Jaqueline Casey & Ors v Environment Agency

This is an appeal from a decision by HHJ Simpkiss (“the judge”), sitting in Staines County Court on 4 March 2024, to allow the claimant’s claim and make an order for possession against the defendants. This followed a hearing on 30 and 31 October and 1 November 2023 under CPR Part 55.8.

The appellants were defendants to these proceedings in the county court and the respondent was the claimant. I shall refer to them as they were below, as claimant and defendants, though not all of the defendants have appealed.

The claimant is the freehold owner of land on the riverbed of the River Thames adjacent to Cherry Orchard Gardens around Sunbury-on-Thames (“the land”). The relevant land, registered at HM Land Registry under title numbers TGL279736, SY53853 and SY49480, is the riverbed of the Thames for a length of just under 2 miles.

The defendants at all material times owned and/or occupied houseboats moored in the river which were situated on or over that land. Each defendant has a licence or registration under the Environment Agency (Inland Waterways) Order 2010 entitling them to have a boat on the river.

The claimant applied for possession of the land. Its wish was and is to move the defendants’ boats off and away from the land. It argued that the defendants were trespassers either directly on the riverbed or in the airspace above it.

If more factual detail is needed, then I gratefully adopt the summary in paragraphs 11-24 of the judge’s judgment.

Ownership of the adjoining riverbank is disputed. The claimant has made applications to the Land Registry for first registration of land on the bank, but some of the defendants claim to have acquired plots of land adjacent to their moorings by adverse possession. The judge therefore ruled, for the purposes of the hearing, that no party could be assumed to be an owner of the bank.

The issues before the judge were the following:

Under CPR Part 55 the court was required either to decide the claim or, if it was “genuinely disputed on grounds which appear to be substantial”, to give case management directions for it. This was equivalent to the hearing of a summary judgment application and therefore required the judge to decide whether the defendants had a “realistic”, that is to say more than “fanciful”, prospect of success.

At the hearing there was no dispute as to the claimant’s ownership of the riverbed or the defendants’ ownership of the vessels attributed to them by the claimant or that those vessels were moored at the locations alleged. Mrs Laugenie’s statement alleges that her boat is moored at some distance from Cherry Orchard Gardens but there is no ground of appeal which suggests that she should be treated differently from the other defendants.

The case arises because on the one hand it is the claimant’s case that moorings on this stretch of the Thames are for short-stay purposes, and on the other, there have for a long time been boats permanently moored there. The evidence was that since 2014 the claimant had been more active in patrolling the bank and identifying vessels which appeared to be permanently moored there and that the numbers of such vessels had increased. The claimant wished to maintain this stretch as a “natural rural section of the Thames in an otherwise urbanised area”. Various requests were made to the owners or occupiers to move their vessels. The local planning authority, Elmbridge BC, had served enforcement notices on a number of the defendants and refused retrospective planning permission by a number of them for residential mooring. There were appeals against those refusals which were unsuccessful (with one exception to which I shall return). On 26 September 2022 the claimant sent letters to all the defendants known to it, requiring them to move their vessels within 7 days. A further letter was sent on 25 October 2022 warning that court proceedings would be issued and inviting them to raise any specific rights on which they wished to rely, and another was sent on 10 November 2022 inviting them to identify any relevant vulnerabilities that they might have. The claim was issued on 2 May 2023.

The judge ruled in the claimant’s favour, holding that the owner of a riverbed can claim possession based on trespass by an occupier of a vessel in the water above, that the claimant had the power to bring the claim as the owner of the land and/or under section 37 of the Environment Act 1995, that any riparian ownership rights enjoyed by the defendants did not give them permanent mooring rights, that no such right was conferred by any licences allowing the defendants to have their vessels on the Thames, that it was proportionate and not in breach of ECHR Article 8 for the claimant to bring these proceedings and to exercise its duties of management and rights as freeholders for the wider public benefit of navigation on the Thames by stopping permanent or long-term and residential mooring in that location and that there was no public law defence to the claims. He also ruled that the claimant was not subject to the “duty of candour” standard of disclosure that applies in judicial review proceedings. Finally he ruled that a possession order could be made over the whole of the relevant areas of the river, excluding those parts which were occupied by licence or consent, and that making an order in those terms would not interfere with public navigation rights.

As well as making a possession order, the judge granted a declaration that the claimant as owner of the riverbed is entitled to bring possession proceedings alleging the tort of trespass against the keepers of vessels on the Thames even if it does not own the bank and if the vessel owners own the bank and have riparian rights, and that the defendants’ rights to station vessels on the Thames without permission of the riverbed owner are limited to the public right of navigation under section 79 of the Thames Conservancy Act 1932 (“the TCA”).

There are numerous grounds of appeal though they overlap to some degree.

The grounds of the third, eighth and ninth defendants, represented by Stephen Cottle of counsel (“the Kastrati grounds”), raise the following issues:

The grounds of the second and sixth defendants (Messrs Sidei and Gjika), represented by James Stark of counsel (“the Sidei/Gjika grounds”), raise the following issues:

The grounds of the first defendants, Mr and Mrs Casey, representing themselves (“the Casey grounds”), raise the following issues:

This topic embraces Kastrati grounds 1 and 2, Sidei/Gjika ground 1 and Casey grounds 1, 2, 6 and 8(b). At the appeal hearing a sensible division of labour was agreed, and this topic was developed orally by Mr Stark rather than Mr Cottle.

In his skeleton argument, Mr Cottle explained that his clients brought no appeal against the judge’s decision that the claim for possession against them was not barred, in principle, either by a boat being licensed (or registered) to be present on the Thames or by the defendants having any riparian rights over the adjacent riverbank.

However, he contended that there could be no possession order of the area defined (by a plan) in the judge’s order because (1) it includes areas where there are no moored boats so that the land is already in the claimant’s possession and (2) it includes areas which cannot come into the claimant’s possession because adjacent land owners are allowed to moor their pleasure cruisers there permanently and (3) the judge wrongly thought that the order would take effect in personam, not in rem.

In support of those contentions Mr Cottle describes execution of a possession order as a blunt instrument, citing R v Wandsworth County Court ex p Wandsworth MBC [1975] 1 WLR 1314 (“Wandsworth”) for the proposition that “although in one sense an order for possession can be made in personam” in that it orders the defendant to vacate the land, “it operates in rem and is to be enforced against all those who are found on the land”. That is supported by Wolverhampton MBC v London Gypsies and Travellers [2024] 2 WLR 45 at para 166, where claims for possession against squatters were described as “a modern form of the old action in ejectment which is at its heart an action in rem rather than in personam”.

