QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|CAMBRIDGE CITY COUNCIL||Claimant|
|- and -|
|(1) TRADITIONAL CAMBRIDGE TOURS LIMITED
(2) THOMAS ARNOLD
(3) MILAN KOVAKEVICH
(4) GEORGE SUGDEN
(5) JOHAN DEBUSCHA
(6) MATT MEACHER
(7) GEORGE ELLIOT
(8) SPENCER GOODWIN
(9) TOM BROWN
(10) GIOVANNI LOPEZ
(11) JAKOB SUBERLAK
(12) PERSONS UNKNOWN
Simon Butler (instructed by Direct Public Access) for the Respondents (1) to (4)
Hearing dates: 9th/11th May 2018
Crown Copyright ©
Mrs Justice Whipple :
" It was not in dispute that at the relevant times and dates that the punts were indeed on the River Cam and that none were licensed save a punt called 'Flip Flop' but that only a private fee was paid for registration and not a commercial fee.
 It was further not in dispute that on the relevant dates the punts had been seen carrying passengers.
 A summary of the background to these allegations is that the defendants had all at times been involved with providing tours of Cambridge by means of chauffeured punting. All defendants with the exception of Mr Prevett set up a limited company called Traditional Cambridge Tours Ltd, (TCT) which was incorporated on 4th July 2013. Mr Prevett joined the others as director on 3rd April 2014."
" I found Mr Sugden to be evasive, hesitant and unclear in his evidence. There was no reason that I can accept as reasonable put forward why he applied to register Flip Flop in his own name making no reference to TCT. He could offer no credible explanation why his co accused had all completed forms in the same manner. I do not find it all credible that there was no collusion."
"It was not in dispute that the vessels were on the river on the relevant dates and taking on passengers from a station which was not officially recognised. I find that the manner in which the punts were used was indeed part of a commercial enterprise."
" It is clear to me that at times the defendants refer to themselves as a company and on other occasions as individuals. They vacillate as to their status. This is true both with respect to the applications for registration and their e mail correspondence wherein some mails are sent from a punting tours email account and one dated 19th July is from a different address and simply signed Sam Matthews, Milan Kovacevich, Tersoo Sugden and Tom Arnold with no reference to a company.
 I find that the vacillation from partnership to individual, and in particular the planned and orchestrated completion of application forms for registration stating themselves as owners individually removes any prospect of them attempting to claim any personal protection that they only acted as directors of a company. They have taken a large step away from that role in completing those application forms and cannot step back at their whim.
 If I am wrong in relation to that, the defendants who were directors at the time, that is all save Mr Prevett, made a fraudulent misrepresentation on behalf of the company and should be held personally liable because of their consent and connivance which I also find clear from the circumstances."
" I find that the behaviour of these defendants as a group towards the Conservators to be coercive and bullying. They have attempted to use fraudulent means to obtain the registration of punts on a private basis when they knew full well they would be used to promote a commercial activity.
 The arrogance of the defendants towards the Conservators is evident in that the punts remain on the river, unregistered and it seems still working on providing tours. Meanwhile, the Company in 2013/4 declared a turnover of £337,418. Their motivation is clear."
Council's previous initiatives to stop unlicensed punting
" Several operators who either did not apply to join the La Mimosa scheme, were unsuccessful or new entrants to punting have continued to operate commercially from the Claimant's other land along the river. These locations have included: the middle steps at Quayside, Jesus Green, GHL, Granta Mill Pond, Laundress Green and Sheep's Green. The Defendant's actions reflect what has generally happened since 2008, with Operators moving from place to place, on the Claimants land, to continue their business.
 GHL has been the main focus for their activities over the past few years but when this has been unavailable, Jesus Green, Sheep's Green and Laundress Green have generally been used. In August 2015 works commenced at GHL which prevented tour operators working from that location. They immediately moved their tours to Laundress Green. When Laundress Green was then closed by the police due to a body being found in the river, the punt operators moved their operations to Jesus Green. This effectively repeated what happened in 2014 when the adjoining College to GHL closed off the slipway to undertake works to their property."
Defendants' evidence of fact
i) The Council has failed to plead its case properly. Specifically, Garrett Hostel Lane is a highway, to which special rules apply. The Council has failed to plead any case of trespass to the highway and so the application fails at the outset. (This is the "pleading" issue).
ii) Alternatively, the application must fail because the Council lacks jurisdiction to regulate the use of the River Cam, which is a matter for the Conservators exclusively. (This is the "appropriate authority" issue).
iii) Alternatively, it is inappropriate for the Council to take civil proceedings against the Defendants given that there is an alternative remedy open to the Council in the criminal law. (This is the "alternative remedy" issue).
iv) Alternatively, there is no evidence linking the Second, Third and Fourth Defendants to the trespass. (This is the "factual" issue.)
v) Finally, on the American Cyanamid test, it is inappropriate to make an interim order. The balance of convenience favours no order at this stage, allowing the matter to progress to substantive hearing. (This is the "balance of convenience" issue.)
Issue i): Pleading
i) Was the use of the Council's land at Garrett Hostel Lane a trespass, as a matter of law?
ii) If so, was the assertion of trespass adequately pleaded?
"The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a public right of peaceful assembly on the public highway."
