moore v bwb on human rights

7/30/2019 Moore v BWB on Human Rights

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IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

No. HC07C02340

The Royal Courts of Justice

Thursday, 16th February 2012

Before:

MR. JUSTICE HILDYARD

B E T W E E N :

NIGEL PETER MOORE Applicant

- and -

BRITISH WATERWAYS BOARD Respondent

_________

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 APPLICANT appeared in person.

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

_________

P R O C E E D I N G S A.M. ONLY

BEVERLEY F NUNNERY & CO

OFFICIAL SHORTHAND WRITERS

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mailto:[email protected]:[email protected]


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I N D E X

Page No.

OPENING

Mr. STONER 1

Mr. MOORE 15

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MR. JUSTICE HILDYARD: Before giving judgment may I just mention that a

gremlin has crept into the system in the following way. Because I have made

some amendments from the draft in every case in order to accommodate your

very helpful comments and to try and make sure that whether right or wrong

what I had stated was clear, I have made a number of amendments. I hadhoped that the tracked version would signify precisely where those

amendments were, but the gremlin has crept in and there are some

amendments in the final draft - and I hope you have a copy of that final draft

which is in the closed space print - which do not appear in your tracked

version. Now, in particular there are three references, just so that you should

know the format which I intend to prove. There is a chance at paragraph 108

which is not in the tracked draft. It is not of great moment. It is really a matter

of editorial substitution of the word absolute for extensive. Then more

materially at 139 there is a change. I have slightly changed the end of that, ifyou would like to read through that. Then lastly at paragraph 230, that has

been changed but does not show up in your tracked draft for reasons beyond

my ken. Are those clear? In that case, for the reasons that I have set out in

the closed typed version, copies of which have been available to you in draft, I

find in terms of the conclusions that I have sought to set out in paragraph 233

of the judgment. I should say that the judgment I now hand down is subject to

editorial corrections in case there are any further - and I would be very grateful

for any to be pointed out - but subject to that caveat, a copy may be used by

court reporters, if any, for reporting purposes, and a copy of the final judgment

will be produced after receipt of any further editorial comments you may have

by my clerk by tomorrow and will then be posted on the usual websites.

We now have to deal principally with matters which I felt able only to express

a provisional - and by that I truly mean provisional - that is to say I am still

open to persuasion on both limbs with respect to my concern as to

infringement of the claimants human rights. We then have to deal with any

other matters which ordinarily arise after judgment of this kind. Thank you

very much, both of you, for very helpful written submissions, which I have

read, but which I would still like assistance. The fact that in the human rightsarena change is constantly afoot is demonstrated by, I think, two decisions in

2011 of the Supreme Court, each with a board of seven I think. So it is a

matter which I want to tread with care and with your assistance. Who would

like to go first?

MR. STONER: My Lord, I am entirely in your hands, but in circumstances where

your preliminary view was that my clients had breached Mr. Moores human

rights, perhaps it would fall on me to go first. The other point is that in the

written submissions - I know my Lord has been provided with a copy ofPinnock andPowell.



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MR. JUSTICE HILDYARD: Thank you.

MR. STONER: I do not know if Mr. Moore has copied them off the internet, but if

not there are copies there of those cases.

MR. JUSTICE HILDYARD: You will also be addressing, will you, what ----

MR. STONER: Legitimate expectation.

MR. JUSTICE HILDYARD: Yes, the response of the court to that.

MR. STONER: Yes. My Lord, I will take the matter relatively shortly because of

course I have set out my position fairly extensively in writing.

MR. JUSTICE HILDYARD: Yes.

MR. STONER: On the human rights, although this is not actually a claim for

possession, there is unquestionably a clear correlation to the possession cases,

bothManchester City Council v Pinnock(which I will refer to as Pinnock, if

I may) andHounslow Borough Council v Powell(which I will refer to as

Powell if I may) were different types of possession cases under the various

Landlord & Tennant legislation, but ultimately in this particular instance

Article 8 is engaged because Gilgie is Mr. Moores home and in my

submission the same principles apply. The key, in my submission, is to look at

thePinnockdecision as a starting point. This was the first in time of the two

judgments of the Supreme Court. It in fact involved a demoted tenancy. So it

was a relatively self-contained aspect of Landlord & Tenant law. But to no-

ones surprise the Supreme Court in the subsequent decision ofPowellapplied

the reasoning ofPinnock in the wider application of thePowellcase. In

Pinnock, if I can pick it up at the beginning of paragraph 51, [2011] 2 AC 126.

InPinnock it was a panel of 7 but the judgment of the court was that of Lord

Neuberger. He had, prior to this, set out the various European Courtjudgments. Perhaps I should observe that back at paragraph 45, having

summarised those European Court of Human Rights decisions, after (d), the

new paragraph, he says,

Although it cannot be described as a point of principle, it seems that the

EurCtHR has also franked the view that it will only be in exceptional

cases that article 8 proportionality would even arguably give a right to

continued possession where the applicant has no right under domestic law

to remain...



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In my submission, that is another key link with these cases with Mr. Moores

circumstances in that as a result of my Lords judgment you have determined

that the vessel has no right in domestic law, if I can put it that way, to remain

where it is.


MR. STONER: So the question then becomes: what is the effect of that. The core

of the decision inPinnock begins at paragraph 51.

MR. JUSTICE HILDYARD: 51 and 52 really because ----

MR. STONER: 52 is the absolute core.

MR. JUSTICE HILDYARD: My understanding is - and I noticed it was a nine-

man court inPinnock----

MR. STONER: I am sorry, yes.

MR. JUSTICE HILDYARD: My understanding is that whilst accepting that it

would be quite difficult for someone to raise a successful human rights

argument, bearing in mind that the court could not get into subtle management

and proprietary issues, nevertheless proportionality in the true sense of it rather

than Whensbury unreasonableness, proportionality in the true sense would

always be a factor if raised by the defendant.

MR. STONER: Yes, and my understanding globally ofPinnock andPowell

subsequently is that unless there is cogent evidence to go behind the decision

as per paragraph 52 ofPinnock, if the public authority is exercising ownership

rights, that is not relevant here for reasons we know. Or it is exercising its

management duties - and I say that is precisely what British Waterways was

doing in this case. Then unless there is a cogent reason to go behind that, it is

taken as a given - as is put in certain passages - that that is proportionate for alegitimate aim. Of course, the purpose, in my submission, behind that is that if

that were not the case, then in British Waterways case every time they took a

decision in relation to a vessel which was someones home, or fell within the

category of someones home (and there could be all sorts of arguments there,

not just necessarily as here where Mr. Moore lives permanently on the vessel),

then that decision would be subject to scrutiny by the courts on a human rights

aspect. In my submission it was that sort of everything coming before the

court that the Supreme Court were desperately keen to avoid.



