Moore v British Waterways Board

A preliminary ruling should be set aside where the issue was unsatisfactorily framed, answered in terms for which neither party contended, or requires full factual evidence and legal argument. The substantive question should then be determined at trial with the remaining issues. A public right of navigation does not include an ancillary right to moor other than temporarily in the course of navigation. The Court may make a global percentage costs order for preliminary issues where an issue-based order would be inappropriate.

The claimant challenged notices requiring removal of his houseboats from the Grand Union Canal. He relied on common-law, riparian and statutory rights, particularly section 43 of the Grand Junction Canal Company Act 1793. The British Waterways Board relied on its statutory regulatory powers, including section 8 of the British Waterways Act 1983.

At a preliminary-issues hearing, the High Court held that the private right of navigation under the 1793 Act had been repealed by the Transport Act 1968. It also decided issues concerning the extent of the canal, the Board’s statutory authority and ancillary mooring rights. The claimant appealed the ruling on issue (i) and the costs order. The central question was whether issue (i) had been properly determined before trial.

1. Appeal allowed in part. The Court of Appeal granted permission, set aside the Deputy High Court Judge’s ruling on preliminary issue (i), and directed that the issue proceed to trial with the other unresolved issues. The court did not determine whether section 43 of the Grand Junction Canal Company Act 1793 preserved or conferred private navigation, riparian or mooring rights, or whether those rights were repealed, amended or overridden by the Transport Act 1968 or later waterways legislation.
2. The preliminary ruling was unsatisfactory. The Deputy Judge had answered issue (i) in terms for which neither party had contended and had not adequately addressed the claimant’s arguments concerning preserved pre-existing rights and private riparian rights. The issue was unsuitable for final determination on an appeal constrained by its preliminary formulation. It required full legal argument and factual evidence at trial.
3. The remaining preliminary rulings were left undisturbed. The court accepted that the canal extended to the mouth of the River Brent and that the Board was the relevant statutory navigation authority for the tidal element. A public right of navigation did not include an ancillary right to moor other than temporarily in the course of navigation. The claimant’s vessels were not temporarily stopped during navigation.
4. No order was made as to the costs of the appeal and permission application. The order requiring payment of four-fifths of the costs below was varied. The claimant was ordered to pay 40 per cent of the costs of the preliminary issues, assessed globally rather than by reference to individual issues.
5. The court recorded the respondent’s acceptance that, because the Board was a public authority and the claimant was unrepresented, relevant Convention rights should be drawn to the trial judge’s attention.

1. Court of Appeal (Civil Division): Appeal allowed in part. The ruling on preliminary issue (i) was set aside, the issue was left for trial, costs below were varied to 40 per cent, and there was no order as to the costs of the appeal and permission application.
2. High Court of Justice, Chancery Division: Mr Martin Mann QC, sitting as a Deputy High Court Judge, determined four preliminary issues on 12 March 2009. He held that the private right of navigation under section 43 of the Grand Junction Canal Company Act 1793 had been repealed by the Transport Act 1968, and ordered the claimant to pay four-fifths of the respondent’s costs of the preliminary issues.