CaRT v Wingfield Day 1)

IN THE CHESTERFIELD COUNTY COURT No. 3NG01237

Tapton LaneChesterfield S41 7YW

Monday, 3 rd March 2014

Before:

HIS HONOUR JUDGE PUGSLEY

B E T W E E N :

CANAL & RIVER TRUST Claimant

- and -

ANDY WINGFIELD Defendant

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Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers

5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 7737

[email protected]

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MR. J. FOWLES (instructed by Shoosmiths) appeared on behalf of the Claimant.

MISS V. EASTY (instructed by Community Law Partnership) appeared on behalf of the Defendant.

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Discussion re bundles 1Opening submissions by Mr. FOWLES 3Submissions re bias by Miss EASTY 4Opening submissions by Mr. FOWLES continued 7Submissions by Miss EASTY re the legislation 40

Mr. STUART GARNER , affirmed

Examined by Mr. FOWLES 46Cross-examined by Miss EASTY 62Re-examined by Mr. FOWLES 80

Discussions re settlement 83

Transcriber’s note: Prepared without access to case documents

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BEVERLEY F. NUNNERY & CO.OFFICIAL COURT REPORTERS AND AUDIO TRANSCRIBERS

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Recording started late at 10.28.31

JUDGE PUGSLEY: Yes, I have an opening skeleton argument on behalf of the claimant. I have a skeleton argument on behalf of the defendant. I have defendant’s case law and I have a case summary.

MR. FOWLES: Your Honour, do you have my authorities bundle as well. There should be a claimant’s----

JUDGE PUGSLEY: Yes, index to claimant.

MR. FOWLES: Yes, and my learned friend just wants to clarify that you have hers as well, which is, I think, a white bundle of authorities.

JUDGE PUGSLEY: I do not think I extend to a bundle, but I do have defendant’s case law bundle, which is loose leaf.

MISS EASTY: Yes, I think the other one will be at Nottingham. There should be a proper bundle. I gave an extra copy in, but I have one here.

JUDGE PUGSLEY: Okay, fine, lovely, red, yes. (Same handed) Thank you. Your opening skeleton argument, which was fairly fleshed out, is the only skeleton argument you have done. I am not suggesting that you should have done another one.

MR. FOWLES: It is the only one I have done.

JUDGE PUGSLEY: And your defendant’s skeleton argument equally is the only one you have done, Miss Easty, yes?

MISS EASTY: Yes.

JUDGE PUGSLEY: Yes, fine. Yes?

MR. FOWLES: Your Honour, I am assuming that, since the bundles have only recently arrived from Nottingham, or have otherwise been copied for you, whilst your Honour is on top of the broad issues in the case, it will be necessary for me to do an opening?

JUDGE PUGSLEY: Well, you set it out pretty well in your skeleton argument, if I may say so.


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MR. FOWLES: I appreciate that, thank you, your Honour. It may just be helpful for your Honour if I went through some of the factual background----

JUDGE PUGSLEY: Yes.

MR. FOWLES: --and the legislation, because it is not the easiest set of legislation in the world to see how it fits together.

JUDGE PUGSLEY: No. Can you just help me as to one thing? I have various consultation papers for the Lee & Stort Navigation.

MR. FOWLES: Your Honour, I am unable to help you there. I am not sure what the relevance of those is. Perhaps my learned friend can assist.

JUDGE PUGSLEY: I achieved 45 per cent for geography, sagacity for getting a pass and an ample demonstration of my contempt for geography as an academic subject, being a pot pourri of other disciplines, but is Lee & Stort not down in Hertfordshire?

MISS EASTY: That is right, your Honour. The reason why it is in is to demonstrate the most recent consultation in respect of the continuous cruising licence. The extent of navigation required etc., etc., has been the Lee & Stort Navigation, where the consultation came back with certain conclusions in respect of what was reasonable in all the circumstances and what the public and canal users thought of the extent of the neighbourhood. It is relevant, of course, to the Lee & Stort, but there has not been one here, as far as I am aware, your Honour, so that is why. It is just to basically demonstrate the----

JUDGE PUGSLEY: It is a template, you would say, of how a consultation could and should take place?

MISS EASTY: More that the results of the consultation is something that should inform CRT’s approach in cases such as this.

JUDGE PUGSLEY: Yes.

MISS EASTY: It is as simple as that, but, your Honour, no, of course, I am not particularly good at geography either, but I do know that it is not up near here.

JUDGE PUGSLEY: Right, that is all we need to know, but, yes, I can see the point. The other thing, so that I can just make sure that I am not proceeding on a totally false basis, is that the Claimants, by a series of machinations of Acts


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of Parliament and the like, have taken over the powers of the old British Waterways Board.

MR. FOWLES: Yes, your Honour. That happened in July 2012. Your Honour, essentially, the powers, rights, liabilities and assets of the British Waterways Board were vested in the Canal & River Trust and it is necessary, for the purpose of this case, to look back to the history of the powers and assets of the British Waterways Board to understand what is going on here.

This claim, of course, is for a declaration in support of the Canal & River Trust’s exercise of its statutory powers to remove vessels in certain circumstances and for injunctive relief in support of that enforcement.

The defendant – I think this is uncontroversial – lives on a boat called The Hildegarde and he says in his witness statement that, since February 2013, he has been moored at the County Hall Steps. I will go on to matters of geography shortly. I understand in fact that he has moved somewhere else recently, but essentially what has happened is that, in the last few years since around 2010 when Mr. Wingfield lost his permanent mooring, he has moved around the River Trent and the Nottingham & Beeston Canal which joins it. Primarily, in the 2012 period, he was moving between an area called Beeston and an area called Holme Lock.

Now, your Honour, the maps in the bundle may not assist you as much as some maps that I am hoping are agreed as things that I can introduce now.

MISS EASTY: Your Honour, I hope we will be able to agree those maps, but I have not gone through them with my client. They were given to me----

JUDGE PUGSLEY: Well, there is a map at SG1.

MISS EASTY: They are additional maps, your Honour, which I do not think are in your bundle, but we will look at them and take instructions on them as soon as possible. They were handed to me shortly before this hearing.

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

MR. FOWLES: Sorry, which page, your Honour?

JUDGE PUGSLEY: Page 20.

MR. FOWLES: Yes, your Honour.


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MISS EASTY: Your Honour, I do not want to get up particularly, but, in terms of the matter that you raised this morning that you represented on behalf of BWB back in the day, yes, your Honour, we have concerns in respect of that. I asked my client, said what you said and said “What do you think about that” and he said “Well, that’s over for me” or equivalent. So he has concerns.

JUDGE PUGSLEY: Have you any authorities that you would like to suggest that might be relevant?

MISS EASTY: Well, not with me, your Honour, but, in terms of bias and apparent bias, that is something that is not for me necessarily to say. It is in terms of the eye of the beholder, and in this case that is the defendant.

JUDGE PUGSLEY: Yes, but the eye of the well informed beholder, not of subjective belief.

MISS EASTY: No, but, again, the appearance of it is of significance. The reason why I raise it, your Honour, and again we only had the very briefest of discussions, as you will appreciate, because we only had five minutes to discuss the matter, if I had had longer, then maybe I could have gone into it in greater length, but the reason why I raise this is because I think, and I think my learned friend has made clear, that the CRT seek guidance in respect of various approaches to this legislation and there is a possibility that certainly we will seek clarification, whichever way it goes, from the higher courts. In terms of that----

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

MISS EASTY: I think there is a very real possibility, whichever way it goes, that we will seek clarification from the higher courts.

JUDGE PUGSLEY: Are you legally aided?

MISS EASTY: Yes, your Honour, but, your Honour, certainly from where I am standing it will be the other side who will be seeking guidance from the higher courts, but the difficulty is that, if you have an individual who possibly, on the face of it, appears to have a familiarity or confidence or whatever, and again I do not intend to use----

JUDGE PUGSLEY: Have a what?

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


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JUDGE PUGSLEY: I acted for British Waterways Board over 20 years ago, at the most, I left the Bar in 1985.

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

JUDGE PUGSLEY: Well, it looks as though your client is just trying to put this matter off.

MISS EASTY: No, not at all.

JUDGE PUGSLEY: Unless you can produce any authority or reasons. I mentioned it because it is right you should be able to deal with it, but, at the moment, I am totally mystified as to why I should have bias for someone who instructed me 25/30 years ago.

MISS EASTY: Well, your Honour, as I pointed out as well, I only had the very briefest opportunity to mention this or discuss this with my client and so all I said to him is what I said to you at the outset he said. If my client is aware that it was so many years ago and etc., etc., that may well allay his fears and I am not----

JUDGE PUGSLEY: I do not take it personally.

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

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

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

JUDGE PUGSLEY: I am not suggesting that you are acting unprofessionally, I hasten to add.

MISS EASTY: But it is an issue that we should deal with at the very start is what I say.

JUDGE PUGSLEY: Yes, certainly.

MISS EASTY: That is why I jumped up, as it were. Again, I do not have authority in front of me, your Honour, because I did not anticipate this. Now, it may be, if I can take a few more minutes to explain to my client the situation, how long ago it was, etc., etc., that may allay his fears, because I only had a few minutes to mention it.


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JUDGE PUGSLEY: Yes, all right, have five minutes or as long as you need.

MISS EASTY: Thank you, Sir.

JUDGE PUGSLEY: I mean, as far as I can recall, I left the Bar in 1985 and I do remember receiving briefs from the British Waterways Board. As a judge, I have never been asked to recuse myself because I know the barristers concerned, but I sit in a different area from where I practised, but I do not think I have had cases where I have known solicitors or the solicitor’s firm. Of course, it would be a very different matter if an immediate party to proceedings was a friend, you know, if I not only had a professional but a social relationship. I cannot envisage there are circumstances in which one would ever continue if that person’s evidence was in issue, but I have mentioned it and perhaps unwisely, but I felt I ought to mention it, but I have to say I will need some persuading because it has not stopped me trying mining cases where I have acted for the claimants when we had a mining industry. We occasionally get mining cases.

MR. FOWLES: Your Honour, I do not have the relevant authorities with me, although, if there was a short adjournment, I am sure we would be able to find them for you. My first point is that, of course, it is for my learned friend to make clear what her position is and whether she is applying for your Honour to recuse himself.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Therefore, it is for her to make that application and make the position clear.

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

MR. FOWLES: The second point is, just as a matter of common sense, it would be absurd if your Honour’s situation could lead to your recusal in circumstances where many judges who sit in the Chancery Division, for example, used to be Treasury Counsel and Treasury Counsel would have acted for a number of departments within the Government and yet would often hear Chancery cases in which a Government department was a----

JUDGE PUGSLEY: Or, if I may say so, to use an even more appropriate, more widespread issue, does a judge who has practised in Manchester, Leeds or Birmingham solemnly recuse himself from any case in which the CPS are involved because his main client when he practised there was the CPS? Sorry, it is a rather less refined view.


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MR. FOWLES: Yes, but exactly.

JUDGE PUGSLEY: In fairness, let me say to Miss Easty, I raised it and I think you ought to have time.

MISS EASTY: That is all I am asking for.

JUDGE PUGSLEY: Yes. I have not closed the door. There may be aspects of the case which have not occurred to me and you must have the opportunity to consider them.

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

JUDGE PUGSLEY: I should say at the moment I do not at all hold against your client that you have nodded it through and he is perfectly entitled to raise it. At the moment, I am somewhat doubtful, but judges can change their minds like anybody else. I have not heard the argument.

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

JUDGE PUGSLEY: Yes, okay, half past.

Short adjournmentRecording started from 11.30.17

JUDGE PUGSLEY: … and I suspect a lot earlier.

MISS EASTY: Then I think my client finds that reassuring, so I do not need to make any application.

JUDGE PUGSLEY: No. Good, thank you, but it is right that you had time to deal with it.

MISS EASTY: Thank you.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Your Honour, I was about to show you some maps, which it may be I can do now, can introduce them into the bundle, if my learned friend is happy for me to do so.


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MISS EASTY: Your Honour, we have no objection to the maps, but we have not been provided with a full map of the entire location. I understand from my learned friend that that will be coming, in which case, when that comes, I have no objection to that.

MR. FOWLES: There is a full map in the bundle, your Honour, but I am just seeking to introduce more close-up maps which would give your Honour a better idea of the location.

JUDGE PUGSLEY: Yes, okay.

MR. FOWLES: May I hand these up?

MISS EASTY: Yes, but could you please provide the entirety?

MR. FOWLES: There is one in the bundle which I will take your Honour to. My learned friend can interrupt me if she feels I am overstepping the mark.

MISS EASTY: I would----

JUDGE PUGSLEY: Come on, let us get on with this case. Sorry, unless you are suggesting someone is going to fraudulently produce a map which has not yet been devised, I mean, let us get on with it. (Same handed) This is a map of?

MR. FOWLES: The first map, I have numbered these maps pp.260 to 263.

JUDGE PUGSLEY: Yes.

MR. FOWLES: To go at the back of the bundle, but perhaps it is best to keep them out of the bundle for the moment. The first page shows the point at Meadow Lane Lock which the Nottingham & Beeston Canal to the north diverges from the River Trent. Do you see that there is one waterway at the bottom?

JUDGE PUGSLEY: It is in blue, the Beeston Canal?

MR. FOWLES: Yes, exactly. So the two lines, the bottom line is the River Trent.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And the top line is the Nottingham & Beeston Canal.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: Now, my understanding is that, until very recently, the defendant, Mr. Wingfield, on that map was at County Hall Steps. Do you see where County Hall is on that?

JUDGE PUGSLEY: Yes.

MR. FOWLES: Page 261 shows a zoom out, if you will, of that particular area. So where you have Holme Lock on the right, that is the River Trent flowing east/north east.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Ultimately towards Newark.

JUDGE PUGSLEY: Well, ultimately towards Goole, is it not? It comes out on the Humber?

MR. FOWLES: Yes, your Honour, I think that is right. Then, to the left-hand side of Meadow Lane Lock, again, to the north you have the Nottingham & Beeston Canal and, to the south, you have the continuation of the River Trent. Now, the reason why, as I understand it, the Nottingham & Beeston Canal exists is because, beyond a certain point near County Hall Steps, the River Trent is no longer navigable, so that the Nottingham & Beeston Canal is a sort of bypass of that area of the River Trent.

JUDGE PUGSLEY: Right, yes.

MR. FOWLES: Going further to p.262, this is, as it were, to the west of p.261, so, if you place 261 on the right and you place 262 on the left, you see that Beeston Roadside Moorings is on the Nottingham & Beeston Canal just near the point where the River Trent and Nottingham & Beeston Canal join each other.

JUDGE PUGSLEY: It is to the east actually.


JUDGE PUGSLEY: No, sorry, it is to the west of Nottingham.

MR. FOWLES: It is to the west of Nottingham and just to the east of the confluence of the Trent and the canal.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: Which is at Beeston Weir. Following on p.262, the Trent further down to the west, you will see a sort of crossroads of waterways. This is where p.263 comes in, because p.263 shows Loughborough, which is to the south of that crossroads and that is on the River Soar, and the River Soar runs down south from the confluence on p.262.

JUDGE PUGSLEY: So where you get the meeting in the Trent Valley way down through Attenborough, Thrumpton, Trent Valley, all right you then get the Trent continuing to go its merry way towards Burton-on-Trent and ultimately Stoke-on-Trent, yes?


JUDGE PUGSLEY: You have got bisecting that a canal.

MR. FOWLES: I think it is the River Soar, your Honour.

JUDGE PUGSLEY: The River Soar, okay, and there you go due south. Is the Soar navigable?


JUDGE PUGSLEY: Right down to Loughborough? What happens to the Beeston Canal? It ends at Beeston?

MR. FOWLES: Well, the Nottingham & Beeston Canal, if your Honour looks at p.261.

JUDGE PUGSLEY: Yes.

MR. FOWLES: You will see where the Beeston Canal starts off to the north and west at Meadow Lane Lock and then it ends by rejoining the River Trent on p.262.

JUDGE PUGSLEY: I see, yes, so it was a purely local diversion because of the fact that the Trent was not navigable at that point but becomes navigable at a later point.

MR. FOWLES: Yes, your Honour. Now, your Honour will find a broader scale map at p.144, and this is where I am trying to allay my learned friend’s concerns. On p.144 of the bundle----


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JUDGE PUGSLEY: Yes.

MR. FOWLES: --you will see an overall picture, which shows how, in the top right-hand corner, you have Newark-on-Trent, which is to the north east.

JUDGE PUGSLEY: Yes.

MR. FOWLES: The Trent is flowing down to near West Bridgford, where the Nottingham & Beeston Canal creates a diversion for it.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And then further on down the Trent, it goes past the A453 and then gets to the confluence with the Soar and the Soar heads down to Loughborough, to the south. So the main area, just staying on p.144, at least on the claimant’s case, the main area where Mr. Wingfield has been moving up and down when he has been moving, has been between the dot at Beeston on that map and the dot which includes a yellow dot to the right of West Bridgford. That is essentially the area between Beeston & Holme Lock.

JUDGE PUGSLEY: Can anyone give me a distance?

MR. FOWLES: Well, that distance, it is thought, is about 12km, if one takes into account the length of the Nottingham & Beeston Canal.

JUDGE PUGSLEY: I know there is a rule that you have to go metric, but it ends at the Trent coming up from the south.

MR. FOWLES: Sorry, what ends at the Trent, the rule that you have to go metric?

JUDGE PUGSLEY: Yes, we do not believe in it here.

MR. FOWLES: 12km I think is maybe around nine miles, but I would have to check that, your Honour. (Counsel conferred) Your Honour, I did do some conversion in my skeleton argument which may assist.

JUDGE PUGSLEY: Yes, I saw that.

MR. FOWLES: 5km is three miles.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: So 10km is six miles, so it is going to be around about seven or eight miles, is it not?

JUDGE PUGSLEY: Yes, so your case is that, effectively, Mr. Wingfield was moving between West Bridgford and the Holmes Lock?

MR. FOWLES: No, between Beeston and----

JUDGE PUGSLEY: Sorry, between Beeston and Holmes Lock.

MR. FOWLES: And Holme Lock, as I referred to earlier, is on p.261.

JUDGE PUGSLEY: Is it stamped yellow?


JUDGE PUGSLEY: On the plan at 244?


