Ravenscroft V CaRT. Main Trial, 1st Day Proceedings

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IN THE HIGH COURT OF JUSTICE No. HC-2015-001906

CHANCERY DIVISION
Rolls Building
Monday, 22nd May 2017
Before:
MRS JUSTICE ASPLIN
BETWEEN:
LEIGH RAVENSCROFT Claimant
- and -
CANAL & RIVER TRUST Defendant
__________
THE CLAIMANT appeared In Person together with his McKenzie Friend, Mr Nigel Moore.
MR C. STONER QC (instructed by Shoosmiths LLP) appeared on behalf of the Defendant.

_________
LEGAL ARGUMENT
INDEX
Page No.
ADMINISTRATIVE MATTERS 1
SUBMISSIONS
Mr MOORE 10
(For evidence of Mr Stuart Garner, see separate transcript)
_________________
Monday, 22nd May, 2017
10.33 a.m.
MRS JUSTICE ASPLIN: Good morning.
A
MR MOORE: Good morning, my Lady. I think we need to do just a little bit of housekeeping
first, in that we have got one bundle that has not been agreed, that was to be the subject of
application----
MRS JUSTICE ASPLIN: Well, let us step back a moment from that. Am I to understand that
B you are the gentleman who is assisting Mr Ravenscroft? Is that right?
MR MOORE: That's right, yes.
MRS JUSTICE ASPLIN: And you are Mr----
MR MOORE: Moore.
C MRS JUSTICE ASPLIN: -- Moore, and there is a reference in an order from Master Marsh in
relation to representation on the basis that it can be reviewed at any time. I would like just
to establish before we go any further with Mr Ravenscroft whether he is content for you to
continue to represent him today, and the necessity or otherwise of him doing so. But before
I do so-- (To the clerk:) Alice, this is as bright as we can... Thank you. I have also a
D concern always about the light in these courts, and it seems to me that this is particularly
dingy. Sometimes it is possible to make it a bit brighter. I apologise that we don't seem to
be able to. (After a pause) So if I could just speak with Mr Ravenscroft for a few moments.
MR MOORE: Of course.
E MRS JUSTICE ASPLIN: Mr Ravenscroft, I understand that in the past Mr Moore has
represented you and that there is an order from Master Marsh that although it is something
which can be reviewed at any time, that I should have expected that he would do so today.
Can you tell me what your position is and whether you are happy to represent yourself or
whether you want Mr Moore to represent you, and why you want Mr Moore to represent
F
you?
MR RAVENSCROFT: Basically I want Mr Moore to represent me because I'm dyslexic and I
need the assistance from him, to be fair.
MRS JUSTICE ASPLIN: And you are content that he does so this morning?
G MR RAVENSCROFT: For sure, yes. Yes, content.
MRS JUSTICE ASPLIN: Thank you very much. Now, Mr Moore, you were telling me that
there is an unagreed bundle.
MR MOORE: That's right, yes, it's trial bundle E, my Lady. Mr Ravenscroft sent in a number of
H documents that he wanted to put into his exhibits in substitute for a number of the original
OPUS 2 DIGITAL TRANSCRIPTION

1
ones that could be taken out. Shoosmiths helpfully told him that he needed to make a
formal application of that. When he was looking into it, he discovered that we are now
subject to all this e-filing apparently, and so he tried to open an account in order to make the
A
application. It took a while before it actually got approved, as it were, and then he was
unable to use it anyway. I don't know why that is. I mean, I -- when he told me about this,
I tried to log on, and I got a response saying "the case number entered does not reside in the
CMS or is not available to e-file", so we were rather stumped about making a formal
B application for this to be accepted.
MRS JUSTICE ASPLIN: Well, Mr Moore, let's row back a little bit again and perhaps have a
discussion about what is to be the shape of this hearing, and what is expected and the issues
that are going to be considered, and the timetable, because we have three and a half days
C and we have to fit everything within that. And, in the light of that, we might be able to see
what of this material in any event----
MR MOORE: Yes.
MRS JUSTICE ASPLIN: -- goes to those issues and therefore what you would need to apply to
rely on that is in this file, rather than worrying about it as a free-standing issue. I am only
D trying to be helpful, not unhelpful.
MR MOORE: That sounds excellent to me, yes.
MRS JUSTICE ASPLIN: So we will cross the bridges if and to the extent that material in here is
necessary, according to you, for the issues and the way in which this matter is going to be
E dealt with. Okay?
MR MOORE: Excellent, yes.
MRS JUSTICE ASPLIN: Good. So in relation to that we have got three and a half days. I have
to say I am dismayed by this case, completely dismayed, in the sense that the amount
involved is not an amount that usually the High Court is involved with, and that is not
F
because I am saying it is not something I want to deal it, it is because of proportionality in
relation to the cost both in terms of the kind of cost which is being incurred by the CRT,
which there is always the risk in litigation may land on either party's shoulders, and that is
going to be far greater than the amount of money at stake. And also of course the court
G time. And what worries me, and I do understand that what is being sought is a declaration
in relation to a particular phrase of legislation and that is the important issue, but I am
completely dismayed that it has not been possible to settle this matter and that the CRT and
your person for whom you are speaking, and that is Mr Ravenscroft, have not been able to
H come to a sensible conclusion in this matter, which does not put everyone, including your --

2
the person for whom you speak, at very serious risk of costs orders. I am not saying that I
have in any way thought about the outcome of the declaration, I am just talking about
litigation in general and the risk that is involved with it in a general way. So I have to say
A
on behalf of everyone, and particularly on behalf of Mr Ravenscroft, I am rather appalled
that you are here in front of me because, as I understand it, the amounts which he was
required to pay are not in dispute. That is the back arrears or purported arrears of licence
fees, and the storage and removal charges, and re-delivery charges. Those are not in
B dispute. And so the real issue, as I understand it, and please put me right if I am wrong, is
whether in fact they were leviable in the first place because of the definition of "navigable
channel", and whether also it is right and proper to seek the arrears of fees, especially as for
some of that period Mr Ravenscroft says he didn't own the boat. And you have got your
C Statute of Marlborough and your Human Rights Act issues in relation to that. Am I right
about the framework of the case?
MR MOORE: That's broadly correct, my Lady, yes.
MRS JUSTICE ASPLIN: Right.
MR MOORE: I mean, I----
D MRS JUSTICE ASPLIN: So, Mr Moore, how is it that you propose that we divide up the time
and deal with things? Because it seems to me also that for the most part the evidence is -- it
is wrong to say irrelevant, because of course it is the background and the very fabric of how
the dispute arises, but for the purposes of deciding those points, I actually don't need cross-
E examination of witnesses at all, do I? So I am just interested to know how you think we are
going from here, given that I have already wasted 10 minutes of your time.
MR MOORE: Not wasted at all, my Lady.
MRS JUSTICE ASPLIN: I am always concerned you are thinking if I would stop talking, you
could get on with it. (Laughter).
F
MR MOORE: No, not at all. I would just like to comment that Mr Ravenscroft did seek to gain
some sort of out-of-court settlement and agreement on this and, you know, the Canal &
River Trust initially were amenable to that. It didn't work out. As far as the importance of
it is concerned, I believe Chief Master Marsh observed that both Mr Stoner and myself
G agreed that the outcome of a decision on what a "navigable channel" means is not just of
effect in this case, because there are -- we are dealing with the application of s.8 of the 1983
Act, and that is the only, in fact, sanction that the Canal & River Trust apply to any number
of issues that they have with boats. And there are hundreds of seizures that take place every
H year. There are a number of them that end up in the County Courts because they are live-

3
aboards, and instead of immediately taking the boat, as they did with Mr Ravenscroft, they
will take them to the County Court first to get approval because of the human rights being a
little bit more emotive and stronger when somebody is living on the boat itself. But there is
A
also an increasing number of these taking place on the rivers and therefore----
MRS JUSTICE ASPLIN: I understand, but I am really worried. I am not asking, nor is it
appropriate for me to ask, about funding arrangements and that kind of thing, but I am very,
very worried about Mr Ravenscroft being hijacked in effect. By that I am not suggesting
B that there is anything wrong with anything anyone has done; please don't take it in that way.
But what I am saying is that this is a case which is suitable for settlement and in fact Mr
Ravenscroft is bearing the burden on behalf of, it would seem, a community, and I am not
convinced that perhaps a test case, which is in relation to what does this phrase mean in this
C statute, might be a sensible way forward, but I am just very, very concerned about Mr
Ravenscroft and whether it is appropriate that he should bear all this weight, if you see what
I mean.
MR MOORE: Absolutely.
MRS JUSTICE ASPLIN: Absolutely.
D MR MOORE: And his position, and I think perhaps he would be better addressing you directly
on this himself, is he has been -- I hesitate to use the word "activist" but it is probably as
accurate as any in the whole field of bailiff actions and people seizing goods for debts and
doing that without court orders, etc. It is something that he has spent his life on for quite a
E number of years now, which is why he is passionate about getting things sorted out in this
particular case where, you know, in his interpretation, which I would agree with, you know,
his boat was seized because he owed money and it was done so in appropriately. So that
was his----
MRS JUSTICE ASPLIN: Motivation.
F
MR MOORE: -- driving motivation. I mean, I am happy for him----
MRS JUSTICE ASPLIN: Okay.
MR MOORE: -- to confirm that.
MRS JUSTICE ASPLIN: I am going to rise for, at most, 10 minutes, I will say 10 minutes, on
G the basis that I really think that is a matter in which there ought to be some sense applied to,
and that therefore settlement should be considered. I am giving you a moment to have a
further discussion, but in that very short moment I am also giving you opportunity and I
would be grateful if you would discuss with Mr Stoner how to proceed, if this matter is to
H proceed, in relation to the amount of time we have got and the fact that actually I don't

4
think, having had a look at them, that it is going to help me particularly to hear evidence
and cross-examination in relation to the witnesses whose witness statements are in the
bundle. Because the issues actually are narrow and although, as I say, they ride above the
A
fabric of the facts, if they could be in some way agreed, that would help enormously in
relation to the amount of time that we have got. I should also tell you that I am not sitting
tomorrow morning, so it is today, tomorrow afternoon -- where will we be? Wednesday
and Thursday morning. So I think that it would be very helpful if you could have that
B discussion and in particular, despite the fact that I have gone on to explain about the
housekeeping, which is very important housekeeping, if we are to keep this on track, I don't
want to detract from the first thing I said, which was in fact that I really, really think that
both sides - both sides - need to take a very, very pragmatic and sensible view of this
C matter. I am going to give you now, I am afraid, a very short amount of time. I think on
that basis I will say eleven o'clock.
(Short break)
D MRS JUSTICE ASPLIN: Mr Moore.