Mr Stark contended that the judge drew an inapt analogy between this case and two cases where a possession order has been granted over part of a highway, namely Wiltshire CC v Frazer (1984) 47 P&CR 69 (“Frazer”) and Hackney LBC v Powlesland [2020] EWHC (Ch) 2012 (“Powlesland”). In this case, unlike those, he submitted, his clients are entitled to remain in the relevant part of the river to exercise the public right of navigation over the non-tidal Thames under section 79 of the TCA. That section provides:

“(1)

Subject to the provisions of this Act it shall be lawful for all persons whether for pleasure or profit to go be pass and repass in vessels over or upon any and every part of the Thames through which Thames water flows including creeks side-channels bays and inlets connected therewith as forms parts of the said river …

(2)

The right of navigation in this section described shall be deemed to include a right to anchor moor or remain stationary for a reasonable time in the ordinary course of pleasure navigation subject to such restrictions as the Conservators may from time to time by byelaws determine and the Conservators shall make special regulations for the prevention of annoyance to any occupier of a riparian residence by reason of the loitering or delay of any houseboat or launch.”

Mr Stark further relied on PLA v Mendoza [2017] UKUT 146 (TCC) (“Mendoza”), a case about adverse possession in which Judge Elizabeth Cooke emphasized that there are important differences between highways and rivers and to which I shall return below.

Mr Stark also argued that, since the Court could not determine the merits of his clients’ claim to be owners of the riverbank, the judge should have treated them as if they had title to it instead of stating that neither party should be so treated. If they were owners of the riverbank land adjacent to where they are moored, Mr Stark submitted that the possession order would unlawfully interfere with their riparian rights to pass and repass from their land and to load or unload their boat from that land.

Moreover, he contended, at points where his clients have riparian rights, the public has no right to moor and therefore it was not necessary or appropriate to make an order to protect the public right of navigation. He relied on the decision of the House of Lords in Lyon v Fishmongers Co (1876) 1 App.Case 662 (“Lyon”) at p671 where Lord Cairns LC said:

“Unquestionably the owner of a wharf on the river bank has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him qua owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with an exclusive access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place …”.

Mr Stark further argued that the extent of the area covered by the possession order fell foul of Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11 (“Meier”), where the Supreme Court held that a court could not enlarge the scope of that remedy. Instead, he submitted that the claimant’s proper remedy, if they succeeded in showing that they were entitled to eject the defendants, should have been an injunction.

Mr Casey supported counsel’s arguments and further relied on Chasemore v Richards (1859) 7 H.L. Cas 349, where Lord Wensleydale said:

“… the riparian owner on a navigable river, in addition to the right connected with navigation to which he is entitled as one of the public, retains his rights, as an ordinary riparian owner, underlying and controlled by, but not extinguished by the public right of navigation.”

In reply, the claimant’s counsel Nicholas Ostrowski argued that the Judge was right not to be drawn into an academic debate about whether a possession order operates in rem or in personam. The real issues were whether the order could cover more than just the current “footprint” of each boat on the river and whether it would interfere with riparian rights.

On the first of those issues, he relied on Meier, which concerned travellers who set up an unauthorised encampment in an area of woodland managed by the Secretary of State. The Secretary of State sought an order for possession of the occupied site and of a number of other unoccupied woodland sites in the vicinity to which it was thought likely that the defendants might decamp. That wider possession order was refused at first instance, granted by the Court of Appeal but overturned by the Supreme Court. The core reasoning was set out by Lord Neuberger MR:

“64.

The notion that an order for possession may be sought by a claimant and made against defendants in respect of land which is wholly detached and separated, possibly by many miles, from that occupied by the defendants, accordingly seems to me to be difficult, indeed impossible, to justify. The defendants do not occupy or possess such land in any conceivable way, and the claimant enjoys uninterrupted possession of it. Equally, the defendants have not ejected the claimant from such land. For the same reasons, it does not make sense to talk about the claimant recovering possession of such land, or to order the defendant to deliver up possession of such land.

65.

This does not mean that, where trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole of the wood (at least if there are no other occupants of the wood), just as much as an order for possession may extend to a whole house where the defendant is only trespassing in one room (at least if the rest of the house is empty).”

Mr Ostrowski submitted that the position of third parties was dealt with by Frazer and Powlesland.

Frazer concerned trespassers who occupied highway land belonging to the claimant local authority by parking vehicles and erecting tents at various places. At no point was the highway completely obstructed or in the possession of the defendants to the exclusion of other users. A summary order for possession (under the then RSC Order 113) was upheld on appeal. May LJ (with whom Griffiths and Stephenson LJJ agreed) explained at page 74 that where defendants were wrongly in possession of the highway, it did not matter that they had not ousted the claimant or the public from the land, so long as they were “wrongly in occupation”. Like Lord Neuberger in Meier, he drew an analogy with a case where squatters occupy one room but a possession order is made against the whole house. He also compared the case with University of Essex v Djemal [1980]1 WLR 1801, where an order for possession of an entire university campus was made against student protesters who were only in possession of part of it.

In Powlesland protesters congregated in order to prevent a tree from being felled. By so doing, they obstructed the pavement which passed the tree, which was part of the highway. Fancourt J granted an order for possession. He ruled that Frazer disposed of the objection that the public had not been ousted from the highway, so long as the owner was ousted to any degree (para 25). And, on the facts, the highway authority had been ousted to a degree because the public, in order to pass, had to skirt around the protesters.

Mr Ostrowski submitted that I need not concern myself with questions about how bailiffs might or might not enforce the possession order and that any possible complications of that kind do not affect the Court’s power to make the order.

As to the interference with riparian rights asserted by Mr Stark and Mr Casey, Mr Ostrowski submitted that the judge was correct to put these on one side because riparian rights do not entitle their owner to moor indefinitely over land adjacent to the riverbank. He too cited Lyon, where Lord Selborne said at 683-4:

“Even if it could be shewn that the riparian rights of the proprietor of land on the bank of a tidal navigable river are not similar to those of a proprietor above the flow of the tide, I should be of opinion that he had a right to the river frontage belonging by nature to his land, although the only practical advantage of it might consist in the access thereby afforded him to the water, for the purpose of using, when upon the water, the right of navigation common to him with the rest of the public. Such a right of access is his only, and is his by virtue, and in respect of, his riparian property; it is wholly distinct from the public right of navigation.”

