IN THE HIGH COURT OF JUSTICE CLAIM NUMBER: BO1NG135 IN BIRMINGHAM APPEAL RE:BM60198A QUEEN'S BENCH DIVISION IN THE MATTER OF ANDREW WINGFIELD Appellant and CANAL & RIVER TRUST Respondent RESPONDENT'S SKELETON ARGUMENT Introduction 1, Thisis the Respondent's skeleton argument in relation to the Appellant's application for permission to appeal the Judgment of His Honour Judge Owen QC in ordsr to assist the court in obtaining an accurate picture of the matter, pureuant to the case of Jolly v Jay (2002) EWCA Civ 277. 2. The Respondent is concernad that there ere some material inacouracies presented to the court in the Notice of Appeal and the Skeleton Argument in support of the application. 3. Paragraph references are to those in the Appellant's Notice dated 26 October 2015 unless otherwise stated [tab 1 pages 9-12} Inaccuracies No orno adequate reasons 4, At paragraph 6, the Appellant states that the Judge gave no or no adequate reasons as to why he accepted the evidence of the Respondent. Further, at paragraph 14, the Appellant states that the Judge failed to give adequate andior intelligible reasons for his sHOOSTHS_Nera0I4 VL_SKELETON ANGIMENT DODD 8.04decision and for favouring the evidence of the Claimant. At paragraphs 28 and 29 of the Judgment teb 6 page 45}, after setting out the evidence presented or lack thereof, the ‘Judge sets out his reasoning for the Judgment as follows (paragraph 29): “1 do not consider that the Defendant has raised eny substantial dispute of fact wioh is arguable in the circumstances. The fact ofthe matter I tht, in relation to ‘the stomach complaint’ MMs Easty confirmed that the Defendant was not “hospitalised”. Rather, he ‘had simply altended hospital on an occasion oF (unspecified) occasions. The more fact also that the Defendant had broken his leg could net, without more (and not without any ‘basic detail) arguably constitute, in the circumstances of this ease, any or any ‘special reason’ or ‘circumstances outside his reasonable contro! to explaln the non-compliance with the conditions of the licence, The assertions made by the Defendant are nat such whlch could arguably rendor the Issuing ofthe notices Invalid, Inappropriate, unjust or unfair nor do they raise an arguable substantial dispute of fact which rencter it necessary and just to be determined otherwise than on submissions. Even ifthe Defence had mentioned the fact of his stenaeh condition or fractured feg such would take the matter no further for the Defendant for he could nat show, arguably, thet as @ result, beyond his control, he was unable to comply with the refevant conedtion to which have referred.” Failed to allow evidence Atparagreph 7 the Appellant submits that the Judge erred in falling to allow him the ‘opportunity fo provide independent evidence of his il health ancl injury andlor witness statements from the individual who had heard him informing the Respondent of his poor health, The Appellant further avers that had the Judge heard the evidence from the Appellant at the hearing andfor subsequently the Appellant would have had a good prospect of defending the Claimant's claim, The alleged inablity of the Appellant fo move during his alleged il health and injury was not the only maiter at issue. Ms Barry for the Respondent raised that there was a period of four and a bit months from the date of issue of his eenos in April 2014 unt his ‘stomach lines in August 20/4 where the Respondent contands that the Appeliant did ‘not comply with the relevant foenoe conditions [paragraph F of the Transcript tab 4 page 25], Ms Easty submitted that the Appellant can set out when and where he moved ‘and on what date, epatt from when he was unable to move (paragraph C of the Transcript tab 4 page 27). The Judge pointed out that the Appellant had asserted that he had moved every fourteen days In his witness statement [paragraph B of the Transcrip| tab 4 page 28 and paragraph 27 of the Judgement tab § page 44] ‘stooshr Tis, Ne12004 M1 shE.cTON ARGUE. oe cOzDN47. Ms Barry referred the court to the fact that despite having solicitors on record the Appellant did not file an acknowledgement of service pursuant to GPR 8.2 [paragraph B of the Transcript tab 4 page 30] and that the Respondent had set out its case In relation {o the boat's movements. Its therefore for the Appellant to provide evidence in rebuttal, and having gone through this process before (in the previous clalm against him brought on primarily the same grounds, which settled in March 2014) he was aware of the ‘evidence required in rebuttal, which he could have provided prior to or atthe hearing (paragraph AVB of the Transcript tab 4 page 22). 8, Further, at paragraphs 13 and 14 of the Judgment [tab § page 42] the Judge states: “The Claiments (sio) and Defendant were given notice by te court of the hearing date for these CPR 8 proceedings on 9 September 2015. The hearing was fered! for today. The Defendant's current solicitors gave notice of acting to the court on 16 September 2015. No acknowleclgoment of service pursuant to CPR rulo 8.3 was filed or served. There was no suggestion of any substantial dispute of fact... fact, there was No indication at al from the Defendant or his instructing solictors of any faotuel or‘other basis for challenging the claim unt the late fing of e witness statement from the Defendant dated 7 October 2016 followed by the informal service of a draft Defenos soitled by counsel, Ms Easty, who has appeared on the Defendant's behalf totlay.” 