Case No: B01NG135

IN THE COUNTY COURT AT NOTTINGHAM

60 Canal Street
Nottingham
NG1 7EJ
Date: Thursday, 8th October 2015

Before:
HIS HONOUR JUDGE ROBERT OWEN QC
--------------------Between:
CANAL AND RIVER TRUST
Claimant
- and ANDREW WINGFIELD
Defendant
----------------------------------------MS. BARRY appeared for the Claimant
MS. EASTY appeared for the Defendant
---------------------

APPROVED JUDGMENT
Digital Transcription of Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane London WC2A 1HP
Tel No: 020 7067 2900 Fax No: 020 7831 6864 DX: 410 LDE
Email: info@martenwaslshcherer.com
Web: www.martenwalshcherer.com

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

HIS HONOUR JUDGE ROBERT OWEN QC:

1.

This is an application by the Claimant, Canal and River Trust, for an injunction
pursuant to the proceedings which were commenced by a CPR Part 8 Claim Form
issued on 4th September 2015 in respect of the Defendant, Mr. Andrew Wingfield, of
46 Musters Road, West Bridgford, Nottingham, who is the owner of the craft known
as Hildegard which, it is common ground, is currently moored at the County Hall
steps, West Bridgford, Nottingham, on the River Trent.

2.

The claim brought by the Claimant seeks a declaration that the Claimant is entitled to
remove the Defendants boat from that property pursuant to statutory powers vested in
them under section 8 of the British Waterways Act 1983 and section 13 of the British
Waterways Act 1971, and that there be an injunction granted forthwith in the
following terms, namely: (a) restraining the Defendant from mooring or securing his
boat on to any part of the River Trent controlled by the Claimant as shown in the plan
exhibited to the witness statement of Stuart Garner dated 26th August 2015; (b)
restraining the Defendant whether by himself, his agents or otherwise from mooring,
navigating or securing his boat on any part of the canal or river bed, channel, canal or
river banks and towing paths of any parts of the canals and inland waterways
controlled by the Claimant as shown on the plan and coloured blue; and (c) requiring
the Defendant forthwith to remove his boat from the River Trent.

3.

The proceedings are brought by the Claimant pursuant to its statutory duty to protect
its property rights and to discharge its duties and powers in respect of the safe and
proper management of the waterways for which it is responsible and which is subject
to a limited stock of moorings available for use on the waterways. The Claimants
skeleton argument helpfully sets out in non-contentious terms the source and ambit of
the Claimants statutory duties and powers in question.

4.

The application is supported by the witness statement dated 26 August 2015 of Stuart
Garner, the Claimants appropriate enforcement officer, who explained the recent
history relating to their dealings with the Defendant and why it is necessary to take
these proceedings.

5.

It is common ground that enforcement proceedings in relation to the Defendant and

his use of his boat were taken initially in August 2013. Similar issues arose but, on
the second day of the trial, on 4th March 2014, those proceedings were stayed upon
terms of settlement which both parties agreed should remain confidential. It is
unnecessary for me to recite in full, for present purposes, the agreed terms. Suffice it
to say that the Claimant, in the particular and unusual circumstances of this case,
agreed to provide the mooring at a specific location (Cranfleet) to the Defendant
rather than, as is normal, for the mooring to be subject to open auction. In
consideration for the disposal of those proceedings and to bring finality to the matter
the Claimant agreed to make available to him, without competition, a specified
mooring and he acquired a right, pursuant to the licence issued to him, subject to
compliance with the terms and conditions of such licence, to keep his boat at that
mooring between 1 March 2014 and 28 February 2015 and the appropriate licence
was issued.

6.

The first formal notice of non-compliance with the terms of the licence was given on
14th July 2014 when it became apparent that the Defendant had not moored his boat at

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

Cranfleet, that he had not heeded the conditions of the licence and that his boat was
overstaying. The Claimant had noted that the Defendant had moored and/or was
keeping his boat at a different location, that is, at the County Hall steps in West
Bridgford, Nottingham and for a period in excess of 14 days, contrary to condition 2.1
of the licence. The Defendant was given notice of the Claimants right to terminate or
in any event not renew the licence on expiry.
7.