Mr Ostrowski also relied on Moore v British Waterways Board [2013] Ch 488. The defendant was the statutory navigation authority for, inter alia, the Grand Union Canal. The claimant looked after four unlicensed vessels which he and others occupied as their homes. Neither party owned the canal bed. The vessels were moored in a part of the canal which was subject to public rights of navigation, alongside riparian land which was in the claimant’s possession or occupation. The defendant served notice of its intention to remove the vessels on the ground that they were moored without lawful authority. The claimant contended that he had a right to moor without a licence pursuant to his riparian rights. His appeal succeeded on the basis that a vessel was not moored “without lawful authority” unless a wrong was committed such as obstruction to the public right of navigation or rights of access to the canal enjoyed by others, or trespass to the canal bed or bank. However, the court also ruled that the common law rights of a riparian owner who was not the owner of the riverbed did not include a positive right to moor a vessel alongside his land permanently. Lewison LJ, with whom Mummery and Jackson LJJ agreed, said at para 66:

“It is perfectly true that a riparian owner is entitled to the natural flow of the watercourse passing by his property; and that he is also entitled to access to and egress from his riparian property, even if he does not own any part of the soil. This is clearly established by the decisions of the House of Lords both in Lyon v Fishmongers Co (1876) 1 App Cas 662 and in Tate & Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509. But I have not been persuaded that there is authority to support the proposition that as against the owner of the bed of the waterway a riparian owner is entitled to maintain a floating structure or vessel indefinitely.”

On the question of riparian rights Judge Simpkiss considered the case law and in particular Lyon and Tate & Lyle Ltd v GLC [1988] 2 AC 509. He explained that, contrary to a submission by Mr Cottle (who now does not challenge the judge’s decision on this issue), the House of Lords in Tate & Lyle did not decide that the ordinary purposes of riparian tenements include permanently mooring a boat.

Judge Simpkiss ruled that the defendants had no relevant rights other than the public right of navigation under section 79 of the TCA. As that section confines the right to moor to “a reasonable period of time in the ordinary course of pleasure navigation”, it was not arguable that it embraced the permanent mooring of the defendants’ boats. There was therefore no defence based on any riparian rights which the defendants might have.

On the question of the scope of the possession order, the judge took Meier as a starting point. He rejected the notion that his order would have to confine itself to the footprint of each boat, saying:

“143.

The problem which often arose in traveller cases may also arise in the current case. Evicted defendants simply move to another area of land owned by the council and fresh possession proceedings have to be started. If I made a possession order for the eviction of the owners or occupiers of certain named vessels from the area of riverbed that they currently occupy they would be able to defeat the whole purpose by moving the vessels a boat length forward or backwards. As Lord Neuberger said, the short answer to this was that an order for possession would require the defendant to deliver up possession of land which he does not yet possess. This is clearly ludicrous.”

Applying Meier, he declined to make an order over the whole of a stretch of river shown on a plan in the trial bundle as originally claimed, because substantial parts of it were not occupied by any of the defendants and there was evidence of mooring by other parties to whom the claimant did not object. He said:

“149.

The possession order should cover that part of the river which comprises the blocks where the Defendants’ and other vessels without permission are moored but be restricted so as to exclude those parts which are occupied by licence or consent. I will discuss the precise plan to be attached to the order when I make my final order. The order will not simply require the Defendants to move their vessels from their current ‘footprints’ but to move out of the area where they are moored. It should exclude the significant parts where none are moored and the areas occupied by consent.”

Although the defendants have made the objections to the order summarised above, it was not submitted that the order as drawn up did not comply with that ruling by the judge. Mr Ostrowski also assured me that the area specified does not include any part of the riverbed above which vessels other than the residential boats the subject of this claim are moored.

I see no error in the judge’s reasoning and no factual dispute which required a trial.

The case of Meier (with or without Djemal, which was distinguished in Meier) shows that if the facts warrant it, there can be an order for possession of a whole wood against those in occupation of part of it, or for possession of a house against those in occupation of one room. The order as described at paragraph 149 of the judgment is not an order of the excessive kind found in Meier itself, but is an order of the “whole wood” kind, representing a limited extension for practical reasons of the principle that a possession order may only apply to land in the possession of the defendant. It prevents the absurdity of an order being thwarted by each defendant moving their boat a few metres. If the law did not permit this, the only consequence would be a procedural one i.e. that the claimant would have to seek (and on these facts would no doubt obtain) an injunction instead of a possession order.

The cases of Frazer and Powlesland further show that an order for possession of a highway can be made notwithstanding that lawful users of the highway are permitted to be there.

In this regard I was not greatly assisted by Mendoza. The Port of London Authority in that case had sought to register title to part of the bed and foreshore of the tidal Thames, in preference to Mr Mendoza who claimed to have been in adverse possession of part of the land. He lived on a houseboat moored on the bank of the Thames and the relevant land was described at para 4 of the judgment as “a rectangle of riverbed big enough to contain his boat”. The First Tier Tribunal dealt with, inter alia, an issue of whether it was possible to acquire title by adverse possession to the bed of a river that is subject to public rights of navigation. Judge Cooke said at para 78 that there was no absolute rule that this was impossible, though adverse possession would not extinguish public rights of navigation. The boat in question was moored at a point that was little used, public navigation in practice occurring in a wider channel towards the other side of the river, and its presence therefore had “no effect upon the public in its exercise of its right to navigate”. She rejected an analogy with the public highway “because highways – which have to be completely open to traffic and pedestrians – are so very different from rivers”, finding instead a closer analogy with adverse possession of land through which a public footpath runs, in which case adverse possession could take effect but would not extinguish the public right of way.

Whether or not the “different from rivers” observation is correct, it cannot bear the weight which the defendants seek to place on it. Judge Cooke decided that it was possible in principle (though Mr Mendoza failed on the facts) for an occupier to prove adverse possession of part of a tidal river notwithstanding that it was subject to public navigation rights, in other words that his presence was not necessarily an unlawful interference with public navigation rights. But nothing in her ruling casts doubt on the availability of a possession order against a person who is a trespasser over part of a river, and she did not identify any difference between a river and a highway which could dissuade the Court from applying the approach taken in Frazer and Powlesland to the present case.

That being so, I need not address the academic question of whether a possession order operates in rem or in personam. I suspect the answer is not clear, though the latter view received the approval of Lord Rodger in Meier at page 2784C.

As Mr Ostrowski accepted, there may be questions about the enforcement of the order.

