England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building, Fetter Lane, London EC4A 1NL
		14/09/2016

Chief Master Marsh :

1. This judgment deals with an application made by the claimant ("Mr Ravenscroft") for Mr Nigel Moore to be permitted to act as his McKenzie Friend for the purposes of this claim against the Canal & River Trust ("CRT"). Judgment was reserved on this point at the hearing on 1^st September 2016.

Background

2. Mr Ravenscroft is the owner of a thirty-four foot narrow boat which was originally named "Grandma Molly" and subsequently renamed "Three Wise Monkeys". He bought the boat, renovated it and later sold it in April 2011. He subsequently noticed that the boat had fallen into disrepair and re-purchased it in January 2014. The boat was located on the north bank of the river Trent near Newark, Nottingham with the consent of the riparian owner of Farndon Ferry.
3. On 26^th January 2015 the boat was seized by the CRT on the basis that the boat did not have the benefit of a Pleasure Boat Certificate and there were arrears of licence fees which were due. Having removed the boat, the CRT declined to return it to Mr Ravenscroft without the costs of storage and removal being paid. At one time they also demanded as a condition of return of the boat payment of a costs award made in Nottingham County Court after Mr Ravenscroft sought an injunction for the vessel to be returned. Eventually, upon payment of the sums claimed by the CRT, the boat was returned to Mr Ravenscroft.
4. Mr Ravenscroft disputes the CRT's entitlement to seize the vessel and by his claim issued on 18^th May 2015 he seeks a number of declarations and damages of £8,176 that sum being the amount he was required to pay to obtain the return of the boat. The principal legal issue between the parties concerns the meaning of the expression "main navigable channel" in the British Waterways Act 1971. Mr Ravenscroft contends this expression is limited to the 'main fairway' of the river whereas the CRT contends that the main navigable channel extends from bank to bank in the river. If Mr Ravenscroft is correct on his construction of the Act, he did not require a Pleasure Boat Certificate for the "Three Wise Monkeys". There are a number of subsidiary issues which also need to be resolved including whether or not the CRT was entitled pursuant to powers under Section 8 of the British Waterways Act 1983 to seize and keep a boat as security for sums which are due and whether the CRT is under a duty to act proportionately and only to pursue remedies other than seizure where they are available.
5. The issue of construction concerning the proper meaning of "main navigable channel" is a matter of some importance both to the boating fraternity and to the CRT. Although the monetary relief sought by Mr Ravenscroft in this claim is relatively small, it is common ground between the parties that it is desirable for the issue of construction to be determined in the High Court. At the case management conference held on 1^st September 2016 I declined to order that the issue of construction should go forward as a preliminary issue and I have directed that the trial of this claim should be heard in this Division. In view of the importance of the issue of construction the trial will be listed in Category A.
6. The claim did not get off to an auspicious start. In its original form, Mr Ravenscroft's particulars of claim ran to 121 pages with 473 additional pages of documentary evidence annexed to it. The CRT served a defence without prejudice to its contention that the claim, as a whole, should be struck out and on 20^th November 2015 issued an application seeking that order. The application came before me on 23^rd March 2016 when I determined that the particulars of claim should be struck out in entirety, but I declined to strike out the claim. Mr Ravenscroft was ordered to file and serve a draft amended particulars of claim by 29^th April 2016 and, in the event of the CRT not objecting to the amended particulars of claim, it was ordered to serve an amended defence by 27^th May 2016. The amended particulars of claim proved to be unobjectionable and the claim has now been fully pleaded. At the hearing on 1^st September 2016 Mr Ravenscroft was ordered to pay the CRT's costs of the application (which are to be summarily assessed on paper) and ordered to pay the CRT's costs thrown away by the amendment on the usual terms. The claim will now go forward for a trial in 2017.