JUDGE PUGSLEY: And he was doing that by going up the Beeston Canal?

MR. FOWLES: Yes, your Honour, he had to because that part of the River Trent is not navigable.

JUDGE PUGSLEY: And then joined the Trent just beyond West Bridgford?


JUDGE PUGSLEY: Yes.

MR. FOWLES: Now, I have to just point out in fairness that this map, which was produced by the claimant and the dots are produced by the claimant, does also show that he was sighted on occasion in Newark, which is to the north east, and we say he was sited there in July 2012. That is the yellow dot.

JUDGE PUGSLEY: Yes.

MR. FOWLES: The colour coding you will see on the left. Then November 2012 he was cited in Loughborough, which is the red dot down at the bottom.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: But, broadly speaking, and I actually do not understand this to be particularly controversial, broadly speaking, he was in that 12km gap between Beeston and Holme Lock.

JUDGE PUGSLEY: Yes.

MR. FOWLES: My learned friend points out that 12km is 7 miles, 803 yards and my instructing solicitor says that it is 7.45 miles, so they are the same thing. Seven and a half miles let us call it.

JUDGE PUGSLEY: Yes.

MR. FOWLES: It is the same thing.

JUDGE PUGSLEY: Yes. The gist of what you are saying is that, if we exclude the exciting trips out to Loughborough and the equally exciting trips up to Newark, it is your case that, for practical purposes, he was holing up or parking up, whatever the correct word is, in the seven and a half or seven to eight miles between Beeston and Holme Lock.

MR. FOWLES: Yes, your Honour. It has just been pointed out to me by my learned friend that the defendant also maintains that he was at Long Eaton at a certain point.

JUDGE PUGSLEY: Yes.

MR. FOWLES: But, presumably, that would have been on the way to Loughborough, because that is on the way to Loughborough on the River Trent.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Now, one of the issues that is taken by my learned friend is that the County Hall Steps or perhaps other part of the Trent as well are not within the ownership of the Canal & River Trust and my learned friend----

JUDGE PUGSLEY: Nor is the Nottingham Crown Court, which is adjacent to the delights of the canal.

MR. FOWLES: Well, I cannot help your Honour with that. That no doubt is so, but, for that reason, I would, if I may, just like to take your Honour through the legislation so that your Honour sees where I differ from my learned friend on that particular point, because my learned friend also relies on a Court of


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Appeal case called Moore v British Waterways Board. I need to explain to your Honour why that case is distinctive and distinguishable.

JUDGE PUGSLEY: Well, probably, if you go to the case, that will have the legislation in it, will it not? Is it a decision of Lord Justice Mummery?

MR. FOWLES: Yes, and Lord Justice Lewison.

JUDGE PUGSLEY: Well, I suspect that has everything in it.

MR. FOWLES: Okay, your Honour. Well, I will just say something about----

JUDGE PUGSLEY: Take whatever course you want. Do not worry. We are always fond of judgments from Lord Justice Mummery. They make so much more sense than the legislation does.

MR. FOWLES: Your Honour, I would like, if I may, to take your Honour to the legislation first----

JUDGE PUGSLEY: Certainly.

MR. FOWLES: --because what I would need to do to explain the Court of Appeal decision is to take you to the lengthy decision at first instance of Mr. Justice Hildyard. Mr. Justice Hildyard does himself go through the legislation so, in order to understand the position, I think it would be helpful just to take you to the statutes, if I may.

JUDGE PUGSLEY: Yes, fine.

MR. FOWLES: Now, the first statute your Honour will need to have in mind is at p.21 of the trial bundle.

JUDGE PUGSLEY: Sorry, is this “Index to the Claimant’s Authorities”?

MR. FOWLES: It is actually in the trial bundle, p.21 of the trial bundle. Mr. Garner, in his witness statement, helpfully explains the statutory position and, accordingly, many of the background statutes are included in the exhibit. So, at p.21, you have the Transport Act 1962.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Section 1 basically created three boards, among whom the function and the property of the British Transport Commission were divided, which


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included the British Waterways Board. At p.23, you have s.31 of the same Act and this is to do with, as I say, the distribution of the property, rights and liabilities of the Commission in the relevant boards. On the next page, subsection (5), p.24, your Honour will see:

“There shall be transferred to the British Waterways Board the property, rights and liabilities comprised in the part of the Commission’s undertaking constituted by –

(a) Their invalid [and that is a typo, it should be their inland] waterways … and

(b)The harbours listed in Part III of the Third Schedule to this Act.”

So one goes back to what the British Transport Commission had vested in it to understand what the British Waterways had, unfortunately.

At p.26, you have the Transport Act 1947. Essentially, the effect of s.12 on this page is that the undertakings of certain bodies, which historically had control or ownership of particular waterways and in fact railways in this case, were transferred to the British or vested in the British Transport Commission. So s.12 refers to those bodies as being those identified in Schedule 13.

JUDGE PUGSLEY: Section 13 or Schedule?

MR. FOWLES: Schedule 13.

JUDGE PUGSLEY: Whereas this is Schedule?

MR. FOWLES: No, sorry the Third Schedule, which is on p.28.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Part I is to do with the railway bodies, which is irrelevant. On p.29 you see the canal and inland navigation undertakers. You will see that the British Transport Commission had vested in it the undertakings of (around about the middle of that column) the Lord Mayor, Aldermen and Citizens of the City of Nottingham in respect of the Trent navigation undertaking and, below that, the Trent Navigation Company. Those are the relevant bodies with responsibility for the areas in question in this case, but I can go further and just identify the specific areas by reference to the Transport Act 1968, which appears on p.30.


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Now, on p.30, Parliament divided the waterways into commercial waterways on the one hand and to cruising waterways on the other. The breakdown was specified in Schedule 12 of that Act and p.33 shows Part II of Schedule 12 and, on p.34, you will see the relevant areas for our purposes. Towards the end of that column before Schedule 13, you have:

“The Trent Navigation from Shardlow to the tail of Meadow Lane Lock, Nottingham, by way of the Beeston Canal and part of the Nottingham Canal and including the branch to the River Soar and the length of the River Trent from its junction with the Nottingham Canal to Beeston Weir.”

Now, I do not want to trouble your Honour by taking you back to the maps, but my understanding is that that area includes the area I have shown on the maps because Shardlow is a long way to the west of the confluence with the River Soar and Gainsborough Bridge is a long way to the east of Newark. So there is no question that the Canal & River Trust, who is the successor body to the British Waterways Board, had ownership or control of all of the relevant areas in this case.

Now, for the purpose of it carrying out its responsibilities as navigational authority, the British Waterways Board (and now the Canal & River Trust) has certain duties and powers, clearly. The relevant powers for the purposes of this case are, first of all – now is the time for my authorities bundle, your Honour – at tab 3 of my authorities bundle, you will find the British Waterways Act 1971. Your Honour may find it helpful just to look at the preamble which appears a few pages in.

JUDGE PUGSLEY: Would it not be marvellous if someone could find a binder that did not have an imperialistic tendency to mess up the space? They would make a mint, clearly.


JUDGE PUGSLEY: Yes.

MR. FOWLES: So this was “an Act to make provision for regulating the use of pleasure boats and houseboats on certain of the inland waterways”.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: And the relevant section for our purposes is s.13, which deems it not lawful to:

‘moor, place, keep or maintain any houseboat in an inland waterway (whether or not the houseboat shall have been so moored or placed before the passing of the Act) unless a certificate, in this Act referred to as a “houseboat certificate” in relation to it is then in force.’

That is the key provision, and what the rest of s.13 sets out is a notice procedure whereby a notice is served to the person having control of the houseboat and, following service of that notice and the expiration of that notice in subsection (3), the board can have the power to remove or demolish the houseboat in the notice. I would just like to repeat, because this is important from the point of view of the Court of Appeal case, that s.13 very clearly states:

“It shall not be lawful to moor, place, keep or maintain any houseboat in an inland waterway …”

I will, obviously, need to come back at some point to the definitions of “inland waterway” and “houseboat”. Broadly speaking, the definition of “houseboat” includes reference to a houseboat not including one “used for bona fide navigation”. So there are obvious parallels with s.17 of the 1995 Act.

JUDGE PUGSLEY: Can we get away from the Hampton Court of the maze of statutory provisions?


JUDGE PUGSLEY: In plain language, you have to have, if you are going to have a houseboat, a certificate?


JUDGE PUGSLEY: Yes?

MR. FOWLES: Otherwise it will not be lawful to be on the waterways. In that case, your Honour, I will move straight onto the cases.

JUDGE PUGSLEY: Fine.

MR. FOWLES: Now, it is important to be clear that in Moore v British Waterways Board----


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JUDGE PUGSLEY: Which is at page?

MR. FOWLES: It is in my learned friend’s authorities bundle. First instance is at tab 4.

MISS EASTY: First instance is the first case in our authorities bundle. It is in the red folder.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Now, it is important to be clear what this case was about. Mr. Moore----

JUDGE PUGSLEY: Are we looking at the Court of Appeal?

MR. FOWLES: We are looking at first instance, tab 4,your Honour.

JUDGE PUGSLEY: I am sorry, I do not have any pagination on the tabs.

MR. FOWLES: It should be the final tab.

JUDGE PUGSLEY: Yes.

MR. FOWLES: I will just do a bit of explaining, your Honour, because it is a long judgment. Mr. Moore was the owner of a bank of the River Brent and he moored his boat on the bank of the River Brent and he claimed to have a public right of navigation on the River Brent which entitled him to moor there. He said that his public rights of navigation, essentially, included a riparian right of mooring because he was the owner of the bank. Mr. Justice Hildyard rejected the idea that he had a riparian right of mooring, that any right of mooring flowed from his ownership of the bank and he also held that, since Mr. Moore did not have a licence to use the River Brent or the Grand Union Canal, his mooring there was unlawful, because he said that nothing in the pre-existing law made it lawful to be moored there without a licence. So, as a matter of fact, the British Waterways Board served enforcement notices on Mr. Moore on the basis that he was unlicensed and Mr. Moore then challenged the validity of those enforcement notices in the High Court.

The crucial point for present purposes is that s.13, which I have just referred you to, was not relied upon at all by the British Waterways Board. If you turn to para.56 of Mr. Justice Hildyard’s judgment, you will see that s.13 is mentioned as something that was referred to in submissions.


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JUDGE PUGSLEY: Yes.

MR. FOWLES: Over the page or, rather, at para.57, Mr. Justice Hildyard essentially acknowledges the potential relevance of the section but, in para.59 he makes clear:

“Whether this is the explanation or not, at all events BWB has not invoked section 13 of the 1971 Act in this case. The notices in dispute do not relate or refer to it: they refer only to section 8 [of the 1983 Act] …”

So, essentially, the s.13 case was never put before Mr. Justice Hildyard.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Now, in the Court of Appeal, which is at tab 1 of this same bundle, the first tab, what essentially the Court of Appeal did was they had two points they needed to deal with. The first question was whether Mr. Justice Hildyard had been right to decide that the common law rights of the owner of the bank included riparian rights of mooring, and the Court of Appeal held that Mr. Justice Hildyard had been right about that.

The second and crucial point is that they said that Mr. Justice Hildyard had been wrong to decide that, simply because the boat was unlicensed, the British Waterways Board had power to remove the boat. The essence of the decision is actually quoted in my learned friend’s skeleton, but I take you to the relevant paragraphs in this judgment. At para.41 onwards in the judgment of Lord Justice Mummery----

JUDGE PUGSLEY: “The link between the two”, no? “However, that is not the end of the matter”?

MR. FOWLES: Yes. So Lord Justice Mummery has just dealt with the question of whether the ownership of the bank gave a riparian right to moor and he says in paragraph 40 that Mr. Moore has failed to establish any positive right to be on the waterway or to moor at this particular point. Lord Justice Mummery goes on and says:

“As BWB can only require the removal of vessels unlawfully on the GUC, it is necessary to ask whether, even in the absence of an established riparian right to moor, the claimant, on the particular facts of this case, was committing any wrong at common law or


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under statute, which made what he was doing unlawful? If he was not, what power had BWB under s.8 to require removal of the vessels?”

I should just explain that s.8 just says that, essentially, if a boat is unlawfully on the waterway, then it can be removed by notice procedure.

The Court of Appeal, Lord Justice Mummery giving the leading judgment, held that Mr. Moore, on the particular facts of this case, was not doing anything wrong, that the basic principle of English law is that, just because you do not have a positive right----

JUDGE PUGSLEY: Everything is permitted except that which is expressly forbidden, which is dictum from Mr. Justice Megarry (as he was).

MR. FOWLES: Exactly, your Honour. Now, that proposition is entirely irrelevant in this case. In this case, by contradistinction with the Moore case, the Canal & River Trust rely on s.13 of the 1971 Act; and section 13 says that it shall be unlawful to be on the waterway without a houseboat certificate.

JUDGE PUGSLEY: Yes.

MR. FOWLES: The Court of Appeal did not consider s.13.

JUDGE PUGSLEY: There was not an argument put before them.

MR. FOWLES: No, your Honour, and that is why Moore is completely irrelevant.

JUDGE PUGSLEY: Yes.

MR. FOWLES: So that is what I say about ownership. The fact is that the Canal & River Trust is the statutory navigation authority for these areas of the Trent and Nottingham & Beeston Canal. It has statutory powers in respect of those areas.

JUDGE PUGSLEY: If you do not have a licence, you will have your boat nicked.

MR. FOWLES: Yes.

JUDGE PUGSLEY: Yes, okay.

MR. FOWLES: There is also a point raised in my learned friend’s skeleton argument about whether we needed to join the local council, because they


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owned the County Hall Steps, and I am not sure whether that point is being pursued any longer.

MISS EASTY: I think my learned friend is reading something into my skeleton argument which is not there. It is a simple point, and let me put it even more simply, which is they cannot get an injunction over somebody else’s land. It is as simple as that. That is why the case is put on that particular narrow point.

JUDGE PUGSLEY: Well, I shall listen to the argument with interest, but can we move on?

MISS EASTY: Sir, I am not asking the County Council to be joined.

MR. FOWLES: Well, your Honour, if my learned friend is not asking for that, that is fine. As to the injunction, your Honour, I think we are both agreed that quia timet injunctions are being sought in this case.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And that the test in that respect is that there should be a real danger of actual violation of the law, in effect.

JUDGE PUGSLEY: Yes. You should not get a theoretical injunction to deal with an abstract problem.

MR. FOWLES: No, your Honour. I have dealt with the first big issue, which is the legislative picture and, of course, the legislative picture leads one into consideration of the question of whether there has been use for bona fide navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Because you only get a houseboat certificate if you can show either that you have a permanent mooring or that you can satisfy the Board or the Canal & River Trust that you are using the waterway for bona fide navigation within the period of your consent and moving it every 14 days or within a reasonable period. Will your Honour forgive me for just taking you to that part of the statute, because it is the most important part?

JUDGE PUGSLEY: Yes.

MR. FOWLES: At tab 3----


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JUDGE PUGSLEY: Of?

MR. FOWLES: My authorities bundle, which is a black bundle.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Sorry it is tab 5 in fact.

JUDGE PUGSLEY: Tab 5?

MR. FOWLES: Yes, your Honour, I am sorry, s.17 of this Act, which is the British Waterways Act 1995 is the crucial section. Really the action starts here at subsection (3):

“… the Board may refuse a relevant consent in respect of any vessel unless …”

So the Board has general power to refuse the relevant consent unless all of these conditions are satisfied in the subparagraphs; and the crucial subparagraph is (c) on the following page, and those are the key subparagraphs for this case, in effect. So the first requirement is that there be a mooring or other place where the vessel can reasonably be kept. That is what I would refer to as the “permanent mooring requirement”. Alternatively, you can:

“satisfy the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”

So, your Honour will see that that is the basis upon which the Canal & River Trust may refuse consent. Now, further----

JUDGE PUGSLEY: Sorry, it has?

MR. FOWLES: It has the power to refuse consent unless one of those two things are shown.

JUDGE PUGSLEY: To what, to grant a houseboat certificate?

MR. FOWLES: Yes, if you go to the top of s.17, so subsection (1), you will see the definition of “relevant consent” means:


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“a houseboat certificate, a licence or a pleasure boat certificate”.

And “houseboat certificate” takes you back to the Act of 1971, and that is where s.13 appeared, if you remember.

JUDGE PUGSLEY: So they can refuse a houseboat certificate.

MR. FOWLES: Unless all of those things in subsection (3) are made out.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And the same test applies when someone has a relevant consent already, including a houseboat certificate, and the Canal & River Trust wishes to revoke it. So, in subsection (4), if those conditions do not apply, or one of those conditions does not apply:

“the Board may give notice requiring the holder of the relevant consent to remedy the default within such time as may be reasonable”.

And, subsection (5):

“… the relevant consent shall determine on the date the notice expires”.

JUDGE PUGSLEY: Yes, well let us get the position in the factual context that presents in this case. Did the defendant ever have a houseboat certificate?

MR. FOWLES: Yes, your Honour. Well, no, that is not quite right. The position is as follows. Until 2010, Mr. Wingfield had a permanent mooring and, therefore, he was able to obtain a houseboat certificate.

JUDGE PUGSLEY: Yes.

MR. FOWLES: He lost his permanent mooring around 2010. Thereafter, he obtained a different kind of licence – I think it was a pleasure boat certificate – on the basis that what he was doing was continuous cruising. He was using the boat bona fide for navigation. So, in the period between about 2010 and February 2013, he had this pleasure boat certificate and that, as I say, was premised on the idea that he was continuously cruising. Now, I referred to it as a pleasure boat certificate because it was called a pleasure boat certificate because that was what was assumed. It was actually a houseboat certificate on the basis of continuous cruising.


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JUDGE PUGSLEY: That is at subsection (ii)?

MR. FOWLES: Exactly.

JUDGE PUGSLEY:

“Bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”

MR. FOWLES: Yes, so that was the basis on which he had the certificate. He had a houseboat certificate.

JUDGE PUGSLEY: A houseboat certificate with qualified rest periods.

MR. FOWLES: In effect.

JUDGE PUGSLEY: You could not do it beyond 14 days.

MR. FOWLES: The premise of the houseboat certificate was that he was moving around within the meaning of that subsection.

JUDGE PUGSLEY: Yes.