On 8 September 2014, as the Claimant acknowledged, the Defendant telephoned Mr

Garner to inform him that he needed to keep his boat where it was because he had a
medical condition. Mr Garner asked the Defendant to provide him with evidence of
any such medical condition relied on. No such evidence (or response) was provided.

8.

In the previous proceedings the Defendant had produced a letter from his doctor dated
9 October 2013 in which the Defendants home address was given and which is the
same address given in these proceedings and to which all correspondence has been
addressed and received by the Defendant.

9.

The Claimants evidence, identified by Mr Garner in his statement and exhibits,

clearly showed that the Defendant did not reply and that he ignored requests for
information. By letter dated 17 October 2014 notice was given again of noncompliance with conditions 2.1, 3.1 and 7.2 requiring the Defendant to remedy the
breach, remove his boat unlawfully moored at the County Hall steps and return it to
the licensed mooring at Cranfleet by 17 November 2014. Again, there was no
response.

10.

It was in these circumstances that the licence was formally revoked. The formal
enforcement checklist confirmed that the Claimant had considered the Defendants
circumstances and whether proceedings might be avoided. There were none. The
appropriate notices were issued on 9th January 2015 and served upon the Defendant
pursuant to sections 8 and 13 of the Acts to which I have already referred, requiring
the Defendant to remove the boat from that property or location on or before 9th
February 2015. No steps were taken by the Defendant.

11.

The Claimants then wrote a formal letter of claim to the Defendant, dated 22nd June
2015, as follows:
We have been instructed to act on behalf of the Canal and River Trust in relation to
the above boat, the Hildegard, which is unlawfully moored or kept on an inland
waterway owned or managed by our clients. We refer to the notice of intended
removal of a vessel in section 8 of the British Waterways Act 1983 dated 9 January
2015 and a notice requiring removal of a house boat under section 13 of the British
Waterways Act 1971 dated 9 January 2015, both of which were served on you by our
client by way of notices being affixed to your boat. Following expiry of the section 8
and section 13 notices your boat remains unlawfully moored on our clients
waterway. The purpose of this letter is to put you on formal written notice that in the
event that you fail to remove your boat from the inland waterways owned or managed
by the Trust within fourteen days from the date of that letter court proceedings will be
issued against you, Mr. Wingfield, immediately without further notice for: (a) a
declaration confirming that the Trust is entitled to remove your boat from its inland
waterways pursuant to its statutory powers; (b) an injunction to restrain you from

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

mooring your boat on or to any part of the Trust waterways and requiring you to move
your boat immediately; and (c) costs.
12.

That letter was not heeded by the Defendant any more than the previous notices and
letters had been heeded, which resulted, as Mr. Garners statement explained, in the
commencement of these proceedings, on 4th September 2015.

13.

The Claimants and Defendant were given notice by the court of the hearing date for
these CPR 8 proceedings on 9 September 2015. The hearing was fixed for today. The
Defendants current solicitors gave notice of acting to the court on 16 September
2015. No acknowledgment of service pursuant to CPR rule 8.3 was filed or served.
There was no suggestion of any substantial dispute of fact. The Claimants claim was
properly formulated and served and they were, in the absence of any issue or dispute
raised by the Defendant and the exercise by the court of its judicial discretion,
lawfully entitled to the relief sought given the facts and their statutory duties powers
in respect of the proper control of the moorings and use of the canal and waterways
for which they are responsible.

14.

In fact, there was no indication at all from the Defendant or his instructing solicitors
of any factual or other basis for challenging the claim until the late filing of a witness
statement from the Defendant dated 7 October 2015 followed by the informal service
of a draft Defence settled by counsel, Ms. Easty, who has appeared on the
Defendants behalf today.

15.

