Moore V BWB Cross examinations November 2, 2011

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

No. HC07C02340

Royal Courts of JusticeThe Rolls Building

Wednesday, 2 nd November 2011

Before:

MR. JUSTICE HILDYARD

B E T W E E N :

NIGEL PETER MOORE Claimant

- and -

BRITISH WATERWAYS BOARD Defendant

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Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape Transcribers

Quality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737

Email: [email protected]

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THE CLAIMANT appeared in person.

MR. C. STONER QC (instructed by Shoosmiths) appeared on behalf of the Defendant.

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E V I D E N C E

BEVERLEY F NUNNERY & COOFFICIAL COURT REPORTERS

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I N D E X

Page No.

JOHNSON, Mr. NIGEL IAN, Sworn

Examined by Mr. Stoner 1Cross-examined by Mr. Moore 1

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NB: This transcript was prepared without access to documents and spellings and therefore quotes are unchecked.


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Mr. NIGEL IAN JOHNSON, SwornExamined by Mr. STONER

MR. STONER: Mr. Johnson, there are a number of files just over your right hand shoulder. Can you locate bundle C, and go to p.1, where we see a header witness statement of Nigel Ian Johnson. Could you confirm your professional address, please.

A 64 Clarendon Road, Watford.

Q Could I ask you to just look through to p.9, and you should see a signature under the date of 21st April 2008. Is this a copy of the statement you provided in this action on that date?

A It is.

Q Then if you go over the divider to p.10, you will see another document entitled witness statement of Nigel Ian Johnson. Can I ask you to find p.29 of the bundle?

A I’m afraid this copy ends at p.26.

Q Perhaps I could just hand this up.A Yes, 29.

Q There is also a signature there?A Yes.

Q Do you recognise that signature?A I do, yes, it’s mine.

Q Is this a copy of the statement you provided in the action, a second statement, on 4th October of this year?

A It is, yes.

Q Are the contents of those two statements true?A Yes.

Q Thank you very much. If you wait there, Mr. Moore will have some questions for you?

Cross-examined by Mr. MOORE

MR. MOORE: Mr. Johnson, I want to start from the beginning of this cause of action, so I would like you to look at file D1, tab 12, p.178. You will


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recognise that as the email that you sent to me cc’d to Eugene Baston in response to my message of 3rd August.

A Yes.

Q I want to go through a few things from this letter of yours, Mr. Johnson. You state it in bullet points, and you say that my message had included a number of incorrect assertions or mistaken assumptions. I want to go through which of these could still be said to apply. You start off saying:

”The boats against which BW is taking enforcement are unlicensed and/or unlawfully moored on a BW managed waterway, which is the straightforward basis of the service of a s.8 notice.”

I would just like to confirm that, in your opinion, that is a correct enforcement action to take in either situation. You have got “and/or”. If I can clarify the question: if the boats were licensed would you have s.8’d the boats?

A There are circumstances where, even if a boat is unlicensed, there may be grounds on which you can serve a s.8 notice. I think that is why I constructed the sentence in those terms.

Q So in our particular circumstances, if we were licensed, would we still have been given a s.8 notice?

A There may well have been grounds where, even if you held a licence, there would still be grounds for serving a s.8 notice. If a licence had been issued, there may still nevertheless be grounds for serving a s.8 notice.

Q I understood you to say that, Mr. Johnson, perfectly, I am just saying, in the circumstances in which they were, would that have applied?

A I cannot recall, going back to whenever it was, 2007, but clearly at that time that was the view I took. I am not aware of any reason why I would change that view.

Q You were aware that there were six boats affected, of which one was licensed, which boat was not s.8’d. So we have some boats in the identical situation, where there is a licensed boat and there’s unlicensed boats, why was not the licensed boat issued with a s.8 notice?

A That would have been the decision of the particular enforcement officer at the time. I don’t know what reason he would have had for deciding to serve a s.8 notice on that particular boat.

Q So would that have been entirely down to his personal discretion then?A It was his action - it was his decision in those circumstances as to whether to

serve a s.8 notice or not.


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Q When you say this is an approved action, then you are accepting his assessment of the situation - I would have thought necessarily?

A It’s a simple statement. I am simply stating that BW was taking enforcement action against boats which were unlicensed and/or unlawfully moored. That is the extent of my statement in that note.

