moore v bwb on human rights
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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
No. HC07C02340
The Royal Courts of Justice
Thursday, 16th February 2012
Before:
MR. JUSTICE HILDYARD
B E T W E E N :
NIGEL PETER MOORE Applicant
- and -
BRITISH WATERWAYS BOARD Respondent
_________
Transcribed byBEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
Email: [email protected]
_________
THE APPLICANT appeared in person.
MR. C. STONER (instructed by Shoosmiths) appeared on behalf of the Respondent.
_________
P R O C E E D I N G S A.M. ONLY
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I N D E X
Page No.
OPENING
Mr. STONER 1
Mr. MOORE 15
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MR. JUSTICE HILDYARD: Before giving judgment may I just mention that a
gremlin has crept into the system in the following way. Because I have made
some amendments from the draft in every case in order to accommodate your
very helpful comments and to try and make sure that whether right or wrong
what I had stated was clear, I have made a number of amendments. I hadhoped that the tracked version would signify precisely where those
amendments were, but the gremlin has crept in and there are some
amendments in the final draft - and I hope you have a copy of that final draft
which is in the closed space print - which do not appear in your tracked
version. Now, in particular there are three references, just so that you should
know the format which I intend to prove. There is a chance at paragraph 108
which is not in the tracked draft. It is not of great moment. It is really a matter
of editorial substitution of the word absolute for extensive. Then more
materially at 139 there is a change. I have slightly changed the end of that, ifyou would like to read through that. Then lastly at paragraph 230, that has
been changed but does not show up in your tracked draft for reasons beyond
my ken. Are those clear? In that case, for the reasons that I have set out in
the closed typed version, copies of which have been available to you in draft, I
find in terms of the conclusions that I have sought to set out in paragraph 233
of the judgment. I should say that the judgment I now hand down is subject to
editorial corrections in case there are any further - and I would be very grateful
for any to be pointed out - but subject to that caveat, a copy may be used by
court reporters, if any, for reporting purposes, and a copy of the final judgment
will be produced after receipt of any further editorial comments you may have
by my clerk by tomorrow and will then be posted on the usual websites.
We now have to deal principally with matters which I felt able only to express
a provisional - and by that I truly mean provisional - that is to say I am still
open to persuasion on both limbs with respect to my concern as to
infringement of the claimants human rights. We then have to deal with any
other matters which ordinarily arise after judgment of this kind. Thank you
very much, both of you, for very helpful written submissions, which I have
read, but which I would still like assistance. The fact that in the human rightsarena change is constantly afoot is demonstrated by, I think, two decisions in
2011 of the Supreme Court, each with a board of seven I think. So it is a
matter which I want to tread with care and with your assistance. Who would
like to go first?
MR. STONER: My Lord, I am entirely in your hands, but in circumstances where
your preliminary view was that my clients had breached Mr. Moores human
rights, perhaps it would fall on me to go first. The other point is that in the
written submissions - I know my Lord has been provided with a copy ofPinnock andPowell.
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MR. JUSTICE HILDYARD: Thank you.
MR. STONER: I do not know if Mr. Moore has copied them off the internet, but if
not there are copies there of those cases.
MR. JUSTICE HILDYARD: You will also be addressing, will you, what ----
MR. STONER: Legitimate expectation.
MR. JUSTICE HILDYARD: Yes, the response of the court to that.
MR. STONER: Yes. My Lord, I will take the matter relatively shortly because of
course I have set out my position fairly extensively in writing.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: On the human rights, although this is not actually a claim for
possession, there is unquestionably a clear correlation to the possession cases,
bothManchester City Council v Pinnock(which I will refer to as Pinnock, if
I may) andHounslow Borough Council v Powell(which I will refer to as
Powell if I may) were different types of possession cases under the various
Landlord & Tennant legislation, but ultimately in this particular instance
Article 8 is engaged because Gilgie is Mr. Moores home and in my
submission the same principles apply. The key, in my submission, is to look at
thePinnockdecision as a starting point. This was the first in time of the two
judgments of the Supreme Court. It in fact involved a demoted tenancy. So it
was a relatively self-contained aspect of Landlord & Tenant law. But to no-
ones surprise the Supreme Court in the subsequent decision ofPowellapplied
the reasoning ofPinnock in the wider application of thePowellcase. In
Pinnock, if I can pick it up at the beginning of paragraph 51, [2011] 2 AC 126.
InPinnock it was a panel of 7 but the judgment of the court was that of Lord
Neuberger. He had, prior to this, set out the various European Courtjudgments. Perhaps I should observe that back at paragraph 45, having
summarised those European Court of Human Rights decisions, after (d), the
new paragraph, he says,
Although it cannot be described as a point of principle, it seems that the
EurCtHR has also franked the view that it will only be in exceptional
cases that article 8 proportionality would even arguably give a right to
continued possession where the applicant has no right under domestic law
to remain...
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In my submission, that is another key link with these cases with Mr. Moores
circumstances in that as a result of my Lords judgment you have determined
that the vessel has no right in domestic law, if I can put it that way, to remain
where it is.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: So the question then becomes: what is the effect of that. The core
of the decision inPinnock begins at paragraph 51.
MR. JUSTICE HILDYARD: 51 and 52 really because ----
MR. STONER: 52 is the absolute core.
MR. JUSTICE HILDYARD: My understanding is - and I noticed it was a nine-
man court inPinnock----
MR. STONER: I am sorry, yes.
MR. JUSTICE HILDYARD: My understanding is that whilst accepting that it
would be quite difficult for someone to raise a successful human rights
argument, bearing in mind that the court could not get into subtle management
and proprietary issues, nevertheless proportionality in the true sense of it rather
than Whensbury unreasonableness, proportionality in the true sense would
always be a factor if raised by the defendant.
MR. STONER: Yes, and my understanding globally ofPinnock andPowell
subsequently is that unless there is cogent evidence to go behind the decision
as per paragraph 52 ofPinnock, if the public authority is exercising ownership
rights, that is not relevant here for reasons we know. Or it is exercising its
management duties - and I say that is precisely what British Waterways was
doing in this case. Then unless there is a cogent reason to go behind that, it is
taken as a given - as is put in certain passages - that that is proportionate for alegitimate aim. Of course, the purpose, in my submission, behind that is that if
that were not the case, then in British Waterways case every time they took a
decision in relation to a vessel which was someones home, or fell within the
category of someones home (and there could be all sorts of arguments there,
not just necessarily as here where Mr. Moore lives permanently on the vessel),
then that decision would be subject to scrutiny by the courts on a human rights
aspect. In my submission it was that sort of everything coming before the
court that the Supreme Court were desperately keen to avoid.
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MR. JUSTICE HILDYARD: I mean all analogy is ultimately inaccurate but one
finds it in a field where I am frankly more experienced, which is in the
company law field. The court will never second-guess a matter of
management because otherwise it would be running every cake and ale stall in
the country. So you have to show some reason either why what was decidedwas improper, i.e. without the management function, or seems to be for a
purpose which the court simply cannot follow and needs to explore, if I can
put it that way.
