cart v wingfield day 2

IN THE CHESTERFIELD COUNTY COURT No. 3NG01237

Tapton LaneChesterfield S41 7YW

Tuesday, 4 rd March 2014

Before:

HIS HONOUR JUDGE PUGSLEY

B E T W E E N :

CANAL & RIVER TRUST Claimant

- and -

ANDY WINGFIELD Defendant

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

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

[email protected]

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

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

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Discussion re settlement 1

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MR. FOWLES: I apologise, the position is as follows, and my learned friend can stop me if she thinks I am going too far. The position is that we have identified a permanent mooring which we are happy to offer to the defendant. We have offered the defendant payment terms, for instance we have offered that he can pay the mooring fee by direct debit so long as he pays the smaller licensing fee upfront.

In return, the defendant wishes to ensure that our enforcement provisions are virtually without effect, in the following way, that we have said that we are only prepared to agree to this on the basis that, if he fails to comply with the terms of the settlement, we would wish to be able to remove his boat from the waterways on notice. The defendant wishes to limit our ability to remove his boat from the waterways for breach of the settlement to the River Trent and the Nottingham & Beeston Canal, which means that, for example, he could, if he breaches the settlement, simply move his boat to another waterway owned or controlled by the claimant with impunity, so this would not really give us any protection at all.

So the problem has nothing to do with the availability of a permanent mooring, has nothing to do with the terms of payment which we were prepared to offer the claimant, it has everything to do with an unwillingness to include any meaningful enforcement provisions within the terms of the settlement. The importance for us is that we do not have to come back to court and bring another claim in order to enforce the settlement. We have drafted a Tomlin order, the schedule to which----

JUDGE PUGSLEY: How late in the discussions did you introduce this term?

MR. FOWLES: Sorry, which term, the enforcement term?

JUDGE PUGSLEY: Yes.

MR. FOWLES: It was there from the start.

MISS EASTY: Your Honour, we were waiting. My learned friend offered to draft the order and I think we received the notice of those terms at, I think, five to 12. Since that time we have been trying to negotiate it, so we were not aware of that until----

JUDGE PUGSLEY: No, I understood the matter was resolved and you were drafting it.


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MISS EASTY: That is what we understood as well. We were aware of the offer of this morning. Now, our difficulty is about providing practical settlement because, albeit that we ourselves are happy to pay the mooring fee and/or happy to pay the licence fee, we are concerned that this is going to depend on an application for housing benefit. The amounts are of £49.12 a month, I think, for the mooring fee and £338 for the annual licence, both of which we are entirely happy to pay. Our concern relates to if we default in that payment due to a housing benefit problem because the housing benefit cuts benefit or cuts the benefit he is currently receiving, then we are going to be left in possible breach of this order and our boat will be seized and will be excluded from the entirety of the network. That is the wrong that we are trying to overcome and that is why we do not think this provides a practical solution. This is a Nottingham man who has lived in Nottingham his entire life and he is resident in this area. Therefore, to be excluded from his home area is a serious issue for this man because, again, as you know, he has medical issues and so forth. We are more than happy to pay as what we are able. We are concerned about housing benefit being an issue or benefits being an issue.

Now also, the way the order is currently drafted, it means that he has to remain at the Grand Fleet site and if, for example, he found a mooring which was better, a permanent mooring in a private marina----

JUDGE PUGSLEY: Well, that surely can be altered by a matter of drafting: “At this mooring or any other mooring agreed with the claimant.”

MISS EASTY: Well, what we have asked for, which again I think is not necessarily agreed with or disagreed with by the claimant, is that, on the moving of the yard to another permanent mooring, the terms of this agreement must cease, because he cannot keep paying the claimant, for example, a mooring----

JUDGE PUGSLEY: I am awfully sorry, but I am beginning to feel that this is becoming a farce. This is a serious issue. I asked you to get here before normal time. We are now not in a position to be able to complete this case today. Do you want me to give you further time, which I suspect is not a very wise option, do you want me to put this case back to start de novo again, not necessarily before me, do you want it to go part heard or do you want me to give my view of your differences?

MR. FOWLES: Your Honour, may I take instructions?

JUDGE PUGSLEY: Certainly.


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MISS EASTY: Your Honour, one further thing is that you may remember that we were prepared to offer undertakings.

JUDGE PUGSLEY: Yes.

MISS EASTY: If that is something that would satisfy the court, I have a poor draft but a draft which may be something that the court may find appropriate.

JUDGE PUGSLEY: Does anyone have the draft? Can I have a look at what you have agreed so far?

MISS EASTY: Is that okay?

MR. FOWLES: Yes, that is fine, yes, and the confidentiality undertaking would need to be inserted as well. (Document handed to His Honour)

MISS EASTY: Yes, we accept that.

JUDGE PUGSLEY: Thank you.

MISS EASTY: Here is the undertaking. (Document handed to His Honour)

JUDGE PUGSLEY: Thank you very much. (pause) So “Either party may be [something] to apply”?