Wandsworth was a case in which possession was granted against squatters and, when the bailiff arrived to execute the order, those occupiers had left but other squatters had taken possession. The bailiff, having initially declined to enforce the order, was ordered to do so by the Divisional Court. Lord Widgery CJ referred to Lord Denning in McPhail v Persons Unknown [1973] Ch 447 who said that such an order is “an authority under which anyone who is squatting on the premises can be turned out at once”.

Wandsworth was followed in Wiltshire County Council and others v FrazerNo. 2 [1986] 1 WLR 109 (“Frazer No.2”), where Simon Brown J ruled that a writ of restitution in aid of the previous possession order in Frazer could be used to recover land from new occupants who were not party to the original proceedings and had not been dispossessed by an earlier writ of possession. This would “always depend upon the particular facts” and would be permissible only where there was a sufficient nexus between the original occupiers and the re-occupiers.

Reading Wandsworth and Frazer No.2 together, I conclude that the bailiff is entitled to turn out anyone he finds on the premises, but not that he is obliged to do so. All will depend on who is there and why.

I note also that if this point had merit, it might have been taken in Frazer (1983) or Powlesland but it was not.

In the present case the possession order itself does not state that anyone found on the relevant part of the river must be removed. Instead, it orders that all the defendants do “forthwith, give up possession”. It is addressed against them personally as Lord Rodger pointed out in Meier. I see no reason why a bailiff enforcing the possession order would be bound to eject anyone exercising their public right of navigation and the Court would swiftly intervene if that happened.

I also reject the objection that the possession order interferes, or that enforcement would interfere, with the defendants’ public right of navigation under section 79. That is a question of construction of the order. It is common ground that the defendants continue to have their section 79 rights and can therefore navigate over the relevant part of the river regardless of having given up possession of it. There is no reason why the order should be given the suggested unintended construction. And again, the same objection might have been raised in Frazer or in Powlesland but it was not.

I also perceive no error in the judge’s analysis of riparian rights. None of the authorities decides that riparian owners have a right to moor a vessel permanently.

In Lyon, the plaintiff was a riparian owner who for a long period had used their frontage for “access to or from the river” (per Lord Cairns, quoted above). The issue was whether the Conservators of the Thames (who under the Thames Conservancy Act 1857 were in some respects predecessors of the Environment Agency) could – under section 53 of the 1857 Act, a predecessor of what is now section 60 of the TCA – grant a licence to a neighbouring owner to make an embankment which would prevent the plaintiff’s continued use of part of the frontage. The House held that the plaintiff owned a valuable right which was protected by section 179 of the 1857 Act, which stated that no powers under the Act would extend to removing or abridging any existing private land rights, and therefore that the licence was unlawful. Whilst Lord Cairns observed that where an owner has exclusive access to the river at one location, access by the public is effectively excluded at that location, Lord Selborne also said at 682-3:

“As for the public right of navigation, it may well co-exist with private riparian rights, which must of course be enjoyed subject to it; just as where there is no navigation, each riparian proprietor's right is concurrent with, and is so far limited by, the rights of other proprietors.”

Perhaps more importantly, Lord Cairns’ observation does not assist on the facts of this case, which is simply not concerned with access.

And, even assuming that the defendants could make good their claims to adverse possession, Moore in particular shows that they could not maintain a right, against the owner of the riverbed, to moor permanently. It seems to me that the argument by some defendants that a possession order was not available against riparian owners is an attempt to get around Moore by the back door.

It follows from all of the above that the judge did not err by treating the defendants as navigators rather than riparian owners. Nor did he err by not entertaining a discussion of whether they are riparian owners – because a finding in their favour on that question would not have changed anything. I am also confident that the judge did not mislead any of the parties about what would happen. He did not tell Mr and Mrs Casey that they would win if they were riparian owners, and that contention is wholly inconsistent with the position taken by several other appellants. And, even if they did not fully understand that their riparian rights were not being “accepted” by the Court, it made no difference for the same reason.

I have not separately discussed Mr Casey’s contention that, as soon as he went into adverse possession of the riverbank, he acquired ownership rights by operation of section 15 of the Land Registration Act 2002 even though the 12 year limitation period for recovery of the land by any superior owner had not expired. The point is academic because, as I have explained, riparian rights (whether acquired by adverse possession or otherwise) would not entitle Mr and Mrs Casey to moor permanently.

For these reasons I was not persuaded by any of Kastrati grounds 1 and 2, Sidei/Gjika ground 1 or Casey grounds 1, 2, 6 and 8(b).

This is Kastrati ground 6 and Sidei/Gjika ground 10.

It seems that at the hearing when judgment was handed down, the judge suggested to the parties that it might be helpful for him to grant a declaration as well as a possession order. Some of the defendants responded that this should not be done unless the claimant applied for and was granted permission to amend its claim to seek a declaration and that the application with notice of the terms of the proposed declaration should be served on all third party boat owners to whom the declaration might apply. According to Mr Cottle, the Judge took the view that the claim included a claim for “further or other relief” so no formal application to amend the claim was necessary.

By his order at paragraphs 11 and 9 respectively, the judge dismissed an application contending that the claimant should amend its pleading and ordered:

“It is declared that the Environment Agency, as the owner of the bed of the river Thames, is entitled to bring possession proceedings alleging the tort of trespass against the owners or keepers of vessels stationed on the Thames seeking possession of the land comprising the bed of the river Thames even if (a) the Environment Agency does not own the bank of the river Thames at the location where the vessels are stationed and (b) the owners or keepers of the vessels own the bank of the river Thames and enjoy riparian rights over the river. The Defendants' rights to station a vessel or vessels on the river Thames without permission of the owner of the riverbed are limited to that which can be enjoyed under the public right of navigation codified at s.79 Thames Conservancy Act 1932.”

Mr Cottle in his skeleton argument cited the Supreme Court’s decision in Wolverhampton MBC v London Gypsies and Travellers [2024] 2 WLR 45, [2024] HLR 11. Those were proceedings against persons unknown who were in occupation of land. The Supreme Court ruled that they must be described in terms sufficiently certain to identify them and that appropriate steps had to be taken to bring the proceedings to the attention of all those in occupation.

In the present case, Mr Cottle contended, the declaration went wider than the subject of the possession order but there were no means by which persons unknown could be aware that a declaration was being considered. He submitted that the claimant could and should have served all owners of vessels moored in the area of the Thames to which the declaration applies, including the owners of pleasure craft moored permanently against privately owned land, none of whom were defendants to the claim.

