Moore v British Waterways Board [2010] EWCA Civ 42 (05 February 2010)

Moore v British Waterways Board [2010] EWCA Civ 42 (05 February 2010)

The Court of Appeal held that the preliminary issue regarding the continued existence and effect of rights under the 1793 Act should not have been determined in isolation and must be decided at trial with full evidence. The deputy judge's ruling on preliminary issue (i) was set aside. The court declined to rule substantively on the preservation or extinguishment of rights at this stage, finding it more appropriate for trial.

Citation
[2010] EWCA Civ 42
Parties
Appellant: Mr Nigel Moore; Respondent: British Waterways Board
Jurisdiction
England and Wales
Judgment Date
05 February 2010
Procedural Posture
Appeal (civil) / Permission to Appeal and Substantive Appeal Against Preliminary Issue Ruling and Costs Order
Outcome
Permission to appeal granted; appeal allowed to the extent of setting aside the ruling on preliminary issue (i); action to proceed to trial on all outstanding issues; costs order below varied.
Legal Topics
Riparian Rights, Navigation Rights, Statutory Interpretation, Mooring Rights, Costs Orders
Property Law Public Law Administrative Law Riparian Rights Navigation Rights Statutory Interpretation Mooring Rights Costs Orders

Case Brief

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Parties

Mr Nigel Moore

Appellant

British Waterways Board

Respondent

Procedural Posture

Appeal (civil) / Permission to Appeal and Substantive Appeal Against Preliminary Issue Ruling and Costs Order

Legal Issues

  1. 1 Whether rights concerning the waterway between Bax's Mill and the River Thames under the 1793 Act remain in force and unaffected by the Transport Act 1968
  2. 2 Whether the right to moor is ancillary to public or private navigation rights or riparian rights
  3. 3 Whether the British Waterways Board's statutory powers override or extinguish pre-existing rights

Ratio Decidendi

The Court of Appeal held that the preliminary issue regarding the continued existence and effect of rights under the 1793 Act should not have been determined in isolation and must be decided at trial with full evidence. The deputy judge's ruling on preliminary issue (i) was set aside. The court declined to rule substantively on the preservation or extinguishment of rights at this stage, finding it more appropriate for trial.

Court Disposition

Permission to appeal granted; appeal allowed to the extent of setting aside the ruling on preliminary issue (i); action to proceed to trial on all outstanding issues; costs order below varied.

Orders

  • Deputy judge's ruling on preliminary issue (i) set aside
  • No order as to costs for the appeal and permission application