MR. FOWLES: “Either party may be permitted to apply”. I am sorry my handwriting is so bad.

JUDGE PUGSLEY: Yes, the male of the species is always worse than the female. That is not prejudice, it is experience. And “apply to the”?

MR. FOWLES: Would it be helpful for me to read it out?

JUDGE PUGSLEY: “The court”?

MR. FOWLES: Yes.

JUDGE PUGSLEY: Yes, well you have that protection that you can enforce it without having to start all over again.

MR. FOWLES: Yes, what we would be able to enforce is the terms of the schedule and, therefore, the terms of the schedule need to contain the terms of the enforcement.


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JUDGE PUGSLEY: No.

MR. FOWLES: Your Honour, may I answer the question which you just posed?

JUDGE PUGSLEY: Yes.

MR. FOWLES: In an ideal world, we would like to be able to reach an agreement with the defendant. If it is impossible for us to reach an agreement with the defendant, then we would prefer this case to be heard de novo rather than to be part heard because we are half way through the evidence and it is never in any case desirable for a case to be part heard. That is our position, your Honour.

JUDGE PUGSLEY: Not necessarily by me? Not excluding me, but not necessarily by me?

MR. FOWLES: Well, your Honour, we obviously cannot control that, but if it means it has to go to another judge, we would, with respect, prefer it to be de novo rather than part heard.

JUDGE PUGSLEY: Yes.

MISS EASTY: Your Honour, we think this can be resolved. I think it may need some heads need knocking together, but, in any event, we do not see why costs should be wasted and we would say go part heard, if that is necessary. There is nothing here that would mean that your Honour could not fairly determine this case.

JUDGE PUGSLEY: I do not quite understand. Let us assume he does not pay, are you suggesting you can just evict him?

MR. FOWLES: Well, if he does not pay, then we would be able to use those enforcement provisions in the terms of the----

JUDGE PUGSLEY: Without further order?

MR. FOWLES: Yes, because let us assume----

JUDGE PUGSLEY: So all the protection that is afforded to a tenant would not be granted to him?

MR. FOWLES: Your Honour, imagine a situation in which----


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JUDGE PUGSLEY: Do you know anything about housing law?

MR. FOWLES: Your Honour, can I explain? The reason why the enforcement provisions are in there----

JUDGE PUGSLEY: Yes.

MR. FOWLES: --is because, if they were not, we would simply be left with a debt claim or a claim for some order that he put in the application or fees that we are asking for. That would probably be useless to us. The reason why those enforcement provisions are in is because it gives us the security of knowing that, if we come to an agreement and that agreement is breached, then we still have the opportunity of getting what we wanted out of this claim, which was to be able to remove the boat if he failed to----

JUDGE PUGSLEY: Do you not think that is a bit draconian, “without further order of the court”?

MR. FOWLES: Well, your Honour, to be fair, I have asked for alternative enforcement provisions. Your Honour, it would be with the order of the court because we would have to come back to court to enforce the terms of the schedule.

JUDGE PUGSLEY: That is not quite what I understood you to be saying.

MR. FOWLES: We would not have to bring a new claim, but we would be able to apply----

JUDGE PUGSLEY: No, no, no, no, no, of course you would not.

MR. FOWLES: We would be able to apply to the court to enforce those terms.

JUDGE PUGSLEY: Oh certainly. I have no objection to that.

MR. FOWLES: Yes, yes.

JUDGE PUGSLEY: But you seemed to be suggesting that the terms in which you were putting it you would have the right of summarily just remove his boat, which struck me as something----

MISS EASTY: I think is what he is saying.

MR. FOWLES: Your Honour, our priority is not to have to bring a new claim.


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JUDGE PUGSLEY: Certainly, I fully understand that.

MR. FOWLES: That is the priority.

JUDGE PUGSLEY: Did you understand that?

MISS EASTY: No, we understand that, if one payment is missed, we are out and we are out----

JUDGE PUGSLEY: No order of the court.

MISS EASTY: No order of the court and we are excluded from the entirety of the network. That is our understanding. If I am wrong on that, I am sure my learned friend can reassure me.

MR. FOWLES: That is my understanding, but I will just check. (Mr. Fowles took instructions)

MISS EASTY: That is it. If it is with further order of the court, we are entirely happy.

JUDGE PUGSLEY: No problem, yes, yes.

MR. FOWLES: Your Honour, the position is that we would come back to court, but we would need the provision in the schedule, otherwise we would not be able to get the court’s order. That is the point. The claim would be stayed ----

JUDGE PUGSLEY: Please do not waste time. You have misled your opponent and me quite inadvertently into thinking that you were wanting the draconian step that, if there were any breach, however insignificant, you could remove his boat from the canal. I am getting tired of you wasting time. That is not what you want, you now say. All you want is power to come back to the court to enforce that provision.

MR. FOWLES: But that is what is in the draft, your Honour. That is my----

JUDGE PUGSLEY: Well, I am sorry, but your opponent and I, from what you have said----

MISS EASTY: That is what we had understood.

