IN THE HIGH COURT OF JUSTICE

No. HC-2015-001906

CHANCERY DIVISION
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Rolls Building

Wednesday, 23rd March 2016

Before:

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CHIEF MASTER MARSH

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10B

ETWEEN:

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LEIGH RAVENSCROFT

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- and -

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CANAL and RIVERS TRUST

Claimant

Defendant

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C. STONER QC and Ms. BARRY appeared on behalf of the Applicant.

33MR.
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L. RAVENSCROFT appeared as a Litigant in Person (assisted by his McKenzie friend, Mr. N.

Moore).
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PR OC E E D I N G S

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INDEX

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Page No.

5
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7SUBMISSIONS
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MR. STONER

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MR. MOORE (as McKenzie friend)

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Discussion re way forward

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1CHIEF

MASTER MARSH: Mr. Stoner, this is your application.

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3MR.
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STONER: I will start off with this, Master, it is my application to strike out
the claim or parts thereof. Master, hopefully you have received a hearing
bundle.

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7CHIEF

MASTER MARSH: I have.

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9MR.
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STONER: Hopefully you will also have received a skeleton argument from
me with some authorities.

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12CHIEF

MASTER MARSH: I did. Thank you.

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14MR.
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STONER: I should hand that up. Master, hopefully you will also have
received a skeleton argument from Mr. Ravenscroft.

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17CHIEF

MASTER MARSH: Your hopes have been fulfilled.

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19MR.
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STONER: Excellent. Thank you, Master. Master, the strikeout application, if

I can go straight to it, is relatively easily stated and relatively shortly stated,
because it is not, as sometimes such applications are, one which says well
there is no reasonable cause of action identified and one has to look at the
detail of the statement of case for that purpose of identifying whether that is
a good argument or not.

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The point that is taken by the Canal and River Trust in relation to this is the
nature of the documentation that comprises the claim and the fact that if one
includes these two bundles which actually go with the witness statement and
the exhibits to it, the current pleading is some 473 pages of appendices
and 125 pages of pleading, including the 118 pages of the statement of case.

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Before going to the detail, the nub of my clients application is that

is unacceptable in terms of case management moving forward, not least,
although it may be said that on this side we have looked at and digested
that 118 pages and think that we understand it and indeed we have filed
a defence, and Mr. Ravenscroft has said that that correctly identifies the three
principal issues in the claim.

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From my clients point of view the reality is that of course it does greatly
increase costs, it is disproportionate if on every occasion they come to this
case or reference is made to this case there is a hearing or whatever, whatever
step, they have to consider that full documentation rather than there being
a concise statement of the claim, as there should be. I do not say that lightly

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because the difficulty - and in fact previous experience has indicated this - is
that when there is such a long pleading, it is no good, for example, for me in
the trial if a point comes up on para.259 of the pleading to say well I havent
considered that recently because that was considered not to be relevant.

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Also, from the courts perspective, any judge, master, whoever it may be,
whether it is yourself, Master, or whether it is any judge at any hearing
moving forward, should be able to pick up a document, especially if there is
a busy list, and be able to identify clearly what the claim is and that is not
possible at this moment in time.

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The provisions of the CPR, of course, are very clear in relation to the
requirements for a pleading and Ive set them out in my skeleton. Part 16.4
provides that the particulars of claim must include a concise statement of the
facts on which the claimant relies, and that is echoed in the Chancery Guide
which ultimately finds its way to appendix 2, which is guidelines on
pleadings, which says that the document must be as brief and concise as
possible.

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In the Practice Direction to part 16, some guidance is given on the expected
length of a statement in that it says that:

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If exceptionally a statement of case exceeds 25 pages an appropriate

short summary must also be filed and served.

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At that juncture it is perhaps appropriate to say Mr. Ravenscroft in his

statement in response to my instructing solicitors has said well there is a short
statement, there is a summary at the end and there are also the particulars of
claim, but of course that is not a justification for having 115-odd pages in
between. What we say in relation to CPR 16.4 as well is that when it says
that the particulars of claim must include that has to be considered in the
context of the various points that are mentioned in 16.4.

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It is p.545 of the current White Book, so:

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Particulars of claim must include

(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest [et cetera];
(c) if the claimant is seeking aggravated damages;
(d) if the claimant is seeking provisional damages; and
(e) such other matters as may be set out in a practice direction.

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When Mr. Ravenscroft says Well Ive complied with 16.4 because it says

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that there must include a concise statement of the facts, in my submission, in

terms of the statement of facts on which the claimant relies, that has to be
a concise statement and that is the beginning and the end of it in terms
of 16.4.

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The other matters actually do not apply in this particular case.

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MASTER MARSH: Do you have the White Book and the analysis to it?
Is that on one of the tabs?

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STONER: It is not in one of the tabs. In fact, what I have done after we were
here in November and I forwarded at Mr. Moores request certain passages
from the White Book to which I was going to refer, and then last week in my
skeleton where I referred to anything in the White Book that I had not
referred to or had not sent previously, I caused copies of that to be forwarded
to Mr. Ravenscroft through Mr. Moore so that they had them.

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18MR.

MOORE: This is in civil procedure----

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20MR.

STONER: It should be under 16.4, the one sent last week.

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MASTER MARSH: It has been exhibited in the witness statements, so

I must have looked at it.

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25MR.

STONER: Yes. It was the one I sent through after the November hearing.

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27MR.
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MOORE: I do not have that one here. I thought that everything would be in
the----

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30CHIEF

MASTER MARSH: It is fairly short:

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The particulars of claim must include a concise statement of the facts

on which the claimant relies.

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It is just as simple as that.

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STONER: In many respects I am hopefully not going to over-labour it, but

that is my application because I say this document plainly is not that and
something has to be done because it is unsatisfactory moving forward. That
point - and I will not go into it in the White Book, but it is set out in the
skeleton - and that was sent to Mr. Ravenscroft last week is echoed in the
Chancery Guide, which uses the words the document must be as brief and
concise as possible.

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As I say, in terms of any guidance----

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MASTER MARSH: The Commercial Court, where you would expect

claims to be particularly complex, sets a maximum of 25 pages.

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STONER: Twenty-five pages and you have to make an application to explain

why you need more than 25 pages if you----

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10CHIEF
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MASTER MARSH: Yes, and a claim was recently struck out on the sole
ground that it exceeded 25 pages.

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13MR.

STONER: Yes.

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MASTER MARSH: That was a case management decision, if I recall

correctly.

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18MR.

STONER: Yes.

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MASTER MARSH: That is not to say that decision is in any way binding
on me.

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23MR.

STONER: No. All of those----

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25CHIEF

MASTER MARSH: It might be illustrative.

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STONER: Yes. In fact, last week I was hauled over the coals for having
a 25-and-a-half-page skeleton argument and I was asked for an explanation as
to why it was over 25 pages. Luckily I hope I was able to provide such an
explanation, the point went no further, but certainly in the Practice Direction
to Part 16 there is some guidance and again I know that Mr. Ravenscroft is
aware of this because it is referred to in the witness statement, p.555,
para.1.4, of the White Book. It is:

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If exceptionally a statement of case exceeds 25 pages (excluding

schedules) an appropriate short summary must be filed and served.

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That is the window into what the CPR generally expects because there is an
additional requirement if it is over 25 pages in length.

