1
2Q
3A
4
So, again, there is no---There is no evidential difference.
5Q
6A
7
--there is no special magic in it?

No, no, absolutely not.
8JUDGE PUGSLEY: Look, there is no hard and fast rule, I think, where you can say
9
this is continuous cruising and this is not, but just looking down that page, I
10
mean, if you want five minutes to look at it, by all means, through to the next
11
page and, looking at that and analysing that, why would you say that is not
12
continuous cruising?
13A
Because, for the term of the licence, despite the one journey to Newark and the
14
two sightings in Loughborough, Mr. Wingfield has only ever been sighted on
15
the Notts & Beeston Canal and Holme Lock or County Hall.
16
17Q
18A
19
And can we tell that from here?

Yes, the codes on the fifth column along?
20MISS EASTY: Flock affected.

21A
Yes, Flock affected, they are
22
rivers and canal.
23
24JUDGE PUGSLEY: Kilometre
25A
So, for instance, RT008.
26
all codes for the kilometres lengths on the
lengths from?
27Q
28A
29
001.
Would be in reference to Trent Bridge as the nearest.
30Q
31
32A
33
So you are saying, looked at there, this is no more than pottering around your
own back garden?
Yes.
34Q
35A
36
As opposed to the longer trips, which are shown on p.144 and 145?
Yes.
37Q
38A
39
And presumably, if we look at 144 and 145, we can marry up, can we---Yes.
40Q
41
42
43A
--how many times he actually went to Newark or did the various trips shown
on 144 and 145? Presumably in June we will be able to see whether he went to
Newark---The actual----
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2Q
3A
4
--once or twice.
Sorry, apologies.
5Q
6A
7
8
No, no.
--the actual sighting for Newark is on 31st July 2012 and it is just the one
sighting, so he was seen once.
9MR.
10
FOWLES: Which page are you on?
11A
12
Sorry, apologies.
13MISS EASTY:
14A
80.
15
80.
16JUDGE PUGSLEY: So RTO4010 is

17A
Sorry RT045, yes, that is Newark,
18
Newark, is it?
yes.
19MISS EASTY: And, again, just for clarification, that RT045010 is Newark from
20
the boundaries of the place to where? What distance does RT045010, how
21
long is that, that stretch? Is it a stretch or is it a point, I suppose, is what I am
22
asking?
23A
It is each kilometre, so the 045 refers to the 45th kilometre of the River Trent.
24
25Q
26
27A
28
29
30
Now, again, moving on, if I may, in terms of you describe a clogging of the
canal in your evidence-in-chief. Do you mean obstructions of the canal?
If people were allowed t moor their boats wherever they pleased there would
be a natural clogging of the waterways. Eventually that would cause an
obstruction of the canal.
31Q
32
33A
34
But is that a problem currently on this canal, that there are so many boats on it
that the canal is itself obstructed by the number of boats?
Not at this moment.
35JUDGE PUGSLEY: Do
36
force?
37A
I believe so, yes.
38
you think it would be if you did not have these rules in
39MISS EASTY: And, in terms of this locality or on the River Trent, as far as you are
40
able, can you estimate again, you may not have this information how many
41
boats are generally on that 90 mile stretch, for example?
42A
I couldnt, I couldnt estimate that at all.
43
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1JUDGE PUGSLEY: It would depend a bit on time of year, would it not?

2A
Yes. Obviously, in the summer there would be more and, in the winter, there
3
would be fewer, but as a general rule, I wouldnt like to say. I couldnt say.
4
5MISS EASTY: Well, maybe I can ask more specifically. In terms of locks, how
6
many locks would boats have to wait for before they could get through,
7
generally, on that 90 mile stretch?
8A
Again, I couldnt say. Without looking it up, I couldnt say.
9
10Q
11
12A
13
So are you aware of any areas of specific congestion on this, again I am just
using it as an example, 90 mile stretch?
No, not at the moment, no.
14MISS
15
EASTY: One moment, please?
16JUDGE
17
18MISS
19
EASTY: Thank you, those are my questions for this witness.
20JUDGE
21
22MR.
23
PUGSLEY: Of course.
PUGSLEY: Thank you very much.
FOWLES: May I just ask one question by way of re-examination?
24JUDGE
25
PUGSLEY: Of course.
Re-examined by MR. FOWLES
26
27
28MR. FOWLES: Just remaining on p.80, Mr. Garner, can you

29
on this page as opposed to RT?
30A
Sorry TE refers to the Nottingham & Beeston Canal.
31
32MR.
33
say what TE means
FOWLES: I see, thank you. Thank you.
34JUDGE PUGSLEY: Forgive me, I know a little bit about canals. I had a small
35
boat, really small, 30 or 40 years ago, but I just want to get to the rationale
36
behind this. If you look at the movement of motor caravans or caravans or
37
tents, of course people can pull up in a layby and sleep overnight. Of course,
38
you get people living there, you have a whole range of problems.
39A
Yes.
40
41Q
42A
43
In terms of sewerage disposal, congestion of the site.