JUDGE PUGSLEY: And yet the whole basis was wholly different.


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MR. FOWLES: Your Honour what was objected to was those terms appearing in the schedule. The schedule is to be enforced on the order of the court. That is why there is liberty to apply. That is the nature of the Tomlin order, your Honour, obviously.

JUDGE PUGSLEY: Well, certainly that is not what you said. If you are looking at this, both of us got completely the wrong picture from you without any collusion. Right, I am awfully sorry, I do not think this writing is as bad as mine, but I know mine better.

MR. FOWLES: Your Honour, I will make it clear.

JUDGE PUGSLEY: “Agrees to provide a mooring”, okay. Now, where is the provision which you said?

MISS EASTY: I think it is the penultimate one.

JUDGE PUGSLEY: Paragraph 6: “If the defendant fails as set out in the circumstances specified in paragraph 5”.

MISS EASTY: And 5, your Honour.

JUDGE PUGSLEY: Yes. The defendant agrees that he will remove” – it is not Kierkegaard, is it?

MISS EASTY: Hildegard.

JUDGE PUGSLEY: Kierkegaard was a Danish philosopher, was he not?

MR. FOWLES: Yes.

JUDGE PUGSLEY: “The River Trent or controlled by the claimant”.

MISS EASTY: It was the waterways controlled by the claimant.

JUDGE PUGSLEY: I am sorry, what does this mean: “If the defendant fails to comply with paragraphs 2 and 3”, that is money, is it not?

MISS EASTY: Yes.

MR. FOWLES: Money and application forms.


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JUDGE PUGSLEY: “Or fails to pay any sum by way of boat licence fee, the defendant agrees that he will remove Hildegard from the River Trent or water controlled by the claimant within 28 days of the claimant notifying the defendant that he is in breach of the terms of the settlement.”

MISS EASTY: That is what we understood is that, if we miss a payment through no fault of our own, we have no ability to say “Hang on a minute, it will come, housing benefit is going to pay” or anything like that.

MR. FOWLES: It could only be enforced by the order of the court. That is the nature of a Tomlin order. That is the reason why there is liberty to apply. The notice provisions----

JUDGE PUGSLEY: It is all right, I am just trying to work out what it actually means.

MR. FOWLES: I am sorry.

JUDGE PUGSLEY: For some reason, let us say it is with fault, your client deliberately does not pay or let us say the bank does not pay the direct debit, a not unknown phenomenon.

MISS EASTY: Absolutely, or let us imagine a worst case scenario----

JUDGE PUGSLEY: Of if the bank goes bust. Your client, let us take a serious one, they fail to pay, and as a mixture there not being enough funds to pay and their failure to pay, your client is then told about that by the claimant, yes?

MISS EASTY: Yes.

JUDGE PUGSLEY: The waterways charity, the Canal & River Trust. He has then got to do the decent thing and say “Carruthers I have failed to honour my obligation, I can’t stay here any longer”. So he has to take his boat and remove it effectively from any inland waterway outlet?

MR. FOWLES: Your Honour, we would only be able to force him to do that if we came to court. Likewise, with para.6, we would only be able to force compliance with para.6, which involves----

JUDGE PUGSLEY: No, I am just asking what he is agreeing to do. He is agreeing to take his boat off the water.

MR. FOWLES: Yes, your Honour.


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JUDGE PUGSLEY: And effectively any water in the United Kingdom.

MR. FOWLES: No, because there are Environment Agency waters and there are other waterways in the United Kingdom. We do not control and own all of the waterways in the United Kingdom.

JUDGE PUGSLEY: Oh do you not, no.

MR. FOWLES: And, as I understand it, there are Environment Agency waters close by or closer by than some of our waterways.

JUDGE PUGSLEY: Are they canals or rivers or?

MR. FOWLES: Sorry, actually we do not know about the geography.

MISS EASTY: The Environment Agency tends to run some rivers but, for example, the Port of London, that is Environment Agency. It runs up to the tidal waterways. They are limited in scope because certainly most of the inland waterways have transferred to the BWB and now CRT. Their network is something like 2,000 miles.

JUDGE PUGSLEY: Okay, so he might pitch into the Environmental Agency waters if they exist.

MR. FOWLES: They do exist.

MISS EASTY: They do exist.

MR. FOWLES: They are rivers and canals.

JUDGE PUGSLEY: Yes, but, apart from that, he has got to take waterways?

MR. FOWLES: Or Port of London Authority and private marinas.

JUDGE PUGSLEY: Right, so that is what he has to do. You tell him he is in breach.

MISS EASTY: Then he has to remove his boat within 28 days or, failing that, have his boat taken from him and excluded from the entirety of the network. We have an issue in respect of our inability, if there is a payment problem.

JUDGE PUGSLEY: Well, would the problem be clarified?


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MISS EASTY: We are not intending there to be a payment problem, your Honour.