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MR. JUSTICE HILDYARD: I mean all analogy is ultimately inaccurate but one

finds it in a field where I am frankly more experienced, which is in the

company law field. The court will never second-guess a matter of

management because otherwise it would be running every cake and ale stall in

the country. So you have to show some reason either why what was decidedwas improper, i.e. without the management function, or seems to be for a

purpose which the court simply cannot follow and needs to explore, if I can

put it that way.

MR. STONER: What I say in the context of the present case is that Mr. Moore ran

two arguments. One was that the section 9 notices were served for reasons of -

and I do not mean anything necessarily by this term - but a conspiracy with the

developers.


MR. STONER: Secondly as a separate argument, as my Lord has addressed in his

judgment, he ran an argument that British Waterways served these notices for

an improper purpose. They had an improper motive in serving the notices. As

I understand my Lords judgment, my Lord has said no to both of those

arguments. In my submission that may have been the sort of cogent evidence

that would be necessary for the court to say: actually this is taken out of the

ordinary management decision and into the situation where we have to

consider it more carefully. My clients note very much the criticisms that my

Lord has levied at them in frankly the entire process, but at the core is a

management decision. If the court in my submission is in the field of: well, it

would have perhaps taken a slightly different decision at a different point, or

had gone about it in a slightly different way, that is not the cogent evidence

that is necessary. Of course, one could always say with every management

decision that unless it is absolutely a tick-box decision that it could perhaps

have been done in a different way on a different day etc.

MR. JUSTICE HILDYARD: I am sorry to interrupt you because you have beenvery helpful, but the concerns that I have in a nutshell are these: first, unless

you show me otherwise, there has been no cogent explanation as to why these

vessels had to be removed. The context in which that sort of question arises in

my mind is the fact that in the past there has been no objection, which is a

point made by Mr. Moore in his written submissions as previously. Whilst I

have, as you quite rightly say rejected the notion of a conspiracy, the way in

which it was proceeded with gives rise to a concern that there was no real

reason for the exercise of what you accept is a very draconian power.



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MR. STONER: What I say is those concerns, in the human rights context, do not

get anywhere near the level of the cogent evidence. In response to the points

about others on the waterways, my Lord has not heard evidence about those

others and we do not accept, necessarily, what is said. I am aware, for

example, that British Waterways has leasing arrangements with individuals upand down that stretch of waterway. Whether or not that is relevant - I am not

saying necessarily it is - but there may well be explanations. The

concentration has to be, in my submission, on these vessels. I am not

encouraging this for one moment but if my Lord were minded to go down a

finding on the human rights which was fact-dependent, I think my Lord would

have to consider as to whether there should be a further hearing to determine

the factual background for that. In my submission those matters do not arise.

To also answer, I think, the other point I have not yet answered in relation towhat my Lord raised, the reality of the situation - and in my submission it is

clear from Mr. Farrows statement (whether it was right or whether it was

wrong) that the reason that these vessels were served with notices is because

they were unlicensed on the waterway. That is what I sought to do in my

written submissions, putting aside the issue of whether they needed a licence

or not, ultimately another way of putting that is that the decision was taken

because they had no entitlement to be there. In my submission that is a

perfectly legitimate management function and decision to take that, and that

falls outside of the scope of what the court would consider on a human rights

challenge. So that was the stated reason; that was the evidence. My Lord, I

do not under-estimate the point I made in my written submissions. It may be

that there is an element of speculation about it but if ultimately Gilgie is

allowed to remain simply because - or in circumstances where it has no legal

entitlement to be there, but simply because it is someones home, and there is

no particular reason for British Waterways to move it on, not only does that, in

my submission, fly in the face of the approach that we know from the Supreme

Court, but as a matter of fact it really does encourage the possibility and

probability that the tidal stretch of the Grand Union Canal will fill with vessels

which are peoples homes which British Waterways, on the face of it, wouldbe powerless to stop until the congestion perhaps got so bad that one could

show, in relation to a specific vessel, that it was clearly interfering and

obstructing navigation. In my submission, it is a perfectly legitimate

management aim to say, in effect, we prefer the situation where if someone is

not entitled to be there, we will move them on and we will keep the waterway

managed on that particular basis.

In many respects, if I have understood my Lords judgment correctly, the main

criticisms were really with the haste with which these notices were served.



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MR. JUSTICE HILDYARD: I think the main criticisms were, yes, the haste and

my finding that you took a risk that this was a home.

MR. STONER: Yes.

MR. JUSTICE HILDYARD: And that was in breach of your own practices and

although they are separate issues they feed into another, and I think in one of

the cased - it may have beenKay - there was an express reflection of the fact

that a breach of even a procedural legitimate expectation may feed an

infringement of human rights.

MR. STONER: Yes. Another aspect is that the court would have to be very clear

as to what the actual breach is going to be. In my submission there is none,

but if you were against me and you were to find that there was a breach, thatwould have to be clearly identified because if it were a procedural breach from

a human rights perspective, in my submission, the obvious relief - I have put in

my written submissions that in those circumstances in effect it is a defence, but

my clients would be entitled in those circumstances, if they breached their

procedure, to go back and not ignore the last four and a half years worth of

litigation, but rather to send Mr. Moore.... In fact, I would venture to suggest,

I was going to say the standard letter, the Live-aboard 1 as it is known. That

may not actually on its wording be particularly appropriate, but to have an

amended form of saying in light of the decision of his Lordship, etc, etc.

MR. JUSTICE HILDYARD: I take your point that one has to determine whether it

is a substantive or procedural breach. If substantive then there will be all sorts

of questions, including compensation etc. If procedural, then that is more

unlikely to arise.

MR. STONER: Yes. I will come on in due course to legitimate expectation where

my Lord has already indicated that was a procedural breach.


MR. STONER: Just dealing with human rights at the moment, in my submission it

is rather difficult to see what substantive breach there might be because really

one is there only left with the factors of firstly this being Mr. Moores home

and second British Waterways not actually being able to show a positive

reason as to why the vessel should go. That is why I say this simply falls

down or the argument falls down at that stage because ofPinnock andPowell.

There is not that cogent evidence to get over that high threshold that is referred

to. The European Court of Human Rights preferred the phraseexceptionality whereas the Supreme Court preferred the fact - and in fact



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Lord Neuberger refers to the fact that Lady Hale had pointed out in argument

that exceptionality is an outcome, not a guide, and hence the reason they

preferred the straight concept of proportionality.

Ultimately, in my submission, this was a management decision that was takenby British Waterways to remove a vessel which your Lordship has found had

no entitlement to be there. British Waterways is vested with the management

function for that waterway for the public, including protecting public rights of

navigation and matters of that sort, and they are perfectly entitled to do that.

Mr. Moores human rights have simply not been breached.

Is there anything else I can assist on the human rights argument?

MR. JUSTICE HILDYARD: No. Well, let me think about that. I understand yourpoint that at most it is a question of process fed by the breach of legitimate

expectation, given that it turned out to be his home.

MR. STONER: Yes.

