Cambridge City Council v Traditional Cambridge Tours Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] EWHC 1304 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17X03911 |
| Date | 25 May 2018 |
[2018] EWHC 1304 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple DBE
Case No: HQ17X03911
&
Lisa Busch QC (instructed by William Rose, Sharpe Pritchard LLP) for the Claimant
Simon Butler (instructed by Direct Public Access) for the Respondents (1) to (4)
Hearing dates: 9 th/11 th May 2018
This is a case about punting on the River Cam. The Claimant is Cambridge City Council (the “Council”). The Council seeks an interim injunction against various named Defendants as well as persons unknown to prevent unauthorised commercial punt operations being undertaken from the Council's land. The First Defendant is a company which carries on commercial punt operations on the River Cam. Its punts currently depart from and return to a slipway on Garrett Hostel Lane. It has no authorisation or licence to conduct punt operations from that site or from any other land belonging to the Council, nor is it authorised by the Cam Conservators, the body with authority over the River Cam, to conduct its punt business on the river. The Second to Fourth Defendants are individuals and directors of the First Defendant. The Fifth to Eleventh Defendants are individuals who are alleged to have been involved in the First Defendant's punt operations. The Twelfth Defendant is “Persons Unknown”, to cater for the possibility that there are others involved or likely to become involved in the First Defendant's punt operations or other unauthorised commercial punt operations being conducted from the Council's land.
The Council was represented before me by Ms Lisa Busch QC. The First to Fourth Defendants were represented before me by Mr Simon Butler and Mr Jake Richards. The Fifth to Eleventh Defendants were unrepresented as was, obviously, the Twelfth Defendant. I am very grateful to all counsel involved in this case, and their legal teams, for their clear and thoughtful submissions.
In summary, the Council argues that the Defendants have trespassed by conducting unauthorised commercial punt operations on its land and they seek an interim injunction to prevent that trespass. The Defendants take various points, procedural and substantive, by way of resistance to the Council's application. The main thrust of the Defendants' case is that the Council is not entitled to an injunction at all, as a matter of law; but that in any event, the Court should not grant discretionary relief on an interim basis, in the circumstances of this case.
Procedural History
On 27 July 2017, the Council issued a Claim Form against the Defendants in the Chancery Division of the High Court. That Claim Form asserted the Council's title as freehold owner of various parcels of land within the city of Cambridge (later referred to as the “Claim Locations”). It asserted that the Defendants were persons who are and at all material times were persons who own, operate or are otherwise involved in unlicensed and unlawful punting activities on the River Cam involving trespass on the Council's land from the Claim Locations; the activities were undertaken without the Council's consent and were in breach of the byelaws of the Cam Conservators. The relief claimed in the Claim Form was an Order prohibiting the Defendants from operating punt tours or punt hire, mooring their boats or other vessels, embarking or disembarking passengers, and touting from the Council's land at any of the Claim Locations.
Particulars of Claim accompanied the Claim Form. Those Particulars asserted the Council's freehold ownership of the Claim Locations. The Claim Locations were listed as: Garrett Hostel Lane, Jesus Green, Thompson's Lane, Jubilee Gardens, Sheep's Green, Granta Mill Pond, Quayside and Silver Street (each parcel of land was described in accompanying witness evidence). The Particulars alleged trespass on the Claim Locations by the Defendants. That trespass took the form of activities being undertaken without the Council's consent, which activities amounted to criminal offences under the byelaws of the Conservators of the River Cam (“Conservators”). The Particulars described the efforts by the Council to stop the Defendants' activities, and asserted that the Defendants had “consistently and flagrantly defied the [Council's] attempt to prevent them from using its land without its consent to engage in their unlawful punting and touting operations” (see [8]). The Council relied on the conviction of the Second, Third and Fourth Defendants as well as other individuals for breach of the Conservators' byelaws, referring to a judgment of District Judge (Magistrates' Court) Kenneth Sheraton sitting in the Cambridge Magistrates' Court on 3 June 2015.