MR. STONER: What I say in the context of the present case is that Mr. Moore ran
two arguments. One was that the section 9 notices were served for reasons of -
and I do not mean anything necessarily by this term - but a conspiracy with the
developers.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: Secondly as a separate argument, as my Lord has addressed in his
judgment, he ran an argument that British Waterways served these notices for
an improper purpose. They had an improper motive in serving the notices. As
I understand my Lords judgment, my Lord has said no to both of those
arguments. In my submission that may have been the sort of cogent evidence
that would be necessary for the court to say: actually this is taken out of the
ordinary management decision and into the situation where we have to
consider it more carefully. My clients note very much the criticisms that my
Lord has levied at them in frankly the entire process, but at the core is a
management decision. If the court in my submission is in the field of: well, it
would have perhaps taken a slightly different decision at a different point, or
had gone about it in a slightly different way, that is not the cogent evidence
that is necessary. Of course, one could always say with every management
decision that unless it is absolutely a tick-box decision that it could perhaps
have been done in a different way on a different day etc.
MR. JUSTICE HILDYARD: I am sorry to interrupt you because you have beenvery helpful, but the concerns that I have in a nutshell are these: first, unless
you show me otherwise, there has been no cogent explanation as to why these
vessels had to be removed. The context in which that sort of question arises in
my mind is the fact that in the past there has been no objection, which is a
point made by Mr. Moore in his written submissions as previously. Whilst I
have, as you quite rightly say rejected the notion of a conspiracy, the way in
which it was proceeded with gives rise to a concern that there was no real
reason for the exercise of what you accept is a very draconian power.
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MR. STONER: What I say is those concerns, in the human rights context, do not
get anywhere near the level of the cogent evidence. In response to the points
about others on the waterways, my Lord has not heard evidence about those
others and we do not accept, necessarily, what is said. I am aware, for
example, that British Waterways has leasing arrangements with individuals upand down that stretch of waterway. Whether or not that is relevant - I am not
saying necessarily it is - but there may well be explanations. The
concentration has to be, in my submission, on these vessels. I am not
encouraging this for one moment but if my Lord were minded to go down a
finding on the human rights which was fact-dependent, I think my Lord would
have to consider as to whether there should be a further hearing to determine
the factual background for that. In my submission those matters do not arise.
To also answer, I think, the other point I have not yet answered in relation towhat my Lord raised, the reality of the situation - and in my submission it is
clear from Mr. Farrows statement (whether it was right or whether it was
wrong) that the reason that these vessels were served with notices is because
they were unlicensed on the waterway. That is what I sought to do in my
written submissions, putting aside the issue of whether they needed a licence
or not, ultimately another way of putting that is that the decision was taken
because they had no entitlement to be there. In my submission that is a
perfectly legitimate management function and decision to take that, and that
falls outside of the scope of what the court would consider on a human rights
challenge. So that was the stated reason; that was the evidence. My Lord, I
do not under-estimate the point I made in my written submissions. It may be
that there is an element of speculation about it but if ultimately Gilgie is
allowed to remain simply because - or in circumstances where it has no legal
entitlement to be there, but simply because it is someones home, and there is
no particular reason for British Waterways to move it on, not only does that, in
my submission, fly in the face of the approach that we know from the Supreme
Court, but as a matter of fact it really does encourage the possibility and
probability that the tidal stretch of the Grand Union Canal will fill with vessels
which are peoples homes which British Waterways, on the face of it, wouldbe powerless to stop until the congestion perhaps got so bad that one could
show, in relation to a specific vessel, that it was clearly interfering and
obstructing navigation. In my submission, it is a perfectly legitimate
management aim to say, in effect, we prefer the situation where if someone is
not entitled to be there, we will move them on and we will keep the waterway
managed on that particular basis.
In many respects, if I have understood my Lords judgment correctly, the main
criticisms were really with the haste with which these notices were served.
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MR. JUSTICE HILDYARD: I think the main criticisms were, yes, the haste and
my finding that you took a risk that this was a home.
MR. STONER: Yes.
MR. JUSTICE HILDYARD: And that was in breach of your own practices and
although they are separate issues they feed into another, and I think in one of
the cased - it may have beenKay - there was an express reflection of the fact
that a breach of even a procedural legitimate expectation may feed an
infringement of human rights.
MR. STONER: Yes. Another aspect is that the court would have to be very clear
as to what the actual breach is going to be. In my submission there is none,
but if you were against me and you were to find that there was a breach, thatwould have to be clearly identified because if it were a procedural breach from
a human rights perspective, in my submission, the obvious relief - I have put in
my written submissions that in those circumstances in effect it is a defence, but
my clients would be entitled in those circumstances, if they breached their
procedure, to go back and not ignore the last four and a half years worth of
litigation, but rather to send Mr. Moore.... In fact, I would venture to suggest,
I was going to say the standard letter, the Live-aboard 1 as it is known. That
may not actually on its wording be particularly appropriate, but to have an
amended form of saying in light of the decision of his Lordship, etc, etc.
MR. JUSTICE HILDYARD: I take your point that one has to determine whether it
is a substantive or procedural breach. If substantive then there will be all sorts
of questions, including compensation etc. If procedural, then that is more
unlikely to arise.
MR. STONER: Yes. I will come on in due course to legitimate expectation where
my Lord has already indicated that was a procedural breach.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: Just dealing with human rights at the moment, in my submission it
is rather difficult to see what substantive breach there might be because really
one is there only left with the factors of firstly this being Mr. Moores home
and second British Waterways not actually being able to show a positive
reason as to why the vessel should go. That is why I say this simply falls
down or the argument falls down at that stage because ofPinnock andPowell.
There is not that cogent evidence to get over that high threshold that is referred
to. The European Court of Human Rights preferred the phraseexceptionality whereas the Supreme Court preferred the fact - and in fact
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Lord Neuberger refers to the fact that Lady Hale had pointed out in argument
that exceptionality is an outcome, not a guide, and hence the reason they
preferred the straight concept of proportionality.
Ultimately, in my submission, this was a management decision that was takenby British Waterways to remove a vessel which your Lordship has found had
no entitlement to be there. British Waterways is vested with the management
function for that waterway for the public, including protecting public rights of
navigation and matters of that sort, and they are perfectly entitled to do that.
Mr. Moores human rights have simply not been breached.
Is there anything else I can assist on the human rights argument?
MR. JUSTICE HILDYARD: No. Well, let me think about that. I understand yourpoint that at most it is a question of process fed by the breach of legitimate
expectation, given that it turned out to be his home.
MR. STONER: Yes.
MR. JUSTICE HILDYARD: Do you say that it is relevant and if so how relevant
that at the time the notices were served actually his home was Platypus and
only subsequently did he move to "Gilgie"?
