England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice The Strand
		24th July 1998

MR JUSTICE LIGHTMAN:

INTRODUCTION

1. These proceedings for judicial review raise an important unresolved question as to the statutory power of a harbour authority to distrain for non-payment of mooring charges in respect of a private yacht.
2. The Applicant Mrs Prankerd has owned since 1969 a motor yacht called Winnie Rigg which is used solely for recreational purposes and as a second or holiday home. It is some 72 feet in length and some 33 gross registered tons. After some years of use for ocean voyages around the world, in 1979 Winnie Rigg entered Truro harbour where she remained moored until the 9th August 1994. On that date she was taken to Plymouth for repairs to her hull. On the 7th September 1994, with the repairs completed, she returned to Truro to be moored to a buoy at the "Barge Trot" moorings. She was subsequently moved to an alternative mooring within the harbour where she remains moored until today. The Barge Trot moorings are within the Port of Truro of which the Respondent, Carrick District Council, is the harbour authority. The Respondent makes charges for the use of these moorings calculated by reference to the length of the vessel in question. Unhappy differences arose between the Applicant and the Respondent, which it is unnecessary to explore. It suffices to say that the Respondent has taken the view that the Applicant is in arrears in payment of mooring charges, and on the 28th November 1995 decided to distrain upon Winnie Rigg for these mooring charges. On the 24th January 1997, Harrison J. granted the Applicant leave to apply for judicial review of this decision on the ground that the Respondent had no power to distrain for non-payment of mooring charges. This matter originally came before me on the 2nd April 1998 when the application was adjourned to enable the Applicant to file further evidence. With further evidence now filed by her and by the Respondent in answer to her evidence, the matter came back before me on the 9th July 1998 for full argument.
3. The Applicant has not been legally represented, but her mastery of the relevant law and her powers of advocacy are such that this has proved no disadvantage. Mr Mould has with fairness and moderation presented the case for the Respondent. In view of the public importance of the issue, the Attorney General has instructed Mr Timothy Brenton QC to assist the Court as amicus curiae. I am deeply indebted to him for his assistance.

ISSUES

4. Any statutory power to distrain on the part of the Respondent must be found in the provisions of Section 44 of the Harbour, Docks and Piers Clauses Act 1847 ("the 1847 Act") and 26(3) of the Harbours Act 1964 ("the 1964 Act"). It is common ground (subject to one qualification) that Section 44 of the 1847 Act confers upon harbour authorities power to distrain on ships or vessels "used in navigation" for "ship dues", as these terms are used in Section 26(3) of the 1964 Act. The qualification is that the Applicant contends that the power to distrain cannot be exercised in respect of private yachts. Accordingly if the Respondent is to succeed in establishing its entitlement to distrain, it must establish: (1) that Winnie Rigg was at the date of the decision in 1995 a ship or vessel "used in navigation" within the meaning of Section 26(3) of the 1964 Act; (2) that the power to distrain conferred by Section 44 of the 1847 Act is exercisable in respect of private yachts; and (3) that mooring fees constitute ship's dues within the meaning of Section 26(3) of the 1964 Act.
5. The issues (and in particular issues (2) and (3)) are of far reaching importance for harbour authorities generally. The statutory power under Section 44 of the 1847 Act to distrain affords an efficient and expeditious form of self help designed to secure payment without the need for recourse to the Courts. This is perhaps of particular value where the sum due is (as it often is) relatively small. The statutory power however does more than this. The statutory right to distrain takes priority over any other claims against the vessel: see Thomas on Maritime Liens paragraph 414 and Jackson on Enforcements of Maritime Claims 2nd Ed pages 453-4. Further if mooring charges do constitute ship's dues, a person liable to pay them who evades payment is liable to pay a penalty to the harbour authority of a sum equal to three times the amount of which he has evaded payment: see Section 43 of the 1847 Act.