Mr Ravenscroft's application

7. The claim came before me on 26^th November 2015 for a case management conference shortly after the CRT's application had been issued. Mr Ravenscroft appeared in person and brought with him Mr Nigel Moore who asked to act as McKenzie Friend for Mr Ravenscroft. On that occasion, as on all subsequent occasions, Mr Christopher Stoner QC appeared for the CRT. Apart from giving directions for the hearing of the CRT's application, initial consideration was given to Mr Ravenscroft's application for Mr Moore not just to be permitted to provide assistance but also to be given a right of audience. He was given permission to attend the adjourned hearing of the CRT's application "…for the purpose of assisting the claimant and, where permitted by the court, to speak on his behalf." Mr Ravenscroft and Mr Moore were directed to file and serve an application for a right of audience and to provide a Curriculum Vitae for Mr Moore. That application was made on 1^st December 2015. The CRT took the pragmatic approach of agreeing to Mr Moore acting as advocate when the CRT's application to strike out the claim was heard but this was without prejudice to its entitlement to object to Mr Moore being subsequently permitted to act as a McKenzie Friend, whether as advocate or otherwise. This approach enabled the CRT's application to be dealt with efficiently and it was a helpful approach because the draftsman of the particulars of claim in their original format was Mr Moore. It was of assistance to hear his response to the criticisms made by the CRT of the statement of case.
8. Mr Ravenscroft's application asks for the court's permission for Mr Moore to be accepted as his McKenzie Friend. The essential points made by Mr Ravenscroft are:

i) He is largely illiterate and therefore has difficulty reading and understanding the statutory and other background material;

ii) His emotional involvement with the issues make it impossible for him to deal with the matter calmly;

iii) He has no funds with which to engage professional representation and Mr Moore's agreed to provide help without any re-imbursement;

iv) Mr Moore has a great deal of relevant experience and knowledge.

9. Mr Moore has provided a Curriculum Vitae. He says that he has represented himself, and companies of which he has been an officer, on a number of occasion in various different courts and he represented himself in proceedings against the CRT when six boats in his care were served with section 8 notices under the 1971 Act demanding their removal from the waterway. He instigated proceedings in the Chancery Division which involved two trials and two trips to the Court of Appeal. He was ultimately successful. He expresses a willingness to help Mr Ravenscroft and the court and he goes on to say:

"I have further agreed to do this gratis, being understanding of his straightened situation, and because I have sympathy with the feelings of a victim of very similar circumstances to my own.

His action promotes no cause of my own, seeing as I have already won my own case, and I look after no boats affected by immediately relevant legislation. I'm simply seeking to assist in that area of law, with which I have necessarily become acquainted through research in my own field. My personal interest is solely with the upholding of justice."

10. Evidence on behalf of the CRT has been provided in three witness statements made by Lucy Emma Barry who is a solicitor employed by Shoesmiths LLP. In addition, both Mr Ravenscroft and Mr Moore have provided further witness statements.
11. Ms Barry's evidence seeks to paint a picture which differs from that put forward in Mr Moore's Curriculum Vitae. However, she stresses that the CRT has no objection to Mr Ravenscroft seeking assistance and, indeed, will be delighted if he is able to do so. However, the CRT is concerned that Mr Moore's involvement has changed the complexion of the issue between itself and Mr Ravenscroft from a matter suitable for the County Court into a wider attempt to litigate general issues of limited relevance to Mr Ravenscroft in short, and putting my own gloss on the CRT's case, its concern is that Mr Moore is part of a campaign being pursued against the CRT on behalf of boat owners who dislike the CRT's approach and that the conduct of Mr Ravenscroft's claim will be adversely affected if Mr Moore acts as an advocate for Mr Ravenscroft. The CRT fears the claim will be used for the purposes of a campaign against the CRT, rather than for the resolution issues that directly concerns Mr Ravenscroft. Mr Stoner QC further submits that the true position is not just that Mr Moore is seeking permission to act as Mr Ravenscroft's advocate, but is also seeking permission to conduct this claim on his behalf. He points to the fact that the claim in its original iteration was drafted by Mr Moore and that the amended claim has also been drafted by him. He says that the day to day conduct of the claim is in fact in the hands of Mr Moore and not Mr Ravenscroft.
12. The CRT's evidence refers to a number of points:

i) Criticism was made of Mr Moore by Hildyard J in a judgment dated 16^th February 2012 in Moore –v- British Waterways Board [2012] EWHC 1175 (Ch). The judgment dealt with the costs of the claim and the judge noted at [25]:

"…I have been worried that Mr Moore, although he plainly has a very real sense of mission and the need to protect his and other boaters rights, has perhaps not fully taking into account that these processes are extremely expensive, and that expense has ultimately to be borne by someone. It is not a legitimate expectation that one should be able to establish and defend ones rights at the expense of the person who is denying them; those embarking on litigation need to be aware of that, however just they may conceive their cause, they will generally be required to pay for the exercise if in the event they do not prevail in their legal claim. In my main judgment, I characterised his approach as being somewhat relentless and obstinate."