MR. STONER: I say it is relevant. I have not put it at the forefront of my
arguments. I noted that my Lord raised the point and I was not simply going
to jump on to that because it was in the draft judgment. Its key relevance, in
my submission, is this: it shows what I have described, and perhaps it is not
the best wording, but the futility when one comes to the procedural breaches or
alleged breaches, because in my submission as an exercise in proportionality
the court has to have regard to the fact that we have had four and a half years
worth of heavily contested litigation in which every conceivable argument that
Mr. Moore could wish to have raised has been ventilated. Now, that is
relevant, in my submission, because if I can draw a rather inelegant analogy,but on the possession footing as well, I am not sure how familiar my Lord will
be with the standard possession procedure, but if it was a possession action and
they had issued their Part 55 (claim rather like the Part 8) it would come for
the initial hearing, of which the court would either make a decision or give
directions. Well, if at that initial hearing which may, in idealistic theoretical
hopes, be within about four weeks of issue, if the boater turned round and said:
well, actually I had a legitimate expectation that you would go through this
procedure and your procedure means that notices will not be served until after
42 days as a minimum because Live-aboard 1 says 28 days, Live-aboard 2 says14 days, then in those circumstances there may be a very good ground for
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saying: yes, British Waterways, go back to home base. You have
disappointed the legitimate expectation and you have to address that. Four and
a half years worth of litigation is a rather different circumstances. Touching
upon legitimate expectation ----
MR. JUSTICE HILDYARD: I am sorry, but my initial question was: does the fact
that he was on Platypus and moved to "Gilgie" signify in terms of whether
there is an infringement or any obligation under Article 8?
MR. STONER: In my submission the answer ultimately is yes. What I am saying,
rather inelegantly, is that where it becomes difficult is because of the passage
of time and because he is not now even on the same vessel, it shows the real
difficulties, given what has happened, of on a procedural breach, ultimately
giving relief which, in my submission, can only mean that the process has tobe restarted because if my Lord were to give relief either on legitimate
expectation or human rights, saying there has been a procedural breach
because British Waterways did not go through the notice procedure, if I can
put it in that way, then in my submission it would not be proper - and I do not
understand the court to be posing - that the relief that would be granted would
prevent British Waterways from going through that procedure after this case is
finished. That is why I say about the futility of if the legitimate expectation
has been breached, after four and a half years worth of litigation, to go back
and then my clients have to write to Mr. Moore and say: You are now on
Gilgie. You have no entitlement to be there. Please move the vessel within
28 days or regularise the position, or we will contemplate serving Section 8
notice and quite possibly a section 13 notice as well. The comparison, when
dealing with legitimate expectation, with theNg Yuen Shiu case, is that there
of course Mr. Ng Yuen Shiu had a legitimate expectation that a consultation
exercise would take place before a deportation order was made, if a
deportation order was to be made. Of course, what the courts there did is they
quashed that deportation order and said: you must go back and you must have
the consultation. But that is entirely without prejudice to the fact that you may
come to the same conclusion - rather not come to the same conclusions; thatwould be inaccurate, but the same conclusion may bear out. Where I say there
is a clear demarcation in this case is that Mr. Moore has had that consultation.
If one considers what the procedural breach or expectation that has been
disappointed actually was, it was an opportunity for two things. One was a
period to put his case, and the second was the sanctity and the safety of
knowing that British Waterways would not take action without the sanction of
the courts. Well, actually of course British Waterways gave the undertaking
that it would not do anything without the sanction of the court at a very early
stage. My Lord has seen from the forest of papers that we have got - not
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suggesting of course that they are all correspondence - but there was extensive
correspondence.
Ultimately perhaps a way of looking at it, my Lord, is this. If the Section 8
notices were set aside and the procedure would be started afresh, would therebe a different outcome? I think that is where my four and a half years worth
of litigation comes in because in my submission the answer is no. That is
why in my submissions on legitimate expectation I highlighted the passages in
the cases where I said sometimes there may be a finding of legitimate
expectation but nothing more arises from that. I think it is highly relevant in
this context that until the preliminary issues were determined Mr. Moore did
not even accept that British Waterways had any locus in relation to this stretch
of waterway. So that point would have to have been overcome.
MR. JUSTICE HILDYARD: Sorry to interrupt and do correct me if I am wrong
because I am feeling my way here.
MR. STONER: Of course.
MR. JUSTICE HILDYARD: In the unpronounceable case one could not know
really what the process of consultation would result in. It might result in the
same and it might result - and this was the point -----
MR. STONER: Absolutely.
MR. JUSTICE HILDYARD: ---- in something different. Here you say there is no
something different; it is merely process. Therefore you have to ask what
difference has the failure of process as a pure pragmatic matter make?
MR. STONER: The word I think I used in my written submissions is in Ng Yuen
Shiu had been deprived of something. He had been deprived of the
opportunity to have consultation which might have led to a different outcome -
and that is why the Privy Council said it is entirely without prejudice to thefact that another deportation order may follow. But perhaps they thought it
was one of those cases where it probably would, but that did not obviate the
fact that Mr. Ng Yuen Shiu had a legitimate expectation that he would have an
opportunity, as I understood the consultation. It would be an interview, so he
would have his opportunity to plead his case. Contrast this case: in my
submission Mr. Moore, by reason of the procedural breach, has simply not
been deprived of anything because we have had hugely expensive litigation
and despite the criticisms of this side, I hope the criticisms are not universal.
In my submission one of the notable features is that my clients have not soughtfor me to take pleading points in relation to this case. They have sought to
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meet any points that Mr. Moore has sought to raise. Perhaps an illustration of
that is the property point. The property point was parked for the purposes of
this trial, but as my Lord records in the judgment, ultimately that came back to
the position that we said should have been the case in the first instance; we
were just relying on a navigation authority. Mr. Moore has not been deprivedof anything and he cannot say, at the end of this case, No, I have not been
given my opportunity to put point X and that is the critical factor. That is
why procedural human rights and also legitimate expectation, in my
submission - I drafted up a minute yesterday and it is entirely right, in my
submission, and in the light of my Lords judgment that it be recorded in the
judgment by way of a declaration that his legitimate expectation has been
breached; but equally the order then, in my submission, should continue that
there be no further order required in that respect.
MR. JUSTICE HILDYARD: One thing puzzled me, but I think it is answered by ...
Wandsworth LBC v Winder: because it is always so hard to shed the clothes of
the past, one always expects these sorts of matters to be dealt with by the
Admin Court with orders forcertiorari and that sort of thing.
MR. STONER: Yes.
MR. JUSTICE HILDYARD: My appreciation or perception of the cases - in
particularWandsworth v Winder- is that there is no straight jacketed process
and this court could do what the Admin Court could do, if satisfied that it was
warranted.