LEGISLATIVE HISTORY

6. The General Pier and Harbour Act 1861 provided in Section 3 that application might be made to the Board of Trade for a provisional order authorising the construction of harbour works and the levying of rates on users; in Section 15 that the provisional order might incorporate the provisions of the 1847 Act and that the provisional order so made is a Special Act for the purposes of the 1847 Act; and in Section 16 that the provisional order is to be confirmed by statute. The General Pier and Harbour Act 1861 Amendment Act 1862 provided in Section 19 that the 1847 Act is deemed to be incorporated into every provisional order, subject to the 1861 Act and the terms of the provisional order.
7. The Pier and Harbour Orders Confirmation (No 6) Act 1903 in Section 1 confirmed the making of the provisional order in respect of the Port of Truro ("the Provisional Order") which was set out in the schedule to the Act. The Provisional Order in Section 10 authorised the Corporation of Truro (now the Respondent) from time to time to construct, maintain, alter and improve the harbour and "for the purpose and in connection with the harbour" to acquire, construct, provide and maintain (inter alia) moorings and other works and conveniences; in Section 23 authorised the Respondent to demand, recover and receive for the use of the harbour and in respect of vessels, boats and services rendered as described in the schedule to the Provisional Order "any sums not exceeding the several rates specified" in the Schedule; and in Section 28 required the Respondent to apply the rates and charges received for purposes including the maintenance, repair and improvement of the harbour, works, buildings and conveniences. The Schedule specified the rates on vessels and boats using the harbour for shipping, unshipping and transhipping goods and the rates on certain other vessels. No mooring charges are set out in the Schedule. It should be noted that the Provisional Order defined "the harbour" as meaning both the geographical area defined by the earlier (1883) order and the works authorised by the Provisional Order (which accordingly includes moorings); and that the Provisional Order incorporated Section 44 of the 1847 Act.
8. The 1847 Act provided (in Section 25) that in any statute authorising the construction or improvement of a harbour which incorporated the 1847 Act, the "undertakers" (in this case the Respondent) shall be enabled to levy the rates payable for the use of the harbour, dock or pier to be constructed or improved; (in Section 27) for the ascertainment of tonnage rates payable on vessels; (in Section 30) that the rate should at all times be charged equally to all persons in respect of the same description of vessel; and (in Section 44), which has a sidenote reading "Recovery of Tonnage Rates by Distraint of Ship and Tackle", as follows:

"If the Master of any Vessel in respect of which any Rate is payable to the [Respondent] refuse or neglect to pay the same, or any part thereof, the Collector of Rates may ... go on board of such Vessel and demand such Rates and on non-payment thereof, or any part thereof, take, distrain or arrest ... such vessel and detain ... until the Rates are paid ..."

Section 3 of the 1847 Act defines the word "vessel" as follows:-

"The word 'vessel' shall include ship, boat, lighter and any craft of every kind, and whether navigated by steam or otherwise."

9. In September 1962 The Report of the Committee of Inquiry into the Major Ports of Great Britain ("the Report") was presented to Parliament by the Minister of Transport. The Report led to the passing of the 1964 Act. Chapter 14 of the Report was concerned with Charges. The Report referred to the well-established division of charges into two classes, namely dues and charges for facilities and services.

Dues on ships

181. Dues on ships and goods are invariably prescribed by statute. Revenue from dues on ships, consisting of harbour, dock, quay or river conservancy dues, or some combination of these, is applied to cover the cost of such services as dredging, lighting and buoying the channel, the maintenance of river quay berths or enclosed wet docks and in some cases dock pilotage, dock tugs etc. Dues within the prescribed statutory limits are charged to shipowners (or charterers) normally on the basis of the net registered tonnage of the ship. The due normally allows the ship to remain for a specified period, e.g. 30 days. ...

Dues on goods

182. ...

Passenger dues

183. ...

Other services and facilities

185. Charges under this head cover a very wide range of services such as the use of cranes, grabs, weighing machines, graving docks, the supply of water, warehousing, etc.

In its Conclusions and Recommendations in paragraph 210, the Report recommended the continuation of the two distinct categories of charge, but with some changes to the existing controls over the quantum of these charges.