MR MOORE: My Lady, well, we have had a brief and hopefully partly profitable discussion.
The position on Mr Ravenscroft's side is that he would be prepared to negotiate something,
but it's certainly not feasible within----
E MRS JUSTICE ASPLIN: Yes.
MR MOORE: -- the here and now. And, I mean, we have actually gone through negotiations
which he feels was a little one-sided but could be altered, you know----
MRS JUSTICE ASPLIN: There is scope perhaps?
MR MOORE: There could be scope.
F
MRS JUSTICE ASPLIN: Yes.
MR MOORE: But it would not be in the here and now.
MRS JUSTICE ASPLIN: Well, I will ask Mr Stoner about that and whether it is realistic to have
more time. Perhaps I should do that now. Mr Stoner----
G MR STONER: My Lady.
MRS JUSTICE ASPLIN: -- is it realistic right now?
MR STONER: I think, just being entirely candid, the answer is no, and that is not because of an
unwillingness on either side, if I can put it neutrally, because there have been settlement
H negotiations----

5
MR STONER: -- in the past, and this isn't a case where we end up at trial without there having
been attempts at settlement. And obviously I can't go into that.
A
MRS JUSTICE ASPLIN: No, no.
MR STONER: But there are one or two-- I am obviously not giving up any relief because I am
not seeking any relief in this particular case. But what I also have to think of is implications
in other matters. And then there will be what -- I have just had a very sensible discussion
B with Mr Ravenscroft and Mr Moore, but I think, unfortunately -- I could say: "Let's have
another hour". My best guess is if I came back -- if I stood here in an hour's time, I would
be saying: "Unfortunately, we just can't draw things together".
MRS JUSTICE ASPLIN: Well, because I am particularly concerned about Mr Ravenscroft and
C whether an intransigent position is being maintained for purposes which are not necessarily
to do with him, and that does concern me because I am worried about him, as I put it, being
hijacked by the issue, I am -- I am slightly perplexed by what you are saying, Mr Stoner,
because you are basically saying: "Yes, I think it would be possible but given all the
politics" -- and I just wonder whether more time might be helpful.
D MR STONER: Let me correct, because I think that would be a wrong impression, if I have given
that impression. From my client's point of view, the importance of this case, having been
sued on it, is the main navigable channel, because that is important moving forward. Now,
in terms of settlement, what I recognise is therefore the issue for my client is there is no
E court determination. There are the costs consequences for them, but that, in my submission,
is not insurmountable. There are then the other aspects of the claim, the monetary aspects
of the claim.
MRS JUSTICE ASPLIN: Which are, in the scheme of things, not great.
MR STONER: No.
F
MRS JUSTICE ASPLIN: No.
MR STONER: And what I say is I don't think there are any political considerations there. It is
just a situation of where -- whether the parties can come from their positions to reach a
compromise position. And I am, perhaps foolhardily so, but, in any case, I am always
G optimistic that one can have a sensible discussion. What I am very aware of is that
discussions have taken place in this case before, and I do emphasise that.
MRS JUSTICE ASPLIN: Well, I think that in the circumstances I am going to urge you to
continue those discussions in a positive way, because I think that can only help everyone.
H But I think that we have to proceed now and to discuss housekeeping and to move on.

6
MR STONER: Yes. What I was going to say perhaps -- and that is perhaps slightly against that
indication, is I am more than happy to invest the next hour in seeing if a compromise is
possible. More than happy. And I suspect my clients are as well. I don't want to give any
A
contrary impression. What I would say in terms of timetable is I am not surprised by my
Lady's indication that actually cross-examination is not going to be the most useful tool into
this case.
MRS JUSTICE ASPLIN: No.
B MR STONER: Because the main navigable channel point is unquestionably a pure point of
law/submission. The human rights proportionality point and the distress - there is some
fact, but so many of the facts are not actually in dispute. What I mentioned to Mr Moore,
and the reason for mentioning this at a certain length and saying about the extra hour, is I
C think we can therefore accommodate in the three and a half days very easily.
MRS JUSTICE ASPLIN: Well, that is what I am thinking.
MR STONER: Yes, I am quite content, subject obviously to my Lady and to Mr Moore, and I
have discussed this with Mr Moore, that we crack on with submissions. So, in effect, Mr
Moore makes his submissions, I then make my submissions, and Mr Moore will obviously
D then, on behalf of Mr Ravenscroft, have the last word by way of reply. And in terms of the
witnesses, although it is not ideal for them, perhaps we could review it at the end of today.
But only if it is felt, through submissions, that actually it would be useful for my Lady to
have evidence on any particular point, will we then dip into -- call a witness and dip into
E that.
MRS JUSTICE ASPLIN: I think that you might have to, and that is something that you could
also usefully use a little bit of time now on - other than discussing any sensible way out - is
how that could be dealt with. What is in dispute, what is live? It occurs to me that
practically nothing is. And then how procedurally to deal with that. Because I don't think it
F
is fair to keep the witnesses just hanging about. But what really matters in relation to the
disputed facts, what are the disputed facts, it seems to me that it is not disputed -- well, it
might be disputed about how many and when various notices were sent, query what that
goes to or what that helps, if you see what I mean. Then there is no dispute about what the
G costs and charges are, and fees are, and otherwise what do the facts actually assist us with?
MR STONER: Yes, exactly. And what I can say in terms of cross-examination I have got
prepared, I wasn't going to be very long with Mr Ravenscroft at all. That may not surprise
you, but just a few questions I need -- I was going to ask; it is perhaps a question of
H reflecting whether I need to ask them. I think in an ideal situation I would, but----

7
MRS JUSTICE ASPLIN: I am not trying to in any way, you know, pressurise people into not
doing things they think appropriate. Quite the reverse. I am just trying to assist with----
MR STONER: Yes.
A
MRS JUSTICE ASPLIN: -- how I see things in case I have also got it wrong, because I want you
to tell me if I have. Mr Moore may feel that there is worth and purpose in the cross-
examination that he has prepared, but I just think that I am, on that basis, going to give you
until twelve o'clock, both to resolve those issues, because that may save an enormous
B amount of time----
MR STONER: Yes.
MRS JUSTICE ASPLIN: -- in the scheme of things. But also to think seriously and
pragmatically about this matter, because I think that it has gained a size and importance
C which is doesn't necessarily warrant. So I am going to rise now. I think that would be
useful. Mr Moore, do you agree?
MR MOORE: Absolutely.
MRS JUSTICE ASPLIN: Good. Until twelve o'clock. I have taken the liberty of looking at
these beguiling photographs, which I imagine have been handed up by you, Mr Moore. Is
D that right?
MR MOORE: Yes.
MRS JUSTICE ASPLIN: I appreciate they may not be agreed in any way, but I just thought I
ought to tell you that I have looked at them. I will leave them here. Thank you very much.
E
(Break)
MRS JUSTICE ASPLIN: Mr Stoner?

MR STONER: My Lady, sorry, I just asked Mr Moore----
F
MR STONER: -- if he wanted me to report in.
MR STONER: We have had a very useful hour, but, unfortunately, we have not been able to
G agree a compromise of the claim.
MR STONER: Therefore, in terms of the timetable, what I suggested to Mr Moore was, I think
we both feel some limited cross-examination.
H MRS JUSTICE ASPLIN: Right.

8
MR STONER: But I think it will be limited. My initial view was we should crack on into the
evidence, so to speak.
A
MR STONER: But taking account of the fact -- and listening to Mr Moore as a McKenzie friend
to a litigant in person, what Mr Moore has said is that he would prefer, not least so he has
some time to review the questions he wants to ask, if he could open the case. Now, I would
understand from what Mr Moore has kindly said to me, that the opening would be
B effectively his submissions by way of opening. I am very much in my Lady's hands, but I
would be content with that, and then limited----
MRS JUSTICE ASPLIN: Well, we will go on -- we will proceed as we proceed.
MR STONER: Yes. Thank you.
C MRS JUSTICE ASPLIN: But your idea in relation to timing is what?

MR STONER: In relation to timing, I don't know exactly how long Mr Moore is going to be in
opening. Ideally, particularly if we have got limited cross-examination, I would like the
witnesses to be done and dusted today and released. And then that would mean that
effectively at two o'clock tomorrow I would go straight into my submissions. I am certainly
D going to be all afternoon. I might lap into----
MRS JUSTICE ASPLIN: Wednesday morning.
MR STONER: -- Wednesday morning, but I am looking at a Wednesday finish, not a Thursday
finish, for this case, because certainly when we -- you have seen the correspondence in the
E bundle. But when we were looking to try and get to a situation where it was just a point of
statutory construction, that struck me as a day's case, perhaps a day and a half, but certainly
a day's case, because obviously the evidence is not going to be -- then that is the main point.
There are, however, points on proportionality and distraint, and whatever, that I have to
address as well. But I am looking in my own mind, even if Mr Moore were to take the rest
F
of the day, though I hope he would not, but into this afternoon, then get the witnesses done,
me tomorrow afternoon, Mr Moore the opportunity to say whatever he wishes on
Wednesday. We should be finishing, I am anticipating, about Wednesday lunchtime, early
Wednesday afternoon.
G MRS JUSTICE ASPLIN: Thank you. Mr Moore, is that how you see it too?
MR MOORE: Broadly speaking, my Lady yes. I just had prepared my own notes for doing an
opening synopsis in general. As far as the cross-examination was concerned, having spoken
with Mr Ravenscroft and also with Mr Stoner, in terms of establishing things that are
H important to the actual issues to be decided, neither of them are going to be of any great

9
assistance. There was just the question of whether or not there were things said in the
statement that we would be taken to agree with if we didn't challenge it. I mean, if -- that
would end up being the only point in doing any cross-examination at all. Even there, I
A
would say that it is not terribly significant -- well, it isn't significant at all to the actual
issues that you would have to determine.
MRS JUSTICE ASPLIN: I wonder whether an unorthodox way forward might be for you to
cross-examine to the extent that the issues go directly to the issues which are live, and to
B make your position clear as to the other issues which you do not accept, despite the fact that
you are not going to go to them, and then I won't record that those aspects are unchallenged,
despite the fact that you didn't cross-examine on them. If Mr Stoner is content with that.
MR STONER: I am content with that.
C MRS JUSTICE ASPLIN: I think that is the pragmatic way of dealing with it.
MR STONER: Absolutely.
MR MOORE: So would that require any cross-examination at all then or----
MRS JUSTICE ASPLIN: Well, the things that you are concerned about not being taken to
accept----
D MR MOORE: Yes.
MRS JUSTICE ASPLIN: -- but you don't think are particularly directly relevant to the issues,
you can just make a list of those and tell me what they are.
MR MOORE: Right.
E MRS JUSTICE ASPLIN: And then you don't have to cross-examine and the effect will be --
won't be that I will say: "Those matters were unchallenged", because you have listed them
as something that you do challenge, although you are not going to cross-examine. And the
other cross-examination would only be as to things that you specifically think matter in
relation to the issues which are live.
F
MR MOORE: In that case----
MRS JUSTICE ASPLIN: Do you see what I mean? There are two categories.
MR MOORE: Yes. In that case, my Lady, I would suggest it would be a lot briefer just to do as
you suggest, and just list the points that we -- or facts that we disagreed with, and there
G wouldn't be any need for any cross-examination of either of them.
MRS JUSTICE ASPLIN: Well, as you are going to open anyway, why don't you do that and then
think about your position carefully as to whether you do or you don't need to cross-examine
on some specific issues over lunchtime. I don't want you to pin your colours to the mast
H right now. You need a little bit more time to think about that.

10
MR MOORE: Thank you very much, my Lady. Well, if we are to start then, I thought it would
be helpful with the photographs that----
MRS JUSTICE ASPLIN: Has Mr Stoner got a copy of the photographs?
A
MR MOORE: He does, yes. Basically, just at the moment, it's just the first two which -- 1 and 2.
Number 1 is just a broad view of the River Trent with the Farndon ferry site at the bottom
of the curve, just bottom left----
MRS JUSTICE ASPLIN: And so that is where there seems to be a sort of pontoon out----
B MR MOORE: Yes.
MRS JUSTICE ASPLIN: I don't know whether that's the correct term to use.
MR MOORE: Yes. No, that is correct. That is on the south bank and----
MRS JUSTICE ASPLIN: At the bottom of the bend?
C MR MOORE: At the bottom of the bend, yes.

MR MOORE: And the northern bank----
MRS JUSTICE ASPLIN: And then the marina is up on the right?
MR MOORE: Yes. The river keeps going round. There is a marina off to the right hand side.
D MRS JUSTICE ASPLIN: Yes.
MR MOORE: And directly opposite the pontoon is a farm----
MR MOORE: -- which used to be the Farndon ferry. Well, the Farndon ferry was both sides
E actually. If you go to the next, number 2, photograph where we have got it rather more
clearly, you can see there is a slipway to the right of the pontoon and the road to it.
MR MOORE: And there is also a slipway almost directly opposite on the north bank. That's
where the ferry used to run.
F
MR MOORE: And the gentleman who owns the farm is in fact the descendant of the people who
used to run the ferry, even though it no longer runs. Now, you will see on this larger one,
number 2, that there's a few little jetties, if you like, dotted around on the -- to the left of the
G north bank, to the left of some of the boats that are actually on the hard standing.
MRS JUSTICE ASPLIN: I am ashamed to say I am lost now. The north bank is the farm bank?
MR MOORE: Yes.
MRS JUSTICE ASPLIN: And then I see a boat in the water immediately below the farm and
H before one gets the foliage sticking out into the river, if I can call it that.

