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

ON APPEAL FROM THE COUNTY COURT AT NOTTINGHAM

BETWEEN
MR LEIGH RAVENSCROFT
Appellant

and

CANAL & RIVER TRUST

Respondent

_______________________________________

SKELETON ARGUMENT ON BEHALF OF

THE RESPONDENT
_______________________________________

References in square brackets in this Skeleton Argument are to the tab and page number of
the Appeal Bundle: for example [11/173] Is Tab11, page 173.

Introduction

1. This Skeleton Argument is filed on behalf of the Respondent (the Trust) pursuant
to the directions of the Civil Appeals Office dated 2 February 2017 and 16 March
2017, following the Order of Lord Justice McFarlane dated 25 January 2017 [ / ] in
which the Appellants application for permission to appeal was adjourned to be
listed on notice with the appeal to follow on a day following the conclusion of the
High Court action currently pending (Leigh Ravenscroft v Canal & River Trust ref
HC-2015-001906).

Background

2. The Claimant is a charitable body and the navigation authority for the majority of
inland waterways of Great Britain (comprising some 3,135km of canals and rivers).
In pursuance of its statutory enforcement powers, which are set out in detail in the

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 Trusts Skeleton Argument for the Appellants application for an injunction listed on
19 March 2015 [ / ] the Trust issued statutory notices on the Appellant pursuant to
section 8 of the British Waterways Act 1983, latterly on 14 February 2014, as set
out in paragraph 14 of the Witness Statement of Stuart Garner dated 17 March
2015 [ / ]. The notices were issued on the grounds that the Appellants boat,
Three Wise Monkeys, formerly Grandma Molly, (the Boat) was moored on that
part of the River Trent (property under the control and management of the
Respondent) at Farndon Ferry Boat Yard (the Property) without a current licence
such that, following service of the relevant statutory notices, the Respondent was
entitled to remove the Boat from the Property pursuant to the Respondents
statutory powers.

3. The Boats last valid licence expired on 30 June 2011. The Appellant states in his
Statement exhibited to the Application for Injunction [ / ] that he sold the Boat in
2010 and purchased it back in 2014. The Trust has no record of any change of
ownership during this time; however, even if this could be established, there is still
a period of approximately a year since the Appellant allegedly repurchased the
Boat that the Boat remained unlicensed for whilst in the ownership of the Appellant.

4. On 27 January 2015, the Trust removed the Boat from the Property pursuant to its
statutory powers and arranged storage of the Boat pending payment of the sums
owing to the Trust by the Appellant, which included the cost of removal and storage
of the Boat.

5. On 10 February 2015, the Appellant issued an Application for an Injunction seeking

to forbid the Trust (as the intended Defendant, although the application was issued
against East Midlands Waterways, Canal and River Boat Trust) from selling or
destroying the Boat on the grounds of due process and ultra vires, and as set out in
the statement attached to the application [ / ]. The Trust received a copy of the
Court Order dated 10 February 2015 listing the matter before a Circuit Judge and
stating that the Appellant was to serve the application (the First Order), together
with a Notice of Hearing listing the matter for 19 March 2015 at 10.00am [ / ].

6. Despite the First Order, and an email being sent by the Respondents Solicitors to
the Appellants then McKenzie Friend, Tracey Thomas, the proceedings were not
served on the Trust by the Appellant and were instead obtained by a trainee from
the Nottingham office of Shoosmiths LLP (Shoosmiths), the Trusts instructed
solicitors, attending at the court office to obtain copies on 19 February 2015.

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7. Following correspondence between the parties representatives, Tracey Thomas
confirmed in an email to Shoosmiths on 12 March 2015 [ / ] that Mr Ravenscroft
has agreed that we should ask the County Court to vacate the hearing first thing
tomorrow morning.

