IN THE COURT OF APPEAL (CIVIL DIVISION) B2/2015/1994

ON APPEAL FROM THE HIGH COURT OF JUSTICE

1 CHANCERY DIVISION
2 (His Honour Judge Godsmark QC)
3
4 Royal Courts of Justice
5 Wednesday, 25th January 2017
6
7
8 Before:
9
10 LORD JUSTICE McFARLANE
11
12
13
14B E T W E E N :
15
16 LEIGH RAVENSCROFT Applicant
17
18
19 - and
20
21
22 CANAL AND RIVER TRUST Respondent
23
24
25 _________
26
27
28 Transcribed by BEVERLEY F. NUNNERY & CO.
29 (a trading name of Opus 2 International Limited)
30 Official Court Reporters and Audio Transcribers
31 5 New Street Square, London. EC4A 3BF
32 Tel: 020 7831 5627 Fax: 020 7831 7737
33 info@beverleynunnery.com
34
35 _________
36
37
38THE APPLICANT appeared as Litigant in Person (assisted by his McKenzie Friend,
39 Mr. Nigel Moore).
40
41THE RESPONDENT did not appear and was not represented.
42
43 _________
44
45 PR OCEED INGS
46
47
48 INDEX
49
50
51 Page No.
52
53
54SUBMISSIONS
55
56 The APPLICANT 1
57 Mr. MOORE 2
58 The APPLICANT 3
59 Mr. MOORE 11
60
61
62EXPLANATION OF JUDGMENT TO BE GIVEN 14
63
64
65 _________
66
67
68 (Transcript prepared without the aid of documentation)
 69LORD JUSTICE McFARLANE: Are you Mr. Ravenscroft?
70
71THE APPLICANT: I am Mr. Ravenscroft, yes, my Lord.
72
73LORD JUSTICE McFARLANE: Good. I gather you were a bit delayed so I took
74 the view that we ought to press on with the case at 10.30. I hope that has not
75 inconvenienced you.
76
77THE APPLICANT: Thank you. I apologise for the inconvenience.
78
79LORD JUSTICE McFARLANE: Do not worry. These things that happen. This is
80 your application to renew your application for permission to appeal against the
81 decision of Judge Godsmark.
82
83THE APPLICANT: That is correct.
84
85LORD JUSTICE McFARLANE: As you know, it is a short hearing. The test, if it
86 was an ordinary application for an appeal, is for you to satisfy me that the
87 proposed appeal has a reasonable prospect of success. But because this is a
88 second appeal, so you have already had one bite of cherry----
89
90THE APPLICANT: Yes.
91
92LORD JUSTICE McFARLANE: ----the test is higher, I am afraid. You have got to
93 satisfy me that the case raises an important point of law or practice or there is
94 some other compelling reason why the Court of Appeal should look at the
95 case. That is a relatively high hurdle.
96
97THE APPLICANT: Yes.
98
99LORD JUSTICE McFARLANE: So this is your chance to say what you would like
100 to persuade me that your case does justify being looked at again on appeal.
101
102THE APPLICANT: Yes. I am dyslexic, sir.
103
104LORD JUSTICE McFARLANE: Right. Have you got a McKenzie friend with
105 you?
106
107THE APPLICANT: I have, yes.
108
109LORD JUSTICE McFARLANE: I am very happy for the McKenzie friend to play
110 as great or as small a part as you want.
111
112THE APPLICANT: Thank you very much for that, my Lord.