11
MR MOORE: Yes.
MRS JUSTICE ASPLIN: The tree.
MR MOORE: Yes.
A
MRS JUSTICE ASPLIN: And then I can see a couple more -- some very small boats -- I'm sure
they are not, but they look like it in this picture, which seem to be moored to a little
walkway, pontoon, whatever, just there, to the right of what would be the slipway. Is that
what I am looking at?
B MR MOORE: Further left.
MRS JUSTICE ASPLIN: Oh, I'm sorry, I'm going the wrong way.
MR MOORE: You see where they have got the----
MRS JUSTICE ASPLIN: And going along the bank they're quite faint.
C MR MOORE: Yes.
MRS JUSTICE ASPLIN: Yes, I see.
MR MOORE: I mean, they are just more little sort of jetty-type things.
MRS JUSTICE ASPLIN: I see. I'm sorry, I was in the wrong place.
MR MOORE: And Mr Ravenscroft's boat was moored to one of those.
D MRS JUSTICE ASPLIN: Ah. So to the -- if one is looking at the farm, to the left of the farm on
one of those little jetties along there?
MR MOORE: Yes.
E MR MOORE: It was just really to----
MRS JUSTICE ASPLIN: I'm very grateful. It's very helpful.
MR MOORE: -- just set the scene. I mean, the other photos are just demonstrations of other
river moorings where you can see, in number 3, for example, there's jetties that go out
almost to the river, the middle of the river, as well as along the bank.
F
MR MOORE: You've got the same sort of thing in number 4 where you can see a lot of
individual dots----
G MR MOORE: -- which will buoys.
MRS JUSTICE ASPLIN: Mooring buoys.
MR MOORE: Yes. So they are completely isolated from the bank. You've actually sort of got
to have a little tender to go out to them. Unfortunately, I missed out number 5. I mean,

12
your number 6 shows the Thames down at Richmond where again you have got a whole
string of boats that are moored to buoys or chains actually in that case----
A
MR MOORE: -- in the middle of the channel.
MR MOORE: And I did have one but, unfortunately, I only seem to have made one copy of it,
not the three, which shows a location just a little bit further up from Farndon ferry where
B you have got some sluice gates and you've got half a dozen barges moored in the natural
part of the river that's off the main channel that runs through the lock or sluice.
MRS JUSTICE ASPLIN: Is there a point that you specifically want to make about that
photograph?
C MR MOORE: There is one that I wanted to make about it, yes, later on.
MRS JUSTICE ASPLIN: Right. So you are going to need to get some more photocopies of that,
but perhaps you could just hand it up to me for the moment so that I can just have a look.
MR MOORE: Right.
MRS JUSTICE ASPLIN: And you can tell me what you were going to tell me, and then I will
D hand it back to Mr Stoner. (Same handed) Thank you. This is photograph number 5. It
seems as if there are two -- is it a railway and a main road which crosses the river, and there
are -- there is what looks to me like a major sluice -- is that the right word for it? Or
artificial slight -- I'm not sure how to call it, running down one side of an island in the
E middle of the river, and there are six barges which are in the lee of the small island in the
middle of the river, and that's what you want me to look at?
MRS JUSTICE ASPLIN: And what status do they have in relation -- do we know? Is there
evidence about that?
F
MR MOORE: It's simply the fact that boats can be moored. In that case it will be part of the
natural river Trent and at the bottom you will see like a weir. So you can't actually go
through there.
MRS JUSTICE ASPLIN: I see.
G MR MOORE: So the channel, the navigable channel----
MR MOORE: -- is that which is running on the right hand side.
MRS JUSTICE ASPLIN: Oh, I see.
H MR MOORE: So there is the----

13
MRS JUSTICE ASPLIN: And then there is the sluice, which I ineptly described it as, on the left
hand side running the other side of the island.
MR MOORE: The bottom left is a weir.
A
MRS JUSTICE ASPLIN: Weir, okay.
MR MOORE: So it's built up to maintain the level.
MR MOORE: And the water flow just comes over it.
B MRS JUSTICE ASPLIN: Yes.
MR MOORE: Whereas on the main channel, you have got the V----
MR MOORE: -- which are gates that are stopping the water flow.
C MRS JUSTICE ASPLIN: I see.

MR MOORE: But they can be opened up to----
MRS JUSTICE ASPLIN: So, Mr Moore, we don't have any evidence, do we, about whether in
fact those barges have to have a licence or not?
MR MOORE: What we've argued between us in terms of the main navigable channel, it was in
D the skeleton argument for the Canal & River Trust that main navigable channel would be
the main part of the navigation extending from bank to bank but not including the side
tributaries and other parts. And that is simply to illustrate that you can moor on a bit that
isn't part of the main navigable channel even as described by the Canal & River Trust.
E MRS JUSTICE ASPLIN: But in relation to that, don't I need to know whether in fact they have
licences to moor there or not, in order to make good the point? I don't know whether they
do----
MR MOORE: I would say----
MRS JUSTICE ASPLIN: -- or they don't, is my problem.
F
MR MOORE: And I don't know whether they have licences or not.
MR MOORE: They probably do. The only point that I was seeking to make from that is that the
-- one of the arguments that was presented was that the side arms, for example----
G MRS JUSTICE ASPLIN: Yes.
MR MOORE: -- would not be liable to registration. I don't know whether they do get registered
or not. But that they wouldn't be because they would not be in the main navigable channel.
And a point was made that if boats were in the main part of the river, they could easily

14
access the main navigable channel, however interpreted, and that therefore would be a
foolishness.
A
MR MOORE: The idea that you could access an area where you have to be registered from
somewhere where you didn't, was an argument put forward as----
MR MOORE: -- against the reasonableness of interpreting----
B MRS JUSTICE ASPLIN: Yes.
MR MOORE: -- the legislation. So that was the only point I was wanting to make out of that.
MRS JUSTICE ASPLIN: Thank you. I am just going to pass that to Mr Stoner. Thank you very
much. If you would do that, thank you. (Same handed)
C MR MOORE: I mean, the same argument would of course apply to any of the marinas along the
rivers as well, because it is accepted that they don't have to be -- boats there don't have to be
registered until they come out into the river. The ease of access is the same. And the point
on -- a couple of those photos, as I said, were on the River Thames where you have got
boats moored in there----
D MRS JUSTICE ASPLIN: In the middle.
MR MOORE: -- in the middle. But the fact is that up until 2010 all the boats, whether they are
on the bank or in the middle of the river, did not have to be registered if they didn't actually
use the river. So the legislation -- although the British Waterways legislation was based in
E part on the Thames Conservancy Act 1966 and the Great Yarmouth Port and Haven Act, in
both of those Acts the registration requirement was imposed upon the whole of the river,
including all the tributaries and any natural parts and cut offs, etc. Anywhere the river --
water of the Thames flowed, for example, was to be liable to registration. However, in that
-- that was just -- you had to be registered to use the river, where as the '71 British
F
Waterways legislation is to keep or use. But it was just to address the reasonableness point.
On the Thames you could have your boat anywhere on the waterway and as long as it
stayed moored up, you did not have to be registered. And of course it's very easy for
someone to come along and nip off for a day trip and hope that there wasn't a patrol officer
G around to nab him. But it was very easy to do that if they were so inclined. So the idea that
Parliament would not consider it rational to impose a registration scheme where people
could do something like that is, sort of, belied by the evidence of older legislation.

15
The situation has changed now. The Environment Agency got a statutory instrument passed
in 2010 which is the Environment Agency Inland Waterways Order, and they added in
"keep" as well as "use", and thereafter got rather busy chasing up everybody who never
A
used to be registered, nor did they have to be registered. And that was another point that I
was going to make as pertinent in that the Environment Agency under the 2010 Order and
in part of their previous Acts had very much similar provisions as the British Waterways did
in their s.8 and in their river registration requirements. The 1971 Act does provide that if
B somebody fails to hold a current registration certificate for their boat, where they do need to
have one, then that is an offence punishable by 50 a day and 5 per day thereafter until the
situation is remedied. The Environment Agency have the same -- have a rough equivalent
to the s.8, which is a power to remove boats that are, you know, left within the waterway
C unlawfully, and they -- but theirs is more specific on being unregistered, where the 1983
British Waterways Act is more general. It's a follow-on from substandard and abandoned
ones. The----
MRS JUSTICE ASPLIN: Do you have -- do you want me to look at, and do I have, copies -- is it
relevant to look at the 2010 Order? I don't know. Do you want me to?
D MR MOORE: It will take up time. I believe I've got it in my authorities bundle.
MRS JUSTICE ASPLIN: Well, if you are relying on it, then we should look at it. (After a
pause) I am not sure that I can see it, though.
MR STONER: If I can assist, I know at least a part of it is behind tab 6 in bundle C.
E MRS JUSTICE ASPLIN: Ah ha, yes. Bundle C is an unhappy bundle. In any event, behind tab
6 in bundle C I do have part of the 2010 Order, but that is about insurance, equipment
standards. I am not sure that is the part that you need.
MR MOORE: No, it's 16----
MRS JUSTICE ASPLIN: Ah, 16, removal of unregistered vessels, yes.
F
MRS JUSTICE ASPLIN: I have got that now.
MR MOORE: So there is a clear difference between the s.8 of the British Waterways Act. This
is removal of unregistered vessels, whereas the British Waterways Act is removal of boats
G that have sunk, stranded or abandoned or which are left there without lawful authority. And
one of the points that I was going to be making was that the difference in the wording of the
legislation is material because if you are on the rivers, you are on a public right of
navigation, and the lawful authority to be on the water derives from that common law right.
H So if you wanted to -- so although a condition can be imposed upon your having the boat on

16
the water, the -- and there will be offences, and it will be unlawful for you to go speeding up
and down the river beyond a certain speed limit, or to tow skiers or to pollute the water or in
fact to be unregistered, that is an offence punishable by a specific sanction provided for in
A
the law. So although you are going to be -- you may well be acting unlawfully on the water,
you are not on the water without lawful authority. So when you have the 2010 Order under
the Environment Agency, that is specific in saying that: "If you are unregistered, as you are
required to be, then we are able to remove you".
B MRS JUSTICE ASPLIN: Right.
MR MOORE: And it is a distinction that I am suggesting is an important one.
MR MOORE: I mean, there was a case earlier this year with the Environment Agency against
C Alistair Trotman and others, and the Environment Agency had made the point that the
registration certificate was not a permission to be on the water, it was a statutory
requirement for boats that the lawful authority was in fact derived from the common law.
MRS JUSTICE ASPLIN: Do we have that authority in the bundles?
MR MOORE: I believe we do. I don't know whether you call it an authority, but it was, yes,
D definitely the skeleton argument made by the Environment Agency.
MR STONER: My Lady, this is where we go into bundle E for the first time.
MR STONER: There is a skeleton argument, but it is only a skeleton argument. All I can say, no
E doubt my own inadequate researches, but looking on Westlaw what I couldn't do was find a
copy of the actual decision.
MR STONER: Which is perhaps unsurprising. No disrespect, but it was in the County Court at
Kingston upon Thames, so therefore one wouldn't expect it to be reported.
F
MRS JUSTICE ASPLIN: No, it wouldn't have been reported.
MR MOORE: I can say in that respect that there was a decision and the decision was in favour of
the Environment Agency. The actual judgment itself, Mr Trotman has applied for a copy of
the judgment, but it's awaiting the judge's approval of it.
G MRS JUSTICE ASPLIN: Okay. So where do I find it in bundle E?
MR MOORE: That's number tab 2.
MRS JUSTICE ASPLIN: Ah ha, yes, it is. Okay. And the point is made at -- where should I be
looking?

