Broads Authority v Fry [2014] EWHC 4139 (Admin)

Case No CO/3510/2015[2015] EWHC 4139 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 5th November 2015
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
MR JUSTICE MITTING
Between
BROADS AUTHORITYClaimantv
Between
FRYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limited Trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R McCracken QC (instructed by NP Law) appeared for ClaimantThe Defendant appeared in Person for in person
J U D G M E N T (As Approved by the Court)

LORD JUSTICE BEATSON:

[1]This is an appeal by way of case stated by the Broads Authority, the regulatory authority for the Norfolk and Suffolk Broads, hereafter "the Broads". It concerns the effect of changes in the statutory regime as a result of the Broads Authority Act 2009 ("the 2009 Act").[2]The particular issue concerns the liability of the owner of a vessel to pay tolls to the Broads Authority in respect of a vessel moored outside the navigation area of the Broads. The vessel is moored at a private mooring on waters which qualify as "adjacent waters" because a vessel may be navigated into the navigation area from it.[3]At some stage in 2014, or possibly the beginning of 2015, the Broads Authority instituted proceedings against Alan Fry, the respondent. It charged him with an offence of causing his Dutch barge "Adjo", to be moored in "adjacent waters" under the Norfolk and Suffolk Broads Act 1988 as amended by the 2009 Act, without having paid the appropriate toll. This, it maintained, was contrary to bylaw 19(1) of the Broads Authority Vessel Registration Bylaws 1997 ("the 1997 Bylaws").[4]The barge was registered as an un-powered houseboat and did not use the navigation area of the Broads. It has been moored at the Waveney River Centre on the Broads. It is common ground it is moored in adjacent waters under the 1988 Act as amended.[5]The respondent pays council tax to South Norfolk District Council in respect of the barge. I will refer later in this judgment to proceedings instituted by the Authority against him in 2012.[6]The present case came before the Lowestoft Magistrates' Court on 23 February 2015. The magistrates convicted the respondent. They fined him £200 and ordered him to pay the outstanding sum of £552.08, costs of £1,000, and a victim surcharge of £20. He appealed against his conviction to the Crown Court.[7]In a decision on 15 May 2015 the Crown Court at Ipswich, consisting of His Honour Judge Holt and lay justices allowed his appeal and set aside his conviction. The Broads Authority appeals to this court from that decision. The Relevant Legislation[8]Prior to the enactment of the 2009 Act the Broads Authority only had power to raise revenue by way of tolls from those who moored, used or navigated "a vessel on waters within the navigation area". Paragraph 7(1) of Schedule 7 to the 2009 Act inserted new provisions for navigation charges into section 13 of the 1988 Act. The substituted section 13(1) provides that:
"The Authority may determine and recover tolls in respect of vessels moored, used or navigated on adjacent waters as well as in the navigation area."
[9]The WestLaw printout of section 13 in the bundle before us states that the version was in force from 1 June 2012. The "navigation area" is defined by section 8(1) of the 1988 Act as stretches of named rivers and tributaries, branches and embayments, which at the time the Act was passed were "in use for navigation by virtue of any public right of navigation", the banks or the waterways which make up those stretches, and Haddiscoe Newcut and its banks. Section 2(2) of the 2009 Act defines "adjacent waters" as "any broad, dyke, marina or other substantially enclosed waters connected to the navigation area and from which a vessel may be navigated ... into the navigation area but ..." subject to specified exclusions which are not relevant to this appeal.[10]Paragraph 9(1) of Schedule 7 to the 2009 Act inserted a definition of "toll" into section 25(1) of the 1988 Act. This provides: "'toll' means a charge levied by the Authority under section 26 of the Harbours Act 1964 (and includes any charge made in the discharge of the Authority’s functions under Part II of this Act and any charge levied in respect of a vessel moored, used or navigated on any adjacent waters)...”[11]Paragraph 8 of Schedule 7 amends section 17 of the 1988 Act. Significantly for present purposes, it defines "navigation income" as including any income made "under section 26 of the Harbours Act 1964 (including tolls in respect of adjacent waters)" It defines "navigation expenditure" as "expenditure incurred in relation to adjacent waters under section 10(2A) of the 2009 Act".[12]Paragraph 8(10) provides:
"The Authority may apply navigation income for the purposes of carrying out to adjacent waters works of maintenance or improvement which are intended to facilitate the use of those waters for the purposes of navigation by persons other than the occupier of, or the owner of any interest in, the land upon which the waters are situated."
