References in this Skeleton Argument in square brackets are references to the Trial
Bundle/Tab/Page (as appropriate) and references in square brackets to Bundle LA are
references to the appropriate tab within the Defendant’s Legislation and Authorities Bundle.

1. This Skeleton Argument is filed on behalf of the Defendant, the Canal & River Trust
(“the Trust”) in respect of the trial of this matter, listed for 4 days (including ½ day’s
reading time) in a 5 day window commencing on 15th May 2017.

2. The important issue in this matter, from the Trust’s perspective, is the meaning of the
phrase ‘main navigable channel’ as used in British Waterways Act 1971 (“the 1971
Act”) [LA/1] in particular section 4.

3. A system of registration for pleasure boats on ‘river waterways’ was introduced by the
1971 Act, section 5 of which provides (as relevant):

“It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway
unless a certificate, in this Act referred to as a “pleasure boat certificate”, in relation to
the pleasure boat is then in force …” [Underlining added for emphasis].

4. A “river waterway” is defined in section 4 of the 1971 Act as the ‘main navigable
channel’ of the rivers listed in Schedule 1 of the 1971 Act. The Claimant contends that
the registration requirements only apply to the main navigation fairway in the centre of
the rivers, so his vessel, which was moored at the side of the main channel of the River
Trent escaped any registration/licensing requirements.

5. The Trust contends this is misconceived: upon the proper construction of the 1971 Act
‘main navigable channel’ means the main channel of the river from bank to bank, but
not other areas forming part of the inland waterway, such as tributaries, cuts,
backwaters, inlets et cetera.


6. The Claimant acts in person with the assistance of a litigation friend, Mr Nigel Moore,
who has been granted rights of audience for the purposes of this matter pursuant to
an Order of Chief Master Marsh [A/59-60].

7. The Defendant is represented by the author, Christopher Stoner QC of Serle Court, 6
New Square, Lincoln’s Inn, London WC2A 3QS; Tel 0207 242 6015; e-mail instructed by Shoosmiths LLP, 1st Floor, Witan Gate House,
500-600 Witan Gate West, Milton Keynes, MK9 1SH; Ref: Lucy Barry; Tel 03700 868


8. Included within the 4 day time estimate is ½ day’s reading time: [A/58].

9. It is recommended the following documents are read:

(1) The pleadings in [A/1]. Although the Particulars of Claim are marked as a ‘draft’
they were consented by the Trust pursuant to paragraph 3 of the Order of Chief
Master Marsh dated 23rd March 2016 [A/2/54].

(2) The Letter of Shoosmiths dated 8th December 2016 trying to narrow issues by
essentially limiting the trial to the point of construction of ‘main navigable channel’
[A/4/73] and the response of the Claimant dated 3rd January 2017 rejecting the
suggestion [A/4/77-9].

(3) The witness statements in Bundle B1. It is not recommended that the exhibits are
considered at this stage (unless the Court feels it is necessary to understand what
a witness has said at any particular point) as they can be explained in submissions,
save that the Trust does ask the Court to read the various documents served on
the vessel/sent by the Trust prior to the removal of the vessel: [B2/12 – 32].

10. The Court will be taken, as needed, to the other documents in the bundles during the
course of argument. The court should be aware, however:

(1) That the documents in Bundle E are documents that the Claimant has only sought
to introduce recently and were not included within the disclosure provided for by
Chief Master Marsh’s Order [A/2/56]. The Trust does not agree with their inclusion.

(2) A number of the documents disclosed by the Claimant, included in Bundle C
[C/5/17 - 42 and C/16/95-106], are (on the Trust’s case) inadmissible, being
extracts from Hansard. The effect of Pepper v Hart is discussed later in this
Skeleton Argument.

11. It would also be useful for the Court to be familiar (from the LA Bundle) with the
following legislation in advance of the hearing:

(1) Transport Act 1962, sections 1,10 & 43 [LA/6];
(2) Transport Act 1968, sections 104 to 115 & schedule 12 [LA/7];
(3) British Waterways Act 1971, Part II (sections 4-12) [LA/1];
(4) British Waterways Act 1983, sections 4, 5 & 8 [LA/4];
(5) British Waterways Act 1995, section 17 [LA/5].

12. The Claimant has also placed some reliance on a video disclosed relating to the day
his vessel, Three Wise Monkeys, was seized by the Trust. Pursuant to paragraph 7(2)
of the Order of Chief Master Marsh dated 1st September 2016, the Trust suggests that
the Court consider the following elements of the video entitled ‘Corrupt Criminal
Nottingham Police Farce Sergent (sic) 2363 S Brookes’:

(i) 00:00 – 13:15 : as to general demeanour.
(ii) 16:20 – 17:20 : Constable’s Oath.
(iii) 21.00 – 24:30 : Discussion about sums
(iv) 27:10 – 28:00 : Discussion about sums

(v) 31:25 – 33.00 : Discussion about sums
(vi) 33:53 – 35:50 : Discussion about sums (including ballpark figure)
(vii) 39.33 – 40.22 : Discussion about sums
(viii) 47.49 – 48.35 : Discussion about sums

Background Summary

13. The Trust is the statutory successor to the British Waterways Board. It is a charitable
body and the navigation authority for approximately 3135km of inland waterways in
England and Wales.