That document (counsels draft) bears the date 2nd October 2015.
paragraph 3, it is asserted as follows:

Within it, at

It is denied that the Defendant has not complied with his licence conditions. He has
moved Hildegard every fourteen days until he was unable to do so as he was
hospitalised with a stomach complaint and subsequently fractured his leg. The
Claimant has failed to consider that there are special reasons and/or circumstances
outside the Defendants reasonable control preventing the Defendant from moving his
boat. It [Claimant] is aware that the Defendant suffered from medical problems as set
out herein above which rendered him unable to remove Hildegard. The Claimants
were informed about the Defendants special reasons and/or circumstances outside his
control on various sites, in particular on 8th September 2014 as to why he was having
difficulties moving. The Claimants have failed to give any consideration to special
reasons advanced on behalf of the Defendant when considering whether to take
enforcement action against him.
16.

Thus, the Defendants perspective was that whilst it was common ground that he was
not able to stay in any one place on the canal for in excess of fourteen days for
reasons beyond his control he was unable to comply due to being hospitalised with a
stomach complaint and subsequently a fractured leg notice of which was given on 8
September 2015. It was not challenged that the Claimant had a discretion to relax
compliance with the licence condition if the explanation for that breach of licence was
a special reason or circumstances outside of his, the Defendants reasonable control.
The onus was upon the Defendant to satisfy the Claimants of those circumstances.
Such reasons or circumstances, if present were, of course, within the particular
knowledge of the Defendant. It was incumbent upon him, particularly in light of the

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

recent history which gave rise to his licence, to give appropriate notice and details of
his alleged circumstances.
17.

So far as the Claimants position was concerned the facts are, and were, clear. The
licence in question had been issued to the Defendant pursuant only to the history to
which I have referred. Thereafter, the Defendant simply chose to moor his boat
elsewhere, at a different and unauthorised location. It would appear that the steps at
County Hall was a location convenient for the Defendant having regard to his home
address. I should add that Musters Road is a short walk from County Hall. Moreover,
the Claimants evidence was that the boat was kept at that location constantly and, in
any event and certainly not for periods of less than fourteen days.

18.

As for the special reason or circumstances arising, Mr. Garner in his witness
statement stated at paragraph 10:
On 8th September 2014 I received a phone call from the Defendant. He informed me
that he had a medical condition which required him to be moored near his doctor.
The Trust had previously been made aware of the Defendants medical conditions as
detailed in a letter from his doctor dated 9 October 2013. (It is common ground that
that condition is not material to todays hearing). These provisions were therefore
present prior to the settlement that was being advised by solicitor and counsel. I
requested that he provide me medical evidence as to why he was unable to move the
boat within seven days.
A copy of the letter from the Defendants doctor is annexed to that statement. That
letter and its content, however, relates the matters which are not material for present
purposes.

19.

Save for those medical matters it is the Claimants position that they had not been
given any notice of an alleged stomach condition or complaint or the fractured leg,
alleged to have been suffered in August and September 2014 respectively. It was not
until receipt of the draft defence that any such mention of those conditions or the
alleged circumstances now relied on were made known to the Claimant.

20.

There is, in fact, no evidence before the court of the existence or significance of either
or both of those two alleged medical conditions beyond the bare assertions contained
in paragraph 6 of the draft Defence and paragraph 6 of the Defendants witness
statement which he filed in order to ensure that the essential elements of his defence
were before the court and on the record.

21.

It is in these circumstances that Ms. Barry on behalf of the Claimant submitted that, in
light of the evidence before the court it would be appropriate to grant the injunction or
relief sought today in that it was necessary to permit the Claimant to comply with its
statutory duty to ensure the proper and safe management of the waterway for which it
is responsible. In effect, it is submitted that there is no arguable or substantial dispute
of fact.

22.