Q All right, thank you, Mr. Johnson. We will go on to the next bullet point, and I would just like a little bit of explanation on this. You said:

“Those boats were without proper authority moved on to BW waters from adjacent non-BW waters because they were found by the courts to have been trespassing where they were originally moored.”

I do not know of any grounds on which you could say that, so I would like you to clarify what you meant by that. What court action had been taken that found the boats to have been trespassing where they were originally moored?

A That was the information I was given at the time.

Q You did not seek to verify that?A Well, I took the information that had been given to me by the people - when

I received your earlier note, obviously I made some enquiries and that was the information I was given by the enforcement officers and/or the managers at the time as the reason behind the service of the s.8 notices.

Q I presume by the managers you mean Ballymore?A No, by employees of British Waterways. I took information from the

employees of British Waterways.

Q Thank you. How do you suppose they would have known of any such action?A I don’t know.

Q I will just state for the record, Mr. Johnson, there was no such thing. I will not worry about the next one, the Wood Wharf Partnership. You then say:

“The enforcement actions now being taken are fully in compliance with BW’s statutory powers, and/or due process is being followed.”

I am not sure whether or not you do make a reference to this - I think you do in your statement. Will you accept that all due process was not being followed?

A No, I don’t accept that.

Q What due process would have been, in your opinion, appropriate?


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A The due process to which I believe I was referring is the provisions of s.8 in the 1983 Act, and the requirement for service of notice.

Q I understand that you would be leaning on that, but in terms of the procedures that are apparently set out in the British Waterways Board, there is always an attempt made, if a boat is unlicensed, to contact the owner and give them the opportunity to make good their sin, as it were. That was not done. There was no attempt at contact being made, even though it was very easy to get hold of us. So I am submitting that that is not due process. The notices were given without any warning, and I am submitting that that was wrong?

A I can’t comment on your view.

Q We may come to that further on in your statement. I certainly believe it does come into Mr. Farrow’s. If we come across it when we go through I will come back to that one. I would ask at this moment what the effect would be if all due process was not being followed. I am not asking you to suggest that it was not, I am just asking what would be the effect if the notices were served outside of due process?

A If the notices did not comply with the requirements of s.8 of the 1983 Act they would not be valid notices.

Q I was referring to the process, which would include the way that the notices were actually served.

A I am not following your point. British Waterways does have some practices about sending letters, and so on and so forth, but that is its own decision.

Q You are suggesting that the courtesy process, as it were, is entirely discretionary, you do not have to go through that route?

A Yes, clearly the legal requirements are that British Waterways comply with the requirements of the 1983 Act.

Q I am going to ask you to turn up some of those references, if you will just give me a moment to find that one.

MR. JUSTICE HILDYARD: While you are doing that can I just ask this: does the British Waterways Board have internal procedures as to what notice should be given in circumstances, including the circumstances we are confronted with in this case?

A It has standard procedures for standard situations, and that does include giving prior warning of the formal notice, of the s.8.


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Q When you were asked about due process, and you said, “I can’t comment on Mr. Moore’s views”, which was a technically accurate response, did the process you adopted in this case comply with your own internal guidance?

A My recollection is that these were unusual circumstances, and the enforcement officers on the ground took the steps they took on the basis that they were appropriate in those circumstances. Section 8 - yes, although we have what seems good practice, a s.8 notice in itself is notice of pending enforcement action. Clearly we cannot move a boat before the s.8 notice is given. I believe Mr. Moore used the term “as a matter of courtesy” or “good standard practice”, but yes, British Waterways would in normal circumstances give a period of time for, in a sense, a voluntary remedy of what is seen to be the default. Whether or not that happened on that particular occasion, I can’t recall. I don’t know the precise details of exactly the sequence that was gone through. I believe the enforcement officers will be giving evidence later. My recollection, by using the words “due process”, I would say I was using that very much in a legal sense. Normally, if it was a matter of procedure, British Waterways’ administrative procedure, I would more than likely use the word “procedure”. To me, “due process” is more applicable to actual people requirements. It may be a subtle difference, but that is how I would read the phrase “due process”.

MR. STONER: Just so my Lord is aware, Mr. Farrow, who is the patrol officer, he does deal with all of the detail in his statement.