MR. JUSTICE HILDYARD: Do you say that it is relevant and if so how relevant

that at the time the notices were served actually his home was Platypus and

only subsequently did he move to "Gilgie"?

MR. STONER: I say it is relevant. I have not put it at the forefront of my

arguments. I noted that my Lord raised the point and I was not simply going

to jump on to that because it was in the draft judgment. Its key relevance, in

my submission, is this: it shows what I have described, and perhaps it is not

the best wording, but the futility when one comes to the procedural breaches or

alleged breaches, because in my submission as an exercise in proportionality

the court has to have regard to the fact that we have had four and a half years

worth of heavily contested litigation in which every conceivable argument that

Mr. Moore could wish to have raised has been ventilated. Now, that is

relevant, in my submission, because if I can draw a rather inelegant analogy,but on the possession footing as well, I am not sure how familiar my Lord will

be with the standard possession procedure, but if it was a possession action and

they had issued their Part 55 (claim rather like the Part 8) it would come for

the initial hearing, of which the court would either make a decision or give

directions. Well, if at that initial hearing which may, in idealistic theoretical

hopes, be within about four weeks of issue, if the boater turned round and said:

well, actually I had a legitimate expectation that you would go through this

procedure and your procedure means that notices will not be served until after

42 days as a minimum because Live-aboard 1 says 28 days, Live-aboard 2 says14 days, then in those circumstances there may be a very good ground for



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saying: yes, British Waterways, go back to home base. You have

disappointed the legitimate expectation and you have to address that. Four and

a half years worth of litigation is a rather different circumstances. Touching

upon legitimate expectation ----

MR. JUSTICE HILDYARD: I am sorry, but my initial question was: does the fact

that he was on Platypus and moved to "Gilgie" signify in terms of whether

there is an infringement or any obligation under Article 8?

MR. STONER: In my submission the answer ultimately is yes. What I am saying,

rather inelegantly, is that where it becomes difficult is because of the passage

of time and because he is not now even on the same vessel, it shows the real

difficulties, given what has happened, of on a procedural breach, ultimately

giving relief which, in my submission, can only mean that the process has tobe restarted because if my Lord were to give relief either on legitimate

expectation or human rights, saying there has been a procedural breach

because British Waterways did not go through the notice procedure, if I can

put it in that way, then in my submission it would not be proper - and I do not

understand the court to be posing - that the relief that would be granted would

prevent British Waterways from going through that procedure after this case is

finished. That is why I say about the futility of if the legitimate expectation

has been breached, after four and a half years worth of litigation, to go back

and then my clients have to write to Mr. Moore and say: You are now on

Gilgie. You have no entitlement to be there. Please move the vessel within

28 days or regularise the position, or we will contemplate serving Section 8

notice and quite possibly a section 13 notice as well. The comparison, when

dealing with legitimate expectation, with theNg Yuen Shiu case, is that there

of course Mr. Ng Yuen Shiu had a legitimate expectation that a consultation

exercise would take place before a deportation order was made, if a

deportation order was to be made. Of course, what the courts there did is they

quashed that deportation order and said: you must go back and you must have

the consultation. But that is entirely without prejudice to the fact that you may

come to the same conclusion - rather not come to the same conclusions; thatwould be inaccurate, but the same conclusion may bear out. Where I say there

is a clear demarcation in this case is that Mr. Moore has had that consultation.

If one considers what the procedural breach or expectation that has been

disappointed actually was, it was an opportunity for two things. One was a

period to put his case, and the second was the sanctity and the safety of

knowing that British Waterways would not take action without the sanction of

the courts. Well, actually of course British Waterways gave the undertaking

that it would not do anything without the sanction of the court at a very early

stage. My Lord has seen from the forest of papers that we have got - not



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suggesting of course that they are all correspondence - but there was extensive

correspondence.

Ultimately perhaps a way of looking at it, my Lord, is this. If the Section 8

notices were set aside and the procedure would be started afresh, would therebe a different outcome? I think that is where my four and a half years worth

of litigation comes in because in my submission the answer is no. That is

why in my submissions on legitimate expectation I highlighted the passages in

the cases where I said sometimes there may be a finding of legitimate

expectation but nothing more arises from that. I think it is highly relevant in

this context that until the preliminary issues were determined Mr. Moore did

not even accept that British Waterways had any locus in relation to this stretch

of waterway. So that point would have to have been overcome.

MR. JUSTICE HILDYARD: Sorry to interrupt and do correct me if I am wrong

because I am feeling my way here.

MR. STONER: Of course.

MR. JUSTICE HILDYARD: In the unpronounceable case one could not know

really what the process of consultation would result in. It might result in the

same and it might result - and this was the point -----

MR. STONER: Absolutely.

MR. JUSTICE HILDYARD: ---- in something different. Here you say there is no

something different; it is merely process. Therefore you have to ask what

difference has the failure of process as a pure pragmatic matter make?

MR. STONER: The word I think I used in my written submissions is in Ng Yuen

Shiu had been deprived of something. He had been deprived of the

opportunity to have consultation which might have led to a different outcome -

and that is why the Privy Council said it is entirely without prejudice to thefact that another deportation order may follow. But perhaps they thought it

was one of those cases where it probably would, but that did not obviate the

fact that Mr. Ng Yuen Shiu had a legitimate expectation that he would have an

opportunity, as I understood the consultation. It would be an interview, so he

would have his opportunity to plead his case. Contrast this case: in my

submission Mr. Moore, by reason of the procedural breach, has simply not

been deprived of anything because we have had hugely expensive litigation

and despite the criticisms of this side, I hope the criticisms are not universal.

In my submission one of the notable features is that my clients have not soughtfor me to take pleading points in relation to this case. They have sought to



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meet any points that Mr. Moore has sought to raise. Perhaps an illustration of

that is the property point. The property point was parked for the purposes of

this trial, but as my Lord records in the judgment, ultimately that came back to

the position that we said should have been the case in the first instance; we

were just relying on a navigation authority. Mr. Moore has not been deprivedof anything and he cannot say, at the end of this case, No, I have not been

given my opportunity to put point X and that is the critical factor. That is

why procedural human rights and also legitimate expectation, in my

submission - I drafted up a minute yesterday and it is entirely right, in my

submission, and in the light of my Lords judgment that it be recorded in the

judgment by way of a declaration that his legitimate expectation has been

breached; but equally the order then, in my submission, should continue that

there be no further order required in that respect.

MR. JUSTICE HILDYARD: One thing puzzled me, but I think it is answered by ...

Wandsworth LBC v Winder: because it is always so hard to shed the clothes of

the past, one always expects these sorts of matters to be dealt with by the

Admin Court with orders forcertiorari and that sort of thing.

MR. STONER: Yes.

MR. JUSTICE HILDYARD: My appreciation or perception of the cases - in

particularWandsworth v Winder- is that there is no straight jacketed process

and this court could do what the Admin Court could do, if satisfied that it was

warranted.