MR. STONER: My Lord, yes, understanding the overlap as well. In that way it
would make no sense if this court were of the view that the Section 8 notice
should be quashed.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: For this court to say that it did not feel that it had the jurisdiction,so to encourage yet further proceedings at yet further expense for another court
to consider in effect whether that should be the case. So I take no point there. I
just rely on the substance and say this is actually a case which falls well short
of any relief being appropriate.
MR. JUSTICE HILDYARD: Beyond a declaration.
MR. STONER: Beyond a declaration. And when it comes to human rights I
simply say that the correct approach is actually to perhaps reverse thesituation, fi I may it that way, from my Lords preliminary views in the
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judgment and say: well, actually the management decision is a given. It is
over to Mr. Moore to show why it is disproportionate that he should move off,
and I have highlighted a number of reasons. It is a feature of this case that Mr.
Moore has not produced evidence in relation to that. It is also a notable feature
of this case that one of the points that he has prayed in aid is that this vesselhas a home mooring elsewhere in Brentford. So this is not even a case where,
as sometimes happens with boaters for British Waterways where one of the
points that the court has to consider is that actually this person may have to
move away from their friends, their job etc, which is not a determinative
factor, but it is a factor for the court. That does not arise in this particular
instance. So for all the reasons I have put in writing I say it simply does not
get off the ground on human rights in this case, in my submission.
MR. JUSTICE HILDYARD: What you would say, being entirely brutal about it, isthis: whatever I might feel in the round, in reaching a provisional conclusion I
have too lightly stepped over the hurdle which is for Mr. Moore to surmount of
showing why the court should go behind the curtain of a management
decision?
MR. STONER: Yes, I do say that. In fact I think perhaps even slightly stronger, if
I may, I say what my Lord has concentrated on is the lack of explanation from
British Waterways as to justification, whereas I say the relevant law shows that
that is precisely what my client does not have to prove. It is for Mr. Moore to
show that actually he can overcome the hurdle, and it is a high hurdle, to show
that his particular circumstances - and that is why I put in the written
submissions the quote from the Disability and Services Commission as a sort
of example that actually if someone has got particular difficulties then that
may well be the sort of thing that the court would wish to consider. So to take
perhaps a silly example Mr. Moore is moored where he is. If he had to have a
24 hour oxygen supply which could not be done through tanks but piping had
been installed to the vessel by the Local Authority because that was necessary
in case of a particular incident, then that would be a highly relevant factor. It is
that sort of unusual factor, in my submission. However, there is simplynothing here.
MR. JUSTICE HILDYARD: If I were against you on this, both as regards
legitimate expectation and as regards infringement, and as Mr. Moore, I am
sure, will elaborate, he says that he should receive compensation.
MR. STONER: Yes.
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MR. JUSTICE HILDYARD: I know your argument that this is mere say-so and
there is no evidence of loss, but that could be dealt with by adjourning the
hearing yet further.
MR. STONER: It could.
MR. JUSTICE HILDYARD: In order that there be some sort of enquiry or
evidential analysis of that.
MR. STONER: My Lord, that is right. What I say is on the human rights first of
all the cases that Mr. Moore has referred to in his written submissions are
European Court of Human Rights cases, and what my Lord must be careful not
to do is to conflate the jurisdiction of the European Court of Human Rights
and this court. In fact this court does have jurisdiction to award damages inhuman rights cases, but it is actually Section 8 of the Human Rights Act 1998.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: It makes it plain - it is Section 8(3) - I am just reading from the
White Book now ----
MR. JUSTICE HILDYARD: Page?
MR. STONER: It is in Volume II, page 1308. If I start with 8(1). (1) In relation to
any act... - as it would be in this case - ... (...) of a public authority which the
court finds is (or would be) unlawful, it may grant such relief or remedy, or
make such order, within its powers as it considers just and appropriate. That
is fine.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: (2) But damages may be awarded only by a court which has power
to award damages... I think the civil high court has power to award damages.Then the critical aspects is 8(3)No award of damages is to be made unless,
taking account of all the circumstances of the case, including - (a) any other
relief or remedy granted, or order made, in relation to the act in question...;
(b) the consequences of any decision (...) in respect of that act - the court is
satisfied that the award is necessary to afford just satisfaction to the person in
whose favour it is made. Then in the notes at 3D/41 there is a reference half-
way down the note toAnufrijeva v. London Borough of Southwark. It said:
The court made clear its view that damages are not available as of rightlike damages for tort, but only as a discretionary remedy of last resort.
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The guiding remedial principle is restitutio in integrum so that the
claimant should, as far as possible, be put in the position in which he
would have found himself if Convention rights had not been infringed.
However, account must first be taken of effect of any other remedies
which the court has been able to provide. Any remaining significantpecuniary loss caused by the breach should usually be assessed and
awarded, but caution is to be exercised when deciding whether to award
damages for non-pecuniary loss and if so how much. The consequences
of the breach must be serious. The damage must be more than distress
and frustration, and the scale and manner of the violation can be taken
into account.
Now in this particular instance, in my submission, breaking it down, if my
Lord were against me and there were a breach of human right it would be aprocedural breach. That procedural breach would in effect entitle the vessel to
stay where it is until such time as that procedural breach is remedied. That
would be the appropriate relief and therefore one simply does not get on to the
question of damages. When it comes to the legitimate expectation, in my
submission the argument is much the same because in the decision of Lord
Woolf I referred to in my written submissions, he breaks it down into the three
categories. This is a procedural expectation, and he says that what the court
will do is if there has been a procedural legitimate expectation disappointed it
will require the consultation to take place and that would be the appropriate
relief.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: If you are against me on all of that, then unfortunately we would be
into a further hearing scenario because Mr. Moore has asserted that he has lost
sums and that he could not carry on the business. What the court has not
examined are factors such as why the business could not be continued in
circumstances where British Waterways had given an undertaking that it
would not take any action on the Section 8 notices pending the outcome of thiscase.
MR. JUSTICE HILDYARD: Sorry, there may be - carry on actually.
MR. STONER: Also in relation to the allegations of certain individuals have
moved vessels away because of the Section 8 notices, that again would have to
be something that would have to be examined. In so far as a caveat applicable
only to legitimate expectation, of course in the circumstances in which
legitimate expectation arose in this case, that plainly was not on the plate for
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trial because it was a point that was only explored afterwards, so my client
must have, in my submission, the opportunity to deal with that.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: In my submission, for the reasons I have set out, we do not actually
get to that stage.
MR. JUSTICE HILDYARD: I put this through you partly so that Mr. Moore can
be thinking about it in the meantime. It does seem to me that Mr. Moore would
have to persuade me that I can take into account other vessels, bearing in mind
in the case of legitimate expectations and the human rights infringement, if
there was one. It is very specific to the loss of his home. Secondly, and
perhaps another facet of that, one would have to show loss, not in consequenceof any other boats being there or not being there, but in consequence of the
loss or worry about the loss of hope. In other words, I would expect the court
to be fairly precise as to what the thing which needs just satisfaction is.