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
1
113
114THE APPLICANT: I have got the case, the main case in the High Court what has
115 been passed through to in March.
116
117LORD JUSTICE McFARLANE: Right.
118
119THE APPLICANT: Is it May?
120
121LORD JUSTICE McFARLANE: Anyway it is coming up, yes.
122
123THE APPLICANT: For a four day trial regarding this case.
124
125LORD JUSTICE McFARLANE: What is the issue there: as to whether you had
126 paid?
127
128THE APPLICANT: Mr. Moore, as my McKenzie friend, hes been given right of
129 audience in that case, havent you?
130
131LORD JUSTICE McFARLANE: I am very happy, if you are happy, for -- is it,
132 Mr. Moore?
133
134THE APPLICANT: Mr. Moore, yes. I am very happy if he could assist me, yes.
135 Thank you very much, my Lord.
136
137LORD JUSTICE McFARLANE: What is the issue in the High Court action? If are
138 more comfortable sitting down, please do.
139
140MR. MOORE: Thank you very much. I do want Mr. Ravenscroft to present his
141 own notes as an introduction at least.
142
143LORD JUSTICE McFARLANE: Yes.
144
145MR. MOORE: The issues in the main case are actually, broadly, what were raised
146 by both sides in the original application for injunction. Essentially, it is that
147 the Canal and River Trust were not entitled to seize the boat in the first place;
148 that, even if a licence had been due in respect of the vessel, then the action
149 taken in seizing it was disproportionate because there were other less
150 draconian actions that were available to them at the first instance; and, thirdly,
151 that even if all those were not found in his favour, the fact that they used it
152 both, in crude terms, to extort monies owed on the licence fees, then that
153 was----
154
155LORD JUSTICE McFARLANE: An improper use.
156

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
2
157MR. MOORE: Yes. They have since admitted that they were not entitled to use the
158 holding of the boat as a lien on these licence arrears.
159
160LORD JUSTICE McFARLANE: Right.
161
162MR. MOORE: They say, well, he owed the money anyway so what does it matter.
163 But those are issues.
164
165LORD JUSTICE McFARLANE: It is going to take four days; is that right?
166
167MR. MOORE: The central and initial argument is over a matter of statutory
168 construction. The reason why Mr. Ravenscroft was saying that he did not have
169 to have a pleasure boat certificate in the first place, which is the grounds on
170 which they seized the boat, has to do with the interpretation of the 1971 British
171 Waterways Act which applied only to the main navigable channel of the rivers.
172
173LORD JUSTICE McFARLANE: Right.
174
175MR. MOORE: And the river waterways were defined as the main navigable
176 channel.
177
178 LORD JUSTICE McFARLANE: I can see that might take time.
179
180MR. MOORE: So it is a matter of statutory construction and that is the main reason
181 why it was considered to be a matter of public importance.
182
183LORD JUSTICE McFARLANE: Well, it is of public importance. It is a matter of
184 interest.
185
186MR. MOORE: Yes.
187
188LORD JUSTICE McFARLANE: It is horrendous if it is your boat and your money
189 and we are all interested in it. But I can understand that. That is very helpful.
190 Thank you.
191
192MR. MOORE: Thank you.
193
194THE APPLICANT: Thank you, my Lord.
195
196LORD JUSTICE McFARLANE: Yes.
197
198THE APPLICANT: I am really bad at reading, my Lord.
199

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
3
200LORD JUSTICE McFARLANE: What is the easiest way for you to transmit that
201 information to me? Do you want me to read what you have got written down
202 there or would you like to read it out?
203
204THE APPLICANT: Do you want me to just try a bit?
205
206LORD JUSTICE McFARLANE: If you try.
207
208THE APPLICANT: If it is a bit slow, then we suggest maybe you----
209
210LORD JUSTICE McFARLANE: I am not under any pressure of time and I am
211 keen to hear what you say.
212
213THE APPLICANT: Yes. My Lord, if I may, I would like to read through notes
214 prepared for this so that I do not lose track of what I am to say, as I did with
215 the previous hearing with Mr. Godsmark.
216
217 This case as a whole has been considered involved questions of public
218 importance suitable for consideration by a Class A judge and it is, it
219 seems, unjust that cost orders relating to the defence, that was superfluous
220 and unnecessary respecting the internal injunction request, should be
221 uphold when the argument and witness statements for that are the same
222 incorrect action as the current action in which I am more than reasonable
223 prospects of winning.
224
225 The injunction request was prevent CART from sending or destroying of
226 my boat because I had been led to believe they could do after six weeks.
227 The defence did not address their power to do so. Their defence tried
228 only to justify the seizure in the first place, which is a matter yet to be
229 determined.
230
231 It was their admission that title did not vest in them after six weeks that
232 prompted the agreement to discontinue. That reassurance had been
233 sought for weeks beforehand and could have been given from the start,
234 instead of leaving it to solicitors to tell me after considerable delay.
235
236 I admit that I was confused as to the direction Judge Godsmark was
237 taking me when dealing with this, so my answers were directed at his
238 specific questions and mostly missing the point. But he should have been
239 able to see for himself what the situation was. I think there are a couple
240 of pertinent issues from what he focused on.
241
242 Whole discontinued?...