The claim was transferred from the Chancery to the Queen's Bench Division. On 7 February 2018, the First to Fourth Defendants entered their defence to the claim. The Second to Fourth Defendants denied any involvement in unauthorised punting activities ([6]); all Defendants denied trespass on the Council's land ([7]); they asserted a failure to comply with CPR 55.1(b) ([8]); they asserted a right of easement over the land through usage over a considerable period of time ([9]); they asserted that the Conservators were empowered to enforce breaches of the byelaws, not the Council, alternatively that the Court lacked jurisdiction because enforcement was for the Conservators ([10] and [11])); alternatively, the Court should not grant an injunction which would be more onerous than any penalty which might be imposed for breach of the byelaws as a matter of criminal law ([12]); the Defendants denied that they had been using the Claim Locations in the manner alleged and the Council was put to proof of its allegations ([13]); there was an alternative route open to the Council, namely to bring proceedings against a person for touting in a public space pursuant to s 59 of the Anti-social Behaviour, Crime and Policing Act 1984 ([14]). It was admitted that the Second, Third and Fourth Defendants had been convicted of offences under the Conservators' byelaws ([16]). The Council's claim for injunctive relief was denied ([17]).
On 22 February 2018, the Council issued an application for an interim injunction against the Defendants. That was accompanied by witness statements in support of the Council's case and a draft order (an amended draft was produced shortly before the hearing and I have worked from that later draft).
Laing J gave directions for the hearing of the Council's application and directed the matter to be listed for 2 days. The Defendants filed witness evidence in response to the Council's evidence. The Council filed evidence in response to that. Both parties filed skeleton arguments. And so it came before me.
Facts
Cam Conservators
The Conservators are the navigation authority for the stretch of the River Cam between the Mill Pool and Bottisham Lock. The Claim Locations are all adjacent to this stretch of river. Punts and other vessels cannot lawfully navigate that stretch of the river without being registered with the Conservators. On 29 April 2011, the Conservators decided that as of 1 April 2012, owners and operators of commercial punts would have to be able to satisfy two criteria in order to obtain registration: (a) that the punt to be used was operated from an officially recognised punt station; and (b) that the applicant for registration could demonstrate evidence that they had the permission of the landowner or occupier to use that operating station. They imposed these criteria under Byelaw 8.4 of the Byelaws of the Conservators of the River Cam, which Byelaws were made by the Conservators pursuant to their powers under the River Cam Conservancy Act 1922 (the “Byelaws”).
In 2015, the Conservators took enforcement action in the magistrates' court against five individuals, including the Second, Third and Fourth Defendants. The other named individuals were Samuel Matthews and Oliver Prevett. Those five individuals were prosecuted for breach of the Byelaws in failing to register their punts, and/or by failing to comply with the criteria for registration outlined above. In his detailed written judgment, DJ Sheraton recorded that:
“[7] It was not in dispute that at the relevant times and dates that the punts were indeed on the River Cam and that none were licensed save a punt called ‘Flip Flop’ but that only a private fee was paid for registration and not a commercial fee.
[8] It was further not in dispute that on the relevant dates the punts had been seen carrying passengers.
[9] A summary of the background to these allegations is that the defendants had all at times been involved with providing tours of Cambridge by means of chauffeured punting. All defendants with the exception of Mr Prevett set up a limited company called Traditional Cambridge Tours Ltd, (TCT) which was incorporated on 4 th July 2013. Mr Prevett joined the others as director on 3 rd April 2014.”
DJ Sheraton heard oral evidence from Dr Noon, then the River Manager for the Conservators, Mr Sugden (Fourth Defendant) and Mr Prevett. The five defendants to that enforcement action argued that the punts in question were being used in an individual, not a commercial, capacity. Of the Fourth Defendant's evidence, DJ Sheraton concluded this:
“[54] I found Mr Sugden to be evasive, hesitant and unclear in his evidence. There was no reason that I can accept as reasonable put forward why he applied to register Flip Flop in his own name making no reference to TCT. He could offer no credible...
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The Mayor and Burgesses of the London Borough of Richmond-Upon-Thames v Alistair Trotman
...with, or a prelude to, unlawful activity which falls under the jurisdiction of a different authority – see Cambridge City Council v Traditional Cambridge Tours Limited [2018] EWHC 1304 (QB) Whipple, J. (as she then was) at 26 There are dicta in caselaw which urge caution in connection with......