MR. STONER: Yes, especially the matters of a disappointment and the threat of
the Section 8 notices, as per the extract from the White Book - non-pecuniary
losses. The court should be very slow to consider that sort of matter.
MR. JUSTICE HILDYARD: It is hard to know how the court ever does assess it
but perhaps the court in its mysterious way just comes up with figures.
MR. STONER: Yes. What I would say, and it was not appropriate for today, but I
have the Clayton & Tomlinson tome on human rights. There is a whole
section in there, unsurprisingly, on damages. It appears from quickly looking
at that - I was going to say if the court was going to go down that route, I think
that would have to be another day because one would have to consider those
cases. But as I understand it from that short extract, if the court is minded that
there should be damages, the assessment is as per a tortious liability. So there
would have to be causation shown and matters of that sort in terms ofpecuniary loss. Non-pecuniary loss is very difficult. My Lord, if I can assist
you in any way in relation to either of the points....
Perhaps the only other point directly in relation to the different vessels, Mr.
Moore said that he lost his home Platypus because the owner decided to
move that vessel away, although that would have been about half-way through
the currency of these proceedings. But again, in my submission, there is just
no evidence in relation to exactly why that happened.
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MR. JUSTICE HILDYARD: It is not unusual, but I must say that I have found it
difficult in separating what is assertion and what is evidence.
MR. STONER: Yes.
MR. JUSTICE HILDYARD: I do not blame Mr. Moore for that because he has
done a very thorough job in terms of presenting his case. But it has
complicated issues and I think it is right that if there were any question of
damages, then we would have to have another hearing with directions as to
exactly what must be done.
MR. STONER: Yes.
MR. JUSTICE HILDYARD: I may very well need your assistance again.
MR. STONER: Of course.
MR. JUSTICE HILDYARD: Mr. Moore, would you like a go now? Do you need
any time to think things through, or are you content to proceed?
MR. MOORE: My Lord, thank you. I strongly suspect that ... as you know I will
not be frightfully learned about this.
MR. JUSTICE HILDYARD: Oh, I would not say that at all. I think your learning
has been very helpful and impressive. I have read carefully your written
submissions, so I assume that I have.
MR. MOORE: The latest one, my Lord?
MR. JUSTICE HILDYARD: Yes.
MR. MOORE: I do not think I can say terribly much more than what I have put in
there. If I can address just some of the points as I see are relevant from whatMr. Stoner said, which is why I believe it was useful for him to have gone
first.
MR. JUSTICE HILDYARD: Yes.
MR. MOORE: As far as the question of proportion is concerned, and this being
relevant to the management decision, I am saying that it is a very important
factor because if this was going to be regarded as a proportionate action, then
all boats that were in exactly the same situation would have to have been
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treated in the same way, which they were not. I take your point that you would
perhaps need more evidence on that ----
MR. JUSTICE HILDYARD: All I know about is the vessels which have been
named. My understanding is that in the case of Rocking Horse and LazyDaze which were the two ones which were allowed to be left, as I understand
it ----
MR. MOORE: I also referred you, my Lord, to the adjacent moorings where you
have a varying number of boats but never less than about six or nine in exactly
the same position.
MR. JUSTICE HILDYARD: I think you are right that I would need evidence of
that. I think the case has been, rightly or wrongly, confined in terms ofevidence to what the position was with respect to the vessels which were
identified precisely and their movements. It may very well be, and I quite
understand from photographs that there were other boats, but I do not think I
have sufficient evidence to draw any conclusions in that regard.
MR. MOORE: I understand that, my Lord. What I can say is that I did raise that
question.
MR. JUSTICE HILDYARD: Yes.
MR. MOORE: It would be perfectly possible to produce such evidence as you
thought was required.
MR. JUSTICE HILDYARD: What would it really go to? It would go to selectivity
or it would go to undermine their management decision, or both? It would
suggest it was not a proper management decision because it was not a rule
that was done fairly.
MR. MOORE: I am saying because if it was a management decision on the basisthat was alleged then that would be applied across all boats that fell into the
same circumstance.
MR. JUSTICE HILDYARD: Unless you could show some improper purpose,
would that not be a matter which the court simply could not enquire about
without itself becoming a Board member, if you see what I mean. I think what
Mr. Stoner is saying is that unless there is something very, very rum, the court
must let the managers get on with their job and let itself continue. It cannot
revisit. It cannot second-guess decisions. Unless you are saying that leavingother defined vessels signifies that it actually was just being wholly
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unreasonable, Machiavellian or something like that, that it is a management
decision. I have not put that very well, but do you see what I mean?
MR. MOORE: I believe I do, my Lord. I would still contest that the very fact that
others are not there does not make the decision a matter of addressing somepressing management urgency. That is one way of putting it. You can say:
fine, they have the possibility to do this because all these boats are here on
your finding unlawfully. The fact that they choose to do one or two and leave
the rest is a matter for them. I understand that point, but the fact that they do
and are so selective is, in my submission, a very strong indication that the
decision is not being made for the purposes alleged, shall we say.
MR. JUSTICE HILDYARD: So not a proper management decision?
MR. MOORE: Yes. I would also say in opposition of course to what Mr. Stoner
went on to say later that if the management decision was taken, as he
recognises, on misplaced grounds, then against him I would say that does
matter because the justification they were relying on has failed. So if that was
the basis of the management decision, then the actions taken - if the basis of
the management decision was wrong - has to be factored in.
MR. JUSTICE HILDYARD: It is a curiosity, that. I may be right, or I may be
wrong in this, but my conclusion is that providing you are only exercising
within the tidal stretches your public rights of navigation, you do not need a
license. But if you go beyond that, either in terms of where you choose to do
your boating or in terms of what you do with your boat by permanent mooring,
then you are subject to the control under Section 8, if I can put it that way.
MR. MOORE: I understand that, my Lord.
MR. JUSTICE HILDYARD: I understand your point that it flows from that that
semantically the reason given, i.e. no licence, was incorrect; nevertheless
substantively they were saying: whatever you were entitled to do you cannotmoor permanently. Do you see what I mean?
MR. MOORE: Yes. All I am saying is if that was the reason they took the
decision ----
MR. JUSTICE HILDYARD: It is flawed.
MR. MOORE: Yes. Also in line with that, I would say going on to the point with
Shiu and whether or not there was an opportunity given, I am saying for allthose boats that have since left because of the action taken, if they had been
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given the opportunity for discussion beforehand on the basis that British
Waterways were serving the notices, and the basis was accepted or, as you
found, to be flawed, then the position would have been that British Waterways
could say: well, we got it wrong.
MR. JUSTICE HILDYARD: What is the consequence? Your argument that the
decision is flawed would take one to the proposition that the decision should
be revisited - not made by this court because I have no idea about boating. But
it should be remitted to the Board to make the decision again upon the footing
that it cannot rely on the want of licence (under the terms of my judgment at
any rate) but it can rely on no right of permanent mooring. You say that they
might make a different decision once they had spotted that difference.
