canal & river trust v wingfield - proceedings - 08.10.15

1 Marten Walsh Cherer Ltd. Tel: 020 7067 2900

A B C D E F G H

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

- and -

ANDREW WINGFIELD

Defendant

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MS. BARRY appeared for the Claimant

MS. EASTY appeared for the Defendant

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P R O C E E D I N G S

Digital Transcription of Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6-9 Quality Court, Chancery Lane London WC2A 1HP

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A B C D E F G H

MS. BARRY: Your honour, Ms. Barry on behalf of Canal and River Trust and Ms. Easty is

here on behalf of Mr. Wingfield. The first issue I want to raise is in relation to the fact

that this should technically be held in chambers just because there is an issue in

relation to the order at the previous trial between the parties, which would invoke the

confidentiality clause that made the settlement confidential.

JUDGE OWEN: I do not propose to hear this case in private. I have seen the papers

handed in to me. Thank you very much. If there truly does arise a point at which,

despite the skill and endeavour of both advocates, there is concern that that which has

been agreed and is subject to an order of the court that particular terms of the

settlement should remain confidential, then in exercising my discretion judicially I can

at that point deal with that particular point in private. But otherwise I want this case to

proceed in the normal manner, transparently and in open court. At the moment I do

not think that concern you have will in fact arise, but if it does we will deal with it in

the way I have just suggested.

MS. BARRY: Thank you.

JUDGE OWEN: Any objection, Ms. Easty?

MS. EASTY: No, your Honour. Unlike my friend, consider it may be of some advantage

to have it in chambers, but, your Honour, of course I hear what you say.

JUDGE OWEN: Is there anybody in court now who would then directly be affected by

that?

MS. EASTY: No, but there is somebody who is outside who, if it was in open court, would

wish to come inside, yes.

JUDGE OWEN: For my part he can come inside now and we will cross the bridge when

we come to it.


A B C D E F G H

MS. BARRY: Your Honour, I am very shortly going to refer to the settlement agreement,

which immediately would – that are confidential which would immediate cause the

problem.

JUDGE OWEN: I see. Forgive me, I misunderstood. So it will be necessary to refer

openly to the actual terms of the settlement, not the fact that there was a settlement?

MS. BARRY: No, no, to the terms specifically on the settlement agreement which are

confidential.

JUDGE OWEN: In that case since both sides are agreed as to who should be in court are in

court and who should not be is not, let us get on with it.

MS. BARRY: Your Honour, if I can just give some of the background to this matter.

Effectively there were previous enforcement proceedings started by my client against

Mr. Wingfield back in April 2012. At that point Mr. Wingfield broke his licence to

continually cruise. But his argument was that he had a medical condition which meant

that he could not leave the area, which led to him having a heart attack and heart

disease. The consent order which was entered into on the second day of trial on 4th

March 2014, that essentially provided that the Claimant would provide a mooring to

the Defendant which is an unusual state of affairs because essentially the moorings are

sort of an auction basis. They are usually at auction, but it was to assist the Defendant

in the settlement they agreed to provide him a mooring because as he put in his witness

statement, “All I wanted was a residential mooring to stay in this area indefinitely.”

That is what was provided.

Essentially since then my client’s position is that his boat has never been sited at

that mooring and following the licence being issued on 1st April 2014 subject to that

consent order my client required to serve an enforcement notice on the boat on 14th


A B C D E F G H

July 2014 for overstay at County Hall steps. It is my client’s position that he is not

using the mooring that he sought and requested. In fact he has gone back to the

County Hall steps area where his boat remains, and that was where his boat was prior

to the original claim.

JUDGE OWEN: Sorry, I did not catch the last part of that sentence.

MS. BARRY: His boat was at County Hall steps prior to the original claim that was issued

and settled.

JUDGE OWEN: At the time of the last proceedings – was it the Hildegard?

MS. BARRY: Yes, Hildegard is the boat.

JUDGE OWEN: That was moored at County Hall steps.