Mr Cottle also referred me to London Passenger Transport Board v Moscrop [1942] 1 All ER 97, which concerned the rights of employees to be accompanied to disciplinary hearings by officials of particular trade unions. An employee, by an amendment to a claim, sought a declaration that a provision that employees could be accompanied by officials of union A rather than union B (of which he was a member) was void by operation of statute. The claim failed on its facts but the House of Lords also said that that a declaration which deprived others of a right (though it “did not interfere with his liberty or his private rights”) should not have been made, if at all, “in the absence of the persons who are interested in opposing the declaration” (p 103-4 per Viscount Maugham), and:

“It is true that in their absence they were not strictly bound by the declaration, but the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties whether by representation, orders or otherwise before a declaration by its terms affecting their rights is made.”

The House also criticised “the looseness of practice” of allowing substantial changes to the relief sought without formal amendment.

I was also referred to Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387, [2010] 1 WLR 318 where Aikens LJ said at para 120 that before a declaration is made, the court must be satisfied that “all those affected are either before it or will have their arguments put before the court”.

Aikens LJ also said at para 119 that the circumstances in which the court will be prepared to grant declaratory relief are now considerably wider than they were thought to be after Gouriet v Union of Post Office Workers [1978] AC 435 and Meadows Indemnity Co Ltd v Insurance Corpn of Ireland plc [1989] 2 Lloyd’s Rep 298. It follows that the position has changed completely since Moscrop was decided in 1942, and declarations are seen much more commonly today.

It was however repeated in Bank of New York Mellon v Essar Steel India [2018] EWHC 3177 (Ch), by Marcus J, that the court must be satisfied that all sides of the argument will be fully and properly put.

Mr Stark by his skeleton argument adopted those submissions and contended that other parties might have run arguments based on estoppel or historic mooring rights, though he was no more specific than that. He also contended that there was an impact on those who keep boats adjacent to their land.

Mr Ostrowski responded that making a declaration is always in the judge’s discretion and, in this case, eight defendants attended or were represented and the judge therefore considered a wide variety of arguments over the claimant’s right to bring its possession claim. He pointed out that no party has yet identified some specific argument that should have been raised but was not.

He also submitted that in, for instance, judicial review proceedings, claimants often seek declarations about the lawfulness of a public authority’s approach to a particular issue which may affect many other members of the public who are not parties. In this case, in any event, he contended that the declaration did not change or limit the rights or duties of any boat owner on the Thames.

In my judgment it was unwise for the judge to suggest making a declaration when that relief had not been expressly sought in the claim. Indeed, I am not sure what if anything the declaration added to the judgment, save that it would enable a third party reader to be aware of the two matters declared without having to read the judgment.

But by the same token, what was declared was innocuous. The first sentence of the declaration means that the claimant could bring a possession claim as owner of the riverbed, regardless of riparian ownership. That proposition seems to me to be uncontroversial. What matters is that the court did not go further and declare when such a claim might succeed or fail. The second sentence is entirely specific to the defendants’ rights. And, it would in any event not bind anyone who was not party to it. The idea that other parties should have been summoned or invited to court to comment on that sentence is absurd.

Nor do I agree that the declaration went wider than the possession order. The latter could not have been made unless the first sentence of the declaration was correct, and the second sentence simply summarised part of the reason why the claimant succeeded.

The innocuous nature of the declaration also satisfies me that making it, despite the lack of an amended statement of case, was within the permissible scope of the judge’s discretion, though I consider that it was not good practice.

I am also reinforced in that conclusion by having no doubt about the correctness of what was declared and by the absence of any suggestion of what other specific arguments might have been entertained.

Kastrati ground 6 and Sidei/Gjika ground 10 therefore fail.

The final substantive questions of private law, raised by Mr and Mrs Casey, are whether the judge erred by treating the Thames as if it were in private ownership (ground 3) or by failing to allow the defendants to present evidence that the claimant has an obligation to protect the defendants’ occupation of the riverbank (ground 7).

As to ground 3, Mr Casey submitted that the Environment Act 1995, properly construed, does not give the claimant the functions of managing navigation or mooring or of protection of private riparian bankside land of owner/occupiers which it has purported to exercise in this case. Instead, those functions are given to the conservators of the Thames by the TCA. From that proposition he makes something of a leap to arguing that the judge was wrong to regard the riverbed as in the ownership of the claimant.

Mr Ostrowski responded with the simple answer that Land Registry documents show that the claimant is the owner of the relevant land and it is not necessary to investigate further. The TCA does not suggest that ownership of the riverbed is displaced by public rights of navigation.

I agree with Mr Ostrowski. Nothing in the TCA makes me doubt the claimant’s ownership of the riverbed, which was the basis for its possession claim. There is nothing in ground 3.

As to ground 7, Mr Casey placed reliance on sections 60-64 of the TCA. I have already touched on section 60, which empowers the conservators to license owners of land adjoining the Thames to erect structures such as docks, wharves and embankments. Section 63 provides specifically that land reclaimed by any such embankment vests in the riparian owner concerned. Section 64 empowers the conservators to cut the riverbanks for specific purposes, but with the consent of the owner of the soil.

Mr Casey submitted that these provisions support his contention that the defendants have the right to moor to their own bankside land.

In addition, he comments that the claimant has repeatedly said that riparian owners may moor their boats, and on 3 January 2019 the Caseys received an email from a Mr Croxford, an official of the claimant, stating: “if any of the boat owners against whom we have served notices are able to provide evidence that they have the landowner’s consent to remain, we would be happy to review it and, if satisfied it is credible, take no further action”. Mr Casey suggested that that could have raised an estoppel, or created a legitimate expectation that the defendants would have the right to moor based on adverse possession of the bank.

Mr Ostrowski submitted, and I agree, that sections 60-64 have no relevance to the issue and shed no light at all on mooring rights.

That being so, ground 7 cannot succeed because, for the reasons explained above, riparian ownership does not establish permanent mooring rights. And, whilst the claimant says that it allows riparian owners to moor pleasure craft, it does not allow permanent mooring of boats occupied as homes and has not indicated otherwise.

Mr and Mrs Casey further contend that the claimant as a creature of statute was not entitled to bring proceedings under CPR Part 55 because the CPR are mere rules of court and not a statute (ground 4), and that the judge did not afford them sufficient time to make their oral submissions (ground 5)

Ground 4 is a simple misapprehension of the law. Statutory bodies exercise the powers given to them by statute. In this case the judge held, rightly, that under section 37 of the Environment Act 1995 the claimant has the power to enforce property rights by litigation. When it does so, it is subject to the rules of court just like any other litigant. It has whatever benefits or burdens are conferred by Part 55 or any other provision of the Civil Procedure Rules.

