Jones v Canal & River Trust  EWCA Civ 135
The claim by Canal & River Trust (CRT) in this action is for a declaration and injunction that it is entitled to remove the Appellant’s boat, “The Mrs T”, from its waterways ( covering over 2,000 miles) under s.8 of the British Waterways Act 1983 and s.13 of the British Waterways Act 1971.
The Appellant lodged a defence which raised a number of points in resistance to the claim, including a defence based upon Article 8 of the European Convention on Human Rights(right to respect for private and family life and home).
If a person wishes to get a licence on a CRT waterway s/he (subject to having insurance and a boat safety certificate) will either require a ‘home mooring’ or will need to use his/her vessel ‘bona fide for navigation’ : see British Waterways Act 1995 section 17(3). CRT have produced guidance which attempts to interpret the above phrase – this guidance is commonly known as the ‘continuous cruising guidance’. The Appellant also seeks to challenge the lawfulness of this guidance in his defence.
In 2014 CRT asked for an order dismissing summarily the Appellant’s Article 8 part of his defence. The basis of the application was that the present case should be judged according to the same broad criteria applicable to public housing authorities who apply for possession of residential premises and are met by Article 8 defences, as considered in three cases: Manchester City Council v Pinnock  UKSC 45 (“Pinnock”); Hounslow LBC v Powell  UKSC 8 (“Powell”) and Thurrock BC v West  EWCA Civ 1435. In those cases, due to the housing management functions of local housing authorities, it was held that, to be successful, any Article 8 defence would need to be ‘exceptional’. The county court judge struck out the Article 8 part of the Appellant’s defence and a high court judge dismissed his appeal. He appealed to the Court of Appeal.
It was argued on behalf of the Appellant that this reasoning was confined to housing cases. The Court of Appeal, in allowing the appeal, agreed with the Appellant.
McCombe LJ (giving the leading judgment) stated:
It does not seem to me that the Pinnock line of cases demonstrate a true exception to the requirement of a structured approach to the proportionality assessment. Rather, I think, the position is that in public authority housing cases the Article 8 issues are more amenable to a pre-trial summary assessment and determination in the authority’s favour than in other cases in which such issues of proportionality arise. In the Pinnock-type of case, the court is capable of deciding on such a summary application whether or not the Article 8 considerations afford seriously arguable grounds for resisting the authority’s claims in whole or in part…..
It is possible that in some waterways cases the court will be able similarly to take a robust approach to claims to assert the public interest considerations in the exercise of the Respondent’s powers over rights arising under Article 8. …….
In the circumstances facing the learned County Court judge in this case, however, I do not consider that the overall context of the proceedings allowed the judge summarily to dismiss the Article 8 defences as he did. ……However, I will shortly summarise why I have reached this conclusion here.
First, while I agree that the Respondent’s property rights in the canal and the public interest in the management functions exercised by the Respondent can usually be taken as read, I am not satisfied that the judge could properly dispose of the Article 8 considerations before deciding whether the licence conditions had truly been broken and that property rights and management rights under s.8 of the 1983 Act, therefore, could be invoked unquestioningly, subject only to Convention rights. Second, it was not sought to argue that the Appellant’s defence under the Equality Act 2010 could be summarily determined; it survives on the pleadings. Third, the Respondent seeks extensive relief, including injunctions restraining any mooring of any duration on the K & A [Kennet & Avon] canal, restraining navigation upon any of the extensive waterways controlled by it and an order for immediate removal of the Appellant’s home, viz. the boat, from the K & A canal. With regard to this third consideration, I do not quite see how the judge could properly say, as he did in paragraph 21 of his judgment, that Article 8 was not “cast from [the court’s] mind” on questions of relief when the relevant paragraphs of the Defence had already been struck out.
I do not accept Mr Stoner’s submission… that the extent of the relief to be granted at the end of a trial could be re-visited in the context of Article 8. That was no doubt an intentionally helpful concession, but a difficult one to maintain in the face of the extensive relief sought by his client after all Article 8 considerations had been struck out of the Defence.
Ground 3 is directed to the County Court judge’s view that it would “impose a quite significant burden” on the respondent by requiring it to deal in every enforcement case with any possible Article 8 points raised on behalf of a defendant. The judge doubted whether it was reasonable to impose that burden on the Respondent.
….In my view… the burden of dealing with an Article 8 defence is one that will from time to time, however, have to be shouldered by the court in assessing a defendant’s personal circumstances and in the balancing exercise in weighing those circumstances against the “given” represented by the Respondent’s aims in the proceedings. I have made suggestions as to areas in which summary disposal of such defences may be possible. However, I do not consider that the judge was correct in identifying the “burden” of dealing with Article 8 defences as a reason for striking them out summarily ( paras 52-59).
This is an extremely important judgment for boatdwellers. If they raise an arguable Article defence (e.g. due to health problems, need to be near work, needs of children etc) then that should be dealt with at the trial of the matter and not summarily dismissed. The judgment will also have significance to others e.g. potentially Gypsies and Travellers on unauthorised encampments or unauthorised developments.
The barrister for Mr Jones was James Stark of Garden Court North chambers and the solicitor was Chris Johnson of CLP.
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