ii) The CRT points to a number of costs orders which have been made against Mr Moore which he has not met and in particular to an order for costs against him which he offered to pay at the rate of just £1 per month. There remain unsatisfied costs orders in favour of the CRT against Mr Moore.

iii) Mr Moore has on several occasions posted observations about this claim on an online forum where matters of interest to boaters are posted. He based his observations about the CRT's recent defence within twenty minutes of having seen it, observing that it is "surprisingly weak" but also saying that he will have to go through the defence with Mr Ravenscroft and "pick it apart".

iv) Later posts also refer to Mr Ravenscroft's determination to keep the issues of this claim in the public eye and he refers to other possible candidates who might act as a McKenzie friend for Mr Ravenscroft.

13. The CRT also seeks to rely upon a short extract from without prejudice communications between Mr Moore and the CRT relating to this claim. The communication arose in the course of negotiations seeking terms of settlement and they are undoubtedly subject to with prejudice privilege. Having heard submissions on this point, the extract I was asked to consider was handed up on the basis that if I concluded that it should not be taken into account I would disregard it. Although Mr Ravenscroft, through Mr Moore, said he had no objection to the court considering the without prejudice communication, his agreement to this course of action was conditional upon the court considering all of the without prejudice communications. That was not the approach the CRT wished to adopt and, therefore, I treated the application as being opposed.
14. Mr Stoner QC submitted that, relying upon the analysis of the principles which underpin without prejudice privilege, as explained by Clarke LJ in Somatra Ltd –v- Sinclair Roche & Temperley [2000] 1WLR 2453, the court is permitted to have regard to statements made in without prejudice communications for the purposes of interlocutory hearings. This, he says, does not infringe the public policy requirement that admissions made in without prejudice communications may not be used for the purposes of a trial.
15. The facts in Somatra Ltd –v- Sinclair Roche & Temperley are some considerable distance from the present case. There was a dispute between the claimant and the defendant firm of solicitors concerning their fees and there were a number of without prejudice meetings and telephone calls between them. At an ex-parte application for a freezing injunction, the solicitors relied on the content of the without prejudice discussion in an attempt to expose the weaknesses of the claimant's case. The application which was considered by the Court of Appeal concerned whether the solicitors could be ordered to disclose all the documents relating to or arising from the without prejudice discussions on the basis that the solicitors were no longer entitled to rely on the fact that they were without prejudice. The case therefore concerned whether or not there was an entitlement to rely on without prejudice communications at the trial of the claim where they had been deployed on an ex-parte application for a freezing order. The considerations which will apply on such an application, which brings with it a duty to ensure that the court is given all relevant information, is clearly rather different to there being a free standing right to deploy without prejudice correspondence for the purposes of an interlocutory hearing.
16. Having summarised the relevant legal principles [22] to [24] Clark LJ went onto consider whether the principles which restrict a party from relying upon without prejudice material at a trial also apply at an interlocutory application. He referred to the decision of the Court of Appeal in Family Housing Association (Manchester) Ltd v Michael Hyde and Partners [1993] 1 WLR 354. In that case the Plaintiffs filed evidence of the contents of without prejudice negotiations in order to resist an application by the Defendants to strike out the action for want of prosecution. The Court of Appeal in the Family Housing Association case considered that reliance upon such without prejudice communications did not infringe, in those particular circumstances, the public policy in favour of exclusion. Hirst LJ described those circumstances as a "narrow context".
17. The ratio in Somatra v Sinclair Roche v Temperley can be seen from paragraph [34] of the judgment of Clark LJ:

"The infringement in the present case is that Sinclair's opened up issues on the merits which will be the very questions to be determined by the trial judge. It seems to me that no party who has taken part in without prejudice discussions should be entitled to use them to his advantage on the merits of the case in one context, but then assert a right to prevent its opponent from doing so on the merits at the trial."