MR. FOWLES: In February 2013, following a great deal of correspondence in which the Canal & River Trust said to him “You are not moving around enough, in effect, you are not continuously cruising”, the licence was revoked and it was revoked under this section, under s.17.

Subsequently, Mr. Wingfield has applied for a new licence and he has been refused it basically on the same basis.

On the same date that the certificate was revoked, the Canal & River Trust served Mr. Wingfield with s.8 and s.13 notices, the notices that presaged the removal of the boat. So that is the factual context in which we find ourselves. Mr. Wingfield had a houseboat certificate and----

JUDGE PUGSLEY: Okay, let us get it clear. Initially, permanent mooring, a houseboat licence?

MR. FOWLES: Yes.


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JUDGE PUGSLEY: He loses his permanent mooring, but has the section (c)(ii) type of licence. You have got a boat for navigational purposes, it is a houseboat, but you are not allowed to reside in any one place for a period in excess of 14 days or such even longer period as is reasonably necessary.


JUDGE PUGSLEY: The claimants revoked that on the basis that he is not complying with the essential condition of mobility.

MR. FOWLES: Yes.

JUDGE PUGSLEY: And it ceased to be for navigational purposes. Yes?


JUDGE PUGSLEY: His application for a houseboat licence is thereafter refused and you bring this action effectively to get the boat off the water.

MR. FOWLES: Yes, your Honour, and that is really the essence of the case. I am not proposing to say much more because your Honour has the case really, but obviously a large part of what my learned friend will say will be about public law defences and Article 8 and I would just like to say that the essential disagreement between my learned friend and me on Article 8 as a matter of law is whether or not the Article 8 point is at large or whether its consideration is restricted.

Your Honour referred earlier to possession claims by public authorities and in recent cases the Supreme Court has held that, in such cases in possession claims by public authorities, the court does have to have the power to consider the proportionality of the local authority’s action and the possession order in the particular case. In the cases called Powell and Pinnock respectively, the Supreme Court essentially held that the threshold for showing that there was an arguable case under Article 8 in those kinds of cases was a high one and that you had to establish a seriously arguable case for the judge to consider Article 8 at all.

JUDGE PUGSLEY: Yes.

MR. FOWLES: What my learned friend says, as I understand it, is Pinnock and Powell do not apply in this kind of situation; this is not analogous to a possession claim by a public authority; this is just a straightforward situation


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where a public authority is seeking to exercise powers which engage Article 8 and, therefore, it is really just a question of the question at large, which is whether there is a proportionate interference which is necessary in a democratic society and so on. Does your Honour see the distinction that I am drawing between our two approaches, that I say essentially Pinnock and Powell apply so that it is only going to be in relatively unusual cases that the CRT will be prevented from getting this kind of order; whereas my learned friend says “No, in every single case there is no sort of starting point, it has just to be considered in the round whether or not the action is a proportionate interference.”

JUDGE PUGSLEY: Yes, I think the Pinnock line of authority was concerned with restraining Circuit Judges from becoming housing managers and taking on, with judicial imperialism, extending the empire of judicial power and to recognise that the old Wednesbury test ultimately still applied and that the courts should show a proper modesty. They probably could not even get the signpost in the right street if it was left to them, so they could only interfere in something where it was beyond the ambit of a reasonable response in the decision making process. I have not looked at the cases recently, but that is more or less not an inaccurate summary, is it?

MR. FOWLES: No, no, your Honour.

JUDGE PUGSLEY: Yes.

MR. FOWLES: So, your Honour, that is my summary, if you like, of the case. I am sorry I had to take you through some of the legislation----

JUDGE PUGSLEY: Not at all, it is not your fault.

MR. FOWLES: --but it has unfortunately not been simplified.

JUDGE PUGSLEY: You did not vote for it.

MR. FOWLES: Your Honour, if I may, just on that point, may I just draw your attention to something in the legislation which does slightly potentially complicate the picture?

JUDGE PUGSLEY: Of course.

MR. FOWLES: It is really in the 1971 Act where the distinction between houseboat and pleasure boat is drawn.


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JUDGE PUGSLEY: Yes. Help me, that is in?

MR. FOWLES: It is tab 3 of my authorities bundle. That is the bundle you have in front of you. Now, in s.3 you have the definitions and you will see that the definition of “houseboat” appears on that first page of s.3(1). Your Honour will immediately see----

JUDGE PUGSLEY:

“Houseboat” means any boat or barge or any vessel or structure or any part, remains or wreckage thereof … but does not include any boat, barge, vessel or structure–

(a) which is bona fide used for navigation …”

MR. FOWLES: So your Honour will immediately have noticed the relevance of that subsection. The use of the phrase----

JUDGE PUGSLEY: Counsel always say that when they know you do not have a clue what you are talking about, but go on.

MR. FOWLES: Your Honour, the phrase used is “bona fide used for navigation”. So the starting point is you cannot have a houseboat which is “bona fide used for navigation” because, if it is “bona fide used for navigation”, then it has to be something else. That is the effect of s.3(1).

JUDGE PUGSLEY: (a).

MR. FOWLES: Exactly, your Honour. Now, the effect of the 1995 Act, on the other hand, is to carve out a small exception in the case of houseboat certificates and say “Well, although houseboats are not used bona fide for navigation, if you have a houseboat and you use it bona fide for navigation and you move it every 14 days and so on, then that is fine, you can keep your houseboat certificate”. So, in effect, although the same phrase is used in the definition here and in the 1995 Act, you cannot entirely read it across because there are different contexts.

JUDGE PUGSLEY: Do you mind, if you could shut your arms off for a second.

MR. FOWLES: I am sorry.

JUDGE PUGSLEY: Do not worry, go on again.


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MR. FOWLES: So “houseboat” is contradistinguished from “pleasure boat”, which appears on the next page.

JUDGE PUGSLEY: Yes, on the basis, on the negative basis, that it is “not bona fide used for navigation”.

MR. FOWLES: No. Your Honour, can I take you to the definition of “pleasure boat” on the next page?

JUDGE PUGSLEY: Well, “does not include any boat, barge, vessel or structure which is bona fide used for navigation”.

MR. FOWLES: So, subject to s.17 of the 1995 Act, which allows you to have a houseboat certificate if you are bona fide navigating, and in fact precisely because you are bona fide navigating, the distinction between a houseboat and a pleasure boat----

JUDGE PUGSLEY: Sorry, coming back to 3(1): ‘“Houseboat” means any boat or barge or any vessel or structure or any part, remains or wreckage thereof whether or not the same shall be used or intended to be used for human habitation’, right?

MR. FOWLES: Yes.

JUDGE PUGSLEY: So, even though that intended use might be a boat for living on, it can still be a houseboat.

MR. FOWLES: Yes.

JUDGE PUGSLEY: But it does not include any boat, barge, vessel or structure which is “bona fide used for navigation”.

MR. FOWLES: No, your Honour.

JUDGE PUGSLEY: Or on the waterway with written permission, it “being broken up … [belongs to] the Board or … consists of a floating or fixed pier or jetty bona fide used by pleasure boats”. So the essence of a houseboat is that it should not be a shipping boat used for navigation. That is what the 1971 Act says.

MR. FOWLES: Your Honour, may I just take instructions? (Mr. Fowles took instructions) Your Honour, in practice, a houseboat is anything static, broadly speaking.


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JUDGE PUGSLEY: Yes.

MR. FOWLES: And that is distinguished from “pleasure boat” on the next page.

JUDGE PUGSLEY: Yes.

MR. FOWLES:

‘“Pleasure boat” does not include a vessel being used solely as a tug or for the carriage of goods or a houseboat or a mooring stage or a pontoon’.

JUDGE PUGSLEY: Yes. So it is a negative definition.


JUDGE PUGSLEY: Basically, if you can move it, it is unlikely to be a houseboat unless you get that special exemption for a limit of 30 days.

MR. FOWLES: Well, your Honour, it is important to just have in mind the different purposes of these two, this section and the provisions in section 17 of the 1995 Act.

JUDGE PUGSLEY: Yes.

MR. FOWLES: The point of the 1995 Act is that it determines when you can get a certificate when you are allowed to have a pleasure boat on the water. Now, the prima facie requirement is that, if you are going to have a houseboat, you need to have a permanent mooring.

JUDGE PUGSLEY: But, if you do not have a permanent mooring but keep moving and are static within the prescribed limits, although there is an overriding discretion in one of the clauses----

MR. FOWLES: Well, you do not necessarily have to be static within the prescribed limits. What s.17 says is that you have to use it bona fide for navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And, therefore, in effect, you have to bring it outside the definition of “houseboat” in s.3.


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JUDGE PUGSLEY: Sorry, are you trying to help me or are you trying to lead me further into a totally futile inane discussion?

MR. FOWLES: I am trying to help you, your Honour.

JUDGE PUGSLEY: Right. The interpretation of the 1971 Act, do you agree is an exclusion test?


JUDGE PUGSLEY: Namely, what you are not and, if you have got it for the purpose of navigation, it cannot be a houseboat.


JUDGE PUGSLEY: So, if the Queen Mary or whatever P&O’s liner is now called is lodged in its moorings in Southampton, it is not a houseboat, because it is not in an inland waterway, which is a minor detail, but its paramount use is for navigation. So you cannot sail a liner up The Thames, plonk it outside the Tower of London and say “Right, who wants some permanent residential accommodation”, yes?


JUDGE PUGSLEY: Because that is not the purpose of the boat. It is for transport. Now, the second limb of s.17, is it?


JUDGE PUGSLEY: Of the which Act?

MR. FOWLES: The 1995 Act at tab 5.

JUDGE PUGSLEY: It says, if we can get to it, we have to have an insurance policy and it has to be compliant with certain safety standards. It is either that there is a mooring place, yes?


JUDGE PUGSLEY: Or the applicant “satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid” as long as – I am putting it in plain English, I hope – you cannot stay “more than 14 days [in any one place] or


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such longer period as is reasonable in the circumstances.” In other words, you have to keep moving. You are not static.

MR. FOWLES: Yes, your Honour. Where I think I frustrated your Honour was that I was just trying to point out that you will see that there is a potential contradiction between s.17 of this Act and the definition in the 1971 Act.

JUDGE PUGSLEY: Oh I agree, yes, sorry, sorry, sorry.

MR. FOWLES: That is all I was trying to say.

JUDGE PUGSLEY: Oh no, no, no, no, no, there is a potential conflict between 3(1) of the 1971 Act and s.17 of the 1995 Act. It is 17(3)(c), I think.

MR. FOWLES: Yes, and, your Honour, what I was trying to say, perhaps ineptly, was that----

JUDGE PUGSLEY: No, no, no, I was just getting a bit testy. It is not your fault.

MR. FOWLES: --whereas s.17 says that you can have a houseboat certificate if you can show use for bona fide navigation, s.3 of the 1971 Act excludes from the definition of the houseboat a boat that is used bona fide for navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And that rather suggests, in my submission----

JUDGE PUGSLEY: That the Parliamentary draftsman was sleeping on the job.

MR. FOWLES: Or that perhaps they are two independent tests, that they are not quite the same test in each section, partly because of the surrounding words. The surrounding words of s.17 of the 1995 Act are quite significant, in my submission, but I will leave that there because obviously one----

JUDGE PUGSLEY: Okay, “houseboat” is very clearly applicable to those boats that you see mainly in London which are totally static and may not even have a working engine and may not have an engine, if you are down by Kew Bridge. Have you ventured that far to the west?

MR. FOWLES: I have been to Kew, yes.

JUDGE PUGSLEY: Well, there are a whole load down by Kew Bridge. Okay, but also you can be within the definition of a houseboat, although it is marring


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pure statutory interpretation, but you can be within the definition of a houseboat as long as, although you are using it for navigation purposes, you have a sort of limited status that you can hole up for 30 days or in extreme circumstances for longer periods, as necessary, but nevertheless your prime purpose is to keep roaming and rolling, the sort of Toad of Toad Hall of the inland waterways, yes?


JUDGE PUGSLEY: In either of those cases, you come within the definition of a houseboat although, as you point out, there is a rather fundamental conceptual difficulty between, in one case, saying you must not be able to navigate and the other thing you are saying you can but not for long.

MR. FOWLES: It is best looked at in terms of the licensing regime, your Honour. As I understand it, the reason why that second limb of bona fide navigation was inserted in the licensing regime is because, as a matter of practice, people had houseboats which they were using for navigation as practice and, as a concession to them, they could still have a houseboat certificate.

JUDGE PUGSLEY: Yes.

MR. FOWLES: But the intention, in my submission, behind those two limbs is to ensure that people do not just not have a permanent mooring and hang around somewhere on the basis that, for example, they’re near their doctor’s surgery or they’re near their post box or whatever. The intention is that people do not clog up the waterways when they do not have a permanent mooring. So there is a different intention between s.17 of the 1995 Act and the definition of “houseboat” in the earlier legislation. Here, s.17 does not have the purpose of simply bringing in within the definition of “houseboat” things that would otherwise be houseboats. The purpose of s.17 is specifically concerned with ensuring that people who do not have permanent moorings are subject, if they want to keep their houseboat certificate, to an obligation of genuine bona fide navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: So, even though it is----

JUDGE PUGSLEY: But how does that affect this case?

MR. FOWLES: Well, it affects this case because Mr. Wingfield does not have a permanent mooring.


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JUDGE PUGSLEY: Yes.

MR. FOWLES: He, therefore, has to show that he was entitled to a houseboat certificate by virtue of continuous cruising; that is to say bona fide navigation.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And I am saying that he had a houseboat certificate for a certain number of years and that was revoked on the basis of s.17 and an application was subsequently refused to renew it on the basis of s.17. The reason why I drew your Honour’s attention to the earlier definition is simply because it uses the same phrase, but otherwise, because of the potential contradiction, I am not sure it is actually particularly helpful.

JUDGE PUGSLEY: I agree with the last three words.

MR. FOWLES: Thank you, your Honour, but it was important that your Honour saw the same----

JUDGE PUGSLEY: Now, take a deep breath.

MR. FOWLES: Yes.

JUDGE PUGSLEY: How do you put the case?

MR. FOWLES: I put the case on the basis of the decision of His Honour Judge O’Malley in British Waterways Board v Davies.

JUDGE PUGSLEY: No, on the statutory basis?

MR. FOWLES: On the statutory basis?

JUDGE PUGSLEY: Yes.

MR. FOWLES: I say that Mr. Wingfield was not using his boat “bona fide for navigation” because all he was doing was moving his boat up and down a short stretch of canal. He wanted to be close to relevant facilities and so on.

JUDGE PUGSLEY: Doctor, postman and all the rest of it, yes.

MR. FOWLES: He was using his boat primarily not for navigation but just as a replacement for a house, and the fact that he happened to be moving up and


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down did not mean that he was navigating. Therefore, the Canal & River Trust was entitled to refuse him a licence and to revoke his licence in the first place.

JUDGE PUGSLEY: Let us assume I am in a landlocked canal like the Brecon & Abergavenny Canal. I have my doctor, my children have their school, I have a post restante post office and I am registered in the nearest town which gives out giro cheques because I am on benefits. You say I cannot work the system (this is just in plain language) if I do not have a mooring, that I cannot gently potter up the 12 or 13 miles of the length of that canal stopping off at 28 days on each and effectively turn a number of transient stopping places into effectively a mooring place, but “for the purposes of navigation” means that I am cruising and I may need to stop off ancillary to the cruising, not I am a resident of a particular area and I have to move it, rather like barristers and solicitors move their car from one parking bay to another over the lunchtime adjournment.

MR. FOWLES: Exactly, your Honour. Your Honour has put it very well. Another way----

JUDGE PUGSLEY: Thank you.

MR. FOWLES: I am sorry, your Honour, with respect.

JUDGE PUGSLEY: Do not bother about respect, it drives me up the wall.

MR. FOWLES: Your Honour, another way of looking at it is, if you are simply going to move your boat to ensure that you comply with the second limb of s.17, then that is not bona fide. It is bona fide navigation. You can stop off for a brief period to repair your boat or because, for example, it is flooding or something like that, because that would be what a true navigator had to do. What you cannot do is just move it from place to place up and down the same stretch of canal, not really going anywhere, just----

JUDGE PUGSLEY: Use of the parking meter, I mean, I think actually feeding the meter is unlawful, is it not, but put that on one side. The question is ask him about the weather, is it?

MR. FOWLES: Well, it is just simply to clarify that the period of days in the statute is 14 days.

JUDGE PUGSLEY: 14, yes.


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MR. FOWLES: Or what is reasonable in the circumstances if longer.

JUDGE PUGSLEY: What you are saying is, if there is a parking meter or your parking place which is limited to two hours and you cannot return within 24 hours, this is not an exact analogy but I think it is relevant, I cannot go to meter 1 and come back and put it in meter 2 and then come back in meter 3. It is breaking the spirit. Whether it is breaking the letter can we leave on one side, but it is breaking the spirit and the reasonable prohibition to ensure that I am not clogging up for a bay a parking space which is designed to keep parking spaces free for up to two hours for people coming into the road, for people entering the town for lawful purposes. If I happen to own a house adjacent to the parking meters, I am in fact, by constantly buzzing around, frustrating the end purpose of there not being residents’ car parks at that part of the road, and you will say that, if it is just a substitute to give me by any other name a permanent mooring, albeit it is split over an area of four or five miles, it is not on.


JUDGE PUGSLEY: Yes.

MR. FOWLES: The essential test is one of purpose, and that is where I rely on the Davies case and that is what His Honour Judge O’Malley held.

JUDGE PUGSLEY: Shall we have a look at that?

MR. FOWLES: Yes, your Honour. It is in my authorities bundle at tab 12. We need to create indestructible bundles that survive the DX. That is the essential thing. Your Honour, this judgment, of course, does not bind you. It is a judgment----

JUDGE PUGSLEY: No, it is persuasive.

MR. FOWLES: Yes, a matter of judicial comity, in my submission, you ought to follow it unless you are persuaded that it is wrong. That is the essential test with judgments of coordinate jurisdiction. Now----

JUDGE PUGSLEY: Coordinate jurisdiction?

MR. FOWLES: Well, your Honour, I am just referring to the rule of precedent.

JUDGE PUGSLEY: Yes, yes, very jurisprudential.


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MR. FOWLES: Sorry.

JUDGE PUGSLEY: It is not binding, but I have to have a reasonable reason for refusing to follow it. It is persuasive, not binding.