MS. BARRY: Yes.

JUDGE OWEN: Since when it has remained.

MS. BARRY: Yes, it has remained in that area.

JUDGE OWEN: On your case?

MS. BARRY: Yes, on our case, and that he has not used the home mooring which he has

been granted.

JUDGE OWEN: So the notice on that boat was issued 14th July 2014.

MS. BARRY: Yes. Subsequently he was served with the enforcement notices on section 8

and section 13 on the 9th January 2015.

JUDGE OWEN: Enforcement letter which appeared to be in regular form.

MS. BARRY: Yes.

JUDGE OWEN: Pursuant to section 13?

MS. BARRY: Yes.

JUDGE OWEN: Which required the boat to be removed within how many days?


A B C D E F G H

MS. BARRY: Twenty eight days. And his licence had been revoked on 17th November

2014 because of the breaches. The Defendant, we sought from the Defendant

essentially the basis of their defence in correspondence. They failed to provide that

until we received an unsigned Defence dated 13th September but received on 2nd

October. This states in his Defence he moved the boat every fourteen days until he

was unable to do so. He was hospitalised with a stomach complaint and a fractured

leg.

JUDGE OWEN: Hold on please. The document you are referring to is what?

MS. BARRY: It is a draft Defence which the Defendant has provided.

JUDGE OWEN: This is the unsigned, undated document bearing Ms. Easty’s signature as

counsel, is that right?

MS. BARRY: Yes – one moment, I am very sorry. (counsel confer).

MS. EASTY: Yes, your Honour, that is my writing.

JUDGE OWEN: It has eleven paragraphs, Ms. Easty.

MS. BARRY: Clarification was subsequently sought in relation to the dates of the various

issues of the stomach complaints and the broken leg. The response was that the

stomach ailment commenced in August 2014 and he broke his leg in September 2014

and was suffering with that until January 2015. Therefore the Claimant’s position was

in relation as to why he could not comply with the licence requirements during four

and a bit months from the issue of his licence in April until his first illness in August

2014. Also there are various Article 8 considerations raised at paragraph 8 which the

Claimant believes are not sufficiently arguable to justify consideration at trial.

Essentially they mirror those which were in the Defence provided in the previous trial,

further more specifically at 8A, the argument that the Claimant failed to consider the


A B C D E F G H

Defendant had broken his leg or that he had other health issues which impeded his

progress. That was never raised or communicated to the Claimant until the Defence

was put in. So that was something they could not have considered because they were

not aware of it. The fact that…

JUDGE OWEN: I do not need to hear you on these. I will hear Ms. Easty and then you can

reply rather than guess at the matter which you submitted which on its face does not

appear to have any merit.

MS. BARRY: Essentially, your Honour, it was felt by the Claimant that he was in a

position where he was back to doing exactly what he was before, trying to thwart the

system by not using his mooring at the County Hall steps and that no defence has been

raised or argued, and that therefore setting this matter down for directions and trial

again, with the same defence that we argue was in fact weaker than last time, would

just waste further court time. Also it would waste further public funds and is unfair to

my client, because Mr. Wingfield is on benefits and so….

JUDGE OWEN: The issue that arises, Ms. Barry, subject to hearing from Ms. Easty, is it

seems to me as follows. First of all on the evidence provided by your clients there

appears to be a prima facie basis for the granting of this injunction, and that regarding

such injunction it would be just and convenient and would be necessary and

proportionate in the circumstances. But the Defendant wishes to assert that that is not

in fact the actual position and – I am summarising this but I will be educated by both

counsel in due course – at the very least it is arguable that there are reasons why the

court should not exercise its discretion and its jurisdiction today and rather should

maintain the current status quo and provide for directions for the speedy and orderly

determination of the very issue which you hare here to argue about. That seems to me


A B C D E F G H

to be the position. What I propose to do is hear from Ms. Easty. Then you can reply

to those matters which require a reply to.