MR. STONER: My Lord, yes, understanding the overlap as well. In that way it

would make no sense if this court were of the view that the Section 8 notice

should be quashed.


MR. STONER: For this court to say that it did not feel that it had the jurisdiction,so to encourage yet further proceedings at yet further expense for another court

to consider in effect whether that should be the case. So I take no point there. I

just rely on the substance and say this is actually a case which falls well short

of any relief being appropriate.

MR. JUSTICE HILDYARD: Beyond a declaration.

MR. STONER: Beyond a declaration. And when it comes to human rights I

simply say that the correct approach is actually to perhaps reverse thesituation, fi I may it that way, from my Lords preliminary views in the



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judgment and say: well, actually the management decision is a given. It is

over to Mr. Moore to show why it is disproportionate that he should move off,

and I have highlighted a number of reasons. It is a feature of this case that Mr.

Moore has not produced evidence in relation to that. It is also a notable feature

of this case that one of the points that he has prayed in aid is that this vesselhas a home mooring elsewhere in Brentford. So this is not even a case where,

as sometimes happens with boaters for British Waterways where one of the

points that the court has to consider is that actually this person may have to

move away from their friends, their job etc, which is not a determinative

factor, but it is a factor for the court. That does not arise in this particular

instance. So for all the reasons I have put in writing I say it simply does not

get off the ground on human rights in this case, in my submission.

MR. JUSTICE HILDYARD: What you would say, being entirely brutal about it, isthis: whatever I might feel in the round, in reaching a provisional conclusion I

have too lightly stepped over the hurdle which is for Mr. Moore to surmount of

showing why the court should go behind the curtain of a management

decision?

MR. STONER: Yes, I do say that. In fact I think perhaps even slightly stronger, if

I may, I say what my Lord has concentrated on is the lack of explanation from

British Waterways as to justification, whereas I say the relevant law shows that

that is precisely what my client does not have to prove. It is for Mr. Moore to

show that actually he can overcome the hurdle, and it is a high hurdle, to show

that his particular circumstances - and that is why I put in the written

submissions the quote from the Disability and Services Commission as a sort

of example that actually if someone has got particular difficulties then that

may well be the sort of thing that the court would wish to consider. So to take

perhaps a silly example Mr. Moore is moored where he is. If he had to have a

24 hour oxygen supply which could not be done through tanks but piping had

been installed to the vessel by the Local Authority because that was necessary

in case of a particular incident, then that would be a highly relevant factor. It is

that sort of unusual factor, in my submission. However, there is simplynothing here.

MR. JUSTICE HILDYARD: If I were against you on this, both as regards

legitimate expectation and as regards infringement, and as Mr. Moore, I am

sure, will elaborate, he says that he should receive compensation.

MR. STONER: Yes.



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MR. JUSTICE HILDYARD: I know your argument that this is mere say-so and

there is no evidence of loss, but that could be dealt with by adjourning the

hearing yet further.

MR. STONER: It could.

MR. JUSTICE HILDYARD: In order that there be some sort of enquiry or

evidential analysis of that.

MR. STONER: My Lord, that is right. What I say is on the human rights first of

all the cases that Mr. Moore has referred to in his written submissions are

European Court of Human Rights cases, and what my Lord must be careful not

to do is to conflate the jurisdiction of the European Court of Human Rights

and this court. In fact this court does have jurisdiction to award damages inhuman rights cases, but it is actually Section 8 of the Human Rights Act 1998.


MR. STONER: It makes it plain - it is Section 8(3) - I am just reading from the

White Book now ----

MR. JUSTICE HILDYARD: Page?

MR. STONER: It is in Volume II, page 1308. If I start with 8(1). (1) In relation to

any act... - as it would be in this case - ... (...) of a public authority which the

court finds is (or would be) unlawful, it may grant such relief or remedy, or

make such order, within its powers as it considers just and appropriate. That

is fine.


MR. STONER: (2) But damages may be awarded only by a court which has power

to award damages... I think the civil high court has power to award damages.Then the critical aspects is 8(3)No award of damages is to be made unless,

taking account of all the circumstances of the case, including - (a) any other

relief or remedy granted, or order made, in relation to the act in question...;

(b) the consequences of any decision (...) in respect of that act - the court is

satisfied that the award is necessary to afford just satisfaction to the person in

whose favour it is made. Then in the notes at 3D/41 there is a reference half-

way down the note toAnufrijeva v. London Borough of Southwark. It said:

The court made clear its view that damages are not available as of rightlike damages for tort, but only as a discretionary remedy of last resort.



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The guiding remedial principle is restitutio in integrum so that the

claimant should, as far as possible, be put in the position in which he

would have found himself if Convention rights had not been infringed.

However, account must first be taken of effect of any other remedies

which the court has been able to provide. Any remaining significantpecuniary loss caused by the breach should usually be assessed and

awarded, but caution is to be exercised when deciding whether to award

damages for non-pecuniary loss and if so how much. The consequences

of the breach must be serious. The damage must be more than distress

and frustration, and the scale and manner of the violation can be taken

into account.

Now in this particular instance, in my submission, breaking it down, if my

Lord were against me and there were a breach of human right it would be aprocedural breach. That procedural breach would in effect entitle the vessel to

stay where it is until such time as that procedural breach is remedied. That

would be the appropriate relief and therefore one simply does not get on to the

question of damages. When it comes to the legitimate expectation, in my

submission the argument is much the same because in the decision of Lord

Woolf I referred to in my written submissions, he breaks it down into the three

categories. This is a procedural expectation, and he says that what the court

will do is if there has been a procedural legitimate expectation disappointed it

will require the consultation to take place and that would be the appropriate

relief.


MR. STONER: If you are against me on all of that, then unfortunately we would be

into a further hearing scenario because Mr. Moore has asserted that he has lost

sums and that he could not carry on the business. What the court has not

examined are factors such as why the business could not be continued in

circumstances where British Waterways had given an undertaking that it

would not take any action on the Section 8 notices pending the outcome of thiscase.

MR. JUSTICE HILDYARD: Sorry, there may be - carry on actually.

MR. STONER: Also in relation to the allegations of certain individuals have

moved vessels away because of the Section 8 notices, that again would have to

be something that would have to be examined. In so far as a caveat applicable

only to legitimate expectation, of course in the circumstances in which

legitimate expectation arose in this case, that plainly was not on the plate for



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trial because it was a point that was only explored afterwards, so my client

must have, in my submission, the opportunity to deal with that.


MR. STONER: In my submission, for the reasons I have set out, we do not actually

get to that stage.

MR. JUSTICE HILDYARD: I put this through you partly so that Mr. Moore can

be thinking about it in the meantime. It does seem to me that Mr. Moore would

have to persuade me that I can take into account other vessels, bearing in mind

in the case of legitimate expectations and the human rights infringement, if

there was one. It is very specific to the loss of his home. Secondly, and

perhaps another facet of that, one would have to show loss, not in consequenceof any other boats being there or not being there, but in consequence of the

loss or worry about the loss of hope. In other words, I would expect the court

to be fairly precise as to what the thing which needs just satisfaction is.