14. Those inland waterways include, as relevant to this action, sections of the River Trent
which was designated as a ‘river waterway’ by section 4 and Schedule 1 of the 1971
Act [LA/1]. An extra section of the River Trent was designated a ‘river waterway’
pursuant to section 36 of the British Waterways Act 1974 (“the 1974 Act”) [LA/2].

15. Section 4(1) of the 1971 Act provides:

“This Part of this Act applies to the main navigable channel of each of the inland
waterways specified in Schedule 1 to this Act which channel so specified is in this Act
referred to as a “river waterway”.”

16. Section 5 then provides for a system of licensing/registration of pleasure boats on the
‘river waterways’. In full the section states:

“(1) It shall not be lawful to keep, let for hire or use any pleasure boat on a river
waterway unless a certificate, in this Act referred to as a “pleasure boat certificate”, in
relation to the pleasure boat is then in force or unless there is then in force in relation
to it a licence issued by the Board allowing the use of all inland waterways without
further payment.

[2] Any person who contravenes subsection (1) of this section shall, for each offence,
be liable to a fine not exceeding twenty pounds and a daily fine of two pounds.”

17. Section 6 of the 1971 Act provides for details needed for registration and section 7
provides for charges, which section was subsequently amended by section 4 of the
British Waterways Act 1983 (“the 1983 Act”) [LA/4]. The remaining provisions of Part
II of the 1971 Act all relate to the registration of pleasure boats on “river waterways”.

18. ‘Pleasure boats’ are broadly defined, in section 3 of the 1971 Act (in a definition which
is consistent throughout the various British Waterways Acts), to include:

“… a yacht, launch, randan, wherry, tender, skiff, gig, dinghy, shallop, punt, canoe,
float or other ship, boat, vessel, or craft (including amphibious craft) but does not
included a vessel being used solely as a tug or for the carriage of goods or a houseboat
or a mooring stage or a pontoon.”

19. The Claimant’s vessel, ‘Three Wise Monkeys’ was moored on the side of the River
Trent at Farndon Ferry, Near Newark. A photo of the vessel is at [B2/1/20].

20. The vessel, when known as ‘Grandma Molly’, had the benefit of a ‘pleasure boat
certificate’ (which is also a ‘relevant consent for the purposes of s.17 of the British
Waterways Act 1995 – “the 1995 Act”) [LA/5] obtained by the Claimant from the Trust’s
statutory predecessors, the British Waterways Board (“BWB”), which had expired on
30th June 2011. It has had no pleasure boat certificate or other form of ‘relevant
consent’ since.

21. After a letter was sent to the owner of the land by BWB seeking confirmation of the
owner of the vessel (to which no response was received), the Trust subsequently
served at least seven notices/letters on the vessel and/or by post to the last address
held by the Trust for the Claimant, who was the last registered owner (The address is
the same as given by the Claimant in his witness statement [B1/1/12]. These
communications are detailed in paragraph 8 of the Amended Defence [A/1/11-12] and
copies appear at [B2/1/12-27]. The essence of the letters/notices was that the vessel
was unlicensed; requested the Claimant to communicate with the Trust and to licence
the vessel and, if it were not licensed, that it would be removed pursuant to the Trust’s
statutory powers.

22. There having been no response at all from the Claimant to any of the seven
communications, which the Claimant alleges he did not receive, save for one (although
a photograph from inside the vessel show documents served on the vessel inside it

[B2/1/29] and the Claimant has a letter from the Trust at Newark Marina on the day the
boat was seized) the Trust proceeded to remove the vessel from the River Trent
pursuant to its powers contained in section 8 of the 1983 Act [LA/4]. Section 8 provides
(as presently relevant):

“(1) … ‘relevant craft’ means any vessel which is sunk, stranded or abandoned in any
inland waterway or in any reservoir owned or managed by the Board or which is left or
moored therein without lawful authority and includes any part of such a vessel.”

[2] The Board may remove any relevant craft after giving not less than 28 days’ notice
to the owner of the relevant craft stating the effect of this section.”

[Underlining added for emphasis]

23. In circumstances in which s.5 of the 1971 Act provides it shall not be lawful to keep or
use a vessel in a ‘river waterway’ without a ‘pleasure boat certificate’, the Trust
maintains the vessel ‘Three Wise Monkeys’ was unlawfully on the River Trent and it
was entitled to exercise the powers contained in s.8 of the 1983 Act.