18. The outcome in that case is perhaps unsurprising given that the solicitors had relied upon the without prejudice communications at the outset of the claim when seeking a freezing order. It would have been unattractive for them to have been able to prevent the same without prejudice communications from being relied upon by other parties at the trial of the claim. Nevertheless there are very real difficulties for an applicant making an ex-parte application in relation to which there may be without prejudice communications which are potentially relevant. Be that as it may, I do not see that the decision in Sumatra Ltd v Sinclair Roche v Temperley provides any support for the application made by Mr Stoner QC. There appears to be an exception to the general principle, which prevents reliance on prejudice communications, where a party seeks to explain the passage of time by reference to without prejudice negotiations based upon the decision in Family Housing Association v Michael Hyde and Partners. What the CRT is seeking to do here is to cherry-pick from one communication made in the course of a series of without prejudice communications for the purposes of opposing Mr Ravenscroft's application to permit Mr Moore to act as a McKenzie Friend. The boundaries of the exclusionary aspect of the without prejudice rule are not entirely clear. However, it seems to me that there is no general exception to the exclusionary rule where without prejudice communications are referred to only for the purposes of an interlocutory hearing. Such exceptions to the exclusionary rule as there may be should be kept closely confined to prevent an undesirable watering down to the protection provided to without prejudice communications which fulfil an important role in aiding parties to negotiate freely without the fear of concessions being used against them in the course of litigation, but before the trial of the claim. I am satisfied that there is no basis for permitting the CRT to rely upon an extract of a communication from Mr Moore in the course of early negotiations in this claim and I shall not have regard to it.
19. Mr Moore's position is that he does not see himself as campaigning against the CRT. He has pursued his own litigation successfully, albeit with some judicial criticism. He says his interest is in seeing the CRT comply with the law. In response to the suggestion by Mr Stoner QC that he had become a professional McKenzie friend, Mr Moore said that although he is asked to provide an opinion about the legal position by other boaters, he is not doing so in acting for them as a McKenzie friend but merely providing assistance outside the course of litigation. He provides his advice on a dispassionate basis sometimes agreeing that CRT is acting lawfully and sometimes not. In essence if someone asks him for help he is happy to give it.
20. Mr Ravenscroft himself added a few observations of his own in support of his application. He pointed to the fact the Mr Moore had been successful in his own case and that he is entirely content for Mr Moore to post information about his case on the forum. Mr Ravenscroft said he "wants to scream it from the rooftops". He also dealt with a subsidiary point concerning an arcane point of law which has found its way into Mr Ravenscroft's claim concerning the Statute of Marlborough. He said that when his boat was seized he had put a video on to YouTube and someone had referred the point to him which he then passed onto Mr Moore.

Practice note [McKenzie Friends: Civil and Family Courts] [2010] 1 WLR 1881

21. Current guidance is contained in this Practice Note. It emphasises that McKenzie Friends do not have a right of audience or a right to conduct litigation and the court should be slow to grant any application for a right of audience or for a right to conduct litigation to any layperson. Such an application should not be granted for mere convenience. At paragraph [21] examples are given of the sort of special circumstances which have been held to justify the grant of a right of audience to a layperson and these include health problems which preclude the litigant from addressing the court and that the litigant is relatively inarticulate. An order granting a lay person a right of audience is exceptional.

Decision

22. To my mind the relevant starting point is to consider whether Mr Ravenscroft is someone who reasonably needs the assistance of a McKenzie Friend and to go on to consider, if such assistance is reasonably required, the scope of the assistance which the court should permit. This involves not just a consideration of Mr Ravenscroft's personal position but also the context in which the application arises, the guidance in the Practice Note and the principles set out in the overriding objective. It seems to me that with those considerations in mind, there are three crucial points:

i) Mr Ravenscroft has asserted, and it has not been disputed, that he is nearly illiterate. He suffers from a marked degree of dyslexia and has difficulty in understanding substantial amounts of written material. He also says he is prone to inarticulacy due to his strongly held views about the subject matter of this claim.

ii) The legal aspects of this claim are highly technical and involve the construction of the expression main navigable channel as used in the British Waterways Act 1971. The scope of the written materials which Mr Ravenscroft will seek to deploy at the trial of this claim can be seen from the appendixes to the original version of the particulars of claim. Although not all of that material is relevant, I have no doubt that Mr Ravenscroft would have very real difficulty in presenting his case at the trial without some assistance.

iii) It is of some real significance that the CRT, which opposes Mr Ravenscroft's application, accepts the central point in his claim is one of real public importance and one which requires determination in the High Court. To my mind this adds considerable weight to Mr Ravenscroft's application on the basis that if he is not provided with any assistance, there will be an inequality of arms, particularly where he is facing the wealth of legal and advocacy experience possessed by Mr Stoner QC.