MR. STONER: Yes, especially the matters of a disappointment and the threat of

the Section 8 notices, as per the extract from the White Book - non-pecuniary

losses. The court should be very slow to consider that sort of matter.

MR. JUSTICE HILDYARD: It is hard to know how the court ever does assess it

but perhaps the court in its mysterious way just comes up with figures.

MR. STONER: Yes. What I would say, and it was not appropriate for today, but I

have the Clayton & Tomlinson tome on human rights. There is a whole

section in there, unsurprisingly, on damages. It appears from quickly looking

at that - I was going to say if the court was going to go down that route, I think

that would have to be another day because one would have to consider those

cases. But as I understand it from that short extract, if the court is minded that

there should be damages, the assessment is as per a tortious liability. So there

would have to be causation shown and matters of that sort in terms ofpecuniary loss. Non-pecuniary loss is very difficult. My Lord, if I can assist

you in any way in relation to either of the points....

Perhaps the only other point directly in relation to the different vessels, Mr.

Moore said that he lost his home Platypus because the owner decided to

move that vessel away, although that would have been about half-way through

the currency of these proceedings. But again, in my submission, there is just

no evidence in relation to exactly why that happened.



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MR. JUSTICE HILDYARD: It is not unusual, but I must say that I have found it

difficult in separating what is assertion and what is evidence.

MR. STONER: Yes.

MR. JUSTICE HILDYARD: I do not blame Mr. Moore for that because he has

done a very thorough job in terms of presenting his case. But it has

complicated issues and I think it is right that if there were any question of

damages, then we would have to have another hearing with directions as to

exactly what must be done.

MR. STONER: Yes.

MR. JUSTICE HILDYARD: I may very well need your assistance again.

MR. STONER: Of course.

MR. JUSTICE HILDYARD: Mr. Moore, would you like a go now? Do you need

any time to think things through, or are you content to proceed?

MR. MOORE: My Lord, thank you. I strongly suspect that ... as you know I will

not be frightfully learned about this.

MR. JUSTICE HILDYARD: Oh, I would not say that at all. I think your learning

has been very helpful and impressive. I have read carefully your written

submissions, so I assume that I have.

MR. MOORE: The latest one, my Lord?


MR. MOORE: I do not think I can say terribly much more than what I have put in

there. If I can address just some of the points as I see are relevant from whatMr. Stoner said, which is why I believe it was useful for him to have gone

first.


MR. MOORE: As far as the question of proportion is concerned, and this being

relevant to the management decision, I am saying that it is a very important

factor because if this was going to be regarded as a proportionate action, then

all boats that were in exactly the same situation would have to have been



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treated in the same way, which they were not. I take your point that you would

perhaps need more evidence on that ----

MR. JUSTICE HILDYARD: All I know about is the vessels which have been

named. My understanding is that in the case of Rocking Horse and LazyDaze which were the two ones which were allowed to be left, as I understand

it ----

MR. MOORE: I also referred you, my Lord, to the adjacent moorings where you

have a varying number of boats but never less than about six or nine in exactly

the same position.

MR. JUSTICE HILDYARD: I think you are right that I would need evidence of

that. I think the case has been, rightly or wrongly, confined in terms ofevidence to what the position was with respect to the vessels which were

identified precisely and their movements. It may very well be, and I quite

understand from photographs that there were other boats, but I do not think I

have sufficient evidence to draw any conclusions in that regard.

MR. MOORE: I understand that, my Lord. What I can say is that I did raise that

question.


MR. MOORE: It would be perfectly possible to produce such evidence as you

thought was required.

MR. JUSTICE HILDYARD: What would it really go to? It would go to selectivity

or it would go to undermine their management decision, or both? It would

suggest it was not a proper management decision because it was not a rule

that was done fairly.

MR. MOORE: I am saying because if it was a management decision on the basisthat was alleged then that would be applied across all boats that fell into the

same circumstance.

MR. JUSTICE HILDYARD: Unless you could show some improper purpose,

would that not be a matter which the court simply could not enquire about

without itself becoming a Board member, if you see what I mean. I think what

Mr. Stoner is saying is that unless there is something very, very rum, the court

must let the managers get on with their job and let itself continue. It cannot

revisit. It cannot second-guess decisions. Unless you are saying that leavingother defined vessels signifies that it actually was just being wholly



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unreasonable, Machiavellian or something like that, that it is a management

decision. I have not put that very well, but do you see what I mean?

MR. MOORE: I believe I do, my Lord. I would still contest that the very fact that

others are not there does not make the decision a matter of addressing somepressing management urgency. That is one way of putting it. You can say:

fine, they have the possibility to do this because all these boats are here on

your finding unlawfully. The fact that they choose to do one or two and leave

the rest is a matter for them. I understand that point, but the fact that they do

and are so selective is, in my submission, a very strong indication that the

decision is not being made for the purposes alleged, shall we say.

MR. JUSTICE HILDYARD: So not a proper management decision?

MR. MOORE: Yes. I would also say in opposition of course to what Mr. Stoner

went on to say later that if the management decision was taken, as he

recognises, on misplaced grounds, then against him I would say that does

matter because the justification they were relying on has failed. So if that was

the basis of the management decision, then the actions taken - if the basis of

the management decision was wrong - has to be factored in.

MR. JUSTICE HILDYARD: It is a curiosity, that. I may be right, or I may be

wrong in this, but my conclusion is that providing you are only exercising

within the tidal stretches your public rights of navigation, you do not need a

license. But if you go beyond that, either in terms of where you choose to do

your boating or in terms of what you do with your boat by permanent mooring,

then you are subject to the control under Section 8, if I can put it that way.

MR. MOORE: I understand that, my Lord.

MR. JUSTICE HILDYARD: I understand your point that it flows from that that

semantically the reason given, i.e. no licence, was incorrect; nevertheless

substantively they were saying: whatever you were entitled to do you cannotmoor permanently. Do you see what I mean?

MR. MOORE: Yes. All I am saying is if that was the reason they took the

decision ----

MR. JUSTICE HILDYARD: It is flawed.

MR. MOORE: Yes. Also in line with that, I would say going on to the point with

Shiu and whether or not there was an opportunity given, I am saying for allthose boats that have since left because of the action taken, if they had been



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given the opportunity for discussion beforehand on the basis that British

Waterways were serving the notices, and the basis was accepted or, as you

found, to be flawed, then the position would have been that British Waterways

could say: well, we got it wrong.

MR. JUSTICE HILDYARD: What is the consequence? Your argument that the

decision is flawed would take one to the proposition that the decision should

be revisited - not made by this court because I have no idea about boating. But

it should be remitted to the Board to make the decision again upon the footing

that it cannot rely on the want of licence (under the terms of my judgment at

any rate) but it can rely on no right of permanent mooring. You say that they

might make a different decision once they had spotted that difference.