MR. MOORE: Yes, I thank Mr. Stoner. I do recognise of course that Mr. Farrow is specifically addressing this. I would imagine, however, that the legal director of British Waterways Board, when written to on such, I would say, a serious matter, would be concerned to ensure that either the courtesy or legal processes have been carried out, or ensure that there was some rectification of that error. I will obviously be going into that in more detail with Mr. Farrow. (To the witness) In terms of the actual statutory requirements, I would like you to go to BW’s legislation bundle, please, Mr. Johnson.

A Does this have a number?

MR. STONER: It was not one of the witness bundles, but we have a spare copy. (Same handed)

MR. MOORE: Tab 8 is the 1983 Act. I am looking at p.15 of the Act (top right hand corner), and right down at the bottom we have got Part V: General, starting off with s.17?

A Yes.

Q This is referring to:


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“All notices authorised or required to be served by any person by or under this Act -

(1) Shall be in writing.”

The s.8 notices are notices authorised or required to be served on any person by or under this Act - correct?

A Yes.

Q There is no quibble that it was in writing. I want you to go on to the next page, s.17(2), which refers to the manner in which these notices are to be served. It says:

“Any notice such as is referred to in ss.(1) of this section may be served by a number of different ways.”

The first is by delivering it to the person upon whom it is to be served or by leaving at his proper address, or by sending it by post to him at that address, or in (b), whether it is a body corporate; or (c) whether it is in a partnership:

“… or, if it is relating to a vessel, the name and address of the person upon whom the notice is to be served, if, in the case of a notice relating to a vessel, the name and address of the person upon whom the notice is to be served cannot, after reasonable enquiry, be ascertained by exhibiting it in a conspicuous position on or near the vessel.”

So there are two bits that I want to take from this, Mr. Johnson. The first thing is that if you know who it is who was the owner of the boat, because you have those details in your registration, then the notice should be served by delivering it to the person, or by leaving it at his proper address, or by sending it by post to him at that address. Then (d) is saying that it is only if, after reasonable enquiry, the details of that cannot be ascertained then you leave the notice in a conspicuous position on or near the vessel. So I really am suggesting, Mr. Johnson, that there is more than an internal memorandum with BW setting out courtesy requirements, there is a statutory requirement for a process to be followed in the service of the s.8 notices. As you know, these processes were not followed.

A I didn’t know they were not - I don’t know whether or not they were followed.

Q I will accept that, Mr. Johnson, because you were not the person who actually did it, and I will have to be taking this up with Mr. Farrow. I am asking you to


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accept that these are statutory requirements for the service of such notices, and if they were not followed then something was amiss?

A It’s probably a matter of legal argument, so it is not for me, but it seems to me these are permissive requirements in terms of service because it says “may be served”, so clearly these are sufficient requirements for service of notice. I leave it to others to argue the precision by which they must be followed.

Q Thank you. Then I want to address another aspect of the way in which they were delivered, and I want to go back to p.7 of the same Act. This is in Part II: Control of Unsafe Vessels, and we are looking at s.2:

“(a) An officer may at any reasonable time enter upon any vessel in any inland waterway or any reservoir owned or managed by the Board for the purpose of inspecting the condition of the vessel so as to ascertain whether the vessel is unsafe.

(b) An officer shall not enter upon any vessel in accordance with this subsection unless -

(i) no less than 24 hours’ notice of such entry has been to the Master of the vessel; or

(ii) the officer has reason to believe that the vessel may be unsafe and that an immediate inspection is required.”

So we have here, I suggest, a clear statutory prohibition against any officer of the Board actually entering upon any vessel for anything other than these two circumstances: where no less than 24 hours’ notice has been given; or that there was a good reason to believe that an immediate inspection is required because the vessel is unsafe. The only reasons for this power to board a vessel is in terms of controlling of unsafe vessels and the safety requirements, as it says, so as to ascertain whether the vessel is unsafe. This is, so far as I am aware, and you may be able to direct me elsewhere, where any officer of the Board is otherwise lawfully entitled to board a vessel without the Master’s consent?

A I do not know off the top of my head in terms of other requirements. It seems to me that these conditions put are there when exercising the powers for the purposes of that section. So these are clear conditions in respect of exercising the powers in connection with controlling unsafe vessels. Whether there are or are not other circumstances that it may be lawful for an officer to go aboard a vessel, I can’t say.


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Q Mr. Johnson, I am going to freely accept that you have far greater experience and knowledge of BW’s legislation than I would ever hope to have, and if you do not know of any other law stating that an officer in any other circumstances may board ----

A There may be lawful circumstances under other legislation, not just BW legislation. I am just not aware of it.

