Jones v Canal & River Trust

The Court of Appeal allowed the appellant's appeal against orders striking out paragraphs of his defence which invoked Article 8 of the European Convention on Human Rights. The central legal issues were whether the Canal & River Trust, as a public authority exercising statutory powers under the British Waterways Acts (notably s.17 of the British Waterways Act 1995 and removal powers in s.8 of the British Waterways Act 1983 and s.13 of the 1971 Act), must consider Article 8 rights when enforcing licence conditions, and whether an Article 8 defence could be summarily dismissed by analogy with the summary approach adopted in housing cases such as Pinnock and its progeny.

The court held that the Pinnock line of authority does not create a blanket exception to structured proportionality analysis outside social housing, but explains that in many public housing cases summary disposal is appropriate because the authority's management aims can be treated as a "given". That principle is capable of application by analogy in waterways cases, but only where the facts and legal position permit a robust summary assessment (for example, flagrant breach of licence conditions or failure to meet clear statutory preconditions). Where there are live disputes as to whether the licence conditions were breached and where other issues such as claims under the Equality Act 2010 remain, it is inappropriate to strike out an Article 8 defence at the preliminary stage.

Background and procedural posture: The Canal & River Trust (successor to the British Waterways Board) sought a declaration and injunctions entitling it to remove the appellant's boat from the Kennet & Avon Canal and to restrain mooring and navigation, relying on statutory powers including s.8 of the British Waterways Act 1983 and s.13 of the 1971 Act after treating the appellant's licence as terminated for alleged breach of s.17 licensing conditions in the British Waterways Act 1995. The appellant filed a Part 8 defence alleging among other matters that removal would breach his Article 8 rights and invoked the public sector equality duty under the Equality Act 2010. The Trust applied to strike out paragraphs of the defence that pleaded Article 8 as disclosing no reasonably arguable case.

Issues framed: (i) Whether the Canal & River Trust must consider Article 8 rights when enforcing vessel-licence conditions; (ii) whether the summary approach applied to local authority possession/housing cases (Pinnock, Powell, Thurrock) should apply by analogy to the Trust; and (iii) whether the Article 8 defence in this case raised a triable, seriously arguable issue.

Court's reasoning: The Court of Appeal accepted that the Trust, as a public authority, must consider Article 8 issues when its enforcement action affects someone's home. It analysed the Pinnock line of authority and concluded that those decisions do not create an absolute exception to structured proportionality analysis outside the housing context; rather they explain why in housing cases an Article 8 point can often be considered summarily because a housing authority's management aims may be treated as a given. That analogy may apply in waterways cases in some circumstances (for example, where statutory preconditions for a licence are not met, or where there has been flagrant and persistent breach), but where there are genuine disputes on core facts—here whether the licence had been properly terminated for continuous-cruising breaches—and where an Equality Act claim remained, the Article 8 defence could not fairly be struck out at a preliminary hearing. The court therefore reversed the strike-out and allowed the appeal, remitting matters to be dealt with in the substantive proceedings.

Appeal allowed. The Court of Appeal held that the Canal & River Trust, as a public authority, must consider Article 8 rights when seeking to enforce licence conditions affecting a person’s home and that the Pinnock line of authorities does not create a blanket exception to structured proportionality outside the housing context. The article 8 defence pleaded in paragraphs 10–12 raised triable issues in view of disputed facts about licence compliance and an outstanding Equality Act claim, so it was wrong to strike those paragraphs out summarily; the strike-out order was reversed and the defence restored for substantive resolution.

County Court (Bristol) strike-out of paragraphs 10–12 of the defence (24 September 2014). High Court refused the appellant's appeal against that order (order of 6 March 2015). Permission to bring a second appeal to the Court of Appeal was granted by Lewison LJ (21 May 2015). The Court of Appeal allowed the appeal on 7 March 2017 ([2017] EWCA Civ 135).