Charles Boyd v Burton Waters Moorings Ltd

Hearing dates: 14 and 15 December 2023

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30 am on 29 ^th January 2024 by circulation by email to the parties or their legal representatives and by release to the National Archives.

I. The Appeal

By Appellant's Notice dated 8 December 2022 the Appellants, Mr and Mrs Boyd, Mr and Mrs Casey and Mr and Mrs Connell, applied for permission to appeal against the Order dated 10 November 2022 (the “ Order”) made by Her Honour Judge Rosalind Coe KC (the “ Judge”) giving judgment for £1,441.31 (inclusive of interest) against each couple and directions for the resolution of a number of costs issues. The Judge gave these money judgments after a trial which took place on 7 to 9 March 2022 and on 6 June 2022 she handed down a reserved judgment (the “ Judgment”). Where I refer to paragraphs below in square brackets, I intend to refer to paragraphs in the Judgment (unless otherwise stated or coupled with a citation from authority).

In the Grounds of Appeal dated 7 December 2022 which were filed with the Appellant's Notice the Appellants advanced two grounds of appeal. The first ground (“ Ground 1”) was that the Judge had erred in law in concluding that a standard form mooring licence was not part of a single, composite contract or transaction for the purposes of Directive 93/13 (the “ Directive”) and the Unfair Terms in Consumer Regulations 1999 (the “ Regulations”) and that its core terms were the provision of a mooring and the payment of a licence fee. The Appellants contend that she ought to have found that the mooring licence and the residential leases granted to each couple were part of a single contract or that the mooring licence was dependent on each lease and, therefore, that the terms of the licence (and, in particular, the obligation to pay a licence fee) were not core terms of the contract. The Appellants' second ground (“ Ground 2”) was that the Judge erred as a matter of law in concluding that the mooring licence was not unfair within the meaning of the Regulations and that she should have found that the terms of the licence were unfair.

By Respondent's Notice dated 28 July 2023 the Respondent, Burton Waters Moorings Ltd (“ Moorings”), applied to uphold the Order on eight different or additional grounds. Mr Michael Booth KC, who appeared for Moorings with Mr Jeff Hardman, submitted that the additional grounds set out in the Respondent's Notice were implicit in the Judge's reasoning either as a matter of analysis or because the relevant evidence was never challenged and Moorings relied on the additional grounds in the Respondent's Notice without prejudice to that contention. Mr Booth also submitted that it was unnecessary for Moorings to apply for an extension of time to file or serve the Respondent's Notice because it had not been served for the purposes of CPR Part 52.13(5). However, he also submitted that if it was necessary to do so, Moorings applied for an extension of time on the basis that the Appellants had suffered no prejudice.

II. The Proceedings Below

A. The Development

(1) The Section 106 Agreement

The Burton Waters Estate (“ Burton Waters”) is a 140 acre commercial and residential development constructed around a marina basin. It includes 361 residential dwellings, moorings for residents and third parties, a marina, a shop parade, a health club, three restaurants and a pub. By a section 106 agreement dated 12 January 1999 and made between the local planning authority, West Lindsey District Council (the “ Council”), and Eastman Securities Ltd (“ Eastman”), the Council agreed to grant planning permission for the development of Burton Waters and Eastman undertook to carry out the relevant works including the necessary engineering works to connect the marina basin to the Fossdyke Navigation Canal (the “ Canal”).

(2) The CRT Licence

By a licence dated 20 June 2000 and made between the Canal and River Trust (formerly the British Waterways Board) (the “ Trust”) and Eastman (the “ CRT Licence”), the Trust granted a licence to construct retain maintain and use the connection between the Canal itself and the canal basin (defined as the “ Basin”) shown on plan LP/BW/01 (the “ Plan”) for a period of 60 years. The CRT Licence also defined the “ Marina” as “the Basin and land used and occupied with it including the Residential Unit Moorings shown on the Plan edged purple”.