8. On 16 March 2015, Lucy Gray, the legal adviser at Shoosmiths with primary
conduct of the matter at that time, telephoned the County Court at Nottingham to
check whether the Appellant had filed anything in relation to the upcoming hearing
and was advised that nothing had been received and no fee had been paid by the
Appellant to adjourn the hearing. She was advised to telephone again on 18 March
2015, the day before the listed hearing [ / ].

9. Accordingly, on 17 March 2015, Shoosmiths prepared the Witness Statement and

Skeleton Argument to be filed and served in advance of the hearing, having left this
as late as possible to avoid incurring unnecessary costs in the event that the
Appellant did in fact discontinue the proceedings and/or vacate the hearing.

10. On 18 March 2015, the day before the hearing, at around 10am Lucy Gray
received a phone call from Tracey Thomas stating that on her advice the Appellant
was attending at court that morning to discontinue the proceedings. Lucy Gray
advised Tracey Thomas that Shoosmiths would need to be served with a copy of
the Notice of Discontinuance otherwise we would be attending the hearing the next
day. She further confirmed that service by email would be acceptable. At 1.30pm
Lucy Gray telephoned the court and was advised that there was no change to the
status of the hearing and it remained listed for the following day. Tracey Thomas
telephoned Lucy Gray later that day around 4pm and was advised that Shoosmiths
had telephoned the court but that they had not seen anything with regards to the
claim being discontinued. These conversations are recorded in a contemporaneous
attendance note by Lucy Gray [ / ].

11. Upon Lucy Grays return to the office at 9am on 19 March 2015, there was an
email from Tracey Thomas received at 16.53 on 18 March 2015, after Lucy Gray
had left the office for the day, attaching a copy of the Document Receipt from the
court. No copy of the Notice of Discontinuance was ever received from the
Appellant. [ / ].

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 12. Accordingly Shoosmiths attended the hearing on 19 March 2015 on behalf of the
Trust. Mr Recorder Burns ordered that the Respondents name be amended to
Canal & River Trust, that the claim be discontinued and that the Appellant was to
pay the Respondents costs in the sum of 4,500 [ / ].

The Law

13. CPR 38.3 (1) provides as follows:

To discontinue a claim or part of a claim, a claimant must-
(a) file a notice of discontinuance; and
(b) serve a copy of it on every other party to the proceedings.

14. Further, CPR 38.6(1) provides as follows:

Unless the court orders otherwise, a claimant who discontinues is liable for the costs
which a defendant against whom the claimant discontinues incurred on or before the
the date on which notice of discontinuance was served on the defendant.

15. In the case of Teasdale v HSBC Bank PLC [2010] EWHC 612 (QB) [ / ], His Honour
Judge Waksman QC set out the principles, derived from the case law he was
referred to, to be considered upon an application made under CPR 38.6 for the costs
rule on discontinuance to be disapplied. These principles were conveniently
summarised by Moore-Bick LJ in the case of Brookes v HSBC Bank PLC [2011]
EWCA Civ 354 ( at paragraph 6 of the Judgment [ / ], and as set out at page 1195
of the notes to The White Book) as follows:

(1) when a claimant discontinues the proceedings, there is a presumption by reason

of CPR 38.6 that the defendant should recover his costs; the burden is on the
claimant to show a good reason for departing from that position;

(2) the fact that the claimant would or might well have succeeded at trial is not itself a
sufficient reason for so doing;

(3) however, if it is plain that the claim would have failed, that is an additional factor
in applying the presumption;

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 (4) the mere fact that the claimants decision to discontinue may have been
motivated by practical, pragmatic or financial reasons as opposed to a lack of
confidence in the merits of the case will not suffice to displace the presumption;

(5) if the claimant is to succeed in displacing the presumption he will usually need to
show a change of circumstances to which he has not himself contributed;

(6) however, no change in circumstances is likely to suffice unless it has been

brought about by some form of unreasonable conduct on the part of the
defendant which in all circumstances provides a good reason for departing from
the rule.