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On the point of requirement I have referred simply because it is referred to in

the White Book to the case of Hague Plant Limited v Hague & others which
is in my tab of authorities behind tab number 4 and it is really the concurring

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judgment of Lord Justice Christopher Clarke who agreed with Lord Justice
Briggs. On the penultimate page of that clip, para.76 - and this was a case
where there was actually an application to amend the statement of case and
from recollection the application to amend took it up to some 60-odd pages,
so some way short of where we are it says:

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The resultant pleading for which permission was sought is

unworkable particulars of claim must include a concise statement of
the facts on which the claimant relies. They need not and should not
contain the evidence by which they are to be proved or the opposing
partys pleadings or admissions. Whilst it may be appropriate in some
circumstances to rely as proof of dishonesty on the fact that the
defendants account of his position requires explanation and he has
given several different accounts all unacceptable this can and should be
done in the concise way referring to documents but not necessarily
quoting in extenso which makes clear what is the issue. The pleading
cannot be used as the first draft of an opening or a delineation of points
of cross-examination.

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Then Lord Justice Christopher Clarke continues:

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In the present case the form and content of the proposed amendment
is wholly disproportionate [and this is the passage I rely on said to
a large degree] it would not assist the judge in understanding the gist of
the case the inevitable request for further and better information in
response thereto no doubt after yet another interlocutory (inaudible)
will exacerbate the position [et cetera].

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It is the fact that the pleadings are not simply for the parties, they are to assist
the court and that is emphasised at para.78 where Lord Justice Christopher
Clarke says:

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Pleadings are intended to help the court and the parties. In recent
years practitioners have, on occasion, lost sight of that aim.
Documents are drafted of interminable length and diffuseness and
conspicuous lack of precision, which are often destined never to be
referred to at the trial, absent some dispute as to whether a claim or
a defence is open to a party, being overtaken by the opening
submissions. It is time, in this field, to get back to basics.

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As I have identified in the skeleton argument, of course we accept and my

clients are sensitive to the fact that Mr. Ravenscroft is in person and therefore
we do accept that a certain degree of latitude has to be extended to

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Mr. Ravenscroft in that position. However, there is a degree of latitude and to

allow this particular document to stand would go well beyond that degree of
latitude and there are a couple of references I have made. One again is to the
Chancery Guide which simply identifies that the provisions of that guide
apply to litigants in person as well as to represented parties. The second is to
refer to the comments of Lord Justice Morris Kay in the case of Tinkler v
Elliott which again is in my tab of authorities behind tab number 5. Again it
is the penultimate page.

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This was a case in fact where there was an application to set aside a judgment
where promptness is one of the key requirements of course in making that
application and the judgment was made on 15 March 2010 and the
application was not, in fact, made until December of 2011, so there was
a considerable delay. Just on the point of the latitude, Lord Justice Maurice
Kay, then Vice President of the Court of Appeal, says at para.32:

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I accept that there may be facts and circumstances in relation to

a litigant in person which may go to the assessment of promptness but
in my judgment they will only operate close to the margins. An
opponent of a litigant in person is entitled to assume finality without
expecting excessive indulgence to be extended to the litigant in person.
It seems to me that on any view the fact that a litigant in person did not
really understand or did not appreciate the procedural courses open to
him for months does not entitle him to extra indulgence. Even if one
factors in Mr. Elliotts health problems, the evidence shows that
between April and July 2010 he was active in this litigation.

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The fact that if properly advised he would or might have made

a different application then cannot avail him now. That would be to
take sensitivity to the difficulties faced by a litigant in person too far.
In my judgment, this is where Mrs. Justice Sharp went wrong. She
regarded this to be a special case on its facts, but it could only be
considered such if one goes too far in making allowances for a litigant
in person. For these reasons I do not consider it is open for her to find
the promptness required satisfied.

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That of course is very different circumstance to say it is an application for

promptness and it was a very delayed application, but it does make the point
of course indulgence must be thought about and granted to litigants in person,
but that is a limited indulgence and in circumstances of this case where the
requirement is quite clear and repeated that there should be a concise
statement of facts, 118-page statement of case and 125 pages of pleading is
beyond that scope of indulgence.

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MASTER MARSH: Just interrupting you briefly, we do now have

particulars of claim with a statement of truth attached. If one was to take
these in isolation which is not, I know, the position and one is to disregard the
cross reference to the statement case, is there anything that would, leaving
aside style, is there anything missing from the particulars of case?

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STONER: I think there is because I was just about to come onto Soo Kim v
Youg.

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MASTER MARSH: Take your own course, that is fine.

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STONER: I will take a slight different course to answer your question,

Master, but of course what I recognise and what the White Book says is that
if there is a defect in pleading, the court should not necessarily go straight to
striking out, the court should give an opportunity to remedy that defect and
that may well be the sort of attitude that is indulged to a litigant in person.

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What I say about the particulars of claim is that of course if one looked just at
the particulars of claim that is sacrificing the 118-page document, it will not
surprise you, Master, to know that the main concern on this side is
that 118-page document. Putting aside the question of style, in fact, this
morning I was going through the particulars of claim again trying to imagine,
which is very difficult, coming to this claim afresh.

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MASTER MARSH: Easier for me on reading in after quite a number of

months.

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STONER: Yes. Master, I have to accept you do have the advantage on that.

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What I say is that they are not quite there, the particulars of claim, and what
I mean by that is, if I go to those particulars of claim behind tab 2 in the
bundle, p.3, it starts off, one considers and it is right to say that the three
issues in the claim are effectively those identified in the defence as being the
meaning of main navigable channel, secondly, the proportionality of the
steps taken by the Trust, and the third is the legality of the reliance upon s.8
particularly in the circumstances in which the identity of the owner of the
vessel was known to be Mr. Ravenscroft.

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If one looks at the particulars of claim, para.1 is referred to as the vessel

formerly known as Grandma Mollie now known as the Three Wise Monkeys
was at all times moored to private property over a privately owned river bed.

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Paragraph 2, it is then referred to the fact that Mr. Ravenscroft obtained the
boat safety certificate and then a pleasure boat certificate for the boat
previously and sold it in 2011. Then para.3, he says:

Having completed essential work I obtained a fresh boat safety

certificate on 23 July. Following that I had welding work done.
Repainted it, had its sign written with a new name. Made canopies and
awnings, et cetera, but once completed and before I could re-license it
for the market,

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now the reason I read through that paragraph is going to the re-licensing it is
introduced in terms of I had a boat safety certificate and a pleasure boat
certificate, Ive done work and I have re-licensed. We then go into what
actually happened in terms of moving it and then this is obviously a very
short document. Page 5, para.11, after its detail over what happened in terms
of moving and the fact that there was objection to paying:

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The defendant claims powers to demand toll for keeping and using of
pleasure boats anywhere within the River Trent [which is denied] the
defendant also claims powers to seize and hold boats perceived to be in
violation of that alleged requirement to hold their pleasure boat
certificate or alternatively known as their pleasure boat licence despite
the identity of the owner being known.

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Then para.13:

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The defendant claims that my narrow boat Grandma Mollie/Three

Wise Monkeys was in the main navigable channel.

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MASTER MARSH: You have everything you need there, have you not?
It may not be spelled out with the precision that the three issues are spelled
out in the defence----

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STONER: No.

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MASTER MARSH: -- but in essence the facts which are relied upon are all
there, are they not, apart from the amount paid, but you know what that is and
that is not really----

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STONER: I am not going to apply to strike on the basis it does not----

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MASTER MARSH: There may be an issue about the different one, which
is the scope of the relief sought, but that is a different point it seems to me.