JUDGE PUGSLEY: No. I mean, if it is said the claimant may have leave to apply to the court if, in failure to comply with paras. 2 and 3, to enforce the said term, then the defendant removes his boat from any water of the claimant within 28 days of the claimant notifying the defendant that he is in breach of the terms of the settlement.

MISS EASTY: We would find that acceptable.

MR. FOWLES: Yes, your Honour. Paragraph 6 may have caused the misunderstanding, but it was not my intention----

JUDGE PUGSLEY: Oh I am not blaming you. It is just that, when you draft something, you are certain you are right. Publishers, legal publishers and other publishers I suspect, never allow the author to proof read his own proof because you are sure of what you mean, and I think that is all that has happened here. You are not claiming the unequivocal right to remove his boat from the water or demand that he do it. You are saying that, if he fails to do that, then that is the sanction and you have leave to apply to the court to enforce it.


JUDGE PUGSLEY: And then he can say “It is nothing to do with me, it is a direct debit, I am sorry, here is the money.”

MISS EASTY: Yes.

MR. FOWLES: I think part of the confusion has been that the other side have thought that we were getting some kind of injunction in the schedule, but it is not an injunction, it is just an agreement, and the only way we could ever lawfully enforce an agreement is by coming to court. Of course, you cannot just walk into someone----

JUDGE PUGSLEY: I think you were so hardwired to what you were thinking that you did not realise that that is not what it sounded like.

MR. FOWLES: No, I had no idea.

JUDGE PUGSLEY: Now, I have forgotten what I had said.


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MR. FOWLES: Your Honour, I understand your intention in what you said and we can agree on a different para.6, which should deal with the problem. Thank you, very much, your Honour, that has been exceedingly helpful.

JUDGE PUGSLEY: No, no, do not worry. It is not your fault. It is not your fault. Nor is it the fault of counsel for the defendant.

MISS EASTY: Your Honour, you said the claimant may have leave to apply to the court if the defendant is in default of clause 2 and/or 3 to enforce the----

MR. FOWLES: Said term, which is para.5.

MISS EASTY: The said term. That is what you said.

JUDGE PUGSLEY: Yes.

MR. FOWLES: Paragraph 5.

MISS EASTY: And we would have no opposition to that term.

JUDGE PUGSLEY: No. So I think somewhere in here we want that, if he is in breach, he will have to remove his boat within 28 days from any of the water controlled by the claimant. If the defendant is in breach, the claimant has leave to apply to the court to enforce that said provision.

MISS EASTY: I have a note.

JUDGE PUGSLEY: And, if you want the protection, it can be said that that remedy cannot be pursued without further order of the court, whichever way you want to bend it.

MISS EASTY: Yes.

JUDGE PUGSLEY: Although “bend it” sounds a bit unethical, but you know what I mean.

MISS EASTY: Finesse it.

JUDGE PUGSLEY: Finesse it, yes. There was a little bit of Hampstead there. Okay, now, is everyone clear?

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


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JUDGE PUGSLEY: You have to keep to the terms of the order. If you do not, they will come back. All I want is the safeguard that the court gives a sanction just in case there is good reason.

MISS EASTY: Yes.

JUDGE PUGSLEY: Sorry, old men going into their anecdotage is rather tedious, but what you may not know is that people are sent to prison on a daily basis in the county court by judges signing a form saying they did not come for oral examination, they are committed to prison days suspended if they arrive, you know, all these people who will not come for oral examination. Before I was a judge, a woman came to court from a cancer ward. She had never had any warning at all. It was not even her debt. I think she was a guarantor. Now, you know, those sorts of things are extremely rare. It is the only occasion that I can think of, but I must have done 50 to 100 times a year, but I just want the fact that, if the defendant has had a heart attack and has been taken from one region to the other, that he is not paying his benefit in or there is a cock-up by the bank of some sort or other, he does not have his boat taken out----

MISS EASTY: That is exactly what it is. That is all we are trying to ensure.

JUDGE PUGSLEY: --of the water before he has----

MISS EASTY: An opportunity to remedy it. That is all we are asking for.

JUDGE PUGSLEY: Now, what about----

MISS EASTY: That is the undertaking, Sir.

JUDGE PUGSLEY: Do sit down.

MISS EASTY: That is not relevant if we have the Tomlin order, of course.

MR. FOWLES: Sorry, what is not relevant if we have the Tomlin order?

MISS EASTY: The undertaking.

MR. FOWLES: The confidentiality undertaking?

MISS EASTY: No, I am just looking at this. I think the judge is looking at the entirety of the order.

MR. FOWLES: That is all right.


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JUDGE PUGSLEY: Sorry, “this”?

MISS EASTY: “This”, your Honour, relates to, if we do not come to terms that we are prepared to offer an undertaking to the court to continuously cruise.

JUDGE PUGSLEY: But this supersedes that.

MISS EASTY: Yes, I am just handing it in because, your Honour, you asked are we going to go de novo and do you want to continue it and I suggested another way forward, which is that we give undertakings.