Yes.
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if
1Q
2
3
4A
5
A permanent amenity damage rather than transient movement. I mean, do

similar considerations apply on canals? I mean, is it part of your policy to
avoid people using short stay moorings as a long term residence?
Yes, it is.
6Q
7A
8
9
10
Why?
Due to those issues that you have mentioned previously, if we allow people to
moor where they please for long periods, a lot of the sites dont have the
facilities of a proper permanent mooring site and you----
11Q
12A
13
14
And so sewerage just gets dumped over the side?

Rubbish, yes. Therefore, there is an issue with maintenance of the canal,
clearing the canal etc.
15Q
16
17A
18
19
20
21
Does the existence of a boat moored inhibit the management of the canal in
terms of access to its sides and all the rest of it?
Obviously, where the boat would be moored, you wouldnt be able to get
access to the bankside, so, if boats were allowed to moor freely where they
wished in large numbers, the maintenance of the banks along the canal would
be very difficult, if not impossible.
22Q
23A
24
You have certain long-term mooring sites?

Yes, we do.
25Q
26A
27
28
29
Do they have different facilities from short term ones?

Short term facilities will generally have very little or no facilities, whereas the
long term permanent moorings will have showers, toilets, refuge disposal and
that sort of thing.
30Q
31
32
33A
34
Please do not agree with what I am about to say because it is an invitation for
you to answer a question in your own way in your own manner, not to tick a
box; do you understand?
Yes.
35Q
36
37
38
39A
40
Continuous cruising is a difficult area in which one can stake down definite
propositions, but obviously, if you live in, your boat is moored somewhere in
the Litchfield area, you have a range of canal navigations that you can plug
into.
Yes.
41Q
42
43
You can go to Birmingham and the Black Country, you can go out on the
Shropshire Union, you can go down on the Coventry Canal, you can go on the
Grand Union. You could do a round trip.
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1A
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Yes.
3Q
4A
5
If you are living in Nottingham on a boat, you can also do round trips.
Yes, you can, yes.
6Q
7
8
9A
10
But would you actually preclude somebody who had a more modest area of
going up one week to Newark, possibly a bit more, you can get further than
Newark now?
Yes, you can, yes.
11Q
12A
13
And can go down to Loughborough, can you go beyond Loughborough?

Yes.
14Q
15A
16
17
To?
Without looking, I wouldnt know the exact place. I dont cover that part of
the country, unfortunately.
18Q
19
20
21
22
23A
24
I cannot see why older and those whose health, mental health as well as
physical, might limit them to a smaller journey cannot be said to do continuous
cruising in the way it would be if you were going the Grand Union, joining up
with the Oxford Canal and, you know, going up to the canal up towards
Bristol, Bath, the Kennet & Avon and all the rest of it.
Kennet & Avon.
25Q
26
27A
28
29
30
31
32
I am just a bit worried. I get the drift of what you mean, but I am trying just to
see what lines you would put as moving from one category to another.
If, if the journeys, taking this instance, if the journeys were more frequent and
more varied, you may well look at that and say that is continuously cruising.
As I previously stated, the journey to Newark was a one off. The journey to
Loughborough, although Mr. Wingfield was sighted twice, was a one off. All
of the other journeys have been along that small section of the canal and river.
33Q
34A
35
Running to about, remind me?

Approximately 12km.
36Q
37A
38
12?
12 km.
39Q
40A
41
Kilometres?
Yes.
42MR.
43
FOWLES: Which is seven and a half miles, roughly.
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1JUDGE PUGSLEY: Thank you. Can I now dessert the case and ask if we can just
2
ask ourselves what you actually want on both sides? I mean, do you really
3
want to stop him living there or do you want him to get a residential licence?
4
5MR. FOWLES: We want him either to get a permanent
6
cruise within the requirements of the statute.
7
8JUDGE
9
mooring or to continuously
PUGSLEY: Well, what do you want?
10MISS EASTY: We want either to get a permanent mooring and, if we can get our
11
licence back, and then continuously cruise in the way that CRT want us to.
12
13JUDGE
14
PUGSLEY: But you would not need to if you have a residential mooring.
15MISS EASTY: Again, there is a difficulty. You have heard that part of our
16
pardon me, your Honour. (Miss Easty took instructions) We would also, for
17
the avoidance of doubt, be willing to cruise from Loughborough to Newark,
18
that stretch, not returning within 14 days. We are entirely happy for that. We
19
are entirely happy to continuously cruise if we could get some guidance. If we
20
could get a permanent mooring because, as you know, this gentleman was on a
21
permanent mooring for some 13 years.
22
23JUDGE
24
25MISS
26
EASTY: There was an argument in relation to the----
27JUDGE
28
29MISS
30
PUGSLEY: How did he lose it? Remind me.
PUGSLEY: The Harbour Master pushing him in the canal.
EASTY: Yes, yes.
31JUDGE PUGSLEY:
32
would get three
33
And he said no and he pleaded guilty because he was told he