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STONER: Yes. All I was going to say - and I am not pressing this point hard
on these particulars of claim because I have already stated in my skeleton
argument - that one way that the court may deal with this application is to say
well actually lets use the particulars of claim as a base and it may be that
they needed to be amended slightly, but that can be a way of dealing with it.
From those paragraphs I have got, would the judge, I ask rhetorically, get the
gist without the other documentation of understanding that Mr. Ravenscrofts
case is that my clients are not entitled to seek any form of certificate or
licence because the vessel is outside of the main and navigable channel of the
river, which means it may be that I am coming from that too idealistically.

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In terms of case management, what I do accept is that if this document is used

as the base and is tidied up with perhaps a little more detail put in it then it
may well be that that is the answer to this particular problem moving forward
on the basis that the statement of case itself is struck out because the
statement of case itself, the 118 pages, is in reality a written closing
submission because it includes large references to evidence and citations
from text books, citations from authorities, matters of that sort, as well as the
fullest possible detail of every single point.

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MASTER MARSH: You almost get there in para.11, do you not, the
powers to demand a toll anywhere in the River Trent? That is an oblique way
of referring to the main navigable channel point, I think, is it not?

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STONER: It could be, but equally, particularly bearing in mind we know what
is said elsewhere in the various points that are taken, it could well be said that
the----

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MASTER MARSH: You get it better in 13, do you not?

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STONER: You do. What you have to do though is with some knowledge of
the case you have to piece it together and I think that is what I am saying at
the moment and the ideal should be that whoever comes to this should be able
to pick it up and say okay, I understand and therefore it is not for me to
plead obviously the claimants case, but if it is said the defendant claims
powers to demand toll for keeping and using a pleasure boat anywhere within
the River Trent, which is denied, the defendants powers are limited to the
main navigable channel as defined in the British Waterways Act 1971 and this
area of land was outside and therefore s.8 has no applicability, the gist of the
claim becomes apparent. We have never said that the particulars of claim in
isolation are way off the mark, they are not, but in my submission they
require some work.

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The difficulty we have in terms of the application is of course all three

documents come with the claim form, particulars and statement of case come
together because of the reference, the cross-reference.

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MASTER MARSH: Yes.

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STONER: The particulars of claim are much, much closer to the reality of
what is required certainly.

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MASTER MARSH: Right. Really your application is just as simple as

that, is it not?

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STONER: It is, absolutely.

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MASTER MARSH: It is to do with proportionality and focussing on really

what the issues are and the ability of both the defendant - and you may not be
surprised if I weigh this in the balance - the court to readily get to grips with
what this case is, in fact, about.

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STONER: Yes, we actually, without being sycophantic about it, put the court
first as well because we have got to grips, but where we are not so
sycophantic is that, with no disrespect to Mr. Moore, you have seen from
references in his case, looking through the documentation, that there were
very long skeletons, for example, and I think it is referred to and the benefit
of hindsight and having looked through that is that not having a concise
statement did cause problems. I think, for example, after having two long
afternoons in front of Master Bragg where we were trying to identify lists of
issues, because the pleadings were so long, they were considered unsuitable
for that task effectively. It is very much in my interests, in my clients
interests, at this stage of the proceedings to get the pleadings right and then
we can move on.

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MASTER MARSH: What about the relief sought because the relief sought
is precisely the same whether you look at the particulars of claim or the
statement of case.

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STONER: Yes.

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MASTER MARSH: On the face of it, this is, in financial terms, a claim
with a value of about 8,000.

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STONER: Absolutely.

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MASTER MARSH: I appreciate there are a lot of side issues, as it were,

but fundamentally it said your clients have acted, using a neutral term,
unlawfully.

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STONER: Yes.

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MASTER MARSH: The financial relief is for a refund of some 8,000.

I do have some initial question marks as to whether the scope of declaratory
relief is proportionate to really what is at stake here and this is a private law
claim.

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STONER: It is.

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MASTER MARSH: In one sense, if one looks at a claim, slightly away

from this claim for a moment, and a normal claim where there is a sum of
money sought as recompense and the court hears that case and determines in
favour of the claimant and awards that sum having made the finding of fact, it
would not normally be granting declaratory relief, for example, that the
defendant was in breach of contract, the proper construction of the relevant
clause was this, that or the other. You hear the evidence, you make
a determination on the law and you give the most immediate relief which is
applicable.

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25MR.

STONER: Absolutely.

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27CHIEF
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MASTER MARSH: I do have some concerns about the litigation being

used, I was going to say a vehicle, but I think a vessel is a better metaphor,
but being used as a vessel for wide-ranging relief which may or may not be
appropriate.

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32MR.
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STONER: I think dealing with the question of relief sought which, as we

identified earlier, is a slightly different point from the rest of the particulars of
claim, yes, the relief, there have been 14 declarations sought and also an
order of refunds of the monies which I think, from recollection, is 8,176, or
if it is not exactly that sum, it is around about that sum.

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38CHIEF

MASTER MARSH: It is around about 8,000.

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40MR.
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STONER: There was clearly an issue of proportionality. From my clients

point of view, the main navigable channel point is the one that is of the
most concern in terms of it is a point which is being raised in a number of
claims and we have not sought transfer to the county court, for example,

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because the difficulty is if we go to the county court, again previous

experience says that if my clients are successful on the issue of main
navigable channel and what that means, then all that happens is that
everybody in the other claim says well thats not binding on us because its
a county court judgment, and we say there is (inaudible) between county
court judges, et cetera, et cetera, there is that point. Certainly what one would
expect really, I can see that there may well be scope for a declaration in
relation to the main navigable channel because that is a particular point, but
just one declaration should be relevant in relation to what main navigable
channel means.

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The points under s.8 which are para.16 of the particulars of the claim and also
the various points that are made under para.17, in my submission it is difficult
to see how it would be workable in a trial to aim towards those
14 declarations. Ultimately, there is the point on main navigable channel.
If that goes against my clients, there is then the effect because that,
Mr. Ravenscroft says, falls out of my clients side and my clients ability to
serve a s.8 notice. One can see that there is a very short cut-off in that
navigable channel, therefore, if that is right and my clients were not entitled
to serve s.8 notice, they could not seek the monies in relation to it.

21
22CHIEF
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MASTER MARSH: It follows, does it not, that if Mr. Ravenscrofts

construction of main navigable channel is right, then he wins?

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25MR.
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STONER: Effectively. I am just reserving my position because I have not

thought of all the detail, but effectively, yes.

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28CHIEF

MASTER MARSH: Effectively.

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30MR.

STONER: Effectively, yes.

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32CHIEF
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MASTER MARSH: Because it is either his construction or with your

clients----

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35MR.

STONER: Yes.

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37CHIEF
38

MASTER MARSH: -- and essentially the lawfulness or otherwise of your

clients action, so one does not need to look at proportionality.

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40MR.

STONER: No.

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42CHIEF
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MASTER MARSH: Because if you lose on that issue, I suppose there is

a secondary question then if the construction is your construction then is there

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a need to look at proportionality as a separate issue?

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STONER: I can see the argument that there would be an issue there.
Obviously we take very different approaches because my client says well one
looks at proportionality in the context of -- my clients did not simply go and
seize this vessel, there was a whole sequence of correspondence all one way
and notices before the vessel was taken.