24. It is the Trust’s case, consistently with the seven aforementioned communications, that
the Trust removed ‘Three Wise Monkeys’ from the River Trent as it was not licenced.
It did not remove the vessel from the River Trent because of arrears of licence fees
(namely the fees for the pleasure boat certificates that should have been obtained from
1st July 2011). No licence arrears were mentioned in the seven communications.

25. The 1st relevant contact between the Trust and the Claimant occurred on 27th January
2015, after the vessel had been removed from the river and put on a lorry. The
Claimant attended Newark Marina with a number of others. This can be evidenced in
the video evidence disclosed by the Claimant.

26. Pursuant to section 8(3) of the 1983 Act the Trust is entitled to recover all its expenses
incurred in removing and storing the vessel. It is accepted by the Trust (see, for
example paragraph 52 of the Amended Defence [A/1/24] – the reference in that
paragraph to having previously been admitted being a reference to the originally
pleaded defence) those expenses do not include licence arrears.

27. The costs of removal were approximately £6174.80: see the breakdown of costs at
[B2/1/48] – ignoring legal costs and storage costs not incurred as at the date of
removal. The costs of storage subsequently totalled £456: see also [B2/1/48] and legal
costs were incurred in Nottingham County Court: [B2/1/45].

28. As was clearly and correctly set out in a letter from the Trust’s solicitors (written before
the legal costs were incurred) dated 10th March 2015 [B2/1/41] upon payment of the
removal and storage costs (£6630) plus any additional storage costs accruing at the
rate of £45 per week + VAT, the Claimant was entitled to the return of his vessel
pursuant to section 8 of the 1983 Act.

29. That letter also correctly identifies that “in addition” (but separately from the sums
which would entitled the Claimant to the return of his vessel) the sum of £1685.20 was
payable in arrears of licence fees.

30. Unfortunately in subsequent correspondence, and mistakenly, the sums sought for the
return of the vessel were stated to include the licence arrears: see, for example:
[B2/1/48]; [B2/1/55]. Ultimately the Claimant paid all the sums sought less the legal
costs: a total of £8176 (although £8179.80 was received: [B2/1/61]).

31. The Claimant accordingly paid the costs of removal and storage and also licence
arrears before his vessel was returned. The sum was paid under protest: [B2/1/57].

32. In respect of the costs Order the Claimant appealed to the County Court in Nottingham
where his appeal was dismissed. He was ordered to pay an additional £3075.10 costs
to the Trust: [D/5/73] He has appealed (as a second appeal) to the Court of Appeal
which dismissed his application on paper [D/6/74]. As it pre-dates the recent rule
change, an oral hearing has been sought.

33. In any event the Claimant owes the Trust licence arrears, pursuant to section 5(2) of
the 1983 Act. In addition the Claimant owes costs of £7575.10 which are recoverable
as expenses of the removal of the vessel pursuant to section 8 of the 1983 Act.

34. However the Trust accepts that it was mistaken in seeking the licence arrears as a
condition of recovery of the vessel.

35. Mistakenly seeking recovery of the licence arrears has caused a raft of legal issues in
this case as the Claimant has alleged illegal distraint: the Trust sought to remove them
as issues, in circumstances where sums were due and owing to it from the Claimant

in any event which had not been paid, and wrote an open letter to that effect: [A/4/73].
This would have had the effect of essentially reducing this trial to the issue of the
meaning of ‘main navigable channel’, which would have avoided the necessity of most
of the evidence and considerably shortened the hearing. The Claimant rejected the
proposal [A/4/77-79].


36. The principal issue is the meaning of ‘main navigable channel’ as the term is used in
the 1971 Act.

37. The second issue, identified from paragraph 30 of the Amended Particulars of Claim
[A/1/8] and Reply [A/1/51-2] is whether the Claimant’s Human Rights were breached,
as it is alleged the service of a s.8 notice and subsequent removal of the vessel from
the River Trent were disproportionate when the Trust ought to have pursued a
monetary claim for licence arrears. The Trust’s position is this is largely an academic
argument in circumstances where the vessel was returned before the commencement
of these proceedings; and

38. The third issue, identified from paragraph 30 of the Amended Particulars of Claim
[A/1/8] and Reply [A/1/51] is whether the Trust acted in breach of the Statute of
Marlborough or otherwise illegally when seeking licence arrears. Given no damage
can be established, the Trust’s position is again this is largely an academic argument.