MS. EASTY: Thank you. Yes, your Honour, that rightly summarises the issues before the

court today. In respect of the Claimant’s case it is our case that the Defendant was

moving in accordance with the terms and conditions every fourteen days up until he

was unable to do so due to his stomach complaint and the broken leg, and then

subsequently when his licence was revoked in November he was unable to move in

any event because he is not insured to move or travel on the waterway. So the actual

basis of the Claimant’s case is disputed and the Defendants can set out when and

where he moved and on what date, apart from when he was unable to move. It is the

Defendant’s case that he informed the Claimant of his illness and his broken leg on

receipt of the letter, that he informed them by mobile phone. That was witnessed by an

individual able to help him. So therefore that is also disputed.

In respect of the point as to his home mooring, your Honour, again that is disputed,

that he was in fact at his home mooring on at lest two occasions. Again, this is not a

continuously cruising case because there is no requirement to move any specific

distance. You can move every fourteen days for a relatively small area, and maybe

that is why the Claimant’s records are incorrect.

In terms of the Article 8 case, your Honour, that was something that rightly was

argued last time and was settled, the case was settled. So therefore the actual merit of

the Article 8 case is not considered. In terms of what is happening now your Honour

may be aware that this matter as to how the court should approach Article 8 cases in

boat cases is currently before the Court of Appeal. I think that is going to be heard in

maybe about March.


A B C D E F G H

MS. BARRY: Or May.

MS. EASTY: May, my friend informs me. So we disputed that. Your Honour, that is our

case put very briefly.

JUDGE OWEN: Yes, there are two points then, are there not. First of all a question of fact.

The Claimant asserts that this boat has not been moved every fourteen days, whether it

be on one or more or on any occasion. Your client asserts in his signed witness

statement that he has done that, is that right?

MS. EASTY: Yes, your Honour. I think that witness statement, as I mentioned before….

JUDGE OWEN: Your client understands the significance of filing that at court, signing a

witness statement?

MS. EASTY: Again that was not signed – again, that is our case, that that witness

statement has not been provided by ourselves.

JUDGE OWEN: So who is the Defendant?

MS. EASTY: It is, Mr. Wingfield.

JUDGE OWEN: And I have in front of me a statement that purports to be signed by A.

Wingfield.

MS. EASTY: Yes.

JUDGE OWEN: Typed, Andy Wingfield, dated 7th September. Is that your client’s witness

statement?

MS. EASTY: That is my client, but that is a statement that we as his legal representatives,

the Community Law Partnership, have not provided for the court. That has been

provided to the court by a Mr. Nigel Moore.

JUDGE OWEN: Sorry, I am not following you now, Ms. Easty. Who is Mr. Nigel Moore?


A B C D E F G H

MS. EASTY: Mr. Nigel Moore is an individual who felt that it might be appropriate to

assist the Defendant. We do not find the statement of any assistance so we do not rely

on it.

JUDGE OWEN: That is all very well, but I have in front of me a statement bearing your

client’s signature.

MS. EASTY: Yes.

JUDGE OWEN: Is that your client’s signature?

MS. EASTY: Yes, it is.

JUDGE OWEN: So it is his statement.

MS. EASTY: Yes, it is a statement provided to the court.

JUDGE OWEN: Am I being asked to ignore this statement?

MS. EASTY: I am asking the court to ignore this statement because we have not provided

it on instructions. It has been provided by a Mr. Nigel Moore who took it upon himself

to provide it to the court, and wrote it and Mr. Wingfield signed it. Mr. Nigel Moore is

outside, your Honour, if you wish to hear from him in this respect.

JUDGE OWEN: I don’t think so. It is your client who has presented it to the court. It is

his signature on the statement. He cannot realistically seek, I do not think, to distance

himself in this way by suggesting it is all the fault of Mr. Nigel Moore and it is not his

responsibility.

MS. EASTY: Your Honour, the facts in it are correct. Some of the legal positioning – it is

more of a defence than a statement of fact. We are not disputing the facts, but the legal

positioning is something which may distract the court from the merits of the case itself.