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
4
243
244LORD JUSTICE McFARLANE: I am sorry, whole?
245
246THE APPLICANT:
247
248 Who discontinued?
249
250 1. In the first place, the judge fixed on the fact that I discontinued, so my
251 attendance in the first hearing would have been to only argue about costs,
252 whereas I have said that if the hearing was not discontinued after all I
253 would have argued the case for an injunction. Judge Godsmark was
254 wrong to say the recorder noted that the case had been discontinued
255 (paragraph 4). He had overlooked the fact as recorded in the transcript of
256 that first hearing that he claimed was not discontinued because of
257 procedural faults and that it was not I, in the end, who acceptably (sic)
258 asked for the discontinuance but instead it was CART.
259
260LORD JUSTICE McFARLANE: Sorry, can you read that again? I did not
261 understand that.
262
263THE APPLICANT:
264
265 He had overlooked the fact as recorded in the transcript of the first
266 hearing that the claim was not discontinued because of the procedural
267 fault and that it was not I, in the end, who acceptably asked for the
268 discontinuance but instead it was CART.
269
270 As the matter was not discontinued, I would have been free, had I been so
271 informed, in attending court, against the courts advice that the hearing
272 had been vacated, to argue why CART were not allowed to just sell or
273 destroy my boat, because, as they had recently admitted, title was not
274 given to vest in them after six weeks. I would not need to have argued
275 only over discontinuance costs which would not then have erased (sic)
276 anyway if I had gone in there.
277
278LORD JUSTICE McFARLANE: Sorry, I have not followed that.
279
280THE APPLICANT: My reading is that bad, your Honour.
281
282LORD JUSTICE McFARLANE: No, no, your reading is very good. It is just the
283 words. So do you want to start that bit again?
284
285THE APPLICANT: That bit again, yes.

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
5
286
287 As the matter was not discontinued, I would have been free, had I been
288 informed in attending court, against the courts advice that the hearing
289 had been vacated, to argue why CART were not allowed to just sell or
290 destroy my boat, because, as they had recently admitted, title was not
291 vested in them after six weeks. I would not need to have argued, only
292 over discontinuance costs, which would not have arisen anyway.
293
294LORD JUSTICE McFARLANE: That is the bit I did not understand, but I will
295 come back to that.
296
297THE APPLICANT:
298
299 Judge Godsmark himself noted, as I will show, that they could not have
300 sold my boat whilst there was an existing dispute. Judge Godsmark took
301 the view that I could only have argued over liability to costs, but, as I say,
302 this was, in the circumstances, wrong.
303
304 2. Such argument as CART presented to Judge Godsmark as to why the
305 injunction ought not to have been granted, had I argued for that, was
306 wrong. CART would not have been constructed (sic) under the terms of
307 the injunction I sought from doing anything that they legally could do
308 under the British Waterways Act 1983.
309
310 The argument that it would have prevented them from issuing a tort
311 notice is beside the point here as they have since admitted in the main
312 proceedings they are not entitled to hold the boat as a lien on alleged
313 owed arrears of licence fees. The Torts Act does not apply anyway
314 because the boat had been seized by them under their own alleged powers
315 and if after a year the seizure and storage costs were not paid, which they
316 could assist (sic) upon under the 1983 Act if the removal was legal, they
317 could have then sold the boat under the terms of their own Act. Even if,
318 as they claim, the Torts Act could apply, then it would still have been
319 open to them after the year to ask the court to do so, or sell, or sale under
320 section 13 of the Act.
321
322 Another point overlooked by Judge Godsmark is that if, as CART argued,
323 the undertaking and/or injunction phrasing was too broad, then they could
324 easily have suggested better wording. But they chose not to. The
325 argument fails anyway because the injunction was not until argument or a
326 court agreement or court decision. If CART had not sought to have
327 struck out my court claim and prevented me from having my McKenzie