Ms. Easty on behalf of the Defendant submitted to the contrary. Relief should not be
granted and the Defendant should be permitted to pursue the matters contained in the
draft Defence. She submitted that there are issues of fact which have been raised by
the Defendant which allowed her to settle the draft Defence. In particular, my

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

attention was drawn to paragraph 3 (see earlier) and also paragraph 8 in which the
Defendant seeks to rely upon article 8 (ECHR). It is alleged, in taking the steps which
they have taken and in seeking the relief which they now seek, that the Claimants
have failed to consider: (a) that the Defendant had a broken leg and/or other health
issues which impeded his progress around the River Trent; (b) whether or not to
permit the boat to remain at its present location and to charge additional mooring fees;
(c) the Defendants physical difficulties; (d) whether the Defendant was able to
comply with his licence conditions within a reasonable period; and (e) that the
Defendant would otherwise be rendered homeless.
23.

In short, Ms. Barrys submission was that there is no arguable issue raised on behalf
of the Defendant in any of these factors and that in the circumstances the court should
proceed summarily to deal with the matter.

24.

The burden is upon the Claimant to establish the correct factual and legal basis to
engage the courts particular jurisdiction, that is, to exercise, judicially, the discretion
to grant the relief sought and in dealing with the matter summarily. As I have said, I
am invited on behalf of the Defendant to reject the Claimants application for the
reasons which I have summarised and to allow the matter to run its course hereafter.

25.

The other document to which I referred is entitled Defence Witness Statement

which was filed at court by the Defendant. It bears the signature of the Defendant and
is dated 7th October 2014. It appears to be in compliance with the provisions of CPR
32.8 and in particular it contains the appropriate statement of truth. It was filed out of
time in that no acknowledgement of service was filed and thus no written evidence
was filed either. In the circumstances, the Defendant required permission from the
court to take part in the hearing and to rely on any written evidence. There was no
objection by the Claimant to that evidence being presented to the court, including the
draft Defence.

26.

I was invited by Ms. Easty to pay no attention to the witness statement on the basis
that it is a statement which was not taken by the Defendants current solicitors.
Apparently the Defendant made and filed his statement with the assistance of a third
party, Mr. Nigel Moore. It was not suggested that there was any other reason to ignore
it. I declined to ignore the statement in these circumstances. I did not consider that I
should do so since it is the Defendants statement, not his solicitors. The filing and
content of that statement is the responsibility of the Defendant. The statement was
expressly filed to ensure that the Defendant put before the court those matters,
personal to him and of importance, upon which he wished to rely. It would not be
appropriate for the court simply to ignore the fact of a signed statement presented to
the court by the Defendant on that basis. I considered that it was just and appropriate
to have regard to its contents. It was not suggested that material matters had been
omitted. That statement contained the evidence which the Defendant wished to give at
this hearing.

27.

As for the draft Defence, paragraph 6 contains a denial of non-compliance with the
licence conditions, a denial of any basis for revoking the licence and, in particular, an
unparticularised assertion that the Defendant had moved his boat every fourteen days
until he was unable to do so in that he had to attend hospital appointments. That bare
assertion is repeated at paragraph 6 of the witness statement save that it is alleged in
the statement by the Defendant that he had a severe bleeding stomach complaint

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

and, subsequently, a fractured leg. No other facts, details or circumstances are given.
Given the issues before the court, in these circumstances, it does not seem to me to be
appropriate simply to ignore the Defendants own evidence without good reason, and
none has been suggested beyond the fact that it was filed without the knowledge of
the current solicitors. It is, nonetheless, the statement of the Defendant. The two
documents constitute the evidence of the Defendant. It is his evidence. It was open to
the Defendant to present to the court such evidence which he might wish to rely upon
having been given notice of these proceedings. He failed to do so until, in effect,
today.
28.