16. Further at paragraph 10 of the Judgment, Moore-Bick LJ stated:

It is clear, therefore, from the terms of the rule itself and from the authorities that a
claimant who seeks to persuade the court to depart from the normal position must
provide cogent reasons for doing so and is unlikely to satisfy that requirement save in
unusual circumstances. The reason was well expressed by Proudman J in Maini v
Maini: a claimant who commences proceedings takes upon himself the risk of
litigation. If he succeeds he can expect to recover his costs, but if he fails or
abandons the claim at whatever stage in the process, it is normally unjust to make the
defendant bear the costs of the proceedings which were forced upon him and which
the claimant is unable or unwilling to carry through to judgement. That principle also
underlies the decision of this court in Messih v MacMillan Williams. There may be
cases in which it can be said that the defendant has brought the litigation on himself,
but even that is unlikely to justify a departure from the rule if the claimant discontinues
in circumstances which amount to a failure of the claim.

17. In the case of Nelsons Yard Management Company, Christpoher Leverick, Susan
Leverick, Alistair Munroe v Nicholas Eziefula [2013] EWCA Civ 235 [ / ] Beatson
LJ stated at paragraph 29 that:
a generous margin is given to a judge when exercising a discretion such as that in
CPR Part 38.6 (1). The test is similar to the well known Wednesbury test in public
law. An appellate court will only interfere with its exercise where the judge in the
lower court has not applied the correct principles, has not taken into account all
relevant considerations, taken into account an irrelevant consideration, or has
reached a perverse decision, that is one which is outwith the ambit of reasonable
decisions open to him or her on the facts of the case [ / ].

And further at paragraph 30:

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 The hurdle to displace the default rule in CPR Part 38.6(1) is also a high one. A
Claimant who discontinues must (see Moore-Bick LJs sixth principle in Brookes v
HSBC Bank) generally show some form of unreasonable conduct on the part of the
defendant which provides a good reason for departing from the rule.

The Learned Judge's Approach at first instance

18. It is the Trust's stance that the Learned Judge at first instance rightly determined
that the Appellant's claim had not been discontinued as the Notice of
Discontinuance had not been served on the Trust pursuant to CPR 38.3(1)(b).
Further, the Trust submits that the Learned Judge was rightly entitled to treat the
filing of the Notice of Discontinuance as an application to discontinue the claim and
order that the claim be discontinued accordingly; the usual costs consequences
upon discontinuance pursuant to CPR 38.6(1) therefore applied.

The Learned Judge belows Approach

19. The Learned Judge below gave the Appellant permission to appeal giving him the
opportunity to reargue the costs issues that he would have wished to argue before
Recorder Burns at first instance. The Learned Judge, having found that the
Appellant discontinued primarily because he had decided that he was going to
take the fight into the High Court and that the Appellant felt that the Trust should
have agreed to the compromise set out in the email sent on his behalf on 9 th
march, suggesting that undertakings be given and there be no order for costs,
rightly decided that both of these matters fell within reasons 4 and 5 given by
Moore-Bick LJ for considering the disapplication of the usual rule on costs
[paragraph 7 / ]. Further, in consideration as to whether there had been a
change of circumstances, the Learned Judge rightly found that the the position
was pretty well as it had started. He came to the view that he did not need an
injunction because of section 8 of the British Waterways Act, but that is not a
change of circumstances to which he has not himself contributed [paragraph 8 /
].

20. The Trust submits that the Learned Judge was right to find that there was no
reason for disapplying the general rule from CPR 38.6 in finding that There is
nothing in what Mr Ravenscroft has said to me which falls within the principles of
Brookes v HSBC Bank to set aside the presumption that if he serves a notice of
discontinuance he is liable for the other sides costs and that the Respondent has
done nothing in these proceedings to justify having to bear their own costs. It is Mr
Ravenscroft, I am afraid, who has decided to start in the county court and move to

SHOOSMITHS_N5139304_V1_SKELETON_ARGUMENT.DOC\01.08.2014
 the High Court and he who has decided to discontinue. There is nothing, therefore,
which enables me to disapply the presumption that he should pay the costs.
[paragraph 9 / ].