years, yes, sorry.
34MISS EASTY: Yes, yes, so that is the reason

35
any of those things if there was---36
37JUDGE
38
39MISS
40
PUGSLEY: And what attempts has your client made?
EASTY: In terms of what?
41JUDGE
42
PUGSLEY: Getting a residential mooring.
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why, but we are entirely eager to get
83
1MISS EASTY: In terms of the residential mooring, as you can see from his
2
statement, he says he has applied and tried to get them at (Miss Easty
3
instructions) In his statement, he has made attempts and that is why the
4
shortage of moorings is significant, your Honour. If he could have got a
5
mooring, he would have done to avoid this problem.
6
7JUDGE PUGSLEY: And you say that, if he does
8
to a programme of continuous movement.
9
took
not get it, he is prepared to adhere
10MISS EASTY: To the extent that satisfies CRT. You will see from the bundle as
11
well that his support worker, for example, has asked how far they would like
12
him to go.
13
14JUDGE PUGSLEY: How much
15
source of that money.
16
money does your client get a week and what is the
17MISS EASTY: I will just check, your Honour. (Miss Easty took instructions) We
18
are just working it out. (Miss Easty took instructions) 120 a week, your
19
Honour.
20
21JUDGE
22
23MISS
24
25MR.
26
EASTY: Is that net?
WINGFIELD: I do not understand that.
27MISS
28
29MR.
30
PUGSLEY: That is net, is it?
EASTY: No, how much money do you get a week?
WINGFIELD: 120.
31MISS
32
EASTY: 120.
33JUDGE
34
PUGSLEY: Are you sure that is not a fortnight?
35MISS EASTY:
36
week.
37
38JUDGE
39
40MR.
41
Once a fortnight or once a week? (Miss Easty took instructions) A
PUGSLEY: You narrow boat on diesel?
WINGFIELD: On diesel?
42JUDGE
43
PUGSLEY: Yes.
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1MR.
2
WINGFIELD: Petrol, Sir.
3JUDGE
4
PUGSLEY: Petrol. What do you want?
5MR. FOWLES: Well, one of the difficulties with Mr. Wingfield simply saying that
6
he is prepared to continuously cruise is that, on his own admission, he has in
7
the past refused to give us information about his movements.
8
9JUDGE
10
PUGSLEY: I am sorry?
11MR. FOWLES: He has in the past refused

12
movements, on his own admission.
13
14JUDGE
15
16MR.
17
to give us information about his
PUGSLEY: Yes.
FOWLES: So we would really want him to have a permanent mooring.
18JUDGE
19
20MISS
21
PUGSLEY: But you cannot dictate that, can you?
EASTY: But we would be----
22MR. FOWLES: What we can say is that, if he wants to use the canal or river, he
23
should comply with the conditions that other people have to comply with.
24
25JUDGE PUGSLEY: Yes, but I am fed up to the back teeth of trying cases which are
26
not like this. In one week I had a case where the costs in some cases on one
27
side were well over ten times the amount of compensation and, in a stinging
28
judgment in a case call Piglowska v Piglowski, Lord Hoffmann laid into the
29
courts, to put it bluntly, saying there must be some proportionality between the
30
issue and the amount of costs.
31
32
33
34
35
36
37
38
39
40
41
42
Now, for a moment, may I make it clear I have not reached a view either way.
I should think that is pretty obvious, but the context of continuous cruising is a
wide one. I have every sympathy with the argument, but I have not heard the
defendant on the topic, so I am only giving a provisional view and not a final
one, that you should not try and dodge round the parking meters to secure for
yourself a parking bay all day, but, equally, I am concerned as to what the
other limit on other continuous cruising is. I am a bit rusty, but, I mean, if you
are on the Brecon & Abergavenny Canal, that beautiful canal, there would be a
limit to how far you could continuously cruise. I mean, I cannot remember it,
but it has no access to any other part of the navigation system.
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1
2
3
4
5
6
7
8
9
10
11
12
13
Now, all I am saying is that it is not an easy concept. I am not sneering. I