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9CHIEF

MASTER MARSH: That is an issue of fact, is it not?

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11MR.
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STONER: That is the issue of fact we rely upon. There are other issues that
Mr. Ravenscroft relies upon. Effectively, as I understand what he says, is that
what the Canal and River Trust should not do is just serve a s.8 notice, they
should take other court proceedings first seeking a monetary claim,
effectively trying to require someone to get a licence. The difficulty with that
is, of course, the monetary claim can only ever be for the licence that was not
obtained as opposed to in effect a mandatory injunction requiring someone to
obtain a licence. There are those issues.

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MASTER MARSH: Yes. It is a bit like saying in the old days when
landlords went out levying distress, you must not levy distress, you must sue
instead. It is analogous to that, is it not?

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24MR.
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STONER: It is. You see that Mr. Ravenscroft says you have distrained
unlawfully, we say we have not distrained and therefore a number of points
are not engaged there are those points.

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One always hesitates with preliminary issues, but one can see that there may
be a case here for saying that the main navigable channel is a particular
point which can be dealt with. After that the case could, if necessary, be
transferred down for any further----

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33CHIEF
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MASTER MARSH: Yes. Your case in summary is that, your headline case,
the whole claim should go, but if there is a salvageable - again no pun
intended - but an element of the claim which is going to survive and go to
trial, it should stay here in the High Court and not be transferred under s.40 of
the County Courts Act----

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39MR.

STONER: Yes.

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MASTER MARSH: -- on the basis that there are other similar claims and
ultimately it will be to the public benefit to have a determination of this issue
of construction.

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STONER: Absolutely.

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MASTER MARSH: And of benefit to your client.

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STONER: Absolutely, yes.

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MASTER MARSH: Obviously you are not putting your marker on the
proceedings as such, in a sense your primary case is that you go----

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11MR.
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STONER: Absolutely, but what I say is if they are going to stay then from my
clients perspective there is sense in them staying in the High Court,
particularly on the main navigable channel point, because of the general
consequence of that.

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The only point really that I make in the skeleton and I make now is that on
the Soo Kim v Youg, basis where the court should not automatically move to
strike out, the only point but may give an opportunity -- perhaps I should just
go to that. It is referred to in the White Book, first of all----

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21CHIEF

MASTER MARSH: Yes, I remember, yes.

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23MR.
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STONER: -- at p.96 and then the actual decision is in the tab of authorities
behind 6. It is really just one line really which confirms at para.40 where it
is. This is the decision of Mr. Justice Tugendhat who says:

26

However, where the court holds that there is a defect in a pleading

[which is of course my case] it is normal for the court to refrain from
striking out that pleading unless the court has given the party
concerned an opportunity of putting right the defect, provided that
there is a reason to believe that he will be in a position to put the defect
right.

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The only point I make is that having raised all these points, Mr. Ravenscroft
came back in his statement not saying I accept that or matters of that sort,
he refers to 16.4 and matters such as 16.4 that I have been to and actually
argues in his statement that the documentation is in compliance of the CPR.

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MASTER MARSH: I will hear what is said in a minute because one

observation, I make it because it is something I have said in many similar
applications, is that where there has been a reasonable opportunity prior to
the hearing to put the case right, the court will not necessarily give a further
opportunity and what may be relevant here is the fact your application, of

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course, has been outstanding now for quite a number of months and we have
already had a----

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STONER: We made the application on 19 November. We were before you,

I think, on 26 November when it got adjourned off so we could lead with this
application. In November, I think it is fair to say, we were anticipating that
hopefully we would be back here before, as we are, a few days before Easter,
but that is the state of listing.

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10CHIEF

MASTER MARSH: Yes.

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12MR.
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STONER: So there has been plenty of opportunity and it is relevant in that

sense that the statement came in in January from Mr. Ravenscroft, which is
behind tab 22 of the bundle, which deals with the application to strike out
beginning at p.303. It is really from para.53 on, but over at p.304 there
is para.60:

17

I submit that my particulars of claim, in fairness, meet the relevant

rule perfectly and refer not only to the bare facts far more concisely
than the filed defence, but within the bare mention of the relevant acts
and points of law within which are, on my argument, violated by the
defendant and so giving rise to valid causes of action.

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With respect to the statement of case, I filed in addition to and in

elaboration of the concise particulars I acknowledge the applicability
of the Practice Direction 6.1.4 [which I referred to earlier] and my
statement of the case begins with such a summary being less than
a single page that sets out the three essential grounds, which the
statement elaborates upon for the sake of complete understanding.

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Then it goes on in that respect. The argument that is taken in response to our
application after we had a hearing here and hopefully the application is
tolerably clear in just saying it is too prolix and disproportionate and after the
relevant extracts from the White Book in 16.4, et cetera, were sent through to
Mr. Ravenscroft and more particularly to Mr. Moore, who is assisting him,
that there is not a reaction of well I accept that this cannot stand and Ill
forego my statement of case and make my particulars of claim good, there is
a defence on the basis of actually Ive complied with the CPR.

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MASTER MARSH: Mr. Ravenscroft, your position is that you would like
some assistance, as I recall it, and so far as assistance is concerned during the
hearing there is no particular difficulty about that. Are you going to address
me or are you suggesting that Mr. Moore should address me?

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RAVENSCROFT: Id appreciate it if Mr. Moore could address you, please,

yes. If its possible.

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MASTER MARSH: I know that is a matter which is contentious because

what I am asked to do, assuming that this claim survives today, then as part of
today consider whether Mr. Moore should have an opportunity to effectively
represent you during the course of the claim. Whatever I do I am not
prejudging that application, I will hear it separately. Mr. Stoner, you object,
I think, do you not? I am just at the moment focussing on the strikeout
application.

12
13MR.

STONER: Yes.

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MASTER MARSH: Do you object - and it is a matter for the court - but do
you object to Mr. Moore speaking for Mr. Ravenscroft on this application?

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STONER: I will just take -- (After a pause) My client says take the sensible
course and it is a question of what is going to be just and right for the smooth
running of this hearing, and provided Mr. Moore confines himself to succinct
points and just does not take over, my client has no objection on this
application to Mr. Moore saying.

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MASTER MARSH: All right. That is what you would like to do, you
would like to invite Mr. Moore to assist you and to address the points we are
dealing with now. That is right, is it not?

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28MR.

RAVENSCROFT: Yeah, Id appreciate it if he could.

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MASTER MARSH: Yes. I do recall the last hearing and I do recall your
explanation to me on the last occasion.

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RAVENSCROFT: Like I said previously, Im dyslexic, Im not the best at

English. Some of the words what have been used in here, I dont even
understand what they mean. Theyve got the finest barristers you can get,
theres four of them here against a guy that cant read or write. Nigel isnt
a barrister, hes not a solicitor, you know, theyre just putting the odds against
us that we fail and just trying everything in the book. I need assistance from
Nigel. I understand the legislation, I understand what theyve done, the three
preliminary things that they did on the day when they took my boat, the
proportionality they used to take the boat, and then they used it as a lien on
debt. I understand that very well, but Nigel can put it in words better than me
that and I appreciate it if he can say, if he can talk on my behalf.

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MASTER MARSH: All right. I am going to, for todays purposes, just
dealing with this application, permit you, Mr. Moore, to address me. I am
doing that essentially because I am taking the view - and I am sure this is
right - that essentially what is being criticised is your drafting. This is
Mr. Ravenscrofts claim but the way it has been put forward is the way you
have drafted it and effectively he thinks it is your skeleton argument and it is
your witness statement, although it is made by Mr. Ravenscroft, so it seems to
me the pragmatic course of action is to invite you to, as it were - defend is
overstating it - speak to the work which you have done.