39. It is right, before continuing, to draw the Court’s attention to the recitals to the Order of
Chief Master Marsh dated 1st September 2016 [A/2/55-56]. The Trust’s stance at the
CMC had been that the issue as to the meaning of ‘main navigable channel’ was an
important one to the Trust on which it wished to have a High Court determination.
However the other matters were suitable for the County Court. Having agonized over
the decision, on balance, the Chief Master determined not to split the proceedings and
asked the author to include the recitals in the Order (which he subsequently approved).

Meaning of ‘main navigable channel’

40. The phrase appears in s.4 of the 1971 Act [LA/1] which is cited above.

41. S.4(1) includes the defined term of ‘inland waterway’ (itself defined in s.3): if that term
is included in full (ignoring canals for present purposes) s.4(1) of the 1971 Act provides:

“This Part of this Act applies to the main navigable channel of each … inland navigation
belonging to or under the control of the Board and includes any works, lands or
premises belonging to or under the control of the Board and held or used by them in
connection with such … inland navigation specified in Schedule 1 to this Act which
channel so specified is in this Act referred to as a “river waterway”.

42. The remaining provisions of Part II of the 1971 Act provide for the registration/licencing
of ‘pleasure boats’. As previously identified the definition of a pleasure boat is very
wide: it includes, for example, canoes and skiffs, which would henceforth have to be
registered if it were to be kept, let for hire or used in the ‘river waterway’.

43. The purpose of Part II of the 1971 Act was to vest in the British Waterways Board
power to regulate pleasure boats on the river waterways. Prior to the 1971 Act the
‘river waterways’ were ‘free rivers’, namely they had public rights of navigation which
entitled, maintaining the example, a canoe or skiff owner to take his boat to the river,
put it on the river and paddle about without charge.

44. The preamble to the Act provides some guidance. This may be considered by the Court
when construing the Act: see Craies on Legislation (11th Ed, 2017) [LA/15] at
paragraphs 26.1.2 – 26.1.4.

45. The preamble to the 1971 Act provides:

“And whereas it is the duty of the Board under the Transport Act 19621 and Transport
Act 1968 (inter alia) to provide to such extent as they may think expedient services and
facilities on the inland waterways owned or managed by them:

And whereas it is expedient that the Board should be empowered as in this Act
provided to regulate the use of pleasure boats and houseboats on certain of the inland
waterways of the Board and to make charges therefor.”

The reference here is to sections 10 and 43 of the Transport Act 1962 [LA/6], sub-section 43(8) of which
provides that the services and facilities referred to in subsection 43(3) include the use of any inland waterway
owned or managed by them by any ship or boat. ‘Inland Waterway’ was defined in section 92 as including ‘every
such waterway whether natural or artificial’. Section 43(2) protected public rights of navigation exercisable free
of charge.

46. The preamble informs that the Board is to be given:

(1) Power to regulate pleasure boats on certain of the inland waterways; and

(2) Power to raise revenue, by being empowered to charge.

47. This ties in with the key regulating provision, namely section 5 of the 1971 Act which
has been cited above but deserves to be recited again:

“It shall not be lawful to keep, let for hire or use any pleasure boat on a river waterway
unless a certificate, in this Act referred to as a “pleasure boat certificate”, in relation to
the pleasure boat is then in force or unless there is then in force in relation to it a licence
issued by the Board allowing the use of all inland waterways without further payment.”

48. This language is consistent, especially in the context of the Act, with vesting in the
Board regulation through registration of any pleasure boat (from a canoe to a much
larger vessel) that is kept, let or hire or used in the main channel of the river in question.

49. It is notable that the regulation through registration applies to vessels ‘kept’ in the river
waterway: if, as the Claimant suggests, ‘main navigable channel’ means the main
navigation fairway, it is extremely difficult to see how vessels would be ‘kept’ (as
opposed to ‘used’) in that main navigation fairway.

50. The qualification of ‘main navigable channel’ simply means that backwaters,
tributaries, inlets and the like, which may well be navigable, especially when one
considers the definition of ‘pleasure boat’ includes small craft such as canoes and skiffs
are outside of the registration requirements. The distinction between the main channel
and backwaters is not an illusory one: c.f., for example, Sim E Bak v Ang Yong Haut
[1923] A.C. 429 at 433-4 [LA22] and Wisdom’s Law of Watercourses (6th Ed, 2011)
at para 6-05 [LA16].

51. Restricting regulation to simply the main channel avoids considerable issues such as
to whether the river was, at that point, the relevant river, as opposed, for example, to
a separately named tributary and also whether public rights of navigation extended to
those, tributaries, cuts inlets et cetera: see Wisdom’s Law of Watercourses (6th Ed,
2011) at para 6-06 [LA/16].