9, No witness statements were proffered or proposed by the Appellant from the indWvidual ‘who had heatd him Informing the Respondent of his poor heelth, nor was this person available to give evidence at the hearing, 410. The court is again referred to paragraph 29 of the Judgment [tab 5 page 45] as set out above at paragraph 4. Failed to apply any or any adequate analysis re Article 8 claim 111, Paragraph 8 contends thal the Judge failed to apply any or any adequate analysis in respect of the Article 8 claim, felled to set out what test he was applying and falled to undertake a structured analysis of Article 8, Mis Easty did not refer the Judge to any of the tests that she sets out in paragraph 11 of her skeleton argument during the hearing, The Judge asked (paragraph F of the transcript tab 4 page 30] “What isthe tast before me, Ms Easly? There ere many different analogies. It arises In housing cases, il arises in judicial review cases. What do you say is the test which I should ‘epply when considering in respanse to the Claimant’ claim (sia) paregraph 8 of the draft Defence. What Is your submission?” Ms Easty's response was "Your Honour, the normal test is arguabilty. In this respect where the facts themselves are disputed on their merits, ifthe Defendant is correct, as we say that we are, that we ware ooanas_ NSE Vt SKELETON, ARGUMENT O00 O14complying with the terms and conditions by moving as we should have done in any ‘event, then the very basis of the Defendant's case is made out.” 12, To clatity the reference to the case of CRT v Jones, at paragraph & of the Appellant's Notice [tab 1 page 11], the issue before the Court of Appeal in that case is what ‘approach should the court adopt in such cases where the Respondent seeks (2s is its ‘standard practice) the court's sanction for the removal of @ boat from its owned and/or managed waters and the boater raises an article 8 defence. The heart of this appeal turns on whether the Learned Judge below, who adopted the reasoning of HHd Denyer QC at 1* instance, was correct (as the Respondent contends) to determine that the twin vindications of ownership and dutiesfmanagement which enable the courts to take as a ‘given’ the proportionality of a claim by a public authority for possession when the defendant otherwise has no entitlement as @ matter of domestic law to remain, as sanctioned by the Supreme Court in Manchester City Council v Pinnock {2010} UKSC 45 (‘Pinnock’) and Hounsfow London Borough Council v Powell (2011) UKSC @ (‘Powell’) applies, whether by direct application or analogy, to the Respondent. The eopeal is listed before the Court of Appeal in May 2016. 43, The Loarned Judge at 1% instance, HHJ Denyer GC, applying the approach sanctioned by the Supreme Court in Pinnock and Powell proceeded to summarily detetmnine that the Article 8 defence contained in part of the Appellant's Defence be struck out, On appeal, Mrs Justice McGowan upheld the order of HHJ Denyer Q0. ‘The appeal is listed before the Court of Appest in May 2016, The Width of the Injunction 114, At paragraph 9, the Appellant states that he argued In his defence that the injunction was too wide in accordance with Drury (Angela) v Secretary of Stato for the Environment, Food & Rural Affairs [2004]. However, paragraph 7 of the Defenoe [tab 9 page 58} merely states "il is denied that tho Claimants are entitied to tha width of the injunction thal they are claiming as sot out in paragraph 2(a0 and (b) of the oleim Form, 16, Further, the only reference by Ms Easty to the injunction at the hearing, prior to Judgment being given, is when she says [paragraph F of the transcript tab 4 page 34} “In terms of the injunction, of course that is @ matter for discretion and | say the digoretion should not be exercised where the matter is disputed and atsputod as to the basis of the claim itself 46, Me Easty's first reference at the hearing to the width of the injunction is during her submission for permission to appeal [paragraph H of the Transcript tab 4 page 36) stiooanmie_Netene4.V_seeusroN ARGUMENT DCCA 82014‘The Judge responds [paragraph A of the Transoript tab 4 page 87] saying "! have not heard you on the ambit of the order being sought. You have not raised these matters until now.” The lan lant was moored against 17, At paragraph 10 the Appellant contends that the Judge failed to consider whether the land the Appellant was moored against was within the ownership and/or control of the Respondent. This iesue was not raised by Ms Easly at the hearing and only appears in the draft defence, which Is unsigned. 48. In any event, the witness statement of Stuart Gamer cated 26 August 2016 confirms at paragraph 4 [tab 10 page 61] that the Respondent is the relevant authority with responsiblity for managing that part of the River Trent where the Appellant's boat was located, The Judge refers to this witness statement st paragraph 4 of his Judgement [lab 5 page 40], Further, the skeleton argument filed by the Respondent for the purposes of the heating [tab 8 pages 50 to 56] sets out the relevant legisiation under which the Respondent has been vested with the responsibility to manage that part of the River Trent. ‘Summary 118. In conclusion, the Respondent submits that the Appellant's application doss not meet the threshold lest for permission under CPR 62, in that there is no real prospect of ‘success on appeal. 20. In the event that permission to appeal is not granted, the Respondent asks the court to award its costs of preparing this skeleton argument and for attending the hearing in that this was necessary to ensure thet the court recelves en accurate picture of the matter. for permis: 4 Match 2046 Lucy Barry Solictor-Advocate / Associate ‘Shoosmiths LLP, Solcitors forthe Respondent ‘soos M_ jets, skELeTON_AROUAKENT DOG 214IN THE HIGH CLAIM NUMBER: COURT OF ee JUSTICE RE:BM50198A IN BIRMINGHAM QUEEN'S BENCH DIVISION IN THE MATTER OF ANDREW WINGFIELD Appeltant and CANAL & RIVER TRUST Respondent RESPONDENT'S SKELETON ARGUMENT ‘Shoosmiths LLP First Floor Witan Gate House 500-600 Witan Gate West luilton Keynes, MK9 18H LEB M.26120 Soljotors for the Respondent stoners st, SHELETON ARGUMENT OCC C0204