[13]It is convenient at this stage to interpose into the summary of the provisions of the 1988 Act as amended by the 2009 Act the provision of the Harbours Act to which reference is made in schedule to the 2009 Act. Section 26 is headed "Harbour charges".[14]Section 26(1) provides:
"Subject to the following provisions of this Act, any statutory provision made with respect to a particular harbour authority shall cease to have effect in so far as (otherwise than by way of expressly providing for freedom from dues or in any other manner prohibiting the levying of a due) it limits the discretion of the authority as to the ship, passenger and goods dues chargeable by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing (whether by specifying, or providing for specifying, the dues to be levied, or fixing or providing for fixing, dues, or otherwise)."
[15]Section 27 of the Harbours Act 1964 provides that certain charges of certain Harbour authorities shall be reasonable. The material part of subsection (1) provides:
"In place of any limitation imposed, by a statutory provision made with respect to them in particular, on the discretion of a harbour authority as to charges ... that may be made by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing ... there shall, by virtue of this subsection, be imposed the limitation that the charges shall be such as may be reasonable."
[16]I return to the 2009 Act. Section 11(2) of that Act provides:
"The Authority may make byelaws for the purpose of providing for the registration of vessels in the navigation area or on adjacent waters, and for the determination and recovery of tolls in respect of vessels moored, used or navigated in the navigation area or on adjacent waters."
[17]The 1997 bylaws which referred only to tolls for mooring using or navigating a vessel on waters within the navigation area have not been amended. Section 11(14) of the 2009 Act however, provides that, other than bylaws 23 and 28, the 1997 bylaws shall be deemed to have been made under this section and shall have effect as though the references in those bylaws to the navigation area included adjacent waters.[18]The fact that the changes to the legislation and the bylaws were made in this way is not conducive to clarity. There is a particular difficulty for those who are not qualified lawyers or familiar with the structure of our body of legislation commonly called the "statute book" to navigate their way through the incorporation of textual changes by reference. Things are not helped by the fact that the official government website, Legislation.gov.uk, does not yet contain a version of the 1988 Act incorporating the changes made by the 2009 Act, which if the WestLaw printout is correct, came into force on 1st June 2012. The fact that immediately above each section on the statute law database there is a statement that there are outstanding changes to the Act not yet made by the editorial team together with the reference to outstanding changes (in this case made by Schedule 7) is of course of considerable assistance. But the persistent searcher is still required to ascertain the current state of the legislation from two or more texts.[19]In these circumstances, it is surprising that the Broads Authority have not updated the bylaws to reflect the current position. They have power to do so. It may be that they have not done so because they respect Parliament's decision to provide for automatic amendment in the form given by section 11(14). The result, however, is a certain complexity and lack of transparency, which does not flow from the decisions made by those framing the primary legislation.[20]I turn to the primary facts, which are not disputed. Paragraph 5 of the Case Stated records them as follows:
"Mr Fry owns a vessel in a private marina in what are adjacent waters under the Norfolk and Suffolk Broads Act 1988 ("the 1988 Act"). His vessel has no engine. He does not take his vessel out of the marina into the navigation area of the Broads. The Broads Authority have exercised a power granted by the 1988 Act as amended. By the Broads Authority Act 2009 Schedule 7(7) to levy a toll on vessels moored in such adjacent waters. The outstanding toll at the time of his conviction by the Magistrates' Court in respect of Mr Fry's vessel was £552.08 pence. Mr Fry refused to pay it. The Broads Authority provide services which include ranger services, dredging, regulation of water quality and vessel safety and insurance. Mr Fry does not personally derive any benefit from such services. Mr Fry pays council tax in respect of his vessel. The Broads Authority has chosen not to make a charge for the registration."