17
MR MOORE: I am just looking it up. (After a pause) Its on p.8 of the bundle, p.6 of the
skeleton argument.
A
MR MOORE: And it's para.24, under "Payment of the registration fee".
MR MOORE: And they say:
"The payment of the licence fee is a legal requirement under the Environment Agency's
B Inland Waterways Order 2010 and does not confer a right to be on the River
Thames, such right being derived from the non-tidal public right of navigation
pursuant to s.79 of the Thames Conservancy Act 1932".
MRS JUSTICE ASPLIN: And by analogy, therefore, you are saying here that the right to be on
C the River Trent doesn't arise because you have or haven't got a licence, but it arises, you
say, from the common law?
MR MOORE: From the common law public right of navigation. So, we would say that the
Environment Agency argument is correct.
D MR MOORE: And therefore the application of s.8, the ability to remove vessels as it is worded
in the 1983 Act, is inapplicable where a boat does have lawful authority, and that is----
MRS JUSTICE ASPLIN: Hang on a second. I am just then looking at s.8 in the 1983 Act.
Relevant craft, subsection (1), means any vessel which has sunk, stranded or abandoned in
E any inland waterway etc, or which is left or moored there without lawful authority -- left or
moored without lawful authority. And then the power to remove etc. is over in subsection
8(3). And so what application would that reference to lawful authority have if every boat
inevitably, as a matter of common law, had the right to be on the river and the licensing was
a different matter which was subject to statute and was for certain purposes but didn't render
F
being on the river itself unlawful? How would s.8 function?
MR MOORE: Well, this is where we come into the question of the importance of differentiating
between a licence and a registration certificate.
G MR MOORE: Because what I've just said as far as the rivers does not apply to the artificial
canals.
MRS JUSTICE ASPLIN: Well, we're not worried with artificial canals.
MR MOORE: No, but we are worried about s.8----
H MRS JUSTICE ASPLIN: Yes.

18
MR MOORE: -- and its application.
MR MOORE: And any boat that is on one of the canals which has had all the rights of
A
navigation, whether public or private, removed----
MR MOORE: They were all abolished under the terms of the Transport Act of 1968. Therefore
the public right of navigation exists nowhere on the artificial canals. And since 1976 it has
B been a requirement under the byelaws for all vessels, anywhere they are on the canals, to
have the lawful authority to be on it.
MRS JUSTICE ASPLIN: Yes, thank you, that's helpful. But it says, doesn't it, in the definition
of "relevant craft" -- and that's important because it leads over into the remainder of s.8 of
C the 1983 Act. It says "in any inland waterway", so -- and I think inland waterway is defined
widely to include, let's just term it rivers as well as canals.
MR MOORE: It's the entire system.
MR MOORE: It's not just the waterways, it's all the buildings etc.----
D MRS JUSTICE ASPLIN: And it does say "any inland waterway", yes.
MR MOORE: Yes. That section is applying to the entire system.
MR MOORE: A licensed boat could be s.8'd if it was sunk, stranded or abandoned.
E MRS JUSTICE ASPLIN: Yes.
MR MOORE: So it would still apply. And that would apply also to a boat on the river. If a boat
sinks in a narrower portion of the river, it's an obligation on the Authority to move it out of
the way. And even if it's not in the way, if it's sunk and even if it's just because it's
unsightly, or whatever, it doesn't matter whether it has got a right to be there or not, they
F
have a right to remove it. In fact, I mean I would say that in slightly stronger terms:
especially if it was in the middle of the main navigable channel, they would have an
obligation to, and especially if there was a danger that was being presented by a boat in that
situation. Under s.18 of the 1995 Act, that was escalated into a greater offence that would
G qualify the boat for s.8. And they would be able to remove it summarily under s.5 of the --
subsection (5) of s.8. Subsection (5) always allowed them to move a boat without notice if
it was a danger.

19
MR MOORE: Under s.18 of 1995 Act, I mean, you became, as the owner, liable to a particular
level of fine, I think it's like 1,000 fine, or something, as well.
MRS JUSTICE ASPLIN: But you are making a distinction between what you say is a common
A
law right to be on the river and then circumstances in which you need a registration and/or a
certificate. You say they are not necessarily the same, and that is why you say being
without a certificate, you say, doesn't necessarily mean that you are unlawfully on the river,
and you can't use s.8 unless the boat was in some way unlawfully on the river -- is what you
B are saying. But if one goes back then to s.5 of the 1971 Act, one is looking at a section
which says:
"It shall not be lawful to keep [and then we can leave the next bits out] any pleasure
boat on a river waterway unless a certificate, in this Act referred to as a 'pleasure
C boat certificate' [etc.] is then in force in relation to it."

That's what it is saying. So that says -- that makes reference to use of the wording "lawful"
and therefore the flip side of that is "unlawful". So 5, s.5 of the 1971 Act appears, doesn't
it, to be saying it is not lawful to keep a boat on -- and of course we come back to which bit
of the river. Of course that's a different point. But it's not lawful to keep a boat on the river
D without a certificate, in round terms. Isn't that what it is saying? And which sort of----
MR MOORE: Yes.
MRS JUSTICE ASPLIN: -- undermines, doesn't it, or does it, what you are saying about there
being a distinction between lawfulness about being on the river and need for a certificate or
E otherwise. That's what I'm just trying to understand.
MR MOORE: Yes, I understand that, but it is also, you know, to use -- I mean, there is a right to
have the boat on the river but you will still be acting unlawfully----
MR MOORE: -- if you take it on a trip through the main navigable channel, the river waterway
F
being defined as the main navigable channel of the particular navigations, you know, that
are listed in Schedule 1, as amended in later Acts. So it is applying to both keeping and
using. But it's not -- the distinction is between whether it is on the river at all with a lawful
authority to actually be there, and the difference between a licence and a certificate is pretty
G well clarified by the Canal & River Trust themselves in responses to questions over the
nature of the two. It is possible, for example, to keep a boat in the middle of the main
navigable channel, but the '71 Act demands -- it is an imposition on the public right of
navigation as to whether you do keep or use it.

20
MRS JUSTICE ASPLIN: Yes. I think we now need to move on, don't we, to the issue about the
definition of the main navigable channel?
MR MOORE: Yes. The essential point that I wanted to make was the fact that the term of main
A
navigable channel is not one that came up for the first time in the 1971 Act. The first time
that it comes up in terms of British Waterways legislation was in the 1965 byelaws. And in
that particular instance they are describing the need for pleasure boats to give way to non-
pleasure boats by moving out of the main navigable channel. And the obvious
B understanding of the term in that particular case is that you have, whether it's a canal or a
river, a body of water, and there is going to be a deep channel in the centre or maybe to one
bend -- close to one bend or other as opposed to round the outside, in which commercial
boats with a much deeper draught can only be in. So if you are a pleasure boat with a light
C draught, you can navigate outside of the main navigable channel, but the deeper-draughted
boat cannot, so the byelaw says you've got to give way by moving out of the main navigable
channel.
MRS JUSTICE ASPLIN: And do we have these byelaws, and do they apply to the River Trent?
MR MOORE: They apply universally.
D MRS JUSTICE ASPLIN: Right.
MR MOORE: Well, not universally, I mean to the----
MRS JUSTICE ASPLIN: Yes, yes.
MR MOORE: -- whole of the Canal & River Trust inland waterways.
E MRS JUSTICE ASPLIN: The water systems.
MR STONER: Again, if it assists, they are in my, what I rather ingloriously called "legislation
and authorities bundle", behind tab number 8.
MRS JUSTICE ASPLIN: Thank you.
MR STONER: And cutting to it, I think the one Mr Moore is going to go to is byelaw 19. I
F
apologise they are not paginated within, but it's byelaw 19.
MRS JUSTICE ASPLIN: These are headed on the first page as "Canal Byelaws". Is that right?
MR STONER: Yes, that is absolutely right, and then the application in para.1 of the byelaws
says:
G "These Bye-laws shall apply to every canal or inland navigation ..."
And then it excepts certain rivers, but not the River Trent.
MRS JUSTICE ASPLIN: Okay. And is that right, Mr Moore? Are we going to 19? (After a
pause) It looks like it because it says -- whilst you are looking for it, I will just read 1 to
H you:

21
"A pleasure boat, when meeting, overtaking or being overtaken by a power-driven
vessel other than a pleasure boat shall as far as possible keep out of the main
navigable channel".
A
MR MOORE: That's correct, yes. There are also draft byelaws that have been -- that were drawn
up in 2010 but have never been promoted as yet, where main navigable channel is used in
similar ways. So, there is a consistency of use. And what we are saying is that this is a
perfectly natural understanding of the term, and the context of this is not something you
B would have to stop and think about. It is an ordinary use of the term, but there is -- you
have got a navigable channel, that you have got a main navigable channel, and a main
navigable channel will be the one that allows all craft of a size ordinarily to be -- that use it,
to be able to use that, whereas the shallower parts of the channel, which are still part of the
C navigable channel, but only lighter pleasure boats could use them.
MRS JUSTICE ASPLIN: And so the main navigable channel in any particular river would be -- I
don't know -- would be a channel with a draught of no less than X, whatever that was
termed, and that would be the way that you would define it, and then you would be able to
map it?
D MR MOORE: Yes. They----
MRS JUSTICE ASPLIN: But then wouldn't that depend on dredging as well?
MR MOORE: Well, of course, it would, but, I mean, perhaps that's where we come into the three
years on from this -- from the byelaws, and we get to the Transport Act of 1968. And
E throughout the earlier 60s, from 1962 when British Waterways were created, they had been
promoting private Acts to abolish both the public right of navigation and, along with that,
their obligation to maintain the particular waterways so that they could not have the
financial burden of being responsible for them. But when the Transport Act of 1968 was
being drawn up, as mentioned already, the waterways were divided up into three tranches,
F
three classes, and there was a whole class where they were classified as remainder
waterways, and British Waterways weren't going to have to have any obligation to maintain
at all. They would let them rot basically. But the remainder of the viable waterways, they
broke up into either commercial waterways or cruising waterways, and those were defined
G as -- comprised the main navigable channel and that they were to be kept (and this is where
the dredging comes into it) to the dimensions that would be sufficient for the class of vessel,
whether commercial or pleasure boat, that used it in the nine months prior to December
1967. So that's where the actual exactitude of it comes in. I mean, on most of the canals if
H you are cruising up on your pleasure boat and you see a deep-draughted working pair come

22
through, you know, you move across to the side and give way because they are not going to
be able to take anything different. But when it came to the point of having to list a specific
obligation to maintain a main navigable channel, then the requirement was this need to
A
accommodate a commercial vessel for the commercial waterways that were commonly
using that particular waterway in the nine months up to December 1967 and----
MRS JUSTICE ASPLIN: Should I be looking at the Transport Act 1968?
MR MOORE: We should do.
B MRS JUSTICE ASPLIN: It is not in Mr Stoner's big bundle.
MR STONER: It should be behind tab 7 in my bundle, my Lady.
MRS JUSTICE ASPLIN: Ah ha, so it is. I am sorry. I do him a disservice. (After a pause) Yes,
I have got s.104, which is what you were describing, Mr Moore, which is the division
C between commercial waterways and not, and cruising waterways. That is s.104(1). (After a
pause) And 105 is maintenance of waterways.
MR MOORE: Yes, the bit that I was referring to was in subsection (1) of 105. So, it is the duty
to maintain the waterway or any part of it in a suitable condition for use by any vessel of the
kind mentioned in that paragraph, unless the dimensions of the vessel i.e. its length, width,
D height of superstructure and draught (a) correspond to, or are less than, those of a vessel of
that kind which customarily used that waterway or part during the period of nine months
ending on 8th December 1967.
E MR MOORE: And the British Waterways Board had a list of what all those dimensions were,
and in the early 70s the government commissioned a report by a Mr Peter Fraenkel to
determine what would be necessary for the maintenance of the waterways and what the
financial burdens would be under various options. And in one part of that rather
monumental report, he goes into -- he addresses that list in light of this requirement to
F
maintain the main navigable channel according to these dimensions, and he broke the
waterways up into a whole lot of different lengths so even there would be different parts of
a canal or a river that would have a different usage. A commercial gravel part might, you
know, go from Cromwell to Gainsborough, for example - I don't know whether they do.
G But, you know, so that would be given a different requirement to the next section of the
part.
MRS JUSTICE ASPLIN: So you say there is nothing peculiar about therefore defining the main
navigable channel as the channel which is subject to the greatest draught, put it that way?