52. The whole context of registration, for regulation and revenue, is frankly a nonsense if
it is restricted to a potentially tiny part of the river, namely the main navigation fairway:
furthermore the drafting would have been different – Parliament could and would have
simply providing that a vessel ‘using’ the main navigation fairway had to be

53. Furthermore, section 9 of the 1971 Act [LA/1] makes provision for the name and
number of the vessel being conspicuously painted or otherwise displayed on the
vessel, including on all unpowered pleasure boats (see subsection (2) and also
pleasure boats owned or used by the Scouts or Girl Guides). A fine is provided for if
the pleasure boat is not so marked: indeed it is an offence of strict liability (see
subsection 4).

54. It is suggested these provisions make perfect sense when applied to a registration
scheme applicable to the entirety of the main channel of the river, bank to bank. Any
vessel is immediately identifiable and, if it is doing something wrong, the Board (and
now the Trust) will have the ability to contact the owner (pursuant to the requirements
of section 6 of the 1971 Act) to rectify any misdemeanour.

55. It is a nonsense, as the Claimant’s case pre-supposes, that a vessel only need be so
marked (and indeed registered) if it goes into the main navigation fairway. Parliament
cannot have intended such an unworkable scheme (given the inclusion of strict liability
offences) where the exact boundaries of the main navigation channel are likely to be
subjective, or as a minimum will be very difficult to identify.

Assistance from outside the 1971 Act?

56. The Claimant appears to place reliance, perhaps significant reliance, on the fact the
term ‘main navigable channel’ was also used by Parliament in the Transport Act 1968
(“the 1968 Act”) [LA/7] which was a Public Act.

57. As the Trust understands the Claimant’s case, he asserts that the main navigable
channel as used in 1968 Act equates to the main navigation fairway. However that is

58. Before describing why, it is relevant to note that the term as used in the 1968 Act is of
little assistance in construing the term as used in the 1971 Act in circumstances where
there has been no judicial ruling on the term and there being no other event bearing

on the meaning of the term which would invoke the ‘Barras principle’: see Bennion on
Statutory Interpretation (6th Ed, 2013) at section 210 (pages 549 – 554) [LA/17].

59. However, in any event, the term is used in Schedule 12 of the 1968 Act [LA/7] in
identifying the ‘Cruising’ and ‘Commercial’ Waterways.

60. It is notable that ‘Cruising’ and ‘Commercial’ Waterways (as explained in a moment)
include the various canals for which the Trust is responsible, not simply the former river
elements of their undertaking, including the ‘river waterways’.

61. Pursuant to s.104 of the 1968 Act the inland waterways comprised in the undertaking
of BWB were divided into ‘cruising’ or ‘commercial’ waterways or ‘the remainder’.
Pursuant to s.105 BWB (and now the Trust) were statutorily obligated to maintain the
commercial waterways in a suitable condition for commercial freight-carrying craft and
cruising waterways for use by cruising-craft.

62. The dimensions of the craft are provided for by section 105(2) of the 1968 Act [LA/7],
principally by reference to the type of craft that used the waterway in the 9 months
before 8th December 1967.

63. The Claimant’s argument appears to equate to BWB (and now the Trust) being
obligated to maintain the main navigation fairway alone (as he contends that is the
meaning of main navigable channel), the consequence of which is that it has no
statutory obligation to maintain the main navigation channel, namely the waterway
from bank to bank.

64. However that is not a fair and proper reading of Schedule 12 and the associated
provisions from the 1968 Act. Indeed, given that the canals are included within the
Schedule 12 lists of ‘commercial’ and ‘cruising’ waterways, the Claimant’s argument
surprisingly contends that the Trust has no statutory duty to maintain the edges of the
canals, including canal walls (until, perhaps, their condition is so bad it poses a threat
to what the Claimant contends is the main navigable channel because of, for example,
the danger of collapse: although, even then, the duty would be complied with on the
Claimant’s case by simply removing collapsed material to ensure a navigation fairway
is maintained).

65. The Claimant’s contentions regarding the meaning of ‘main navigable channel’ as it is
used in Schedule 12 of the 1968 Act are not a fair and proper construction of the term:

(1) The statutory obligation of maintenance imposed by s.105, applies to ‘commercial’
and ‘cruising’ waterways, which pursuant to section 104 and Schedule 12 are the
listed ‘main navigable channels’;

(2) No-where is the maintenance obligation limited to dredging: rather the obligation is
to maintain the ‘main navigable channel’, including the ‘main navigable channel’ of
the canals comprised in the Trust’s undertaking;

(3) It is suggested the natural reading of this phrase, in the context of the obligation,
is to maintain the main channel from bank to bank, not simply the navigation fairway
in the centre of the river or the canal and to maintain it for use by craft of the
requisite size depending on the classification of the waterway;

(4) The maintenance obligation will extend well beyond the act of dredging: it will
involve, for example, critically and importantly on artificial waterways maintenance
of water levels. It will also involve matters such as maintenance of infrastructure
and control of vegetation. Further in rivers, the movement of sediment means that
dredging has to be beyond the main navigation fairway in any event.