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
6
328 friends help, this could all have been settled by now, and certainly within
329 a year.
330
331 The presumption of costs and liability. Supposing against my argument
332 that the presumption of liability lying on the discontinuer lies against me,
333 Judge Godsmark has concentrated on my fluxtured (sic) explanation for
334 why I appealed to discontinue, disregarding the writ in evidence before
335 him as to the reason. I had agreed to discontinue only once CART had
336 given me a written assurance that title did not vest in them after six
337 weeks. It was our understanding otherwise that meant we had been
338 worried enough to quickly put in the injunction request. It was only after
339 the application that we learned that the six weeks we had been told about
340 by CART only applied when the owner of the boat is unknown. As a
341 result, Mrs. Thomas sought clarification from CART, but received
342 nothing and had had the suggestion of an undertaking refused, which
343 refusal gives support to what we understood to be their position.
344
345 The correspondence letter received from CART
346
347LORD JUSTICE McFARLANE: Is that 10th March?
348
349THE APPLICANT:
350
351 The correspondence later received from CARTs lawyers was that which
352 changed the game and meant that the injunction was not needed because
353 they were not, contrary to the impression we had received from them,
354 able to sell after six weeks. Judge Godsmark knew this from the
355 correspondence which he both read and referred to, but failed to see this
356 as the answer to why I had sought to discontinue.
357
358 This was something that had been out of my control. The six week then
359 sale was not something we had dreamt up. Neither of us had known the
360 terms of the Act CART were relying upon. Until we had this admission
361 that selling the boat after six weeks was not legal, then the injunction was
362 necessary. It only became unnecessary once they sent the last letter,
363 which was about a week before the actual date.
364
365 It follows that if, according to the rule Judge Godsmark was quoting,
366 there was a change of circumstances which I had not contributed
367 (paragraph 6, page 34), I believe it is important to know that CART have
368 discontinued actions against boaters before and have successfully argued
369 that they should not pay the boaters costs incurred by reason of action on
370 the simple grounds that circumstances had been changed outside of their

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
7
371 control. It was that simple change of circumstances that had permitted
372 the presumption of costs to be set aside. It would be outrageous if they
373 can claim such expenses when they discontinued and yet sought to
374 disapply them to this discontinuing action against them. Then they have
375 changed the circumstances.
376
377 It has always been within CARTs powers to promptly inform us on the
378 matter and it was spiteful to keep us thinking otherwise until the last
379 minute, contrary to Judge Godsmarks view that rather than change in
380 circumstances it was not my understanding of the effect of section 8, the
381 defendants admission as to its effect.
382
383 It was also unreasonable to give a flat refusal instead of suggesting some
384 alternative wording
385
386 Im sorry.
387
388LORD JUSTICE McFARLANE: Do not worry. You have turned over two pages.
389
390THE APPLICANT:
391
392 That also affects the other aspects that Judge Godsmark should have
393 factored into the formula. He went on to describe that it was that the
394 change of circumstances itself will not suffice unless it has been brought
395 about by unreasonable conduct on the part of the defendant. In view,
396 however, of CARTs successful claim for no costs in the case of
397 Tony Dunkley, where there had been no unreasonable conduct on the part
398 of their target, it would be unfair to apply the formula in the other
399 direction.
400
401 I would argue nevertheless that it was clear that CARTs behaviour was
402 unreasonable. The judge correctly pointed out to them that they could not
403 sell the boat whilst it was an ongoing issue as to the legality of the
404 seizure. It follows that it was not reasonable to refuse to give me the sort
405 of undertaking that they had given which Judge Godsmark saw. This
406 response was that no official claim had yet been filed with the High Court
407 that the absence of that claim does not mean a notified dispute did not
408 exist and it was, in any event, disputed in the grounds for an injunction.
409
410 As I have said already, CART should have avoided any continuation of
411 my actions by agreeing to my formal proposal for an undertaking, the
412 judge shown exactly such an undertaking that had been supplied to the