[21]I have referred to the proceedings instituted by the Broads Authority against the respondent in 2012. The summary of the Broads Authority's arguments in paragraph 6 of the case refers to the previous consideration of the lawfulness of tolls imposed on the respondent by the Administrative Court in judicial review proceedings, brought by the respondent on 18th September 2012. Those proceedings concerned his convictions on the 29th March 2012 at Northeast Suffolk Magistrates' Court for breach of bylaw 19(1) as result of failure to pay the toll for the material period and for breach of bylaw 5(1) for failing to register and not having a valid registration certificate.[22]I observe that if the amendments to the 1988 Act made as a result of the 2009 Act only came into force on 1st June 2012 as the WestLaw printout states, there is a query as to how the North East Suffolk Magistrates' Court could have convicted Mr Fry of failure to pay the toll while moored in adjacent water on 29th March 2012. It may be that there is an easy explanation for this, but it was not available to this court. As it does not affect the outcome of this appeal there is no need to say any more. At any rate, in those previous proceedings permission to apply for judicial review was refused on the papers and then refused after an oral hearing by Mr Elvin QC, a Deputy Judge - see [2015] EWHC 4849 (Admin). The Deputy Judge commented on the cogency of Mr Fry's case as to the expectations of those who are simply moored on adjacent waters and do not use those waters or the navigation area as a result of having to pay a toll which may be applied towards navigation purposes. But he concluded that notwithstanding that cogency, in the light of the legislative provisions it was not arguable that the Broads Authority did not have power to levy the charge, whether or not those moored wished to use the navigation area of the Broads. I add that presumably this was so whether or not their vessels were capable of using that area.[23]In the present case, after setting out the relevant provisions of the legislation the Crown Court stated:
"It is trite law that the Broads Authority can only levy charges which are lawful. It is not empowered to levy a rate." "
We looked at judicial aside in Forth Conservancy Board v IRC [1931] AC 540 which while not formerly binding seems to us to represent sound statements of law." "We were of the view that the Broads Authority was not empowered to make a profit from levy of charges. We have viewed this charge as unlawful profit making. We consider the as Mr Fry never took his vessel out of the marina he personally derived no benefit from the services which the Broads Authority provided with the money raised by the tolls. In those circumstances we do not consider that the authority could lawfully require him to pay the toll. The demand was unlawful and we are therefore allowed Mr Fry's appeal against conviction."[24]Although it is the Broads Authority's appeal it is convenient, first, to summarise Mr Fry's case. It is substantially the same case that he presented in the Crown Court. He repeated it today before us, moderately but leaving us in no doubt as to the strength of his feeling of injustice for having to, as he put it, pay £560 for nothing when he also paid £5,000 for mooring and council tax.[25]His case is that the Crown Court was correct to conclude that because he gets no benefit from the service that the Broads Authority provides he could not lawfully be required to pay what is in fact a tax or a rate and not a toll. The bylaws refer to two sorts of charge, a registration fee and a toll. Mr Fry submitted that the toll was defined as a harbour charge but since it is clear that the Broads Authority is not a Harbour Authority within adjacent waters (see section 2(3) of the 2009 Act) there was no authority to levy it on him.[26]The Crown Court was, he submitted, correct to refer to Forth Conservancy Board v IRC as it provided useful assistance as to the principles, although the case was not binding. He did not use the navigation area and the Authority had chosen not to charge for registering a vessel. Mr Fry submitted that they are in fact demanding a navigation toll although classifying his vessel as an un-powered houseboat not using the navigation area. In fact the vessel is prohibited from using the navigation area.