In any event of course statements of fact should not be written in terms of legal

defence. So that is the part that I am concerned about.


A B C D E F G H

JUDGE OWEN: What about the…

MS. EASTY: That is my concern.

JUDGE OWEN: When was your client served with notice of this hearing? If either of you

can help.

MS. BARRY: Served on his solicitor on 11th September 2015. Your Honour, I will note

that despite having a solicitor’s note of acknowledgement of service of this file

pursuant to CPR 8.2, which is required in a Part 8 claim, which this is.

JUDGE OWEN: Back to you, Ms. Easty.

MS. EASTY: We are not disputing the factual elements of this at all, My client’s case is

that he moved in accordance with the terms and conditions fully complied with until he

was unable to do so. That is all completely correct, and that is of course our case. It is

also our case that due to ill health of course he could not do so, which of course the

Claimant was aware of. That is our case. In terms of the Article 8 my friend says that

was dealt with before. Of course the previous case was settled without any judgment

being given in respect of our defence at that time.

JUDGE OWEN: What is the test before me, Ms. Easty? There are many different

analogies. It arises in housing cases, it arises in judicial review cases. What do you

say is the test which I should apply when considering in response to the Claimant’s

claim paragraph 8 of the draft Defence. What is your submission?

MS. EASTY: Your Honour, the normal test is arguability. In this respect where the facts

themselves are disputed on their merits, if the Defendant is correct, as we say that we

are, that we were complying with the terms and conditions by moving as we should

have done in any event, then the very basis of the Defendant’s case is made out.


A B C D E F G H

JUDGE OWEN: Article 8 on your case is based, as I understand it, on the engagement of

Article 8 that the failure to comply was a failure to respect Article 8 is arguable on the

basis that there is a factual dispute in that the Defendant takes issue with material facts

relied upon by the Claimant. Is that right? Say, for example your client’s case is that,

contrary to their assertion, they had notice of the fact that he had in August 2014 a

stomach condition requiring hospitalisation.

MS. EASTY: Yes, not hospitalisation for a period of time but requiring him to visit the

hospital.

JUDGE OWEN: So he did not require hospitalisation but he attended the hospital.

MS. EASTY: Yes. Then he subsequently broke his leg which of course rendered him

unable to move.

JUDGE OWEN: In September he fractured his leg.

MS. EASTY: And also our previous point in respect of we say we were (asking for a

mooring?) and had been moving right up until when we could not move.

JUDGE OWEN: Right, very good. Anything else

MS. EASTY: In terms of the injunction, of course that is a matter for discretion and I say

the discretion should not be exercised where the matter is disputed and disputed as to

the basis of the claim itself.

JUDGE OWEN: Thank you very much. Ms. Barry?

MS. BARRY: In relation to the factual issues raised, firstly, in relation to whether or not

the Defendant advised the Claimant of his health issues, specifically the stomach

complaint and fractured leg. Essentially the conversation that took place between Mr.

Wingfield and Mr. Garner, who is the Claimant’s witness, both of whom are here

today and both who can give evidence and the court can make a finding on that. There


A B C D E F G H

is no other evidence that could be provided at trial, so no need to go to trial specifically

on that issue. This is a Part 8 claim. It could be determined today on that issue. In

relation to whether or not the Defendant’s boat had moved sufficiently, the Claimants

set out their case. The Claimants submit it is for the Defendant to have provided

evidence in rebuttal. He could provide recent logs, and having gone through this

process on this basis before, he is well aware of what is required to rebut that. He

could have provided that in his defence before today or at court for the court to decide.

I say those are two issues which the court could determine today.

JUDGE OWEN: In the witness statement of Mr. Garner he deals with the alleged failure by

the Defendant to move his boat every fourteen days.

MS. BARRY: He also deals at paragraph 10 to the phone call with the Defendant

informing him that he had a medical condition which required him to be moored near

his doctor. He appears to have been made aware of the Defendant’s medical condition

by details from his doctor of 9th October 2013. That was in relation to a heart attack

and heart disease, which is not pleaded or raised in this defence.