It is my judgment that the evidence presented by the Claimant in support of the relief
sought is clearly sufficient to justify the granting of the that relief. There is no
arguable factual basis raised by the Defendant which would justify the court declining
to grant the relief sought. It is common ground that the Defendant did contact the
Claimant, on one occasion, on 8 September 2014. The history or circumstances set out
by Mr Garner is not in fact disputed save for the issues, as such, raised in the witness
statement and draft Defence to which I have referred. It is evident that appropriate
notices under sections 8 and 13 have in fact been served upon the Defendant. The
Defendant is entitled to raise of course matters of fact which would undermine the
very basis upon which those notices were issued or which might affect whether the
proceedings or relief sought might be determined summarily or otherwise. However,
examination or scrutiny of the apparent issues raised by the Defendant in response
reveals clearly that there is, in fact, no arguable basis to support the defendants mere
denials. The unsupported or unparticularised assertion that his boat was moved
regularly, every fourteen days, in accordance with the terms of the licence does not
bear scrutiny. The Defendant has had every opportunity to give the alleged dates of
mooring or movement but he has not done so. No detail was provided in the witness
statement or in the draft Defence.

29.

The assertion that special reasons arose by reason of the alleged medical condition(s)
of the Defendant equally lacks merit. No details have been given of the nature or
reason or dates of the asserted physical incapacity which is now asserted explains why
he did not or was unable to adhere to the conditions of his licence. I do not consider
that the Defendant has raised any substantial dispute of fact which is arguable in the
circumstances. The fact of the matter is that, in relation to the stomach complaint
Ms. Easty confirmed that the Defendant was not hospitalised. Rather, he had simply
attended hospital on an occasion or (unspecified) occasions. The mere fact also that
the Defendant had broken his leg could not, without more (and not without any basic
detail) arguably constitute, in the circumstances of this case, any or any special
reason or circumstances outside his reasonable control to explain the noncompliance with the conditions of the licence. The assertions made by the Defendant
are not such which could arguably render the issuing of the notices invalid,
inappropriate, unjust or unfair nor do they raise an arguable substantial dispute of fact
which render it necessary and just to be determined otherwise than on submissions.
Even if the Defendant had mentioned the fact of his stomach condition or fractured
leg such would take the matter no further for the Defendant for he could not show,
arguably, that as a result, beyond his control, he was unable to comply with the
relevant condition to which I have referred.

His Honour Judge Robert Owen QC

Approved Judgment

CANAL v WINGFIELD JDG

30.

The assertions contained in paragraph 8 of the draft Defence similarly do not bear
scrutiny. It is not realistic, certainly not on the facts of this case or the circumstances
as presented to the court, for the Defendant to expect that the bald assertion of noncompliance with or failure to respect his Article 8 (ECHR) rights under particulars (a),
(b) (c), (d) and (e) of paragraph 8, to which I have referred earlier, should carry any
weight. I consider that the matter may appropriately be dealt with summarily.

31.

As to (a) and the evidence showing the fact and relevance or significance of the
Defendants alleged medical condition, I have already dealt with that. It is plainly
without merit. As for the reference to other health issues there are no other health
issues on the evidence before this court other than the reference to the stomach
complaint and the fractured leg. Similarly, in respect of (c) there is no basis for the
court to entertain the bare assertion that the Defendant has (unidentified or relevant)
physical difficulties. As for (b) and (d) it is clear that these matters could have no
realistic prospect of challenging or affecting the correctness of the Claimants
decision to revoke the licence and to seek the relief in question, given the recent
history and the circumstances which have given rise to these further proceedings and
the enforcement officers checklist to which I have referred. As for (e) this too is not
arguable. It is obvious that the purpose or aim of the proceedings is to protect the
Claimants property rights and to comply with its statutory duties in respect of its
allocation of moorings and its safe and orderly management of the waterways in
question. It also appears that the Defendant has a home address in West Bridgford,
Nottingham. However, and in any event, the suggested article 8 defence or issue is not
arguable and might properly be dealt with summarily in the circumstances.

32.

In these circumstances I am satisfied that for those reasons the Claimant is entitled to
the relief sought. I am satisfied that it would be just and convenient to grant the relief
sought which relief, in the circumstances is proportionate and necessary.

(discussion as to form of order and costs, etc)