MR. FOWLES: In effect, your Honour, yes. Now, in this case, there was a man called Mr. Davies who had his licence for a boat refused on the Kennet & Avon Canal and Mr. Davies contended that, under s.17, by regular movement from mooring to mooring, he had fulfilled the requirement of bona bide navigation, but the British Waterways Board sought the removal of the boat. In the proceedings, it was argued on behalf of Mr. Davies that he ought really to have been granted the licence, and that was the defence to the claim. Now, in para.6 you will see the extent of the stretch of canal we are talking about and also how much Mr. Davies moved his boat.

JUDGE PUGSLEY: Yes.

MR. FOWLES: And then the learned judge goes on to summarise some of the legislation and also to summarise the arguments of the two QCs in the case.

JUDGE PUGSLEY: The argument of?

MR. FOWLES: The two QCs in the case.

JUDGE PUGSLEY: Oh right.

MR. FOWLES: This is one reason why it is a good authority, your Honour, because it was fully argued by two Silks, if I may say so.

JUDGE PUGSLEY: I do not think your opponent agrees.

MISS EASTY: No.

JUDGE PUGSLEY: No one is obliged to say how many times they have applied for Silk.

MR. FOWLES: Your Honour, within Silk, I would also include Senior Counsel, but my point is simply that.

JUDGE PUGSLEY: Yes, yes, okay.

MR. FOWLES: Para.14 is where the essential reasoning applies. It may be worth your Honour simply reading para.14. (pause)


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JUDGE PUGSLEY: Yes. This was not the subject of an appeal?

MR. FOWLES: No, it was not.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Then he goes on to clarify his decision. In para. 15, his Honour Judge O’Malley essentially says that, whilst he finds for the claimants, he does not entirely endorse their guidance and, as a result of this decision in fact, the guidance was revised in 2011, so the 2011 guidance in fact reflects this decision. He goes on to say at the bottom of the page:

‘It is possible to envisage use of a vessel which fell short of the Board’s concept of continuous cruising but which still qualified the vessel for a licence under s.17(3)(c)(ii). What is clear to me is that the defendant who is clearly living on the boat cannot successfully claim that he is using the boat “bona fide for navigation” by moving it every so often up and down a short stretch of canal.’

That, I say, is this case, that what Mr. Wingfield has essentially been doing, with a couple of exceptions, is moving his boat up and down the same short stretch of canal.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Your Honour asked about whether this had ever been appealed.

JUDGE PUGSLEY: Yes.

MR. FOWLES: I feel I should mention, although it is not relevant, that there were recently judicial review proceedings in relation to the guidance issued by the Canal & River Trust, but those judicial review proceedings were essentially inconclusive. What ended up happening is, after a number of first instance decisions that leave should not be given for judicial review by a man called Mr. Brown, Lord Justice Jackson gave permission for the judicial review to proceed on the basis that essentially it was arguable, and this was concerned with s.17. Then what happened is that there was a hearing quite recently before Mr. Justice Lewis, where the full judicial review was to be heard, but the application was discontinued during that hearing, so Mr. Justice Lewis never came to a decision upon the interpretation of this section or the lawfulness of the guidance. So, whilst Davies has not been appealed and also


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it has not been considered in any citable authority, the issue has been, as it were, kicked around in the High Court.

JUDGE PUGSLEY: But not the subject of any determinative decision?

MR. FOWLES: No. There is a judgment of Mrs. Justice Cox in those proceedings which does, to a certain extent, deal with the issue, but it was of course the subject of Lord Justice Jackson’s permission for judicial review, so she refused leave to bring judicial review proceedings.

JUDGE PUGSLEY: Mrs. Justice Laura Cox.

MR. FOWLES: Mrs. Justice Cox, yes.

JUDGE PUGSLEY: Laura Cox?

MISS EASTY: Yes.

MR. FOWLES: Yes, your Honour. I am sorry, I do not know her, but Lord Justice Jackson then gave permission for the judicial review to proceed and that is why----

JUDGE PUGSLEY: So the only relevant authority at the moment is not binding on me, but it is persuasive authority, and that says you cannot be a clever clogs. If your purpose of having that houseboat is to live on it, you cannot repair the fact that you have not got a permanent mooring by putting your house for transport periods of up to 14 days at other mooring sites.

MR. FOWLES: No, your Honour.

JUDGE PUGSLEY: That is the gist of it, that you cannot create out of a number of short stay moorings a permanent mooring.


JUDGE PUGSLEY: That is really the crux of it.

MR. FOWLES: Yes, your Honour, thank you.

JUDGE PUGSLEY: Is it not?

MR. FOWLES: Yes, I very much appreciate the way your Honour has put it. It will be an indicator that perhaps “bona fide navigation” is not going on if


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someone is moving up and down over a short stretch. I think it is particularly important that His Honour Judge O’Malley referred to “moving it every so often up and down a short stretch of canal” because that really indicates that you are trying to stay in the same area to be near the things that are important to you.

JUDGE PUGSLEY: Yes.

MR. FOWLES: It is not really navigation in the sense of a clear sense of----

JUDGE PUGSLEY: Well, it is moving the car in the parking bay, is it not?


JUDGE PUGSLEY: I am not allowed to park here all day in this point, but I can aggregate in seven different meters, all right?


JUDGE PUGSLEY: Right, now are you going to call any evidence?

MR. FOWLES: Yes, your Honour, unless my learned friend wishes to say anything before we do. There is a witness statement which my learned friend wishes to put in and it may be that she will do that when she calls her evidence.

JUDGE PUGSLEY: Can I just clarify, is oral evidence necessary? I am not either saying yes or no. I am delighted to see people come into the witness box and witness statements and they come to Chesterfield and what greater reward should there be than giving evidence but, if there is not any real dispute?

MR. FOWLES: Your Honour, I had in mind that there are minor areas of dispute and, to my mind at least, oral evidence would be useful in clarifying the extent of movement.

JUDGE PUGSLEY: By all means, if you want to call it, you must call it, of course, but it is sometimes said “with your leave” and I do not have power to refuse it.

MR. FOWLES: Your Honour, I have in mind the time. Would your Honour like Mr. Garner to go into the witness box now or should he be taken after lunch?

JUDGE PUGSLEY: Shall we say two o’clock so that we do not break his evidence, which means you cannot talk to him and he will have the strain of giving


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evidence and it being broken off shortly. So you will be calling Mr. Garner and you will be calling?

MISS EASTY: Mr. Wingfield, your Honour.

JUDGE PUGSLEY: Yes. Whereas I think the calling of Mr. Garner is entirely a matter for you, I do not think jurisprudentially it is essential if it was agreed. I think you would be in a very difficult position if you did not call your client, but it is entirely a matter for you, because in fact, on its analysis, it really is for you to satisfy the Board or, in a failure, satisfy me as to what his state of mind was.

MISS EASTY: On my learned friend’s opening, that is doubtless the impression that you would be left with.

JUDGE PUGSLEY: Was he just playing the system or was it for general navigation purposes?

MISS EASTY: Yes, your Honour, that is the impression that my learned friend has given you.

JUDGE PUGSLEY: Yes.

MISS EASTY: And very fundamentally with both his approach to the legislation, his analysis of the legislation, the approach to be given to dates etc., etc.

JUDGE PUGSLEY: Yes, I rather gathered that.

MISS EASTY: But, on his case, yes.

JUDGE PUGSLEY: On his case, that is the inference.

MISS EASTY: How he puts it, yes.

JUDGE PUGSLEY: What do you say the purpose of s.17 is?

MISS EASTY: The purpose of s.17, your Honour.

JUDGE PUGSLEY: Only if you want to. You can tell me later if you like.

MISS EASTY: Well, of course I am in your hands. Let me just get it up. I think my case differs, obviously. In terms of putting it in the most simple way, it is that the Act says exactly what it does “bona fide for navigation”. Unless there


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is reasonable excuse, you can stay for a period of 14 days. The Davies case bears closer reading, because, in that case, the boat, as far as I can see, and I am just summarising or paraphrasing----

JUDGE PUGSLEY: Yes.

MISS EASTY: --shuttles back and forth over something like a mile and to the same spot again and again and back and forth and, on the particular facts of that particular case, the judge found that was not sufficient. Whilst my learned friend would possibly also say that, if he moved from, let us say Lime House to Manchester, say, within a week and stayed in Lime House again and then stayed in Manchester again, that would not be sufficient on his analysis, which clearly cannot be right because the guidance does not say you must move two miles, 10 miles, 20 miles, 100 miles, 300 miles, so what we can say from Davies is that a mile is not enough and also going from the spot back and forward is not enough, okay, that is absolutely right, but how far that can be extrapolated in terms of principle is an entirely different matter because it would appear you must move from place to place. Now, how big is a place?

JUDGE PUGSLEY: I see.

MISS EASTY: So, no, it is not quite as straightforward in terms of that section. In terms of the Article 8, again, in terms of the Article 8 approach, now, of course, post-1998, we have to look at these Acts as being compatible with Article 8 and so that imports other considerations.

JUDGE PUGSLEY: Article 8 saying?

MISS EASTY: The right to a private life, the right to a home. Those are the limbs that are relevant here.

JUDGE PUGSLEY: Have you any authority? I tow my mobile home onto some land which, for the purpose of this argument, I own. I have no planning permission. Are you saying the Article 8 would defeat a claim for eviction by the local authority if I have no requisite consent to put a residence on a house?

MISS EASTY: Yes, I would rely on Wrexham Borough Council v Barry in the House of Lords.

JUDGE PUGSLEY: That is in the bundle?

MISS EASTY: No, it is not in the bundle because I put it in in response to my learned friend’s Powell.


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JUDGE PUGSLEY: I am sorry, has that authority already happened?

MISS EASTY: No, your Honour, simply because my learned friend put in Powell, which is the----

JUDGE PUGSLEY: You are now asking me to look at an authority which is not in the bundle?

MISS EASTY: Your Honour, yes.

JUDGE PUGSLEY: And not mentioned in your skeleton argument?

MISS EASTY: No, because it is put in response to my----

JUDGE PUGSLEY: Yes, I am only getting to the facts. I am not criticising.

MISS EASTY: No, it was in response to my learned friend. My learned friend’s approach is that Powell requires a restricted assessment in relation to Article 8, which I find somewhat surprising because Powell relates specifically to the statutory regime relating to tenancies and secure tenancies, introductory tenancies. This is not that kind of regime. It is, as your Honour says, much more akin to somebody moving onto land without permission in a mobile home and, therefore, in those circumstances, the test to be operated when an injunction is applied for. I agree.

JUDGE PUGSLEY: I will have a look at it.

MR. FOWLES: Your Honour, I do not have a copy of Wrexham and in fact it was not even mentioned to me.

JUDGE PUGSLEY: No.

MR. FOWLES: So may I have a copy?

MISS EASTY: I do not have another copy, but I can get some in the short adjournment.

JUDGE PUGSLEY: Do you need this copy to do that?

MISS EASTY: I will get two in the short adjournment.


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JUDGE PUGSLEY: Do you need this copy as the dominant copy? Does this really go on for 104 paragraphs? Yes, it does.

MISS EASTY: Yes. It is all the judges, all five of the very learned House of Lords, all said the same thing so it is pretty much the same judgment.

JUDGE PUGSLEY: One wonders why they need to give five speeches to do that, but okay.

MISS EASTY: I will get these photocopied and I will hand it in.

JUDGE PUGSLEY: Yes, okay, shall we say 2.15 in view of the time we have now taken? Right, are we going to be finished oral argument by tomorrow?

MISS EASTY: Yes, I think without any oral doubt.

MR. FOWLES: Sorry, finished with oral argument today?

MISS EASTY: Tomorrow.

MR. FOWLES: Tomorrow, yes.

JUDGE PUGSLEY: Am I going to be left in the position of considering my judgment by 12 o’clock tomorrow?

MR. FOWLES: I doubt it, your Honour. Your Honour, I would like to ask some questions of Mr. Garner by way of expansion.

JUDGE PUGSLEY: I am sorry, this is a two day case. Are we going to finish in time for me to give a judgment?

MR. FOWLES: Yes, your Honour, it just may be that oral argument takes all of tomorrow morning.

JUDGE PUGSLEY: Well, I would hope that we will have finished everything by one o’clock apart from my judgment.

MR. FOWLES: It is quite possible, your Honour. I would hope so.

JUDGE PUGSLEY: Well, I would hope it is not “quite possible”. I hope that happens.


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MISS EASTY: Your Honour, we are at one o’clock after an opening. I understand my learned friend wishes to ask some questions of his own witness.

JUDGE PUGSLEY: Do you?

MR. FOWLES: Yes, your Honour, if I may.

JUDGE PUGSLEY: But I thought you were not going to call him. If you want to, by all means.

MR. FOWLES: I would like to, just a few short questions.

JUDGE PUGSLEY: Yes, but, look, I want to finish this case. I do not want to be giving a reserved decision which will take a long time. I want to try and give a decision tomorrow. That is only going to be realistic if all argument and evidence has been concluded by one o’clock.

MR. FOWLES: Yes, your Honour, it will be.

JUDGE PUGSLEY: And I cannot see why that should not be the case.

MR. FOWLES: Your Honour, I am determined it will be.

MISS EASTY: I think it very much depends on my learned friend’s time estimate, because we are going to be short.

JUDGE PUGSLEY: That is what all counsel say.

MISS EASTY: But I am going to be short.

JUDGE PUGSLEY: Some concept of time with members of the Bar is a most everlasting concept.

MISS EASTY: Your Honour, I think I have managed to explain two of my points in ten minutes.

JUDGE PUGSLEY: Yes, very well, see you at a quarter past two.

Adjourned for a short while

JUDGE PUGSLEY: Can I just say to whoever is going to give evidence please bear this in mind. This is a difficult room acoustically. We sometimes get a rush of traffic and sometimes we do not, but I have glaring – you probably


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cannot hear it – the air conditioning in the winter and the central heating in the summer, you know. So when you give evidence, can I say this, you are looking at me now because I am talking to you. When you give evidence, avoid the temptation of looking at the barristers because your voice then drops somewhere around there. If you look straight ahead, I will be able to follow you and your barristers will be able to follow you. There is a more important reason than just being heard. When we speak, it is not only the words, it is the way they come out, the body language and, if you turn round, particularly to the barrister who is nearest the window, there is a sort of terrible temptation to drop your voice, but it looks as though you do not mean it, as though you are having a sort of private conversation and I cannot see your body language, which often in understanding is very important. Okay, lecture over, but I do not want all of you to give evidence, to endlessly have your evidence punctuated by “Could you speak up”. There has never been a case that anyone has ever been criticised for shouting in this court, okay?

MR. FOWLES: Thank you, your Honour.

MR. STUART GARNER, affirmedExamined by MR. FOWLES

MR. FOWLES: Your Honour, before I start asking Mr. Garner questions, there is just one uncontroversial point about his exhibit, which is that there is a page which was mistakenly inserted in there which I would ask you to remove from your Honour’s bundle. At p.72 there is a map which is not anything to do with this case in fact.

JUDGE PUGSLEY: Oh how interesting, yes.

MR. FOWLES: Can I just ask that it be removed from the trial bundle?

JUDGE PUGSLEY: Yes.

MR. FOWLES: Page 72.

JUDGE PUGSLEY: Yes, where is that of?

MR. FOWLES: Sorry?

JUDGE PUGSLEY: Page 72?A I believe it is a misprinted map of Lancashire way or Cheshire way, I believe,

your Honour. I don’t know why it’s in there.


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Q I was born in Liverpool but left at three years. Yes, I do not think we need worry about it, ok. And your statement is at page?

MR. FOWLES: Page 10.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Could I ask you first just to confirm your name?A Stuart Garner.

Q And what is your occupation?A Enforcement Officer.

Q What is your address?A My home address or my work address?

Q Your work address.A It is The Kiln, Mather Road.

JUDGE PUGSLEY: Newark.A Newark.

JUDGE PUGSLEY: Yes, are we going to proceed on the normal basis that we take the written evidence as evidence?


JUDGE PUGSLEY: And then you add anything if you want to ask anything supplemental thereto.

MR. FOWLES: Thank you, your Honour. If you turn to p.10, which you are on, do you recognise this document?

A Yes, I do.

Q And could you turn to p.18? Do you recognise the signature?A Yes, I do.

Q Whose signature is it?A That’s mine.

Q And what is this document?A It’s my witness statement.


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JUDGE PUGSLEY: Have you read it this morning?A I haven’t read it this morning, no.

Q Have you read it recently?A Yes, I have done.

Q Is there anything about it that is not accurate?A No.

Q Is there anything you want to add to it?A No, your Honour.

Q So there is nothing you want to amend?A No.

MR. FOWLES: Could you turn to p.138? Do you recognise this document?A Yes, I do.

Q What is it?A It is my witness statement.

Q And could you turn to p.140? Do you recognise the signature?A Yes, I do.

Q Whose signature is it?A That’s my signature.

Q Have you read this statement recently?A Yes, I have.

Q And is it true to the best of your knowledge and belief?A It is, yes.

MR. FOWLES: Your Honour, may I ask some supplemental questions of the witness?

JUDGE PUGSLEY: Certainly.

MR. FOWLES: Thank you, your Honour. If you just stay on p.140, Mr. Garner, in para.10, you say:

“Should the Defendant’s or any other boat wish or require to moor in a certain area for long periods of time, a home mooring should be


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obtained for their vessel, as is clearly stated in CRT’s General Terms and Conditions for boat licences.”

Why does the CRT require a home mooring to be obtained?A Obviously, financially it will help, it’s a source of income for a mooring fee

obtained and it would also prevent the waterways being clogged up on visitor moorings and other mooring sites.

Q And can you turn to page----

JUDGE PUGSLEY: Before you leave that, do you mind if I just clarify something at this stage? Do you have some home mooring sites?

A Yes, we do.

Q Has the defendant ever claimed them?A Sorry?

Q Has the defendant ever sought to have one from you?A Not that I am aware of.

Q Your home, remind me again, if I want to have a residential use of my boat, what is the licence I need?

A It would be a houseboat certificate.

Q A?A Houseboat certificate.

Q Yes. Is there any limit on the houseboat certificates?A How do you mean?

Q Well, do you have a number, you will issue 10 a year or any quota like that?A No.

Q So, if I have a mooring, yes, which is not from you, as I can have, yes?A Yes.