23
MR MOORE: Yes, it's both. It's both a width and depth of course because you have -- on each
of the different waterways you have got different widths as well as potential draughts of
boat. And you have also got the fact that you need -- they need to be able to pass each
A
other. So, it's not good enough just to have a narrow channel that's deep enough to carry
one boat, another one has got to pass. I mean, Mr Fraenkel in his report went into quite
some discussion as to how you could interpret this in different ways. His preferred option
to be able to maintain this obligation would have been to have taken the cross-sectional area
B and allow for hydrographic forces, so he wanted something like three times the width of the
vessel to allow for water movement between them and alongside them. The other extreme
that he said, you know, could potentially be used would be in a situation where the vessels
that used a commercial waterway only had a one-way use in terms of loading. In other
C words, they would pick up a full load of gravel from one spot, take it to where it needs to be
delivered, and then they would be coming back empty. So that was one of his propositions
that you could have a main navigable channel that had two different levels. So, you would
have the width that would enable them to pass each other, but you would have a deeper one
and a slighter shallower one.
D
And it is fair to say that there was some disagreement between Mr Fraenkel and the British
Waterways Board over the interpretation of main navigable channel, because at this point
he records that British Waterways insisted that main navigable channel was just for this
E channel that they would need to keep dredged to the relevant dimensions, and that certainly
did not extend to maintaining towpaths and the banks. He just noted that as something that
would require a court decision on, but basically the formula that he put forward has been
used by British Waterways from the very early 70s until the present day. So, what they do,
they've got a spreadsheet, and for every part of every canal and waterway they will list
F
about two times the Fraenkel width and what the Fraenkel depth would be with a few inches
underneath. And the main navigable channel of every bit of the waterway is noted in terms
of their obligation to those particular dimensions.
MRS JUSTICE ASPLIN: Right. And therefore, that's what you say is the definition for main
G navigable channel. It doesn't have to go from one bank to the other.
MR MOORE: Well, exactly, yes, because one of the difficulties in saying that a main navigable
channel extends from bank to bank is that if you were going to apply that to the requirement
to have this particular depth from bank to bank, on a lot of rivers, for example, I mean, that

24
just isn't possible. But even on a lot of the canals, the canals are built in with, like, a saucer-
shaped profile on the bed so they are naturally shallower on----
MRS JUSTICE ASPLIN: At the edges.
A
MR MOORE: At the edges, yes. And the only way that you can get away with having a full
depth right up to that would be to have artificial concrete or steel piling. And that of course
has been done on certain sections of canal. That would allow you. But of course, the cost
of dredging and maintaining a main navigable channel from bank to bank under this
B obligation would just be out of the question. It would just be so astronomical, and of course
not really necessary. Because if you have got a -- if you have got a commercial vessel on a
commercial waterway and, and the Trent is listed under the commercial waterways, then
you have got a vessel that takes on a load at a particular point on a wharf, which might
C extend into the main channel, but at all events it will be deep enough to take a laden craft,
and they will then take it to where it needs to be delivered, which will have the facilities for
taking a boat of that draught alongside the bank, unless they have got a conveyer system.
But they don't need to access -- they don't need to go close to the banks because they are
just going from A to B. So, there's no need for that sort of dredging requirement.
D MRS JUSTICE ASPLIN: Okay. But I think we changed direction very slightly then. Because
you were saying that, for example, on the Trent there may be -- and this is a mixture of
submission and evidence, but nevertheless, there may be vessels which pick up cargo,
gravel, whatever, from a jetty, and at the end of that jetty it is deep enough for a vessel of
E that kind, but you are saying that, nevertheless, at the end of that jetty isn't necessarily the
main navigable channel, are you? So, it is not just a matter of depth, but it is -- is what you
are saying that it is the channel which is dredged and is on the map that CRT have?
MR MOORE: The----
MRS JUSTICE ASPLIN: I'm just trying to----
F
MR MOORE: Yes. Where you have a commercial operation----
MR MOORE: -- they will build a wharf, they----
MRS JUSTICE ASPLIN: A wharf and it's got to be that the draught is deep enough to let the
G boat in.
MR MOORE: That's right, and that would be their responsibility.
MRS JUSTICE ASPLIN: Yes. But what I am saying is if the definition of -- I'm trying to get to
the bottom of what you are saying the definition of main navigable channel is, and if it has
H got something to do with depth, it can't -- but you are saying that when the boat comes up to

25
the particular wharf that has been -- the depth is inevitably enough, but that that is not part
of the main navigable channel, that it isn't to do with depth, what you are saying is it's to do
with responsibility for dredging, and that would be okay, the operator of this particular jetty
A
has, for his own reasons, had to make it deep enough by his jetty but that doesn't make it
main navigable channel, but main navigable channel is where it is deep enough and is
maintained at that depth by the CRT. Is that right or have I got that slightly wrong?
MR MOORE: I'm not sure that I see anything wrong with it, yes----
B MRS JUSTICE ASPLIN: But what I am trying to work is that if that is the case, then you are not
saying it is a matter of depth, you are saying it is a matter of responsibility for dredging. I
am just trying to weed out ----
MR MOORE: Yes, in terms----
C MRS JUSTICE ASPLIN: -- what actually is the factor that counts.

MR MOORE: In terms of the Transport Act '68, the main navigable channel is that which
conforms to the dimensions that it imposes.
MR MOORE: Which is width and depth.
D MRS JUSTICE ASPLIN: Right. So, in that case what happens when the owner of the jetty
decides to make the river immediately by his jetty deep enough so that he can operate it
commercially? Does that mean that that turns into part of the navigable channel because he
has done that, or not? That was what I was trying to get to.
E MR MOORE: Well, I would say not.
MRS JUSTICE ASPLIN: Not?
MR MOORE: Because in large part, especially on the rivers, the riparian owner will own to the
centre of the river, and the public right of navigation on a non-tidal river ordinarily wouldn't
even extend outside of the central channel anyway.
F
MRS JUSTICE ASPLIN: So if it is not depth because the riparian owner has scooped out the
mud so that in fact his jetty is operable, how do I come by the -- how do I reach the
conclusion about main navigable channel means? It doesn't mean depth, but depth is
important to it, and width is important to it. But does it mean then actually it is the channel,
G the roadway, which the CRT and the BWB before them were required to maintain?
MR MOORE: Well, I'm saying that under the terms of the legislation, it's what they are required
to maintain because----
MRS JUSTICE ASPLIN: So that's it?

26
MR MOORE: Because you could have a natural part of the river that no longer forms part of the
Trent navigation, and that could be wider and deeper than the Trent navigation itself. You
could have a marina, or an ex-gravel pit and it could be 30 feet, 100 feet deep. It doesn't
A
make it the main navigable channel. It doesn't in fact make it a navigable channel at all.
MRS JUSTICE ASPLIN: Yes. So, if you could just list for me then the criteria or the factors
which are relevant what I'm determining what is a main navigable channel and what isn't. It
would be depth----
B MR MOORE: And width.
MRS JUSTICE ASPLIN: And width. And it would be responsibility for maintenance of those
matters falling upon CRT.
MR MOORE: Yes.
C MRS JUSTICE ASPLIN: And it would be actually -- would it be anything else? Would it be
that it actually----
MR MOORE: There is more involved in that, but that's the only thing that would affect the
actual river itself. I mean, you can see here that considerations of height of superstructure,
for example, and length of boat. So they would come into play, but not much that the Canal
D & River Trust can do about it. So, for example, going through a bridge, there are what we
call pinch points, and then there are the locks. So if you are longer than a lock, you are not
going to get through it, unless you can go through on a high tide and open the gates both
ends. And at the same time if you have got a high superstructure and wheelhouse, you are
E either going to be able to take it down or you are not going to get under the bridge. But
those are all part of the requirement to maintain, you know, the waterway. But those
structures will already be a fixture and obviously no vessel could have been commonly
using it in the nine months up to December '67 if they were too big to be able to use it. So,
they have got to be able to maintain the bridges and the locks in the same condition that will
F
be able to take somebody with a superstructure that could have got under a bridge, or a
length that could have got through a lock, and that sort of thing. So there are a number of
these different factors, but the maintenance obligation so far as the actual waterway itself
specifically will only deal with the width and the depth.
G MRS JUSTICE ASPLIN: Right.
MR MOORE: And the Act also provides -- and I'm not quite sure, looking through this one,
whether it's in the particular schedules or not. (After a pause) Just speaking off the top of
my head for the moment, if I may, where -- the '68 Act said that where there was going to
H be any uncertainty as to where the channel lay, then it was -- it provided for British

27
Waterways Board to apply to the Secretary of State for further defining the waterway by
means of reference to a map.
A
MR MOORE: So if there was going to be any question about it, then that was a step they could
take. So they've got a -- so the main navigable channel is defined in terms of the dredging
component in the river by the width and depth that would accommodate the relevant craft to
be able to pass each other. And whatever was -- if ever other work was necessary in order
B to maintain the main navigable channel, you know, that would have to be done, but that's
what the channel was. But of course whereabouts it is in the river is not defined here. And
it is a fact that of course the main navigable channel, even if it's one that's been maintained
naturally by the scouring action of moving water, can move, and even on artificial canals,
C for example, that have been used by heavy draught commercial vessels, they will do a fair
bit of scouring out of -- and keeping their particular channel. And ordinarily it will be down
the centre, whether it's canal or river. But if you are going around curves, then they will
tend to go round the outside of it, and that's where it's going to be deeper. So they will be
closer to the bank there than on the other side. And in fact there is a fairly recent warning
D that British -- the Canal & River Trust have published, I think it's around the Horseferry
bridge, and they have got guidance for boaters using the River Ouse and they are saying that
they need to be careful because the main navigable channel of the River Ouse changes and
that will be because -- not because of anything they have done but that will be because it's --
E it will be due to the natural scour of the river. And where you have got curves, then the
river will scour out the deepest portion and it can actually move.
MR MOORE: So, yes, it is a movable feast, and where there is any uncertainty, then the ability is
there in the '68 Act for, you know, a Minister to approve: "Okay, here is where that width
F
and depth of channel is running in that particular waterway".
MRS JUSTICE ASPLIN: Thank you. I think we will stop for lunch now. I think we need to
finish covering what you want to say about main navigable channel, and perhaps go on to
other points, but we need to move quite quickly, I think----
G MR MOORE: Right.
MRS JUSTICE ASPLIN: -- at two o'clock.
MR MOORE: Okay. Thank you, my Lady.
(Adjourned for a short time)

