moore v bwb cross examinations november 3, 2011

7/30/2019 Moore V BWB Cross examinations November 3, 2011

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IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

No. HC07C02340

Royal Courts of Justice

The Rolls Building

Thursday, 3rd November 2011

Before:

MR. JUSTICE HILDYARD

B E T W E E N :

NIGEL PETER MOORE Claimant

- and -

BRITISH WATERWAYS BOARD Defendant

_________

Transcribed byBEVERLEY 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: [email protected]

_________

THE CLAIMANT appeared in person.

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

_________

E V I D E N C E

BEVERLEY F NUNNERY & CO

OFFICIAL COURT REPORTERS

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I N D E X

Page No.

JOHNSON, Mr. NIGEL IAN, Recalled

Cross-examined by Mr. Moore, Continued 1

MOORE, Mr. NIGEL PETER MOORE, Affirmed

Questioned by the Judge 16

Cross-examined by Mr. Stoner 16

FARROW, Mr. RAYMOND, Sworn

Examined by Mr. Stoner 42

Cross-examined by Mr. Moore 43

Re-examined by Mr. Stoner 62

BENNETT, Mr. RUSSELL, Sworn

Examined by Mr. Stoner 62

Cross-examined by Mr. Moore 63

_________

NB: This transcript was prepared without access to documents and spellings

and therefore quotes are unchecked.



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Mr. NIGEL IAN JOHNSON, Recalled

Examined by Mr. MOORE, Continued

MR. MOORE: Good morning, Mr. Johnson.

A Good morning.

Q I want to start with your tab 23, just briefly. This is the general terms and

conditions for boat licences in England and Wales.

MR. STONER: It will be bundle E1.

MR. MOORE: It is p.1 of 25. We looked at this yesterday. You will see that the

first line there says:

In accordance with s.43(3) of the Transport Act 1962 licences are

subject to the conditions which apply to the use of a boat on any

waterway which we own or manage.

The question I want to ask in respect of that is: how could such terms and

conditions apply in those areas where s.43(3) cannot apply?

A If its correct that s.43 cannot apply to any particular area they wouldnt apply

it, but my view is that s.43 does apply to the River Brent down at its mouth

with the Thames.

Q But you must, I would assume, accept that there are areas that are exempt from

43(3) regardless of whether you are going to apply it to the River Brent?

A Not if its a waterway which British Waterways owns or manages.

Q If you have look at the Transport Act, s.43(2) states that the Board will not be

exempt from any local enactment so far as it expressly provides for freedom

from charges or otherwise prohibits the making of any charge. So wherever

those areas may be, and I am not inviting you to agree that the River Brent is

one such area, but there are areas within the waterways controlled by BritishWaterways that are exempt from 43(3) by virtue of sub-section (2)?

A No, I disagree, because there may be, in certain circumstances, some freedom

of charges, but its one thing to have freedom from - just like there is a public

right of navigation on the Thames, there is still a right to impose licence

conditions. It is subject to payment of charges and certainly the imposition of

conditions.

Q I do not think it is appropriate for us to debate on that, but that was just what

I was putting to you. If I can go from to my authorities bundle, and it is thelast couple of pages, just to make it very easy. It is 454 and 455.



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MR. STONER: I will just hand it up, because the witness does not have it. (Same

handed)

MR. MOORE: It is p.454, which is the general information sheet regardingmoorings which I would presume was drawn up by the legal department.

A Yes.

Q To explain the basis on which they consent or withhold consent for such

moorings. It is the penultimate paragraph on p.54 that I want you to look at. It

says:

Accordingly, a boat moored on a BW canal is sloping over the bed of

a canal within BWs ownership, and BW has a common right of alandowner to give or withhold consent for such use of its lands and

give charge to that use even though the boat may be adjacent to the end

of a garden in other ownership.

Given that, for the purposes of these proceedings, the common law right of

ownership is being put aside, in what way would the argument on this

information sheet apply regardless for BW to give or withhold consent?

A I think it is important to note, as I said, its a general information sheet, its

general advice that we produced at the request of the Ombudsman because

shed had a number of cases where she had found against complainants but felt

that there was a misunderstanding out there, so we produced this general sheet

of general information. I think in it, if my memory ix correct, we used words

like normally and usually, so clearly this information sheet cannot cover

absolutely every situation, but the generality of the case is that with canals

where they are cut through land that was purchased by BWs predecessors it is

a straightforward case of trespass is a boat is moored to float over the bed of a

canal that BW owns.

Q Yes, I understood that, Mr. Johnson, but what I am asking is: in circumstanceswhere that would not apply what would be the basis to withhold consent?

A There are so many different types of situations, I couldnt speculate as to the

circumstances because there are many, many different situations.

Q You understand, I am not holding you to what you are writing here, but this is

what is said as the foundation. I am just asking ----

A Im not quite sure what you mean by foundation.

Q -- whether it has not been adhered to here?



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A There will be situations on rivers where BW might not have the control of

moorings - for example, where theres and ownership, and I think that

exception is referred to here.

Q It is referred to on the next page, but we are putting that whole issue outside ofthe equation for the purposes of this draft, so that the question would still be

with power to give or withhold consent outside of the ownership issue,

whether that is of British Waterways Board or anyone else?

A In the circumstances of Brentford, I would have that is a matter for legal

argument before the court.

Q Very well. Then I would ask you to go to D3, tab 66, p.604. Page 604 is

actually the coloured map of the waterways, showing both broad and narrow

canals and rivers. The page I want you to go to is, first of all, 608, which is amap, which shows the River Weaver. There is a note that says it is not

showing any great particularity, but you can see right down at the bottom of

the page we have got Nantwich, and then we have got the river going all the

way up through to Winsford, and then it carries on until it meets up with the

larger waterway. You will note from Schedule 1 to the 1971 Act that from the

main branch down to Winsford, it was classified as a river subject to the issue

of a boat licence under the 1971 Act. The waterway length was ending at

Winsford, even though it still carries on down to Nantwich. If you go back a

page you will see under Licence descriptions at C9 we have a reference to

The rivers only option, which is valid for river waterways defined in

Schedule 1 of the British Waterways Act 1971 as amended, and they are, as

the existing list, plus the River Weaver from Winsford Bridge to

Shrewbridge. You will accept, I would imagine, Mr. Johnson, that the list of

river waterways are those as defined, as it says here, by Schedule 1 of the Act

as amended?

A As amended, yes.

Q And that did not include the River Weaver from Winsford Bridge to

Shrewbridge?A I dont know because it can be amended by secondary legislation. I dont

know whether there is a provision in respect of the River Weaver, I dont

know. The other thing I would also add is that it is open to British Waterways

to charge the equivalent fee for what they call a river only licence, even if it

is a waterway that is not a river waterway.

