canal river trust v wingfield - approved judgment - 08.10.15

Case No: B01NG135 IN THE COUNTY COURT AT NOTTINGHAM

60 Canal Street Nottingham

NG1 7EJ

Date: Thursday, 8th October 2015

Before:

HIS HONOUR JUDGE ROBERT OWEN QC

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Between:

CANAL AND RIVER TRUST Claimant

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ANDREW WINGFIELD

Defendant

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MS. BARRY appeared for the Claimant

MS. EASTY appeared for the Defendant

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APPROVED JUDGMENT

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His Honour Judge Robert Owen QC Approved Judgment

CANAL v WINGFIELD JDG

HIS HONOUR JUDGE ROBERT OWEN QC: 1. This is an application by the Claimant, Canal and River Trust, for an injunction

pursuant to the proceedings which were commenced by a CPR Part 8 Claim Form issued on 4th September 2015 in respect of the Defendant, Mr. Andrew Wingfield, of 46 Musters Road, West Bridgford, Nottingham, who is the owner of the craft known as Hildegard which, it is common ground, is currently moored at the County Hall steps, West Bridgford, Nottingham, on the River Trent.

2. The claim brought by the Claimant seeks a declaration that the Claimant is entitled to remove the Defendants boat from that property pursuant to statutory powers vested in them under section 8 of the British Waterways Act 1983 and section 13 of the British Waterways Act 1971, and that there be an injunction granted forthwith in the following terms, namely: (a) restraining the Defendant from mooring or securing his boat on to any part of the River Trent controlled by the Claimant as shown in the plan exhibited to the witness statement of Stuart Garner dated 26th August 2015; (b) restraining the Defendant whether by himself, his agents or otherwise from mooring, navigating or securing his boat on any part of the canal or river bed, channel, canal or river banks and towing paths of any parts of the canals and inland waterways controlled by the Claimant as shown on the plan and coloured blue; and (c) requiring the Defendant forthwith to remove his boat from the River Trent.

3. The proceedings are brought by the Claimant pursuant to its statutory duty to protect its property rights and to discharge its duties and powers in respect of the safe and proper management of the waterways for which it is responsible and which is subject to a limited stock of moorings available for use on the waterways. The Claimants skeleton argument helpfully sets out in non-contentious terms the source and ambit of the Claimants statutory duties and powers in question.

4. The application is supported by the witness statement dated 26 August 2015 of Stuart Garner, the Claimants appropriate enforcement officer, who explained the recent history relating to their dealings with the Defendant and why it is necessary to take these proceedings.

5. It is common ground that enforcement proceedings in relation to the Defendant and his use of his boat were taken initially in August 2013. Similar issues arose but, on the second day of the trial, on 4th March 2014, those proceedings were stayed upon terms of settlement which both parties agreed should remain confidential. It is unnecessary for me to recite in full, for present purposes, the agreed terms. Suffice it to say that the Claimant, in the particular and unusual circumstances of this case, agreed to provide the mooring at a specific location (Cranfleet) to the Defendant rather than, as is normal, for the mooring to be subject to open auction. In consideration for the disposal of those proceedings and to bring finality to the matter the Claimant agreed to make available to him, without competition, a specified mooring and he acquired a right, pursuant to the licence issued to him, subject to compliance with the terms and conditions of such licence, to keep his boat at that mooring between 1 March 2014 and 28 February 2015 and the appropriate licence was issued.

6. The first formal notice of non-compliance with the terms of the licence was given on 14th July 2014 when it became apparent that the Defendant had not moored his boat at



Cranfleet, that he had not heeded the conditions of the licence and that his boat was overstaying. The Claimant had noted that the Defendant had moored and/or was keeping his boat at a different location, that is, at the County Hall steps in West Bridgford, Nottingham and for a period in excess of 14 days, contrary to condition 2.1 of the licence. The Defendant was given notice of the Claimants right to terminate or in any event not renew the licence on expiry.

7. On 8 September 2014, as the Claimant acknowledged, the Defendant telephoned Mr Garner to inform him that he needed to keep his boat where it was because he had a medical condition. Mr Garner asked the Defendant to provide him with evidence of any such medical condition relied on. No such evidence (or response) was provided.

8. In the previous proceedings the Defendant had produced a letter from his doctor dated 9 October 2013 in which the Defendants home address was given and which is the same address given in these proceedings and to which all correspondence has been addressed and received by the Defendant.

9. The Claimants evidence, identified by Mr Garner in his statement and exhibits, clearly showed that the Defendant did not reply and that he ignored requests for information. By letter dated 17 October 2014 notice was given again of non-compliance with conditions 2.1, 3.1 and 7.2 requiring the Defendant to remedy the breach, remove his boat unlawfully moored at the County Hall steps and return it to the licensed mooring at Cranfleet by 17 November 2014. Again, there was no response.