Q And nor am I, Mr. Johnson. I can assure you that I would never have wanted to exalt you in that direction.

A Sure.

Q I would suggest in terms of my initial question that if an officer of the Board boards a vessel without the Master’s consent in any other situation then he is doing something which is against this statute, and even if he does board a vessel without the Master’s consent for this purpose, unless he has given no less than 24 hours, that will still be unlawful, and that the only exception to that is that he has got a reason to believe that the vessel may be unsafe and an immediate inspection is required, a perfectly sensible provision. You cannot wait around if there is an imminent danger. Those are the circumstances under which, in this statute, it is lawful to board the vessel, and in those conditions only, and I will point out to you, which you must be aware of from Mr. Farrow’s reports on s.8, that from an inspection that he made originally all these boats were mostly in good condition.

MR. STONER: My Lord, I hesitate to rise, but I think this is probably legal submission, not really questions of fact that Mr. Johnson is capable of answering.

MR. MOORE: I would just say, my Lord, that the question is asked in the context of what Mr. Johnson has suggested, saying all due process is being followed, and I think I am entitled to query Mr. Johnson, given his position, on that matter.

MR. JUSTICE HILDYARD: I understand that, having taken upon himself, to, as it were, warrant that due process had been followed, you are asking him what it entailed. If you have any other short questions on that, I am not going to stop you. I think the warning which is being given, and this is a very difficult case in this regard, is that pretty much all the issues that arise are really issues of interpretation and construction. You may counter that by saying, well, why are the witness statements going on about legal issues? The answer to that is twofold: partly, they should not have; and partly, the preliminary issues were in a form which required, in order for the judge to understand them, advance notice, and therefore they did rather trespass into the matters. What I am


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saying is, yes, ask him, and emphasise thereby to me that it may be that that bullet point warranting due process is something you wish to question. Try and an argument as to the legal interpretation, because ultimately, whatever the witness says, it is not going to make a great deal of difference.

MR. MOORE: I think I understand, my Lord. All I would ask for is a little forbearance and for your Lordship to jump up and knock me down when I trespass ----

MR. JUSTICE HILDYARD: I will give you leeway, but when we are, as counsel was rather suggesting we were, getting into a sort of quiz on the law, I do not think that that would be helpful.

MR. MOORE: Thank you, my Lord. There will be some slight difficulty that I have in terms of some of the questions that arise from communications from Mr. Johnson in terms and in the statement in terms of the assertions of land ownership. I understand that we are not going to go into that and deal with it, as if those were not there. Is it appropriate to ask in what way the actions taken would be legitimate in the absence of that?

MR. JUSTICE HILDYARD: I am not quite sure what you mean, but you are entitled to ask him, and I think you already have, what is the basis on which he told you that due process had been pursued. You are entitled to ask him that, and you are entitled to follow it up, depending on his answer. If he says, “Because such and such had been done”, you can ask him as to whether that would satisfy it according to their manuals. You cannot really elicit the answer to the legislation from him, because it is not going to be relevant.

MR. MOORE: I think the point was more a question of what degree of awareness there was of the relevant legislation governing the service of the notices.

MR. JUSTICE HILDYARD: Why do you not ask him, just so we have it on the record, what was the basis for him saying to you that due process had been followed? What does he mean by “due process”, and what was his basis for saying that it had been followed? I think you are entitled to ask that, and take it as asked.

A Having received your email, obviously I would have enquired of - and I don’t know who it was I specifically spoke to, but I would have asked the question, has the proper notice been given or whatever - just generally, rather than a forensic enquiry step by step, “Have you followed the proper process?” and I would have got a positive answer to that to have put it in my letter. I would not, as far as I can recall, have gone through a detailed forensic enquiry


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because clearly this was the very first stage I think that I had been involved in the matter simply responding to an email.

MR. MOORE: To be perfectly frank, Mr. Johnson, it was the very first response. You were the first person I came to. I will pass over the bullet point at the moment about the assertion of ownership of Iperian Land in that I am agreeing that, even if the ownership was proven, it would not, of itself ----

A I have put away the ----

Q I am sorry, I should have asked you to hang on to that because I had not finished. I was going to the legislation in terms of clarifying my question on the point that you have made in your letter. It is p.178, tab 12, D1.

A Yes, I have it now.

