IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION [2012] EWHC 1175 (Ch)

No. HC07C02340

The Rolls Building Thursday, 16th February 2012

Before: MR. JUSTICE HILDYARD

BETWEEN: NIGEL PETER MOORE - and BRITISH WATERWAYS BOARD _________ Defendant Claimant

Transcribed by BEVERLEY F. NUNNERY & CO Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627 Fax: 020 7831 7737 Email: info@beverleynunnery.com _________

THE CLAIMANT appeared in person. MR. C. STONER QC (instructed by Shoosmiths) appeared on behalf of the Defendant. _________

JUDGMENT
(Approved)
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MR. JUSTICE HILDYARD: 1. In this ex tempore supplemental judgment the question which I now have to consider, as foreshadowed in my main judgment, is whether my provisional view as there expressed, that the claimants human rights under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) may have been infringed and that it may be that the steps taken by BWB and the relief they seek would not be proportionate, should be confirmed. As I hope I have indicated, the view I expressed in my main judgment was only provisional; it signified that I was sufficiently concerned about the process adopted and its proportionality to a further hearing on the issue; and I have, I hope, listened with care and with an open mind to further argument, having indicated that I felt there was some case to answer. As to that I have now had the benefit of written and then oral submissions from both the claimant and Mr. Stoner QC. As at the main hearing, each has been moderate and very helpful to me, and I am grateful to them both. I am conscious that the main issue which I am now considering, the issue of human rights in the context of an individuals home, and thus Article 8 of the Convention, is an issue of (in one sense) surprising complexity, and one which has occasioned very considerable attention on the part of the Supreme Court in recent months. I have in mind in particular the decisions in Mayor and Burgesses of the London Borough of Hounslow v Powell and Manchester City Council v Pinnock where, in the one case, a seven-judge Supreme Court, and in the other case a nine-judge Supreme Court had to give consideration to the interface between the human rights legislation and the property rights in each of those cases of Local Authorities with respect to housing and their obligations to manage public housing in a sensible way. These decisions followed a stream of cases in the European Court of Human Rights. It seems to me that in the context of human rights - and I leave aside for the present legitimate expectations which I have said have been infringed - the starting point is to consider what is the nature of the human right which is said to be infringed. In this case, it is the right to respect for ones home which is enshrined in Article 8 of the Convention. Obviously anything which would not only intrude upon, but deprive, a person of his home is capable of being an infringement of that right if either not lawful or if exercised in a disproportionate way or otherwise improperly: as noted by the European Court of Human Rights in McMann v United Kingdom (2008) 47 EHRR 40,

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the loss of ones home is the most extreme form of interference with the right for respect for the home. (I should perhaps record that BWB did not seek to argue that the vessel on which Mr Moore was residing (first Platypus and then Gilgie should be treated as his home for these purposes.) 6. It seems to me that the right for respect for a persons home includes now, at least, both the right to a proper procedural process leading up to the application or leading up to the steps taken to deprive the person concerned of his home in exercise of management or property rights and also the right to have the proportionality of a decision by a public authority reviewed by a competent court; and this is so even if his right of occupation under domestic law has come to an end: see ibid. and Manchester City Council v Pinnock [2010] UKSC 45 at para. 45. The question for the court - and I now read from Mayor and Burgesses of the London Borough of Hounslow v Powell [2011] UKSC 8 at para.39 ... will always be whether the making of an order would be lawful and proportionate. I will return to the question of what the exercise of reviewing proportionality actually involves in due course: but for the present suffice it to say that the standard applicable in the context of judicial review is not adequate: in the context of housing, the question of proportionality is not whether the eviction was so unreasonable that it cannot be supported but whether the eviction is a proportionate means of achieving a legitimate aim (see Manchester City Council v Pinnock [2010] UKSC 45 at para. 52). The next issue I have had to consider is whether in this case there was, and if so what was, the relevant infringement of the human right as so defined, whether in terms of the process or the proportionality of the result sought. In this case, as I have sought to explain in my main judgment, the process adopted by BWB was not compliant with its own internal rules, nor with proper respect for the special care and consideration required before depriving a person of his home. It has not seemed to me that there was any sufficient reason for these infringements, which resulted in inadequate initial notice and did not initially provide for court review. I have been unsettled by the way in which BWB implemented the process of moving Mr. Moore on or, more particularly, the vessel Gilgie on which he lives. But as events have unravelled, the claimant has had a very considerable time both in terms of the notice, in the sense of knowing that this might happen, and in the sense of having a court review: this court has taken many days in