MR. MOORE: They could have gone back ----
MR. JUSTICE HILDYARD: But would they now? Do you see what I mean? Do
you say that it is possible that they would now?
MR. MOORE: I can say - well, no I cannot. I would presume that they would say:
very well, we cannot give you a Section 8 on the basis that we decided to in
the first place. We will now give you a Section 8 but for a reason that the
judge has now given us.
MR. JUSTICE HILDYARD: They might say: unlawfully moored is unlawfully
moored. Yes, it is true that we added additional words unlawfully moored
because you did not have a licence whereas we should have said unlawfully
moored because you have got no entitlement to moor. I do not want to be fair
in any sense, but I am struggling with practicalities of the matter as to whether
that could realistically make a difference.
MR. MOORE: I would say, if it is of any help, that in the circumstances of the
time, the boats, and those boats and others, had been allowed to moor there for
the previous 10 years. I would have said back then it would be unlikely thatthey would try to serve a Section 8 on the basis that those boats should not
have been at those moorings, when they had been permitting those boats to be
moored there for that length of time. It seems a very unlikely justification for
them to do.
MR. JUSTICE HILDYARD: As I have sought to imply or indicate the suddenness
with which BWB did this has caused me anxiety. But ultimately I did not feel
that there was a case for improper or collateral purpose. Having reach that
conclusion, right or wrong, at the moment I am finding it difficult to see anypractical utility in asking them to consider again the wording they used to
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describe their conclusion that your boat should not be allowed to stay where it
is. This is a court of law and I must be legalistic, but one has to examine the
practicalities, I think.
MR. MOORE: I would have said, as with theHong Kongcase, the Privy Councilthere did not recognise - as Mr. Stoner has quoted - that it was entirely open
for the Attorney-General to turn round and give another notice should he ----
MR. JUSTICE HILDYARD: After the process of consultation?
MR. MOORE: Yes.
MR. JUSTICE HILDYARD: It may be that as a practical matter, though none is
pleaded, that there is some expectation that boaters will be consulted, but thereis no proof of that nor anything in the rules that I have read. If you thought
that you had had a right to be listened to and to make all these points about the
fact of vessels being allowed to remain there for so long, the difficulties that
you face, and that that would have weighed if you had had an audience, I could
understand that. But if you have got no right in that respect, I am not sure I
can take it into account.
MR. MOORE: But if in terms of both legitimate expectation and presumably
human rights, I have a right to raise the issue of proportionality and purpose of
the management decision, given the circumstances, then I think that is an area
that I should be given the opportunity ----
MR. JUSTICE HILDYARD: I think what Mr. Stoner says, as you know - I am
sorry to repeat it but just so we get absolutely to the point - I think what he
says is that you have to open the gate before you are entitled to look at
proportionality, and the gate is the gate marked management decision. So he
is saying in effect that I am wrong in my approach in my judgment that I can
go straight to proportionality. He says you cannot; you have got to find the
key to the gate first. That is as I understand, putting it rather inelegantly, whatMr. Stoner is saying. I think you have to address whether he is right about that
in terms of theory, and that really requires a look atPinnock andPowell - and
if he is right about that, whether you have got the key by reference to the
factual situation.
MR. MOORE: The cases that I looked at in the last few days were things like the
Gillow v. The United Kingdom, plus theKay case as it went to the European
Court because with Gillow v The United Kingdom you had the finding where
the couple had a house that they owned but the owners - I cannot rememberwhich one it was - they were foreigners in effect, even though they were UK
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citizens inhabiting a home and they eventually ended up, after about a year of
litigation, selling up the home at a loss and moving on. The court did find that
their human rights were abused. I believe that that was purely on the
procedural aspect, that they have come ----
MR. JUSTICE HILDYARD: Do you have that case? The thing is I am afraid I
have to admit to the fact that I do not have the sort of encyclopaedic grasp of
all these cases. Is this something which we have to take into account? Does it
show a different approach thanPinnock andPowell? If so, can it survive
them, bearing in mind what the Supreme Court has uttered?
MR. MOORE: If you just give me a moment, I did put this in.
MR. JUSTICE HILDYARD: Did I overlook it?
MR. MOORE: On my paragraph 55 I made reference to it, my Lord. Gillow v The
United Kingdom which was under the heading of the Law Commissions
report.
MR. JUSTICE HILDYARD: I thought that this really went to the next stage of
what the proper response, so-called, of a finding of infringement was. Am I
wrong about that?
MR. MOORE: I suspect you are right about that, my Lord. I do not think I got to
read through the case itself as to what facts were found, other than what I have
just said to you.
MR. JUSTICE HILDYARD: I am inclined to accept that if there was a breach of
your human rights which cannot be made good except by some further
compensation, then the approach of the court and the amount at stake would
have to go to another hearing. I do not think it would be fair to either of you
for me to leap to some conclusion in that regard. I do not think you would
probably suggest it was fair, and Mr. Stoner suggests it is not. So I shouldimagine that we would only get to Gillow and the Law Commissions report -
and they are quite difficult assessments as to the proper response - at that
subsequent hearing. So really I am looking at the gate, and if you are through
the gate, proportionality. That is what I am looking at at the moment.
MR. MOORE: My Lord, I think I have said all that I can come up with in that
respect. Any further help I could be would purely be in response to any
question your Lordship had.
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MR. JUSTICE HILDYARD: Right. Anyway, your answer is it might address your
needs for a home but it would remove a right, as you assert it to be.
MR. MOORE: Yes.
MR. JUSTICE HILDYARD: The answer, I think, inevitably is going to be: you
just have not got that right because a judge has said you are entitled to be
moved on or removed. Consequences may be more serious than are
immediately apparent, but in a sense that is simply a consequence which
flows.
MR. MOORE: My Lord, I am answering as best I can the question you posed as to
what is the problem.
MR. JUSTICE HILDYARD: I am not in any sense wanting to diminish your
argument. I just want to make sure I have got the very best from you in
response to points which I feel might be made. I am not diminishing your
points, nor seeking to argue the toss with you. Notwithstanding how much
you have put into this - and you have been terrific - nevertheless in terms of
presenting your case I just want to make sure that I have got, on this aspect, the
best from you.
MR. MOORE: I appreciate that, my Lord. As I say, it is not only the land claim
but the investment in the actual facilities and utilities that I have provided there
for all of the boats there. It is something that is part of a still continuing
business. However, much it is true that I do not get a financial remuneration
from it, it is still something that I have a feeling of responsibility for and which
other people do... To be there and my being there is part of what makes the
others feel that there is a caretaker, which is basically ----
MR. JUSTICE HILDYARD: What you are doing. And that is the source of your
income, such as it is.
MR. MOORE: I do not derive any income from it, my Lord. What I do derive is a
payment in kind as it were in the fact of having a home there.