As to ground 5, Mr Casey explains that he was only allowed to speak for about an hour of the 3 day hearing.

In answer to a question from me, Mr Casey agreed that this ground of appeal goes nowhere unless he can show that any of his other grounds have merit i.e. that the judgment was wrong in some respect.

A linked point is that in the hearing before me, all parties ensured that Mr Casey was given enough time and he did not express any discontent with his allocation. Although he is not legally qualified, he used that time to make focused and articulate submissions. So, even if there was some unfairness below, it has been remedied by a full and fair examination of the live issues before me and would not provide a ground for overturning the judge’s decision.

As will be seen, I have not upheld any of the Caseys’ grounds of appeal and I therefore conclude that ground 5 is academic. I am not, in fact, convinced that there was unfairness below. As Mr Ostrowski pointed out, this was a case involving several parties, all of whom made written submissions in addition to the oral submissions at the hearing. Many of the Caseys’ points overlapped with those made by the represented defendants whose interests, so far as I can see, coincided with theirs. In those circumstances it would not be surprising if the judge gave less time for oral submissions by a litigant in person and more time for submissions by the other defendants’ two counsel.

Nevertheless, it is disappointing when a court user leaves with a sense of procedural grievance. This ground is a reminder of the need for case management that is both effective and sensitive. I hope that Mr and Mrs Casey accept that they have now been fully heard, whatever happened below.

I now turn to those grounds founded on contentions of public law. It is convenient to begin with some of the more procedural grounds before turning to those that are more bound up with the underlying facts of the case.

Mr Sidei and Mr Gjika by their ground 6, supported by Mr Kastrati, contend that the claimant’s decision to commence the proceedings against them was ultra vires (i.e. beyond or outside the claimant’s statutory powers) because of a failure properly to follow its scheme of delegation. By that scheme, a decision to issue civil proceedings must be taken by the Area Director and Senior Managing Lawyer (or persons above them in the line management chain).

Essentially the complaint is that although there is a record of a decision by the appropriate individuals to commence proceedings against the five defendants against whom the local authority had taken planning enforcement action (which then prompted them to seek retrospective planning permission), these did not include Mr Sidei (D2) and Mrs Laugenie (D8), though they did include Mr Kastrati, Mr Gjika and Mr Cross. In the absence of written evidence of a decision to proceed against Mr Sidei and Mrs Laugenie, they argue that the proceedings were not validly authorised.

The contention about compliance with the scheme of delegation is not pleaded, either in Mr Sidei’s Amended Defence or Mrs Laugenie’s Defence filed and served in December 2023, both of which were signed by counsel and both of which put forward detailed arguments based on public law as well as private law including assertions that the claimant was acting beyond its powers for other reasons, or in any other statement of case.

Mr Stark’s trial skeleton argument of 24 October 2023 also did not advance that contention though it did complain of a lack of disclosure of documents relating to the decision-making process (paras 27-37) and it recorded that emails disclosed by the claimant had referred to the scheme of delegation. Read as a whole, however, those paragraphs are focused on the reasons for the decision rather than on any question of whether a decision was made at all.

The point was also not addressed in Mr Ostrowski’s trial skeleton argument dated 24 October 2023.

It was also absent from the judgment below and I understand that nobody raised it with the judge when the draft judgment was circulated in February-March 2024. It appears to have been raised for the first time when permission to appeal was sought in July 2024.

On the third day of the hearing below, the claimant provided a new witness statement from a manager, Mr Cuthbertson. Under the heading “duty of candour”, Mr Cuthbertson exhibited some emails between himself and a Ms Simpson and a Mr Chiverton and a “briefing note recommending trespass action” produced by him and by the claimant’s legal team. He confirmed that no scheme of delegation form had been filled in, and that on 13 March 2023 he had provided a verbal briefing to the Area Director, Ms Hill, to bring her up to speed with the case.

It seems that Mr Stark responded to this evidence in his oral reply submissions and raised the vires point then. He now complains that the judge did not even address it in his judgment.

There never has been an application to amend any of the Defences to plead this point. It seems to me that that is one answer to this ground of appeal. Mr Stark argues that the point arose from Mr Cuthbertson’s late evidence and could not have been pleaded before the final day of the hearing. That, however, does not mean that it could be litigated without any formality. Once it was articulated by any of the defendants, obviously the Court would have needed to hear Mr Ostrowski in response. The judge would first have needed to make a ruling on whether the issue could be opened at that late stage. Those things, however, did not happen and no defendant made any formal application for them to happen. In those circumstances I cannot accept that the judge erred by failing to give a ruling on the issue itself.

In case I am wrong about that, I have also considered the merits of the point. From the evidence I extract the following chronology:

The high water mark (no witticism intended) of the vires challenge is the emphasized passage in the July 2022 briefing note at sub-paragraph g above. Viewed in isolation, it would be consistent with a conclusion that proceedings were not formally authorised against Mrs Laugenie (who was not involved in the planning proceedings) or Mr Gjika (who was granted temporary planning permission).

Nevertheless, even if the late introduction of this issue had been or could have been properly case managed, I am not persuaded that it amounted to “grounds which appear to be substantial” for a trial involving a realistic and not merely fanciful prospect of success.

For one thing, a proposal to proceed against only five defendants would not have made complete sense, because the same briefing note of July 2022 referred to part of the claimant’s strategy whereby its Land Registry application might fare better “if the vessels are no longer next to the bank”. That strategy, it seems to me, required action against all of “the vessels” that were moored near Cherry Orchard Gardens.

Meanwhile, the decision was taken in September 2022, not July. The documents from September are all consistent with the claimant having decided to do what it in fact did i.e. to proceed against all defendants. Immediately after the decision, a letter before action was sent to all of them.

And in any event, the proceedings were not commenced until 15 March 2023, by which time Ms Hill herself (as a decision maker replacing Ms Simpson) had completed the document of 3 March which referred to all of the defendants.

In my judgment there was and is no real prospect of any of the defendants proving that an appropriately senior lawyer was not party to a decision to proceed against all of them, so as to undermine the delegated authority for the claim against two of them.