think we all know what you actually are aiming at, that if you are a sort of
water-bound toad wandering around the lanes, but in this case the canals, of
England, that is perfectly legitimate and I suspect there are some people who
do it, you know, take a year out, early retirement, but I am just concerned as to
whether, even at this stage, there is some room for movement. I think the
defendant would have to really co-operate with the claimant. I do not want to
lay down a schedule. I do not think I have the power to or, if I have the power,
it would be a very wise exercise of discretion, but, I mean, if your client is
prepared to give an undertaking which is enforceable, just like an injunction,
by penal sanctions that he undertakes that he will abide by a schedule of
movement, I have to say I think there might be common sense all round.
14MISS EASTY: Your Honour, for the avoidance of doubt, because, again, this case
15
has wider implications in terms of, as you have said in the opening, that they
16
do not want to set a precedent as it were, we are quite happy to maintain
17
confidentiality of any agreement.
18
19JUDGE
20
21MISS
22
PUGSLEY: Yes, I mean----
EASTY: If that is something that the court would find of assistance.
23JUDGE PUGSLEY: --what I am trying to get at is, say, for example, human
24
situations can vary so much and I do not want to set a precedent that it is not
25
continuous cruising unless you do, you know, like income tax laws, you live in
26
the Channel Islands and you do not want to pay income tax in England, that
27
you are only allowed so many days and all that business. I do not want it to be
28
as rigid as that, but I am just thinking that, overall, I would have thought there
29
was room for negotiation here on both sides.
30
31MR. FOWLES: If your Honour does not want to set a precedent, you can imagine
32
the position the Canal & River Trust is in, that, if we gave Mr. Wingfield a
33
schedule of movements, whether that might be referred to by other boaters as
34
what they needed to do without regard to the particular circumstances of this
35
case.
36
37JUDGE PUGSLEY: Well (a) there could be a confidentiality clause with the
38
judgment, but (b) and in the alternative, in the recital it would surely say
39
continuous cruising in the context of this area.
40
41MISS EASTY: And this
42
personal to him.
43
gentlemans ill health, for example, or anything that is
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1MR. FOWLES: Obviously to lawyers that would all look very well, but, practically
2
speaking, that is not necessarily going to be enough of a protection for the
3
Canal & River Trust and, your Honour, if the court will not give guidance on
4
the meaning of what Parliament says, there is no real reason why the Canal &
5
River Trust should. I mean---6
7JUDGE
8
9MR.
10
PUGSLEY: I regard that as a highly irresponsible statement.
FOWLES: I am sorry, your Honour?
11JUDGE PUGSLEY: I regard that as a highly irresponsible statement. You cannot

12
lay down in concrete what words like this mean. What you can do is, in the
13
recital, surely, to make it absolutely clear that you are dealing with a man of
14
advanced years, you are dealing with a man who has some physical disability
15
and that, in the context of this case, the Board accept that, for this person,
16
continuous cruising would be A, B and C. That would be totally different for a
17
young couple in their mid-thirties who had no health inhibitions, no
18
requirement foreseeable to seek any medical advice. Secondly, it would ignore
19
completely all that legislation in the Equality Act. You have to bear in mind
20
that people are not necessarily terminally ill or, in the alternative, fit for full
21
duties and I think it would be perfectly feasible to take that into account and
22
say This should not be taken as a precedent for what continuous cruising
23
means in all circumstances founded on this case, with this claimant at this
24
age.
25
26MR.
27
FOWLES: My instructions are that the demographic does tend to be older.
28JUDGE
29
PUGSLEY: Sorry?
30MR. FOWLES: The demographic of boaters does tend to be older, so you would
31
not necessarily very often get a position where you would be able to
32
distinguish Mr. Wingfields position, say, from a young family. You know, the
33
demographic of the boaters tends to be at the older end of the scale, if you like.
34
So there would not necessarily be that---35
36JUDGE PUGSLEY: I am not so sure that would necessarily
37
London. Anyway, let us not debate the abstract. If you
38
it with the claimant, you are perfectly entitled not to.
39
40MR.
41
FOWLES: May I take instructions?
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be true in areas of
do not want to discuss
1JUDGE PUGSLEY: Yes. (Mr. Fowles took instructions) Mr. Garner, do sit down.
2
I am not trying to force either of you. I can understand that the last thing you
3
want to do, as a public authority, in effect, a charity limited by guarantee?
4
5MR.
6
FOWLES: Yes.
7JUDGE PUGSLEY: Is to meet another 99 claims, especially if I may say, and I am

8
not being silly, although you may think I am, but I am not intending to be silly,
9
to say that the problems that the Canal & River Trust have may be markedly
10
different in industrial cities like Birmingham and Nottingham and Manchester
11
than they would be in rural areas, on the one hand, but dramatically different in
12
the metropolitan areas, where mooring could be abused tremendously in areas
13
of high tourist visibility and where there would be a far greater incentive.
14
Having regard to the price of property in parts of Chiswick and adjacent areas
15
up the Thames, where you are talking really big money could lead for rents
16
and purchase, it could make houseboats and their leases seem very attractive.
17
It would be monstrously unfair if one opened the door and locked the lock, as
18
it were, to people having an entitlement that would be environmentally
19
detrimental and unfair on other people who very much want moorings but
20
could not afford it. So I fully understand. I mean, I leave it to you. I could
21
envisage a plan.
22
23MR. FOWLES: Your Honour, we have tried to reach a deal, as it were, and we
24
have been trying to reach some accommodation with Mr. Wingfield for a long
25
period of time. You have seen in the trial bundle there are letters going back
26
and forth where we have said, you know, We have a problem with what you
27
are doing.
28
29JUDGE PUGSLEY: Well, I have not heard the defendant on the topic, I want to
30
make that quite clear, but at the moment I can see nothing high handed or
31
arrogant about the approach of the claimant on the correspondence. You know,
32
I am just wondering if there is an accommodation that could be reached. As I
33
say, quite simply, I am worried how you define it is the elephant test, is it
34
not? We can all recognise an elephant, but actually defining or describing one
35
is rather more difficult.
36
37
38
39
40
41
42
43
I do not want to give false hope to you, Miss Easty, but I would take some
persuading that, on what I have heard so far, you could be said to come within
the continuous cruising, but I have not heard you. I have a lot of sympathy
with your client emotionally. I also have to have equal sympathy with the
claimants, who do not want to see a distinction between the two muddled and
fudged so you cannot define it.
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1MR. FOWLES: Well, your Honour, I do not mean to say that the court needs to
2
give definitive guidance in the sense of saying This is how you decide in each
3
particular case what continuous cruising guidance is because the CRTs
4
approach and, in my submission, right approach, is to say Well it is a fact5
sensitive question, but there are a lot of cases in interpreting legislation where
6
the court has been prepared to say This is fact-sensitive, but these are the sort
7
of questions that need to be asked and that is all that I mean when I say that
8
that is what we would be looking for from the court.
9
10JUDGE PUGSLEY: Yes, I think what does
11
client? (Miss Easty took instructions)
12
13MISS
14
EASTY: 52.
15JUDGE
16
17MISS
18
19MR.
20
distinguish this how old is your
PUGSLEY: And his disabilities, ischemic heart disease?
EASTY: Yes.
FOWLES: There are doctors letters in the bundle.
21MISS EASTY: There are two doctors letters. It is described