"making a sketch, taking a photograph, handing out leaflets, collecting money for charity, singing carols, playing in a Salvation Army band, children playing a game on the pavement, having a picnic, or reading a book". (p 255 H)
He suggested that some activities would not amount to a reasonable user. The rule:
" would not permit unreasonable use of the highway, nor use which was obstructive. It would not, therefore, afford carte blanche to squatters or other uninvited visitors. Their activities would almost certainly be unreasonable or obstructive or both. Moreover the test of reasonableness would be strictly applied where narrow highways across private land are concerned, for example, narrow footpaths or bridle-paths, where even a small gathering would be likely to create an obstruction or a nuisance. (p 256 B-C)"
" it must always be remembered that rights of navigation are analogous to the rights of the public on a highway on land; that is to say, the right of coming and going and doing these things incidental thereto. On a highway I may stand still for a reasonably short time, but I must not put my bed upon the highway and permanently occupy a portion of it. I may stoop to tie up my shoelace, but I may not occupy a pitch and invite people to come upon it and have their hair cut. I may let my van stand still long enough to deliver and load goods, but I must not turn my van into a permanent stall. As was said many years ago: "A man may not use the highway to stable his horse."
Issue ii): Appropriate Authority
Issue iii): Alternative Remedy
"If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along the highway he is guilty of an offence and liable to a fine "
"The right to invoke the assistance of the civil court in aid of the criminal law is a comparatively modern development. Where Parliament imposes a penalty for an offence, Parliament must consider the penalty is adequate and Parliament can increase the penalty if it proves to be inadequate. It follows that a local authority should be reluctant to seek and the court should be reluctant to grant an injunction which if disobeyed may involve the infringer in sanctions far more onerous than the penalty imposed for the offence".
i) The Council is not in fact the highway authority for Garrett Hostel Lane. The highway authority is the County Council. If any action was to be taken under s 137, it would fall to the highways authority to do that (see s 130(1) of the Highways Act 1980). The Council only has residual powers under s 130(2) and so Mr Butler's suggestion that the Council can commence criminal proceedings is not right.
ii) In any event, both Kirklees and Stoke on Trent recognise that a civil injunction under s 37 Senior Courts Act 1981 may still be appropriate in those cases where the offender has been deliberately or flagrantly flouting the law (see Lord Goff at p 269 of Kirklees), where the offender intends to persist in offending regardless (see Lord Goff at p 270 of Kirklees) or where the defendants would not be deterred from offending by the fines which might be imposed as part of the criminal law (Lord Roskill at 776 of Stoke on Trent). The Defendants are deliberately and flagrantly flouting the law, they plainly do intend to persist in so doing, and they plainly have not been and will not be deterred by any fines imposed in the magistrates' court. So even if there was a criminal alternative, this is one of those cases where the Council would still be entitled to pursue an injunction in civil law.
iii) Further, the Council does not complain of obstruction of the highway, at least not as the focus for its action. It complains about the unreasonable use of its land to facilitate commercial punting operations. Section 137 only relates to obstruction of highways and is inapposite to prevent the Defendants' activity.
Issue iv): factual
i) It is common ground that the First Defendant is currently conducting unlicensed commercial punting activity from Garrett Hostel Lane.
ii) She invites me to make an order against the Second, Third and Fourth Defendants also, on the basis that I can infer from all the evidence before me, and from the facts as found by DJ Sheraton, that those Defendants participate in this unauthorised commercial punting activity both in their personal capacity and as directors of the First Defendant flipping from one to the other as it suits them.
iii) The Fifth to Eleventh Defendants have played no part in these proceedings and do not resist this application. She says I can infer that their part is admitted. She relies on witness evidence from the Council's officers identifying some of those individuals as present and participating in the First Defendant's commercial operations run from Garrett Hostel Lane.
Issue v): Balance of Convenience
First Defendant, Garrett Hostel Lane
"It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered."
Other Claim Locations, Other Defendants
"Such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. There will be cases in which the court can be satisfied that, if the defendant does what he is threatening to do, there is so strong a probability of an actionable nuisance that it is proper to restrain the act in advance rather than leave the plaintiff to seek an immediate injunction once the nuisance has commenced. "Preventing justice excelleth punishing justice" see Graigola Merthyr Co Ltd v Swansea Corporation  Ch 235 at page 242. But, short of that, the court ought not to interfere to restrain a threatened action in circumstances in which it is satisfied that it can do complete justice by appropriate orders made if and when the threat of nuisance materialises into actual nuisance (see Attorney-General v Nottingham Corporation  1 Ch 673 at page 677).
i) The Council has experience, since 2008, of unauthorised operators moving from place to place on the Council's land to continue their business (Mr Prinsep, first witness statement, at , and see above). This shows that, unless restrained, the operators will try to find alternative access to the river from the Council's land.
ii) The Council has tried many different strategies in the past to prevent this unauthorised activity. None of those strategies has succeeded. It is reasonable to infer that the activities will continue unless and until they are restrained by court order.
iii) The Second to Fourth Defendants, specifically, have demonstrated their disregard for the law by continuing their unlawful punting business (at least in their capacity as directors of the First Defendant) even after conviction in the magistrates' court. The criminal law has been shown to be inadequate as a means by which to control these Defendants. Hence, other measures are required.
iv) Although the Council suspects the First Defendant is the main entity responsible for the trespass on its land to date (with the involvement or collusion of the Second to Eleventh Defendants), it would be easy for any unscrupulous operator to get around an injunction which named the First Defendant only, by conducting operations in the name of a different person or entity. Thus, the injunction must extend to any person, individual or corporate (ie, "persons unknown") if it is to be effective.
v) The Council is a public authority which acts for and on behalf of the community it serves. It is entitled to take action in the name of the public, for the protection of the public and in the public interest.
vi) It is in the public interest that the Claim Locations should be free of unauthorised commercial punt activity, so that the public, that is, other users, can enjoy the ordinary amenity of those Locations without interference or obstruction.
vii) The Council is funded by the public purse. It should not be required to make a succession of expensive applications to Court, as and when a fresh trespass occurs, depleting limited resources which are better spent elsewhere.