MR. JUSTICE HILDYARD: Yes. With apologies for interrupting, my perception
of what you are saying to me is that with regard to the gate their decision was
flawed because they misunderstood the licensing position and therefore
addressed it from the wrong perspective and was flawed in terms of process
both by reference to the legitimate expectations point that I have beencanvassing, and the haste point; and in point of detail, though quite an
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MR. JUSTICE HILDYARD: They did not take the point in the past, but they are
now taking the point that they do not want people - they worry that if they
allow this sooner or later, and I know there is a thin end of the wedge
element in this, but sooner or later the relevant stretch of water will become
less navigable or may give rise to obstruction of some kind.
MR. MOORE: That, my Lord, is only something that they can apply to exactly that
scenario, where something did come and increase. If one takes the view that
they are happy with the number and placement of boats as they currently exist,
as they have been, and in fact they have in the past put forward plans to
encourage more of them on both sides of the Canal, then the alleged concern,
my Lord, is not actually true. By maintaining the status quo, even though they
have in the past wanted to encourage more boats to be moored there,
maintaining it at the level that it currently is not going to be a problem to them.No other boats can actually come on to a mooring and stay without the consent
of the land owner. I am taking your Lordships finding on the fact that a land
owner has no power of consent to his land for mooring.
MR. JUSTICE HILDYARD: I am not saying that, am I? Why do you say that? If
there is a special right established, then I am not, so far as I am aware, saying I
am precluding that right. I am just saying that you have not got it.
MR. MOORE: The basis of a land owner being able to give consent or withhold
consent to the use of his land is presumably a factor because that is the specific
argument that British Waterways advance in the garden moorings, to which I
directed your Lordship, where they say a land owner has the right to agree or
disagree to whether you use it.
MR. JUSTICE HILDYARD: We had better clarify this. My understanding on the
end of garden mooring is the British Waterways Board accept that their only
right in this regards is either in respect of those numbers of mooring places
where they are owners and can give permission in right of ownership; and that
otherwise they are entirely independent on their regulatory powers. That isBritish Waterways position, as I understand it. I do not think anything I have
said in my judgment conflicts with that and is certainly not intended to.
Looking at it from the position of other land owners, I have said that the mere
ownership of a riparian right does not give that person a right, and therefore
does not give that person any rights to permit anybody else, to moor there,
other than in the course of navigation.
MR. MOORE: My Lord, what I was wanting to have clarified is whether he is
thereby precluded from his veto, if you like. In other words, the fact that he
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cannot give permission to someone to moor there, is he thereby prevented
from saying: you cannot moor there because it is my land?
MR. JUSTICE HILDYARD: Is the land owner able to injunct someone from using
it?
MR. MOORE: Yes.
MR. JUSTICE HILDYARD: I am not sure we canvassed the question of what a
land owners rights were in respect of a temporary mooring in the course of an
application. I have not considered that.
MR. MOORE: No, but what we did ----
MR. STONER: We did not, my Lord. I think what we would say, so that Mr.
Moore is clear, is that if there is a land owner of any river bed where there are
public rights of navigation, then that ownership is subject to public rights of
navigation. The prime example is the Crown who owns a large area of land
which is subject to public rights of navigation, their ownership is subject to
those public rights.
MR. JUSTICE HILDYARD: So for example if someone - in theKay case where
the example is given that someone in the course ofbona fide navigation may
need to stay at a place for some considerable time because something terrible
has gone wrong with the weather or the boats, or even a season - I think they
give the example in the Scottish case. I would imagine that a land owner
would have to accept that that public right of long user overrides to that extent
his private right to dictate what should happen on his land, but beyond that he
will only be able to rule the roost if he has a specific property right entitling
him to allow mooring or wharfage - not in right of a riparian ownership but
because he has a specific right. That is, I hope, what I sought to say.
MR. MOORE: My Lord, what I am addressing at the moment is the reversal ofthat; whether he has the right to deny because one of the arguments that were
not adjudicated on between us was the fact that in the preliminary issues we
were agreed that there is no right to a permanent mooring ancillary to
navigation. There was a question of specifically in the context of this case we
are not addressing mooring in the river bed, but we are mooring to the bank.
MR. JUSTICE HILDYARD: Yes.
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MR. MOORE: The position that I took is that there is no right whatsoever given by
the public right of navigation to moor even momentarily to private land. I
mean that is ----
MR. JUSTICE HILDYARD: I do not think I have adjudicated on that, but I wouldimagine that that is quite a difficult argument. I say no more because I am too
ignorant to commit myself really. I do not think we have dealt with the issue of
the interface between property rights and regulatory rights, and the public right
of navigation.
MR. MOORE: My Lord, if I can continue just a little bit to explain why I am
bringing this up -----
MR. JUSTICE HILDYARD: Yes.
MR. MOORE: It is established in case law that that is the case, even though we are
not ----
MR. JUSTICE HILDYARD: What is the case?
MR. MOORE: That a public right of navigation does not give the right of access to
a private bank so the land owner has the right to say you cannot ----
MR. JUSTICE HILDYARD: If it is established, then there is the answer.
MR. MOORE: So what I am saying, my Lord, provided that there was nothing that
I understood from your finding that runs against that ----
MR. JUSTICE HILDYARD: No, I would not dream of seeking to undermine
established authority if there be such. I must say that I had not read ... in that
light, but I do not know. In so far as you need clarity that I am not seeking to
undermine that sort of authority, you have that confirmation from me.
MR. MOORE: Thank you, my Lord. The reason I am going there is to address this
question of: oh, well we could have everybody coming up and establishing
themselves and us not being able to do anything because of the human rights.
Whereas the simple fact is that any of the land owners, including where they
are - an area of dispute - but there is no dispute that there are areas they do
own, they have the right to say you cannot moor there on that basis. That
bit of towpath we own or more properly I would suspect ----
MR. JUSTICE HILDYARD: They could not really delegate their responsibilities tothe particular preferences of a given land owner.
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MR. MOORE: No, but ----
MR. JUSTICE HILDYARD: There we are. I think what you say - forgive me if I
am wrong and add what you like - is that it is a thin end of the wedgeargument and that that was not a justification really offered at the time, and
that if that was the justification, it should be revisited.
MR. MOORE: My Lord, I think what I am saying most specifically, my Lord, is
that the scenario that Mr. Stoner painted in order to persuade you that this
would be the outcome if you were to do as I wished is not a realistic one
because there is the ordinary power to say: no, you cannot even start to
establish a right where we would need to come along and dispossess you.
MR. JUSTICE HILDYARD: What he was saying is: beware of treading in
management areas you do not understand.
MR. MOORE: I am just addressing the picture.
MR. JUSTICE HILDYARD: Well, as I say with the benefit of your written
submissions, is there anything you want to say further on eitherPowell or
Pinnock which really rose up late in the day? Therefore if you want five or 10
minutes to consider anything further on that, I would be very happy to allow
you that.