JUDGE PUGSLEY: But you are not requiring the undertakings if this order is made?

MISS EASTY: No.

MR. FOWLES: Well, your Honour, we would not agree to those undertakings. We will agree to that settlement, but, if we cannot get a settlement on the basis that we have just discussed----

JUDGE PUGSLEY: Right, you agree to this, yes?

MR. FOWLES: Yes.

JUDGE PUGSLEY: Have you any means of putting this into legible English?

MR. FOWLES: Yes, the trouble has been interact access within the building. What we are not allowed to do is not allowed to send emails in the building and we are not allowed to put USB sticks into----

JUDGE PUGSLEY: Who by?

MR. FOWLES: Well, your Honour, it is to do with the absence of WiFi internet connection in the court building and to do with the fact that we cannot print things here except by emailing them to the court. That is the problem.

JUDGE PUGSLEY: Could you do that? Could you email this?

MR. FOWLES: Yes, I will type something up and email it.

JUDGE PUGSLEY: Yes. Are you both agreed? I mean, is there any doubt?


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MR. FOWLES: Your Honour, there will need to be the confidentiality undertaking which is in the document----

MISS EASTY: You have it in the undertaking----

MR. FOWLES: --in the document on the left-hand side.

MISS EASTY: I printed it out. You can see that there is a confidentiality undertaking which is drafted as an undertaking, but we can change that into an agreement, your Honour, so there is a----

JUDGE PUGSLEY: Well, if I leave you in peace, how long are you going to need before the essential agreement is reached, ten minutes?

MISS EASTY: I have not seen the, well I am happy to draft it and my hand is possibly fairer than my learned friend’s.

MR. FOWLES: Well, that is fine, but I have a laptop with me, so I could draft it on that.

MISS EASTY: I also have a laptop.

MR. FOWLES: Okay.

JUDGE PUGSLEY: Well, why do you not draft one 1 to 4 and you draft 5 to 8?

MR. FOWLES: Okay.

JUDGE PUGSLEY: So you both feel needed and wanted.

MISS EASTY: I do not mind.

JUDGE PUGSLEY: Sort it out. I am sorry, but you want in that order a confidentiality set out in the injunction. You want that in terms of the order.

MR. FOWLES: In the terms of this schedule to the order, yes, your Honour.

JUDGE PUGSLEY: Yes, okay.

MR. FOWLES: And the other matter is, of course, we will need to make an adjustment to allow for his moving to a different mooring.


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MISS EASTY: Yes, the last paragraph. It is in my handwriting. If he moves to another mooring, then the terms of this agreement have to cease or somehow be altered because he cannot pay mooring fees to Grand Fleet for all time and he may well find a mooring which is more suitable.

JUDGE PUGSLEY: So he is going to take up the offer of the present site, but, if he were to make friends with a friendly farmer over a pint, unlikely I would have thought in the middle of Nottingham, but hope springs eternal, I mean, if he were to find a site which was much cheaper, he should have the right to move to it.

MISS EASTY: Yes, your Honour, this mooring has no facilities whatsoever, so it is about finding a permanent mooring with facilities.

JUDGE PUGSLEY: Who is the owner of this mooring?

MR. FOWLES: The Canal & River Trust owns this particular one.

JUDGE PUGSLEY: I see.

MR. FOWLES: Or, rather, it is a company which is associated with it.

JUDGE PUGSLEY: Yes, broadly within your control and power to say yay or nay?


MISS EASTY: So that is the only issue and then I think, your Honour, that there should be, that we need to draft in no order for costs save for detailed assessment of defendant’s costs.

JUDGE PUGSLEY: Has that term been agreed?

MISS EASTY: No, it has not. I am just putting it forward.

MR. FOWLES: Detailed assessment on what basis?

MISS EASTY: Of our costs.

MR. FOWLES: For the Legal Services Commission?

MISS EASTY: Yes.

MR. FOWLES: Not for any other purposes. We are not paying your costs.


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MISS EASTY: No, I said no order as to costs.

JUDGE PUGSLEY: Save, yes, okay.

MISS EASTY: Save for legal aid, Legal Services.

JUDGE PUGSLEY: There is a nice little café over there run by the church with the spire in which you can get coffee and cream cake. You might like to draft it with your respective solicitors over there. It might keep everyone happy. Again, you might not. Okay, about a quarter of an hour?

MR. FOWLES: To draft everything up?

JUDGE PUGSLEY: Yes.

MISS EASTY: Your Honour, I can certainly get it typed up by then, but, in terms of how to get it to you, therein lies our technological problem.

JUDGE PUGSLEY: Well, could you both agree to email it?

MR. FOWLES: Your Honour, could we have a bit longer than 15 minutes? It does seem a bit of a tall order, given that all of the terms will need to be adjusted one way or the other.

JUDGE PUGSLEY: Okay.

MR. FOWLES: May we have until three o’clock?

JUDGE PUGSLEY: Shall we try half two, with liberty to apply?