10. When the Bill which subsequently became the 1964 Act was debated in the House of Lords, the Government spokesman Lord Chesham made clear that the legislation would maintain the established division of charges between "the comparatively few" answering description of the "ship, passenger and goods dues", which would fall within Section 26, and "the great bulk" (including "charges for loading and unloading vessels, warehousing, supply of water and for moorings") which would fall within Section 27: see Hansard, The House of Lords, 15th April 1964 pp. 615 and 624 and 11th May 1964 p.111.
11. The 1964 Act in Section 26 provides that harbour authorities shall (notwithstanding any provision in earlier legislation) be free to charge such "ship, passengers and goods dues" as it thinks fit (subject only to the provision for a right of objection under Section 31 to the Secretary of State); and that any provision of the 1847 Act incorporated in a Special Act (in this case the Provisional Order) with respect to a harbour authority as refers to rates shall apply in respect of charges imposed under Section 26. The effect of the latter provision is that the power to distrain and the penalty for evasion of payment are applicable in respect of Section 26 charges as in respect of dues under the Provisional Order. Section 27 of the 1964 Act provides that charges other than "ship, passenger and goods dues" must be reasonable. Section 57 contains the following material definitions:

"'harbour' ... means any harbour, ... and any port, and includes a dock, a wharf, ...

'ship' where used as a noun, includes every description of vessel used in navigation, ...

'ship, passenger and goods dues' means, in relation to a harbour, charges ... of any of the following kinds, namely

(a) charges in respect of any ship for entering, using or leaving the harbour, including charges made on the ship in respect of marking or lighting the harbour;

(b) charges for any passengers embarking or disembarking at the harbour (but not including charges in respect of any services rendered or facilities provided for them); and

(c) charges in respect of goods brought into, taken out of, or carried through the harbour by ship (but not including charges in respect of work performed, services rendered or facilities provided in respect of goods so brought, taken or carried);"

The Parliamentary purpose in including the words in bracket in (b) and (c)

was "clarification": see Hansard, House of Lords, 16 April 1964 p.645.

12. STATUS OF WINNIE RIGG AS SHIP OR VESSEL USED IN

NAVIGATION

Section 44 of the 1847 Act confers the power to distrain on "vessels", which are defined in Section 3 of the 1847 Act as including ships of every kind however navigated. Section 26 of the 1964 Act provides that the power to distrain conferred by Section 44 of the 1847 Act shall be exercisable in respect of "ship dues" which are defined as "charges in respect of any ship for entering, using or leaving the harbour"; and Section 57 of the 1964 Act defines "ship" as including "every description of vessel used in navigation".

13. The first issue is accordingly whether Winnie Rigg was a ship "used in navigation" on the 28th November 1995. The meaning of the phrase "used in navigation" was considered by Shean J. in Steedman v. Schofield [1992] 2 LLR 163 at 166, where he said:

"To my mind the phrase 'used in navigation' conveys the concept of transporting persons or property by water to an intended destination ... 'Navigation' is not synonymous with movement on water. Navigation is planned or ordered movement from one place to another."

The relevant phrase is "used in navigation" as contrasted with the phrase "used for navigation". The phrase "used for navigation" connotes that the actual current use of the ship is for navigation purposes; by way of contrast, the phrase "used in navigation" connotes that (irrespective of the actual current use) the ship is actually or potentially capable of being used for navigation. According to the ordinary use of the English language a ship remains "used in navigation" though rendered incapable of navigation, so long as there is a reasonable expectation that it will regain its capacity to navigate: see Kennedy on Salvage 5th Ed para 155, and compare Pelton v. North of England P&I Assoc (1925) 22 LLR 510 at 512 with European and Australian Royal Mail v. P&O (1866) 14 LT 704. In deciding whether a ship is "used in navigation", it is a relevant consideration that it has its own means of propulsion and direction, but this is not essential: see Kennedy on Salvage 5th Ed para 155. A craft which is capable of transporting persons or property from one place to another is used in navigation though it is incapable of independent movement and the necessary element of ordered movement is supplied by another vehicle: see The Mac (1862) 6 PD 126; The Mudlark [1911] P 116 and The Harlowe [1922] P 175.