22
The defendant describes getting dizzy and so forth.
23
24JUDGE
25
26MISS
27
PUGSLEY: And he is in receipt of? (Miss Easty took instructions)
EASTY: Income support allowance and employment support allowance.
28JUDGE PUGSLEY: Is there any support, any benefit

29
disability like the disability living allowance?
30
31MISS
32
PUGSLEY: And does he have that?
35MISS EASTY:
36
only get if
37
No, not disability living allowance, the one that I just said you can
you cannot work.
38JUDGE PUGSLEY: Yes, but you cannot

39
which is you cannot get a job.
40
work for a number of reasons, one of
EASTY: Yes.
43JUDGE
PUGSLEY: I am sorry, I am not being facetious.
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that is payable as a result of
EASTY: Yes, you can only get that if you cannot work.
33JUDGE
34
41MISS
42
in one as severe.
89
1
2MISS
3
EASTY: No, again, I hope I am not.
4JUDGE
5
PUGSLEY: Is he in receipt of disability living allowance?
6MISS EASTY:
7
reason.
8
9JUDGE
10
11MISS
12
It is because he is unable to work as compared to an unemployment
PUGSLEY: Well, is it disability living allowance?
EASTY: No.
13JUDGE PUGSLEY:
14
any benefit---15
Your client thinks it is. (Miss Easty took instructions) Does
16MISS EASTY: He is unable to work. Again, my understanding is that it is because

17
you have to have a medical test, for example, to get the benefit that my client
18
is on. It is not because there is an employment shortage, for example, benefit.
19
It is about his health.
20
21JUDGE PUGSLEY: Whatever it is called, and I think it is about to change again,
22
do not worry about not getting whatever it is now, which I think is disability
23
living allowance---24
25MISS
26
so
EASTY: Yes, it is described----
27JUDGE PUGSLEY: --well whatever it is called,

28
those who are medically unfit to work?
29
30MISS EASTY: Yes, and it is seeking
31
allowance, yes. That is para.2.
32
is it a benefit that is only given to
as income-related employment and support
33JUDGE PUGSLEY: Look, I am not going to put any pressure. If you want ten
34
minutes, but I want to say I think what distinguishes this is the fact the
35
defendant does have a need for some form of base in view of his medical
36
condition.
37
38MR. FOWLES: Your Honour, I do not dispute the defendants medical condition,
39
but I am not sure that it is clearly established in evidence that he needs to avoid
40
continuously cruising.
41
42JUDGE PUGSLEY: Well, I am not saying it is, but I think, if I had severe ischemic
43
condition, I would want to have a GP who was relatively close to me and I
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would not want to be permanently on the move, in the sense of going right
round the country, but all I am saying is you are perfectly entitled to look at the
law and say I do not want to talk to you, perfectly entitled. I would just like,
before you get further entrenched, to consider whether there is some sort of
halfway house. I have indicated only on a provisional view, only a provisional
view----
8MISS
9
EASTY: I do understand, your Honour. I do understand that.
10JUDGE PUGSLEY: --that I would need some persuading to say that your client
11
had complied with the policy hitherto, but I am open minded. I have not heard
12
enough about this to make up my mind.
13
14MISS
15
EASTY: No, your Honour, I accept that.
16MR. FOWLES:
17
past for me
18
May I ask in that case for a five minute adjournment until, say, 20
to take further instructions?
19JUDGE PUGSLEY: Yes. I do not expect you to resolve it today, tonight. I do

