The Mayor and Burgesses of the London Borough of Hounslow v David Frank Devere & Ors.

Permission to appeal should be granted where the proposed ground has a real prospect of success. The court should avoid determining the merits finally where the appeal will proceed, saying no more than is necessary to justify permission.

Arguable grounds included whether an order improperly sanctioned potentially unlawful self-help, whether a licence conferred sufficient rights to found standing in trespass, the consequences of the licence’s construction for mesne profits, and the interaction between public access rights and recreational-use by-laws. Arguments concerning proportionality under Article 8 and the extent of cabling trespass lacked a real prospect of success.

The claimant brought trespass proceedings concerning vessels moored on its freehold land and on River Works held under a licence from the Port of London Authority. His Honour Judge Wulwik ordered removal of the vessels and related items, made provision for their removal and disposal on default, awarded mesne profits, and made costs orders.

Several defendants applied for permission to appeal. The issues included the legality of the enforcement provision, the claimant’s standing as licensee, construction of the River Works licence, mesne profits, public access and recreational-use by-laws, Article 8, costs, and cabling. The question was whether the proposed grounds had a real prospect of success.

1. Permission test. The appropriate test was whether each proposed ground had a real prospect of success. The public-interest alternative was not relied upon and was not the focus of the ruling.
2. Grounds 1–4. Permission was granted. There was an arguable case that the enforcement provision went beyond self-help by purporting to protect the claimant from civil or criminal liability for potentially unlawful conduct, improperly circumventing the contempt jurisdiction. There was also a real prospect of success in arguing that the River Works licence was non-exclusive, having regard to its limited-use provision, its express subjection to later provisions, and the absence of the word exclusive. The construction of the licence could affect both the claimant’s standing in trespass and entitlement to mesne profits. The letter relied upon by the judge could not determine the true construction of the licence, although the point was subsidiary to the construction issue.
3. Ground 5. Permission was granted. The meaning of recreational purpose and the existence or scope of any public right of way raised arguable issues concerning access to the moored vessels. DPP v Jones was relevant by analogy to the permissible use of a public highway for reasonable purposes.
4. Ground 6. Permission was refused. The Article 8 argument depended upon the defendants’ underlying proprietary and licence rights. It did not provide an independent arguable ground on the issues as then identified.
5. Ground 7. The costs challenge was based on a misreading of the order. The order concerned costs attributable to the named defendants, and the judge had a wide discretion. No specific costs argument warranted appellate intervention, subject to possible reconsideration if the appeal succeeded.
6. Ground 8. Permission was refused. The defendants accepted that they had no right to run the cabling, and there was no clear evidence that none of it infringed the claimant’s rights.

• High Court (Chancery Division): Permission to appeal was granted on Grounds 1–5 and refused on Grounds 6 and 8. The costs challenge in Ground 7 was not considered to warrant appellate intervention.
• His Honour Judge Wulwik: Ordered removal of the defendants’ vessels and associated items, made provision for removal and disposal on default, awarded mesne profits, and made costs orders.