14. I turn now to the facts of this case. Plainly Winnie Rigg was used for navigation until 1979 and sailed from Truro for repairs and back to Truro on the 7th September 1994. The critical issue is whether it was used in navigation some 14 months later on the 28th November 1995 when the decision to distrain was made by the Respondent. There is a rebuttable presumption that the Winnie Rigg continued after the 7th September 1994 to be capable of use for navigation and accordingly was "used for navigation": see Pelton v North of England P & I Assoc supra at 512. There is no evidence to rebut this presumption. Indeed the Applicant, who knew the facts, have said nothing on this issue. The fact that the Respondent exacted from the Applicant a Community Charge in respect of the Winnie Rigg as a houseboat "not used in navigation" does not affect the issue. There is no contradiction between the Winnie Rigg being "used in navigation" for the purposes of Section 57 of the 1964 Act (which concentrates on the character of the ship) and not being "used bona fide for navigation" for the purposes of Community Charge (which concentrates on current actual user of the ship). I accordingly hold in answer to the first issue that Winnie Rigg was used in navigation on the 28th November 1995.

LEVYING DISTRAIN ON PRIVATE YACHTS

15. The second issue is that raised by the Applicant whether the exercise of the statutory power of distress conferred by Section 44 of the 1847 Act is limited to cases of non-payment of tonnage fees by commercial vessels. The language of Section 44 itself is perfectly general. The right to distrain is conferred in respect of any non-payment of any "rate"; and the term "rate" is defined in Section 3 (the definition clause) meaning "any rate or duty or other payment in the nature thereof payable under the Special Act" i.e. in this case the Provisional Order. Sections 22 and 23 of the Provisional Order confer upon the Truro harbour authority the right to demand the rates specified in the Schedule in respect of the presence of vessels in the harbour. Section 26(1) of the 1964 Act repealed Sections 22 and 23 of the Provisional Order, and in their place provided that the harbour authority was authorised to demand, take and recover such "ships passenger and goods dues as they think fit"; and Section 26(3) provides that the power of distress conferred by Section 44 of the 1847 Act shall be exercisable in respect of such dues.
16. The foundation for the contention by the Applicant is the sidenote to Section 44 of the 1847 Act which reads:

"Recovery of Tonnage Rates by Distraint of Ship and Tackle".

(The Queen's Printer copy of 1847 Act shows that these words appear as a sidenote and not, as shown in the Halsbury Statutes Vol 34 p27, a headnote). A sidenote, though part of the Act, is of limited assistance in construing an Act since its function is merely to provide a brief, and therefore possibly inaccurate, guide to the content of a section. I do not think that the sidenote in this case can operate to cut down the wide meaning of the word "rate" in Section 3 of the 1847 Act and limit the availability of distraint to the payment of tonnage rates (inferentially) by commercial vessels. The explanation for the sidenote is likely to lie in the fact that at the time of the passing of the 1847 Act tonnage rates were the only type of rates on ships then contemplated. (That this was the normal basis for charging even in 1962 is confirmed by para 181 of the Report cited earlier in this judgment). But that does not preclude the availability of distraint for rates at a later date imposed by reference e.g. to length of a ship as opposed to its tonnage. But whatever may be the position under the 1847 Act, Section 26(3) of the 1964 Act provides that a harbour authority may charge "ship, passenger and goods dues": there is no limitation that ship charges can only be imposed in respect of commercial vessels or by reference to tonnage; and the sanctions for non-payment of "dues" under the 1847 Act (namely distraint and payment of a triple penalty) are made available in respect of non-payment of ship charges. Accordingly, the Respondent is clearly empowered to distrain on any ship, whether commercial or private yacht, for non-payment of ship dues.