20
expect you in five minutes to know whether it is possible, not probable,
21
possible. All I am saying is, gentlemen, I can see myself, and I do not want to
22
get here, establishing a most bizarre precedent which might have more general
23
application, which I would regret, if I cannot hone it down to a very fact24
specific question; in other words, I do not want this cited as the proposition
25
that everyone under Gods earth can clamber up the over-populated area of The
26
Thames.
27
28MISS
29
EASTY: Exactly.
30JUDGE PUGSLEY: Running from Kew Bridge upwards, you know, and I can see
31
this being cited quite inappropriately and, if they took the old boat up to
32
Richmond each Saturday or perhaps every other Sunday, that somehow that
33
would entitle them to moor permanently on a temporary mooring spot. I mean,
34
that would be wholly inappropriate, but, equally, I think one has got to temper
35
it to where one is and also, more importantly, in the context of this case, to the
36
fact that we are not dealing with a young person. Thirdly, the argument of
37
demography that narrow boats are older, well that is probably just how people
38
look when you are young. I will come back in five minutes.
39
40MR.
41
FOWLES: Five minutes, your Honour.
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1JUDGE PUGSLEY: Could that be Greenwich Meantime five minutes, not

2
counsels five minutes, which will mean that the cleaners will have come
3
gone by the time we come back?
4
5MR.
6
and
FOWLES: Thank you, your Honour.

Short adjournment
Recording started late at 16.21.15
7
8
9
10MR. FOWLES: in respect of settlement. However, we will check on certain

11
information overnight and it may be that there will be more room for
12
manoeuvre once we have checked on that information.
13
14JUDGE PUGSLEY: This is very difficult. If I thought I could make up my mind to
15
lay down a schedule of what it constituted, I would let you into the secret. I
16
am genuinely open-minded about it and I am wondering what you are asking
17
me to do. I mean, one way of dealing with it would be to say that he was
18
deemed the sort of language I would use that it was deemed, that, you
19
know, you must limit the time he spends at any one mooring with a specified
20
distance of a specified place.
21
22MISS EASTY: If it may assist the court, your Honour, we are quite happy, in terms
23
of the court powers, because at the moment negotiations are moved and my
24
learned friend is seeking further information, but we are quite happy to submit
25
to a schedule, which we can draw up in the absence of assistance from the
26
claimants, of a schedule of movement to whatever the court requires and
27
submit to that. We are also quite happy not to call any evidence and provide
28
such a schedule for this court to endorse with any kind of, in the preamble
29
which would again assist the court.
30
31MR. FOWLES: Your Honour, with respect, this all does rather beg the question,
32
which is whether movement is what is the test for bona fide navigation and,
33
as I have tried to make clear, Davies says that purpose is the question. So
34
producing a schedule of movements would not really---35
36JUDGE PUGSLEY: If you do not want to settle this case and you are considering
37
you are right, then you are perfectly entitled, however much it costs, to litigate.
38
Whether you are wise to do so is another matter.
39
40MR.
41
FOWLES: Yes, your Honour. Well, your Honour, it is----
42JUDGE PUGSLEY: We are dealing with human people, human beings and their
43
happiness and we are not dealing with a matter that can be susceptible to the
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8
same legal definitions as you might give to whether a transfer of a business

related to appoint of time or a period of time in the Transfer of Undertaking
Regulations. It is not that sort of law, but I do understand your legitimate
concerns that you should not lay down a precedent. I think, whatever happens,
one has to be very careful to make it absolutely clear that this is not laying
down a precedent, it is deciding a case on these particular facts, bearing in
mind the age and relatively poor health of the defendant.
9MR. FOWLES: Your Honour, I do not mean to split hairs, but there is a point here
10
that, if one decided on a schedule of movements as a form of settlement and
11
said Well, this is not setting a precedent because it is in particular
12
circumstances, one would arguably still set a precedent in the sense that one
13
could say This is a matter of movement and not of purpose and, in this case,
14
this is all that needed to happen that, basically the CRT and Mr. Wingfield
15
needed to agree some movements and that was all okay. Now, if the test is
16
one of purpose, it is never going to be okay in a case where someone does not
17
have a genuine purpose of navigation just to agree some schedules of
18
movements with that person, however---19
20JUDGE PUGSLEY: If you do not
21
free to take the view you are.
22
23MR.
24
want to engage in the exercise, you are perfectly
FOWLES: Well, I will----
25JUDGE PUGSLEY: I question how great your

26
and how something like this can backfire.
27
28MISS
29
experience is of human motivation
EASTY: Your Honour, would it assist----
30JUDGE PUGSLEY:
31
bash.
32
I do not think anything is going to assist, but go on, have a
33MISS EASTY: Again, in terms of the courts jurisdiction, as I hopefully made