10. It was in these circumstances that the licence was formally revoked. The formal enforcement checklist confirmed that the Claimant had considered the Defendants circumstances and whether proceedings might be avoided. There were none. The appropriate notices were issued on 9th January 2015 and served upon the Defendant pursuant to sections 8 and 13 of the Acts to which I have already referred, requiring the Defendant to remove the boat from that property or location on or before 9th February 2015. No steps were taken by the Defendant.

11. The Claimants then wrote a formal letter of claim to the Defendant, dated 22nd June 2015, as follows:

We have been instructed to act on behalf of the Canal and River Trust in relation to the above boat, the Hildegard, which is unlawfully moored or kept on an inland waterway owned or managed by our clients. We refer to the notice of intended removal of a vessel in section 8 of the British Waterways Act 1983 dated 9 January 2015 and a notice requiring removal of a house boat under section 13 of the British Waterways Act 1971 dated 9 January 2015, both of which were served on you by our client by way of notices being affixed to your boat. Following expiry of the section 8 and section 13 notices your boat remains unlawfully moored on our clients waterway. The purpose of this letter is to put you on formal written notice that in the event that you fail to remove your boat from the inland waterways owned or managed by the Trust within fourteen days from the date of that letter court proceedings will be issued against you, Mr. Wingfield, immediately without further notice for: (a) a declaration confirming that the Trust is entitled to remove your boat from its inland waterways pursuant to its statutory powers; (b) an injunction to restrain you from



mooring your boat on or to any part of the Trust waterways and requiring you to move your boat immediately; and (c) costs.

12. That letter was not heeded by the Defendant any more than the previous notices and letters had been heeded, which resulted, as Mr. Garners statement explained, in the commencement of these proceedings, on 4th September 2015.

13. The Claimants and Defendant were given notice by the court of the hearing date for these CPR 8 proceedings on 9 September 2015. The hearing was fixed for today. The Defendants current solicitors gave notice of acting to the court on 16 September 2015. No acknowledgment of service pursuant to CPR rule 8.3 was filed or served. There was no suggestion of any substantial dispute of fact. The Claimants claim was properly formulated and served and they were, in the absence of any issue or dispute raised by the Defendant and the exercise by the court of its judicial discretion, lawfully entitled to the relief sought given the facts and their statutory duties powers in respect of the proper control of the moorings and use of the canal and waterways for which they are responsible.

14. In fact, there was no indication at all from the Defendant or his instructing solicitors of any factual or other basis for challenging the claim until the late filing of a witness statement from the Defendant dated 7 October 2015 followed by the informal service of a draft Defence settled by counsel, Ms. Easty, who has appeared on the Defendants behalf today.

15. That document (counsels draft) bears the date 2nd October 2015. Within it, at paragraph 3, it is asserted as follows:

It is denied that the Defendant has not complied with his licence conditions. He has moved Hildegard every fourteen days until he was unable to do so as he was hospitalised with a stomach complaint and subsequently fractured his leg. The Claimant has failed to consider that there are special reasons and/or circumstances outside the Defendants reasonable control preventing the Defendant from moving his boat. It [Claimant] is aware that the Defendant suffered from medical problems as set out herein above which rendered him unable to remove Hildegard. The Claimants were informed about the Defendants special reasons and/or circumstances outside his control on various sites, in particular on 8th September 2014 as to why he was having difficulties moving. The Claimants have failed to give any consideration to special reasons advanced on behalf of the Defendant when considering whether to take enforcement action against him.

16. Thus, the Defendants perspective was that whilst it was common ground that he was not able to stay in any one place on the canal for in excess of fourteen days for reasons beyond his control he was unable to comply due to being hospitalised with a stomach complaint and subsequently a fractured leg notice of which was given on 8 September 2015. It was not challenged that the Claimant had a discretion to relax compliance with the licence condition if the explanation for that breach of licence was a special reason or circumstances outside of his, the Defendants reasonable control. The onus was upon the Defendant to satisfy the Claimants of those circumstances. Such reasons or circumstances, if present were, of course, within the particular knowledge of the Defendant. It was incumbent upon him, particularly in light of the



recent history which gave rise to his licence, to give appropriate notice and details of his alleged circumstances.

17. So far as the Claimants position was concerned the facts are, and were, clear. The licence in question had been issued to the Defendant pursuant only to the history to which I have referred. Thereafter, the Defendant simply chose to moor his boat elsewhere, at a different and unauthorised location. It would appear that the steps at County Hall was a location convenient for the Defendant having regard to his home address. I should add that Musters Road is a short walk from County Hall. Moreover, the Claimants evidence was that the boat was kept at that location constantly and, in any event and certainly not for periods of less than fourteen days.