MEANING OF SHIP DUES

17. The power of distraint conferred by Section 44 of the 1847 Act is exercisable only in respect of non-payment of ship, passenger and goods dues charged under Section 26 of the 1964 Act: other charges made under Section 27 of the 1964 Act can only be enforced, like other contractual obligations, by court proceedings. The third and critical question is whether the mooring charges in respect of Winnie Rigg constitute ship dues and accordingly whether the Respondent is entitled to exercise the power of distraint in the event of non-payment of them.
18. Section 57(1) of the 1964 Act defines ship dues as "charges in respect of any ship for entering, using or leaving the harbour". The question therefore is whether mooring charges are charges for using the harbour. The Respondent contends that the answer is in the affirmative. (It may be noted that this has not always been the position adopted by the Respondent: in June 1996 the Respondent argued that the Department of Transport did not have the power under Section 31 of the 1964 Act to review the levels of the mooring charges because they were not ship dues). The Applicant contends that the answer is in the negative (a view which accords with the view of the Department for Transport which declined to entertain under Section 31 of the 1964 Act objections to the existing levels of mooring charges on the ground that they fell within Section 27, and not Section 26, of the 1964 Act).
19. The answer to this question must turn on the meaning of the words in Section 57 of the 1964 Act "charges in respect of using the harbour". There is apparently no authority providing any guidance, perhaps because the sums involved tend to be too small to merit proceedings in, or which reach, the High Court. The words in question are capable of being construed as encompassing any charge relating to the use by a ship of any facility within the geographical limits of the harbour, and accordingly relating to use of moorings which are (as they are in this case) part of the harbour. But after careful consideration I have reached the conclusion that the words bear a more limited meaning and are confined to charges for the use of the harbour as a harbour or the infrastructure or essential installations of a harbour and do not extend to charges for the use of any additional or optional services. My reasons are as follows:

(a)

"... charges made by harbour authorities are essentially of two kinds. There are dues which pay for the enjoyment of the basic or essential harbour or port works and there are further charges which pay for the enjoyment, usually optional, of ancillary services. Dues are to some extent in the nature of a tax, the amount payable by a user not necessarily being directly related to the service received by that user". Douglas on Harbours, Coasts and Pilotage 5th Ed p.101.

Historically it has long been a basic concept of harbour legislation that there are two forms of charge, to each of are attached different incidents. The due payable for use of a harbour as a harbour is of the nature of a tax, whose payment entitles the person making the payment to use of the harbour (subject only to compliance with the bylaws) without interference by the harbour authority, and the payment of the tax is secured by provisions for distraint and the attachment of penalties in case of evasion of payment. This is reflected in Section 33 of the 1847 Act, which provides that on payment of the rates payable under the Special Act, the public shall be entitled to use the harbour "for the shipping and unshipping of goods and the embarking and landing of passengers"; in Section 44 which confers powers of distraint in case of non-payment; and in Section 43 which provides for payment of penalties in case of evasion of payment. These charges are distinguished from charges for the use of other ancillary (usually optional) services e.g. the use of a crane and mooring rights. The payment of charges for these services is not likewise secured.

(b) The 1964 Act, whilst not a Consolidating Act and making some important changes in the law relating to harbour charges, did not depart drastically from the basic concepts which had long been embodied in harbour legislation (see Douglas supra); and in particular (as is evidenced by the Report and the passages cited in Hansard) Parliament intended in the 1964 Act to perpetuate the divide between the two forms of charge in Sections 26 and 27 and the continuing attachment to charges falling within Section 26 of the provisions securing their payment conferred by Sections 44 and 45 of the 1847 Act.

(c) Support is to be found in the definition of "ship passenger and goods dues" in Section 57 of the 1964 Act. It is there spelt out in respect of "passenger" and "goods dues" (to clarify any doubts that might otherwise arise) that charges for services rendered and facilities provided in respect of them are not included within the definition. These are plainly optional and ancillary services. The absence in the case of "charges in respect of any ship ... using ... the harbour" of any like express exclusion of charges in respect of any services rendered or facilities provided, is not indicative that in case of use of the harbour by a ship such charges may be included within the term "ship dues". The explanation for this omission is given by Douglas supra at para 10.33:

"the charges described in paragraph (a) of the definition are expressed to be charges 'in respect of ... using the harbour" and ... having regard to the definition of 'harbour' in Section 57I(1), this could not include charges in respect of facilities in the sense mentioned above. There was therefore no need expressly to exclude charges in respect of ancillary matters as there was in paragraph (b) and (c) where the words 'charges for any passengers embarking or disembarking at the harbour' and 'charges in respect of goods brought into, taken out of or carried through the harbour' might each, in the absence of the express exclusion, have included charges for ancillary matters."