By Sidei/Gijka ground 5 and Casey ground 8(a) it is contended that the claimant brought the claim for an impermissible ulterior motive i.e. to strengthen its claim for first registration of the bankside land, and that this could found a public law defence of irrationality based on having regard to an irrelevant factor (or, conceivably, bad faith). Alternatively it could be a component of the Article 8 defence, which is how it appears to have been argued below. I will examine it as a free-standing point but will return to it below in the discussion of Article 8.

In his first statement dated 13 March 2023, Mr McKie-Smith traced the history of the claimant’s interest in these boats back to 2014 as I have said. He referred to requests made or notices served on owners requesting that they leave because they did not have a right to moor. He also referred to the claimant’s aim being “to maintain the Land as a natural, rural section of the river Thames in an otherwise relatively urbanised area”. He stated that the boats:

“… are preventing other boats from exercising the public right of navigation over the river and are preventing the Claimant's vessels and officers from navigation over that part of the Thames, and from ensuring that others can navigate over that part of the Thames and from allowing officers to fully inspect the bed and bank of the Thames at that location.”

The second statement by Mr McKie-Smith dated 29 August 2023 stated:

“11.

The Claimant considers the permanent mooring of these boats, which are not in the ordinary course of pleasure navigation and do not undertake pleasure navigation transits, to be unreasonably obstructing the public right of navigation and ancillary rights of mooring. This is because other boat owners are not able to access or use the water space being permanently occupied by these boats and are not able to exercise their public rights to remain stationary for a reasonable period, and/or be able to access the towpath from the river or vice versa. The Claimant considers the use of possession proceedings to be a proportionate response, for the purpose of gaining possession of the land as opposed to the use of our criminal powers as a punitive measure to prosecute non-compliant boat owners who have not complied with our direction.”

Mr McKie-Smith then gave a summary of the other boats that are moored in the vicinity with the claimant’s consent and explained why their situation is different.

The statement provided by Mr Cuthbertson on 1 November 2023 exhibited the briefing note to which I have referred above. Under the heading “… benefits and costs of enforcement, specifically trespass”, the note said:

“One of the reasons for attempting the Land Registration was to make the trespass proceeding slightly easier, in that proven ownership of the riverbank land and riverbed would be a stronger position than solely of the bed.

…

Trespass proceeding may be quicker than the Council's enforcement action, though its speed is somewhat uncertain and is dependent on no unforeseen issues arising.

Commencing trespass proceedings now potentially could resolve the issue quicker than the Land Registry application. If successful then objections to the Land Registry application may not be forthcoming if the vessels are no longer next to the bank, and this may avoid referral to a Tribunal. The same can be said of the Council's enforcement action.”

At paragraph 97 the judge considered the Article 8 defence and then said, as regards the motive issue:

“g.

Some Defendants argued that the reason that the Claimant was bringing these proceedings was to prevent the Defendants from acquiring possessory title to the riverbank. Whether that is the case or not, I am satisfied that the Claimant is entitled, as someone arguing that it owns the riverbank, to take steps within the law (which it can do as owner of the riverbed) to protect such title as it already has from others who do not yet have title. This is a legitimate factor in exercising its rights of management of the riverbed and waterway.

h.

I conclude that the Article 8 defences are not arguable and that there is no real prospect of it being found at trial that it would be disproportionate to obtain possession. It is overwhelmingly proportionate for the Claimant to bring these proceedings and to exercise its duties of management and rights as freeholders for the wider public benefit of navigation on the Thames by stopping permanent or long term and residential mooring.”

Mr Stark submitted that the briefing note revealed that the real purpose of the claim was to support the claimant’s Land Registry application, and that this was an improper purpose because it was unconnected with preserving the public right of navigation, contrary to the evidence of Mr McKie-Smith. He also argued that in any event, the defendants’ presence does not interfere with navigation rights, relying on the reasons given in Mendoza for Judge Cooke’s finding that Mr Mendoza’s moored boat did not in reality cause an interference.

In his skeleton argument Mr Stark also contended that, to defeat an Article 8 defence and obtain possession, the claimant needed to show that it was taking steps to protect the rights and freedoms of others, citing the local authority housing case Hounslow LBC v Powell [2011] UKSC 8.

There, at para 36, Lord Hope said that in those unusual cases where an Article 8 defence merits closer examination:

“The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock.”

But Lord Hope also referred to the decision of the Strasbourg court in Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (2010, unreported) stating that the first aim on its own will not suffice where the owner is the State.

In summary, Mr Stark submitted that the question of the claimant’s purpose and the legitimacy of it needed to be explored at a trial.

In response, Mr Ostrowski submitted that there was nothing illegitimate about the claimant trying to vindicate its property rights. But in any event, he contended that the documents, read as a whole, revealed that the claimant was also seeking to protect the amenity of this stretch of river and to protect public rights of navigation. He pointed out in particular that the efforts to remove the defendants’ boats had begun years before the application for first registration of title. And, by reference to photographic evidence, he contended that the situation of other boats which are moored by consent is different, in particular because of the nature of the more urbanised land to which they are moored.

It was unimpressive that the claimant had to supplement its disclosure and evidence during the hearing below. Nevertheless, the final position was that the judge had, and I have, the benefit of those documents which evidence the claimant’s thinking. I am assured that all relevant documents have been disclosed and so I proceed on the basis that no other documents would be available at a trial.

From the documents, it is clear that the claimant has for many years been concerned about permanent or long-term mooring of boats without permission on this stretch of the river. It has made various efforts to persuade the owners to leave, without success. Its wish to do so predated the application to the Land Registry in 2021. I have no reason to question its evidence that it believed that it should act against permanent mooring which exceeded the temporary mooring rights that are included in the public right of navigation. Whilst nobody has suggested that these boats prevent others from navigating that stretch of river, it is obvious that if a defendant is permanently moored at a location, then others cannot temporarily moor at that location pursuant to their navigation rights and, to that extent, there is an interference.

It is also clear that at some point after 2021, the claimant formed a view that possession proceedings might also support the Land Registry application. But in fairness, the briefing note also suggests that the emphasis was the other way around i.e. that the Land Registry application might support the possession claim.

What, then, could be explored at a trial? The partial aim of supporting the Land Registry application is a given. But in view of the history, and reading the briefing note (which is the defendants’ best document) as a whole, I see no real prospect that a Court would find that the claimant’s sole motivation was to support its Land Registry application. It is entirely clear that the claimant was pursuing more than one goal.

Moreover, I agree with the judge that there was nothing illegitimate in the claimant seeking to protect the title which it believed it had in the bank. Cementing and clarifying its riparian property rights is a legitimate part of its work as conservator of the Thames.