66. A real window onto the meaning of ‘main navigable channel’ is that s.104 and s.105 of
the 1968 Act [LA/7] have to be considered in light of s.107(1) of the 1968 Act, which
adopts the terms ‘commercial waterways’ and ‘cruising waterways’ and, accordingly,
reference to ‘main navigable channel’ as that term is used in Schedule 12.

67. S.107 of the 1968 Act amends the general duty imposed on BWB (and now the Trust)
by s.10 of the Transport Act 1962 (“the 1962 Act”) [LA/6] in the following manner:

“The duty of [BWB] under sub-section (1) of the Act of 1962 to provide services and
facilities on the inland waterways owned or managed by them shall extend only to the
commercial waterways and cruising waterways.” [Underling added]

68. This power, applicable to the ‘main navigable channel’ because of the definition of
‘commercial waterways’ and ‘cruising waterways’ in Schedule 12 of the 1968 Act is
plainly appropriate if those waterways are the whole of the main channel from bank to
bank and wholly inappropriate if the ‘main navigable channel’ is in fact limited, as the
Claimant contends, simply to the main navigation fairway.

69. It is also relevant to note section 115(1) of the 1968 Act [LA/7] which provides:

“(1) In sections 105 and 112 of this Act –

(a) References to any right of navigation over a waterway or canal include references
to any right to use or keep any vessel or craft on the waterway or canal.”

Section 105, which imposes the maintenance obligation, does not use the term
‘navigation’ per se. However it does refer to the obligation of securing the waterways
for public use for suitable craft, which implicitly is a reference to navigation and was
plainly intended to refer not simply to using vessels, but also to ‘keeping them’ on the
waterway. Again this is wholly consistent with the Trust’s contention that ‘main
navigable channel’ means from bank to bank and wholly inconsistent with the
Claimant’s contention of it only referring to the main navigation fairway.


70. The Claimant places reliance on the fact ‘main navigable channel’ in byelaw 19 of the
General Canal Byelaws 1965 [LA/9] was used to mean main navigation fairway. That
is accepted. In context it must have such a meaning.

71. However, whilst emphasising the importance of context in issues of construction,
Byelaw 19 does not dictate the meaning of the term as used in the 1971 Act (or indeed
the 1968 Act).

72. Furthermore, in respect of byelaws, byelaw 3 of the 1975 Byelaws [LA/11] and byelaw
3 of the 1976 Byelaws [LA/1976] provide some (limited) suggestion the draftsman was
well aware that pleasure boat certificates would be granted on a river waterway (from
bank to bank) not simply on the navigation fairway.

Reliance on Select Committee Minutes

73. It appears the Claimant seeks to rely upon Select Committee Minutes/Hansard to
assist in construing the phrase ‘main navigable channel’: see [C/5/17 – 40] and
[C/16/95 – 106]. Reliance on the Minutes is impermissble.

74. The rule in Pepper v Hart [1993] AC 593 [LA/23] is that reference to Parliamentary
materials can be permissible only where three conditions are met, as set out by Lord
Browne-Wilkinson at p.640B-C:

“I therefore reach the conclusion, subject to any question of Parliamentary
privilege, that the exclusionary rule should be relaxed so as to permit reference to
Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to
an absurdity; (b) the material relied upon consists of one or more statements by a
Minister or other promoter of the Bill together if necessary with such other
Parliamentary material as is necessary to understand such statements and their
effect; (c) the statements relied upon are clear.”

75. As Lord Bingham observed in R v SSETR, ex p Spath Holme Ltd [2001] 2 AC 349,
“each of these conditions is critical” (p.391E) and “should be strictly insisted upon”
(p.392D-E). In Wilson v First County Trust (No 2) [2003] UKHL 40, [2004] 1 AC 816,
Lord Hobhouse emphasised that there must be no “extension to the Pepper v Hart
decision or relaxing the strict observation of the safeguards which it included”
(paragraph 140). “The mere assertion that a statutory phrase has a particular meaning
does not render the statutory provision ambiguous”: R (L) v Commissioner of Police
of the Metropolis [2007] EWCA Civ 168, [2008] 1 WLR 681 (Longmore LJ at
paragraph 32).

76. None of the three Pepper v Hart conditions is met in this case: (a) the meaning of
‘main navigable channel’ for the reasons stated above is clear; (b) it does not appear
that any of the comments relied upon (from the extracts provided in Bundle C) by the
Claimant were made by the promoter of the Bill (namely BWB); and (c) none of the
comments relied on is a clear statement as to the meaning of the term ‘main navigable

77. Furthermore, how select committee minutes for the passage of the British Waterways
Bill (in July 1993), included at [C/16] which became the British Waterways Act 1995
can assist in determining the intention of Parliament in 1971 is wholly unclear.

