Moore – v – British Waterways Board  EWCA Civ 73, 7th February 2013
Mr Moore owned several vessels (including one which he occupied as his home) moored long term on the tidal part of the Grand Union Canal, adjacent to his riparian land (i.e. the owner of land next to a river bank). BWB gave notice that the vessels were moored “without lawful authority” and required that Mr Moore remove them.
The High Court found that Mr Moore had not demonstrated any right under the general law to moor vessels permanently either in association with his riparian ownership or possession, or otherwise, and that, therefore, they were present without lawful authority. The Court of Appeal allowed an appeal. Although the rights of the riparian owner did not include a right to permanently moor vessels, the BWB had failed to establish that Mr Moore was doing any unlawful. In the absence of some infringement of statue or common law (e.g. trespass or nuisance) what a person did was “lawful”. The notices were, accordingly, quashed.
Mummery LJ stated:-
I am alerted to the possibility that the Claimant was not committing any wrong by a pithy observation of Sir Robert Megarry VC in Metropolitan Police Commissioner  1 CH 344 at 357c:- “England, it may be said, is not the country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden” (para 38).
In brief, BWB had no statutory power to compel removal of vessels from the stretch of the GUC where no wrong is committed by the mooring of the vessels alongside the bank possessed or occupied by the claimant.
Although the common law does not recognise a positive riparian right to moor alongside the bank permanently, the absence of the right does not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it, he was not doing it “without lawful authority” within s8, because the law allows him to do what it did not prohibit at common law or by statute.
At the end of all the arguments running to hundreds of paragraphs in the Claimant’s skeleton submissions, the question for decision by this court is this:- what wrong, if any, was the Claimant committing by mooring his vessel to a part of the canal bank, which had been treated as belonging to him, so that the barge remains stationary in the water flowing over the canal bed, which has been treated as not belonging to BWB? If no wrong, such as obstruction to the public right of navigation or to rights of access enjoyed by other users of the canal or trespass to the canal bed or the canal bank, was committed by the appellant, he was and is acting lawfully and BWB have no powers, statutory or otherwise, to require him to remove his vessels (paras 42 – 43).
Mummery LJ also commented on the importance of oral hearings as follows:-
I had a short comment on the value of oral hearings, as demonstrated in this constitution which, in one week, allowed two appeals by litigants in person. In each appeal the success was the result of legal or factual arguments the full implications of which were neither taken on board in the Judgment below nor appreciated in this Court prior to the oral hearing.
Doubts are sometimes expressed about how often oral advocacy affects the actual outcome of appeals. Judicial experience affirms the value of oral hearings or of appeals. Sometimes there are dazzling, even terrifying, displays of advocacy, but more often the hearing is a down-to-earth exercise in pro-active judicial engagement with the case: talking through unfamiliar, confusing or difficult factual and legal aspects; disentangling what matters from what does not matter; bringing order and understanding to the discussion of what matters by judicial thinking allowed to test legal propositions and to double-check facts; and ensuring as far as possible that, in conjunction with the pre-reading of the papers, the Court has a good grasp at what the parties are getting at (paras 48-49).
A copy of the judgment is attached to this article.