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I know you have quite a lot of experience of litigation, although you are not a
lawyer, and of course I have heard you speak on the previous occasion.
I think I can assume, can I not, that you have been readily able to appreciate
the points Mr. Stoner has made, the provisions of the rules, Civil Procedure
Rules?

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18MR.

MOORE: Yes.

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MASTER MARSH: You addressed them so I think I can assume I do not

need to explain those to you. I think that is right, is it not?

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23MR.

MOORE: Thats right.

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MASTER MARSH: Yes. Perhaps you would like to address me and I am

sure you will be to the point. If I think you are not going to the point, I will
stop you.

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29MR.

MOORE: I think I can be fairly concise, Master.

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31CHIEF

MASTER MARSH: Right.

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MOORE: Obviously what I have tried to do in preparing the case from the
start is to do my best to put in all the points that Mr. Ravenscroft felt very
passionately about and still does and there were a lot of the points that were
sought in the declarations are ones that he has actually introduced to me.
I saw them as applicable and they are matters that he has not only been
passionate but engaged in in different fields, and so I have done my best in
that initial presentation to incorporate all the things that he wished to.

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Now I can understand and accept that in the statement of case going through
the rule book, as Mr. Stoner has pointed out, that I have obviously gone over
the top. All I can say in that respect is that I was trying to do justice to what

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Mr. Ravenscroft wanted known and did my best, however, as Mr. Stoner has
referred to, to put in the clear summaries at the beginning and end of it. And
really talking so Mr. Ravenscroft when came time to do the witness statement
for him, at your request, I think that we would -- we were trying to ensure
that the court understood in fairly simple terms what it was all about and we
felt that the crucial question was whether what was submitted was going to be
of assistance to the court rather than obfuscatory. And we felt that if we were
going to put in something that was a summary, then we didnt have anything
better, although presumably one could do better, than the summaries that
I have done for him before and after in the statement of case.

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MASTER MARSH: Do you want to take me to the summary? The

statement of case you have got this bundle that I have I think. Yes. This is
p.14 and 15 of the bundle, I think, if you look at the numbering at the bottom
right-hand corner. Is that right? The manuscript number in the bottom
right-hand corner is what I am looking at.

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18MR.

MOORE: Yes.

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20CHIEF

MASTER MARSH: It is 14 of 15.

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22MR.

MOORE: This is in tab 6, isnt it?

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MASTER MARSH: Yes, that is right.

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26MR.
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MOORE: In the index Ive got the summary of claim issues (a) to (c), so three
in the first two pages, so I started off with a summary of claim.

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MASTER MARSH: Those three points 1(a), (b) and (c).

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31MR.
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MOORE: Yes. Really its only a page on that and then at the end from p.114
to 115 of that, which is bundle p.125, 126 and 127. That is about two and
a half pages.

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MASTER MARSH: Just on 125, you are starting at which paragraph

number in your statement of case?

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38MR.
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STONER: It appears something may have gone wrong in my bundle. It may

only be mine, I have not got my other version.

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41CHIEF

MASTER MARSH: What has gone wrong?

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43MR.

STONER: If one looks at the bottom typed numbers, 125 is actually p.112 of

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the statement of case, and p.126 is at p.115.

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MOORE: We are missing two pages.

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5MR.

STONER: Yes.

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MASTER MARSH: Yes, it jumps from para.336 to 374.

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STONER: In fact, in terms of the summary, if I can assist, what we have got is
p.126 is part of the summary----

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12CHIEF

MASTER MARSH: Yes.

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14MR.

STONER: -- which starts on the previous page.

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MASTER MARSH: It should be (a)125 really because the summary started

from 114 of pagination of the statement of claim.

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19MR.

STONER: Exactly. If we can find the previous page, we will find it.

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21MR.

MOORE: Basically it is two and a bit pages. Right.

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MASTER MARSH: As I think you will accept, it is rather buried, as it

were, in the enormous size of the statement of case, but it is there.

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MOORE: Its -- its----

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MASTER MARSH: It is the beginning and the end.

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30MR.

STONER: May I just borrow that? That would, if you like----

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32CHIEF

MASTER MARSH: That is 114.

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34MR.

STONER: Yes, that becomes page----

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36CHIEF

MASTER MARSH: Yes, it is the only page missing, is it not?

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38MR.
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STONER: There are two pages missing, but the earlier one is before the
summary.

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MASTER MARSH: Yes. The summary which you have in mind, just so
that I am absolutely clear, is p.114 and 115, is it?

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MOORE: And the top of p.116.

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MASTER MARSH: Yes, I see.

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MOORE: Paragraphs 370 to 382.

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MASTER MARSH: Yes, I see.

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MOORE: I really wouldnt have said they were buried in the -- I began with a
one-page summary and ended with a two-and-a-half page summary.

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MASTER MARSH: You have to read 113 pages to get to them. That is
what I mean. In any event, you say there are summaries if one looks for them
in the statement of case.

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MOORE: It is actually listed in the index that I put in the front to the
statement of case, so it wasnt just a statement of case, it was a three-page -two-and-a-bit-page index.

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I can accept that there is a considerable amount in here that we would not
have had to have gone into and it could, for example, be the business of the
main navigable channel could very simply be definitively, on my
understanding, be worked out on whether or not there was some reason why
the terms should mean something different in 1971 to the very clear
definitions in the Transport Act of 1968.

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What I did in the lead-up to this was doing a lot of going back into what bye
laws use the terms, what the common sense use of the term was and how it
was being used in other legislation, how British Waterways before them and
now CaRT have used the term and the understanding. It was all stuff that I
thought was useful and helpful background to what boils down to in the 1968
a very clear definition which British Waterways and CaRT, following them
have always clearly understood this certainly, you know, right up to a year or
so or currently because the classification of main navigable channel was
something that was applicable to both canals and rivers and it was all part and
parcel of the dredging requirements. There was never any suggestion that
dredging requirements were across the entirety of the width of either canals
or rivers, so it was a very clear understanding of what the legislation
specifically meant. I can acknowledge that perhaps -- well totally a whole lot
of this was on my own argument unnecessary to the crucial point, but I felt
that it was helpful. I still think that it is helpful, I do not think it takes away
from the clear objective.

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MASTER MARSH: No, but you may be putting forward all this detail at
the wrong time.

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MOORE: I understand. That is what I can accept, yes.

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MASTER MARSH: I explain. What about the point which is made that
you have had quite a lengthy period of time now in which to think about how
you might want to revise the claim and here we are dealing with the
defendants application without, I think it is fair to say, having any real idea
what it is you would like to do if the court gives you permission to resolve the
difficulty, that is the length of the claim. What do you say about that?

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13MR.
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MOORE: I think what weve done in the skeleton argument which I hope was
brief and concise without going----

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16CHIEF

MASTER MARSH: It was.

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18MR.
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MOORE: -- very legalistic was that Mr. Ravenscroft is perfectly happy to do

an amendment according to whatever you would direct. As I say, we have the
summaries here, we have the particulars of claim. I dont think there is any
obfuscation of the issues, but I am certainly prepared to help him do an
amended statement if that is required or even if, as you mentioned, that there
are problems with the wording and style or whatever it is of the particulars of
claim, then hes certainly prepared to - and Im prepared to help him - do
something that is more in conjunction with the rules.