MR. FOWLES: Okay.

JUDGE PUGSLEY: There is no gibbet or whipping post in this town, so you are not going to be strung up if you cannot manage it. Do you understand? Yes, okay. Actually, it would not be entirely frivolous if perhaps one of you could type up the settlement and email it, the schedule, and one could type up the order.

MR. FOWLES: Sure, because they need to be kept separately in any case.

JUDGE PUGSLEY: Yes.


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MR. FOWLES: Yes.

JUDGE PUGSLEY: Do they?

MR. FOWLES: Because, in order to maintain confidentiality, we would not want the settlement document to be kept on the court file, so the order contains provision for the settlement, the document to be retained by the solicitors.

JUDGE PUGSLEY: Do you agree with that?

MISS EASTY: It seems a bit odd because, quite frankly, if it is going to come back if it is enforced, if it is ever necessary, then it is going to be disclosed to the court at that point, but, again, I have no major objection to it?

JUDGE PUGSLEY: What is matter with the old brown envelope?

MR. FOWLES: Your Honour, the problem is, and this is something suggested by Foskett on Compromise, the problem with a document on the court file is there are not public access provisions in respect of documents on court files.

JUDGE PUGSLEY: Mr. Justice David Foskett?

MR. FOWLES: Yes, your Honour. So I have taken this from Sir David Foskett’s precedent, your Honour.

JUDGE PUGSLEY: Well, if he says it, it is bound to be right.

MR. FOWLES: Well, it is also something that I personally have used before, but obviously it is your Honour’s order.

JUDGE PUGSLEY: No, no, you tell me. If a term of settlement is on the court file, you say it can become public knowledge?

MR. FOWLES: There is no guarantee that it will not become public knowledge, unless you were to order that it will not be released to anyone accept the parties or their advisers. There would be that risk because of the provisions in Part 5 of the CPR.

JUDGE PUGSLEY: Which are?

MR. FOWLES: Your Honour, they are fairly complicated, but----

JUDGE PUGSLEY: Give me a summary.


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MR. FOWLES: In essence, as of right, my understanding is that members of the public can get hold of the claim form at least. In respect of other documents, applications can be made to the court for the release of documents on the court file and then it is in the hands of a judge, I think, as to whether those documents are released. That is a very broad summary of my understanding.

JUDGE PUGSLEY: That is very helpful. Sometimes in family work (and I know this is digressing), one of the barriers to settling issues is whether the children will be able to see that the reason mother was divorcing father was his proclivity to going on to viewing porn or----

MISS EASTY: Having affairs.

JUDGE PUGSLEY: --yes, or something of that sort. To be honest, I was unaware. I did not know what the answer was and you say that we can all apply to go through the laundry basket of other people’s dirty linen.

MR. FOWLES: Well, it is the dirty linen they choose to put on the court file, your Honour.

JUDGE PUGSLEY: Sorry?

MR. FOWLES: It is the dirty linen they choose to put on the court file.

JUDGE PUGSLEY: Yes.

MR. FOWLES: I mean, it is things that may end up being referred to in open court in any event.

JUDGE PUGSLEY: Well, I have no objection to that. Have you?

MISS EASTY: We are not raising any serious objection to it, but it does make me wonder how the court will deal with Data Protection Act issues, but still.

JUDGE PUGSLEY: What is the data protection issue?

MISS EASTY: We are not raising any issues, your Honour.

JUDGE PUGSLEY: What are the data protection issues?

MISS EASTY: That you are not allowed to release documents referring to other people without the consent of the individuals involved.


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JUDGE PUGSLEY: Well, in this particular case, if it is a matter of mechanics of you keeping it rather than the court, that is probably not a----

MISS EASTY: No, we are not raising a major issue.

JUDGE PUGSLEY: Yes.

MISS EASTY: We really are not.

JUDGE PUGSLEY: No, okay. Now, is there any other point of disagreement?

MR. FOWLES: Your Honour, I do not believe so.

JUDGE PUGSLEY: Ambiguity?

MR. FOWLES: I do not believe so.

JUDGE PUGSLEY: I have a feeling your instructing solicitors will probably kill you both if there is. Of course, if there is something that does not occur to you, you have only got to let me know. In fairness, let us have it. If we are here until six tonight, let us at least all know what we have agreed on than going home with a cosmetic Elastoplast and, by a week next Wednesday, an application by one or other or even, in this case, both of you to vary because you did not think you had agreed it.

MR. FOWLES: We do not want that.

JUDGE PUGSLEY: I do not think this is malicious. I do not mean it as that, but going through it and go and have a cup of coffee, the four of you, and think about it just to make sure. In general terms, this is the position, that your client accepts, quite rightly, if I may say so, in the long term he has really got to be at a permanent site. If he can get one, so much the better.

MISS EASTY: Yes.

JUDGE PUGSLEY: You want that enforced and you want it enforced by the right to chuck him off the river, if you do not mind me putting it in the vernacular.

