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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ipswich Borough Council v Moore & Anor [2001] EWCA Civ 1084 (29 June 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1084.html
Cite as: [2001] EWCA Civ 1084
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Strand London WC2 Friday, 29th June 2001 |
||
B e f o r e :
LORD JUSTICE CHADWICK
____________________
| IPSWICH BOROUGH COUNCIL | ||
| Claimant/Appellant | ||
| - v - | ||
| (1) DEREK MOORE | ||
| (2) ALISDAIR DUKE | ||
| Defendants/Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
appeared on behalf of the Royal Yachting Association.
MR SIMON BERRY QC (Instructed by Eversheds, Holland Court, The Close, Norwich NR1 4DX)
appeared on behalf of the Appellant.
MR EDWARD IRVING (Instructed by Mark Auden Young, 28-30 Kingsway, Dovercourt, Harwich)
appeared on behalf of the Respondents.
MS D ROSE appeared on behalf of the Crown Estate Commissioners.
____________________
Crown Copyright ©
- LORD JUSTICE PETER GIBSON: This is an application by the Royal Yachting Association ("the RYA") to become a party to, alternatively to intervene in, an appeal listed before this court for three days commencing 23rd July. In actions brought by Ipswich Borough Council against two individuals, Mr Moore and Mr Duke, claiming possession of the bed of the River Orwell at deep water moorings where those individuals have moored their vessels, Lloyd J decided on an application by Ipswich under CPR Part 24 that the Council was not entitled to bring its claim because Mr Moore and Mr Duke moored by permission of the Ipswich Port Authority. That decision was reached as a matter of construction of local legislation governing the Port of Ipswich. Mr Moore and Mr Duke had also argued that they had the right to lay and use deep water moorings as an incident of the public right of navigation in tidal waters. The judge found it unnecessary to decide that point and made no findings relating to it, though we are told that there appears to have been no dispute on the facts relating to that point.
- The Council is appealing against the judge's decision on the local legislation point. By a respondent's notice Mr Moore asks that the judge's order be affirmed on the public right of navigation point which the judge had left over. At the appeal hearing it is not certain that the court would find it necessary or indeed appropriate to deal with the public right of navigation point. However, that point does raise an issue of some general interest extending far beyond those affected by the local legislation point. The Crown Estate Commissioners manage the Crown's property rights, which include rights in the sea bed subject to the public right of navigation. They applied on 18th May to be allowed to intervene in the appeal in relation only to the public right of navigation point. The Commissioners indicated that they would not ask for costs but would bear their own costs. The application was put before me on paper. I was informed that it was not opposed. I accordingly gave leave to intervene as requested. I did not order that the Commissioners be made a party. I made it clear that there was a risk that the court might not deal with the public right of navigation point.
- The RYA now seeks to be joined as a party under CPR 19.2(2) or to be allowed to intervene under the court's case management powers under Part 3 on a similar basis as to costs. Again, like the Commissioners, its only interest is in the public right of navigation point because many of its members have deep water moorings. Its interests are directly opposed to those of the Commissioners on the substantive point. However, it would appear that the RYA and the Commissioners may be at one in seeking to ask this court, if it comes to consider the public right of navigation issue, to remit the matter back to the judge so as to determine the facts as well as the issue itself.
- The Council opposes the application for joinder. It says that the conditions for joining a new party under CPR 19.2(2)(a) and (b) are not satisfied. Whilst it accepts that under Order 59 rule 8 of the Rules of the Supreme Court the court had power to direct service of the Notice of Appeal or a Respondent's Notice on a non-party and to make orders as if the non-party had been a party, it is pointed out that there is no such express power in the CPR.
- A significant point taken by Mr Berry for the Council is that the RYA appears to wish to rely on evidence which is not agreed. We have had our attention drawn to the contents of the witness statement put in on behalf of the RYA. It is not entirely clear to what extent the evidence which the RYA would wish to show the court and on which it asks the court to found its decision could be agreed. That presents a real difficulty at this stage. It has become apparent, at least to me, far more forcibly than it did before, that there will be a real question to be determined by this court if and when it reaches the stage at the hearing of the appeal that it decides that the public right of navigation issue is one which may have to be considered. The court, of course, may take the view that Lloyd J's decision is right and that it will not be necessary to go on to the public right of navigation issue point. But if not, at that stage it will be for this court to consider whether in all the circumstances it should simply deal with what we are told is a pure point of law as to whether or not this court is bound by the decision in Attorney-General v Wright or whether it should have the foundation for the consideration of that point laid by appropriate findings of fact; and that may perhaps only be done by remitting the case so that appropriate findings may be made by the trial judge.
- I think that the way ahead should be this. The RYA should set out those facts which it seeks to have accepted as the foundation for the determination of the public right of navigation issue. That statement of facts should be considered by the other parties and by the Crown Estate Commissioners to see whether it can be agreed. At the hearing of the appeal, if the court decides that the public right of navigation issue is a point which needs argument, the court will consider whether it should remit the case so that it is not dealt with on a Part 24 basis but be the subject of findings of fact or whether it should determine the question whether this court is bound by Attorney General v Wright. I would hope that the parties would do their best to reach an agreement as to the way ahead and to see whether the factual basis which the RYA wishes to assert can be agreed, or, at any rate, to see to what extent it can be agreed.
- Thus, at the hearing of the appeal the question of whether the RYA should be allowed to participate in the appeal will again fall for consideration. I think that most of the material that would be needed for the consideration by this court of that point is already before the court, save for a clear statement by the RYA, which I would require them to produce, of the particular factual matters on which they are wishing to rely.
- LORD JUSTICE CHADWICK: I agree with the course which my Lord proposes. It seems to me that there will be some advantage if this court, at the hearing of the substantive appeal, is in possession of a statement of those facts which any party or interested person believes are necessary for its decision; and a statement of the extent to which those issues are in dispute.
Friday, 29th June 2001