The Plan itself provided me with the clearest layout of the Basin and Burton Waters as a whole and it showed that the eastern half of the Marina was split into four spurs or inlets around which residential units were to be built. The residential half of the Marina was coloured blue and edged in purple. The Plan did not identify individual moorings as such but the CRT Licence defined the term “Residential Unit Moorings” as the “Moorings in that part of the Basin shown coloured blue on the Plan”. The Plan also showed the western half of the Basin coloured orange and the CRT Licence defined the term “Commercial Marina Moorings” as “the moorings in that part of the Basin shown coloured orange on the Plan”. The Plan suggests that the commercial part of the Basin and the residential part of the Basin are roughly the same size.

Clause 3 and Schedule 1 to the CRT Licence provided for the payment of separate licence fees for the commercial and residential elements of the licence. Schedule 1, Part 1 provided for the payment of £2,500 for the first year and thereafter a fee calculated by reference to 18.75% of the lowest charging rate per metre of the gross mooring capacity of the Commercial Marina Moorings. It also provided for any additional sum due to the increase in the gross mooring capacity to be paid at the end of each year. Schedule 1, Part 2 provided for a single, capital payment for each Residential Unit Mooring rather than a recurring, annual fee. Each payment for a Residential Unit Mooring was also calculated by reference to 18.75% of the lowest charging rate per metre for a 10 metre mooring and capitalised at the agreed rate of 10 years purchase. I will refer to the licence fees payable under the CRT Licence as the “CRT Licence Fees”, the recurring fees payable for the Commercial Marina Moorings as the “ CRT Commercial Licence Fees” and the one off fees payable for the Residential Unit Moorings as the “ CRT Residential Licence Fees”.

(3) The Marina Lease

Ms Kerry Bretherton KC appeared for the Appellants both at trial and on the appeal. For the trial she prepared a useful schedule of the relevant titles headed “Defendant's Position Regarding the Title of the Land”. It showed that on 18 February 1992 and 1 March 1994 Eastman was registered as the freehold proprietor of land at Burton Fen under title no. LL53620 and title no. LL104074. It also showed that on 19 February 2014 Eastman was registered as the proprietor of additional land at Burton Fen under title no. LL208305. For the purposes of the appeal it was sufficient for me to focus on the register of title no. LL53620.

By a lease dated 18 January 2001 and made between Eastman (1) Burton Waters Management Ltd (“ Management”) (2) and five individuals who were then trading in partnership as Burton Water Moorings (the “ Partners”) Eastman granted a 999 year lease of the premises described in the First Schedule in consideration for the payment of a premium of £300,000. The First Schedule described the Premises as “the Marina Basin and Boat Yard” together with certain other rights shown edged red on the plan annexed to the Marina Lease.

By a deed of variation dated 12 June 2003 made between the same parties the Marina Lease was varied and by a deed of variation and surrender dated 30 September 2003 also made between the same parties the Marina Lease was varied again and part of the demised premises was surrendered. By a number of other leases dated 12 June 2003, January 2015 and 20 May 2015 the Marina was extended. I was not taken to the plans annexed to these deeds of variation but there was no dispute between the parties that the premises demised by the original lease dated 18 January 2001 (or as amended and extended) included the Basin and the Marina (as I have defined them above).

Moorings' solicitors, Schillings International LLP (“ Schillings”), helpfully produced a composite version of the Marina Lease which showed the amendments coloured red and green by reference to the deeds of variation and the dates on which the new terms were incorporated into the lease. Where I refer to the “ Marina Lease” below I intend to refer to this composite version (as varied and amended). Clause 1 of the Marina Lease contained the following definitions:

“(4) “the Premises” means the premises described in the First Schedule hereto and any part or parts thereof

(5) “the Development” means Burton Waters Lincoln being the land comprised in Title Numbers LL53620 and LL104074 and LL208305 and any part or parts thereof

(6) “the Other Premises” means all premises demised out of the Development and any part or parts thereof but does not include the Common Parts or any part or parts thereof

(7) “the Other Lessees” means the owners lessees...