(d) I find no contra-indication in the definition of "harbour" in Section 57 of the 1964 Act as meaning a harbour and including a dock or wharf. The suggestion is made by the Respondent that the express inclusion of a dock or wharf is indicative that the word "harbour" includes any physical feature within the geographical area in question and accordingly extends to moorings. I disagree for two reasons. First a dock or wharf is (unlike a mooring) usually an essential feature of a harbour:

"A harbour in its ordinary sense was a place to shelter ships from the violence of the sea, and where ships were brought for commercial purposes to load and unload goods. The quays were a necessary part of the harbour": per Lord Esher MR in The Queen v. Hannam (1885) 2 TLR 234 at 235.

Second the definition is designed to ensure that a dock or wharf standing alone is afforded the status (and accordingly the statutory protection) of a harbour. This view is supported by Douglas at p.110-1 which states:

"10.32 .. The definition of "harbour" in Section 57(1) of the [1964] Act includes wharves, quays and piers in addition to the water area. It does not, however, appear to include a mooring in the ordinary sense of the word.

10.34. It therefore appears that a charge made by a harbour authority for the use of their own moorings will not usually be a charge in respect of 'using ... the harbour' within the meaning of paragraph (a) of the definition of 'ship passenger and goods dues' because (in general at any rate) a mooring is not part of the essential harbour works - the infrastructure of the port - and not within the definition of 'harbour' in Section 57(1) of the [1964] Act."

(e) The construction I favour accords with the approach which should be adopted to resolving doubts when construing legislation of the character under consideration: (i) ambiguities in legislation should be resolved against according to a creditor a priority in respect of the recovery of his debt over other creditors and against subjecting property of a debtor to distraint and the debtor himself to payment of a penalty; and (ii) a construction should not be adopted which disturbs long standing and well established features of earlier legislation where there is no apparent reason for such change and no apparent intention on the part of the legislature to make the change and where the language of the statute does not manifest a clear intention to do so.

(f) In answer to the third question I therefore decide that the mooring charges in respect of Winnie Rigg do not constitute ship dues.

CONCLUSION

20. Accordingly, whilst I uphold the Respondent's contention that Winnie Rigg was on the 28th November 1995 a ship used in navigation and (notwithstanding being a private yacht) was subject to distraint for non-payment of ship dues, I uphold the Applicant's contention that the mooring charges do not constitute ship dues, that the Respondent had no right to distrain on Winnie Rigg for these mooring charges and that accordingly the decision to do so was unlawful and invalid.

THE APPLICANT: My Lord, may I ask for my costs?

MR JUSTICE LIGHTMAN: Let us hear what the other side has to say.

MS McHUGH: My Lord, I appear on behalf of the Carrick District Council. I am instructed to resist the application for costs on this basis: the District Council and indeed the harbour authority have not acted in a way that was capricious or unreasonable. The court has taken a view of the statutory construction which is that not originally taken by my clients. My clients' view has not prevailed upon the court, nevertheless it is a matter, I understand, of some importance, particularly to harbour authorities, and it is another point before the court, as I understand it. In those circumstances, it is my submission that this is not an appropriate case for an Order to be made against my clients. I would ask that the court make no Order as to costs?

MR JUSTICE LIGHTMAN: There are two different areas of costs. The matter came before me on the first hearing when it was adjourned to enable Mrs Prankerd to put in further evidence relating to the question whether the Winnie Rigg was a vessel used in navigation. Therefore, there may be a difference in the costs of the previous hearing, but in relation to the main hearing the answer is that your clients came here to fight it, fought it and lost. Why should not the ordinary rule apply? I follow it is a matter of importance. I can see that you have a contention that you should have your costs, of the costs thrown away, of the earlier hearing when Mrs Prankerd received an adjournment. At the moment I am in some difficulty to see why you should not pay the costs of the hearing. Is it just on the basis that it is an important and difficult question?