28
MRS JUSTICE ASPLIN: Before we begin, either it is my imagination, or I need to thanks Mr
Elias because I think it is brighter in here. Perhaps it is all just a matter of perception.
Thank you. Mr Moore.
A
MR MOORE: Thank you, my Lady. Well, as far as the 1968 Act is concerned, I think we can
move on fairly briefly, other than to say that ever since that Act was passed and for nearly
50 years now, British Waterways Board and now the Canal & River Trust have consistently
argued strongly that main navigable channel refers only to what we have described, and
B does not include any liability for dredging outside of that central channel so as, for example,
to provide enough depth for boats that are moored to the banks. And the fact that this was
inconsistent with what has been argued in this case is something that was actually brought
to their attention by the Waterways Ombudsman in one of the cases -- well, in several of
C their cases. She had a couple where boaters had complained that British Waterways and the
Canal & River Trust were not maintaining enough depth underwater for their boats that
were moored to the bank. And the position that was taken was that their responsibility
applied to the main navigable channel only, and therefore they were not required to provide
enough depth of water nearer the bank. And there was another complaint that was made to
D her - this was in the 2010 to 2011 report - regarding the need to be registered if you never
moved off from this bankside mooring, and the response then was, as it is here, that the
main navigable channel extends from bank to bank. And Hillary Bainbridge, I think it was,
was the Waterways Ombudsman at the time, and she pointed out to them that that was
E directly contradictory to what they had been telling her when it came to the maintenance
obligations.
MRS JUSTICE ASPLIN: Do you want me to look at anything in relation to that?
MR MOORE: Yes, we should do that. (After a pause) Sorry, I've got my -- (After a pause) It is
in bundle E, tab 10, and it is p.59 of the bundle. It is case number 516, where it is headed:
F
"The power to require a licence for a boat moored at an end-of-garden mooring on a river
waterway". Again, we would emphasise that it a misuse of the term, that is a pleasure boat
certificate that is required if you are on the river waterway. But in para.1, halfway through:
"British Waterways accepted that it did not require a mooring permit but argued that in
G accordance with section 5 of the British Waterways Act 1971 he still required a
licence to keep the boat on a waterway. They accepted that section only applied to
the main navigable channel of the waterway but said that they interpreted main
navigable channel as referring to the whole width of the waterway."
H And in para.2 she says:

29
"I pointed out that that interpretation of main navigable channel was not the one British
Waterways had applied previously when dealing with complaints about lack of
maintenance under moorings. Then they had argued that as their maintenance
A
obligations under the Transport Act 1968 applied only to the main navigable
channel, they were not obliged to dredge under moorings, only the central part of the
waterway."
So it is just a clear example of the fact that for nearly half a century they have held the
B definition of main navigable channel to be that for which Mr Ravenscroft is pleading.
MRS JUSTICE ASPLIN: Now, this document, is in your divider -- in your file E, and these were
documents which were provided after the obligation to disclose? Is that right?
MR MOORE: Correct.
C MRS JUSTICE ASPLIN: And so what is the reason for that?

MR MOORE: These were only discovered long afterwards.
MRS JUSTICE ASPLIN: And how long has Mr Stoner had these documents?
MR MOORE: A couple of months, I think.
MRS JUSTICE ASPLIN: Right. Mr Stoner, what do you say to reliance upon this annual report,
D which I think would be a public document in any event.
MR STONER: It is. Most of these document are public documents and I don't want to make a
big issue about this bundle. The only tab where I will make an issue is at the end, if it is
referred to, tab 17. There is a reference to Parliamentary material. You have seen the point,
E and it is consistent. I can make submissions on the document. What we don't have is of
course the underlying dispute, and what I haven't done----
MRS JUSTICE ASPLIN: No, no. All you have got is what you have got.
MR STONER: All I have got is extracts. My main point was going to be -- with a number of the
documents is going to be relevance. That----
F
MRS JUSTICE ASPLIN: But in relation to the fact that disclosure in relation to that part of the
report which is a public document which came late - you are not taking any point?
MR STONER: I can't realistically take any, that I am greatly disadvantaged or anything like that,
and I don't.
G MRS JUSTICE ASPLIN: Thank you.
MR MOORE: Well, I appreciate that, Mr Stoner. And, my Lady, as Mr Stoner has said, most of
these materials are all----

30
MR MOORE: -- taken from websites and it is all public information. There is nothing private or
something that I have dug up. So basically the central argument that Mr Ravenscroft has in
this particular part of his claim is that if there is a common understanding of what the term
A
means, and if there is an understanding of the term that the defendant has used for nearly 50
years in a very specific sense, then the maxims of interpretation of statute should apply, that
a common understanding of the term should apply, not something that is strained to a
particular point, and that, you know, legislation should be interpreted consistently, and
B various other legal maxims that I think I have listed in the skeleton argument.
MR MOORE: What I would like to come on to is the actual 1971 Act that we are dealing with,
where we are using the exact same term, and this is - well, it is in my claimant's authorities
C that are not tabbed, because I wasn't able to get some tabs.
MRS JUSTICE ASPLIN: Well, shall we use----
MR MOORE: Mr Stoner----
MRS JUSTICE ASPLIN: -- Mr Stoner's bundle, where it is at tab 1, I think. Unless of course
you have got yours marked up, and I am sure you will want to go where yours is marked up.
D (After a pause)
MR MOORE: So it will come under Part II of the Act and s.5.
MRS JUSTICE ASPLIN: I am sorry, have I written down the wrong thing? You have taken me
to the British Waterways Act 1971 - is that right?
E MR MOORE: That's correct, yes.
MRS JUSTICE ASPLIN: Good. I am sorry, I have written down the Transport Act and confused
myself. Thank you.
MR MOORE: Which we have already----
F
MR MOORE: -- briefly looked at. But if we can actually go back to s.4.
MR MOORE: Which is where we are introduced to the whole of Part II, and section 4(1) says:
"This Part of the Act applies to the main navigable channel of each of the inland
G waterways specified in Schedule 1 to this Act which channel so specified is in this
Act referred to as a 'river waterway'."
So the first point that Mr Ravenscroft would be making is that we have got an identical term
that is used only three years after this term was used in the public Act of '68, and only six
H years after the use of the term in the 1965 byelaws, and that consistency would demand

31
exactly the same meaning to be applied to the same term. And it mentions the schedules of
the river waterways, and that we find a bit further on towards the end of this tab, under -- or
it's got 13 on the top, which would be the page number of the Act, although there isn't
A
numbering on the page itself. But it is about----
MRS JUSTICE ASPLIN: Yes, I have got it.
MR MOORE: You have got it. So this is Schedule 1.
MRS JUSTICE ASPLIN: And it is "The Trent navigation from the tail of Meadow Lane Lock,
B Nottingham, to Gainsborough Bridge".
MR MOORE: That's right, that's----
MRS JUSTICE ASPLIN: That is the relevant reference, is it?
MR MOORE: That's the relevant reference to Mr Ravenscroft's case. I mean, this list of river
C waterways was added to a few years later----

MR MOORE: -- in '74 and then one final -- further bit was added in the 1995 Act.
MRS JUSTICE ASPLIN: Well, we don't need that because Mr----
MR MOORE: No.
D MRS JUSTICE ASPLIN: The Farndon ferry is within that definition.
MR MOORE: It is within this definition here.
MRS JUSTICE ASPLIN: Good.
MR MOORE: And what I did want you to notice in particular is that we have two different ways
E of referring to these sections of waterway. We have the very first one is "The river Avon
from the tail of Hanham lock to the tail of the bottom lock at Bath".
MR MOORE: And you have got the River Severn also, but for the -- other than the Fossdyke
Navigation, the other ones are referring to the river navigation. So we have the River Soar,
F
the Stort and Ure and the Trent Navigation.
MR MOORE: And it is putting a distinction there between the actual course of the river itself
between a formalised channel from one point to another point that was the responsibility of
G particular companies. So it might be useful just to put that in context with the River Trent,
with the fact that there wasn't a Trent navigation company who were made responsible for
the maintenance of a navigable channel from point A to point B, and over the centuries in
fact there were various cuts that they made, home cut, lock cut, for example, and places like
H the cut that you saw in the photograph, where they have done away with curves in the river

32
that were originally there, and the navigation then proceeded in the artificial cut as -- before
and after it joined up with the natural part of the river. So the channel that they were
responsible for was the channel that ran through both natural and artificial cuts in a single
A
line rather than embracing side arms and tributaries or anything else. So that the Trent
navigation was, if you like, a single channel from A to B. And if you go to bundle C and
tab 7, we have an Act that has sort of come quite a way after all these works were done, and
this is the 1906 Trent Navigation Act where there were very specific delineations here as to
B what they were obliged to maintain as the Trent navigation. It is tab 7. The bit that I
wanted to highlight was on p.51 of the bundle, and it is s.5 of the Act and it says:
"The company shall dredge the River Trent between Cromwell weir and the Holme
Pierrepont lock, except the portion thereof lying between Crankley Point and
C Abraham weir known as the old river, so as to provide and maintain a channel of a
minimum depth of 5 feet and of a minimum width of 60 feet at the bottom and the
company shall at all times keep such channel clear and free from obstruction."
So what I believe that this Act is actually clarifying is that the Trent navigation as distinct
from the River Trent is a single channel. It is not including bits of the old river, and it is to
D a specific width and depth - in those days 60 feet by a width of -- a five foot depth. So in
describing the river waterway as the main navigable channel of the Trent Navigation from
A to B, we are necessarily referring to the main navigable channel of that single channel
that the Trent Navigation Company had been obliged to maintain. So there is a geographic
E limitation, and the geographic limitation is, as one would understand ordinarily, the channel
in that single channel of navigation that is the main one because it can accommodate the
heaviest of boats and allow them to pass one another laden. And of course in modern terms
from the '68 Act we have those laid down as very specific dimensions to be maintained.
And in fact it was in 2012, I think, that they last dredged the River Trent along this section,
F
and they actually dredged a channel of 11 metres by 3 metres, I think it was.
MRS JUSTICE ASPLIN: I don't have any evidence of that, though, do I?
MR MOORE: Yes.
MRS JUSTICE ASPLIN: I do? And the line it took?
G MR MOORE: I beg your pardon?
MRS JUSTICE ASPLIN: And the line it took that they dredged?
MR MOORE: I'll have to refresh my memory, having a look at it. (After a pause)

33
MR STONER: My Lady, I certainly accept there are some press cuttings about dredging. My
recollection is there is no evidence of the line that was taken, it is just this fact has occurred
which is not disputed. (After a pause)
A
MR MOORE: Yes, it is bundle C.
MR MOORE: Bundle C, tab 8.
B MR MOORE: On 52 of the bundle we have got the Canal & River Trust article regarding this
particular million pound project, which is just referring to the fact that the work is being
carried out by a specialist contractor, Land & Water, and it is focused on, in the first
paragraph -- focused on the 72 kilometre stretch of the river between Holme lock, south of
C Nottingham, and Marton near Gainsborough. And we have got, on p.53, a news article
regarding Land & Water and the project manager. And the interview quotes a Mr RV
Verber of Land & Water Services who carried out the dredging. And at the bottom
paragraph of the left hand column, he says:
"We have dredged only the channel, not the whole width of the river."
MR MOORE: And as far as the actual dimensions that they did this to, on p.55 of the bundle, I
had actually written in, having read the article, and I asked them for clarification as to what
width of channel they dredged and whether that was a specified dimension in the contract.
E So a Mr Paul Fox, who was the project manager, replied and said:
"The dredging works carried out on the River Trent navigation were completed between
June and November 2013. The channel dimensions dredged in order achieve our
navigational standards were Holme Lock to Cromwell Lock, 11 metres by 2.3
metres, and Cromwell Lock to Gainsborough 12 metres by 2.1 metres from normal
F
summer levels."
My Lady, I believe I have covered a lot of this question in rather more detail than in my
skeleton argument, and pleadings, and I don't want to take up time in this sort of -- what I
G would say is more of a precis of the general argument, and that fixing on the simplest, if
you like, of Mr Ravenscroft's arguments, that there is a natural meaning and ordinary
meaning for the term. There is the way the same term has been used in other legislation by
the defendant for 50 years. And that this is----
H MRS JUSTICE ASPLIN: And it can't mean bank to bank?