78. If the court is against the Trust on the foregoing, submissions will be made on the
content of the Minutes relied upon during the hearing.


79. The Trust deals with this issue in paragraphs 40 to 48 of its Amended Reply [A/1/20 -
23]. The exact argument advanced is not entirely clear.

80. In circumstances where Three Wise Monkeys was returned to the Claimant on 6th May
2015, namely before the issue of these proceedings, the proportionality of the
argument is itself questionable. It is not entirely clear to the Trust, but presumably

(having regard to the relief claim [A1/1/1] and [A/1/8]) the Claimant seeks damages.
The reality is the Trust does not know what argument it is responding to as it has not
been particularised and must reserve its full position until closing argument.

81. Whilst s.8(3) of the Human Rights Act 1998 permits courts to make awards of
damages, that is only if it is necessary to afford ‘just satisfaction’ to the Claimant: see
generally The Human Rights Act 1998, Wadham et al (7th Ed, 2015) paragraphs 4.54
– 4.71 [LA/18].

82. Essentially the Trust defends the allegation on three basis’:

(1) It is wrong to assert that the only remedy available to the Trust was to pursue
licence arrears in the Magistrates Court or the County Court;

(2) There was no breach of Article 1 Protocol 1; and

(3) In any event the actions taken by the Trust were proportionate.

83. Firstly, s.5 of the 1971 Act [LA/1] expressly provides that “It shall not be lawful …” to
keep or use a pleasure boat on a river waterway without a pleasure boat certificate.
S.8 of the 1983 Act expressly empowers the Trust to remove vessels which “are left or
moored” in an inland waterway (which includes a river waterway) “without lawful

84. It is accepted that s.5(2), s.9(4) and s.9(5) of the 1971 Act create offences if a pleasure
boat does not have a pleasure boat certificate or display its mark, name or number
(the requirement to display the certificate itself being introduced by the Canal Byelaws
1975 [LA/11]). It is also accepted that s.5 of the 1983 Act provides for the civil recovery
of charges due under the 1962 Act and the 1971 Act.

85. However none of these provisions, on a proper construction of s.8 of the 1983 Act,
operate to exclude its operation. Recovery of unpaid charges and waterway
management by removal of vessels which are unlawfully on the waterway (whether
because they are not registered, not licensed or for any other reason) are separate
and distinct functions.

86. Secondly, the Claimant asserts a breach of his Article 1 Protocol 1 rights: but Three
Wise Monkeys was lawfully possessed by the Trust pursuant to the s.8 procedure and
was not held for any longer than provided for by that lawful process. The lawful
possession of the vessel was a permitted ‘control’ for the purposes of Article 1 Protocol
1 as permitted by the second sentence of Article 1 Protocol 1.

87. On that basis, it is difficult to see what remedy the Claimant is alleging: it is not
accepted the issue of proportionality of itself will sustain a damages claim.

88. Furthermore, the use of s.8 was, in all the circumstances of the case, proportionate.
On the issue of proportionality the Trust will refer to: Judicial Review: Principles and
Procedure (2013) [LA/19] at paragraphs 18.17 to 18.45 which contains a useful
section entitled ‘Proportionality Under the Human Rights Act 1998’ and also Bank
Mellat v H M Treasury (No 2) [2014] AC 700 at 770-71 and 788-791 [LA/24].

89. It is vitally important, when considering the Claimant’s assertion the Trust acted
disproportionately, to recall that the Trust removed the vessel (a) because it was
unlicensed; and (b) where the Claimant had failed to respond to at least seven
attempts to communicate with him (detailed in paragraph 8 of the Amended Defence
[A/1/11]. The Trust did not remove the vessel because of licence arrears.

90. This shapes the whole proportionality assessment: if the Trust’s legitimate aim was
simply to recover unpaid licence fees, then the assessment assumes a different nature.

91. On the detail of why the actions of the Trust were proportionate, the Trust relies upon
the points pleaded in its Amended Defence at paragraph 47 [A/1/21-23].

92. In so far as the Claimant appears to suggest that the Trust breached his Article 6 rights
by not having prosecuted him, the Trust does not at present respond in the hope what
is plainly a misconceived argument is not pursued.

Unlawful Distraint?

93. The Trust has admitted that it was not entitled to seek payment for the licence arrears
as a pre-condition of returning Three Wise Monkeys: see paragraph 52 of the
Amended Defence [A/1/24].

94. However, the Trust did not levy distress as alleged by the Claimant: see paragraph
108 of the Reply [A/1/46]:

(1) There is no real definition of distress/distraint: but see Words & Phrases Legally
Defined (4th Ed, 2007): “Distress” [LA/20].