MS McHUGH: Indeed, my Lord. Normally costs do follow the event, and I do appreciate that. These are just circumstances in which I am instructed to ask for an Order that no costs to be made on the basis I have submitted to your Lordship.

MR JUSTICE LIGHTMAN: Is there anything that you want to say?

MR BRENTON QC: My Lord, I have no submissions.

MR JUSTICE LIGHTMAN: Can you help me on this? Were you here on the earlier occasion?

MR BRENTON QC: My Lord, I was.

MR JUSTICE LIGHTMAN: The matter was adjourned on the earlier occasion to enable Mrs Prankerd to put in evidence to raise the issue as to whether this was a ship used in navigation.

MR BRENTON QC: Yes.

MR JUSTICE LIGHTMAN: So, prima facie, she should pay the costs thrown away by that application of that hearing?

MR BRENTON QC: Indeed.

MR JUSTICE LIGHTMAN: But the normal view is that costs will follow the event on the substantive hearing.

MR BRENTON QC: The analysis that your Lordship has put forward is entirely correct, that there are two separate issues of costs: the costs of the adjournment and the costs of the actual hearing itself.

MR JUSTICE LIGHTMAN: You will be sitting quietly by. The costs do not affect you?

MR BRENTON QC: My Lord, no.

MS McHUGH: My Lord, can I just add one other point? I received a draft Order.

MR JUSTICE LIGHTMAN: Do not worry about the form of the Order. At the moment, the form of Order (and I will hear what Mrs Prankerd has to say) I propose to make is a declaration in the terms that I am proposing with liberty to apply. I am not proposing to make any further Order because I have no doubt that you will comply with the declaration.

MS McHUGH: My Lord, indeed. It is simply that, on the question of costs, I noted from the draft Order that costs ought to be on an indemnity basis. I wanted to address you on that.

MR JUSTICE LIGHTMAN: I am not worried about that. Mrs Prankerd, so that you can understand what I am concerned about: you received an adjournment of the earlier hearing in order to put in further evidence to raise a question of whether there this was a ship used in navigation.

THE APPLICANT: Yes, but, my Lord, if you look at my notice, my application, I applied for that in the first application that came before you. I did apply for that.

MR JUSTICE LIGHTMAN: But you asked for an adjournment to put in further evidence, did you not?

THE APPLICANT: No.

MR JUSTICE LIGHTMAN: Yes, you did.

THE APPLICANT: My Lord, if I remember, you said that you could not determine the law without the facts and the evidence.

MR JUSTICE LIGHTMAN: Yes, I said that if you wanted to press ahead on that particular aspect, you would have to put in further evidence, so you needed an adjournment to put in further evidence.

THE APPLICANT: -- which was Hansard and Pepper v Hart in essence.

MR JUSTICE LIGHTMAN: I think it went much beyond that. There is a further affidavit that you have put in, to which then there was further evidence put in in reply.

THE APPLICANT: I did apply in the first application for this. It first came before Tucker J who passed it on to Harrison J. It then went from Harrison J to Collins J, and then it has been before you which was adjourned so that I could file further evidence and affidavit, which I did, and then it came before you .....

My Lord, could I refer you to my Statement of Claim, paragraph 17? May I just read it out to you:

"If, as previous averred, and now implied Council's deposition, the word SHIP, when used as a noun describes every vessel 'used in navigation' the fact that a vessel moored, or laid-up is not being 'used in navigation,' viz: not plying its trade on fixed courses. A vessel not under command, or under its own power is not being 'used in navigation'."

So I put that in my original application, my Lord. That was there. Without Hansard, my Lord, I think you would have come to the conclusion that all the other Judges came to, because when we came before you on April 2nd, I believe it was, you stated that you could not see anything regarding moorings in section 27. Therefore, you felt that they were right in section 26.