JUDGE OWEN: ~No.

MS. BARRY: These conditions therefore were present prior to settlement. I request that he

provide medical evidence as to why he (reading, too fast to transcribe) within seven

days. That was never provided.

JUDGE OWEN: So far as Mr. Garner’s witness statement is concerned does this – by what

it does say as well as does not say – does this reveal an absence of knowledge on the

part of him of the two matters which are now raised, (a) the stomach condition, and (b)

the fractured leg?

MS. BARRY: Yes it does.


A B C D E F G H

JUDGE OWEN: So those two matters are raised as far as your client’s case is concerned.

MS. BARRY: Yes, your Honour.

JUDGE OWEN: For the first time when and how?

MS. BARRY: When there was reference in the draft defence, and it was only when we

sought clarification….

JUDGE OWEN: Sorry, this is --?

MS. BARRY: This is the draft defence received on 2nd October and at that date we

contacted the Defendant’s solicitor to request further information because the draft

defence did not supply dates for these issues, and we were given some vague dates,

which again we were told would be confirmed eventually. That was given to us on, I

am not sure what date, but shortly after the settlement on (7th?) October – 5th October

that information was provided by his solicitors. It says in that letter, “We will give you

further details as regards his hospitalisation.”, which apparent was not the case as we

now hear.

JUDGE OWEN: And the notices on your client’s case which were issued and sent to the

Defendant, which form the foundation for these proceedings, which page is it on?

MS. BARRY: Paragraph 14 and pages 56 to 63 of the exhibits.

JUDGE OWEN: Yes, you did tell me in opening – the notice following revocation of the

licence was 17th November, was it?

MS. BARRY: Yes.

JUDGE OWEN: Thank you very much.

(Judgment is provided on a separate transcript)

JUDGE OWEN: Yes, Ms. Barry?

MS. BARRY: There is finally the issue of costs.


A B C D E F G H

JUDGE OWEN: May I just deal with the terms of the order. You have a draft order before

me.

MS. BARRY: Yes, which mirror the terms sought in the claim form. Your Honour, these

mirror the terms sought in the claim form and to the declaration. Paragraph 1 is the

declaration and paragraphs 2 and 3 the injunction as sought in the claim form.

JUDGE OWEN: Yes, and you have an application for costs?

MS. BARRY: Your Honour, yes. No questionnaire has been served because they will need

to be a contribution to their costs rather than an assessment of their full costs due to the

Defendant’s limited means – essentially my attendance at court and the court fee, the

court fee being £280 and my attendance at court being £900.

JUDGE OWEN: So you seek an order for costs of £1,180.

MS. BARRY: Yes, your Honour. Obviously if there is any objection to that we can

provide a costs schedule for the full costs which can be argued.

JUDGE OWEN: I will hear Ms. Easty.

MS. EASTY: Your Honour, in terms of the costs we are legally aided and we ask for the

standard order.

JUDGE OWEN: How do I know your client has the benefit of a publicly funded

certificate?

MS. EASTY: You should have a certificate. It has been posted to the court.

JUDGE OWEN: Who is it who has advised the Legal Aid agency about this case?

MS. EASTY: I think it has merit, your Honour, and I would like to seek permission to

appeal.

JUDGE OWEN: Don’t worry about that, we will deal with things in an orderly way.


A B C D E F G H

MR. EASTY: I know, your Honour, but I just thought I would mention it at that point.

Yes, you should have it on file. It has been sent to the court. I am sure we can provide

another copy. We have one here, your Honour.

JUDGE OWEN: Have the Claimants received it?

MS. BARRY: I believe so, yes.

JUDGE OWEN: That being the case, I have to make an order to comply with section 26 of

the Act?

MS. BARRY: Yes, your Honour, you can assess costs at that level but then make the usual

order, which therefore means that if our client decided to take the following steps – we

missed out the assessment, collection of that.