18. As for the special reason or circumstances arising, Mr. Garner in his witness statement stated at paragraph 10:

On 8th September 2014 I received a phone call from the Defendant. He informed me that he had a medical condition which required him to be moored near his doctor. The Trust had previously been made aware of the Defendants medical conditions as detailed in a letter from his doctor dated 9 October 2013. (It is common ground that that condition is not material to todays hearing). These provisions were therefore present prior to the settlement that was being advised by solicitor and counsel. I requested that he provide me medical evidence as to why he was unable to move the boat within seven days.

A copy of the letter from the Defendants doctor is annexed to that statement. That letter and its content, however, relates the matters which are not material for present purposes.

19. Save for those medical matters it is the Claimants position that they had not been given any notice of an alleged stomach condition or complaint or the fractured leg, alleged to have been suffered in August and September 2014 respectively. It was not until receipt of the draft defence that any such mention of those conditions or the alleged circumstances now relied on were made known to the Claimant.

20. There is, in fact, no evidence before the court of the existence or significance of either or both of those two alleged medical conditions beyond the bare assertions contained in paragraph 6 of the draft Defence and paragraph 6 of the Defendants witness statement which he filed in order to ensure that the essential elements of his defence were before the court and on the record.

21. It is in these circumstances that Ms. Barry on behalf of the Claimant submitted that, in light of the evidence before the court it would be appropriate to grant the injunction or relief sought today in that it was necessary to permit the Claimant to comply with its statutory duty to ensure the proper and safe management of the waterway for which it is responsible. In effect, it is submitted that there is no arguable or substantial dispute of fact.

22. Ms. Easty on behalf of the Defendant submitted to the contrary. Relief should not be granted and the Defendant should be permitted to pursue the matters contained in the draft Defence. She submitted that there are issues of fact which have been raised by the Defendant which allowed her to settle the draft Defence. In particular, my



attention was drawn to paragraph 3 (see earlier) and also paragraph 8 in which the Defendant seeks to rely upon article 8 (ECHR). It is alleged, in taking the steps which they have taken and in seeking the relief which they now seek, that the Claimants have failed to consider: (a) that the Defendant had a broken leg and/or other health issues which impeded his progress around the River Trent; (b) whether or not to permit the boat to remain at its present location and to charge additional mooring fees; (c) the Defendants physical difficulties; (d) whether the Defendant was able to comply with his licence conditions within a reasonable period; and (e) that the Defendant would otherwise be rendered homeless.

23. In short, Ms. Barrys submission was that there is no arguable issue raised on behalf of the Defendant in any of these factors and that in the circumstances the court should proceed summarily to deal with the matter.

24. The burden is upon the Claimant to establish the correct factual and legal basis to engage the courts particular jurisdiction, that is, to exercise, judicially, the discretion to grant the relief sought and in dealing with the matter summarily. As I have said, I am invited on behalf of the Defendant to reject the Claimants application for the reasons which I have summarised and to allow the matter to run its course hereafter.

25. The other document to which I referred is entitled Defence Witness Statement which was filed at court by the Defendant. It bears the signature of the Defendant and is dated 7th October 2014. It appears to be in compliance with the provisions of CPR 32.8 and in particular it contains the appropriate statement of truth. It was filed out of time in that no acknowledgement of service was filed and thus no written evidence was filed either. In the circumstances, the Defendant required permission from the court to take part in the hearing and to rely on any written evidence. There was no objection by the Claimant to that evidence being presented to the court, including the draft Defence.

26. I was invited by Ms. Easty to pay no attention to the witness statement on the basis that it is a statement which was not taken by the Defendants current solicitors. Apparently the Defendant made and filed his statement with the assistance of a third party, Mr. Nigel Moore. It was not suggested that there was any other reason to ignore it. I declined to ignore the statement in these circumstances. I did not consider that I should do so since it is the Defendants statement, not his solicitors. The filing and content of that statement is the responsibility of the Defendant. The statement was expressly filed to ensure that the Defendant put before the court those matters, personal to him and of importance, upon which he wished to rely. It would not be appropriate for the court simply to ignore the fact of a signed statement presented to the court by the Defendant on that basis. I considered that it was just and appropriate to have regard to its contents. It was not suggested that material matters had been omitted. That statement contained the evidence which the Defendant wished to give at this hearing.