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I mean, we havent done anything between last November and now other than
comply with the directions that you gave to amend the statements of case
with -- the statements -- other documents, the statements of truth, et cetera,
and basically weve rested on whatever directions you would be making
today. I was not going to advance or volunteer more paperwork and
alternatives until some sort of decision was made.

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MASTER MARSH: All right. Just if you are given an opportunity, is it

something which is going to take a long period of time to do?

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MOORE: Its not quick and easy because I have to talk this over with
Mr. Ravenscroft obviously and work through it. It is time consuming because
I do have to read things out and then he says his piece and then Ive got to try
and put that in wording as best as possible.

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MASTER MARSH: But essentially what is to be done, if something is to

be done, is to reduce what is of considerable length to something which is

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manageable length.

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MOORE: Yes.

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MASTER MARSH: It is actually an editorial function rather than a drafting

function.

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MOORE: Of course, it must, yes. I mean, I do have other things that are in
the pipeline, but obviously if Im prepared to do my level best here, I mean,
I could do something within a month.

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MASTER MARSH: All right. Anyway that is, in a sense, the detail which
needs to follow the decision depending which way the decision goes.

14
15MR.

MOORE: Yes.

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MASTER MARSH: All right. Is there anything else you want to say about
the application to strike out?

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MOORE: Well my argument really is it would be just a very basic one as we

have put in the skeleton argument of Mr. Ravenscroft. Theres a question of
equity involved, theres a question of the fact that some -- you know, on
Mr. Ravenscrofts case a great deal of harm has been done. Theres for him
a considerable financial loss. Theres been a considerable amount of anxiety
and he believes he does have a powerful case, as I would agree with, and it
can only be fair that these issues be heard and put to bed only one way or the
other. And it is a fact that a lot of the basic issues, as in with the main
navigable channel and the varying licensing requirements, et cetera, are
things that I have been debating with other boaters for a long time and there
are other boaters that have been involved with disagreements, shall we say,
with the Canal and River Trust and, as youve been told, there are other
litigation that is in train in which much of the same issues that we are talking
about here are going to be heard. I mean, if this case was closed down, then
they would be made anyway.

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MASTER MARSH: Forgive me, I know you have been involved in

litigation and there is other litigation, but is it the case that there are a series
of cases which are essentially similar in nature and the same points arise?

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40MR.

MOORE: There are a number, yes.

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MASTER MARSH: Section 8----

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MOORE: Yes, they are s.8 cases. Some of them have been involved with
boats on the River Trent.

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MASTER MARSH: Right.

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MOORE: And, in fact, Im aware that there are an awful lot of cases in the
pipeline that I dont know about, but I do know of several.

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MASTER MARSH: In the legal pipeline, where are they? Are they in the
county court, presumably logically they would be?

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12MR.

MOORE: At the moment----

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MASTER MARSH: Or is it the original toll point?

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MOORE: There is, yes. I would say that the county court doesnt have
jurisdiction to say whether or not the Canal and River Trust are entitled to
demand a toll for the use of the rivers.

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MASTER MARSH: There is a slightly nice point there which we probably

do not need to debate now, but just so you are aware, the High Court has
power. Let us assume for the sake argument that the county court does not
have what I would call an originating jurisdiction, in other words it cannot
issue a claim there, so you issue in the High Court, the court has power to
transfer under s.40 of the County Courts Act a claim from the High Court to
the county court. There is some authority for the proposition that by virtue of
that transfer the county court is given the power it would not otherwise have
and s.38 of the County Court Act says that a county court can make any order
that the High Court could have made if it were hearing the case - and I am
paraphrasing - there is a possible counter-argument, but in any event there is
the possibility that a claim started here can be sent to the county court and
there is a respectful argument to say that the county court then has
jurisdiction to deal with it.

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MOORE: In which case----

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MASTER MARSH: I do not put it higher than that. I just want to be clear,
in case it is helpful to make a note, the decision I have in mind is National
Westminster Bank v King, a decision of Mr. Justice David Richards, as he
then was, in 2010 or 2011. That was a case about the county court financial
limits which restricted the issue of claims in certain ways, so a claim relating
to land above 350,000 could not be brought in the county court, but the
judge decided if it was brought in the High Court there was nothing to stop

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the High Court sending it down to the county court and it could then be dealt
with. Anyway we digress slightly.

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MOORE: I mean, I would say of course that I completely agree with what
Mr. Stoner said regarding the desirability of having a binding precedent set.
I mean, there have been dozens of county court cases against boaters, most of
them very straightforward, you dont have a licence, you needed one, there
was no argument on the score and they were just, you know, got the stamp of
approval and that is perfectly satisfactory. Where it isnt satisfactory is where
youve got a legal argument such as, you know, how far does the main
navigable channel extend and where you do one case after another in the
county court because its only persuasive on the next one? I think I would
agree with -- well I know I agree with Mr. Stoners point that it is desirable
for the Canal and River Trust to have a degree of certainty and to have
a binding finding.

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MASTER MARSH: All right. Thank you. That is helpful. Mr. Stoner, is
there anything you want to come back on?

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STONER: Master, I do not think so unless there is anything in particular that

you want to address or ask of me in relation to Mr. Moore. The only thing
I was thinking of is it just highlights the fact that although I accept in skeleton
argument it is said that if we need revision then we will do the revision.
There was, in fact, a sequential exchange of skeletons because for once
I actually managed to do mine early last week, partly because I knew
Mr. Ravenscroft is in person and it would have to go to Mr. Moore as well, so
I thought an extra day was not going to be any harm. It does appear it was in
reaction to the point I put about Soo Kim v Youg in the skeleton as opposed to
the stance that was taken in the witness statement, which was somewhat
different, which is actually one of compliance.

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MASTER MARSH: All right. Thank you. What I am going to do, you are
probably familiar with this, if you are not, having heard both sides arguments
I am now going to give my ruling which will set out reasons for the decision.
Everything that goes on here is recorded and although you may want to take
notes of what I say, it is possible to obtain a transcript of the judgment, if that
is what you want to do, in due course. I just invite you to listen quietly to
what I say, which may take a few minutes for me to complete.

39

(See separate transcript for judgment)

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MASTER MARSH: What I have in mind - and here really I am speaking to

both you, Mr. Ravenscroft, and you, Mr. Moore - is that there should be

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a period of four weeks from today. I am open to the suggestion that it might
be slightly longer, but I need to hear Mr. Stoner about that, too. I am quite
content to discuss over a few minutes, if you wish me to do so, what might be
done to change the particulars of claim.

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I do think the essential point here is that the court is being asked to determine
Mr. Ravenscrofts rights and the duties or issues which arise between him and
this defendant, not issues which arise across a class of other people.
Whatever the court is going to be doing is related to these individuals but in
particular Mr. Ravenscrofts position, not litigating for a community. What
I suggest you might want to do is to think about the way in which the three
issues have been defined, which seem to me to be not in dispute, and think
about how those issues can be incorporated. I think that can be done
with very limited changes to the particulars of claim. What you cannot do and you will not get I am afraid - is assistance from the defendant because
that is not their role and it is not my role to draft the claim for you, but I think
with a few pointers you should be able to produce a claim which is viable.