Q Do I have a right to a home, a licence, if I satisfy the criteria?A Are you referring to the Craft Licence, the Boat Licence?

Q Yes.A Yes. If you were to get a home mooring from a third party, you would be

entitled to a boat licence.


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Q Subject to the other criteria set out of standard of boat and it being insured and that sort of thing.

A Yes, yes.

Q So, in effect, you have an entitlement if you fulfil the criteria?A Yes.

Q You sound a bit hesitant? Do you want time to reconsider that?A No.

Q So I have a boat, it is insured and it is in a comparable condition that is allowed. I come to you and I say “I want to live near Trent Bridge”, or wherever it is, “there is the money.” I would get one?

A The moorings work on an auction basis at certain sites.

Q Oh yes, but, assuming I had a mooring from someone?A Just to clarify, is it a mooring from ourselves or from?

Q From you or from a third party.A And, just to clarify, are you saying to leave your boat, say, at Trent Bridge?

Q Yes, I only selected that because it is one of the few places I know in Nottingham. Anywhere? If I get a mooring----

A Yes.

Q --from you or from someone else and the boat satisfies the criteria, is that it? Can I demand a licence for a home, a non-moving craft as a residence?

A Yes, as long as it complies with the necessary----

Q Conditions of eligibility.A --conditions, yes.

Q But you have no discretion thereafter?A No.

MR. FOWLES: Your Honour, may I interrupt? In many ways this is a question of law and it is clear from s.17 that the CRT may only refuse consent if those conditions are not satisfied.

JUDGE PUGSLEY: Yes, that is what I am just clarifying. As a matter of practice, if people have satisfied the conditions----

A Yes.


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Q --even though you do not want the canal cluttered up with a lot of residential boats, that cannot be a factor?

A No.

JUDGE PUGSLEY: That is all I am trying to clarify, yes.

MR. FOWLES: Can I just ask you about some of the documents at the back of the bundle? It may be that they have not been introduced. Your Honour, I realise that I do not actually have a spare copy of the maps for the witness’ bundle, but, if I may, I will just ask Mr. Garner about geography. What would you say is the distance between Castle Meadow and Trent Bridge?

A Approximately 5km.

Q And the distance between Trent Bridge and Holme Lock?A Again, approximately 3km.

Q And the distance between Beeston and----

JUDGE PUGSLEY: Sorry, Castle Meadow to Trent Bridge 5km and then was it Castle Meadow to?

MR. FOWLES: It was Trent Bridge to Holme Lock and 3km is what Mr. Garner said.

JUDGE PUGSLEY: And that is what is shown as yellow on one of the maps, 3km?A Yes, your Honour.

MR. FOWLES: And the distance between Beeston Roadside Mooring and Holme Lock, what would you estimate for that?

A Beeston to Holme Lock, approximately 12km in total.

JUDGE PUGSLEY: For the avoidance of doubt, because there can sometimes be mistakes, Beeston, yes, is in the area of the town of Beeston? I mean, you have to get over a railway line and also the A52, I suspect, but Beeston Roadside Mooring is not some other area other than in Beeston?

A No, it is not.

Q I mean, that is what it looks like on the map, that it is the outer part of Beeston.A It is. It is Beeston town centre.

Q If you look at 262. I am just clarifying, forgive me, that there are not, sometimes places do not correspond with their apparent place name, but in this case it seems to.


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A Beeston Roadside Moorings is ever so slightly just outside the town centre of Beeston.

JUDGE PUGSLEY: Beeston, yes. Thank you very much.

MR. FOWLES: Could you turn to p.144 of the trial bundle, please? Could you just briefly say what this map shows?

A This map is what we call a sightings map.

JUDGE PUGSLEY: Sorry?A A sightings map, showing the locality of Mr. Wingfield’s boat in the

corresponding months.

Q So that gives where he has been sighted?A Yes, your Honour.

Q So, for example, Loughborough, it is a bit difficult to tell from the colour with my eyesight, but was that November?

A It is, your Honour, yes.

Q And July on the way to Newark?A Yes, your Honour.

Q And is there one just out of sight? Yes, there is, a yellow one. In July, he was seen both on the way to Newark and at Newark.

A Yes, your Honour.

Q Yes.

MR. FOWLES: So, just to be clear, which year is this map relating to then?A 2012.

Q Thank you. Over the page, on p.145, what is this document?A Again, this is a sightings map, showing the sightings of Mr. Wingfield’s boat.

JUDGE PUGSLEY: In which year?A 2013.

MR. FOWLES: This being a map, could you just explain how this close-up relates to the wider area? What is above the dots on the right-hand side?

A I am sorry, I apologise, I am just trying to get my bearings. The dots on the right-hand side, that is County Hall in Nottingham and, at the top of the page,


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you have the injunction with Meadow Lane Lock, which is the beginning of the Nottingham & Beeston Canal.

Q Thank you.

JUDGE PUGSLEY: So that shows some movement, for the avoidance of doubt, round about July and is it August or February the blue dots under the word “Bridge”?

A There is July.

Q That is a yellow.A Yes.

Q And the blue?A I believe one is February.

Q Yes.A And I would say the other is June.

Q Now, at that stage, he was meant to be? I mean, by 2013, he had no fixed mooring?

A No.

MR. FOWLES: In fact, if you turn to p.139 of the bundle to your witness statement, Mr. Garner, you say:

“I refer to two plans and schedules … the defendant’s boat was located between April 2012 and March 2012 and April to July 2013.”

Is there anything you would like to say about that paragraph?

JUDGE PUGSLEY: Sorry, page?

MR. FOWLES: Page 139, paragraph 9. Is that paragraph correct?A It is, yes.

Q Thank you. Could I just take you to p.197? I will just be forgiven for saying that this is Mr. Wingfield’s witness statement. Mr. Wingfield, in para.15 on p.197, says, about three-quarters of the way down the paragraph:

“I have moved from the place where I am now at County Hall Steps in one direction to Sainsbury’s, which is three miles away, and then


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back to County Hall and then in the opposite direction to Hope Pier Point, which is a further three miles away.”

Do you know where this Sainsbury’s is that he is referring to?A Sainsbury’s is at Castle Meadow on the Nottingham & Beeston Canal.

Q And where is Hope Pier Point?A Holme Pier Point.

Q Oh it is Holme Pier Point.A It is located at Holme Lock on the River Trent.

Q And he says “Where I am now at County Hall Steps”. What do you say to that in relation to Mr. Wingfield’s location?

A In relation to, sorry?

Q Where is Mr. Wingfield now? Where is he----

JUDGE PUGSLEY: Sorry, today?

MR. FOWLES: Where is his boat today as far as you know?A As far as I am aware, Mr. Wingfield’s boat is currently moored at the visitor

moorings on Meadow Lane on the River Trent.

Q And, if you turn back to p.18, which is your----A Sorry 18, 1-8?

Q Yes.

JUDGE PUGSLEY: Of?

MR. FOWLES: Page 18 of the trial bundle.

JUDGE PUGSLEY: Yes, whose statement?

MR. FOWLES: It is your statement, Mr. Garner.A It is.

Q You say in para.36:

“I believe that, unless CRT is granted an injunction against the defendant which extends beyond the location of the property, the defendant will simply move or tow the boat to another mooring on


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the RT or another canal or inland waterway controlled by the Claimant.”

Why do you believe that?A I believe that, as the defendant, sorry Mr. Wingfield, has currently not

complied with the Continuous Cruiser Guidelines, if the injunction were not granted, he would just simply move to another area and continue the current behaviour of not moving and not complying.

JUDGE PUGSLEY: What evidence have you to rebut that which he says in his statement, namely that he was getting letters from you that he should move and that he did move?

A There obviously are signs of movement, but not sufficient to comply with the Continuous Cruiser Guidelines.

Q In crude terms, can you help me cost-wise? If I were to seek a houseboat licence from you, how much would that cost?

A Obviously, it would differ from site to site, dependent on the facilities available and the size of the boat. As a rough estimate, it could be roughly £800 a year.

Q And, if I were to go on sites, mooring sites, up and down on continuous cruising, what would I be looking at?

A Do you mean as in to pay?

Q Sorry?A How do you mean, sorry?

Q If I were to pay for single nights or five nights or whatever, if I were to live on my canal but did not have a single mooring, would it be as expensive, more expensive or about the same?

A We don’t charge for visitor moorings. There may be private landowners that may charge per night. I know public houses do charge, some charge, for an overnight stay. We, we don’t.

Q So, if I were to confine my wandering to – what I am trying to get at is, assume for the moment you are right and he is parking outside, for example, the steps of the County Hall, or whatever it is called, the town hall, what is it?

A County Hall.

Q Or in the Meadow Hall moorings, is that free?A Yes, it is.


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Q So the purpose of having a houseboat licence, from your point of view, is (a) you get revenue?

A Yes.

Q I am not putting them in an order of priority, but there are different reasons. You get revenue and you can avoid the river becoming just a sprawl of narrowboats.

A Yes, your Honour.

JUDGE PUGSLEY: Or barges, yes. Would you like your witness back?

MR. FOWLES: Thank you, your Honour. Just in relation to his Honour’s questions, what is the difference between a visitor mooring and a permanent mooring?

A The visitor moorings will have a specified time limit. Some, the general consensus is 14 days. There are certain local restrictions that apply which may be 24, 48 or 72 hours.

Q And what about permanent moorings?A A permanent mooring is obviously a place where you can leave your boat

whilst it is not being used for cruising.

JUDGE PUGSLEY: So you could leave it all year round?A Yes, yes you could.

MR. FOWLES: How is the fact of permanent moorings consistent with avoiding a sprawl that his Honour was referring to?

A Sorry, how do you mean?

JUDGE PUGSLEY: It is not that there are permanent moorings that are causing the sprawl. It is that, if boats are not licensed, sorry if boats can park up anywhere, you are likely to have a continuous sprawl of houseboats----

A Yes.

Q --in areas that are inappropriate.A Yes.

Q Sewerage disposal being the most obvious one.A Yes.

Q But other considerations as well. Is that right? Do not let me put words into your mouth.

A Yes, yes, your Honour.


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Q I mean, applying sort of town and country planning procedures, do you try and confine areas of moorings, in the sense that, if you are applying to turn a barn into a house, it is more likely to get through on Government circulars if there is already some sort of settlement there rather than if it is a house bang in the middle of nowhere. It may not be a safe analogy, so tell me if it is not.

A No.

Q It is not.A No.

Q You do not require a number of residential moorings to be grouped together?A No, no.

MR. FOWLES: And, just exploring this question of permanent moorings, in relation to the flow of the waterway, where do the permanent moorings tend to be?

A They can be anywhere along the stretch generally. The permanent moorings will tend to have facilities such as showers, toilets, things like that for the boaters to use, electricity for example.

Q What is the position as regards the availability of permanent moorings in the Nottingham and Beeston area?

A I think I mentioned it earlier. The moorings that we provide are based on an auction basis. They go to the highest bidder and these are available online and, if the customer doesn’t have access to the internet, we can also provide a postal auction service for them to bid.

Q And his Honour mentioned third party moorings. Is that something you can speak to in that area?

A We don’t, we don’t provide details of third party moorings. It would be up to the customer or the boater to explore those avenues.

JUDGE PUGSLEY: Any idea? I think you said that a residential mooring would vary, of course, depending on the size of the boat and location, but I think you said it was something like, was it, £8,000?

A £800 a year.

Q But would there be – sorry to take an analogy from London – if you had someone at Kew Bridge or in Central London, it would cost more than if you had somewhere half way between Watford and Barnet on the Grand Union.

A Yes, there are more popular sites which cost more money.


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MR. FOWLES: So, just to be clear on cost, can you distinguish just between the cost of a permanent mooring and the cost of a houseboat licence? How much does a permanent mooring cost for a year, say?

JUDGE PUGSLEY: About £800.A Yes, approximately.

MR. FOWLES: And how much does a houseboat licence cost?A Again, it is dependent on the size of the craft.

JUDGE PUGSLEY: Yes, but saying that it is, what, 72ft by 56?A I would estimate it at approximately £500 to £600.

Q A year?A Per year, yes.

Q And for a non-houseboat licence?A It would be the same.

Q So it is no more expensive then?A No.

MR. FOWLES: Just returning to your statement, Mr. Garner, at p.17, para.30, you recall a phone call from the defendant stating that he was trying to get a mooring:

“He said he had not been able to cruise because of the floods. I explained we had not been in flood for the entire length of the licence and he had not been complying with the terms and conditions of his licence and this is why his licence was revoked.”

Could you just say, in the period between April 2012 and April 2013, how much was the river and canal in flood?

A I couldn’t give exact dates. Obviously, there were times of flooding between December and February/March time. I couldn’t give exact dates, but it certainly wasn’t in flood for that entire period.

Q So December which year?A Sorry, 2012.

Q And February/March?A February/March-time 2013.


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MR. FOWLES: Your Honour, I am just checking. That may be all my questions, but I just need to check, if that is okay. (pause) Just a general question. What would be the practical impact of your failing to enforce the conditions of houseboat certificates against Mr. Wingfield?

A It would lead to an increase of such cases, therefore, leading to more unlicensed boats and more boats (to excuse the term) clogging up the system without satisfying the criteria.

Q Why would it lead to that?A With no home mooring, therefore boats would be allowed to moor anywhere

along the system if these rules weren’t enforced.

MR. FOWLES: Thank you very much, Mr. Garner.

JUDGE PUGSLEY: Forgive me, can you just help me technically? If, for example, on any sort of bog sized, ordinary width canal, if you had no mooring sites and boats could just park up at will, would the canals be wide enough to take that to allow free passage of a boat?

A They would be wide enough for passage. It would create problems with maintaining the canals.

Q Take a canal like the one that runs along the A38 between Derby and Litchfield.

A Yes.

Q Could that take a narrowboat of conventional width on one side and another and still leave a traffic-free passage?

A No, if there were boats on both sides, there wouldn’t be sufficient room for a passing boat.

Q Do you have any byelaws to punish people who park in other than the official mooring places?

A How do you mean “official mooring”?

Q Well, have I the right to moor wherever I want?A Yes. You can moor a boat anywhere along the towpath, obviously where it is

safe to do so.

Q But if, for example, you had a demonstration and a whole fleet of narrow boats came up and parked on both sides, thereby obstructing the passage of others, have you any statutory right to stop that?

A I don’t know. I will be honest, I don’t know.


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Q So, if I have a canal boat, I can moor up anywhere?A Yes.

Q If I moor up on one side and you moor up on the other side, we would obstruct the canal?

A Yes.

Q You cannot require me to moor up in a recognised mooring?A No. If, if there was an obstruction, we can require people to move.

Q If we both moored on opposite sides?A Yes, yes.

Q But I, subject to that, do not have to use one of your mooring sites?A No.

Q Nor the Pig & Whistle’s mooring site a mile down the canal?A No.

Q I can moor wherever I want?A Yes.

MR. FOWLES: Your Honour, would it be helpful for me to just take you to a particular subsection of the statute just to help your Honour?

JUDGE PUGSLEY: Yes.

MR. FOWLES: I am at tab 4 of my authorities bundle. This is the 1983 Act. Section 8 is one of the sections on which the Canal & River Trust rely; and it is just to give you an example of a situation in which the board or the Canal & River Trust can remove a craft if it is an obstruction and a source of danger, and that is subsection (5) of s.8.

JUDGE PUGSLEY: Obstruction or a source of danger?

MR. FOWLES: Yes, and also where something is not a vessel, if it is just a sort of object of some kind, then there is a power to remove things which are likely to interfere with navigation in s.9. So, whereas s.8 relates to vessels or other relevant crafts which are left without lawful authority, s.9 relates to things other than vessels which cause obstruction or interference.


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JUDGE PUGSLEY: So I am just trying to build up a picture. Bill and Molly decide to take a holiday from an obvious area and they are entitled, without paying any costs, to moor up at any of the Trust’s mooring sites?

A Yes.

Q And, if they do so, they will have the benefit of a loo and a shower, maybe some hot water.

A Yes.

Q And they are not charged for it?A No.

Q They decide, stuff that, they will use the chemical loo and the bowl in the craft and they moor anywhere?

A Yes.

Q What I am not allowed to do is to moor for 28 days in any one site?A It is 14.

Q 14 days in any one site and, if I wanted to live on it, I am entitled to do so as long as I keep going and do not stop at and moor up for more than 14 days.

A Yes, that’s correct.

Q What I am not allowed to do, you say, is to hone in on a particular site, not have a full-time mooring but more flip around just within a short proximity to make sure that I do not spend more than 14 days in any one site.


MR. FOWLES: If I may, your Honour, I am instructed that there are byelaws under which the Canal & River Trust can remove obstructions, for example, but the practice of the CRT is not to use those because they may obviously impact on people’s human rights, so the approach is relatively lenient in that particular regard.

MISS EASTY: Your Honour, if I may assist, the CRT do have powers to remove an obstruction either under statute or under byelaw, if it is an obstruction or is interfering with the right of navigation. In so far as there is that issue, we accept that.

JUDGE PUGSLEY: Yes.

MISS EASTY: But it is not under the----


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JUDGE PUGSLEY: This legislation, but delegated byelaw legislation.

MISS EASTY: Yes, we accept that.

MR. FOWLES: So the distinction, I understand, is it would be possible to prosecute such people under the byelaws, but the CRT avoids criminalising boaters. In relation to----

JUDGE PUGSLEY: I suspect also they might be mindful that the fines are derisory if the byelaws are of some age, but yes.

MR. FOWLES: In relation to a section like subsection (5) of s.8, which is an emergency power to remove an obstruction, that is where the concern will be: “Well we do not want to interfere with the boaters’ human rights”. So, with the byelaws, it is a question of avoiding prosecution to avoid criminalising boaters and with respect to a subsection like subsection (5) or s.8, that is concerned about human rights.

JUDGE PUGSLEY: Yes, but it is also concerned with safety. With an obstruction just after a long tunnel, it would be----

MR. FOWLES: Yes, that would, absolutely, your Honour. Thank you.

JUDGE PUGSLEY: Have you finished?

MR. FOWLES: Your Honour, that concludes my questions.

JUDGE PUGSLEY: Yes.

MISS EASTY: Thank you very much, your Honour.