MR. FOWLES: Yes.

JUDGE PUGSLEY: That is what it is about. You accept it can be enforced, but only if the court says so, so he is not going to come along one evening and find


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his boat has sailed off to the back of beyond and he cannot get in to some water there. Apart from that, you are all agreed. You want the confidentiality clause in the order and you suggest, I am sure you are probably right – I had not thought of it – that the order be retained by the claimant’s solicitor for the purposes of confidentiality.

MISS EASTY: We do not have an issue with that aspect, no.

MR. FOWLES: Thank you, your Honour.

JUDGE PUGSLEY: Right, okay, take as long or as little time. You must not feel under pressure. Can I hand you that back? Could I just say to you how sensible I think you have been, because I cannot see how, I mean I could not have ordered----

MISS EASTY: No.

JUDGE PUGSLEY: --the provision of a permanent mooring. Well, I could have ordered it but it would have been totally ineffective and everyone would have disregarded it. Yes, okay. (Counsel conferred)

MISS EASTY: Your Honour, just as a practicality----

JUDGE PUGSLEY: Just doing what?

MISS EASTY: I said why does he not read it to me, I can type really fast and then we can just fiddle with it once it is typed.

JUDGE PUGSLEY: Yes, the two of you, I wondered whether you were tending a mediation session or you were about to announce the outbreak of war, so I thought I had better be very careful.

MR. FOWLES: Thank you, your Honour.

Short Adjournment

MISS EASTY: Your Honour, we have it on a USB stick or about to put it on a USB stick and we wondered possibly, with the indulgence of the court, it may be appropriate to get a printout so that it can all be signed and dealt with today.

JUDGE PUGSLEY: I will go and make enquiries.

CLERK: Would you email it in? Is that what you are saying?


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MR. FOWLES: We cannot because none of us a connection. We need to have a connection.

MISS EASTY: None of us has a dongle.

CLERK: I do not know about that then.

MISS EASTY: We can put it on a USB stick.

JUDGE PUGSLEY: I will go and see what I can do.

CLERK: Do you want me to go downstairs and check for you?

JUDGE PUGSLEY: Yes, could you? Well, I will come with you.

Short AdjournmentRecording started late at 15.20.06

MR. FOWLES: … but I need to give you an unstapled copy because I need to, the court is only allowed to have the order. You cannot keep the settlement agreement.

JUDGE PUGSLEY: Really.

MISS EASTY: And so that was the signed one.

MR. FOWLES: Yes, that is signed.

JUDGE PUGSLEY: Right.

MISS EASTY: Your Honour, we all have copies, it is all signed. You have a signed copy of the consent order but not the settlement. We all have signed copies of the consent order and the settlement. (Counsel conferred)

JUDGE PUGSLEY: Where is the Upper Trent, as a matter of interest?

MR. FOWLES: The Upper Trent is to the west.

MR. GARNER: It is above Beeston, your Honour.

JUDGE PUGSLEY: Beeston?


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MR. GARNER: Yes, your Honour.

MR. FOWLES: Above Beeston.

JUDGE PUGSLEY: Yes.

MR. GARNER: The continuation of the River Trent.

JUDGE PUGSLEY: It is a rather romantic description of the area, is it not, yes? (pause) You are happy that para.7 correctly reflects what was agreed, that you cannot enforce it without leave of the court?

MR. FOWLES: Yes.

JUDGE PUGSLEY: Yes.

MISS EASTY: Certainly that is what we understand.

MR. FOWLES: That is what we agreed, yes.

MISS EASTY: That is what we agreed, that it cannot be enforced without the order of the court, yes. I do not think anyone is----

JUDGE PUGSLEY: In any doubt that cl.5 and 6 are subject to para.7.

MR. FOWLES: “The above terms”, Yes.

MISS EASTY: No, “the above terms”. We can make it more explicit, but we understand that, if we want to enforce it, it has to come back to the court.

JUDGE PUGSLEY: Well, both of you, yes, you should probably survive long enough to remember.

MISS EASTY: To deal with anything that comes up, you know something awful happens and a payment is missed, that there is a reasonable excuse. I think we agree.

JUDGE PUGSLEY: Yes.

MISS EASTY: Anything your Honour notices that we have drafted wrongly or could be put better?


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JUDGE PUGSLEY: No, the only thing I was slightly querying (but in apostrophes slightly) was “The Claimant may enforce the above terms only with leave of the court, as to which the Claimant has leave to apply”. That is right, we do not normally put “and the Defendant has leave to apply”, because it will only be if the claimant is enforcing the terms that it will arise.

MR. FOWLES: The defendant has leave to apply under the terms of the order as opposed to the settlement, if you look in the body of the order.

MISS EASTY: “Either party may be permitted to apply to the court to enforce the terms upon which this case has been stayed without the need to bring a new claim”, para.2 of the order.

JUDGE PUGSLEY: Yes.

MISS EASTY: So that is where we are both coming from.