34
clear, we are entirely happy to provide a schedule either of movement and/or
35
purpose, saying We are going here to do shopping or whatever, in a proper
36
format but to submit to the court through its jurisdiction.
37
38JUDGE PUGSLEY: But the form would absolutely have to be that this cannot be
39
used to gain a fulltime mooring on transient mooring sites by purely artificial
40
arrangements. However, one should accept that people with advancing years
41
may limit the scope of their continuous movement and circumstances may
42
dictate that they have access to regular medical facilities.
43
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1MISS EASTY: And, in terms of that, if the court was minded to have or would find
2
the schedule acceptable, we would however, again, I would make attempts to
3
draft that tonight, fulfilling the concerns I have heard from Mr. Garner and
4
present that to the court and then succumb to that order, if that would assist the
5
court and then call no evidence.
6
7JUDGE PUGSLEY: That must be a matter I think I have to weigh before I can give
8
an answer, but, if you are saying, which you seem to be, I cannot take
9
responsibility for anything as counsel appearing on behalf of the claimant and
10
they are leaving it to you, I am bound to say that is one interpretation of what
11
you said I am bound to say that I think that is somewhat misconceived. All
12
of us have a difficult problem here to balance the human problems that the
13
defendant has with your needs to ensure that some recognition that the
14
defendant has particular difficulties does not lead to just take an example.
15
Say, for example, one has a misfortune to have a child, an adult child who has
16
multiple sclerosis, who may live in a listed building. You may beg the local
17
authority to allow you, in the interests of humanity, to extend your house on
18
the ground floor so that you can accommodate your (statistically it is more
19
likely to be) daughter than your son or either, but whatever, on the ground floor
20
with lavatory, shower and the like. Oh nasty, hard hearted local authority who
21
will not let you do it. Well, actually yes and no, because, once you have built
22
it, you have built it and it is unlikely you can impose any condition about
23
taking it down on the death of that member of the family. You know, it is
24
permanent and it is there.
25
26
27
28
29
30
31
32
33
34
35
36
Now, we do not have anything quite like that, but I fully appreciate it is pretty
near it and then you will have arguments Well, I do not have a heart
condition, but I may get one because I have raised blood pressure and high
cholesterol levels and I am a type 2 diabetic, on you go. I do not think any
order on that basis is going to very much help. I think it has to lay down that
the phrase continuous movement or travel or whatever it is, cruising, has to
be seen in the context of a particular individual and, in this case, the individual
has certain problems and that it is reasonable to construe the context in the
light of his particular needs, which would not apply if anyone was free from
those particular inhibiting health difficulties.
37MR. FOWLES: Your Honour, there is obviously a distinction between the position
38
under the statute, considered apart from Article 8, and then, once one takes into
39
account Article 8, one then has questions of proportionate interference and so
40
on and, in that respect, the particular circumstances of an individual would be
41
relevant, but what I am trying to do is I am trying to establish that, in this case,
42
it would be---43
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1JUDGE PUGSLEY: What you are really trying to establish

2
OMalleys decision on the particular facts of that case
3
everybody else.
4
5MR. FOWLES: I am not, your Honour.
6
simply a matter of duty to---7
is his Honour Judge

binds me and binds
I said that it does not bind you. It is
8JUDGE PUGSLEY: Well, that is how it is coming

9
facts of this case, which are rather different.
10
across. I am dealing with the
11MR. FOWLES: Well, your Honour, I am arguing, I would

12
particular case and that is what I am here to do.
13
wish to argue this
14JUDGE PUGSLEY: Well, it is clear that you wish to argue this particular case, but,
15
if you think you are going to establish a general principle favourable to the
16
Inland Waterways Board, as they used to be called, you may be right or you
17
may be wrong, you take that risk. But, if you fail, it becomes a wider
18
application.
19
20MR. FOWLES: Well, if we believed that a precedent was set that was
21
unfavourable, we would seek to appeal it, obviously, so that is obviously
22
that we recognise.
23
a risk
24JUDGE PUGSLEY: And I think, if I were you, I would have a word with the
25
person who sits behind you in the light blue tie. I think this is a case, if I may
26
say so, where some overnight consideration would be very wise. I do not want
27
you to think, either of you, that I have a fixed, firm resolve. At the moment, I
28
have that terrifying difficulty that affects some judge sometimes that I think
29
there is justice on both sides. This is a strange case. I am sorry but being
30
addressed by you as though I was a major going nowhere and you are a young
31
subaltern with a field Marshals baton in your hand is not the most, is not in
32
fact the wisest choice. I do not think this is a case that is going to the House of
33
Lords or even the Supreme Court. I think this is a case that ultimately is in
34
difficulties because it founders in the middle.
35
36MR. FOWLES:
37
position.
38
Your Honour, I am just trying to make submissions and explain our
39JUDGE PUGSLEY: Yes. I am

40
just make submissions.
41
42MR.
43
asking you to give thought to the ultimate result, not
FOWLES: Yes, well of course we are doing that, your Honour, thank you.
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1JUDGE PUGSLEY: Yes, okay.

2
where you all come from.
3
4WITNESS:
5
6MISS
7
8MR.
9
See you tomorrow. Can I suggest I do not know
Lincoln.
EASTY: London for me.
FOWLES: London.
10MISS
11
WRIGHT: Milton Keynes.
12JUDGE
13
PUGSLEY: London back garden?
14FEMALE
15
16JUDGE
17
SPEAKER: (inaudible)
PUGSLEY: You, Sir?
18MALE
19
SPEAKER: Northamptonshire, your Honour.
20MALE
21
SPEAKER: Birmingham, your Honour.
22JUDGE PUGSLEY:
23
Midlands. And
24
25MR.
26
WINGFIELD: Nottingham, Sir.
27JUDGE
28
29MR.
30
PUGSLEY: Nottingham?
WINGFIELD: Nottingham, yes.
31JUDGE PUGSLEY:
32
and I would not
33
34MR.
35
Would it be possible if we said that you could all meet at ten

sit until 10.30?
FOWLES: Yes, your Honour, I would be happy to do that.
36JUDGE
37
38MR.
39
Beautiful Brom, city of opportunity, the Venice of the

you, Sir?
PUGSLEY: Are you staying overnight?
FOWLES: I am staying overnight.
40MISS
41
EASTY: There would be no problem with that.
42JUDGE
43
PUGSLEY: You are coming from London?
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1MISS EASTY: I did this morning and I was