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considering both the legality and the propriety of what BWB has done. The infringement of BWBs own guidelines and of Mr Moores legitimate expectations has ultimately in effect been mitigated by these events. The process is intended to secure, first, proper notice and, second, court review. In this case although the process was not adhered to at the beginning, and although I have had concerns as to the reasoning which obtained - and I should add that - the fact is, as I have said, as events unrolled Mr. Moore has had a great period during which he has known he is at risk of Gilgie being moved on or removed, and he has had the benefit of a considered review by the court. Thus, despite the initial flaws, the objectives of the process have been achieved in a different way. 11. However, it seems to me that it was not only in respect of these procedural flaws that BWBs actions merit review. BWBs initial decision to serve Section 8(2) notices is questionable not only in terms of the process but also, and substantively, because BWB appears to have proceeded upon the footing that the vessel in question had been moored for four months, whereas it is now accepted that in fact it had only been moored for one month; This was not, furthermore, the only flaw in BWBs approach. I was also concerned by BWBs then appreciation as to the effect of Section 105. In such circumstances, as it seems to me, I do not think that I am obliged to accept without question that BWB had good and sufficient reasons to do what they did. It is justified and necessary for me to go on to consider expressly the question of proportionality. In other words, in this case the flaw in the initial decision does entitle me to take stock as to the reasoning behind what has been done set against its effect. To use the simile which was perhaps excessively used by me in the course of argument, I think it is open to me to open the gate and review the proportionality of what has been done and its results. Looking first at the public authoritys justification for doing as it has done, in many cases there will in effect be a presumption of proportionality. As made clear in cases such as Powell and Pinnock, it is unusual for Local Authorities to be required to justify their decision because it is ordinarily to be assumed that everything has been done properly and for legitimate management reasons. The flaws in BWBs approach tend to militate against that presumption in this case. Further, BWB has been somewhat reticent in its explanation as to why the vessel in question had to be moved on with such haste. I have been troubled by this. Even so, it does not seem to me that there is sufficient warrant for me to second-guess BWBs conclusion that these

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vessels, being unlawfully moored, it should, in the exercise of its management of the GUC, move or remove them in accordance with Section 8; nor that I should peer into that reasoning beyond being satisfied that it is not, obviously misplaced. So although I have thought it appropriate to look at the proportionality, I do not intend to review further a legitimate management decision, particularly having regard to my earlier conclusion that BWB had no improper purpose in exercising its powers, even if it was mistaken as to their true basis. 15. I turn to the other side of the coin to consider the effect on Mr Moore and whether it is unfair and disproportionate. Both Powell and Pinnock do emphasize, clearly, that the real issue in the proportionality exercise is ordinarily not as to the decision by the holder of the relevant power, but the personal circumstances of the person against whom the right is intended to be exercised. It is accepted that there may be cases where so difficult are the consequences for a person in terms of his personal circumstances that the exercise of the right should be subjected to some fetter or even for it to be given no effect at all. In that context Mr. Moore advanced two main considerations as to his personal circumstances. The first was lest the removal of Gilgie might also undermine his claims in another context for rights in right of his occupation of the bank. The second was that the removal of Gilgie would take him away from the place where he has, for a long while, in effect been employed in looking after vessels committed to his care. Those seem to me to be relevant factors, and it is right to set them in the context what appears to me the undue haste with which BWB proceeded initially, and the flaws to which I have referred. The question then is what should be the proper response of the Court in striking a balance between the assumed needs of BWB and the personal effect on Mr Moore of what they have done. It is a matter of judgment: and I have concluded that the factors relied on by Mr Moore are not such as would in my judgment justify me in depriving the notices of all effect. They might be a ground for giving further time; but in that context and as I understand, it and partly because it is linked in with the issue of legitimate expectation, BWB has indicated through its counsel that it is perfectly prepared to allow a reasonable time, and the time mentioned was up to three months, to allow a process of disengagement from a place where Mr. Moore has been for some time, and the relocation of Gilgie at its home mooring as stated in its applications for licences to which I have referred in the main judgment.

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Accordingly I have concluded that that there has been an infringement of Mr. Moores human rights in a procedural sense, but that the result has not been substantively disproportionate and I should not deprive the Section 8 notices of effect under the human rights legislation; Any concern in this regard (and one would always have concerns in such a context) can suitably be addressed by an appropriate declaration, if that is considered right (and I will hear further argument on that), and by allowing, with the consent and cooperation of BWB, a period of time before any restraining order or other obligation kicks into effect. Although separate, it seems to me that the same must necessarily go for the breach of legitimate expectations - that also being a procedural breach. Again this may appropriately be reflected in the form of order. L A T E R:

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After these rather protracted proceedings there falls to be considered the issue of costs. I have not found this an easy decision to make with regard to apportionment of costs in this matter. It is a source of regret that so much of the parties time and so much of the courts resources should have had to be deployed in trying to establish the rights and wrongs of both in the context of really rather byzantine legislation. As I have indicated in my main judgment, it is difficult not to share the hope that the legislation will be brought into a form of order which is more intelligible to all. It does not seem to me to be right that the boating public should be faced with this morass of legislation going back to 1793 if it is to ascertain its rights and not be left to rely on the say-so of the British Waterways Board. With that context, of course my route is prescribed by the CPR and I must faithfully follow, whilst never losing the wood for the trees, the procedure or the approach which is suggested by CPR 44.3. In that regard, dealing first with the question of success, I have to say for my part that I find it in the round not easy to state the percentage success that each party can be said to have enjoyed in terms of the various issues raised on the construction of the legislation and the variety of arguments deployed. Ultimately of course BWB has, according to my view of things, established that Mr. Moore and Gilgie have not the right to be moored permanently, which is the right that they asserted in terms of being inviolate from any exercise of power on the part of BWB. On the other hand, the very basis for BWBs justification for its Section 8(2) notices was that the vessel was unlicensed, and it is difficult for me to tell whether, had they appreciated what I found to be the position under the context of legislation that no such licence was required in the case

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of Gilgie, they would have served Section 8(2) notices at all. I have also explained why I have considered that BWB did not act in accordance with its own rules and infringed Mr Moores legitimate expectations, and to that extent his Article 8 rights. The result has been mixed for both parties. In any event, for my part I think measuring success in percentage terms would be a false process, though I accept the point that ultimately BWB have established a right to do what they wished to do, which is to remove or move Gilgie for the reasons I have stated. 23. With that rough estimate of the difficulty of establishing success in binary terms, but BWB being marginally ahead on the various arguments and ultimately successful in terms of the result, I have to consider the question of conduct. In this case, and for the reasons which I have stated in my main judgment, I have had reservations as to the way that BWB proceeded. I will not repeat them now, but bring to mind especially what I found to be a breach of an undertaking given to the court in the middle of the proceedings, and also a rather strident letter before proceedings, which asserted that Section 105 of the 1968 Act removed rights under the 1793 Act, which it is now agreed was wrong. In so far as the interior processes of BWB I also call to mind the unsettling email by one of its internal employees that if it was up to her she would simply snatch the vessel. All these were matters which caused me some considerable concern. So far as conduct on the other side is concerned, as I have noted in my main judgment also, I have been worried that Mr. Moore, although he plainly has a very real sense of mission and the need to protect his and other boaters rights, has perhaps not fully taken into account that these processes are extremely expensive, and that expense has ultimately to be born by someone. It is not a legitimate expectation that one should be able to establish and defend ones rights at the expense of the person who is denying them; those embarking on litigation need to be aware that, however just they may conceive their cause, they will generally be required to pay for the exercise if in the event they do not prevail in their legal claim. In my main judgment, I characterised his approach as being somewhat relentless and obstinate. I also have taken into account, and I do now again, the fact that (perhaps signifying his misplaced view of entitlement) he has only offered 1 a month in payment on account of the orders for costs made against him by Mr. Mann QC and the Court of Appeal; that offer of 1 per month, even in his difficult financial circumstances, does appear to be something of a declaration of indifference to orders of the Court.

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As I perceive it, I have various options open to me. I could make an order for detailed assessment on an issue-by- issue basis. Mr. Stoner has persuaded me that that would be a road to a most expensive and ultimately pseudo-scientific guess at the end of the day also. Therefore, the questions which I have to resolve are these. First, should this be a case where all the costs should follow the event? Answer: no because the arguments have ranged widely, and success on them has been mixed for both parties. The second: is this a case where conduct should be reflected in the ultimate order made? Answer: yes, it should be - and that detracts from the claim for costs made by BWB, though Mr Moores conduct has tended to extravagance. Thirdly, would it be right to order a percentage or simply to make no order as to costs, in the particular circumstances of the case? I have been tempted to make an order for no order as to costs, but it does seem to me that Mr. Moores false sense of entitlement needs to be reflected. Taking matters in the round, I therefore propose that Mr. Moore should pay 25% of the costs of BWB to be assessed by detailed assessment, subject to this: none of the costs incurred by BWB in the context of the third witness statement of Mr. Johnson and, for the avoidance of doubt, any hearing before Floyd J. or any preparatory or subsequent work in relation to it, are to be allowed. I expressly disallow those costs. I appreciate this causes a considerable difficulty for Mr. Moore who, as I said, is in a very difficult financial position; but it has been his choice to fight on so many fronts and to take up the cudgels (as he perceives it) on behalf of other boaters. I feel I have to approach the question as to the incidence of costs rigorously in accordance with the rules and that is what my decision is.

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