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
8
413 court in a previous old case and there was nothing that prevented the
414 same being given in my situation.
415
416 I say then that it was unreasonable for CART to refuse such an
417 undertaking that I could have made in the injunction unnecessary, which
418 not have prejudiced them in any way. They are prohibited under the
419 terms of section 8 to sell after six weeks if they know who the owner is
420 anyway, and the known owner has twelve months to get the boat back.
421
422 This is the last one.
423
424LORD JUSTICE McFARLANE: Very well.
425
426THE APPLICANT:
427
428 It was also unreasonable to give a flat refusal instead of suggesting some
429 alternative wording. They made no positive suggestion at all. They only
430 demanded payment in full of all sums claimed by them, including the
431 alleged licence arrears, and that, at last as they have admitted now, was
432 not allowed by section 8. Their demands constituted, in fact, a criminal
433 offence, claiming a lien on the boat that could not be legally sustained.
434 Even the costs claims for defending the injunction were excessive, noted
435 by the district recorder even though he only cut a little from their claim.
436
437 I believe it is obvious that CART were playing on my ignorance and
438 unnecessarily racking up excessive costs that were never needed.
439 Although Judge Godsmark was all in favour of CART having attended at
440 the initial hearing, I dispute that their non-attendance could have resulted
441 in anything prejudicial to their position. As I had not attended, the result
442 would have been an automatic cancellation of the claim. If I had only
443 been tricking them and attending anyway in their absence, and they chose
444 to dispute the following injunction despite it being only confirmation of
445 what they had already admitted, then it would have been relatively cheap
446 and simple to apply to the court to set it aside on the grounds of my
447 deception and misrepresentation.
448
449 For these reasons I believe that I have reasonable grounds for an appeal
450 and would repeat what I have suggested, that at the very least, even if the
451 court decides these costs were a valid award, that comments of Judge
452 Godsmark as to damages in the High Court case should be a factor so that
453 the costs should at least be adjourned to the outcome of my main claim.
454 If I win, then everything argued in justification for the seizure will have
455 been proven wrong. CART should not be rewarded for tactical