27. As for the draft Defence, paragraph 6 contains a denial of non-compliance with the licence conditions, a denial of any basis for revoking the licence and, in particular, an unparticularised assertion that the Defendant had moved his boat every fourteen days until he was unable to do so in that he had to attend hospital appointments. That bare assertion is repeated at paragraph 6 of the witness statement save that it is alleged in the statement by the Defendant that he had a severe bleeding stomach complaint



and, subsequently, a fractured leg. No other facts, details or circumstances are given. Given the issues before the court, in these circumstances, it does not seem to me to be appropriate simply to ignore the Defendants own evidence without good reason, and none has been suggested beyond the fact that it was filed without the knowledge of the current solicitors. It is, nonetheless, the statement of the Defendant. The two documents constitute the evidence of the Defendant. It is his evidence. It was open to the Defendant to present to the court such evidence which he might wish to rely upon having been given notice of these proceedings. He failed to do so until, in effect, today.

28. It is my judgment that the evidence presented by the Claimant in support of the relief sought is clearly sufficient to justify the granting of the that relief. There is no arguable factual basis raised by the Defendant which would justify the court declining to grant the relief sought. It is common ground that the Defendant did contact the Claimant, on one occasion, on 8 September 2014. The history or circumstances set out by Mr Garner is not in fact disputed save for the issues, as such, raised in the witness statement and draft Defence to which I have referred. It is evident that appropriate notices under sections 8 and 13 have in fact been served upon the Defendant. The Defendant is entitled to raise of course matters of fact which would undermine the very basis upon which those notices were issued or which might affect whether the proceedings or relief sought might be determined summarily or otherwise. However, examination or scrutiny of the apparent issues raised by the Defendant in response reveals clearly that there is, in fact, no arguable basis to support the defendants mere denials. The unsupported or unparticularised assertion that his boat was moved regularly, every fourteen days, in accordance with the terms of the licence does not bear scrutiny. The Defendant has had every opportunity to give the alleged dates of mooring or movement but he has not done so. No detail was provided in the witness statement or in the draft Defence.

29. The assertion that special reasons arose by reason of the alleged medical condition(s) of the Defendant equally lacks merit. No details have been given of the nature or reason or dates of the asserted physical incapacity which is now asserted explains why he did not or was unable to adhere to the conditions of his licence. I do not consider that the Defendant has raised any substantial dispute of fact which is arguable in the circumstances. The fact of the matter is that, in relation to the stomach complaint Ms. Easty confirmed that the Defendant was not hospitalised. Rather, he had simply attended hospital on an occasion or (unspecified) occasions. The mere fact also that the Defendant had broken his leg could not, without more (and not without any basic detail) arguably constitute, in the circumstances of this case, any or any special reason or circumstances outside his reasonable control to explain the non-compliance with the conditions of the licence. The assertions made by the Defendant are not such which could arguably render the issuing of the notices invalid, inappropriate, unjust or unfair nor do they raise an arguable substantial dispute of fact which render it necessary and just to be determined otherwise than on submissions. Even if the Defendant had mentioned the fact of his stomach condition or fractured leg such would take the matter no further for the Defendant for he could not show, arguably, that as a result, beyond his control, he was unable to comply with the relevant condition to which I have referred.



30. The assertions contained in paragraph 8 of the draft Defence similarly do not bear scrutiny. It is not realistic, certainly not on the facts of this case or the circumstances as presented to the court, for the Defendant to expect that the bald assertion of non-compliance with or failure to respect his Article 8 (ECHR) rights under particulars (a), (b) (c), (d) and (e) of paragraph 8, to which I have referred earlier, should carry any weight. I consider that the matter may appropriately be dealt with summarily.

31. As to (a) and the evidence showing the fact and relevance or significance of the Defendants alleged medical condition, I have already dealt with that. It is plainly without merit. As for the reference to other health issues there are no other health issues on the evidence before this court other than the reference to the stomach complaint and the fractured leg. Similarly, in respect of (c) there is no basis for the court to entertain the bare assertion that the Defendant has (unidentified or relevant) physical difficulties. As for (b) and (d) it is clear that these matters could have no realistic prospect of challenging or affecting the correctness of the Claimants decision to revoke the licence and to seek the relief in question, given the recent history and the circumstances which have given rise to these further proceedings and the enforcement officers checklist to which I have referred. As for (e) this too is not arguable. It is obvious that the purpose or aim of the proceedings is to protect the Claimants property rights and to comply with its statutory duties in respect of its allocation of moorings and its safe and orderly management of the waterways in question. It also appears that the Defendant has a home address in West Bridgford, Nottingham. However, and in any event, the suggested article 8 defence or issue is not arguable and might properly be dealt with summarily in the circumstances.

32. In these circumstances I am satisfied that for those reasons the Claimant is entitled to the relief sought. I am satisfied that it would be just and convenient to grant the relief sought which relief, in the circumstances is proportionate and necessary.

(discussion as to form of order and costs, etc)

canal river trust v wingfield - approved judgment - 08.10.15

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