JUDGE PUGSLEY: Yes.

MISS EASTY: But the reason we put that in, again, is to make super extra sure that they cannot throw us out because we have had a heart attack or have missed a payment, for example, if it should ever, ever happen.

JUDGE PUGSLEY: No, it was para.7: “The Claimant may enforce the above terms only with leave of the court, as to which the Claimant has leave to apply”.

MR. FOWLES: Just for the avoidance of doubt.

JUDGE PUGSLEY: It is that the Claimant and not the defendant has leave to apply. That is why, but that is covered in the order.

MISS EASTY: It is.

JUDGE PUGSLEY: Yes, okay. Please do not think I am being critical. Whatever you do, you can end up----

MISS EASTY: No, we wanted to make it work.

JUDGE PUGSLEY: Pardon?

MISS EASTY: We need to make it work.

JUDGE PUGSLEY: I think so, yes, yes.


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MISS EASTY: And we really do not want things getting in the way of something that is designed to work because a comma is missing or an apostrophe.

JUDGE PUGSLEY: Yes, yes. Do you want me to sign it?

MR. FOWLES: Yes, your Honour. It is your order. The consent order is your order.

JUDGE PUGSLEY: Yes, and the terms of settlement?

MR. FOWLES: No, thank you, your Honour.

JUDGE PUGSLEY: No, that is what I thought. I think that is the right way.

MR. FOWLES: Unless you want to be bound by the terms of the settlement personally.

JUDGE PUGSLEY: I have many fantasies, but being on a lock boat is not one of them, however delightful the company might be and such well-known beauty spots as Dalston, but no. Have you got a pen?

MISS EASTY: Yes, your Honour.

JUDGE PUGSLEY: Are you going back to Preston tonight?

MR. FOWLES: I am going to London actually tonight.

JUDGE PUGSLEY: Right. Right, okay. I have signed the order but not the settlement.

MISS EASTY: My learned friend would like the settlement back, for the reasons that he said.

JUDGE PUGSLEY: I thought you were going to ask for your pen back.

MISS EASTY: No, but I will have it back.

JUDGE PUGSLEY: It is just if a personal applies to----

MR. FOWLES: Your Honour has ordered that it not go on the court file, so we need to take the settlement back.


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MISS EASTY: This is the copy of the settlement.

JUDGE PUGSLEY: Okay, happy Christmas, well done at last. I think this is a sensible order. I think it is humane. I think it is proportionate, but Mr. Wingfield, this is not a sermon, but this is a bit of a last chance.

MR. WINGFIELD: Yes.

JUDGE PUGSLEY: You know, you can have a lot of arguments about cases like that, you frequently do, but one of the arguments could be that you have to keep a sense of proportionality, but you should not have greater benefits than other people and the danger with this sort of order is that it is fair to you and I think it is fair to Canal & River Trust, but, if you had tried to wrench the particular facts of the situation of your case and make it a general guideline and then a right, our canals would cease to be places of peace and tranquillity. They would be overrun, paradoxically, with sort of amphibious cowboys. It is marvellous that you can walk along the canal and your chances of getting attacked are minimal. I think in the last 10 of 15 years there has been only one or two such attacks. Plenty of people have put bodies in canals. I do not mean now, but, I mean, you walk along, whereas, if it becomes a general right to moor and set up home on a permanent basis, the whole thing would be destroyed, would it not, in matters of months.

MR. WINGFIELD: Yes.

JUDGE PUGSLEY: It is not just that you have middle class trendies forming communes, you also have groups that were less attractive, drugs the lot. A police officer once told me that 80% of the drugs coming into Birmingham came through the canal system. I am an encyclopaedic knowledge of useless information, but you can see the attraction of using the canals, can you not? So, if times get hard at the Bar, you know. Okay, all right.

MR. FOWLES: Thank you very much indeed.

JUDGE PUGSLEY: Do not worry, just not bother to stand up for me, but, if you want to exercise your right to cardiovascular exercise, if I give you that. I am going to be shot, hanged, drawn and quartered in reverse order if I give you the other one. Have you got it back?

MR. FOWLES: Yes.

MISS EASTY: He has it back. Good day, your Honour. Thank you very much.


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JUDGE PUGSLEY: You can take it all the way to Preston, can you not, yes? Do you actually live in Preston?

MR. FOWLES: Well, not in the centre of Preston. I live in a village about 20 minutes away from Preston.

JUDGE PUGSLEY: I thought it would be a village about 20 miles outside.

MR. FOWLES: 20 minutes.

JUDGE PUGSLEY: Where?

MR. FOWLES: It is between Preston and Southport, so it is sort of south west of Preston.

JUDGE PUGSLEY: The sort of Wimbledon of the North West.

MR. FOWLES: Not really.

JUDGE PUGSLEY: I am a Lancastrian.

__________


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cart v wingfield day 2

Documents

practical settlement

defendant payment terms

terms of payment

mooring fee andor happy

permanent mooring

enforcement term

miss easty

licence fee