Q That I understand. The point I am getting at, Mr. Johnson, is whether or not

you can unilaterally declare a public right of navigation subject to the riverboat

certificate regime under the 1971 Act if that has not been amended, as it had



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been in 1974, and later perhaps if there is such a legislation, but you are saying

you do not know of ----

A I dont know of one in respect of the River Weaver, but what I would observe

is that I think this is, in terms of licence descriptions - I would not assert that

this document is deeming that length of river to be a river waterway. It maybe, and I havent examined the document, that British Waterways has decided,

using its s.43 powers, to treat it as if it is. I would observe further that that is a

terminal waterway, so those waters beyond Winsford, if my memory is correct,

have no outlet other than the River Weaver, so if they are included in British

Waterways undertaking under the enabling Acts enabling it to charge licences

for it they may well have thought, that because the only outlet o it is a river

waterway, those waterways should be treated under the same terms and

conditions, given its discretion under s.43, as the River Weaver - its logical,

rather than having an isolated terminal part of that waterway subject todifferent licence conditions.

MR. STONER: My Lord, again I hesitate to rise, but my Lord has not actually got

to decide anything about the River Weaver. The witness has said he does not

know. It then becomes a matter of submission. In fact, the answer is found in

s.30 of the 1995 Act. It says that s.4 shall have effect as if it were on the River

Weaver from Winsford Bridge to Shrewbridge in the County of Cheshire. So

that is it, it was an addition in 1995. I interrupt the cross-examination to say

that is a non-point in this case.

MR. MOORE: I appreciate Mr. Stoners information.

MR. JUSTICE HILDYARD: I do not think you do not need and in the

particular context we cannot get further with the witness because the answer is

in some legislation which we now know about, which gives the warrant for the

change you have identified. I do not think we can probably take this aspect

further.

MR. MOORE: The only point I was wanting to make was it would require somelegislative power.

MR. JUSTICE HILDYARD: I think I have that point, but I do not think we are

going to get much more from it.

MR. MOORE: Very well. (To the witness) I would next like to go to D1,

Mr. Johnson, the very first page, the aerial photographs of the area that we are

looking at. If you can at them the right way up, as it were, north facing and the

rings at the bottom, you can see the oval there that marks the area that wewere concerned with where Ridgeway moorings were. There are no boats



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there on this particular date, but you will note that from the High Street bridge

right to the left and south of the bridge all the way around ----

A Sorry, can you identify the High Street bridge for me?

Q I will hold it up for you. Here is your High Street bridge, and there are theGauging Locks.

A Yes.

Q So it sweeps down around, comes back up underneath the Augustus Close

bridge that used to be the railway, and then it wriggles the river and goes

through the Thames Lock and then out in a fairly straight line to the Thames.

What I was wanting you to note from this is that immediately to the right of

the yellow that I have superimposed as marking the Ridgeway moorings, you

have got a number of boats in front of a little complex there between theyellow oval and where a branch of the river heads almost due north. That

particular location is noted in your patrol officers reports Henleys Wharf, so

he has Ridgeways moorings and then he has Henleys Wharf. I will not take

you through it at the moment but there quite a number of pages going back for

the previous ten years noting a constant use of both of these moorings over the

past ten years for quite a wide number of different lengths of time. The boats

on Henleys Wharf - I do not know whether you are aware of this, but as of

last week or this week, we were waiting for British Waterways officers to go

and have a discussion with the boaters at Henleys Wharf regarding the

payment of moorings to British Waterways.

A I was not aware of that.

Q The boats at Henleys Wharf have not been paying moorings to British

Waterways, they have been paying moorings to the landowner there.

Although I am not going to ask you to confirm something that it is outside of

your knowledge, it is, I believe, in Mr. Bennetts exhibits that these boats do

not pay moorings. On that ground, what I would ask is: why would British

Waterways Board not have given s.8 notices to any of these boats within the

last ten years on Henleys Wharf, even though they were, as BritishWaterways would understand, unlawfully moored?

A Ive no idea. Ive no idea of the history of these particular boats.

Q In principle, if they have been moored there for the last ten years and they are

not paying BW what BW they should for the consent to be there, then they are,

by BWs terms, unlawfully moored. So my question is: on that basis why

would they not have been s.8d at any time in the last ten years?

A Ive no idea.



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Q I can accept that. I would pose the same question for the point as to why also

that would not have been done for the previous ten years to the boats that we

had on Ridgeway moorings? I accept that the same answer would be that you

would not know. I want to move on to subsequent events, and these are going

to be covering the period since the s.8 notices were served. These are mattersthat we have not yet gone into in discussion, the interaction, if you like,

between British Waterways and myself and the other boaters from the time the

notices were served. I wanted to start off with D1, tab 27, pp.315 and 316. It

is a handwritten note from the young lady who was living on 'Kamelya'.

This is about a year after the notices were served and while we had a letter of

undertaking from the Board that while these proceedings were in flow there

would be no action taken to interfere with or remove the boats. That was a

letter of undertaking signed by Jackie Lewis, head of legal. Despite that -

I will not take you through it - this girl spoke to Nathalie Bannister, p.316.She refers to the fact that the boat is illegally moored:

I advise you contact Mr. Matthew Bannister, heading of mooring

licences at British Waterways offices in Brentford Lock who advised

me initially on the scenario.

She later, in more detailed submissions in subsequent court proceedings, gave

details of just exactly what she had been told by Mr. Bannister in the fact that

British Waterways Board could come along at any time whether she was there

or not, and regardless of the fact that all her possessions were on board, and

simply take it away, and that she could come back after a weekend away, find

that the boat had gone with all her belongings and she was rendered homeless.

The advice was given that she should move out as soon as she possibly could

and break the tenancy. That is the claim that she made in some detail in her

submission to the court. When I was initially apprised of this, I immediately

dropped a note to Matthew Bannister, because we were on fair terms, and that

is at p.317. I informed him of this letter that we had got from the tenant, who

had removed herself from it on the basis that BW could do what of course they

could not do by virtue of their letter of undertaking. I did write a very politenote to Matthew saying that I really could not believe that he would have said

any such thing, but I really did want written confirmation that he had not said

so. The response that I got was a simple one liner that he had forwarded the

matter on to the legal department of British Waterways. I can assure you, as

no doubt the legal department can, that that was completely ignored. So

I would ask why was it ignored?

A I havent had direct dealings with those matters. The person who dealt with it

in the legal department - I dont know off the top of my head who it was. You

say it was ignored. I just know nothing of those circumstances.



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Q Fair enough. I would ask whether you could say that it was likely to be

ignored?

A Im not quite sure what youre saying is being ignored. Clearly if a person

employed by British Waterways had acted contrary to the undertaking that had

been given, that is very regrettable, and if that was what has happenedobviously British Waterways would apologise for that. I dont know the

circumstances, I dont know whether any action did actually take place,

despite, you say, the words used by Mr. Bannister. I dont know just whatever

action he had in mind he followed up or not, I dont know. I would hope that

the legal advice gave him so clear advice, but I dont know whether it did or

didnt because I was not involved in that.