(2) The Trust were lawfully in possession of Three Wise Monkey’s, pursuant to the s.8
procedure, the vessel having been removed from the River Trent (as evidenced by
the seven prior communications) because it was not licensed. The vessel was not
seized because of licence arrears or for the purpose of obtaining payment of those

(3) This was the case before any demand was mistakenly made for licence arrears as
a condition of the return of the vessel.

95. In so far as the Claimant relies upon the Statute of Marlborough 1267 (“the 1267 Act”)
[LA/13], it is not clear precisely of what the Claimant complains:

(1) Section 1 of the 1267 Act is concerned with levying distraint without the authority
of the court or Crown. However, as stated, the vessel was not taken without
authority: it was removed pursuant to s.8 of the 1983 Act as the vessel was not

(2) Section 4 of the 1267 Act codifies a common law duty to avoid excessive levy: this
is inapplicable in circumstances where the vessel was lawfully in the Trust’s
possession (if any complaint if made to this effect in any event).

(3) Section 1 and Section 4 are mutually exclusive.

96. Furthermore, the inappropriateness of suggesting that taking the vessel pursuant to
s.8 of the 1983 Act engages the 1267 Act is evidenced by that part of s.4 of the 1267
Act referred to by the Claimant which precludes distrained goods being taken out of
the county where distress was levied. This is wholly inappropriate and incompatible
with the powers of sale contained in s.8 of the 1983 Act: it does not matter, however,
as the 1267 Act has no application.

97. Any reliance on the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”)
[LA/14] is misconceived: The enforcement of debts is now regulated by Part 3, Chapter
1 of TCEA 2007 by means of a new procedure, namely ‘taking control of goods’, the
procedure being prescribed by schedule 12 of TCEA 2007. However not all possible
scenarios have been subsumed: some powers still exist outside of the Act (indeed
there is even a book entitled: Powers of Distress – A Guide to Remedies Unreformed
by the Tribunals, Courts and Enforcement Act 2007).

98. S.62(1) provides: “Schedule 12 applies where an enactment, writ or warrant confers
power to use the procedure in that Schedule (taking control of goods and selling them
to recover a sum of money).”

99. The Schedule 12 procedure simply does not apply in the present instance. Any
arguments relating to it are misconceived. Schedule 13 of TCEA 2007 identifies
various statutes amended so that references to powers to distrain, or otherwise take
goods, are to be a reference to the new taking of goods procedure. The 1983 Act is
not one of those Acts.

100. If, contrary to the foregoing, the Trust did mistakenly illegally distrain against
Three Wise Monkeys, then it committed a tort, namely one of conversion or trespass
to goods which may engage The Tort (Interference with Goods) Act 1977. It is
suggested in such circumstances it would be a trespass to goods: see Clerk &
Lindsell on Torts (21st Ed, 2014) at 17-09 to 17-10 [LA/21].

101. However the entire point relating to illegal distress is academic: there is simply
no evidence of any loss on the part of the Claimant in the circumstances of the case
caused by any trespass to goods (or indeed, conversion). Even if an entitlement to
nominal damages is established, that is wholly disproportionate and should be
punished in costs.

Relief Claimed

102. The primary relief claimed by the Claimant is declaratory relief: see [A/1/1] and
[A/1/8]. The declarations sought have not been properly formulated.

103. In the present instance whilst the Trust maintains that a decision as to the
proper meaning of ‘main navigable channel’ will be of considerable utility and benefit,
the Trust has not itself sought any particular declaratory relief. Plainly the declaration
sought on this point by the Claimant [A/1/8] is inappropriate: it is wrong and what is
sought is meaningless.

104. As to the correct principles in the exercise of the Court’s discretion whether or
not to grant the relief sought the Trust refers to and relies upon: the notes to CPR 40.20
at 40.20.2 in the White Book (2017) and Financial Services Authority v Rouke [2002]
C.P. Rep 14 per Neuberger J. [LA/25]

105. The Trust has accepted throughout these proceedings that it was not entitled
to seek licence arrears pursuant to s.8 of the 1983 Act: a declaration to that effect,
especially in the form advanced in paragraph 30(b) of the Amended Particulars of
Claim [A/1/8] would be inappropriate.

106. Furthermore, if contrary to the foregoing, the Trust has breached the Claimant’s
Human Rights and/or acted in a manner which was disproportionate: (a) the
declaration formulated at paragraph 30(c) of the Amended Particulars of Claim [A/1/8]
should not be granted as it is inappropriate; and (b) no declaratory relief should be
granted in circumstances where it would simply serve no purpose, especially in
circumstances where the Claimant had his vessel returned before the commencement
of this action.



10th MAY 2017











Shoosmiths LLP

1st Floor, Witan Gate House

500-600 Witan Gate West

Milton Keynes


Tel: 03700 868348

Ref: LEB jh C.534186/M-413902 (Lucy Barry)