MR. MOORE: They could have gone back ----

MR. JUSTICE HILDYARD: But would they now? Do you see what I mean? Do

you say that it is possible that they would now?

MR. MOORE: I can say - well, no I cannot. I would presume that they would say:

very well, we cannot give you a Section 8 on the basis that we decided to in

the first place. We will now give you a Section 8 but for a reason that the

judge has now given us.

MR. JUSTICE HILDYARD: They might say: unlawfully moored is unlawfully

moored. Yes, it is true that we added additional words unlawfully moored

because you did not have a licence whereas we should have said unlawfully

moored because you have got no entitlement to moor. I do not want to be fair

in any sense, but I am struggling with practicalities of the matter as to whether

that could realistically make a difference.

MR. MOORE: I would say, if it is of any help, that in the circumstances of the

time, the boats, and those boats and others, had been allowed to moor there for

the previous 10 years. I would have said back then it would be unlikely thatthey would try to serve a Section 8 on the basis that those boats should not

have been at those moorings, when they had been permitting those boats to be

moored there for that length of time. It seems a very unlikely justification for

them to do.

MR. JUSTICE HILDYARD: As I have sought to imply or indicate the suddenness

with which BWB did this has caused me anxiety. But ultimately I did not feel

that there was a case for improper or collateral purpose. Having reach that

conclusion, right or wrong, at the moment I am finding it difficult to see anypractical utility in asking them to consider again the wording they used to



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describe their conclusion that your boat should not be allowed to stay where it

is. This is a court of law and I must be legalistic, but one has to examine the

practicalities, I think.

MR. MOORE: I would have said, as with theHong Kongcase, the Privy Councilthere did not recognise - as Mr. Stoner has quoted - that it was entirely open

for the Attorney-General to turn round and give another notice should he ----

MR. JUSTICE HILDYARD: After the process of consultation?

MR. MOORE: Yes.

MR. JUSTICE HILDYARD: It may be that as a practical matter, though none is

pleaded, that there is some expectation that boaters will be consulted, but thereis no proof of that nor anything in the rules that I have read. If you thought

that you had had a right to be listened to and to make all these points about the

fact of vessels being allowed to remain there for so long, the difficulties that

you face, and that that would have weighed if you had had an audience, I could

understand that. But if you have got no right in that respect, I am not sure I

can take it into account.

MR. MOORE: But if in terms of both legitimate expectation and presumably

human rights, I have a right to raise the issue of proportionality and purpose of

the management decision, given the circumstances, then I think that is an area

that I should be given the opportunity ----

MR. JUSTICE HILDYARD: I think what Mr. Stoner says, as you know - I am

sorry to repeat it but just so we get absolutely to the point - I think what he

says is that you have to open the gate before you are entitled to look at

proportionality, and the gate is the gate marked management decision. So he

is saying in effect that I am wrong in my approach in my judgment that I can

go straight to proportionality. He says you cannot; you have got to find the

key to the gate first. That is as I understand, putting it rather inelegantly, whatMr. Stoner is saying. I think you have to address whether he is right about that

in terms of theory, and that really requires a look atPinnock andPowell - and

if he is right about that, whether you have got the key by reference to the

factual situation.

MR. MOORE: The cases that I looked at in the last few days were things like the

Gillow v. The United Kingdom, plus theKay case as it went to the European

Court because with Gillow v The United Kingdom you had the finding where

the couple had a house that they owned but the owners - I cannot rememberwhich one it was - they were foreigners in effect, even though they were UK



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citizens inhabiting a home and they eventually ended up, after about a year of

litigation, selling up the home at a loss and moving on. The court did find that

their human rights were abused. I believe that that was purely on the

procedural aspect, that they have come ----

MR. JUSTICE HILDYARD: Do you have that case? The thing is I am afraid I

have to admit to the fact that I do not have the sort of encyclopaedic grasp of

all these cases. Is this something which we have to take into account? Does it

show a different approach thanPinnock andPowell? If so, can it survive

them, bearing in mind what the Supreme Court has uttered?

MR. MOORE: If you just give me a moment, I did put this in.

MR. JUSTICE HILDYARD: Did I overlook it?

MR. MOORE: On my paragraph 55 I made reference to it, my Lord. Gillow v The

United Kingdom which was under the heading of the Law Commissions

report.

MR. JUSTICE HILDYARD: I thought that this really went to the next stage of

what the proper response, so-called, of a finding of infringement was. Am I

wrong about that?

MR. MOORE: I suspect you are right about that, my Lord. I do not think I got to

read through the case itself as to what facts were found, other than what I have

just said to you.

MR. JUSTICE HILDYARD: I am inclined to accept that if there was a breach of

your human rights which cannot be made good except by some further

compensation, then the approach of the court and the amount at stake would

have to go to another hearing. I do not think it would be fair to either of you

for me to leap to some conclusion in that regard. I do not think you would

probably suggest it was fair, and Mr. Stoner suggests it is not. So I shouldimagine that we would only get to Gillow and the Law Commissions report -

and they are quite difficult assessments as to the proper response - at that

subsequent hearing. So really I am looking at the gate, and if you are through

the gate, proportionality. That is what I am looking at at the moment.

MR. MOORE: My Lord, I think I have said all that I can come up with in that

respect. Any further help I could be would purely be in response to any

question your Lordship had.



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MR. JUSTICE HILDYARD: Right. Anyway, your answer is it might address your

needs for a home but it would remove a right, as you assert it to be.

MR. MOORE: Yes.

MR. JUSTICE HILDYARD: The answer, I think, inevitably is going to be: you

just have not got that right because a judge has said you are entitled to be

moved on or removed. Consequences may be more serious than are

immediately apparent, but in a sense that is simply a consequence which

flows.

MR. MOORE: My Lord, I am answering as best I can the question you posed as to

what is the problem.

MR. JUSTICE HILDYARD: I am not in any sense wanting to diminish your

argument. I just want to make sure I have got the very best from you in

response to points which I feel might be made. I am not diminishing your

points, nor seeking to argue the toss with you. Notwithstanding how much

you have put into this - and you have been terrific - nevertheless in terms of

presenting your case I just want to make sure that I have got, on this aspect, the

best from you.

MR. MOORE: I appreciate that, my Lord. As I say, it is not only the land claim

but the investment in the actual facilities and utilities that I have provided there

for all of the boats there. It is something that is part of a still continuing

business. However, much it is true that I do not get a financial remuneration

from it, it is still something that I have a feeling of responsibility for and which

other people do... To be there and my being there is part of what makes the

others feel that there is a caretaker, which is basically ----

MR. JUSTICE HILDYARD: What you are doing. And that is the source of your

income, such as it is.

