Ipswich Borough Council v Moore & Anor

Applications by an interested organisation to join or intervene in an appeal may be deferred where the substantive appeal may not reach the issue in which the organisation is interested. If that issue is reached, the court should have a clear statement of the factual basis on which the proposed participant relies, including the extent to which those facts are agreed. Where the issue was not determined below and disputed facts may be material, the appellate court may remit the matter for findings rather than decide it on a summary basis.

Ipswich Borough Council appealed from a decision of Lloyd J in the Chancery Division on an application under CPR Part 24. The judge held that the Council could not claim possession of parts of the River Orwell because the respondents moored with the permission of the Ipswich Port Authority.

The respondents also relied on a public right of navigation, but that issue had not been decided below. The Crown Estate Commissioners were permitted to intervene on that issue. The Royal Yachting Association applied to be joined as a party or, alternatively, to intervene. The central question was how that application should be managed where the substantive appeal might be resolved without reaching the public-right issue.

1. Application deferred. The Royal Yachting Association’s application to be joined or to intervene was not finally determined. Its participation would be reconsidered at the hearing of the substantive appeal, because the court might uphold the decision below on the local legislation issue and therefore never reach the public right of navigation issue.
2. The RYA was required to provide a clear statement of the facts on which it wished to rely. The other parties and the Crown Estate Commissioners were to consider whether those facts could be agreed and, if not, the extent of the dispute was to be identified.
3. If the public right of navigation issue required determination, the court would consider whether it was a pure point of law, including whether the court was bound by Attorney-General v Wright, or whether disputed facts required findings by the trial judge. In the latter event, remission would be preferable to deciding the issue on a CPR Part 24 basis.
4. The court accepted that the Crown Estate Commissioners’ interests were opposed to those of the RYA on the substantive issue, but that both might seek remission if factual findings were necessary. Lord Justice Chadwick agreed that the substantive appeal should be heard with a statement of the facts and the extent of disagreement before the court.

• Court of Appeal (Civil Division): The appeal from the Chancery Division was pending. The court deferred final consideration of the RYA’s application to join or intervene until the substantive appeal.
• Chancery Division: Lloyd J, on the Council’s application under CPR Part 24, decided that the Council was not entitled to bring the possession claim because the respondents moored by permission of the Ipswich Port Authority. The public right of navigation issue was left undecided.