34
MR MOORE: And it can't, no.
MR MOORE: And that in that context they very specifically claim that it does not. So the only
A
differing interpretation is coming when we look at the 1971 Act.
MRS JUSTICE ASPLIN: But in the 1971 Act you still say that the same interpretation should be
applied?
MR MOORE: That's what we say, yes, unless there was some----
B MRS JUSTICE ASPLIN: And then if one goes back to the 1971 Act, what do you say about
"keep" in s.5?
MR MOORE: Well, what we would say, my Lady, is that since the passage of this Act, the rights
of the public were imposed upon as they were imposed upon in the byelaws that were
C existing at this time, to make it unlawful to do any of several things. That it's unlawful
specifically, in answer to your question -- it is unlawful to keep a boat within the main
navigable channel without having the registration certificate, the pleasure boat certificate as
it is described in here. So that is making a -- that is finessing a point as to the fact that it
could be -- well, it is unlawful to keep a boat in the main navigable channel, but that is
D something that is distinct from actually being on the waterway without lawful authority. I
mean, I'm not----
MRS JUSTICE ASPLIN: May I ask a question about this? So I am straying, but s.5 says it shall
not be lawful to keep a pleasure boat on a river waterway unless a certificate, a pleasure
E boat certificate, is obtained - that is the gist of it. But if river waterway means the main
navigable channel in the sense that you mean, which is the deepest channel, it may not be in
the centre but where it is, it is the thoroughfare - let's call it that - for commercial boats apart
from pleasure boats. Does that make sense, in the sense that you would never keep, would
you - I don't know - a boat in the main thoroughfare on the river? Or would you? Because
F
-- and that's why I ask you, because if one looks back at your photographs and we look at
the River Thames there are some moored or chained boats which appear to be relatively
central in the picture that you have given me, albeit that they are in the wake of the island
which is in the middle of the river in the picture. But is it sensible at all to talk in terms of
G keeping a boat in what would be the main thoroughfare, if you see what I mean, if main
navigable channel means what you say it means? Would "keep" ever have any life, any
purpose?
MR MOORE: Well, we would say yes, my Lady.
H MRS JUSTICE ASPLIN: Yes, because people do keep boats in the main thoroughfare?

35
MR MOORE: Yes.
MR MOORE: I mean, the photos that you see----
A
MR MOORE: -- although it's -- the ones you looked at are on the Thames, that is in the main
navigable channel of the Thames and boats are kept there. I mean, the reality of whether it
is practical or desirable to do so will very much depend upon the geographical and physical
B circumstances of how wide the river is, whether there is an island in the middle that you
have got to go around anyway. So, yes.
MR MOORE: There is also the fact that in particular in tidal sections, for example, as pertinent
C to this, the Trent navigation runs from Cromwell down to Gainsborough bridge, and that is
a fully tidal section, so the water level is raising and lowering all the time, which is why
they made a reference to, you know, what it was at a particular time. But it does mean that
along the sides you are quite possibly going to be grounding out. But for any boat really,
whether it is a pleasure boat or a commercial boat, if you don't want it sitting high and dry,
D you have got to be able to put a jetty out to where it is going to be always floating, so it will
be in the main navigable channel. Much like one of the photos there again on the Thames
where you have got a series of pontoons that are going right out close to the centre of the
river. But in particular on tidal waters where there is going to be a lot of time during the
E day when the actual foreshore was high and dry altogether and there is no water at all, then
for boats that need to have access at all times, then they need to be in the main navigable
channel.
MR MOORE: So we would say that, yes, it does make sense. It may not be the case for the
F
majority of it, but it is sensible to have put that in there, and of course the other advantage is
that, as far as the Canal & River Trust are concerned, and BW at the time -- is that you can't
have somebody saying: "Well, I'm not using the main navigable channel. I am just moored
up in it", which worked for the Environment Agency waters on the Thames but couldn't
G work in this case.
MR MOORE: If we have dealt enough with----

36
MR MOORE: -- that then, my Lady, and I'll just have to rely on what I have written out in the
skeleton argument and other pleadings.
A
The next section as far as Mr Ravenscroft was concerned was -- of considerable importance
was the issue of proportionality. And what he is relying on is the fact that under the Human
Rights Act and the various case law and commentaries that have dealt with this, it is
considered that it is not right for an Authority to impact more on the rights of the public
B than is necessary to the purpose. And what he is saying is that we have two options that
were available to the Canal & River Trust if he had been required to have a pleasure boat
certificate. So really it doesn't matter on this argument whether he or was not in the main
navigable channel, it was still the wrong thing to do, to use s.8 of the '83 Act instead of
C what he would describe as the more proportionate measures that were very specifically
designed to address this particular case. So if we go back to the 1971 Act, I mean, s.5(2)
says:
"Any person who contravenes subsection (1) of this section shall, for each offence, be
liable to a fine not exceeding twenty pounds and a daily fine of two pounds."
D I mean, it is right to say that that was later modified to 50 and 5. The fact that you have
got a daily fine being involved means that if somebody does not have the required
certificate and should do, then the actual requirement or obligation desirable for the Canal
& River Trust is for the boater to obtain that certificate. And if you take action on it and go
E to the court and it is found that he did require a certificate and he did not have one, then he
was going to be fined for every day that went by from summary conviction until he got that
certificate. So it was very specifically designed to ensure that he got the certificate if he
needed one, on the determination of the court. And it is in s.7, in para.2 -- subsection (2), it
says:
F
"If the charge payable in respect of a pleasure boat under subsection (1) of this section,
or any part of such charge, is not paid on the demand, the Board may recover the
same either as a debt in any court of competent jurisdiction or, if such charge or part
of a charge does not exceed twenty pounds, summarily as a civil debt from the
G master of such pleasure boat or from the applicant for a pleasure boat certificate ..."
So you have got a two-phased possibility, and this is emphasised more generally in the 1983
Act, s.5, which grants the British Waterways Board (Canal & River Trust now) the express
ability to take boaters to court for any debts owed as a result of legislation such as this. So
H there is -- and it is expressly said that that is without prejudice to any criminal action that

37
they might take. So there is actually a choice. They could just pursue the civil debt and that
would be the lowest impact on the boater. But if that was considered insufficient in terms
of their objectives of encouraging people to get their licences and pay for it, then they could
A
take -- they could prosecute for what is an offence, and if you prosecuted for the offence,
and the judge finds them guilty, then the boater is going to be made to pay what he has
owed. That is not just a monetary claim, he has got to get the certificate, with whatever that
entails, and we have got three prerequisites listed in the '95 Act as to what he has got to
B have when he applies for a certificate. He is going to get fined for the offence, he is
obviously going to be landed with costs of taking him to court, and he is going to have a
daily fine until he actually gets it right. So what we are saying is that it is very specifically
tailored to this specific offence of which Mr Ravenscroft is accused. And his argument
C would be that there is nothing insufficient there -- there is nothing there that is going to
impede or render null and void the objectives of the Canal & River Trust in the proper
management of the waterways. We have an offence. If he is guilty of the offence, then the
proper management would demand that you either go the soft route and just sue for the
debt, or you go for the hard line route and you prosecute for the offence, which will then get
D the situation to what it should be. And given that you have those options available to the
Canal & River Trust, to leapfrog those and go directly to the most extreme measure in their
arsenal is, by any measure, disproportionate. And it is not, in his view, any contrary
indication to say: "Oh, well, we didn't just go and seize your boat. We spent a year or two
E trying to correspond with you", and so on, because all of that only had reference to the
power to seize and remove the boat. There was never any suggestion that he was going to
be sued for what was owed on the licence, or prosecuted for the offence and made to get a
licence.
MRS JUSTICE ASPLIN: So when would you say that it is appropriate to use the powers in s.8?
F
MR MOORE: In the simplest terms, when all else fails.
MRS JUSTICE ASPLIN: So you would say you have to sue for the civil debt, succeed and then
have a judgment debt which is not satisfied, is not paid, the money isn't forthcoming. Then
you've got to decide that you'll prosecute and you've got to have a conviction and you've got
G the amount pegged then which is due, and you've got the daily amount running, and then
you've got to get into a situation in which that has not been paid for a particular length of
time, and then you can go to such lengths. Is that right?
MR MOORE: That is what I would say. And in fact -- I mean, I've made reference to the
H Environment Agency legislation with similar provisions, and ever since the 2010 Order

38
came into effect, and there were a lot of boats that had failed to register, the Environment
Agency have taken some almost, I think, 260 boats down this exact same route of
prosecuting them for the offence of not having their registration certificate. And I think it's
A
a powerful comparison to make, that they have seen it as an appropriate managerial process
to pursue. They also have, as we have already read, the power to remove boats that are
unregistered. But in fact on the Thames, for example, they have -- since the 2010 Order
came into effect, they haven't removed a single boat. They've prosecuted a lot of boats but
B they've never removed one. They've removed, I believe it's seven boats throughout the rest
of their Anglian waterways and the Medway waters. But they have seen it as
commensurate with obligations for good maintenance and governance of the waterways that
they are responsible for, to prosecute for the offence instead of -- in the majority of the
C cases, instead of removing the boat. And of course, I mean, if you cannot find out who on
earth the boat owner is, and, you know, there's no response to a summons to court of course,
then what the Environment Agency would do and what Canal & River Trust can do is to
consider that the boat has been abandoned, and in that case it really doesn't -- it really
doesn't matter what other factors in, because if it's sunk, stranded or abandoned, s.8 cuts in.
D And I think the whole point of this particular power is that the Authority is not to be
hamstrung in getting rid of boats that shouldn't be where they are, just because they can't
locate the person. But wherever you can locate the person and you've got a name and
address for service, then what we are saying is that the proportionate measure, if he is
E required to have a pleasure boat certificate, is to do exactly what the Environment Agency,
as the second largest navigation authority in the country, do on a regular and consistent
basis. And we say that is the example that should be followed, and therefore any leapfrog
to what they have acknowledged themselves for decades as being a draconian measure that
isn't really appropriate for mooring offences, for example, and it's the measure of last resort,
F
Mr Ravenscroft's position is it's got to be disproportionate, because you had other options.
We have got something very specifically tailored to the offence of which he is accused, and
they are just ignoring it. I could say the same thing in various different ways, but again,
I've----
G MRS JUSTICE ASPLIN: Yes.
MR MOORE: -- hopefully laid it out in the skeleton argument and with references to the various
authorities on the subject matter.

39
MR MOORE: So the final thing -- aspect to this case, and it's one that's very much -- speaks to
Mr Ravenscroft's heart, is the whole issue of use as a lien on debt. His position is that
whether or not he was required to have a pleasure boat certificate, regardless of whether the
A
use of this particular power is proportionate or not, it is absolutely not right and against the
1983 Act, s.8 anyway to hold the boat, having seized it under this power, as a lien on debt
on the licence fees. So his position is when they took the boat, then they should have given
it back to him so long as he paid the removal and storage costs. And the Act they shall
B return it. If within six weeks an owner turns up and says: "Oi, that's my boat", they've got
to -- they shall give it back to him as long as he pays the costs of their having removed it.
Now, I mean, it's accepted that the Canal & River Trust now admit that that is the case and
their argument in this respect is that it was an inadvertent mistake. What Mr Ravenscroft
C points to is the fact that this has been a published policy of BW from 2008 on their website
called "Licence it or lose it". Even before the Canal & River Trust officially took over, they
reviewed the website as to changing it to apply to them. And from that point on until this
case was filed, they were still saying to the public that: "If we take your boat, we have first
dibs on it to cover licence fees as well as removal and storage costs". So it's not
D inadvertent, we are saying that it's been a publicly published policy up until the time one
particular boater wrote in and asked how, having read the pleadings in this case that
admitted that it could not be used there -- why they are still having it on the website that
they could. And after a couple of months, they wrote to him and said: "Well, we have
E altered the wording now". So they have missed that out. But it took -- it did take Mr
Ravenscroft to bring this case to force that issue.
MRS JUSTICE ASPLIN: In relation to the fees, he did pay the fees as well as the removal and
the storage costs? That is right, isn't it?
MR MOORE: He certainly did. I mean----
F
MRS JUSTICE ASPLIN: But is there a question about the period of the ownership of the boat
and the fees, and whether they dovetail with each other? Because he didn't own the boat for
the entirety of the period, did he?
MR MOORE: That's correct, yes. I can't think offhand what the time period was, but there was
G about -- there was two or three years when it was in the ownership of somebody else. I
mean----
MRS JUSTICE ASPLIN: But the amount that he paid covers that period?
MR MOORE: Oh, it did, yes. In fact it covered a period in advance of the time of his getting it
H back. And they wouldn't put it back in the water even though he had paid for it to be in the