MR. MOORE: I do not derive any income from it, my Lord. What I do derive is a

payment in kind as it were in the fact of having a home there.

MR. JUSTICE HILDYARD: Yes. With apologies for interrupting, my perception

of what you are saying to me is that with regard to the gate their decision was

flawed because they misunderstood the licensing position and therefore

addressed it from the wrong perspective and was flawed in terms of process

both by reference to the legitimate expectations point that I have beencanvassing, and the haste point; and in point of detail, though quite an



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MR. JUSTICE HILDYARD: They did not take the point in the past, but they are

now taking the point that they do not want people - they worry that if they

allow this sooner or later, and I know there is a thin end of the wedge

element in this, but sooner or later the relevant stretch of water will become

less navigable or may give rise to obstruction of some kind.

MR. MOORE: That, my Lord, is only something that they can apply to exactly that

scenario, where something did come and increase. If one takes the view that

they are happy with the number and placement of boats as they currently exist,

as they have been, and in fact they have in the past put forward plans to

encourage more of them on both sides of the Canal, then the alleged concern,

my Lord, is not actually true. By maintaining the status quo, even though they

have in the past wanted to encourage more boats to be moored there,

maintaining it at the level that it currently is not going to be a problem to them.No other boats can actually come on to a mooring and stay without the consent

of the land owner. I am taking your Lordships finding on the fact that a land

owner has no power of consent to his land for mooring.

MR. JUSTICE HILDYARD: I am not saying that, am I? Why do you say that? If

there is a special right established, then I am not, so far as I am aware, saying I

am precluding that right. I am just saying that you have not got it.

MR. MOORE: The basis of a land owner being able to give consent or withhold

consent to the use of his land is presumably a factor because that is the specific

argument that British Waterways advance in the garden moorings, to which I

directed your Lordship, where they say a land owner has the right to agree or

disagree to whether you use it.

MR. JUSTICE HILDYARD: We had better clarify this. My understanding on the

end of garden mooring is the British Waterways Board accept that their only

right in this regards is either in respect of those numbers of mooring places

where they are owners and can give permission in right of ownership; and that

otherwise they are entirely independent on their regulatory powers. That isBritish Waterways position, as I understand it. I do not think anything I have

said in my judgment conflicts with that and is certainly not intended to.

Looking at it from the position of other land owners, I have said that the mere

ownership of a riparian right does not give that person a right, and therefore

does not give that person any rights to permit anybody else, to moor there,

other than in the course of navigation.

MR. MOORE: My Lord, what I was wanting to have clarified is whether he is

thereby precluded from his veto, if you like. In other words, the fact that he



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cannot give permission to someone to moor there, is he thereby prevented

from saying: you cannot moor there because it is my land?

MR. JUSTICE HILDYARD: Is the land owner able to injunct someone from using

it?

MR. MOORE: Yes.

MR. JUSTICE HILDYARD: I am not sure we canvassed the question of what a

land owners rights were in respect of a temporary mooring in the course of an

application. I have not considered that.

MR. MOORE: No, but what we did ----

MR. STONER: We did not, my Lord. I think what we would say, so that Mr.

Moore is clear, is that if there is a land owner of any river bed where there are

public rights of navigation, then that ownership is subject to public rights of

navigation. The prime example is the Crown who owns a large area of land

which is subject to public rights of navigation, their ownership is subject to

those public rights.

MR. JUSTICE HILDYARD: So for example if someone - in theKay case where

the example is given that someone in the course ofbona fide navigation may

need to stay at a place for some considerable time because something terrible

has gone wrong with the weather or the boats, or even a season - I think they

give the example in the Scottish case. I would imagine that a land owner

would have to accept that that public right of long user overrides to that extent

his private right to dictate what should happen on his land, but beyond that he

will only be able to rule the roost if he has a specific property right entitling

him to allow mooring or wharfage - not in right of a riparian ownership but

because he has a specific right. That is, I hope, what I sought to say.

MR. MOORE: My Lord, what I am addressing at the moment is the reversal ofthat; whether he has the right to deny because one of the arguments that were

not adjudicated on between us was the fact that in the preliminary issues we

were agreed that there is no right to a permanent mooring ancillary to

navigation. There was a question of specifically in the context of this case we

are not addressing mooring in the river bed, but we are mooring to the bank.




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MR. MOORE: The position that I took is that there is no right whatsoever given by

the public right of navigation to moor even momentarily to private land. I

mean that is ----

MR. JUSTICE HILDYARD: I do not think I have adjudicated on that, but I wouldimagine that that is quite a difficult argument. I say no more because I am too

ignorant to commit myself really. I do not think we have dealt with the issue of

the interface between property rights and regulatory rights, and the public right

of navigation.

MR. MOORE: My Lord, if I can continue just a little bit to explain why I am

bringing this up -----


MR. MOORE: It is established in case law that that is the case, even though we are

not ----

MR. JUSTICE HILDYARD: What is the case?

MR. MOORE: That a public right of navigation does not give the right of access to

a private bank so the land owner has the right to say you cannot ----

MR. JUSTICE HILDYARD: If it is established, then there is the answer.

MR. MOORE: So what I am saying, my Lord, provided that there was nothing that

I understood from your finding that runs against that ----

MR. JUSTICE HILDYARD: No, I would not dream of seeking to undermine

established authority if there be such. I must say that I had not read ... in that

light, but I do not know. In so far as you need clarity that I am not seeking to

undermine that sort of authority, you have that confirmation from me.

MR. MOORE: Thank you, my Lord. The reason I am going there is to address this

question of: oh, well we could have everybody coming up and establishing

themselves and us not being able to do anything because of the human rights.

Whereas the simple fact is that any of the land owners, including where they

are - an area of dispute - but there is no dispute that there are areas they do

own, they have the right to say you cannot moor there on that basis. That

bit of towpath we own or more properly I would suspect ----

MR. JUSTICE HILDYARD: They could not really delegate their responsibilities tothe particular preferences of a given land owner.



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MR. MOORE: No, but ----

MR. JUSTICE HILDYARD: There we are. I think what you say - forgive me if I

am wrong and add what you like - is that it is a thin end of the wedgeargument and that that was not a justification really offered at the time, and

that if that was the justification, it should be revisited.

MR. MOORE: My Lord, I think what I am saying most specifically, my Lord, is

that the scenario that Mr. Stoner painted in order to persuade you that this

would be the outcome if you were to do as I wished is not a realistic one

because there is the ordinary power to say: no, you cannot even start to

establish a right where we would need to come along and dispossess you.

MR. JUSTICE HILDYARD: What he was saying is: beware of treading in

management areas you do not understand.

MR. MOORE: I am just addressing the picture.

MR. JUSTICE HILDYARD: Well, as I say with the benefit of your written

submissions, is there anything you want to say further on eitherPowell or

Pinnock which really rose up late in the day? Therefore if you want five or 10

minutes to consider anything further on that, I would be very happy to allow

you that.