Q I am going to the penultimate bullet point, where you say:

“All rights of navigation on BW managed waterways, whether public or private [etc, etc].”

Then you say that s.115 of that Act defines the right of navigation letters abolished:

“… as including any right to use or keep any vessel or craft on the waterway or canal.”

What I would like you to do, Mr. Johnson, is to explain why you gave me that answer. In the first, most simplest point, what was the point that you were trying to put across relevant to the s.8 notices?

A I was replying to your original email. I noticed that in the fourth paragraph of your original email you say, “All these boats are on a free public right of navigation moored against our private …”, so it looks I was seeking to address that point raised and at the time, on an admittedly fairly initial view. I was aware of the issue raised in other situations where people have sought to rely upon statutory rights of navigation. I gave the initial answer that s.105, which by large has removed statutory rights of navigation for various canals, would have removed that. So that was the answer I gave. That bullet point was seeking to address, not so much the s.8 notices, but was seeking to address the point that you raised in your fourth paragraph that there was a free public right of navigation.

Q That is understood, Mr. Johnson. Obviously what I wrote in saying that we were on a public right of navigation, the only point of that was because of the


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s.8 notice. I took it from your answer here that you were suggesting that the public right of navigation on that section had been abolished by virtue of this ----

A That was my initial view.

Q Are you confirming that that view has changed since the - well, since when perhaps?

MR. JUSTICE HILDYARD: We are now getting into a bit of a debate, are we not, because it is not impossible that Mr. Johnson thinks that is still the case, but if he did it would not matter a row of beans, because it is not being contended on behalf of BWB. Do you see the illustration? What Mr. Johnson thinks about the law may or may not be right. It is interesting in a way, but it is irrelevant because at the end of the day you have got to rely on your legal presentation and my judgment. Do you see how it works? It is very difficult. I know you want to explain yourself, which you have no need to do. You want to find out why he said these things to you because you find in the present circumstances annoying that he should have said this, and then it is not being pursued. But it is all irrelevant. Do you see what I mean?

MR. MOORE: I do. If I may say, my Lord, what I was wanting to pull out of it was that there was a reason for the issues of the case that I did end up bringing against British Waterways Board, because I had made various assertions, British Waterways had denied that they applied, and it was therefore on that basis that I made the claim that I did.

MR. JUSTICE HILDYARD: You would be entitled at the end of the day without any question to say that the reasons they gave then are (a) no longer sustained by them; (b) deficient, so far as retained by them. That is going to be your case. I accept that will be your case. Whether Mr. Johnson agrees with what he then said or what his counsel now says is ultimately not going to be help me. It may be that Mr. Johnson is seething that counsel has not pursued this point, but it will not matter!

MR. MOORE: The point is absolutely taken, my Lord, I was not trying to go ----

MR. JUSTICE HILDYARD: No, and do not take it as criticism. I think this is a funny case where there is a whole host of evidence which does not have anything to do with the facts, but is just a sort of vehicle for advancing legislation and propositions of law. The fact that it has been put in a witness statement gives it no extra authority. The difference between facts and law has lawyers muddled, let alone others.


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MR. MOORE: In terms of the last bullet point, which is the clear statement that any vessel used or kept on a BW waterway must be licensed and lawfully moored, I will leave that for now, my Lord, just in case I am treading on toes. (To the witness) To go behind that letter from p.179, Mr. Johnson, you will see that you have got the standard letters, 1 through to 5, that apply in such circumstances as where British Waterways Board understand or discover that a boat they really do not want to be where it is is actually being lived on. We do not need to go through those, but you will notice the standard letter 1 with a date, and then there is standard letter 2, which says, “I have written to you, if you don’t contact me within 28 days of this letter”. If that goes by then you have got letter 3 and the s.8, and there are a number of those. I am just pointing those out to you as part of what British Waterways would understand as essential process now for conducting a due process in s.8 procedures in the circumstances where the boat is known to lived upon. The apologies or the explanations for this process, as I understand it from BW is that it was an essential procedure to follow through in such circumstances, given the Human Rights Act.

A First of all, I recognise these as standard letters for standard procedure, and I would also add that I certainly agree that before enforcing the power to - or actually undertaking the power to move a boat, following the service of a s.8 notice, that is not done in the case of a live aboard until the matter has been taken before a court. So, in effect, we seek a declaration from the court that we may exercise these powers in circumstances where the boat is someone’s home.