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
9
456 manoeuvres in a course of action that has already been acknowledged as,
457 at least partly, criminal, though they wrongly claimed that was only by
458 mistake.
459
460 That is it, my Lord.
461
462LORD JUSTICE McFARLANE: Thank you. That is a lengthy list of points. I am
463 trying to see how you raised those before Judge Godsmark. I am looking at
464 the skeleton argument that you put in. I am bound to say that many of the
465 points that you have spoken about to me this morning are difficult to find in
466 the skeleton argument. It is tab 11. It is very difficult to criticise the judge if
467 you did not make these points to him.
468
469 Perhaps one point you have made that I want to clarify is page 5 of that
470 skeleton, page 99 of the bundle. At 18, there, you say: I had been given the
471 impression by Stuart Garner (CARTs Enforcement Officer) that my boat was
472 being seized for non-payment of licence fees and unless I paid thousands of
473 pounds immediately they would take the boat and after six weeks they could
474 do what they liked with it.
475
476THE APPLICANT: Correct.
477
478LORD JUSTICE McFARLANE: That is what you have said a number of times to
479 me that you were led to believe and you were told. But you were told by
480 Mr. Garner from CART that they could take your boat after six weeks.
481
482THE APPLICANT: Yes, and dispose of it.
483
484LORD JUSTICE McFARLANE: And dispose of it. You now know that, under
485 section 8(4) of the Waterways Act, they could not. They could only do that,
486 the six weeks only applied if they could not find whose boat it was.
487
488THE APPLICANT: That is correct.
489
490LORD JUSTICE McFARLANE: You are now telling me also that in the High
491 Court that they have accepted that they had no power to use the seizure of the
492 boat as leverage to get you to pay the money.
493
494THE APPLICANT: Correct.
495
496LORD JUSTICE McFARLANE: Have you got any documentation to show that
497 they have accepted that in the High Court action?
498
499MR. MOORE: If I could help, my Lord?

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
10
500
501LORD JUSTICE McFARLANE: Not with you?
502
503MR. MOORE: No, we dont have it with us. It is part of the pleadings in that case.
504
505LORD JUSTICE McFARLANE: But they have accepted that?
506
507MR. MOORE: They have accepted categorically that they are not entitled to use
508 that as a lien on the licence arrears and that it was a mistake to do so, which
509 they say was inadvertent.
510
511LORD JUSTICE McFARLANE: So, in terms of admitting it was a mistake to do
512 so, am I right in assuming that someone at CART made that mistake and told
513 Mr. Ravenscroft about it? Are they admitting that Mr. Garner, for example, did
514 say, Unless you pay up, you cant have your boat back and we can flog it in
515 six weeks time?
516
517MR. MOORE: My Lord, actually it was explicit in the correspondence about
518 getting the boat back where Mr. Ravenscrofts McKenzie friend, for want of a
519 better term, at the time----
520
521LORD JUSTICE McFARLANE: Was that Mrs. Thomas?
522
523MR. MOORE: Mrs. Thomas, yes. She had written and said, We dont believe we
524 need to pay the licence fees, and they said, Youve got to pay the licence --
525 you wont get the boat back unless you pay both the removal and storage costs
526 and the licence fees.
527
528LORD JUSTICE McFARLANE: So that is the letter of 10th March. That is
529 Shoosmiths letter?
530
531MR. MOORE: That was a Shoosmiths letter, which I am not sure whether it is in
532 the bundle here. The pleadings that Mr. Stoner QC put in accepted that the
533 relevant letter had said that but that it was a mistake.
534
535LORD JUSTICE McFARLANE: Yes, I found the letter this morning. I did not put
536 a tab on it. Here we are, I have the letter. It is at tab 7, page 76.
537 Mr. Ravenscroft, do you want to sit down?
538
539THE APPLICANT: Thank you.
540
541MR. MOORE: My Lord, this was the first of the letters. This is the one where they
542 specifically acknowledged the fact that ownership would not be vested in them