MR. MOORE: I have not had a chance to look at it, but I doubt it if ----

MR. JUSTICE HILDYARD: Do you want 5 or 10 minutes to have a look? Powell,

I think, rode into town this morning in your case because I had asked for a

copy you may not have had. I am not hedging for time. It is an important

matter to you, Mr. Moore, and you have invested a great deal of time and

trouble. If you want another 10 minutes, I am most content that you should

have it. I think Mr. Stoner has identified the particular parts of each case, andcan do so again for your assistance.

MR. MOORE: Perhaps, yes.

MR. JUSTICE HILDYARD: Would you like 10 minutes? Are you content with

that, Mr. Stoner?

MR. STONER: Of course, my Lord.



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MR. JUSTICE HILDYARD: I want to finish this by the short adjournment time,

and we have one or two other things to deal with. If we reconvene at quarter

past, will that be sufficient for your purposes or at least identify whether you

need further time.

MR. MOORE: Very well, my Lord.

MR. JUSTICE HILDYARD: We will adjourn until quarter past then.

(Adjournment)

MR. JUSTICE HILDYARD: How have you got on?

MR. MOORE: I will not take up much more time.

MR. JUSTICE HILDYARD: Okay.

MR. MOORE: Just briefly going through, Mr. Stoner has kindly lent me his

highlighted copy.

MR. JUSTICE HILDYARD: Just give me a moment, would you? (Pause)

MR. MOORE: He has given me his highlighted versions. Going through swiftly,

in paragraph 33 ofPowell - sorry, I think I have got that wrong.

MR. JUSTICE HILDYARD: That is all right.

MR. MOORE: No, I am sorry, my Lord. It is paragraph 33- G, just referring to the

concept of home and the protection of Article 8, it says, It will depend on

the factual circumstances namely the existence of sufficient and continuous

links with a specific place. For however much it would assist the case, my

home has been at this particular location. The actual shelter that I have had on

this location is first Platypus and then "Gilgie", so I would have said thathowever mobile those homes were, they were significantly attached in these

terms to this particular location as being my home. The case in my instance

would be a much stronger one than the situation where it was a caravan that

had arrived at s site and only there for two days where still it was not contested

that the question of Article 8 would not come up. It also goes on to the

legitimate aims. I am not going to go further on that one, my Lord. That was

as much as I could pick up from going in that one.

As far as looking atPinnock was concerned, from paragraph 45, it saysanybody in principle should have the right to raise the question of



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proportionality even if the right of occupation has come to an end. The

conclusion at the end of that paragraph 45 is talking about what the European

Court of Human Rights has flanked in terms of the views they took on Article

8 and continued possession. Both this and all the other case law so far as I can

see, other than the one I referred to, Gillow v. The United Kingdom is alldealing with a balance between one persons right of possession and another.

What I am saying is that this is not the same question. I understand that Mr.

Stoner has raised the fact that it can be rights of possession or management

decisions. From looking through these cases I understand it to be looking at

management decisions only in respect of the role of the property-owning

authority managing its property. It is in the light of competing property

interests, not as I would see it a question of management decisions only. That

is about as much as I can usefully add, my Lord, so far as those cases are

concerned.

MR. JUSTICE HILDYARD: It seems to me that you may argue that there is no

two - stage but only a one-stage process. You do not have to find the key to

the lock. You have got to accept - or Mr. Stoner must accept you when you say

that proportionality in the European sense is always to be addressed, but the

person alleging that the act was not proportionate is going to have to, in real

terms, surmount an obstacle which is the reluctance and refusal of the court to

become involved in management decisions. I think you may very well submit

to me, in thinking about it, that there is not a two-stage approach; thatPowell

has confirmed that there is a one-stage approach, but the burden is very much

on you to demonstrate why the prima facie position that managers should be

entitled to manage should be upset. I sense that Mr. Stoner may accept that.

So you would say, therefore, we must look at proportionality in the round.

This is not a case where you could simply be satisfied with the management

decision made. This is an exceptional case where the management process has

been flawed and hurried. Therefore we should consider all the matter in the

round. I think that is what your position is, is it not?

MR. MOORE: I would say so, my Lord, with the additional aspect, whether youaccept it or not, of the fact that the cases as far as I have read and understood

them refer to management decisions over the control of property - given that it

is the property law that we are balancing - the competing rights of possession.

MR. JUSTICE HILDYARD: I think it may go broader than that. I understand

what you are submitting, but I think it may go broader than that to

management decisions. It is not right of ownership. It is right of control really

which his in issue and the exercise of rights of control as a management

matter. I take your point. Can I just ask one further point, unless you wish toadd on this? You do not say, do you, that if I were to conclude that there was a



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MR. MOORE: I am sorry that ----

MR. JUSTICE HILDYARD: I am sorry, I indicated a sort of sense upon me, which

I do not wish to indicate to me, but it has been a long and expensive process. Iwould not wish it to happen again of my own motion. Is there anything else

that you want to add?

MR. MOORE: Not that I can think of, my Lord.

MR. JUSTICE HILDYARD: Mr. Stoner, I have two points really, unless you have

anything further in reply.

MR. STONER: I was just going to mention a couple of points briefly in reply onwhether it is a one-stage or two-stage.


MR. STONER: I think really I rely on paragraph 37 ofPowell. What I say there,

or what the Supreme Court said there, Lord Hope, was because of the

management duties he said, ... in the overwhelming majority of cases, for the

local authority to explain and justify its reasons... - there is no need for that.

It will be enough that the authority is entitled to possession because the

statutory pre-requisites have been satisfied... So in this case I say the statutory

pre-requisites, as my Lord has found, entitled to serve a Section 8 notice.

Then he goes on to say, The court need be concerned only with the occupier's

personal circumstances and any factual objections she may raise... So

whether it is a one-stage or two-stage, in my submission it is the seamless test.

As is put elsewhere inPinnock and inPowell, it is a given in relation to the

management duties.

The only other thing I was going to say is Mr. Moore referred to Gillow. It is

a case I read a long time ago. All I can say is that the Supreme Court did referto it inPowell, but in the context of what the meaning of the home was. So

they obviously did not think that it needed to be referred to in relation to

proportionality. It is not disputed that the vessel itself was a home here. The

only other point I was going to mention by way of reply, Mr. Moore referred

to the historical use of the mooring. It is a long time ago now, but Mr. Farrow

gave some evidence - and he addresses it in his witness statement as well -

where he agreed with Peter Collis that the pontoon would be put across the

entrance to the workhouse dock, and as far as he was concerned - and I

remember he said in the witness box, whether it was right or wrong - what wason Workhouse Docks site was not going to be his responsibility or British



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Waterways responsibility, but what was on the Canal side would be. He said,

yes vessels would maybe come along there and they would moor up, but that

was to wait until the tide was sufficient to get them into Workhouse Dock, so

that would just be public right of navig

moore v bwb on human rights

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