Q You will notice that the first standard letter number 1 was giving a number of options, including one which is completely wide open, for the boat owner to contact you with a view to obtaining a licence and/or mooring permit in order to comply with your statutory requirements or removing it within the next 28 days from the Board’s jurisdiction, failing which the s.8 notice will be served?

A Yes, I recognise that.

Q I would like to take you a couple of pages further on. Are you aware of this complaint that was made against British Waterways? This is the annual report of the Waterways Ombudsman Committee from 2005/06.

MR. JUSTICE HILDYARD: Where is this?

MR. MOORE: This is under the same tab, my Lord, tab 12. Page 186, this is the 2005/06 report. There is a complaint from a gentleman who said that British Waterways were wrongly seeking to apply the provisions of s.8 of the British Waterways Act to remove his boat for various reasons. I think will be quite amenable under the circumstances, Mr. Johnson, to agreeing with the fact that


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it does seem as if the chap played the game for quite a while. Nonetheless, it was the Ombudsman’s opinion that she was dealing with a question of proportionality.

A Yes.

Q There was no question arising here about BW being able to s.8 the boat, but there was this question of how much notice should he be given for an opportunity to put it right. She says at the bottom of para.4:

“I could understand what British Waterways Board were not inclined to withdraw the s.8 notice or to be swayed by his subsequent representations.”

She does find that there was maladministration in asking for asking for a fully detailed plan in that period and for work to be completed in a further 28 days. She did recommend - the final recommendation was that if Mr. H was able to produce a valid boat safety certificate to them within two days of the date of the report then British Waterways should not enforce the s.8 notice.

A Yes.

Q Mr. Johnson, what I am asking of you is whether, under the circumstances in which we were, and in which the notice has been served, there would have been such a procedure to follow, or this sort of recommendation to follow, in applying some due process, if I can use the same term again, in our case, because this was a 2005/06 one. This is one or two years before the notices were served on us, and we have an Ombudsman recommendation as to the advisability of British Waterways giving every opportunity to someone to comply rather than saying, “No, we are going to steamroller ahead and take it”.

A I do not know precisely the reasons for things that were done by the enforcement officer at the time, the precise reasons, I was given a general assurance that things were being done correctly, but I remember, if I recall, at the end of my email to you I did also alert you to the opportunity to take the matter to the Ombudsman.

Q I recall that too. I need not reprise my answer to that, because going to the Ombudsman under those circumstances, where BW had carried out their threat, would be not much of a victory to say that it was basically unfair that they have taken and destroyed my boat, I now no longer have a home. The only way in which it would have been of any value would have been if I had obtained, as I did, the letter of undertaking from to put a hold on it, and even then I do not really quite understand what benefit the Ombudsman’s service would have provided in those circumstances. I do not know whether ----


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A I’m not sure what the nature of the claim would have been but the Ombudsman does have power to award some quite large financial compensation if the Ombudsman finds a case of maladministration to be proven and there was that amount of loss. I forget off the top of my head, but I think up to £500,000 worth of compensation is within her jurisdiction.

Q I wish I had known!

MR. JUSTICE HILDYARD: Mr. Stoner, I hope you will not mind, there are lots of warnings about stepping into the arena, but I just want to clarify one or two things bearing in mind that it is a difficult cross-examination exercise. (To the witness) I think, and these may not be questions, Mr. Johnson, that you can answer, and the fact that they come from me is not to be given any greater weight or significance. I am just interpolating for Mr. Moore’s benefit what I think he wants to know. The first is, the standard letters that we have seen on pp.179 to 180, these are standard at the relevant time, so it is 2007, do you know, or should we be asking someone else?

A I believe they are. Like lots of these sorts of standards, they do change over time, but I am pretty certain that this sort of standard procedure was in place at the time, yes.

Q Do you know which of these, if any, was sent?A I don’t know.

Q Were you aware that in the case of at least one of the vessels Mr. Moore was living on it?

A I do not recall being aware, no. The facts, as presented to me, were pretty well as set out in Mr. Moore’s email.

Q Do you know whether these standard letters were devised in order to comply with human rights requirements?

A Yes, I do know that. They were devised to respect the requirements of the European Convention.

Q Do you know whether, in either devising these letters, or in sending any of them, you took account, or your organisation took account of the Ombudsman’s report? If you do not know, just say you do not know.