Particular points raised on each of the grounds advanced by the Appellant

21. The Appellant confirmed, by Tracey Thomas, on 12 March 2015 that he would ask
the court to vacate the hearing (which does not confirm whether the Appellant
would be asking for the claim to be adjourned or discontinued) first thing the next
morning, yet nothing was ever received from the Appellant or the court confirming
that the hearing had been vacated. The Appellant accepts that he did not file the
Notice of Discontinuance until the day before the hearing, and then did not serve a
copy on the Trust. The Trust rightly instructed its solicitors to attend the listed
hearing in such circumstances to protect its position and defend the application.

22. The grounds of the Application for Injunction are stated on the face of the
application as (1) Due Process and 2) Ultra Vires [ / ]. The two attachments
marked 1a and 1b refer to the legality of the removal of the Boat by the Trust [ / ].
At no point does the application state that it is based on the belief that the Boat
would vest in the Trust after 6 weeks and that the injunction was intended to
prevent the Trust selling or disposing of the Boat on this basis. The Trust's witness
evidence and Skeleton argument in defence of the application therefore address
the legality of the removal of the Boat as pleaded by the Appellant [ / ] and [ / ].
The argument raised by the Appellant that the Trust has been able to reuse some
of the documents drafted in defence of the original claim in these proceedings in
the subsequent High Court matter is an issue for arguments on costs at the High
Court, and not for this appeal.

23. The Trust denies that its Stuart Garner said what is alleged by the Appellant in his
Skeleton Argument for the appeal below at paragraph 18 [ / ]. No evidence has
been provided by the Appellant to corroborate this allegation. The Appellant
provided extensive video footage of the seizure of the Boat, none of which shows
Mr Garner making any such statement. The email from Tracey Thomas to Paul
Griffin of the Trust dated 5 March 2015 states "Mr Garner has apparently told me
that you would hold the boat for a minimum 6 weeks for which you would charge
storage whether he paid off the storage to date or not. I would like confirmation of
whether this is the case too, and what is the official policy or understanding on title

SHOOSMITHS_N5139304_V1_SKELETON_ARGUMENT.DOC\01.08.2014
 to the boat being vested in the Board after 6 weeks" [ / ]. This is the first time that
the issue of the vesting of title is raised by the Appellant. This email was passed to
Shoosmiths, as proceedings had then been issued by the Appellant, and a
response was then sent by Shoosmiths on 10 March 2015 confirming that title to
the Boat would not vest in the Trust after 6 weeks [ / ].

24. An injunction granted on the terms sought by the Appellant wold have restrained
the Trust from taking steps with regards to the Boat which it was legally entitled to
do, namely serving a notice pursuant to section 12(3) the Torts (Interference of
Goods) Act 1977 [ / ], in order to sell the Boat had the sums claimed not been
paid by the Appellant. The fact that the Trust has subsequently acknowledged in
the High Court proceedings that it is not entitled to hold the Boat as a lien for
unpaid licence fees does not change this position; under s8 (3) of the British
Waterways Act 1983 [ / ] the Trust is entitled to recover the costs of removal and
storage of the Boat from the Appellant. The full extent of the Appellants dispute as
to why he avers that the Respondent was not entitled to remove his Boat was not
made out until he issued the the High Court proceedings on 18 May 2015 [ / ] and
served on the Trust on 28 May 2015.