Q I do not know whether Mr. Bannister said that or not either - neither of us does

- but that is why I wrote to ask and that correspondence was forwarded to thelegal department for them to deal with and they did ignore it. There was no

correspondence back to me whatsoever. As you do not know anything about

it, I am just asking, as this is your department and you have got a head of it,

you say regrettable, I would put it in stronger terms but I will accept ----

A I am not sure what, I have not heard from Mr. Bannister on this point. You say

he said it was forwarded on. I have no idea whether it was or not. It is a

department that reports through to me, so, yes, I do have ultimate

responsibility for it, but obviously I am not involved in all of its day to day

operations.

Q You are head of the legal department, as you ----

A Not strictly - the head of the legal department reports through, yes.

Q You are the one standing here as the head of the tree, I am informing you,

whether you know about it or not, of what has happened, and if you have not

known that it did happen I am suggesting to you that it would be appropriate,

if you felt that it was wrong for them not to respond in any way at all, to have a

little word and make sure that this sort of conduct does not happen in the

future, and when somebody has a legitimate concern that is so serious that it isaddressed.

A I dont know the terms on which, if it was referred to the legal department,

whether it was referred by Mr. Bannister seeking advice for himself, or

whether it was referred to on the basis there was an expectation that the legal

department should respond directly to you. I dont know the circumstances. If

it was referred on the basis that it was expected that the legal department

should respond directly to you and if that did not happen, that is obviously an

unacceptable position, but I am not at all aware whether that was the case or

not.



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Q Thank you. If you go on to p.320 you will see an email from myself to

Miss Wright of Shoosmiths. Right at the bottom of the page I refer to this

incident as well as another incident where the very new patrol officer had

served a notice on one of our boats contrary to an undertaking given to the

court. I had written to Mr. Palmer and I was ----

MR. JUSTICE HILDYARD: Where are you looking now, I am sorry?

MR. MOORE: If you go to p.323, this is an email from myself to Peter Palmer.

Peter Palmer was the rather brand new local patrol officer who took over from

Mr. Farrow. I wrote a perfectly amiable letter to him because I did find it

offensive that they should serve a notice on a boat when they had given a letter

of undertaking that they would not do so. I was not getting snotty about it but

I did raise the matter and, as a matter of courtesy, suggested that if he had notbeen made fully conversant he ought to. I informed him that I was forwarding

notice of the violation to the Board and I said that it would be helpful, and this

is the third paragraph from the bottom, to know what instructions were given,

if any, to the young employee who boarded Gilgie a couple of days earlier.

In the penultimate paragraph I refer to another incident which is the one we

have already referred to with the young tenant being told that the boat was

going to be seized any time they wanted with the result that she became upset,

and so on. What I asked Mr. Palmer was, It would be helpful if you could

find out just who was responsible, and I would like to have some sort of

answer. It was 19th September, going back a page (given the way emails came

up), p.322, that I did a follow up and asked him whether I was going to get an

answer to my email any time soon. I did not get an answer. I imagine this

also is something that you were not acquainted with at the time?

A No, no, I wasnt involved in any of this.

MR. JUSTICE HILDYARD: I just want to ask: you have read the witness

statement of Mr. Moore with regard to these two incidents, did you? He deals

with them in his witness statement. Did you read that?

A I may have read it a while ago, my Lord, it is not at the front of my mind. Themost recent thing I read was his skeleton argument, so I havent ----

Q I think Mr. Moore is entitled to be a little concerned, and I share that concern,

that on matters where this was, to put it at its lowest, not BWBs, best or finest

hour. What procedures were there within your department to ensure that

people responsible for enforcement were aware of the undertaking given to

this court?

A Well, what I would say is, and certainly knowing, as has been mentioned,

Jackie Lewis, they would have taken any undertakings to the court veryseriously. She would have been particularly aware of it because, in fact, she is



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counsel - shes not a solicitor, shes a barrister. So I cant give precise

information as to what would have been done, but knowing the person she and

the seriousness with which she takes her duty, she would be very aware of the

nature and seriousness of an undertaking to the court. So, it having been

given, she would have made aware the appropriate people at the time. I dontknow what her decision was to who was appropriate to be made aware. As

I understand it, Mr. Moore is saying that it was a new employee that was

responsible for one of these boardings of the boats. Miss Lewis might not

have been aware of a new employee arriving, but I am sure at the time she

would have made aware the responsible manager and advised them that they

must take such an undertaking very seriously. I have not got the document and

I dont know what advice she gave. That is speculation on my part knowing

Miss Lewis as I know.

Q It may very well not be a matter which enables me to adjudicate on the true

legal issues, but it is a matter which is bound to rankle in the circumstances.

I feel I should express my own surprise that in respect of this matter covered

by Mr. Moore in his witness statement, so not a surprise to a witness, I gather

really that this is not something which you have focused on. Is that fair or

would you like to comment on it?

A I was made aware shortly before coming as a witness that the matter had been

raised and if it was raised, I should be aware and obviously knew that I should

express the regret of British Waterways that there had been, as is asserted, a

breach of the undertaking.

Q Regret is one thing, but how this really quite serious error, a breach of an

undertaking, is another. I think you have expressed one, but explained

ignorance of the other. Is that fair?

A In the short time I have had available to deal with it, it having been drawn to

my attention, it is fair to say that I have not - because I havent been in the

office - been able to find out the reasons. I can certainly make enquiries after

I leave court.

Q I would like to this happened in each case so easily. I will leave that for the

moment, but I hope I have conveyed my anxiety.

A Yes, Im sorry.

MR. MOORE: Thank you, my Lord. One of the main concerns that I have,

Mr. Johnson, was that following those incidents nothing was said to me. That

gave rise to a natural concern on my part that, not having been answered, and

having been ignored, there might indeed be some truth to the allegations that

the boats would be seized and taken away. On that basis I wrote to the court -it was probably, I suspect, not in my position to do, but I did not know what



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sort of route I could take to ensure that this undertaking would not be

breached, so I wrote to Mr. Justice Floyd, who was the Judge before whom in

the High Court we went over the interim injunction. You will see on p.320

I got a reply back from his Clerk, Clerk to the Honourable Mr. Justice Floyd,

which says:

I am in receipt of your letter and enclosure dated 31 August, which

has been considered by the Judge.

She notes that Mr. Justice Floyd does not enter into correspondence of this

kind and says:

You may wish to take legal advice in relation to this matter. I have,

however, at the Judges request, copied the documents that were sent tothe Judge and forwarded them on to Miss J. Lewis, Head of Legal,

BWB, together with a copy of this letter.

I still received nothing subsequent to that correspondence sent from the High

Court Judge to Jackie Lewis with an implicit suggestion that something be

done about it, and I would presume some reassurance given to me.

A At the moment I dont know what happened and what was done, as I said in

my response, but I will have enquiries made.

Q I am pleased to hear it, thank you. Can you go to D2, tab 38, p.531. It is an

email that I sent to Shoosmiths following a phone call that I regarded as

disturbing because, whether I understood it correctly or not, I understood that

BW were prepared to come and take the gates down on the grounds that it was

on their land despite the fact that that area of land was within dispute between

the two of us as to whether it was covered by theDarwin judgment. I am just

going to ask you whether or not you or anyone in the legal department were

made aware of this?