23. I am in no doubt that this is an appropriate case for Mr Ravenscroft to be permitted access to a McKenzie Friend for the purposes of obtaining assistance. Furthermore, the realities of this claim are as such that he would be at an enormous disadvantage if his McKenzie Friend could act as an advocate at the trial or any further interlocutory hearings. Mr Ravenscroft has spoken briefly on two occasions and my impression of him is that he is by no means inarticulate. However, his passion for the issues comes across very clearly and I accept that he is likely to find real difficulty in putting forward the essential points of his case in a dispassionate and coherent manner. This will be far more efficiently and effectively done if someone is speaking for him. To my mind a lay advocate speaking for Mr Ravenscroft will provide assistance to the court and is likely to lead to the trial of the claim being completed far more quickly than might otherwise be the case.
24. There is a fine line between providing assistance, and advocacy assistance on the one hand and conducting the litigation on the other hand. Undoubtedly Mr Moore has played a major role in this claim to date. In practice, in view of the density of the subject matter, it is inevitable that Mr Ravenscroft will need to refer documents such as the statements of case and the witness statements to a McKenzie Friend. Nevertheless, in my judgement it is right that Mr Ravenscroft should retain conduct of the claim such that he remains the point of contact with whom the CRT will deal. It is a matter for him to decide upon the extent of which he seeks assistance and it should not be assumed automatically that a McKenzie Friend will deal with everything on his behalf.
25. The more difficult question concerns whether or not Mr Moore should be permitted to act as Mr Ravenscroft's McKenzie Friend and as his advocate. My impression of Mr Moore from the three hearings when he has appeared in front of me is that he is capable of acting in a measured and helpful way. He is clearly highly intelligent and articulate and very familiar with the legal issues which arise. The first draft of the particulars of claim, however, demonstrate a tendency towards prolixity and a "kitchen sink" approach. As a consequence of the manner in which the particulars of claim were drafted, Mr Ravenscroft is now subject to an order for costs which he says he is unable to meet. It follows that the CRT has incurred a significant liability which it is unlikely to be able to recover.
26. I do not accept Mr Stoner QC's submission that Mr Moore has become a professional McKenzie Friend. It is plain that he is vitally interested in what I might describe as boaters rights and is, no doubt, an extremely useful resource for boaters to rely upon. It is strongly in his favour that he has successfully pursued litigation against the CRT (or its predecessor) albeit that Hildyard J felt constrained to make the remarks to which I have made reference concerning Mr Moore's cavalier attitude to the expense of litigation and orders for cost.
27. The current position is that the claim, now it has been reformulated, is in a reasonable shape. The issues, although not quite in agreed form, have emerged in a coherent way and it may well be the case that the order striking out the original claim has been salutary. Mr Moore has, with limited permission from the court, and with limited agreement by the CRT, spoken for Mr Ravenscroft at three hearings and, broadly speaking, he has done so in a helpful and measured way. It seems to me that to insist now that Mr Ravenscroft should seek out a different McKenzie Friend to appear as his advocate and to assist him is likely to be unfair to Mr Ravenscroft and, possibly, unhelpful to the CRT. On balance, I am willing to grant permission to Mr Moore to act as Mr Ravenscroft's McKenzie Friend to provide assistance to help Mr Ravenscroft conduct the claim and to act as his advocate. That permission, however, is made, as is usual, explicitly on the basis that it is not an open ended permission and maybe withdrawn at any time if the permission is abused. The Guidance Note makes it clear that the grant of permission to a McKenzie Friend to act as an advocate is an exceptional course of action and is only justified by unusual circumstances. Both Mr Ravenscroft and Mr Moore must appreciate that the conduct of civil litigation is not the same as pursuing a public campaign. Civil litigation must be conducted in accordance with the Civil Procedure Rules and the practice in the Chancery Division explained in the Chancery Guide. The parties to litigation, together with the advocates, have duties to the court which must be respected. In particular, the trial of the claim has been given a time estimate and the trial will operate on a fixed-ended basis. Mr Moore can expect to find the court's permission for him to act as an advocate will be withdrawn if he delays the conduct of the trial.
28. During the course of the hearing on 1^st September 2016, brief consideration was given to the possibility of standing over Mr Ravenscroft's application to the first day of the trial. However, such a course of action was rejected for practical reasons namely that both sides in this litigation need to know from this point forward up to and including the trial how it is to be conducted on a day to day basis.
29. I will make an order accordingly. My provisional view is that the costs of Mr Ravenscroft's application should be costs in the case. This judgment will be handed down in the absence of the parties and I invite them to agree a form of order, if that is possible, which will obviate the need for there to be a further hearing.