A I can’t precisely on this occasion. We do review Ombudsman’s decisions. What I would say is that these letters - because actually the initiative was taken by myself to set up this procedure, and it was a direct response to the bringing into force of the Human Rights Act rather than specifically an Ombudsman’s decision. It was the situation created by the Human Rights Act that made us review our standard procedures. These letters were as a result of that review.


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Q Thank you very much. I am sorry to interfere with your cross-examination, but I felt those might be questions which it would be interesting to know the answer to.

MR. MOORE: They were very much to the point, my Lord, thank you. I can leave that aside for the moment, Mr. Johnson. The next thing I would like you to turn up is your draft bye-laws which is at D4, tab 74, p.843.

A Yes, I have them.

Q It starts at p.842, but I am particularly interested in the ones on this page. These are the provisional bye-laws that have been drafted, which at some point I presume British Waterways will want to have agreed?

A Yes, not necessarily precisely in this form, because the exercise has been put on hold due to the prospective changes in the status of - not so much status of British Waterways, but the proposed transfer of the waterways into the charity, so this is on hold at the moment.

Q Yes, I did understand that. I would imagine that either this or some improved version will be proffered for approval once the new status of British Waterways Board has settled in. I rather take it that the Amendment 99(a), is it, to the Public Bodies Bill is the one on which you are going to be relying in order to be able to do this?

A Indeed, the new charity, as a statutory undertaking, needs to have the same powers to make final orders as British Waterways currently has.

Q I do not know whether, for his Lordship’s sake, either you or I can just explain the background to that. Your Lordship may well know that British Waterways Board is in the process of transition.

MR. JUSTICE HILDYARD: I gathered that that was so from the last question.

MR. MOORE: It is going to be - the Government are dead keen to slide it up from under, and under the Public Bodies Bill the Minister can give the appropriate orders to enable that to happen, and British Waterways Board are one of those bodies. The singularity of British Waterways in the Public Bodies Bill is that it has obtained this particular amendment that will permit, as Mr. Johnson has said, British Waterways, uniquely amongst all the other public bodies, to continue to be able to pass (I think the term is) secondary legislation. Is that the term, Mr. Johnson?

A It is slightly more complicated than that, but the part transfer of statutory functions contained in the Bill has a general prohibition against transferring powers to what is called make secondary legislation. An exception was made


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in the case of British Waterways because, like other statutory undertakers, whether public or private, it needed the power to make bye-laws, and arguably bye-laws are a form of secondary legislation. That is, in a sense, as far as it goes, and of course any bye-laws are always subject to ministerial approval.

Q Absolutely. Thank you, I just want to explain the background to this. The comments on this - are these your own or is this just general? Are these produced under you directly?

A Within the legal department that refers to me, and indeed I had some hand in it, yes.

Q I just want to look at the fact that right at the top - I am still on 843 - you have got in the comments there, “This is a new bye-law”. This is, I think you will agree - going back to the bye-laws in general here - is an abolition of everything that went before in the bye-laws and a replacement with a complete new set that will cover the old as well as improving on them and bringing in new ones?

A This was intended to replace the 1965 bye-laws and there are a few amending bye-laws that followed in the 1970s, but, yes, it was intended as a full replacement to the existing bye-laws.

Q You will notice on the column alongside “Directions as to mooring”, that the “Directions as to mooring” is a new bye-law and the second paragraph ---- Sorry, let me continue from the beginning. A similar provision does not exist in the general canal bye-laws, which you refer to, but is a familiar provision to other canal bye-laws. Indeed, s.16(2)(c) of the British Transport Commission Act 1954 provides that regulation for the mooring of vessels is one of the specified purposes of canal bye-laws, as opposed to a generic purpose. Then it says:

“Whilst provisions of this nature may not have been considered necessary in the 1960s …”

when the first lot of bye-laws were introduced -

“… the very significant growth in use of the network since then and the difficulties with congestion that can now occur at certain locations in busy periods gives rise to the need for such a bye-law.”

Then you say that the power to give directions is not unfettered, etc. I just wanted you to agree that up until this particular bye-law is passed, if it is, the problem that has given rise to the need for it is not yet addressed?


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A Well, there is some control over mooring at the moment, primarily through terms and conditions, either in licensed terms and conditions or by notice - so, for example, visitor moorings will have a notice up saying that there is a limited period of time that you can moor in this location; and the licensed terms and conditions say that you must comply with these notices. So there is some management of moorings through terms and conditions. The need to introduce more elaborate bye-laws in respect of mooring in a sense was intended to add to the range of methods of managing mooring on waterways given the problems that are occurring nowadays with congestion, particularly in the more popular areas.