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
11
543 automatically after six weeks. Then they go on to say what the removal and
544 the storage costs are.
545
546LORD JUSTICE McFARLANE: So it is not explicit that you can only get your
547 boat back?
548
549MR. MOORE: This one was not explicit. They just say: In addition, he owes this
550 amount in licence fees. Mr. Stoner made the point that this is not explicitly
551 saying that. It was a subsequent correspondence that did explicitly say that he
552 was not going to get the boat back.
553
554LORD JUSTICE McFARLANE: I mean, the whole thing went off in front of Judge
555 Godsmark in a number of different ways which might have led the judge not to
556 be able to identify the key issues, but I think what has come cross to me is that
557 Mr. Ravenscroft is saying he only issued the injunction application because
558 Mr. Garner said, Unless you pay up we are going to sell your boat in six
559 weeks. And it is only when he gets the letter from Shoosmiths of 10th March,
560 saying, No, we are not entitled to sell the boat after six weeks, that he then
561 discontinues the injunction application.
562
563MR. MOORE: Yes, exactly.
564
565LORD JUSTICE McFARLANE: It does not seem to me that that point achieved
566 any prominence before the judge.
567
568MR. MOORE: It does not.
569
570LORD JUSTICE McFARLANE: In terms of the merits of what happened, it is an
571 important issue, it seems to me.
572
573MR. MOORE: Yes, my Lord. I mean, there were problems in the presentation of,
574 you know, that appeal before Judge Godsmark. What I think Mr. Ravenscroft
575 wanted to make clear was that the evidence was before him to have seen it
576 from the paperwork and although Mr. Ravenscroft was not really able to
577 properly address these issues----
578
579LORD JUSTICE McFARLANE: The judge focused on the fact that
580 Mr. Ravenscroft had discontinued and then the rules say normally, as night
581 follows day, if you start something and you stop it you pay the costs that have
582 been wasted by the other side, unless there are good reasons.
583
584MR. MOORE: Yes.
585

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
12
586LORD JUSTICE McFARLANE: Then Mr. Ravenscroft went into his argument,
587 which again I have heard today, that if he had known he might have to pay the
588 costs he would have turned up and argued the injunction anyway. The judge
589 did not, rightly in my view, really entertain that.
590
591 But the real merit of Mr. Ravenscrofts case, if there is any, is that this public
592 authority, through Mr. Garner, said, Youve got six weeks, a very short space
593 of time, before we sell your boat, and he wanted to take emergency action, an
594 injunction application, to hold the ring, as it were, so that that did not happen.
595
596 If that is right -- if that is right -- I am accepting it from you two gentlemen this
597 morning, then that explains how it could be said that CART brought the
598 injunction application on itself by giving this erroneous statement of the
599 position and the discontinuance followed. There is the question of why it took
600 Mr. Ravenscroft a week to discontinue and where the costs were totted up
601 there. But Judge Godsmark just did not go there because -- no criticism of him
602 -- the hearing did not get there. It was there in the documents but it was not
603 prominent in what Mr. Ravenscroft said to the judge.
604
605MR. MOORE: That has to be accepted, my Lord. The first point that
606 Mr. Ravenscroft was trying to get across was that it was not in fact
607 discontinued. It was because he had left it far too late that even although the
608 clerk of the court told him lets vacate it, in fact it was not, and from the
609 transcript of the proceedings before the district recorder it was CART, through
610 Shoosmiths, who said the matter has not been discontinued and the district
611 recorder agreed it has not been discontinued. It was actually CART who said
612 then----
613
614LORD JUSTICE McFARLANE: Sorry, Mr. Ravenscroft filed a notice of
615 discontinuance.
616
617MR. MOORE: He filed a notice of discontinuance, but it had no effect, according
618 to the district recorder and Shoosmiths, because it hadnt been presented in
619 time, there hadnt been a notice given to Shoosmiths in time, and all the rest of
620 it. So, in fact, according to both district recorder and Shoosmiths, it was not
621 discontinued and they asked for it to discontinue.
622
623 So what Mr. Ravenscroft was trying to put across was that if he had been told
624 that the hearing was going ahead regardless because it was all too late, then
625 what he would have been doing at that hearing was to show why his injunction
626 was in fact perfectly valid: (a) because under their own terms they could not
627 flog the boat----
628