MR JUSTICE LIGHTMAN: I do not think I said that at all. What I said, if I said anything, is that there were no specific references to moorings in the statute.

THE APPLICANT: Yes, you did. Therefore, you felt that the Council could, which is when I challenged you that it was a biased statement. However, we have moved on from that now, my Lord. I did make this application in my motion. If this is an unlawful act and it is invalid, and they are wrong and I am right -- this is not the first time. There is another judicial review pending against their ultra vires actions again. They have now removed the facility for Winnie Rigg's clus (?), which is discrimination in national law and international law. This harbour authority knows no bounds, and any costs would be a Pyrrhic victory because a litigant, I think, is entitled to about £6 per hour, but a Queen's Counsel, which they had -- I do not know what they charge: £500? So if you were to award them their costs of April 2nd, then it would be a Pyrrhic victory of the costs.

MR JUSTICE LIGHTMAN: That may mean that it may be sensible for you to try and agree with them that there should be no Order for costs either way. I make it clear that at the moment it seems to me that on 2nd April you asked for an adjournment, and the normal rule is that you should pay the costs of that adjournment, but that you get the rest of the costs of the action. It may be that if you speak to the other side's counsel they may agree that the matter should proceed on the basis that there should be no Order for costs by consent throughout. That is a matter for you to discuss with them. On the ordinary principles that apply, I think that ought to be the position.

THE APPLICANT: I feel, my Lord, it is inequitable that I should have my costs. Harrison J reserved the costs of the substantive hearing, and I have succeeded and they have failed ----

MR JUSTICE LIGHTMAN: If Harrison J did, then this will pick up Harrison J's costs. I am only concerned about the costs of the adjournment before me on 2nd April.

THE APPLICANT: Whatever.

MR JUSTICE LIGHTMAN: Is that all you have to say?

THE APPLICANT: I feel that I should have my costs before Tucker J, before Harrison J, before ----

MR JUSTICE LIGHTMAN: What did they do? Any costs that they said would be costs in the cause, you pick those up.

THE APPLICANT: As my husband has just pointed out, my Lord, before you, on April 2nd, it was not a surprise. All I had done is added an addendum to my skeleton argument. The adjournment only provided me with a reply in rebuttal by obtaining Hansard and Pepper v Hart, because without that, my Lord, I do not think that the court would have come to the decision that it has come to today. I feel I should have my costs of 2nd April.

RULING AS REGARDS COSTS

MR JUSTICE LIGHTMAN: The question that now arises is a form of relief. It seems to me that the form of relief should be a declaration to the effect that I have already set out in the last paragraph in my judgment. I do not think it is necessary for there to be any mandatory Orders because, quite plainly, the Respondent will comply with that declaration. Of course, there will be liberty to apply in case it did not do so.

The only outstanding question is the matter of costs. Mrs Prankerd has succeeded in the action and, therefore, subject to one matter, it seems to me that she is entitled to her costs of the proceedings, and that will pick up any costs of earlier hearings which were directed to follow the costs of the proceedings.

The one exception is the costs of the hearing before me on 2nd April 1998, where what happened was that Mrs Prankerd wished to raise the question as to whether Winnie Rigg was a ship and for this purpose to put in further evidence. There was an adjournment of the hearing for that purpose. It seems to me, in accordance with the ordinary rules, that she should pay the costs of that indulgence, the obtaining of that adjournment. Therefore, the position is that in respect of those costs, she must pay the costs of the Respondent, but subject to that she should have all the costs of the cause, and I so direct.

THE APPLICANT: My Lord, can I have those on an indemnity basis?

MR JUSTICE LIGHTMAN: No, it will be on the ordinary basis. There is the no reason why it should be on an indemnity basis. Indemnity bases are quite exceptional. There is no impropriety which justifies any such -----

THE APPLICANT: My Lord, in every instance with my husband there has always been awarded to him on an indemnity basis against the Carrick District Council. The time and effort in researching Hansard does incur extra costs, extra time.

MR JUSTICE LIGHTMAN: No, I cannot do it. I am sorry.

Thank you very much.