I therefore conclude that the judge was right to dismiss the “improper purpose” defence and not to direct a trial of that issue.

This issue embraces Kastrati ground 4 and Sidei/Gjika grounds 3-4. The defendants submitted below and before me that, in relation to the issues of vires/authorisation to bring the claim and of improper purpose with which I have just dealt (and which overlaps with the Article 8 issue), the claimant disclosed too little, too late, and thereby prevented a sufficient investigation of whether those issues needed to be tried.

At paragraphs 115-119 of his judgment the judge ruled that there was “no arguable defence based on breach of a duty of candour”. At para 118 he gave two reasons.

First, in a case of this kind i.e. accelerated possession proceedings under Part 55, a public authority would not have to carry out the “onerous exercise” of disclosure in accordance with the duty of candour that applies in judicial review proceedings, unless and until “the defendants were given leave to defend and the case proceeded to trial”.

Second, the defendants would not have a defence to the possession claim even if they could show that the claimant may have had what they characterised as an ulterior motive for bringing the claim. I have already indicated my agreement with that conclusion.

The defendants focused their attack on the first of the judge’s reasons. Mr Stark submitted that since the availability of public law defences to a possession claim is well established by cases such as Wandsworth LBC v Winder [1985] AC 461 and, more recently, Manchester City Council v Pinnock [2011] 2 AC 104 (“Pinnock”), the public authority claimant in such a case must be subject to the same duty of candour as would apply in judicial review, as otherwise the remedy would or might be ineffectual.

As I have said, on 24 July 2023 Deputy District Judge Reynolds ordered the claimant to make “such disclosure as is in accordance with the duty of candour and cooperation arising from its decision-making process”. Clearly the view was taken at that time that the duty was applicable.

Mr Ostrowski has not sought to persuade me otherwise. On the contrary, his position is that his client at all times complied with the duty of candour. So by its Respondent’s Notice, the claimant invites me to uphold the judge’s decision on the basis that if his reasoning was wrong, it did not make any difference.

It is therefore uncontroversial that the duty of candour applied, meaning that the claimant was bound to disclose all relevant documents which were necessary for the judge fairly and justly to decide the question before him at the hearing, namely whether any of the issues required a trial. The “summary” nature of that hearing did not prevent the duty from applying, just as in judicial review the duty applies at the permission stage although what is required to discharge it at the substantive stage may be more extensive: see R v Police Superintendents’ Association v PRRB [2024] 1 WLR 166 per Fordham J at para 15(9).

I have already referred to the briefing note of 20 July 2022. Mr Stark submitted that that document reveals the existence or likely existence of other documents which should have been disclosed. For example, it refers to “our meeting in August 2021” but no minutes of any meeting have been disclosed. Mr Cottle added that he would have wished to cross-examine the maker of the briefing note about the reasons given for taking proceedings and the lack of reference in that document to protection of public rights of navigation being one of the reasons.

In relation to the claimant’s decision-making and its possible impact on the proportionality of seeking possession against these defendants, Mr Stark points out that there has been no disclosure of any policy documents evidencing the claimant’s stance towards pleasure craft or on the question of boats moored with the consent of adjoining landowners. He refers to an email sent by the claimant’s Customers & Engagement team to the 10th defendant in response to a FOI request, which said the following:

“There is no statutory legislation that enables a right by law for a Thames private riparian landowner to permanently moor a vessel or vessels in the main public river to riparian land, irrespective of ownership of the riverbed. If a right to moor exists in any specific location it will be on the basis of common law rights associated with landownership. These rights are likely to vary depending on specific circumstances.

There are no permissions required from the Environment Agency in its role as Navigation Authority if a vessel is moored directly to privately owned land with no associated structures. If mooring structures are installed in the river then a licence will be required under Section 60 Thames Conservancy Act 1932. Where the structure is on EA riverbed this is accounted for in the relevant tariff.

Where the EA owns the riverbed, a separate lease or licence may also be required from the EA in its capacity as landowner. This is assessed on a case by case basis.”

Mr Stark submits that this begs questions about the claimant’s policy approach, which could help to show that his clients had been singled out for unfair or inconsistent treatment, which in turn could support a public law defence.

Mr Ostrowski maintains his position that, at least by the end of the County Court hearing, disclosure was compliant with the duty of candour and that there is no evidence which establishes that that is not so. He accepted that the formal authorisation of the claim was not very well evidenced (see the discussion of that topic above), but that does not mean that other relevant documents existed and were not disclosed.

In my judgment, although (as I have already said) it was unimpressive that the claimant had to supplement its disclosure by serving Mr Cuthbertson’s statement and exhibits towards the end of the hearing, it has not been submitted that the lateness of that disclosure prevented a proper resolution of the issues. This issue turns on whether, overall, there was sufficient disclosure.

In reviewing that question I bear in mind the nature of the proceedings. It was necessary for the judge to be equipped to decide whether any defences had a real prospect of success. However, this was not the occasion for a public inquiry into the claimant’s policies and I reject the submission that more policy information should have been provided. The judge simply needed to know why (and how) the claimant brought the claim and to have a sufficient and reliable overview of the factual background. That was what these public law defences necessitated, as can be seen from the housing and waterways cases which I shall discuss in the next section of this judgment.

I am not persuaded that the existence of any missing evidence can be inferred. In those circumstances the Court could not and cannot go behind counsel’s assertion that the claimant has disclosed everything that it believes it should. The judge was provided with what was in fact the fairly straightforward evidence trail about the making of the decision to bring the proceedings.

Nevertheless, the judge’s exposition of his decision on the point was infelicitous. If his view was that a duty of candour did not apply at that stage of the proceedings, then he was wrong. However, his rejection of the submission of insufficient disclosure was bound up with his decision that the claim was not “genuinely disputed on grounds which appear to be substantial”. I have already explained why I consider that he was right to reach that conclusion about the ultra vires and improper purpose issues. There being no sufficient basis for inferring that the Court was deprived of relevant evidence, any error on the judge’s part about the applicability of the duty of candour did not change the outcome.

The same applies to the Article 8 issue, on which I am similarly not persuaded that the Court was deprived of any relevant evidence.

I therefore conclude that Kastrati ground 4 and Sidei/Gjika grounds 3-4 do not have independent force. Instead they stand or fall with the substantive issues. As to those, I have already rejected the defendants’ case on ultra vires and improper purpose and I now turn to Article 8.