Q For your reassurance, Mr. Johnson, I am quite agreeing with the need for some such legislation. I would note that that this, I am rather sure it is 51 and 52, is actually lifted word for word from that which was drafted for the purposes of the 1990 Bill?

A I actually don’t think - again, my recollection is, no, we did not look at the 1990 Bill. I joined British Waterways long after that was passed and have never looked back to the earlier drafts of the Bill, but they are not unfamiliar provisions from a range of bye-laws provided by other navigation authorities. In fact, I can see that, for instance, in respect of 52 it refers to a bye-law for the River Ouse and Foss Navigation Bye-laws, which was a navigation that we acquired under secondary legislation, I couldn’t say that they go back specifically to the passage of the Bill that became the 1995 Act.

Q On this prohibition or control of mooring, this one seems to be the bye-law that is permitting you to put up notices specifying the maximum periods of the day or night, etc, etc. Your comment there, as is also in the comment law, is “Currently enforced through licence conditions”, outwith, I suppose, the River Ouse and Foss Navigation bye-laws. I am going to just flag this up at the moment as a point, that it is put in here, as you said, for clarity or to better enable the enforcement of complying. There would necessarily be then currently some problem with enforcing compliance with such restrictions absent the requested bye-law?

A If someone in breach of their licence conditions does not act in compliance with the notice, the remedy is, in effect, revocation of the licence, which sometimes seems to be a bit of a sledgehammer to crack a nut, and this proved, in a sense, the range of remedies that might be available, that rather than wholly revoke someone’s licence to make it an offence under a bye-law it is a lesser but perhaps more proportionate remedy.

Q That is an interesting comment, Mr. Johnson. I appreciate the way you phrase that in terms of the whole issue of proportionality of something like a s.8 for mooring infractions, shall we say. I will leave that. I think I have made such


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points as I wanted to from that, thank you, Mr. Johnson. I wanted to take you to the Act of 1971 and the Schedule to that Act.

MR. JUSTICE HILDYARD: How are we doing? Are you about half way through, do you think?

MR. MOORE: I rather suspect so, my Lord.

MR. JUSTICE HILDYARD: We will finish at 4.30, if everyone is all right with that, and we will then draw stumps for the evening. It has been a very long day for you, Mr. Moore, and it is not easy task this, for reasons we have discussed. I am going to urge you overnight to try and refine your questions to questions of fact, knowing the guidance that I have sought to give you. If I have an interest in a question of fact I am likely to ask it on your behalf as well.

MR. MOORE: Thank you, my Lord.

MR. JUSTICE HILDYARD: Is everyone all right with 4.30 then?

MR. STONER: I am just being told from behind - Mr. Johnson is in the box, he can speak for himself ----

MR. JUSTICE HILDYARD: Of course, he cannot be back tomorrow.

MR. STONER: I am just being told that the meeting has been pushed back, so it may be that Mr. Johnson can attend for an hour tomorrow morning.

MR. JUSTICE HILDYARD: At the risk of driving you all into an early grave I think we should start at ten again tomorrow to give Mr. Johnson the maximum time to reach your meeting, if that is satisfactory to you all. I would rather have sat half an hour too early in retrospect than to rush it at the end.

MR. STONER: I am obliged.

MR. MOORE: I was going to suggest, as we have only got another seven minutes or so ----

MR. JUSTICE HILDYARD: If you think that you will be able to tighten your questions with the benefit of some reflection and a good night’s sleep then we will adjourn until ten o’clock tomorrow. I think I must ask you to bear in mind that Mr. Johnson will have to go to his meeting, so within reason we need to focus the questions on issues of fact.


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MR. MOORE: I think that would ----

MR. JUSTICE HILDYARD: Be better.

MR. MOORE: Yes.

MR. JUSTICE HILDYARD: Very well. Thank you again. Obviously you must not chat about the case. You know the ropes. I will see you all tomorrow.

(Adjourned until 10.00 am on Thursday, 3 rd November 2011 )

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Moore V BWB Cross examinations November 2, 2011

Documents

human rights

nigel ian

british waterways

foss navigation

public bodies

british waterways

reasonable

bw waters