25. Further, the offer to settle, whereby the Appellant sought an undertaking from the
Trust, was made on a without prejudice basis and should therefore neither be
referred to nor adduced by the Appellant in these proceedings. In so far as the
Court finds that this offer is admissible, then the Trust was perfectly entitled to
reject this offer without consequence; it was not an attractive offer to the Trust as
(1) it would have had the same effect as an injunction, in that the Trust could not
have taken steps to dispose of the Boat without the agreement of the Appellant or
recourse to the courts, and (2) it was made on the basis of no order as to costs.
The parties failure to settle is also irrelevant to the consideration of the principles
for disapplying the usual costs rules on discontinuance.

26. The fact that the Trust has previously agreed to an undertaking, which contrary to
the Appellants assertion is not similar in nature to the one offered in this case, is
irrelevant, as this was in completely different circumstances to those present.

27. At paragraph 8 of his Second Skeleton [ / ] the Appellant states that As the
matter was NOT discontinued, I would have been free, had I been so informed, in
attending court.to argue why CaRT were not allowed to just sell or destroy my
boat. Notwithstanding that the Grounds of Appeal in the Appellants Notice dated 7
April 2015 [ / ] make no mention of that fact that he would have attended at the
hearing to argue the basis of his claim, and paragraph 5 specifically states that

SHOOSMITHS_N5139304_V1_SKELETON_ARGUMENT.DOC\01.08.2014
 had I been told the discontinuance had been accepted but that there would be a
hearing as to costs, I could have attended to argue why they should not be
awarded. That opportunity was denied to me.

28. The Learned Judge below afforded the Appellant every opportunity to make the
submissions he would have done had he attended at that hearing. His Honour
Judge Godsmark QC said to the Appellant (lines 22-24 [ / ]) Lets work on the
basis you say to me anything that you would have wanted to say to the judge on
that day. Is there anything in addition to that which you have told me that you would
have said to him? and (lines 7-10 [ / ]) So those are the two points that I have
got from you at the moment, Mr Ravenscroft. You would have said to the judge
they should not have taken the boat in the first place and, secondly, We have
offered to settle this on undertakings ten days ago.

Summary

29. In consideration of all the circumstances there is no good reason for the court to
depart from the presumption imposed by CPR 38.6 in this case because:

(a) the Appellant has applied to discontinue the claim and the usual position is that
the Respondent is entitled to its costs of defending the claim, unless the
Appellant can discharge the burden of showing a good reason for departure from
the usual rule; the Appellant has not discharged this burden and so the usual rule
applies;

(b) the Appellant has not shown that there is a change in circumstances which has
been brought about by some form of unreasonable conduct on the part of the
Respondent which in all circumstances provides a good reason for departing
from the usual costs presumption; and

(c) There is nothing in the Appellants grounds of appeal or submissions that justify
the rule under CPR 38.6 being disapplied; the outcome of the High Court
proceedings, whatever that may be, has no bearing on the determination of this
appeal as the Court is looking at the circumstances at the time of the
consideration by the lower courts, rather than the outcome of a subsequently
formulated High Court claim.

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 30. In the premises, nothing in this case amounts to the unusual circumstances that
were envisaged by the court in Teasdale v HSBC Bank PLC [2010] and Brookes v
HSBC Bank PLC [2011]; accordingly the presumption that the Trust should recover
its costs has not been rebutted and there is no good reason why the costs orders
should be varied.

7 April 2017
Lucy Barry
Solicitor-Advocate / Associate
Shoosmiths LLP, Solicitors for the Respondent

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

ON APPEAL FROM
THE COUNTY
COURT AT
NOTTINGHAM

BETWEEN

MR LEIGH RAVENSCROFT

Appellant

and

CANAL & RIVER TRUST

Respondent

________________________________

SKELETON ARGUMENT ON BEHALF OF

THE RESPONDENT
________________________________

Shoosmiths LLP
First Floor Witan Gate House
500-600 Witan Gate West
Milton Keynes
MK9 1SH

LEB M-395623
Solicitors for the Respondent

SHOOSMITHS_N5139304_V1_SKELETON_ARGUMENT.DOC\01.08.2014