A Well, I dont know what was the source of your understanding, but certainly

Im not ----

Q It was a phone call from your lawyers.

A -- aware of the details of this.

Q Can I then simply ask, Mr. Johnson ----

A Sorry, you had a phone call from Shoosmiths, is that right?

Q Yes, and it was suggesting that British Waterways Board would have every

right to come down and simply remove the gates on the basis that it was, theyasserted, on their land, even though that was a matter still in dispute. Given



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that is also something that you say you do not know anything about, I would

like to have a reassurance from yourself that you would understand than an

action like that taken while the ownership of the land was still in dispute was

not something that British Waterways are ever going to contemplate?

A Im just not sure that - are you asking me to give an undertaking to the court ofsome kind? Without understanding the nature of the dispute or the extent to

which they felt there was certainty about title - clearly if it was, or is, British

Waterways land they would have been entitled, but I dont know at that stage

what ----

Q I am not asking you to tell me whether or not you think that BW own the land

or do not own the land or have the gates there. I am asking that, in the case

where there is no surety that British Waterways do own the land on which the

gates are, you will wait until any such determination has been made by a courtbefore you assert a right previous to that decision - in other words, are you

going to commit a criminal offence or are you not, basically?

MR. STONER: My Lord, I hesitate to interrupt because again Mr. Johnson says he

is unaware, but what I am acutely aware of is that there was a court order in

the Geronimo action, and it is BWs position that there are gates and fence,

which include going over part of the land as to which BW obtained an order

from Mr. Dowling saying that that was its title. The gates have not been

removed because, as I indicated in my skeleton, another dispute has arisen as a

consequence as to the exact scope of that order. That is the context in which

all these discussions took place, and if Mr. Johnson is not aware of them, it is

not a matter for him, it seems to me.

MR. JUSTICE HILDYARD: I think that is right in this sense, by which I do not

mean to suggest any of it was wrong, but we are trespassing into matters which

are affected by other matters such as the Geronimo action, but more generally,

and possibly more importantly for present purposes, you are permitted, I think,

to elicit what, so far as Mr. Johnson was aware, BWB did in this regard, and

you are entitled to elicit how it was that things came to be done in breach of acourt order, but you are not, I think, to use this as an opportunity to extract

promises or views on the law, or anything like that, because ultimately the way

it will play out is that you will make observations to me as to what was said

and what was not said in the witness box, and I will take them under

advisement, as the Americans say, and see what should happen in

consequence. What I am worried about is that you are beginning to use this as

a means of extracting undertakings or assurances which is not really an

appropriate process.



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MR. MOORE: I accept that, thank you, my Lord. (To the witness) Can I ask you

then to go to p.448, this is still in D2. Do you have that, Mr. Johnson?

A Yes.

Q This is an email from myself to Tony Reynolds of British Waterways Board,who is in the accounts department. I had some time previously got a letter and

a bill demanding that I pay a 250 overstay charge on a boat that I said I did

not own, and nor was in charge of at the time. I got a phone call from

Mr. Reynolds and it was a very considerate phone call, as I acknowledged,

saying that really they wanted proof that I was not the owner of the boat at the

time even though I had, the moment I got the bill, written off to the legal

department and informed them of the details of the new owner. What I did in

response was to say to Mr. Reynolds, I do not believe it is absolutely

necessary, but, fine, I will send you the proof, and on p.449, on15th September, I said, Further to my email, I have received copies of the

documentation, because they were not in my possession, and there were these

two documents establishing when the boat had been transferred by BMS to the

new owner. Then I got a letter from some debt recovering solicitors saying

that British Waterways Board had instructed them to pursue me for 250 that

they (British Waterways) claimed that I owed them. I wrote back to them -

this is on p.450 - informing them of this and giving them the details and

suggesting that they should verify with Mr. Reynolds that they had received

the appropriate documentation some days ago, and I said, I am sure, this is

in the penultimate paragraph, that if you get back in touch with him he will be

able to confirm this. The next thing I got was the issue of court proceedings

against me. On the basis that I had received this court summons I rang up the

debt collecting solicitors and said, have you checked with Mr. Reynolds, as

I asked you, as to whether you had received the documentation establishing

that I was not the person to be pursuing in this matter. They had agreed that

they had, and yet they were told to pursue the matter anyway. Were you aware

of this?

A No.

Q It kept going backwards and forwards obviously between these solicitors and

your legal department. I am quite sure, Mr. Johnson, that my name is flagged

up in bright red somewhere along the line in the system.

A The debt collection solicitors are engaged by Shared Services Centre, so I am

unaware - I would be surprised, but I am unaware whether the legal

department would have been involved in this at all. Debt collection work is

not done by the in-house legal department.



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MR. JUSTICE HILDYARD: There is a central debt collection department within

BWB, is there, and they bring in debt collection solicitors as and when

required?

A Thats correct, it is what is called our Shared Services Centre, based up in

Leeds. The legal department was involved in the original retainer of these debtcollection solicitors, but the system is that on debts such as these, which are

usually licensing type debts, the Shared Service Centre instructs the debt

collection solicitors direct.

MR. MOORE: As it has nothing to do with your department, Mr. Johnson, I do not

suppose there is any further questions that I can usefully raise. I will note that

the evidence is there, that British Waterways Board did, on the evidence of the

debt collecting solicitors, continue to pursue me for very many months on this.

I will leave all this interim history for the moment, Mr. Johnson. I would justlike to revert back to the content of some of your answers to the Judge

yesterday with respect to the protocols, as it were, that you followed in the

exercising of s.8 powers. As I understood it, and I would ask you to confirm

that, you said that you had drawn up these procedures so that the process of

serving the s.8 notices would be conformable to the Human Rights Act, that it

was necessary to go through this procedure.

A Yes, I should make it clear that there was a difference between what is called

live-aboard cases, where a boat is known or suspected to be being used as a

home, that is a procedure for that which is more elaborate because that is when

human rights issues arise, than when a boat is, as is the case in the majority,

not being used, or we are unaware of whether or not it is being used as a home.

It is for others to give evidence, but my understanding is that initially there

was not an awareness of boats being used as - dont take my word for that,

others would have to give evidence on that. As I said, there are two different

procedures, one much more elaborate where there is any reasonable suspicion

that a boat might be being used as a home, because that does bring into play

serious human rights considerations, and where it is a typical leisure boat

situation where its not used as a home, and it is perhaps a slightly more

truncated procedure.

Q So the live-aboard procedure would be in that series of five letters that we

were looking at yesterday?

A Yes, its a more elaborate process. British Waterways perfectly understands

that where it is someones home you have to take any enforcement action very

seriously.

Q So when it is a standard leisure board you would just do the one letter to start

off with?



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A I forget off the top of my head the precise process, but it is a more truncated -

you can get to the actual issue of a s.8 notice - of course is 28 days notice.

You can get to it sooner, it is a more truncated process.