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I would like to look at the declarations with you because I am concerned

about the scope of the claim. It may be you are right and it may be that all
these points do need to be decided, whether they actually need individual
declarations is a slightly different point. What I mean by that is this. Let us
say this case goes to trial, the court hears evidence about underlying facts,
Mr. Ravenscrofts dealings with the vessel, licensing dealings with the Canal
and River Trust, their actions in seizure and what happened after that. There
are some disputed issues about that, but the court will make a decision on the
facts. What really Mr. Ravenscroft is seeking is actually seeking the money,
but in deciding whether he is entitled to his money back, the court will have
to decide the main navigable channel point because that is really part of all of
this, is it not, and if the court is with the defendant on this construction, it
would have to then decide whether the actions were proportionate or not. It
does not have to decide the proportionality issue if you are right because all
the actions were wrong.

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Those are really the two headline points, are they not, for the courts for the
relief? All the other issues I am concerned about, for example, if we turn to if you have it there - tab 2, p.4, so pleasure boat certificate, that certificate
really stands or falls on your construction of the Act, does it not?

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40MR.

MOORE: Yes.

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MASTER MARSH: Seizure, unlawful, and these points about the Statute
of Marlborough and human rights and so on, tribunal courts, they are all

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pretty peripheral, are they not?

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MOORE: Well I would have thought that it would sort of follow as necessary
sort of in the alternative argument, so the core issue is did he have to have
a pleasure boat certificate where it was or not? In the alternative, if he was, if
the court found that he was, then he has a claim that the boat should not have
been seized in lieu or as a lien on the debt and in either way----

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MASTER MARSH: Is that not just a s.8 point? Is that not just either s.8 is
available or it is not or is there a wider----

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MOORE: Well no, s.8 is available. The boat can be removed from the
waterway if it is there without lawful authority. What the Act says in respect
of the owner being identified in coming forward, they have to return the boat
providing only that he pays the costs of removal and storage.

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17CHIEF

MASTER MARSH: Right.

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MOORE: And there is no provision in there for them to say Well were not
going to give you the boat back until you pay the debt we say you owe.

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MASTER MARSH: All right. It seems to me what needs to be done, if

I may suggest, is that the issues about seizure, really there is an all embracing
point here, is there not, that you say the seizure was unlawful for a variety of
reasons and instead of that element of the claim being put into the relief you
are seeking, it is actually a positive case you are putting forward, the seizure
of this vessel was unlawful for the following reasons; one, two, three, four,
five? You do not need a declaration that deals with each of those points, the
court will neither accept the vessel was seized unlawfully for one of those
reasons and you explain why or not, but I do not think you need an individual
declaration arising, but if you take, for example, human rights, you are saying
that his human rights have been infringed, you will not need to explain why.
You cannot just say, you can say, but you are not going to get very far if you
just say seizure was a breach of his rights under Art.6 and 7 of the
convention.

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37MR.

MOORE: Right.

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39CHIEF

MASTER MARSH: You need to explain why that is.

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MOORE: Yes.

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MASTER MARSH: The case you need to put forward, it seems to be rather

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focussing on the case rather than the relief.

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MOORE: Right.

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MASTER MARSH: Anyway, that, I think, is about as far as I am prepared

to go because really I cannot draft this claim for you and indeed I am not
going to. I do not think there is great difficulty with the material which you
have. What I might say is that I would - and this is a five-page document at
the moment - be most surprised and indeed I would be disappointed if it was
extended to longer than ten pages because the purpose of the particulars of
claim is to put forward succinctly not every point you want to argue when
you get to court, but sufficient to enable the defendant to understand the case
it has to meet. It is the case you want to put forward and they need to be able
to understand it such that they can then deal with your case.

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MOORE: So is it the statement of case is actually not necessary at all?

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MASTER MARSH: No, not necessary at all. You have the claim form and
the particulars of claim is what is done normally. It must have a statement of
truth, so it is a concise statement of the facts you rely on and where, as here,
there are legal issues, explaining what the legal issues are and why they arise.
But you do not need to set out legal authority, you do not need to refer to
other cases, but obviously if you are referring, say, to the Human Rights Act,
you need to say which articles of the Human Rights Act you rely upon and
why briefly you say they are relevant, for example.

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MOORE: Yes.

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MASTER MARSH: The Statute of Marlborough, you say is unlawful

under that statute, you need to say why, why it was, if that is a point you want
to run, for example.

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That is then where we have got to. We are talking about time. Easter is, of
course, shortly upon us but that may not matter. I am thinking out loud,
I have not heard from Mr. Stoner about this yet, but to the end of April, which
is slightly longer than four weeks. Friday, 29 April gives a reasonable period
of time, does it not?

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MOORE: Yes.

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MASTER MARSH: We always put a time on these things, so the order will
be that by 4 pm on 29 April you will have served on the defendant a draft
amended particulars of claim and filed that with the court. Then what

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happens next, it seems to me, should really be a reasonable opportunity for

your side to see what emerges.

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STONER: Yes, and we should either indicate whether we consent to those

amendments and then it would seem to me if we did we would need to
indicate that within a period of time and file a suitable reply. Sorry, a suitable
defence. It may be that we can use the defence that is there, but that should
be provided for. Or, alternatively, in the same period obviously that we have
to indicate whether we consent. If we do not consent, then Mr. Ravenscroft
will have to make an application to amend.

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MASTER MARSH: I think what I prefer to do, we can treat this all under
the envelope of this application, can we not?

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15MR.

STONER: Of course.

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MASTER MARSH: How long would you need to review your position?

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STONER: I am just reminded that in fact we are in the Court of Appeal in

another matter in the middle of May, so if I could ask for 14 days to indicate
whether we agree or not and if we do agree because of that case, just a further
period of time, so by the end of May to file any amended defence.

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MASTER MARSH: The way it will work is that you have until the end of
April, you send what you want to send to them and to the court. They have
two weeks in which to think about it. If they say thats fine then the court
will be notified that there is no objection and in fact the courts permission is
not needed for an amendment that goes by consent.

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MOORE: Consent, yes.

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MASTER MARSH: You would just make sure that what you file has
a statement of truth signed to it by Mr. Ravenscroft and they would then have
two weeks in which to serve their defence. If, however, they do not agree,
then either you or they, it does not matter which, will simply say to the court
in writing please restore this hearing for the court to review it and then
a further date will be given for a hearing whenever the court can fit it in.
That may or may not be necessary, one does not know. That is where we
have got to. There is the secondary application, is there not?

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STONER: Master, there is. I am not going to disagree with anything that has
been suggested, it just leaves two points. One is the costs because the
application, of course, is still alive, but the second point, of course, is that

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there is Mr. Ravenscrofts application, the entirety of what has just been said
is predicated on the basis, I think in reality, that Mr. Moore will draft the
amendments, but of course we oppose his involvement in the case, which is
slightly difficult, I am conscious of the time as well now.

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MASTER MARSH: The difficulty with the position, just if I may just
speak to you both, as it were, generally, that what the defendant is saying in a
sense is that you, Mr. Moore - and please do not take this personally, I am just
trying to describe the sense I get - is that you are part of the problem not the
solution and that in a sense may be completely wrong. I am not making any
finding about it, but in a sense they are saying that your involvement is the
reason why the claim is so over-drafted and that what you are bringing to
bear is an approach which is very much coloured by your own personal
dealings and therefore that is unhelpful because you do not bring the degree
of objectivity which might otherwise be useful. That is in a sense the
problem.