JUDGE OWEN: So you invite me to assess those costs which would otherwise be payable.

MS. BARRY: Yes.

JUDGE OWEN: That is £1,180, but subject to section 26. There you are, that is the correct

order to be made. Right, what else do you have, Ms. Easty?

MS. EASTY: Your Honour, yes, I seek permission to appeal. I think I need to do it in this

court first.

JUDGE OWEN: I am afraid that for the reasons which I have given I do not regard your

proposed application to have any reasonable prospects of success. You do not have an

automatic right to appeal, do you?

MS. EASTY: No, your Honour. I will sit down immediately, but you have not dealt with

the point in relation to the width of the injunction.

JUDGE OWEN: I will hear you on that.


A B C D E F G H

MS. ESTY: Because I do appreciate that is also a part of this case. That is a matter that I

would raise in an appeal. If you do not want to hear my grounds in respect of the

appeal, I am entirely happy again to….

JUDGE OWEN: I do not want to stop you from making any submissions. So make your

submissions, Ms. Easty, so I understand exactly what you are saying.

MS. EASTY: Your Honour, yes, of course. In respect of the summary basis of the

assessment in respect of the merits of the case today, your Honour, this factual basis is

disputed. That much is clear. There is no reason not to accept the Defendant’s

statement of facts and there is no reason necessarily to accept the Claimant’s statement

of facts. Therefore your Honour, in my submission evidence exists and should have

been heard. My friend made that very clear. Everyone is here ready to give evidence

and there was no reason necessarily not to hear evidence today in terms of coming to

an assessment of the evidence. I say that is an erroneous approach. In respect of the

human rights aspect, your Honour failed to consider the case in a structured manner

and accept that this decision will impact on the Defendant’s private life, the extent to

which and whether it is necessary, apart from stating that in your judgment, there has

been no structured approached. I suggested in various parts of pieces of paper the

proper approach when assessing Article 8. Indeed, your Honour, you have not made it

clear what test you are applying in respect of Article 8 in order to say that a matter that

impacts on someone’s home does not amount to anything of any significance in

relation to Article 8. Your Honour, I say that is incorrect. Finally, in terms of the

width of the injunction there is no reason to suggest that the Defendant does not

comply with any order made by the court. Finally, he is still paying and has available


A B C D E F G H

to him the home mooring, so he is not entitled even on the terms of this order to go

back there.

JUDGE OWEN: I have not heard you on the ambit of the order being sought. You have

not raised these matters until now.

MS. EASTY: I don’t think I raised them in the Defence, when I was responding to my

friend’s submissions and taking them in turn. But the order is too wide. But, your

Honour, I was dealing with the paper that was put in front of the court today. Those

are the reasons I seek permission to appeal your order, your Honour.

JUDGE OWEN: Yes, thank you. No, I am afraid I do not consider that the grounds which

you pose, Ms. Easty, have a realistic prospect of success, nor is there any compelling

reason to justify me granting permission to appeal. I have made it clear in my

judgment the reasons why, and if you wish permission to appeal you will have to go

elsewhere. This is a CPR Part 8 hearing. It is an application for an injunction by a

County Court judge. So what is the route of appeal?

MS. EASTY: I think it is just straight up to a circuit judge.

JUDGE OWEN: Well I am a circuit judge.

MS. EASTY: Sorry, well then it has got to be the Court of Appeal, hasn’t it, High Court.

MS. BARRY: I disagree. I think it would be the High Court if it was an interim decision.

MS. EASTY: It’s the Court of Appeal.

JUDGE OWEN: Very well, if that is where you are headed. Thank you. I take it, Ms.

Barry, that – well, you have invited me to make the order which I have made. I have

made that order in light of the submissions I have heard. You have nothing else you

need to make submissions about?

MS. BARRY: No, your Honour.


A B C D E F G H

JUDGE OWEN: Right. Thank you.

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canal & river trust v wingfield - proceedings - 08.10.15

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