MR. MOORE: I have not had a chance to look at it, but I doubt it if ----
MR. JUSTICE HILDYARD: Do you want 5 or 10 minutes to have a look? Powell,
I think, rode into town this morning in your case because I had asked for a
copy you may not have had. I am not hedging for time. It is an important
matter to you, Mr. Moore, and you have invested a great deal of time and
trouble. If you want another 10 minutes, I am most content that you should
have it. I think Mr. Stoner has identified the particular parts of each case, andcan do so again for your assistance.
MR. MOORE: Perhaps, yes.
MR. JUSTICE HILDYARD: Would you like 10 minutes? Are you content with
that, Mr. Stoner?
MR. STONER: Of course, my Lord.
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MR. JUSTICE HILDYARD: I want to finish this by the short adjournment time,
and we have one or two other things to deal with. If we reconvene at quarter
past, will that be sufficient for your purposes or at least identify whether you
need further time.
MR. MOORE: Very well, my Lord.
MR. JUSTICE HILDYARD: We will adjourn until quarter past then.
(Adjournment)
MR. JUSTICE HILDYARD: How have you got on?
MR. MOORE: I will not take up much more time.
MR. JUSTICE HILDYARD: Okay.
MR. MOORE: Just briefly going through, Mr. Stoner has kindly lent me his
highlighted copy.
MR. JUSTICE HILDYARD: Just give me a moment, would you? (Pause)
MR. MOORE: He has given me his highlighted versions. Going through swiftly,
in paragraph 33 ofPowell - sorry, I think I have got that wrong.
MR. JUSTICE HILDYARD: That is all right.
MR. MOORE: No, I am sorry, my Lord. It is paragraph 33- G, just referring to the
concept of home and the protection of Article 8, it says, It will depend on
the factual circumstances namely the existence of sufficient and continuous
links with a specific place. For however much it would assist the case, my
home has been at this particular location. The actual shelter that I have had on
this location is first Platypus and then "Gilgie", so I would have said thathowever mobile those homes were, they were significantly attached in these
terms to this particular location as being my home. The case in my instance
would be a much stronger one than the situation where it was a caravan that
had arrived at s site and only there for two days where still it was not contested
that the question of Article 8 would not come up. It also goes on to the
legitimate aims. I am not going to go further on that one, my Lord. That was
as much as I could pick up from going in that one.
As far as looking atPinnock was concerned, from paragraph 45, it saysanybody in principle should have the right to raise the question of
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proportionality even if the right of occupation has come to an end. The
conclusion at the end of that paragraph 45 is talking about what the European
Court of Human Rights has flanked in terms of the views they took on Article
8 and continued possession. Both this and all the other case law so far as I can
see, other than the one I referred to, Gillow v. The United Kingdom is alldealing with a balance between one persons right of possession and another.
What I am saying is that this is not the same question. I understand that Mr.
Stoner has raised the fact that it can be rights of possession or management
decisions. From looking through these cases I understand it to be looking at
management decisions only in respect of the role of the property-owning
authority managing its property. It is in the light of competing property
interests, not as I would see it a question of management decisions only. That
is about as much as I can usefully add, my Lord, so far as those cases are
concerned.
MR. JUSTICE HILDYARD: It seems to me that you may argue that there is no
two - stage but only a one-stage process. You do not have to find the key to
the lock. You have got to accept - or Mr. Stoner must accept you when you say
that proportionality in the European sense is always to be addressed, but the
person alleging that the act was not proportionate is going to have to, in real
terms, surmount an obstacle which is the reluctance and refusal of the court to
become involved in management decisions. I think you may very well submit
to me, in thinking about it, that there is not a two-stage approach; thatPowell
has confirmed that there is a one-stage approach, but the burden is very much
on you to demonstrate why the prima facie position that managers should be
entitled to manage should be upset. I sense that Mr. Stoner may accept that.
So you would say, therefore, we must look at proportionality in the round.
This is not a case where you could simply be satisfied with the management
decision made. This is an exceptional case where the management process has
been flawed and hurried. Therefore we should consider all the matter in the
round. I think that is what your position is, is it not?
MR. MOORE: I would say so, my Lord, with the additional aspect, whether youaccept it or not, of the fact that the cases as far as I have read and understood
them refer to management decisions over the control of property - given that it
is the property law that we are balancing - the competing rights of possession.
MR. JUSTICE HILDYARD: I think it may go broader than that. I understand
what you are submitting, but I think it may go broader than that to
management decisions. It is not right of ownership. It is right of control really
which his in issue and the exercise of rights of control as a management
matter. I take your point. Can I just ask one further point, unless you wish toadd on this? You do not say, do you, that if I were to conclude that there was a
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MR. MOORE: I am sorry that ----
MR. JUSTICE HILDYARD: I am sorry, I indicated a sort of sense upon me, which
I do not wish to indicate to me, but it has been a long and expensive process. Iwould not wish it to happen again of my own motion. Is there anything else
that you want to add?
MR. MOORE: Not that I can think of, my Lord.
MR. JUSTICE HILDYARD: Mr. Stoner, I have two points really, unless you have
anything further in reply.
MR. STONER: I was just going to mention a couple of points briefly in reply onwhether it is a one-stage or two-stage.
MR. JUSTICE HILDYARD: Yes.
MR. STONER: I think really I rely on paragraph 37 ofPowell. What I say there,
or what the Supreme Court said there, Lord Hope, was because of the
management duties he said, ... in the overwhelming majority of cases, for the
local authority to explain and justify its reasons... - there is no need for that.
It will be enough that the authority is entitled to possession because the
statutory pre-requisites have been satisfied... So in this case I say the statutory
pre-requisites, as my Lord has found, entitled to serve a Section 8 notice.
Then he goes on to say, The court need be concerned only with the occupier's
personal circumstances and any factual objections she may raise... So
whether it is a one-stage or two-stage, in my submission it is the seamless test.
As is put elsewhere inPinnock and inPowell, it is a given in relation to the
management duties.
The only other thing I was going to say is Mr. Moore referred to Gillow. It is
a case I read a long time ago. All I can say is that the Supreme Court did referto it inPowell, but in the context of what the meaning of the home was. So
they obviously did not think that it needed to be referred to in relation to
proportionality. It is not disputed that the vessel itself was a home here. The
only other point I was going to mention by way of reply, Mr. Moore referred
to the historical use of the mooring. It is a long time ago now, but Mr. Farrow
gave some evidence - and he addresses it in his witness statement as well -
where he agreed with Peter Collis that the pontoon would be put across the
entrance to the workhouse dock, and as far as he was concerned - and I
remember he said in the witness box, whether it was right or wrong - what wason Workhouse Docks site was not going to be his responsibility or British
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Waterways responsibility, but what was on the Canal side would be. He said,
yes vessels would maybe come along there and they would moor up, but that
was to wait until the tide was sufficient to get them into Workhouse Dock, so
that would just be public right of navig