Cross-examined by Miss EASTY

MISS EASTY: I will just start off with that point. In terms of when there is an obstruction or another interference with the free navigation of the waterways, CRT have proper powers to be able to deal with that if they decide it appropriate, do they not?

A Yes, they do.

Q In terms of the judge’s example, in terms of having a permanent mooring, are there any currently available permanent moorings that CRT possess in this locality, area, whatever you want to call it?


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A Without checking, I wouldn’t know. Like I say, they are all available on the website.

Q I did check and I could not find any. Are you aware at all?A I’m not aware of any current vacancies, but, like I said, without checking I

couldn’t categorically say.

Q And, if I am wrong in that, I am sure you can check overnight and come back in the morning.

A Yes.

Q Now, in terms of other marinas or private moorings, are you aware of any vacancies at all in respect of any permanent residential moors?

A I’m not aware of any vacancies within private marinas. It’s not something we get involved with.

JUDGE PUGSLEY: Sorry, do you mind, there can be two meanings to that answer. It is a perfectly proper question and perfectly proper answer, but “not aware of any vacancies” can imply that “There are no vacancies, I would know if there were”, or it could be, “I haven’t got a clue, I don’t know either way”.

A Yes, sorry I don’t know. Just to clarify, I don’t know.

Q Either way?A Yes, sorry.

MISS EASTY: Now, let us just go quickly to the financial basis of the different types of licence. If I had a CRT permanent residential mooring, I would pay you my mooring fee.


Q And I would also, if it was on the navigable canal, be expected to have a licence, would I not?


Q And it is the licence which, in your example, was £800 roughly or was it the mooring----

A The mooring was £800.

JUDGE PUGSLEY: The mooring was 800, the licence was the same.A No, the licence is roughly £500 to £600.

Q Sorry, the same for whatever use.A Yes, yes.


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Q Either a houseboat or a touring boat.

MISS EASTY: And so let me just say that again to clarify. So, if I had a permanent residential licence, I would be paying £500 to £600 roughly.

A Is that for the boat licence?

Q Yes the boat licence.A Yes, that’s correct.

Q And, in terms of the boat in the current place – and we will look at the boat in the current place – it is 27ft, so that boat would be paying in the order of, roughly?

A As a rough estimate, roughly £800.

Q No, I am talking about, if this boat was moored at – pardon me, it is my fault – if this boat was moored at one of your residential permanent moorings and paying the mooring fee and the license fee, what they would be paying as well would be in the order of?

A It would differ from site to site. Like I said previously, different sites offer different facilities so, therefore, are more expensive.

Q I am asking about the licence.A Oh sorry the licence.

Q Yes.A Apologies, the licence, without looking at a price list for that size of boat----

Q Roughly, I am not going to make a big fuss about it.A Roughly, it would be about £500.

Q Roughly £500 and, in terms of the continuous cruising licence, roughly how much?

A That would include the continuous cruising part of the licence.

JUDGE PUGSLEY: There is no difference?A There is no extra cost for the continuous cruising licence.

Q Or, sorry, I think we must get this clear, take a boat size, whether it is 28ft, 46, 56, 72, can we just exclude the size, but the principle, as I understand it, tell me if I am wrong, you do not pay any more for a licence for a residential boat than you do for a touring boat?

A No, that’s correct.


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MISS EASTY: Now, in terms of the continuous cruiser licence and, again, I know that is a term of art and I will use it if I may.

A Yes.

Q In terms of that, continuous cruisers live on their boats, do they not?A Yes, they do.

Q And there is nothing wrong with that. That is not a problem for the CRT?A No.

Q The point is whether they fulfil the criteria of being bona fide for navigation.A Yes, that’s correct.

Q And it is also the point that I think, again, I may well be wrong on this and I am sure you can correct me, but the navigable part of the River Trent is about 90 miles, something like that?

A Roughly, give or take, yes.

Q Roughly, roughly.A Yes.

JUDGE PUGSLEY: Where can you go?A On the River Trent?

Q Yes.A From Shardlow down to Gainsborough. Gainsborough Bridge is the limit and

then I believe it is down to Ports Authority.

Q It is down to?A Ports Authority.

Q The Humber?A Yes.

Q So, beyond Shardlow, you cannot go up to Burton and Burton to Stoke?A I’m not familiar with that part of the River Trent. I don’t cover that part of the

country.

Q So you do not know how far navigable it is if at all----A Not at that end.

Q --to the west of Shardlow?


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A No, no.

Q But you can go from Shardlow to Gainsborough, which in crude terms is Nottingham, Newark and Gainsborough?

A Yes.

MISS EASTY: Again, about that, roughly, and I am not going to be pinning you down?

JUDGE PUGSLEY: What did you put the distance at?

MISS EASTY: About 90 miles.A Roughly, yes, that’s correct.

Q And, in terms of that, again I am using this as an example, in terms of that, if you wish to go up and down the canal in your boat, you could moor on the towpath side throughout the length of that, subject to say, local restrictions like, for example, you may have “This is a weir, don’t moor here” or “This is a lock, don’t moor here” or “This is a bridge, don’t moor here.”

A Yes.

Q But, subject to those local restrictions, you can moor anywhere along that length; that is right?

A Yes, that is correct.

Q And there is no charge for those moorings?A No.

Q And so a continuous cruiser can moor entirely lawfully anywhere along where it is permitted to do so without local restrictions over that length, yes?

A Yes.

Q But they receive, in terms of generally those moorings, they receive no facilities, for example you do not have taps and loos and showers along the whole of that 90 miles?

A No, no.

JUDGE PUGSLEY: Some you will have but most not.A There are some mooring sites that will offer facilities. The more remote ones

will not do.

Q You will have to pay where there are facilities, or may have to?A Not for our moorings. We don’t charge for them.


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Q Anything?A No.

Q I thought you said that, where there are facilities, you might do?A Some private landowners and publicans may do.

MISS EASTY: Now, again, I think you would accept quite easily that, when the canal or river, whichever, is in flood, you would not expect someone to move through those conditions if they considered, in their opinion, that it was dangerous to do so?

A No, never.

Q And also I think, well no, you do not accept, you----

JUDGE PUGSLEY: Sorry, hang on, I have to make a question out of this.

MISS EASTY: Sorry. You are aware that the Trent was in flood at times between December and February/March.

A Yes.

Q Would you accept that, where Mr. Wingfield was, it was in flood throughout that period?

A Like I said earlier, it was in flood for parts during that period, but I couldn’t give specific dates for when it was in flood, but it was not in flood for that entire length of time.

Q So, again, I am going to press you on this. When was it not in flood?A I don’t know. I don’t have specific dates of when it wasn’t in flood.

Q The reason why I ask, of course, is because that is when you would be of the view that it would be reasonable for him to move, no?

A If the river is in flood, I would not expect anyone to move.

JUDGE PUGSLEY: Is there a definition of “in flood”? I mean, does anyone know?

A There are water markers to indicate water level. Green, amber and red, I believe they are, obviously red being in flood.

MISS EASTY: Would it be of assistance to you to have a look at some of the pictures attached to Mr. Wingfield’s second statement, just so that the judge can see some of the markings?


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JUDGE PUGSLEY: Page?

MISS EASTY: It is a stand-alone document.

JUDGE PUGSLEY: Well, it has not stood alone here.

MISS EASTY: I should make clear that this is yours. This part of it, para.5, has been struck out so please take no notice of that. I am just referring you to the pictures.

MR. FOWLES: Your Honour, just to clarify, this is a witness statement that was not in the trial bundle. We have agreed to its going in today, subject to the deletion of that paragraph.

MISS EASTY: Yes.

JUDGE PUGSLEY: Fine, I will not read it.

MISS EASTY: Yes, so para.5, please, I have scribbled it out in mine and that is why I have handed you mine, but, in terms of the pictures, do you have it?

A Yes.

Q If you could just show to the Judge what you mean when something is in flood or how we can tell?

JUDGE PUGSLEY: What numbers are they?A Five and six.

MISS EASTY: And can you see that there is a red line there or if you could simply explain to the Judge?

JUDGE PUGSLEY: Yes.A The marker is such that obviously the red would indicate that the river is in

flood and it would not be safe to travel.

Q At that point it is the Soar, is it not?A I believe these pictures are taken at Beeston Lock.

MISS EASTY: Yes, those are taken at Beeston Lock.

JUDGE PUGSLEY: Right, thank you. I mean, to put it rather simplistically, as far as either a river or a canal is concerned, if it had in fact risen over the land


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which encases a canal, you could be in serious difficulty trying to move a vehicle.

A Very serious, very serious difficulty, yes.

Q You might still be in some difficulty if it was still moored.A Yes.

Q But it is not as grave as floating freefall outside the confines of the river or canal.

A Yes.

Q That is a statement of the obvious.A Yes.

JUDGE PUGSLEY: Yes.

MISS EASTY: Thank you. Now, again, when did you start becoming, when did you become an enforcement officer, roughly again?

A Roughly July 2009, I think.

JUDGE PUGSLEY: Sorry, what was that date?

MISS EASTY: July 2009.

JUDGE PUGSLEY: What happened in July 2009?A I am sorry, I became an enforcement officer.

MISS EASTY: And what was your training for that job?A How do you mean, company training?

Q Well, I should ask the question first. Had you had canal experience before getting that job?

A No, I was a police officer prior to this job.

Q So, when you took over the enforcement role, what training did you undertake? Did you undertake any training or how were you explained the role of the job?

A I was, I was, I had a mentor who I worked with for a period of time who taught me the legislation, the processes and powers.

Q And did you receive any, for example, discrimination law training at all, for example?


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A We had, we have a, I don’t remember the term of the course, but it’s a fitter and equal opportunities training course. Forgive me, I can’t remember the proper title.

Q And did you have any training about how to apply Article 8?

JUDGE PUGSLEY: Apply?

MISS EASTY: Apply Article 8. I am sorry, your Honour, I am dropping my voice, how to apply Article 8 and human rights.

JUDGE PUGSLEY: Apply what, sorry?

MISS EASTY: Article 8.

JUDGE PUGSLEY: Article 8 of the Human Rights Act?

MISS EASTY: Yes.

JUDGE PUGSLEY: Yes.

MISS EASTY: Of the Human Rights Act to your role as an enforcement officer?A I have had previous human rights training in my time in the police, yes.

Q No, I am asking you in terms of because, again, the role of a police officer and an enforcement officer are quite different. In terms of this role?

A No. No, I haven’t.

Q Did you have any internal guidance as to how to consider, again I am only talking about your enforcement role and how to apply human rights, Article 8 of the Human Rights Act in terms of whether you are considering it? Is there any policy or guidance in your role?

A Yes, there is, yes.

Q And where is that policy?A It’s on the, I think it is called, our internal internet system.

Q Your network or whatever?A Yes, yeah, however you like to describe it.

Q And what does it say you should do?

JUDGE PUGSLEY: Look, really, I am sorry----


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A I don’t know. I----

JUDGE PUGSLEY: I am sorry, this is not a proper cross-examination.

MISS EASTY: Well, your Honour, I am sorry, I say it is.

JUDGE PUGSLEY: Well, I am the judge and you are not.

MISS EASTY: I am sorry, your Honour, I did not mean to be impertinent with respect to that.

JUDGE PUGSLEY: This is not a proper cross-examination. I have spent many years listening to arguments about human rights in the context of employment law. You can call for the policy if you want it, but it is just, what is your case? Put that.

MISS EASTY: I am putting my case. I am----

JUDGE PUGSLEY: You have not put it at all yet.

MISS EASTY: Your Honour, if I may just explain. I am saying that the CRT, before they revoked the licence and when they decided to seek an injunction, should have considered and come to a balance as to the defendant’s human rights.

JUDGE PUGSLEY: Well, why not put that to the witness?

MISS EASTY: That is what I am trying to do. That is why I am trying to find out what guidance he followed because, as far as I can see----

JUDGE PUGSLEY: Is it reduced in writing, the guidance on the Human Rights Act?

MR. FOWLES: I am sorry, your Honour? (pause) We would need to investigate further, your Honour. We have not been asked for this policy before.

JUDGE PUGSLEY: Have you asked this for disclosure of all documents relevant to the training?

MISS EASTY: No, your Honour, but what my next question is going to be, and I will ask it immediately because I, of course, do not want to take up too much


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time, is where is, well, if I may, your Honour, I would ask where this witness has analysed the defendant’s human rights in any document.

JUDGE PUGSLEY: I have never heard a question in quite that way. Why do you not ask what would be a straightforward question along the lines of “Were you aware of the need to consider the relevant issues in the Human Rights Act?”

A Yes, during the case and dealing with Mr. Wingfield, obviously, we have had conversations and his needs were taken into account. I had conversations with my supervisor, taking into account Mr. Wingfield’s issues, medical and whatever else they may be, and decisions were made along the way, taking into account all the necessary issues and situations.

Q And what did you identify as being the necessary issues about Article 8?A Mr. Wingfield stated that he had medical, ongoing health issues that would

require him to be in the area for a prolonged period of time. I consulted with my supervisor about these issues and it was agreed that we would give Mr. Wingfield an authorised overstay, which means we would grant him a free mooring for a period of time in the location for him to secure a permanent mooring that would----

MR. WINGFIELD: Continuously cruise. Sorry.

WITNESS: Apologies, or to begin to continuously cruise in order to form a resolution to the issues.

JUDGE PUGSLEY: Were you aware of the precise details of his medical condition and what was said to be the consequence of that medical condition?

A We applied for, we asked Mr. Wingfield for a medical letter outlining his ongoing health issues.

Q Did you receive such a letter?A Yes, we did.

JUDGE PUGSLEY: Yes, let us move on from there, shall we?

MISS EASTY: Now, in your view, in terms of someone who is continuously cruising, if they, for example, are severely disabled – and I am not saying it is in this case, I am using a neutral example as far as possible – someone was severely disabled, would you consider that they should move as far as somebody who was entirely fit?

A We would take into account all their needs and the decision would be made based on an individual case.


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Q Now, in terms of this particular case, have you at any time looked at all the issues put forward by Mr. Wingfield together, cumulatively, his health, his engine, the floods, everything like that in one place?

JUDGE PUGSLEY: Sorry, his health?

MISS EASTY: His health, the flood, his engine, the flooding of his engine, for example?

JUDGE PUGSLEY: That is quite a mixed bag.

MISS EASTY: Yes, that is exactly what I am asking, did he consider everything cumulatively, all together, at any one point?

A Like I say, discussions were had with my supervisor where the situations were discussed and decisions were made based on the information we had received.

Q Again, in terms of Mr. Wingfield, taking into account his particular circumstances, how far do you think he should be moving, roughly again?

A I think he should be complying either with the Continuous Cruiser Guidelines or securing a home mooring if the need is such that he needs to be in that particular area on a more permanent basis.

Q In terms of fulfilling that guidance, again, can you give any indication, in these particular circumstances, how far you think it would be appropriate for somebody in Mr. Wingfield’s circumstances to move?

A I’m not going to, I can’t give a specific distance.

JUDGE PUGSLEY: Well, can you put a question which is based on factual matters such as “My client suffers from A, B, C, would that not militate against him complying with continuous cruising” rather than ask abstract questions based on an uncertain knowledge of what was brought to this witness’ attention?

MISS EASTY: Well, your Honour, I think it is right to say that the witness was aware of the health issues.

JUDGE PUGSLEY: Would you, please, act like a member of the Bar, not act in a free-floating way? Sorry, to be so blunt about it. If it is your case that your client suffered from a particular disability, would you put to the witness what the disability was and the extent to which that will exclude the defendant from the normal day to day considerations that might apply to somebody who was not disabled?


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MISS EASTY: Thank you, your Honour. Again, you understand that Mr. Wingfield is registered disabled?

A Yes.

Q You also understand that he has a heart problem which one doctor described as “severe”?

MR. FOWLES: Your Honour, registered disability has not been disclosed anywhere. That is a complete bolt from the blue.

MISS EASTY: I think it is the first line of his first statement. (pause)

JUDGE PUGSLEY: Would you like me to rise for five minutes so you are not under pressure?

MISS EASTY: No, your Honour, I do not think that is necessary.

JUDGE PUGSLEY: Right.

MISS EASTY: It is in his statement. I do not think there is any issue in respect of this.

JUDGE PUGSLEY: Well, it is the Disability Discrimination act.

MISS EASTY: No, I am not saying it is the Disability Discrimination Act at all. I am not.

JUDGE PUGSLEY: Right.

MISS EASTY: Paragraph 2 of his statement at p.194: “I am currently in receipt of income-related employment and support allowance as I am unable to work”.

MR. FOWLES: Is that the same as registered disability? I am not sure.

MISS EASTY: Well, I can put it as that. Are you aware that he is in receipt of income-related employment and support allowance as he is unable to work?

A I’m not aware of what Mr. Wingfield claims, no.

Q Now, again, we looked at your map of movements. As you know, Mr. Wingfield states that, up until the revocation of his licence, he was moving as best as he could in accordance with the Continuous Cruising Guidelines? That is our case, yes?

A Yes.


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Q In terms of the movement that you have in respect of this map, the overview map, what more would you have expected, how much further would you have expected him to move?

MR. FOWLES: Sorry, which page?

MISS EASTY: It is this map.

MR. FOWLES: Right, page?

JUDGE PUGSLEY: Page?

MISS EASTY: I have it as p.144.

JUDGE PUGSLEY: Of the principal bundle?

MISS EASTY: Of course I am talking when the river is not in flood or anything like that.


WITNESS: Sorry, could you repeat the question?

MISS EASTY: My question was, this is a map of his movements. Again, our case is that we were moving every 14 days until the revocation of our licence – that is our case – in terms of the movement here, can you tell me what you would have expected Mr. Wingfield, where you would have expected him to move in excess of what he already has done?

A I can’t tell Mr. Wingfield where to go or how far to move.

JUDGE PUGSLEY: No, okay. No, no, let us just turn it round. Very crudely, from Loughborough to Newark would be about 70/80 miles?

A Roughly, yes.

Q Yes, 80.A Give or take.

Q Would he have satisfied continuous cruising if he had gone up and down from Newark to Loughborough, taking several days perhaps per week?

A The journeys to Newark and Loughborough are simply one-offs. All the other sightings are in and around the River Trent and Nottingham & Beeston Canal. Therefore, they would not satisfy the Continuous Cruiser Guidelines.