2
be here at the convenience of the CRT.
3
in here in good time at nine, but I can
4JUDGE PUGSLEY: Well, can I leave it to you? I will sit at 10.30, but I think it
5
would help if you were here before because I would like, if it fights, as it is
6
perfectly entitled to, my private guess, as it will, I would like to give a decision
7
tomorrow rather than go into reserved decision time.
8
9MISS EASTY: Your Honour, thank
10
schedule in any event.
11
12JUDGE
13
14MISS
15
16MR.
17
you. As I said, I will endeavour to write a
PUGSLEY: Yes. Who is staying overnight?
EASTY: I am, your Honour.
FOWLES: Yes, I am.
18JUDGE PUGSLEY: Oh well, if you find any good places in Chesterfield,

19
know. I have been sitting here for over 20 years. Are you staying in
20
Chesterfield?
21
22MISS
23
24MR.
25
EASTY: Yes.
FOWLES: Yes, your Honour. I am staying a little outside the centre.
26JUDGE
27
PUGSLEY: All of you from London?
28MR. FOWLES:
29
in London.
30
31MISS
32
35MISS
36
I am actually living in Preston at the moment, but my chambers is
EASTY: That is tough.
33JUDGE
34
PUGSLEY: It will be a social experience for you to stay in Chesterfield.
EASTY: I have spent quite a long time here in the past as well. I like it.
37JUDGE PUGSLEY: I look

38
life in Chesterfield.
39
forward to hearing your incredibly interesting views of
40
41
42
Recording terminated
Adjourned until 10.30 tomorrow morning
43
__________
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let me
97

CaRT V Wingfield Day 1)

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CaRT V Wingfield Day 1)

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IN THE CHESTERFIELD COUNTY COURT

Examined by Mr. FOWLES

Prepared without access to case documents

Recording started late at 10.28.31

3JUDGE PUGSLEY: Yes, I have an opening skeleton argument on behalf of the

FOWLES: Your Honour, do you have my authorities bundle as well. There

PUGSLEY: Yes, index to claimant.

15JUDGE PUGSLEY: I do not think I extend

to a bundle, but I do have defendants

18MISS EASTY: Yes, I think the other one will be at Nottingham.

FOWLES: It is the only one I have done.

28JUDGE PUGSLEY: And your defendants skeleton

PUGSLEY: Yes, fine. Yes?

Well, you set it out pretty well in your skeleton argument, if I

argument equally is the only

9JUDGE PUGSLEY: No. Can you just help me as to one

thing? I have various

It is a template, you would say, of how a consultation could

32MISS EASTY: More that the results of the consultation

is something that should

The defendant I think this is uncontroversial lives on a boat called The

27MISS EASTY: Your Honour, I hope

we will be able to agree those maps, but I have

PUGSLEY: Well, there is a map at SG1.

FOWLES: Sorry, which page, your Honour?

PUGSLEY: Yes, okay. If we look at SG1 at 45205, yes?

PUGSLEY: Page 20.

FOWLES: Yes, your Honour.

you any authorities that you would like to suggest that

bias and apparent

but the eye of the well informed beholder, not of

PUGSLEY: Sorry, I missed that. You dropped your voice.

29MISS EASTY: I think there is a very real possibility, whichever

way it goes, that

PUGSLEY: Are you legally aided?

PUGSLEY: Have a what?

EASTY: I am talking about you having had----

1JUDGE PUGSLEY: I acted for British

EASTY: I am not trying to cause----

Waterways Board over 20 years ago, at the

Well, it looks as though your client is just trying to put this

EASTY: No, not at all.

EASTY: Your Honour, I am really seriously not trying to delay this.

PUGSLEY: I do not take it personally.

PUGSLEY: Yes, but that is for me to say, is it not?

EASTY: Yes, well I can also say that I am----

I am not suggesting that you are acting unprofessionally, I

PUGSLEY: Yes, certainly.

EASTY: Thank you, Sir.

PUGSLEY: Yes, but she ought to have time in which to do so.

FOWLES: Yes, but exactly.

4JUDGE PUGSLEY: In fairness,

let me say to Miss Easty, I raised it and I think you

EASTY: That is all I am asking for.

EASTY: That is all I am asking for at this stage.

EASTY: I will take a few minutes if I may.

PUGSLEY: Yes, okay, half past.

PUGSLEY: and I suspect a lot earlier.

29MISS EASTY: Then I think

EASTY: Thank you.

my client finds that reassuring, so I do not need to

FOWLES: May I hand these up?

PUGSLEY: Yes, okay.