Q Would you agree that the seizure of property is also a concern under theHuman Rights Act. It is not just rendering somebody homeless. The Act does

give a right to property as well as peaceful enjoyment, so it would be

appropriate, you can truncate it, as you have said to have formulated a pre-

warning thing before you went through the remainder of the procedure to s.8,

even if it was not being lived on?

A I agree with that in all normal circumstances, but there is an element of

discretion, as I think was apparent from those letters, for the local enforcement

officer. There is an element of discretion if circumstances are other than

normal, if I can put it like that, and I think that one has to bear in mind that theservice of a s.8 notice, as originally devised by Parliament, was indeed that

that notice then gave the recipient of the notice sufficient time to remedy the

situation. So any notice of a notice, if I can put it like that, is a matter of what

may be seen as appropriate practice, but in urgent situations or other

circumstances, it is difficult to speculate, clearly if Parliament at the time

thought the 28 days notice before any actual movement of the boat was

sufficient, there may have been circumstances where we just rely on that 28

days notice, but definitely not, I may say, in a live-aboard situation but in

other situations there may well be circumstances where it might be appropriate

to serve the 28 day s.8 notice in advance of any earlier letter.

Q Quite understood, Mr. Johnson, the fact is, as we have it in the 21st century,

that the previous legislation is now to be applied in accord with the Human

Rights Act, and, as I understand it, that was why you sorted out and worked

out this procedure that you have been describing so that there would be no

grounds for a court to say, You are not acting appropriately. Acting on a

legislation that came before the Human Rights Act is not appropriate, so you

have put in place a procedure in a set of letters so that, if it comes to the court,

the court will say, You have done all that you could, even applying a ratherdrastic law depriving people of their rights, you have gone through an

appropriate procedure and therefore we would determine that that was

acceptable?

A Yes, in the case of any sort of live-aboard, where it involves someones home,

we always follow the procedures so that the matter goes before the court and

the recipient of the notice has an opportunity to make their position and

circumstances known to the court, and we will only then actually act on a s.8

notice, having obtained a declaration from the court that it is an appropriate

exercise of our statutory powers.



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Q What would you say that the chances of a court giving you that declaration

would be on the basis of that appropriate procedure had been followed? I do

not want to labour the matter.

MR. STONER: My Lord, this is not a matter for Mr. Johnson.

MR. JUSTICE HILDYARD: You have elicited this, that the sequence of letters

was devised in order to make sure that the Human Rights Act was complied

with. I think you have been told that in the case of live-aboards it was their

invariable practice to follow that sequence, and the procedure including going

to get a declaration of the court before evicting anyone. Those are the three

things you have elicited, and I daresay your next question is: what happened

in the various cases in this context?

MR. MOORE: Well, my Lord, and Mr. Johnson, if you can just go to your most

recent statement, your p.17, bundle C, para.82, if you could just read the first

sentence.

A I say here:

For the reasons explained below, the standard procedure was not

followed in this instance in that letters were not to sent to Mr. Moore

prior to the service of the relevant notices on the vessel. This was

because of the circumstances in which the vessels came to be on the

I am informed by Shoosmiths that those circumstances, the details of

which are outside my knowledge, will be dealt with by another

witness.

Q Exactly, the circumstances in which the vessels came to be was something that

you told us yesterday was beyond your knowledge and it is going to be for

another witness. The one thing that you do know is that the standard

procedure was not followed in this instance?

A Well, I dont know whether there was an awareness or not, or a suspicion, that

these were live-aboard boats. As I said, there are two processes: one, quite anelaborate one where there is a suspicion or a knowledge that the boat is used as

someones home, and a different procedure where that is not the case. I dont

know here whether there was an awareness at that time that these boats were

being used as someones home.

MR. MOORE: Thank you, Mr. Johnson. My Lord, I have no more questions.

MR. JUSTICE HILDYARD: Mr. Johnson, I have no further questions, but I would

like clarity. I am not going to formally release you in the meantime, but I amvery grateful to you for staying on today, which I know is likely to have been



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difficult for you, given your other commitments. I will discuss with BWBs

counsel what we do next and whether we need you back, but for the moment

you may go about your business and thank you very much for being flexible.

I am most grateful to you. Thank you.

(The witness withdrew)

Mr. NIGEL PETER MOORE, Affirmed

Questioned by the JUDGE

MR. JUSTICE HILDYARD: What shall we do about his witness statement.

MR. STONER: I think, if we just say for the record ----

MR. JUSTICE HILDYARD: Your witness statement, Mr. Moore, is in bundle B.

You have put forward three witness statements, have you not, but I will be

treating only one of these as before the court really, the last one. What is the

position, which witness statements are you relying on?

A I believe that it is adequate to rely on the latest one. I think the first two were

put in for sake of form and completeness, so far as Im aware. I hope that

I covered all the material as far as comprehensively as I could in the final

witness statement.

Q So a small reservation lest something emerges, your evidence in these

proceedings is the witness statement ending on p.191 of the claimants witness

statement bundle - is that right?

A I imagine so, my Lord.

Q Have you got it there with you? I am sure you will need it.

A Yes, that will be from 154 to 191.

Q Is that your signature on p.191?

A Yes, it is.

Q Are the facts you have stated in the witness statement true?

A They are, my Lord.

Cross-examined by Mr. STONER

MR. STONER: Mr. Moore, I am going to try and resist the temptation of arguing

the case with you and just confine myself to some rather specific points of fact

now. It is right, is it not, that of the vessels that were referred to in the



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particulars of claim, the only vessel that remains in this particular location is

Gilgie?

A Gilgie, yes.

Q That is the only vessel that remains?A Yes.

Q So Ere-Comes-Trouble, which had the move on notice served on it, and the

other, I think, vessels which had s.8 notices, they have all moved on to

pastures new?

A Yes.

Q Perhaps, if I can just ask you to take bundle E2, it is one of the thin bundles,

I just want to look at a photograph. If you have got E2, perhaps you can findp.35, it is the first photograph behind the tab in the middle of the bundle. We

see in the bottom right hand corner that this is a photograph taken by a Patrol

Officer, which was then an Enforcement Officer, which is then appended to

Russell Bennetts statement of 6th July this year. The large vessel we see half

of, or approximately half of, on the left, that is the Dutch barge Courage - is

that right?

A Correct, yes.

Q That is nothing concerning this action. Then we see there are three vessels

alongside each other. Gilgie is the green and orange vessel on the outside of

those three - is that right?

A Correct, yes.

Q The vessel in the middle is a vessel called Lazy Daze?

A Correct.

Q The one we can just see nestled in, dark blue, right against the bank is a vessel

called Rocking Horse?

A Correct.

Q It is right, is it not, that Rocking Horse and Lazy Daze have both been in

those locations, in fact since before the vessels that are referred to in the

particulars of claim were evicted from Workhouse Dock?

A Correct.

Q Those vessels have been licensed by British Waterways to be there?

A Correct.



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Q As I understand it, and perhaps you could help clarify, you now live on

Gilgie?

A Correct.

Q You have lived on Gilgie since about when?A The end of 2009.