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Q So, if you stay on the River Trent but not on the----A Sorry, to clarify that, in and around the Nottingham section of the River Trent.

Q So let us say, we do not know what it is, but something in the order of 80 miles and he would have gone up and down, not stopping at any one area for more than 14 days. Would he have satisfied the Continuous Cruiser Guidelines?

A Not just going up and down, no.

Q Well, what would he need to do to do that?A In the guidelines, it is stated that it would need to be a genuine navigation, a

genuine journey; whereas Mr. Wingfield has gone up and down the canal from A to B to B to A.

MISS EASTY: Your Honour, may I?


MISS EASTY: Now, in terms of genuine navigation, let us just imagine – again, sorry, I know it is hypothetical – but if one was travelling to a mooring because it had a washing machine and then you travelled to a mooring because it had a big supermarket and then you travelled to another one because it had your doctors, for example, it could be anything, is that not genuine navigation, as you would put it?

A Yes.

Q So it is not just the distance, it is the purpose, is that fair?A Yes.

Q And so, if the purpose is to go to different places to achieve different things, then, in your view, that would be sufficient to fulfil the guidelines?

A Yes.

Q Again, it is an example. A Yes.

JUDGE PUGSLEY: Well, I am sorry, this causes wider issues. I can understand that if all I am doing is travelling up and down within a small ambit from the County Hall Steps and, in the words of a brother judge, the travelling is incidental to maintaining a mooring, not the other way around, but if over a distance of 90 miles, 80/90 miles, I am travelling up and down it now, what does a narrowboat do, four miles an hour?

A Yes.


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MISS EASTY: That is the speed limit, is it not?A It is, that’s correct, yes.

JUDGE PUGSLEY: That is the speed limit?A It is, yes.

Q So I am probably going to take two days to go up, roughly to Newark and then two days to come back and two days to get to Loughborough. At what point does that become, or cease to be, continuous cruising?

A If----

MR. FOWLES: Your Honour, may I interrupt? It is a little difficult for Mr. Garner in the absence of a specific factual scenario. It would be, in my respectful submission, more helpful for Mr. Garner to speak about this particular case because, of course, if the question is not simply one of distance, then how is Mr. Garner supposed to address that question?

JUDGE PUGSLEY: Yes, can we just get this clear? Your map, is it on 144?

MISS EASTY: Yes, your Honour.

JUDGE PUGSLEY: I mean, how often does it show him being in Loughborough or at Newark-on-Trent? When we have these periods, we have got these periods and there do not seem to have been, I mean can we assume these are the only occasions when he was sighted?

A These will have been the times when he has been sighted by a member of staff, yes.

Q There appears to be two in June at the self-same place. Would that have come up?

A No.

Q It would just be shown as one sighting?A One dot, yes.

Q Well, can you flush out 144 and 145 into any pattern of how long, how many trips he made?

MISS EASTY: Are you aware of that information?A There would be a list of every sighting of Mr. Wingfield’s boat. Every time he

was seen by a member of staff, it is GPS linked, so there is a list of every sighting of Mr. Wingfield’s boat.


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Q I have seen that. We have the page, have we not?

MR. FOWLES: It is 61, I think.

MISS EASTY: 61.

MR. FOWLES: It is p.80 of the trial bundle.

MISS EASTY: Is this what you mean?

MR. FOWLES: It is p.80 of the trial bundle.

MISS EASTY: Is that what you mean?A Yes.

Q You have a list there and these were the dates and times upon which this boat was sighted?

A Yes, that is correct.

JUDGE PUGSLEY: This is very helpful, or may be.

MISS EASTY: But, again, of course, you would accept that, if the boat had moved in between those dates and one of your staff had not seen it, it would not of course necessarily be a full picture of this boat’s movements, would it?

A No.

JUDGE PUGSLEY: How likely is that?A Obviously, we can’t check every kilometre of every canal every day.

Q No, of course, not.A So there are going to be days where boats do move that we wouldn’t see them.

The areas are checked on a very regular basis, as you can tell by the----

MISS EASTY: Sightings.A --by the dates on the sightings.

JUDGE PUGSLEY: What is the difference between the declared CC sighting to just being sighted?

A Without getting too technical----

Q Do not do that.


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A --we have a hand-held computer that we log all our sightings on. There is a drop-down menu for all boats that are registered as a continuous cruiser. There is a button to press to say that it is declared as a continuous cruiser.

MISS EASTY: I think the Judge was asking you, if you look at the list there, if you have a look on 25th February 2013, it is declared “CC sighting”, which is the first one here, and then, at 23rd November 2012, it says “sighted”. What is the difference? Why are they recorded differently?

A There is no difference. It is recorded. There is no difference between the two. It is more to highlight to myself as an enforcement officer, to check the history of that boat in question.

Q So, again, there is no----A There is no evidential difference.

Q --there is no special magic in it?A No, no, absolutely not.

JUDGE PUGSLEY: Look, there is no hard and fast rule, I think, where you can say this is continuous cruising and this is not, but just looking down that page, I mean, if you want five minutes to look at it, by all means, through to the next page and, looking at that and analysing that, why would you say that is not continuous cruising?

A Because, for the term of the licence, despite the one journey to Newark and the two sightings in Loughborough, Mr. Wingfield has only ever been sighted on the Notts & Beeston Canal and Holme Lock or County Hall.

Q And can we tell that from here?A Yes, the codes on the fifth column along?

MISS EASTY: “Flock affected”.A Yes, “Flock affected”, they are all codes for the kilometres lengths on the

rivers and canal.

JUDGE PUGSLEY: Kilometre lengths from?A So, for instance, “RT008”.

Q 001.A Would be in reference to Trent Bridge as the nearest.

Q So you are saying, looked at there, this is no more than pottering around your own back garden?

A Yes.


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Q As opposed to the longer trips, which are shown on p.144 and 145?A Yes.

Q And presumably, if we look at 144 and 145, we can marry up, can we----A Yes.

Q --how many times he actually went to Newark or did the various trips shown on 144 and 145? Presumably in June we will be able to see whether he went to Newark----

A The actual----

Q --once or twice.A Sorry, apologies.

Q No, no.A --the actual sighting for Newark is on 31st July 2012 and it is just the one

sighting, so he was seen once.

MR. FOWLES: Which page are you on?

A Sorry, apologies.

MISS EASTY: 80.A 80.

JUDGE PUGSLEY: So “RTO4010” is Newark, is it?A Sorry RT045, yes, that is Newark, yes.

MISS EASTY: And, again, just for clarification, that “RT045010” is Newark from the boundaries of the place to where? What distance does RT045010, how long is that, that stretch? Is it a stretch or is it a point, I suppose, is what I am asking?

A It is each kilometre, so the 045 refers to the 45th kilometre of the River Trent.

Q Now, again, moving on, if I may, in terms of you describe a clogging of the canal in your evidence-in-chief. Do you mean obstructions of the canal?

A If people were allowed t moor their boats wherever they pleased there would be a natural clogging of the waterways. Eventually that would cause an obstruction of the canal.

Q But is that a problem currently on this canal, that there are so many boats on it that the canal is itself obstructed by the number of boats?


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A Not at this moment.

JUDGE PUGSLEY: Do you think it would be if you did not have these rules in force?

A I believe so, yes.

MISS EASTY: And, in terms of this locality or on the River Trent, as far as you are able, can you estimate – again, you may not have this information – how many boats are generally on that 90 mile stretch, for example?

A I couldn’t, I couldn’t estimate that at all.

JUDGE PUGSLEY: It would depend a bit on time of year, would it not?A Yes. Obviously, in the summer there would be more and, in the winter, there

would be fewer, but as a general rule, I wouldn’t like to say. I couldn’t say.

MISS EASTY: Well, maybe I can ask more specifically. In terms of locks, how many locks would boats have to wait for before they could get through, generally, on that 90 mile stretch?

A Again, I couldn’t say. Without looking it up, I couldn’t say.

Q So are you aware of any areas of specific congestion on this, again I am just using it as an example, 90 mile stretch?

A No, not at the moment, no.

MISS EASTY: One moment, please?


MISS EASTY: Thank you, those are my questions for this witness.

JUDGE PUGSLEY: Thank you very much.

MR. FOWLES: May I just ask one question by way of re-examination?


Re-examined by MR. FOWLES

MR. FOWLES: Just remaining on p.80, Mr. Garner, can you say what “TE” means on this page as opposed to “RT”?

A Sorry “TE” refers to the Nottingham & Beeston Canal.

MR. FOWLES: I see, thank you. Thank you.


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JUDGE PUGSLEY: Forgive me, I know a little bit about canals. I had a small boat, really small, 30 or 40 years ago, but I just want to get to the rationale behind this. If you look at the movement of motor caravans or caravans or tents, of course people can pull up in a layby and sleep overnight. Of course, if you get people living there, you have a whole range of problems.

A Yes.

Q In terms of sewerage disposal, congestion of the site.A Yes.

Q A permanent amenity damage rather than transient movement. I mean, do similar considerations apply on canals? I mean, is it part of your policy to avoid people using short stay moorings as a long term residence?

A Yes, it is.

Q Why?A Due to those issues that you have mentioned previously, if we allow people to

moor where they please for long periods, a lot of the sites don’t have the facilities of a proper permanent mooring site and you----

Q And so sewerage just gets dumped over the side?A Rubbish, yes. Therefore, there is an issue with maintenance of the canal,

clearing the canal etc.

Q Does the existence of a boat moored inhibit the management of the canal in terms of access to its sides and all the rest of it?

A Obviously, where the boat would be moored, you wouldn’t be able to get access to the bankside, so, if boats were allowed to moor freely where they wished in large numbers, the maintenance of the banks along the canal would be very difficult, if not impossible.

Q You have certain long-term mooring sites?A Yes, we do.

Q Do they have different facilities from short term ones?A Short term facilities will generally have very little or no facilities, whereas the

long term permanent moorings will have showers, toilets, refuge disposal and that sort of thing.

Q Please do not agree with what I am about to say because it is an invitation for you to answer a question in your own way in your own manner, not to tick a box; do you understand?


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A Yes.

Q Continuous cruising is a difficult area in which one can stake down definite propositions, but obviously, if you live in, your boat is moored somewhere in the Litchfield area, you have a range of canal navigations that you can plug into.

A Yes.

Q You can go to Birmingham and the Black Country, you can go out on the Shropshire Union, you can go down on the Coventry Canal, you can go on the Grand Union. You could do a round trip.

A Yes.

Q If you are living in Nottingham on a boat, you can also do round trips.A Yes, you can, yes.

Q But would you actually preclude somebody who had a more modest area of going up one week to Newark, possibly a bit more, you can get further than Newark now?

A Yes, you can, yes.

Q And can go down to Loughborough, can you go beyond Loughborough?A Yes.

Q To?A Without looking, I wouldn’t know the exact place. I don’t cover that part of

the country, unfortunately.

Q I cannot see why older and those whose health, mental health as well as physical, might limit them to a smaller journey cannot be said to do continuous cruising in the way it would be if you were going the Grand Union, joining up with the Oxford Canal and, you know, going up to the canal up towards Bristol, Bath, the Kennet & Avon and all the rest of it.

A Kennet & Avon.

Q I am just a bit worried. I get the drift of what you mean, but I am trying just to see what lines you would put as moving from one category to another.

A If, if the journeys, taking this instance, if the journeys were more frequent and more varied, you may well look at that and say that is continuously cruising. As I previously stated, the journey to Newark was a one off. The journey to Loughborough, although Mr. Wingfield was sighted twice, was a one off. All of the other journeys have been along that small section of the canal and river.


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Q Running to about, remind me?A Approximately 12km.

Q 12?A 12 km.

Q Kilometres?A Yes.

MR. FOWLES: Which is seven and a half miles, roughly.

JUDGE PUGSLEY: Thank you. Can I now dessert the case and ask if we can just ask ourselves what you actually want on both sides? I mean, do you really want to stop him living there or do you want him to get a residential licence?

MR. FOWLES: We want him either to get a permanent mooring or to continuously cruise within the requirements of the statute.

JUDGE PUGSLEY: Well, what do you want?

MISS EASTY: We want either to get a permanent mooring and, if we can get our licence back, and then continuously cruise in the way that CRT want us to.

JUDGE PUGSLEY: But you would not need to if you have a residential mooring.

MISS EASTY: Again, there is a difficulty. You have heard that part of our … pardon me, your Honour. (Miss Easty took instructions) We would also, for the avoidance of doubt, be willing to cruise from Loughborough to Newark, that stretch, not returning within 14 days. We are entirely happy for that. We are entirely happy to continuously cruise if we could get some guidance. If we could get a permanent mooring because, as you know, this gentleman was on a permanent mooring for some 13 years.

JUDGE PUGSLEY: How did he lose it? Remind me.

MISS EASTY: There was an argument in relation to the----

JUDGE PUGSLEY: The Harbour Master pushing him in the canal.

MISS EASTY: Yes, yes.

JUDGE PUGSLEY: And he said no and he pleaded guilty because he was told he would get three years, yes, sorry.


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MISS EASTY: Yes, yes, so that is the reason why, but we are entirely eager to get any of those things if there was----

JUDGE PUGSLEY: And what attempts has your client made?

MISS EASTY: In terms of what?

JUDGE PUGSLEY: Getting a residential mooring.

MISS EASTY: In terms of the residential mooring, as you can see from his statement, he says he has applied and tried to get them at … (Miss Easty took instructions) In his statement, he has made attempts and that is why the shortage of moorings is significant, your Honour. If he could have got a mooring, he would have done to avoid this problem.

JUDGE PUGSLEY: And you say that, if he does not get it, he is prepared to adhere to a programme of continuous movement.

MISS EASTY: To the extent that satisfies CRT. You will see from the bundle as well that his support worker, for example, has asked how far they would like him to go.

JUDGE PUGSLEY: How much money does your client get a week and what is the source of that money.

MISS EASTY: I will just check, your Honour. (Miss Easty took instructions) We are just working it out. (Miss Easty took instructions) £120 a week, your Honour.

JUDGE PUGSLEY: That is net, is it?

MISS EASTY: Is that net?

MR. WINGFIELD: I do not understand that.

MISS EASTY: No, how much money do you get a week?

MR. WINGFIELD: 120.

MISS EASTY: 120.

JUDGE PUGSLEY: Are you sure that is not a fortnight?


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MISS EASTY: Once a fortnight or once a week? (Miss Easty took instructions) A week.

JUDGE PUGSLEY: You narrow boat on diesel?

MR. WINGFIELD: On diesel?

JUDGE PUGSLEY: Yes.

MR. WINGFIELD: Petrol, Sir.

JUDGE PUGSLEY: Petrol. What do you want?

MR. FOWLES: Well, one of the difficulties with Mr. Wingfield simply saying that he is prepared to continuously cruise is that, on his own admission, he has in the past refused to give us information about his movements.

JUDGE PUGSLEY: I am sorry?

MR. FOWLES: He has in the past refused to give us information about his movements, on his own admission.

JUDGE PUGSLEY: Yes.

MR. FOWLES: So we would really want him to have a permanent mooring.

JUDGE PUGSLEY: But you cannot dictate that, can you?

MISS EASTY: But we would be----

MR. FOWLES: What we can say is that, if he wants to use the canal or river, he should comply with the conditions that other people have to comply with.

JUDGE PUGSLEY: Yes, but I am fed up to the back teeth of trying cases which are not like this. In one week I had a case where the costs in some cases on one side were well over ten times the amount of compensation and, in a stinging judgment in a case call Piglowska v Piglowski, Lord Hoffmann laid into the courts, to put it bluntly, saying there must be some proportionality between the issue and the amount of costs.

Now, for a moment, may I make it clear I have not reached a view either way. I should think that is pretty obvious, but the context of continuous cruising is a


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wide one. I have every sympathy with the argument, but I have not heard the defendant on the topic, so I am only giving a provisional view and not a final one, that you should not try and dodge round the parking meters to secure for yourself a parking bay all day, but, equally, I am concerned as to what the other limit on other continuous cruising is. I am a bit rusty, but, I mean, if you are on the Brecon & Abergavenny Canal, that beautiful canal, there would be a limit to how far you could continuously cruise. I mean, I cannot remember it, but it has no access to any other part of the navigation system.

Now, all I am saying is that it is not an easy concept. I am not sneering. I think we all know what you actually are aiming at, that if you are a sort of water-bound toad wandering around the lanes, but in this case the canals, of England, that is perfectly legitimate and I suspect there are some people who do it, you know, take a year out, early retirement, but I am just concerned as to whether, even at this stage, there is some room for movement. I think the defendant would have to really co-operate with the claimant. I do not want to lay down a schedule. I do not think I have the power to or, if I have the power, it would be a very wise exercise of discretion, but, I mean, if your client is prepared to give an undertaking which is enforceable, just like an injunction, by penal sanctions that he undertakes that he will abide by a schedule of movement, I have to say I think there might be common sense all round.

MISS EASTY: Your Honour, for the avoidance of doubt, because, again, this case has wider implications in terms of, as you have said in the opening, that they do not want to set a precedent as it were, we are quite happy to maintain confidentiality of any agreement.

JUDGE PUGSLEY: Yes, I mean----

MISS EASTY: If that is something that the court would find of assistance.

JUDGE PUGSLEY: --what I am trying to get at is, say, for example, human situations can vary so much and I do not want to set a precedent that it is not continuous cruising unless you do, you know, like income tax laws, you live in the Channel Islands and you do not want to pay income tax in England, that you are only allowed so many days and all that business. I do not want it to be as rigid as that, but I am just thinking that, overall, I would have thought there was room for negotiation here on both sides.

MR. FOWLES: If your Honour does not want to set a precedent, you can imagine the position the Canal & River Trust is in, that, if we gave Mr. Wingfield a schedule of movements, whether that might be referred to by other boaters as


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what they needed to do without regard to the particular circumstances of this case.

JUDGE PUGSLEY: Well (a) there could be a confidentiality clause with the judgment, but (b) and in the alternative, in the recital it would surely say continuous cruising in the context of this area.

MISS EASTY: And this gentleman’s ill health, for example, or anything that is personal to him.

MR. FOWLES: Obviously to lawyers that would all look very well, but, practically speaking, that is not necessarily going to be enough of a protection for the Canal & River Trust and, your Honour, if the court will not give guidance on the meaning of what Parliament says, there is no real reason why the Canal & River Trust should. I mean----

JUDGE PUGSLEY: I regard that as a highly irresponsible statement.