40
water. The fees for the -- what they are calling licence fees, but for the pleasure boat
certificate, covered the full four years from when he had last registered in order to sell it, up
until two months later than the return. So he could have legitimately, he would say, have
A
put the boat back in the water, but they refused to allow him -- return it if he was going to
put that boat in the water. They refused to return it to the water unless he then went through
a whole lot of palaver. So he's paid -- he was made to pay for something he was not
allowed to utilise, by card as well. But the main -- in the whole global context of his beef,
B that is of -- you know, that is a minor element. It is one, but his crucial cry from the heart is
that authorities should not be allowed to seize and hold people's possessions and force them
-- use that to force them to pay things, whether or not the sums were owed. That's the sort
of self-help that nobody is allowed to take upon themselves. And since he published the --
C or somebody, a friend of his, had published the video of the confrontation at Newark
Marina while it was in the course of being seized, he was contacted by somebody who
pointed him to the fact that this sort of thing is covered by the provisions of the
Marlborough Act of 1267, where nobody is to be permitted to take goods either as
punishment or as distress, without the order of a court. And the fact that the Canal & River
D Trust are saying: "Well, we seized the boat because we were allowed to under s.8" doesn't
give them an authority to use that for a purpose it was not intended to be used for, and as----
MRS JUSTICE ASPLIN: Where does that get you then, Mr Moore, in the sense that they say
that it was seized under s.8 and then at that stage the sums that were being claimed were the
E removal and storage sums, and that thereafter the figures in relation to the fees for
certificates got mixed up in the whole, and those sums had been paid, all of them, and you
are just -- you are saying therefore even if there was power to use s.8 and therefore also to
exact the removal and storage charges, there wasn't a power in s.8 to use the s.8 power to
obtain the fees. But are you saying that therefore the fees -- the element of the amount that
F
had been paid which goes to fees is in any event invalid and void?
MR MOORE: Well, that's Mr Ravenscroft's primary case, that he never owed it in the first place,
which, even on the face of the case, means it is a disputed sum.
MRS JUSTICE ASPLIN: But if in fact the boat was moored in the main navigable channel and
G therefore a certificate ought to have been obtained and was not obtained, and looking away
from the issue about the periods of time that may be a matter of query or doubt, for this
purpose only, if those -- if a certificate was required and was not obtained, and fees were
due, and they have now been paid, are you saying that they shouldn't have been paid at all
H and are recoverable because of the letters which were written by CRT which included those

41
figures for those fees and appeared to be saying -- and were saying: "You can't have the
boat back until you have paid the total which includes these fees"? Are you saying that
even if a certificate was required to be had, because you say there's the Statute of
A
Marlborough issue, those sums were improperly recovered and should be repaid?
MR MOORE: I don't believe he is saying that they should be specifically repaid if it was found
against him argument that they were due.
B MR MOORE: I would have to double check but I don't think----
MRS JUSTICE ASPLIN: So that's why I'm really asking -- that's why I'm really asking where
the issue gets us, because if in fact it is either that the fees were due or they weren't due -- if
they weren't due, they shouldn't have been paid. If they were due, then I'm just trying to get
C to the bottom of whether you are saying nevertheless, because of the improper conduct in
relation to trying to exact those fees -- that, nevertheless, they shouldn't be paid.
MR MOORE: I think what he would say was that they should be punished as provided for in the
Marlborough Act for the improper use of the power that they applied and that he should be
compensated for the fact that they acted in what is a criminal way in using their possession
D to enforce payment from him.
MR MOORE: Whether or not -- whether or not he owed them money, it was a criminal offence
to have done what they did, and his particular emphasis is on the improper use of powers to
E force payments of sums without going through the courts. And the other thing that he
wanted to emphasise was the fact that while they were having this confrontation at the
marina, his father confronted Mr Garner and said: "Well, you know, tell me what the four
years of fees are and I'll pull it out of my pocket and pay it", and Mr Garner said: "Well, it's
not just the four years licence fees, it's the truck and -- etc, etc, etc, and it's a ball park figure
F
of eight to nine grand. We're trying to sort of get a fixed sum". So it wasn't just later letters
that said, you know, you've got to pay the licence fees. That was from the start. And
throughout the rather painful video Mr Ravenscroft is -- his most frequent demand is:
"Where's the paperwork?", and that is a core element of his beef with the Authority, that
G you are coming along without any paperwork whatsoever, and they did not have any
paperwork, and the police officer at the time wasn't worried about there being no
paperwork, it was simply because they were the Authority that he took their word for it that
whatever they did was right.

42
MRS JUSTICE ASPLIN: Yes. I've just looked back at your amended particulars of claim and
I'm not sure that I see -- there's reference to compensation. I'm looking, first of all, at the
claim form which says:
A
"I claim a variety of declaratory relief as detailed in the particulars of claim, plus the
refund of the sums I was forced to pay and compensation".
And then I am looking at p.5 of the bundle, 3 of the pleading, at the bottom, damages.
Paragraph 17:
B "On seizure of my boat, I lost an agreed sale and I have been unable to find a buyer
since".
So far as I'm aware, there's no evidence in relation to that or in relation to loss as a result
anywhere in the papers, is there?
C MR MOORE: I don't believe so.

MRS JUSTICE ASPLIN: No. Okay.
MR MOORE: I mean, in filling out the claim it was -- as you just read, he was thinking it more
appropriate to put it in those words, "such compensation as the court sees fit", dependent
upon the findings that you made.
MR MOORE: So that if you were to find that he was right, and that the Canal & River Trust
should not have done what they did, and compensation should be awarded, then that is
something that he could work out and quantify and demonstrate in the same way that a costs
E order----
MRS JUSTICE ASPLIN: But he hasn't now?
MR MOORE: He hasn't now, no.
MRS JUSTICE ASPLIN: Okay. And then para.18:
"I have been compelled to pay four years of pleasure boat registration totalling
F
1,685.20 even for years when I did not own the boat [etc]."
So that's the fees. 19:
"I have been compelled to pay 6,490.80, and that is in relation to removal and storage
when there was no reason to seize my boat."
G And those are the other headings. And then later at para.31:
"If the court agrees with my principal claim then, in addition to the declaratory relief, I
will also ask for a full refund of the monies illegally extracted from me being the
8,000-odd, which is the total of what was paid, and such compensation as it
H considers just and appropriate."

43
And in 32 there's reference to:
"If the court finds against me on the principal claim, but agrees that taking my boat as a
lien on the debt was unlawful, then, in addition to the declaration to that effect, I ask
A
for a refund of the removal and storage costs and subsequent costs plus such
compensation as the court considers just and appropriate."
So it seems there that at 31 the full sum is being sought to be refunded, and that's on the
basis of course, apart from anything else, that it is said that the boat was not moored in the
B main navigable channel, and at 32 it's being said if the court finds against Mr Ravenscroft in
that regard, but agrees that the boat was taken as a lien and that was unlawful, then, in
addition to the declaration, he also seeks a refund of the removal and storage costs, rather
than the fees. So there the point you are making is even if it was in the navigable channel,
C in the main navigable channel, the seizure shouldn't have been used as a lien for the
certification fees, and therefore you want the removal and storage costs back, but not -- you
are not seeking the fees under that paragraph. That's right, isn't it?
MR MOORE: That is right, in terms of being specific.
D MR MOORE: But, I mean, it was -- I think as it was there that, you know, plus compensation.
So it's not asking for the fees back. If it was found that he did owe the money----
MR MOORE: -- he is not saying: "Well, you should pay me that back". He is saying he should
E be compensated by whatever the court saw as appropriate.
MRS JUSTICE ASPLIN: Quite. I see.
MR MOORE: So, I mean, he would accept that if he was in the main navigable channel, then he
was required to hold a certificate, and for at least part of that time he therefore owed money.
So he's not----
F
MR MOORE: -- asking for that money to be specified, but he does feel that he is entitled to
compensation.
MRS JUSTICE ASPLIN: I understand.
G MR MOORE: And, I might add, using things like the Statute of Marlborough, he feels that Canal
& River Trust should be penalised regardless, as a sort of tap on the shoulder that they need
to exercise their powers appropriately and for the purpose they were designed for.
H MR MOORE: It's a big issue with him in particular.

44
MRS JUSTICE ASPLIN: Yes, I can quite understand.
MR MOORE: So, my Lady, I'm conscious that I've probably done a very sketchy presentation
and there's a lot of things I will have missed out, but I am confident that it's in the
A
paperwork anyway. So unless you have got some further questions?
MRS JUSTICE ASPLIN: No. I am very happy and very grateful. Thank you very much. And
thank you for putting up with my questions too.
MR MOORE: Thank you, my Lady.
B MRS JUSTICE ASPLIN: Are we going to move on to the evidence?
MR STONER: Yes. I was going to say, my Lady -- I was going to propose in any event that I
shouldn't open because I'm going to be closing in the context of this case relatively soon, so
I might as well keep my powder until then and do it all in one go.
C MRS JUSTICE ASPLIN: Mr Stoner, I am not in any way trying to prevent you from doing that.
MR STONER: No, no.
MRS JUSTICE ASPLIN: But I just think that in the circumstances----
MR STONER: It's got to be the sensible course in the circumstances, absolutely. The only thing
I was going to add, and just so Mr Moore is aware, that I wonder if it might be helpful for
D my Lady before going into the specifics of the legislation, just to give a general overview of
my client's regulatory function before delving into the specifics of this case, so that there is
that overall context, and that would involve going into a couple or a few statutory
provisions we haven't been to. But I will do that as I start my closing -- or my submissions.
E MRS JUSTICE ASPLIN: Thank you. So I think, Mr Moore, that what we should do next is, to
the extent that witnesses are going to be called, this is the moment. So are you going to go
start with Mr Ravenscroft?
MR MOORE: Crumbs. To be perfectly honest, I hadn't even thought about cross-examining Mr
Ravenscroft.
F
MRS JUSTICE ASPLIN: No, no, no, you don't have to do that. You have to call him so that Mr
Stoner can. Sorry if I didn't make that clear.
MR STONER: I'll do that, don't worry.
MR MOORE: Okay. Well, then, yes----
G MRS JUSTICE ASPLIN: It is his job to do that.
MR MOORE: If it's my job, then I would formally ask Mr Ravenscroft to step up to the stand.
3.01. p.m.

45
(Evidence given)
(For the evidence of Mr Garner, see separate transcript)
(The court adjourned)
A
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complete record of the proceedings or part thereof.
Transcribed by Opus 2 International Ltd.

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Ravenscroft V CaRT. Main Trial, 1st Day Proceedings

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IN THE HIGH COURT OF JUSTICE No. HC-2015-001906

MRS JUSTICE ASPLIN

LEIGH RAVENSCROFT Claimant

CANAL & RIVER TRUST Defendant

MR C. STONER QC (instructed by Shoosmiths LLP) appeared on behalf of the Defendant.

(For evidence of Mr Stuart Garner, see separate transcript)

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D MRS JUSTICE ASPLIN: Mr Moore.

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MRS JUSTICE ASPLIN: Mr Stoner?

H MRS JUSTICE ASPLIN: Right.

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C MRS JUSTICE ASPLIN: But your idea in relation to timing is what?

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C MR MOORE: At the bottom of the bend, yes.

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H MR MOORE: So there is the----

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C MRS JUSTICE ASPLIN: I see.

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H MRS JUSTICE ASPLIN: Yes.

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C boat certificate' [etc.] is then in force in relation to it."

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C MRS JUSTICE ASPLIN: -- what actually is the factor that counts.

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H And in para.2 she says:

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C MRS JUSTICE ASPLIN: And so what is the reason for that?

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C waterways was added to a few years later----

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H MRS JUSTICE ASPLIN: And it can't mean bank to bank?

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