Q Previously you were living on a vessel called Platypus?

A Correct.

Q You were living on Platypus, were you, when the boats were evicted from

Workhouse Dock?

A I was, yes.

Q You do not own Gilgie, do you?

A No.

Q You did not own Platypus either?

A No.

Q Whilst you have still got that bundle, would you go to the plan at the

beginning of the bundle, E2, p.1. This is a plan we have got elsewhere. In

particular I refer to in my skeleton to help explain the particular site. My Lord

will recognise it as the same as E1, 117, just not quite as well copied. As

I understand what you said yesterday, you accept the correctness of where it

identifies the location of the vessels, apart from Ere-Comes-Trouble which

you say was alongside number 8.

A Numbers 7 and 8. Its nothing to get too pedantic about, but where you have

got the figure 8, that was the limit of Ridgeway Moorings. That corner of the

building was the limit. These boats are all drawn as if they are the same size,

which of course they werent, there were some short and some long, etc. So 7

and 8 fitted within where the actual 8 is, and 9 was alongside both of them.

Q Apart from the basis, and on the basis that the plan is not intended to be

absolutely accurate, it is indicative of where the vessels were?

A It is.

Q You accept the accuracy of this plan?

A To that extent, yes.

Q In effect, if we see number 1 and 2, Rocking Horse and Lazy Daze, we see

number 3, which is identified as Kamelya or Goldfinch, where Gilgie isnow is in number 3 location?



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A Thats right.

Q To put a time on this plan, this reflects the time when the various notices were

served, so that would have been in July 2007?

A Yes.

Q That was as a consequence of Geronimo Limited having evicted these vessels

from Workhouse Dock?

A Correct.

Q So the vessels that Geronimo evicted from Workhouse Dock, if we are looking

at the key to boats, are numbers 3 right down through to number 9?

A Correct.

Q Just for completeness were there any other vessels that they evicted that hade

moved straight off?

A Yes, there were a number of other vessels. There was a full 70 footer on

mobile that moved off. There was another one, a small narrow boat, that went

over to the other side. Ive just realised that theres a slight inaccuracy in what

Ive said. All these boats, 3 to 9, were not those moved out. Number 8, which

you have got down there as Lilcha, number 8 had been there for about a year.

That is one that I had moved out of the dock and informed British Waterways

Board that they could take it off whenever they liked - I gave them full

authority to - rather than have it over blocking up the towpath.

Q I do not think it is going to be particularly relevant, but you did not own that

vessel?

A Lilcha?

Q Yes.

A No.

Q Was it a vessel which had been simply left or abandoned in Workhouse Dock?A Almost. It was a vessel owned by somebody who started work on it, and in

the usual way managing to do the disintegration of it with rather more

enthusiasm than the rebuilding and ran out of money, and in the end I said,

Good-bye.

Q So you moved it out of Workhouse Dock and you invited British Waterways to

come along and ----

A I rang up Mr. Bannister, and I said, Look, Im evicting this boat, and the

owner is quite well aware that Im doing so, and I said, Id rather put it on



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the towpath, but Im quite prepared to put it at the end of my moorings and

when youre ready come along and pick it up.

Q So and so although this is one of the vessels that the s.8 notices were served

on, you have got no real complaint about that particular vessel?A My complaint is that it wasnt done the year before that, and in fact I did not

include that in ----

Q Just a fairly minor point, but you said to Mr. Johnson yesterday that there was

no court order entitling Geronimo to evict the vessels from Workhouse Dock?

A No, thats not what I told him.

Q Right, I misunderstood.

A I was referring to Mr. Johnsons statement in his letter to me, his email to me,that the court had found that the boats were trespassing where they were

moored.

Q Right, so you accept that Geronimo had court authority and that they were

bailiffs who came along - I notice in your witness statement you refer to them

as fake bailiffs, but they were bailiffs, but they were bailiffs of the High

Court who came and removed the vessels?

A I dont accept that, no.

Q You do not accept that they were of the High Court? You do not accept that

they had any authority?

A No, I dont. I asked them for it and they wouldnt show it. There was no High

Court order regarding Brentford Yacht & Boat Company.

MR. JUSTICE HILDYARD: Could you say that again?

A There was no court order respecting Brentford Yacht & Boat Company, my

Lord, neither was any enforcement order on anything else. All they had was a

High Court order respecting my former company, Ridgeway Motors

(Isleworth) Limited. They sent that into liquidation fairly promptly, and thetenants left on the site were a completely different company. It would have

been open to Geronimo to have obtained or applied for a court order respecting

Brentford Yacht & Boat Company, but Brentford Yacht & Boat Company was

in possession of a notice from Geronimo terminating the lease under which we

were holding over. That was to terminate I think around 13th October 2007.

They decided to jump the gun. I believe Ive got a copy of the landlords

determination.

MR. STONER: To be fair I was going to go to it, but actually you have answeredthe note. For my Lords note, the relevant documents are in D1, 162 through



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to 165, and it does appear that Geronimo were relying upon the earlier

possession order obtained by a company called Auts, or something like that,

against Ridgeway.

A And they didnt even get an enforcement order in that respect either.

MR. JUSTICE HILDYARD: Just help me between the two of you, I feel it will

give me a better geographical sense. What is the extent of Workhouse Docks?

MR. STONER: I think probably the best way of looking at Workhouse Dock - now

I have said this I will not be able to find the photographs, but in fact there were

some photographs Mr. Moore exhibited relating to the day of eviction which

show Workhouse Dock quite nicely. It is bundle D1, and it follows on from

where I was just mentioning, so p.167. There appear to be some photographs

of the bailiffs at work posted on the local forum website.

MR. JUSTICE HILDYARD: As we have got there, can we just have a look at 162

and 165. Were you asking questions about that?

MR. STONER: I was going to, but Mr. Moore accepted what I was going to put.

What I was primarily going to refer to is at 163, there is a local newspaper

report which refers to Marine bailiffs backed up by police serve a High Court

order on the Brentford Yacht & Boat Company. These are all documents -

this is out of BWs knowledge. The actual documents, there was a court order

which did not involve them. Then at 164 it says, Please find attached a press

statement to the enforcement of possession order, which was sent to, amongst

others, to the local authorities. Then the press statement is at p.165, it is the

background section at the bottom where it says:

On 17th October 2005 the High Court ordered that Ridgeway Motors

give to Auts Limited, the then owners, possession of Ridgeways

Wharf. In 2006 Auts sold Ridgeway to Geronimo and in 2007 Auts

assigned to Geronimo the benefit of the October 2005 High Court

order.

So that appears the one that was actually in force, no doubt on the grounds that

a possession order is good against the whole world, etc.

MR. JUSTICE HILDYARD: So the order of the High Court related to Ridgeway

Motors Limited?

MR. STONER: Yes, it was against Ridgeway Motors Limited, the then owner of

possession of Ridgeways Wharf, and I think, Mr. Moore, perhaps you can help



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his Lordship. Sometimes Workhouse Dock may be referred to by some people

as also Ridgeways Wharf?