MR. FOWLES: I am sorry, your Honour?

JUDGE PUGSLEY: I regard that as a highly irresponsible statement. You cannot lay down in concrete what words like this mean. What you can do is, in the recital, surely, to make it absolutely clear that you are dealing with a man of advanced years, you are dealing with a man who has some physical disability and that, in the context of this case, the Board accept that, for this person, continuous cruising would be A, B and C. That would be totally different for a young couple in their mid-thirties who had no health inhibitions, no requirement foreseeable to seek any medical advice. Secondly, it would ignore completely all that legislation in the Equality Act. You have to bear in mind that people are not necessarily terminally ill or, in the alternative, fit for full duties and I think it would be perfectly feasible to take that into account and say “This should not be taken as a precedent for what continuous cruising means in all circumstances founded on this case, with this claimant at this age.”

MR. FOWLES: My instructions are that the demographic does tend to be older.

JUDGE PUGSLEY: Sorry?

MR. FOWLES: The demographic of boaters does tend to be older, so you would not necessarily very often get a position where you would be able to distinguish Mr. Wingfield’s position, say, from a young family. You know,


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the demographic of the boaters tends to be at the older end of the scale, if you like. So there would not necessarily be that----

JUDGE PUGSLEY: I am not so sure that would necessarily be true in areas of London. Anyway, let us not debate the abstract. If you do not want to discuss it with the claimant, you are perfectly entitled not to.

MR. FOWLES: May I take instructions?

JUDGE PUGSLEY: Yes. (Mr. Fowles took instructions) Mr. Garner, do sit down. I am not trying to force either of you. I can understand that the last thing you want to do, as a public authority, in effect, a charity limited by guarantee?

MR. FOWLES: Yes.

JUDGE PUGSLEY: Is to meet another 99 claims, especially if I may say, and I am not being silly, although you may think I am, but I am not intending to be silly, to say that the problems that the Canal & River Trust have may be markedly different in industrial cities like Birmingham and Nottingham and Manchester than they would be in rural areas, on the one hand, but dramatically different in the metropolitan areas, where mooring could be abused tremendously in areas of high tourist visibility and where there would be a far greater incentive. Having regard to the price of property in parts of Chiswick and adjacent areas up the Thames, where you are talking really big money could lead for rents and purchase, it could make houseboats and their leases seem very attractive. It would be monstrously unfair if one opened the door and locked the lock, as it were, to people having an entitlement that would be environmentally detrimental and unfair on other people who very much want moorings but could not afford it. So I fully understand. I mean, I leave it to you. I could envisage a plan.

MR. FOWLES: Your Honour, we have tried to reach a deal, as it were, and we have been trying to reach some accommodation with Mr. Wingfield for a long period of time. You have seen in the trial bundle there are letters going back and forth where we have said, you know, “We have a problem with what you are doing.”

JUDGE PUGSLEY: Well, I have not heard the defendant on the topic, I want to make that quite clear, but at the moment I can see nothing high handed or arrogant about the approach of the claimant on the correspondence. You know, I am just wondering if there is an accommodation that could be reached. As I say, quite simply, I am worried how you define – it is the elephant test, is


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it not? We can all recognise an elephant, but actually defining or describing one is rather more difficult.

I do not want to give false hope to you, Miss Easty, but I would take some persuading that, on what I have heard so far, you could be said to come within the continuous cruising, but I have not heard you. I have a lot of sympathy with your client emotionally. I also have to have equal sympathy with the claimants, who do not want to see a distinction between the two muddled and fudged so you cannot define it.

MR. FOWLES: Well, your Honour, I do not mean to say that the court needs to give definitive guidance in the sense of saying “This is how you decide in each particular case what continuous cruising guidance is” because the CRT’s approach and, in my submission, right approach, is to say “Well it is a fact-sensitive question”, but there are a lot of cases in interpreting legislation where the court has been prepared to say “This is fact-sensitive, but these are the sort of questions that need to be asked” and that is all that I mean when I say that that is what we would be looking for from the court.

JUDGE PUGSLEY: Yes, I think what does distinguish this – how old is your client? (Miss Easty took instructions)

MISS EASTY: 52.

JUDGE PUGSLEY: And his disabilities, ischemic heart disease?

MISS EASTY: Yes.

MR. FOWLES: There are doctor’s letters in the bundle.

MISS EASTY: There are two doctors’ letters. It is described in one as “severe”. The defendant describes getting dizzy and so forth.

JUDGE PUGSLEY: And he is in receipt of? (Miss Easty took instructions)

MISS EASTY: Income support allowance and employment support allowance.

JUDGE PUGSLEY: Is there any support, any benefit that is payable as a result of disability like the disability living allowance?

MISS EASTY: Yes, you can only get that if you cannot work.

JUDGE PUGSLEY: And does he have that?


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MISS EASTY: No, not disability living allowance, the one that I just said you can only get if you cannot work.

JUDGE PUGSLEY: Yes, but you cannot work for a number of reasons, one of which is you cannot get a job.

MISS EASTY: Yes.

JUDGE PUGSLEY: I am sorry, I am not being facetious.

MISS EASTY: No, again, I hope I am not.

JUDGE PUGSLEY: Is he in receipt of disability living allowance?

MISS EASTY: It is because he is unable to work as compared to an unemployment reason.

JUDGE PUGSLEY: Well, is it disability living allowance?

MISS EASTY: No.

JUDGE PUGSLEY: Your client thinks it is. (Miss Easty took instructions) Does any benefit----

MISS EASTY: He is unable to work. Again, my understanding is that it is because you have to have a medical test, for example, to get the benefit that my client is on. It is not because there is an employment shortage, for example, benefit. It is about his health.

JUDGE PUGSLEY: Whatever it is called, and I think it is about to change again, so do not worry about not getting whatever it is now, which I think is disability living allowance----

MISS EASTY: Yes, it is described----

JUDGE PUGSLEY: --well whatever it is called, is it a benefit that is only given to those who are medically unfit to work?

MISS EASTY: Yes, and it is seeking as “income-related employment and support allowance”, yes. That is para.2.


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JUDGE PUGSLEY: Look, I am not going to put any pressure. If you want ten minutes, but I want to say I think what distinguishes this is the fact the defendant does have a need for some form of base in view of his medical condition.

MR. FOWLES: Your Honour, I do not dispute the defendant’s medical condition, but I am not sure that it is clearly established in evidence that he needs to avoid continuously cruising.

JUDGE PUGSLEY: Well, I am not saying it is, but I think, if I had severe ischemic condition, I would want to have a GP who was relatively close to me and I would not want to be permanently on the move, in the sense of going right round the country, but all I am saying is you are perfectly entitled to look at the law and say “I do not want to talk to you”, perfectly entitled. I would just like, before you get further entrenched, to consider whether there is some sort of halfway house. I have indicated only on a provisional view, only a provisional view----

MISS EASTY: I do understand, your Honour. I do understand that.

JUDGE PUGSLEY: --that I would need some persuading to say that your client had complied with the policy hitherto, but I am open minded. I have not heard enough about this to make up my mind.

MISS EASTY: No, your Honour, I accept that.

MR. FOWLES: May I ask in that case for a five minute adjournment until, say, 20 past for me to take further instructions?

JUDGE PUGSLEY: Yes. I do not expect you to resolve it today, tonight. I do expect you in five minutes to know whether it is possible, not probable, possible. All I am saying is, gentlemen, I can see myself, and I do not want to get here, establishing a most bizarre precedent which might have more general application, which I would regret, if I cannot hone it down to a very fact-specific question; in other words, I do not want this cited as the proposition that everyone under God’s earth can clamber up the over-populated area of The Thames.

MISS EASTY: Exactly.

JUDGE PUGSLEY: Running from Kew Bridge upwards, you know, and I can see this being cited quite inappropriately and, if they took the old boat up to Richmond each Saturday or perhaps every other Sunday, that somehow that


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would entitle them to moor permanently on a temporary mooring spot. I mean, that would be wholly inappropriate, but, equally, I think one has got to temper it to where one is and also, more importantly, in the context of this case, to the fact that we are not dealing with a young person. Thirdly, the argument of demography that narrow boats are older, well that is probably just how people look when you are young. I will come back in five minutes.

MR. FOWLES: Five minutes, your Honour.

JUDGE PUGSLEY: Could that be Greenwich Meantime five minutes, not counsel’s five minutes, which will mean that the cleaners will have come and gone by the time we come back?

MR. FOWLES: Thank you, your Honour.

Short adjournmentRecording started late at 16.21.15

MR. FOWLES: … in respect of settlement. However, we will check on certain information overnight and it may be that there will be more room for manoeuvre once we have checked on that information.

JUDGE PUGSLEY: This is very difficult. If I thought I could make up my mind to lay down a schedule of what it constituted, I would let you into the secret. I am genuinely open-minded about it and I am wondering what you are asking me to do. I mean, one way of dealing with it would be to say that he was deemed – the sort of language I would use – that it was deemed, that, you know, you must limit the time he spends at any one mooring with a specified distance of a specified place.

MISS EASTY: If it may assist the court, your Honour, we are quite happy, in terms of the court powers, because at the moment negotiations are moved and my learned friend is seeking further information, but we are quite happy to submit to a schedule, which we can draw up in the absence of assistance from the claimants, of a schedule of movement to whatever the court requires and submit to that. We are also quite happy not to call any evidence and provide such a schedule for this court to endorse with any kind of, in the preamble which would again assist the court.

MR. FOWLES: Your Honour, with respect, this all does rather beg the question, which is whether movement is what is the test for “bona fide navigation” and, as I have tried to make clear, Davies says that purpose is the question. So producing a schedule of movements would not really----


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JUDGE PUGSLEY: If you do not want to settle this case and you are considering you are right, then you are perfectly entitled, however much it costs, to litigate. Whether you are wise to do so is another matter.

MR. FOWLES: Yes, your Honour. Well, your Honour, it is----

JUDGE PUGSLEY: We are dealing with human people, human beings and their happiness and we are not dealing with a matter that can be susceptible to the same legal definitions as you might give to whether a transfer of a business related to appoint of time or a period of time in the Transfer of Undertaking Regulations. It is not that sort of law, but I do understand your legitimate concerns that you should not lay down a precedent. I think, whatever happens, one has to be very careful to make it absolutely clear that this is not laying down a precedent, it is deciding a case on these particular facts, bearing in mind the age and relatively poor health of the defendant.

MR. FOWLES: Your Honour, I do not mean to split hairs, but there is a point here that, if one decided on a schedule of movements as a form of settlement and said “Well, this is not setting a precedent because it is in particular circumstances,” one would arguably still set a precedent in the sense that one could say “This is a matter of movement and not of purpose and, in this case, this is all that needed to happen that, basically the CRT and Mr. Wingfield needed to agree some movements and that was all okay.” Now, if the test is one of purpose, it is never going to be okay in a case where someone does not have a genuine purpose of navigation just to agree some schedules of movements with that person, however----

JUDGE PUGSLEY: If you do not want to engage in the exercise, you are perfectly free to take the view you are.

MR. FOWLES: Well, I will----

JUDGE PUGSLEY: I question how great your experience is of human motivation and how something like this can backfire.

MISS EASTY: Your Honour, would it assist----

JUDGE PUGSLEY: I do not think anything is going to assist, but go on, have a bash.

MISS EASTY: Again, in terms of the court’s jurisdiction, as I hopefully made clear, we are entirely happy to provide a schedule either of movement and/or


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purpose, saying “We are going here to do shopping” or whatever, in a proper format but to submit to the court through its jurisdiction.

JUDGE PUGSLEY: But the form would absolutely have to be that this cannot be used to gain a fulltime mooring on transient mooring sites by purely artificial arrangements. However, one should accept that people with advancing years may limit the scope of their continuous movement and circumstances may dictate that they have access to regular medical facilities.

MISS EASTY: And, in terms of that, if the court was minded to have or would find the schedule acceptable, we would – however, again, I would make attempts to draft that tonight, fulfilling the concerns I have heard from Mr. Garner – and present that to the court and then succumb to that order, if that would assist the court and then call no evidence.

JUDGE PUGSLEY: That must be a matter I think I have to weigh before I can give an answer, but, if you are saying, which you seem to be, I cannot take responsibility for anything as counsel appearing on behalf of the claimant and they are leaving it to you, I am bound to say – that is one interpretation of what you said – I am bound to say that I think that is somewhat misconceived. All of us have a difficult problem here to balance the human problems that the defendant has with your needs to ensure that some recognition that the defendant has particular difficulties does not lead to – just take an example. Say, for example, one has a misfortune to have a child, an adult child who has multiple sclerosis, who may live in a listed building. You may beg the local authority to allow you, in the interests of humanity, to extend your house on the ground floor so that you can accommodate your (statistically it is more likely to be) daughter than your son or either, but whatever, on the ground floor with lavatory, shower and the like. Oh nasty, hard hearted local authority who will not let you do it. Well, actually yes and no, because, once you have built it, you have built it and it is unlikely you can impose any condition about taking it down on the death of that member of the family. You know, it is permanent and it is there.

Now, we do not have anything quite like that, but I fully appreciate it is pretty near it and then you will have arguments “Well, I do not have a heart condition, but I may get one because I have raised blood pressure and high cholesterol levels and I am a type 2 diabetic, on you go. I do not think any order on that basis is going to very much help. I think it has to lay down that the phrase “continuous movement” or travel or whatever it is, cruising, has to be seen in the context of a particular individual and, in this case, the individual has certain problems and that it is reasonable to construe the context in the


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light of his particular needs, which would not apply if anyone was free from those particular inhibiting health difficulties.

MR. FOWLES: Your Honour, there is obviously a distinction between the position under the statute, considered apart from Article 8, and then, once one takes into account Article 8, one then has questions of proportionate interference and so on and, in that respect, the particular circumstances of an individual would be relevant, but what I am trying to do is I am trying to establish that, in this case, it would be----

JUDGE PUGSLEY: What you are really trying to establish is his Honour Judge O’Malley’s decision on the particular facts of that case binds me and binds everybody else.

MR. FOWLES: I am not, your Honour. I said that it does not bind you. It is simply a matter of duty to----

JUDGE PUGSLEY: Well, that is how it is coming across. I am dealing with the facts of this case, which are rather different.

MR. FOWLES: Well, your Honour, I am arguing, I would wish to argue this particular case and that is what I am here to do.

JUDGE PUGSLEY: Well, it is clear that you wish to argue this particular case, but, if you think you are going to establish a general principle favourable to the Inland Waterways Board, as they used to be called, you may be right or you may be wrong, you take that risk. But, if you fail, it becomes a wider application.

MR. FOWLES: Well, if we believed that a precedent was set that was unfavourable, we would seek to appeal it, obviously, so that is obviously a risk that we recognise.

JUDGE PUGSLEY: And I think, if I were you, I would have a word with the person who sits behind you in the light blue tie. I think this is a case, if I may say so, where some overnight consideration would be very wise. I do not want you to think, either of you, that I have a fixed, firm resolve. At the moment, I have that terrifying difficulty that affects some judge sometimes that I think there is justice on both sides. This is a strange case. I am sorry but being addressed by you as though I was a major going nowhere and you are a young subaltern with a field Marshal’s baton in your hand is not the most, is not in fact the wisest choice. I do not think this is a case that is going to the House of


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Lords or even the Supreme Court. I think this is a case that ultimately is in difficulties because it founders in the middle.

MR. FOWLES: Your Honour, I am just trying to make submissions and explain our position.

JUDGE PUGSLEY: Yes. I am asking you to give thought to the ultimate result, not just make submissions.

MR. FOWLES: Yes, well of course we are doing that, your Honour, thank you.

JUDGE PUGSLEY: Yes, okay. See you tomorrow. Can I suggest – I do not know where you all come from.

WITNESS: Lincoln.

MISS EASTY: London for me.

MR. FOWLES: London.

MISS WRIGHT: Milton Keynes.

JUDGE PUGSLEY: London back garden?

FEMALE SPEAKER: (inaudible)

JUDGE PUGSLEY: You, Sir?

MALE SPEAKER: Northamptonshire, your Honour.

MALE SPEAKER: Birmingham, your Honour.

JUDGE PUGSLEY: Beautiful Brom, city of opportunity, the Venice of the Midlands. And you, Sir?

MR. WINGFIELD: Nottingham, Sir.

JUDGE PUGSLEY: Nottingham?

MR. WINGFIELD: Nottingham, yes.

JUDGE PUGSLEY: Would it be possible if we said that you could all meet at ten and I would not sit until 10.30?


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MR. FOWLES: Yes, your Honour, I would be happy to do that.

JUDGE PUGSLEY: Are you staying overnight?

MR. FOWLES: I am staying overnight.

MISS EASTY: There would be no problem with that.

JUDGE PUGSLEY: You are coming from London?

MISS EASTY: I did this morning and I was in here in good time at nine, but I can be here at the convenience of the CRT.

JUDGE PUGSLEY: Well, can I leave it to you? I will sit at 10.30, but I think it would help if you were here before because I would like, if it fights, as it is perfectly entitled to, my private guess, as it will, I would like to give a decision tomorrow rather than go into reserved decision time.

MISS EASTY: Your Honour, thank you. As I said, I will endeavour to write a schedule in any event.

JUDGE PUGSLEY: Yes. Who is staying overnight?

MISS EASTY: I am, your Honour.

MR. FOWLES: Yes, I am.

JUDGE PUGSLEY: Oh well, if you find any good places in Chesterfield, let me know. I have been sitting here for over 20 years. Are you staying in Chesterfield?

MISS EASTY: Yes.

MR. FOWLES: Yes, your Honour. I am staying a little outside the centre.

JUDGE PUGSLEY: All of you from London?

MR. FOWLES: I am actually living in Preston at the moment, but my chambers is in London.

MISS EASTY: That is tough.


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JUDGE PUGSLEY: It will be a social experience for you to stay in Chesterfield.

MISS EASTY: I have spent quite a long time here in the past as well. I like it.

JUDGE PUGSLEY: I look forward to hearing your incredibly interesting views of life in Chesterfield.

Recording terminatedAdjourned until 10.30 tomorrow morning

__________


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CaRT v Wingfield Day 1)

Documents

Transcript of CaRT v Wingfield Day 1)