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
13
629LORD JUSTICE McFARLANE: Yes, but there was no reason to have an
630 injunction. If there was no danger of the boat being sold----
631
632MR. MOORE: Thats right.
633
634LORD JUSTICE McFARLANE: ----there was no reason to grant an injunction.
635
636MR. MOORE: Yes. As Judge Godsmark himself said, quite aside from the issues
637 over what section 8 allowed them to do, they could not have disposed of the
638 boat while they knew that there was a dispute about it.
639
640LORD JUSTICE McFARLANE: Yes.
641
642MR. MOORE: So if he had argued, if he had gone along to the court and he had
643 argued before the district recorder why the injunction should be granted, as he
644 would and could have done if he had been told the discontinuance hadnt
645 happened, then it was a bit of a slam dunk, to use a colloquial expression.
646
647LORD JUSTICE McFARLANE: Yes. Right. Okay, what I am going to do is give
648 a short judgment in which I will explain my reasons, but I will explain in lay
649 terms what I am going to do.
650
651 I am not going to give you a blank cheque permission to appeal, but I am
652 sufficiently troubled about the overall merits of this to say that it justifies being
653 heard by the full Court of Appeal on the question of, first of all, whether you
654 get permission to appeal and the court will want to see not all the documents
655 but the relevant documents from the High Court case and also hear from
656 CART. So that will be a half-day hearing for the permission to appeal hearing.
657 At the very same hearing, if the court thinks your case is a runner, putting it in
658 lay terms, then they are likely to grant you permission to appeal and they will
659 deal with the appeal on that day as well. So it is a rolled-up hearing for
660 permission to appeal with the appeal to follow.
661
662THE APPLICANT: Thank you, your Honour.
663
664LORD JUSTICE McFARLANE: That will allow you, with the assistance of your
665 McKenzie friend, to set your case out in full. I am going to encourage you to
666 focus on what I think is the straightforward and strong point, which is that
667 Mr. Garner told you that the boat would be sold at the end of six weeks unless
668 you paid up.
669
670THE APPLICANT: Correct.
671

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
14
672LORD JUSTICE McFARLANE: That that was wrong as a matter of law, both in
673 terms of their power to sell if after six weeks and, secondly, to use the fact that
674 they had got the boat to squeeze you to pay the money.
675
676THE APPLICANT: Correct.
677
678LORD JUSTICE McFARLANE: That they have admitted that in the High Court
679 action; and that if you had not been told that you would not have issued the
680 injunction proceedings and you only discontinued them when you were told
681 that they could not sell it.
682
683THE APPLICANT: Correct, my Lord.
684
685LORD JUSTICE McFARLANE: For some reason I do not think that surfaced. But
686 I think you need to concentrate on that. All the arguments about what you
687 would have done if you had turned up and the rest are not very convincing to
688 me. I am not saying other judges would not take a different view. But you
689 need to put your eggs in the basket of the main point on the merits.
690
691 Then the additional point is that the High Court action is proceeding and really
692 all of this preliminary skirmish should be looked at in the light of whatever
693 happens in the High Court action. The costs issue might well be, if the appeal
694 is allowed, adjourned to be determined at the end of that, if you are not
695 successful from the appeal.
696
697 So I will wrap that up into a judgment, but that is in plain terms what I am
698 going to do. It will come on for hearing. It will not be considered urgent, so it
699 will be some months from now.
700
701 Please can you file a copy of what you have said to me today in court and that
702 will stand as your additional skeleton argument. Obviously, you are allowed to
703 speak to the court on the next occasion, but you will not have to go through the
704 burden of reading that out. But they will have that.
705
706THE APPLICANT: Could I have the assistance of my McKenzie friend as well?
707
708LORD JUSTICE McFARLANE: Yes. Yes, it will be up to the judges on the next
709 occasion what role he takes, but we are often assisted by McKenzie friends
710 helping by speaking as much as in any other way.
711
712THE APPLICANT: Thank you, my Lord.
713
714LORD JUSTICE McFARLANE: I will give a short judgment which then will be
715 typed up and sent out.
BEVERLEY F. NUNNERY & CO.
OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
15
716
717THE APPLICANT: Thank you, my Lord.
718 __________

BEVERLEY F. NUNNERY & CO.

OFFICIAL COURT REPORTERS
AND AUDIO TRANSCRIBERS
16