A Yes. Ridgeway Motors (Isleworth) Limited was a company that was set up in

about 1945 and actually purchased this site in 1947. It included a property

actually on the High Street at the time and ran all the way down intoWorkhouse Dock. They were there for an awful long time, so the whole of

both the land north of the dock and the dock itself became known as

Ridgeways. If you still had this ----

Q Perhaps we can go on to the photographs. They start at 167. They are not

particularly illuminating on 167 itself, and then over on 168, as I understand it,

but perhaps you can clarify, Mr. Moore, the narrow photograph in the middle

is inside Workhouse Dock?

A Thats correct, yes.

Q Whereas the photograph at the bottom, I believe that is you straddling the two

vessels. That is out on the Grand Union Canal?

A Yes.

Q Then over the page, 169, again not a fantastically illuminating photograph, but

it is Workhouse Dock on the right hand side that we can see where are, is it

not??

A Thats right, the concrete flood defence wall the mesh on top, which is running

on the left, that is the boundary fence.

Q Then over the page, 170, it is not the greatest print, but we can see now that the

tide has gone out, but one can begin to see more of the landscape. That is

Workhouse Dock that we can see there?

A Thats right, yes. Where the boat is, underneath a gantry, thats what we call

the tidal grid, which is what I was referring to before. Theres a slipway

alongside it, and the odd shape buildings, I dont know what you call them,

those are Ridgeways buildings. The little white hut is also in Ridgeways.

The buildings behind are not.

Q Then probably the best photograph, which gives some sense of the size of the

dock, is at 171 at the bottom. That presumably is later in the day after the tide

has gone out and after eviction has taken place?

A Yes, thats standing on the westernmost bank where the first photograph was

that you saw, and looking more or less due east. The entry into the Grand

Union Canal is the top right.

Q One can just see in that top right there appears to be something across thatentrance, which I assume is what you can then see in the top photograph?



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A Yes.

Q And, as I understand it, the bailiffs put that in place to stop vessels going back

into Workhouse Dock?

A Im not quite sure what - they actually put a chain across. This is not tied, thatwas just pulled out of the way. That swings to and fro with the tide. It wont

stop a boat coming in, it will just move aside, but they put a chain across.

Q Hopefully, my Lord, that assists in relation to giving some idea of the scope of

Workhouse Dock.

MR. JUSTICE HILDYARD: Yes. I am still slightly unclear as to the interest of

Ridgeways, the company.

MR. STONER: Perhaps, Mr. Moore, you can just explain to his Lordship what

interests in the dock itself Ridgeway had, or claimed to have?

A Yes. Its rather complicated, my Lord.

MR. JUSTICE HILDYARD: Does it matter? These names, I do not know whether

they ----

MR. STONER: I do not think it is going to actually impact upon it. I think it is

common ground that it was a third party, Geronimo, who evicted the boats

from Workhouse Dock. Then, my Lord, it is in effect only engaged once the

vessels are out on the Grand Union Canal and have the notices served upon

them.

MR. JUSTICE HILDYARD: All right.

MR. STONER: You can put D1 to one side now, Mr. Moore. I just want to go to

the service of the actual s.8 notices. This is partly in response to the questions

you were asking Mr. Johnson yesterday about due process. Was I right in

thinking that you did say at one point that if due process had been followedthen things may have been very different because the vessels may have had

time to determine what they were going to do?

A Yes, if the standard procedure had been followed and they had raised a quibble

about us being unlicensed then, as evidenced by those that were licensed

voluntarily, three of them would have been licensed. What the other two

would have done, I dont know. Lilcha was abandoned anyway, and the

other one had moved off. So the answer is that the response would not have

been the same in everybodys case, but certainly with the three that voluntarily

licensed their boats, they obviously would have done had they been asked,which they were not given the opportunity.



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Q Am I right in thinking that you were not actually the owner of any of the

vessels?

A I had a part-ownership in Saifti.

Q But not in any of the others?

A No.

Q Can I ask you to turn to a bundle we have not yet looked at actually, which is

bundle F. It is one of the short slim bundles. This is, in fact, the

documentation concerning the injunction, but there are a couple of documents

I want to. Just one point in passing, if you could go to p.26, you will see there

the most relevant two s.8 notices, and Gilgie and Platypus. We have

looked at this form of notice before. The paragraph in the middle says, TheBoard hereby give you notice, etc, and at the end, the last two lines, it says:

and s.8 British Waterways Act 1983 was just printed overleaf and

forms of this notice will apply.

Then the next page, p.27, is a blank form of notice, and then p.28 is actually a

copy of the reverse side of the notice. I just wanted to get you to confirm that

that was what was on the reverse side of the notices that were served on the

various vessels?

A Its a long time since Ive seen them, Mr. Stoner, but I am perfectly prepared

to accept that.

Q Then if you go over to p.29, you will see here some email correspondence.

I am primarily looking at the larger of the emails on this page. It is from those

instructing me, my instructing solicitor, Miss Wright, and it is addressed to

you, it is August, so a few weeks, about three weeks or so, after the notices

have been served, and it says;

Dear Sir,

I have today been instructed to act on behalf of British Waterways in

relation to the application made by you for injunctive relief restraining

my client from interfering with those boats known as Platypus,

Gilgie, Kamelya, Ere-Comes-Trouble, Kalzar and Saifti,

which are currently moored on the tidal stretch.

Just pausing there, it is right, is it not, that you made an application for an

injunction, in effect, to prevent any action being taken on the s.8 notices?A Correct.



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Q If we carry on, it says:

I have had sight of your application notice and accompanying

documentation. You sought written confirmation from my client byemail at 12.05 on 8th August requiring written confirmation by no later

than close of business the following day that there would be no

interference with the boats or with the use of the waterway at

Brentford, failing which you would issue injunctive proceedings. The

written assurance which you sought required a blanket assurance which

would be binding on my client without limitation for evermore. Such a

request is clearly unreasonable in circumstances where there was a

clear dispute between the parties as to the interpretation of the enabling

act of the Transport Act.

Furthermore, in light of the fact that the s.8 notices served on the

various boats did not require removal until 18th August and the fact that

you are clearly well versed in British Waterways live-aboard position

procedure, the time limit within which you requested a response from

my client was also unreasonable.

I have taken my clients further instructions in the light of your

application for injunctive relief and can confirm that in an attempt to

avoid wholly unnecessary legal costs, my client is prepared to give a

qualified undertaking to you that it will not seek to interfere with or

remove the boats listed above and their current location on the

riverbank of the Grand Union Canal at Brentford.

Then the qualification is:

Until such time as either you or my client has in writing to the other

conceded its position, or alternatively there has been a final

determination by Brentford County Court, which is the correct court towhich any such application for declaratory relief should be made, of

my clients rights to require the owners or occupiers of the boats listed

above to hold licences to use the waterways and/or permanently to

moor on the waterway, failing which it should be entitled to remove

the boats.

So it is right, is it not, that the response of British Waterways was to say that it

was prepared to give an undertaking that it would not interfere with the

vessels, or remove the vessels, pending a determination either by agreement orthrough the courts?



