People live in boats. In some cities, such as Cambridge and London, living in a houseboat may be an affordable way somewhere where house prices would otherwise make that impossible. On so slender thread as that we at nearly legal have reported a number of houseboat cases, even though the points in issue might seem to have more of a nautical than housing flavour.
Moore v British Waterways Board  EWCA Civ 73 certainly falls into that category, but it may raise a much more fundamental issue: what does “without lawful authority” mean?
Mr Moore “had care of” a number of houseboats, all occupied as homes, that were permanently moored on the banks of a tidal part of the Grand Union Canal. He lived in one, the Gilgie. The British Waterways Board (BWB), now the “Canal & River Trust”, wanted to stop him doing so.
BWB’s plan was to use section 8 of the British Waterways Act 1983 (a local act, 1983 c.ii, available as a PDF from the statute law database). This permitted (among other things) BWB to remove craft which were moored “without lawful authority”. BWB said that Mr Moore had no lawful authority.
Both parties agreed that Mr Moore could exercise the rights of the riparian owner (i.e. the person who owned the river bank). The actual ownership of this stretch of river is complex. For a detailed discussion see Geronimo v Brentford Yacht and Boat Company  EWHC 3140 (Ch) in which Mr Moore (then living on Platypus as far as I can tell) was also involved.
Mr Moore’s straightforward claim was therefore that, as riparian owner, he had a right to moor his boat by the river bank. That right was firmly rejected by the Court of Appeal in a thorough analysis of the law by Lewison LJ. Although there was a public right of navigation over the Canal at that point, Mr Moore did not rely on that as giving him a right to moor. Not only was that point rejected in Moore v British Waterways Board  EWCA Civ 42 (a rather odd appeal) but as he explained to us in a comment on Port of London Authority v Ashmore  EWCA Civ 30 (an even odder appeal about a houseboat) he never contended for such a right.
This is where the appeal becomes very interesting. Lord Justice Mummery thought that in deciding whether the boat was moored “without lawful authority” the first instance judge should have asked whether Mr Moore was committing an actionable wrong in doing so, not whether he could point to a positive right. He cited Sir Robert Megarry V.-C in Metropolitan Police Commissioner  1 Ch 344 at 357C:
England, it may be said, is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden.
Mummery LJ reasoned as follows:
Although the common law does not recognise a positive riparian right to moor alongside the bank permanently, the absence of that right does not necessarily connote the commission of a wrong and the presence of an unlawful mooring. If what the claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it, he was not doing it “without lawful authority” within s.8, because the law allows him to do what it did not prohibit at common law or by statute.
This is a highly significant decision. If it is followed it will have far-reaching consequences, the phrase “without lawful authority” being used in thousands of statutes. Although the obscure subject matter may mean little notice is taken of it.
I do wonder whether it is right. If the answer to “does X have lawful authority” is “yes” then one is surely entitled to ask “what lawful authority does X have?”. The answer “X does not need lawful authority because England is a free country” does not seem, to me, to be a proper answer. Not needing lawful authority is surely distinct from having lawful authority. But if X cannot be said to have lawful authority, surely X is “without lawful authority”?
I confess that time constraints have prevented me from searching the case law to see if there are other decisions on this point. I would be interested what NL readers might have to offer.
Another impressive feature of the Court of Appeal’s decision is its strong defence of oral advocacy. I cannot put it better than Mummery LJ:
Doubts are sometimes expressed about how often oral advocacy affects the actual outcome of appeals. Judicial experience affirms the value of oral hearings of appeals. Sometimes there are dazzling, even terrifying, displays of advocacy, but more often the hearing is a down-to-earth exercise in pro-active judicial engagement with the case: talking through unfamiliar, confusing or difficult factual and legal aspects; disentangling what matters from what does not matter; bringing order and understanding to the discussion of what matters by judicial thinking aloud to test legal propositions and to double-check facts; and ensuring as far as possible that, in conjunction with the pre-reading of the papers, the court has a good grasp of what the parties are getting at.
Quite so. Oral hearings can be essential. One of the first appeals I conducted as an advocate had been rejected twice on the papers (a curious feature of the particular forum was that one could remake paper applications indefinitely) but at the oral hearing the judge could not see anything in my opponent’s arguments. What seemed unlikely on paper was treated as being obviously so in the oral hearing.
For this reason it really is important, especially with litigants in person, to allow oral advocacy and in particular to permit the court to extract from the litigant what exactly is their case.