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What I am rather inclined to do is this, it may be that what emerges is a claim

which is succinct, clear and will enable this case to go forward and it may be
that the application then has rather less significance than it did before, but
what I am very, very clear about is that this is Mr. Ravenscrofts claim and the
only thing the court is going to deal with is his claim, not a political, with
a small p battle, vis-a-vis boat owners, vessels owners and the Canal and
River Trust, this is a claim which may have application to other cases, but it
will be confined in its decision making solely to Mr. Ravenscrofts case and
that is what needs to be clearly understood, if I may say so, on your side of
the room.

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What I would have to be convinced about is that it is (a) right that there
should be some enhanced McKenzie status, as it were, and to do that I would
need to be satisfied that you as an individual are capable of dealing with the
case in a succinct and clear way which only focuses on Mr. Ravenscrofts
case, not on other issues which you have in mind I have heard today with
some assistance, with some considerable assistance, I think it is fair to say.

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STONER: Yes, I think whether it is today, I am not sure, but the application
obviously has to be dealt with and I say that, perhaps Mr. Ravenscroft may be
surprised but from his perspective, because what we do not want to happen
on this side either is Mr. Moore assists Mr. Ravenscroft, we get to a situation
where Mr. Moores involvement has not been definitively determined, let us
assume that that is at trial, and then the trial judge says well Im not
prepared to allow Mr. Moore to have rights of audience or to act, and then
Mr. Ravenscroft is left in effect high and dry at that trial and is either faced

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with the prospect all of a sudden of articulating the case himself without any
assistance or just being honest and candid about it. If the trial then goes
ahead, we are then faced with an appeal on the grounds that it was not a fair
and proper trial. We do need to determine the point because strictly speaking
under the terms of the practice note, even drafting the pleadings is outside of
the scope of what is permitted and there is actually, of course, an application
for rights of audience as well as acting as a McKenzie friend and my position
is on this side we oppose both.

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MASTER MARSH: It seems to me, Mr. Stoner, that it may to some degree
anyway. The view I am going to take on the application is going to be
informed by what emerges in the amendment process because the position is
unsatisfactory at the moment and sorry, I am speaking, as it were, in a way
which is directly critical of you, Mr. Moore, but it would appear it is
necessary to do that. Whether this claim could go forward with you having
a role is going to depend on, as I say, what emerges, I think.

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18MR.

MOORE: I understood that.

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MASTER MARSH: I think things have gone awry. There are some
advantages potentially for the defendant in Mr. Ravenscrofts issues being
articulated in a way which he would find difficult.

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24MR.

STONER: Yes.

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MASTER MARSH: There is a balance to be struck, is there not?

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STONER: Yes, yes, absolutely. The ideal scenario from my clients point of
view - no disrespect to Mr. Moore who as you, Master, I am sure have
gleaned we know each other very well, but no disrespect to Mr. Moore but
the ideal for Mr. Ravenscroft is if he got professional representation. Now
I understand his resources are such that that cannot happen. We do not know
to what extent any pro bono assistance has been sought through one of the
official schemes, but that will be the absolute ideal and there are many shades
in between.

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I wonder if the way forward, just being pragmatic about it in the light of your
order as it will be on the strikeout application, is actually to make that order
but to in any event re-list today for a period after the period we have
mentioned and then we can sweep up. It may well be that the amendment is
sorted, but we can sweep up this and we still need to have the general case
management conference anyway.

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MASTER MARSH: And to steer the costs in the light of what emerges,
yes.

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STONER: And steer the costs and what I was also going to say in that
circumstance, absolutely, costs I need not worry today about, we can
determine that in a more considered sense.

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MASTER MARSH: What is proposed very simply is that I make no further

orders today. Your application is left over to a date, we are probably going to
be in June, I think, now, are we not?

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12MR.
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STONER: If I have got to the end of May and the other advantage is that if we
can now look for a listing, we will get that, hopefully, before the summer
vacation otherwise we will be back here in October or November.

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MASTER MARSH: Definitely. The issue, your application, if it is

disputed the question of whether the particulars of claim meet the necessary
specification and thirdly the costs application will all be dealt with at that
hearing in June. In the meantime, the claimant can get on in the sense that if
you produce something which is satisfactory, they will produce a defence, so
not too much time is being wasted and indeed I suppose that hearing could, in
fact, deal with other case management issues.

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STONER: I would very much hope that by that stage we could deal with what
is left from today and general case management.

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MASTER MARSH: Yes, essential, yes. It would be actually quite

advantageous to do that, would it not?

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30MR.
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STONER: Because there is also cost budgeting as well, although that is rather
one way, so it may well be that we can deal with that rather than having
a separate costs management.

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MASTER MARSH: Indeed. It might be a necessary thing to do and it is an

important consideration because clearly the limit of the amount that the
defendant may be able to recover is of very real significance to the defendant.

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38MR.

STONER: Yes, absolutely.

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MASTER MARSH: That would, I think, militate in favour of a longer

listing rather than a shorter listing, would it not?

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43MR.

STONER: I think so. I fear that probably another half a day.

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MASTER MARSH: Yes. Afternoons are preferable.

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4MR.

RAVENSCROFT: Please, for travel reasons.

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MASTER MARSH: Yes. Will you kindly draft the order, Mr. Stoner?

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8MR.

STONER: I will draft an order.

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MASTER MARSH: Which will make provision and it needs to be a date.

Are there any dates to avoid for you two in June that you know about or can
you work round the court diary?

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RAVENSCROFT: I usually do, yes.

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MASTER MARSH: Good. Mr. Stoner, if you have dates to avoid in June,
you need to, when sending in the draft order, get your clerk to send in dates to
avoid.

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20MR.
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STONER: Dates to avoid. If I just say the first available date after. If we
have until the end of May, if I say after the first week of June.

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23CHIEF

MASTER MARSH: Yes. I think from and including 6~June.

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25MR.

STONER: After 5 June.

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27CHIEF

MASTER MARSH: Yes.

28
29MR.
30

STONER: Master, sorry, in terms of the order, of course, my usual practice

would be to seek to agree it.

31
32CHIEF

MASTER MARSH: Just send it in to me.

33
34MR.

STONER: If I just send it, yes.

35
36CHIEF
37
38
39
40
41
42

MASTER MARSH: Yes. This is just drafting the document, the order of
the court. There is nothing very complicated in this, so I am not going to ask
Mr. Stoner to circulate it. I will look at it carefully and make sure it reflects
what it is that I have ordered and then you will get from the defendants
solicitors a copy of the order with a seal on it which will go to you,
Mr. Ravenscroft, but it just sets out the dates by which things must be done,
but you know, do you not, the critical date for you is 29 April?

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F. NUNNERY & CO.
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4
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32

1MR.

RAVENSCROFT: Yes.

2
3CHIEF

MASTER MARSH: That is the important date. All right?

4
5MR.

RAVENSCROFT: Thank you very much.

6
7CHIEF
8
9
10

MASTER MARSH: Good. Thank you very much. Mr. Stoner, I do not
need to retain that, it seems to me. It may come back in a different form and
actually I do not need to keep your bundle of authorities, which I will let you
have back. Thank you very much.

11
12MR.

STONER: Thank you, Master.

13
14MR.

RAVENSCROFT: Thank you.

15
16

_________

BEVERLEY
1
F. NUNNERY & CO.
OFFICIAL
2 COURT REPORTERS
AND AUDIO
3
TRANSCRIBERS

4
5

33