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A Correct.

Q Ultimately that undertaking was accepted by yourself?

A Correct.

Q So that was in the middle of August. Would you put bundle F to one side and

find bundle A,

MR. JUSTICE HILDYARD: While that is being done, I wonder if I might ask at

some point for a chronology to be prepared, so that I can see the sequence of

events.

MR. STONER: Particularly around the eviction?

MR. JUSTICE HILDYARD: Yes.

MR. STONER: Yes, my Lord. In bundle A, towards the beginning, behind tab 2

you will find your particulars of claim at p.3, and then if we go over to p.4,

you will see there, para.15:

In response to my application for an injunction against their acting

upon these notices, British Waterways offered to give me a written

undertaking not to interfere with the boats until one of us has conceded

their position or until the matter had been determined by the courts.

Upon their providing me with that undertaking on 14th August,

I withdrew my application for the injunction.

Just pausing there, that is the undertaking and the application we have just

previously been referring to, is it not?

A Thats right, yes.

Q Then over the page:

It is now three weeks since British Waterways signed that qualified

undertaking not to interfere and we continue to suffer consequential

losses in the absence of their conceding that the s.8 notices should be

withdrawn. For so long as the situation continues our homes remain

under threat and our business is paralysed. It is a matter of some

urgency therefore we apply to the court for determination of the

issues.



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So these proceedings were issued. As I understand it, there was not much, if

any, dialogue between the giving of the undertaking and the issuing of these

proceedings?

A There were letters between myself and, I believe it was, Jackie Lewis, because

the understanding was that we were going to sit down and talk the issue out.Every time I wrote I got a letter back saying, We are needing to get some

more copies, and I think by the end of a few weeks it was, No, we are

consulting counsel, which was probably you. At that stage, I thought, well,

the offer to negotiate doesnt sound to me as if it was made in what I thought

was good faith, and their legal action was being considered. So I felt that it

was wiser to pre-empt it.

Q I just suggest to you that the reality is that if there had have been letters ----

A There were emails.

Q No, if there had been letters along the standard form of letters, if British

Waterways had realised that the people were living on the vessels and there

had been those standard letters, the reality of the situation, Mr. Moore, given

the reality of the scope of disagreement over the last four years, is that these

proceedings would have occurred in any event, would they not?

A Well, I would have hoped not, Mr. Stoner. I would have hoped that a result of

the discussions between us would have been positive.

Q Let me put it another way. It would have only have been a positive outcome

from your point of view if, in a fairly short course, British Waterways had

simply conceded that it had no entitlement to serve s.8 notices?

A If they had been, as I thought, genuine and had given me an indication that

they were prepared to talk about it, which is what I had anticipated at the time

of accepted the undertaking, then I dont see where there would have been any

time pressure at all. The time pressure I felt was once I realised that they were

instructing counsel. That was an alarm bell.

Q Did that not give you the indication that they were actually seriouslyconsidering the position that had arisen?

A I think the response I got from, I think it was, Jackie Lewis that it did indicate

that they were taking it rather seriously, and, as I recall, my response was that

if there were matters on which you were so unsure that you needed to go and

call in outside counsel, then that is an indication that you should have thought

about that before you took such a drastic step of issuing s.8 notices.

MR. JUSTICE HILDYARD: Can I ask that, as far as you can and not rigorously,

you address your answers to me. It is a strange system, but you are beingasked questions for the answers to be given to me. I am finding that



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sometimes I lose, particularly at the end of a sentence, what you are saying.

So if you can try and maintain that, that would be helpful.

MR. STONER: I am not going to argue the case with you. There is just one further

point to ask you to clarify which is this: apart from the unfortunate incident ofthe notice being served on Saifti, which I will come back to, British

Waterways has never actually taken step, has it, since it gave that undertaking,

to remove the vessels or cause you to believe that they are going to remove the

vessels?

A Cause to believe. They havent taken action. The threat from Matthew

Bannister, despite the undertaking that he was going to remove, in that

particular case Kamelya, is a very direct threat ----

Q As you fairly put to Mr. Johnson this morning, you do not know whatMr. Bannister said, and the lady on Kamelya is not here to give evidence,

but ----

A No, what I do have is the fact that Mr. Bannister refused to say that he had not

said it, which is quite enough to worry me.

Q Let me just put it as a neutral fact, if you agree this: at the time Mr. Bannister

had that discussion you had issued proceedings where the question of the

validity of the boats staying there was a matter before the court?

A Yes, it was. I think it was about a year later, or something like that.

Q Apart from that incident, there is nothing else that caused you to believe that

British Waterways would somehow seek to renege on its undertaking and

suddenly remove the vessels in the dark of night, or however?

A They didnt give me any overt reason to think so.

MR. JUSTICE HILDYARD: Sorry, say that again?

A They didnt give me any overt reason to believe so, thats fair to say.

MR. MOORE: Thank you, Mr. Moore. Just returning to the s.8 notices, Gilgie,as I understand it from your particulars of claim, was actually a vessel which

was being worked on at the time - is that right?

A Thats right, its engine was in bits.

Q So there was no question of that vessel being let out for hire at the time the s.8

notice was served?

A No.

Q So the vessels came off of Workhouse Dock. It is right, is it not, that at thattime none of the vessels apart from Ere-Comes-Trouble were licensed?



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A Thats correct.

Q So just concentrating on Gilgie, that was served with a s.8 notice. The owner

of Gilgie, as I understand it, was Mrs. Gillian Olchae?

A Yes.

Q As I understand it, she remains the owner of Gilgie?

A Yes.

Q Did you refer the s.8 notice to her, or did you simply deal with it yourself?

A Refer to?

Q Did you receive the s.8 notice for that vessel, and indeed the other vessels?

A No, each of the vessels had the notice attached to the boat. I, personally,didnt get served with any. The boats themselves individually were.

Q The notices were attached to the vessels?

A Yes.

Q That is one of the matters you complain of?

A No, you can attach a notice by sticking it to the window or clipping it to the

railing without getting on board.

Q I follow. My point is simply this: you issued these proceedings, you are not

the owner of any of those vessels. Did you refer the s.8 notice - I am

particularly interested in Gilgie, because that is the only vessel that is left - to

Mrs. Olchae for her to deal with?

A I am sorry, Mr. Stoner, it is my fault. I am not quite understanding what ----

Q Let me be more specific. A s.8 notice is clearly, we will say, directed at the

owner of a vessel. You have confirmed that you were not the owner of the

vessel, or any of the vessels apart from your interest in Saifti, and I am just

trying to ascertain whether you, in fact, referred the s.8 notice to Mrs. Olchae,or whether you acted on your own volition?

A Are you asking whether I ----

Q Let me break it down ----

A Whether Mrs. Olchae approved of my taking the action - is that ----

Q Let us break it down. You come along, you find the notice just on Gilgie.

Did you speak with Mrs. Olchae before corresponding with British

Waterways?A Yes.



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moore v bwb cross examinations november 3, 2011

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