[27]The second limb of Mr Fry's case, primarily developed in his skeleton argument, is that bylaw 19 is invalid as uncertain because it provides that the appropriate toll must be paid to the Authority but the bylaws do not contain a schedule of appropriate tolls confirmed by the Department for Transport." He additionally contended that in so far as bylaw 19 purports to apply to adjacent waters not owned by the Authority, it is inconsistent with section 6(2) of the 1988 Act. That provides in section 6(2)(a) that bylaws may only be made in respect of land within the Broads of which the Authority is the owner or occupier. His argument encompassed the proposition that this toll is not authorised by section 6(2). This is because section 6(2)(b) and 6(2)(c) authorise bylaws in respect of land to which the general public have a right to access or which is commonly used by the general public but neither apply to the Waveney River Centre which is a private marina.[28]That part of his submissions appears to overlook the provisions of section 11(2) of the 1988 Act as amended by the 2009 Act because that provision expressly authorises bylaws for the determination and recovery of tolls in respect of vessels moored in adjacent waters.[29]Mr McCracken QC, on behalf of the Broads Authority, submitted that it is clear from the 1988 Act, as amended by the 2009 Act, that there is power to determine and recover tolls in respect of vessels moored on adjacent waters - see sections 13(1) and 25(1). The authority to levy tolls in respect of vessels moored or navigated on any adjacent waters showed that Parliament did not intend charging to be limited to vessels which navigate in adjacent waters or in the main water areas of the Authority. To read the statute in the way that the respondent submitted it should be read would have been to require the creation of a system which would be very expensive to administer and enforce. This is because to establish liability to pay a charge or to rebut a defence raised by the vessel owner it would be necessary for the Broads Authority to prove that the vessel owner individually derived a personal benefit from the Authority's performance of its functions.[30]As to the submission that bylaw 19 is invalid and that the charge levied is not reasonable, Mr McCracken relied on the height of the burden required to establish that a bylaw is unreasonable - see the well-known statement of Lord Russell CJ in Kruse v Johnson [1898] 2 QB 91 at 98, and Staden v Tarjanyi [1980] 78 LGR 614 at 619 and 620.[31]During the course of the submissions my Lord, Mitting J, raised the question of section 27 of the Harbours Act which I have set out in part above. He asked whether, although this does not appear from the case to have been considered below, section 27 does require that charges levied be reasonable and that one of the factors that would go into the determination of whether a charge was reasonable is whether the person paying for it derives any benefit from it.[32]Mr McCracken suggested that, because the definition section in the 2009 Act (see section 2(1)), provided the meanings set out were to apply the "unless the context otherwise requires" and because it is clear that in adjacent waters the Authority is not a Harbour Authority, notwithstanding the reference in the definition of "toll" to a charge levied by the Authority under section 26 of the Harbours Act 1964 and to "any charge levied in respect of a vessel moored, used or navigated in any adjacent waters", the limitation in section 27 would not apply. It is fair to say that the point was not developed or explored.[33]It would, as my Lord cogently observed, have been very odd for Parliament to have provided that within the navigation area the power to impose charges has to be reasonable but that outside the navigation area, where the Authority is not acting as a Harbour Authority, it is subject to no constraint. Such an interpretation would add to the respondent's complaint that he is being made to pay for no service, and that Parliament had chosen to allow the Authority to impose whatever charges it deemed appropriate, subject only to perversity and Wednesbury unreasonableness in respect of vessels moored, used or navigated on adjacent waters. I do not consider that could have been the intention of Parliament when it amended the 1988 Act, with consequential amendments to the scope of the power of the Authority to make charges. As I have said, however, that issue was not before the Crown Court.[34]I turn to the matter that was before the Crown Court. I have concluded that the result of the 2009 Act is that Parliament has expressly provided that the Authority has the power to levy tolls in respect of vessels moored in adjacent waters. The words of section 13(1) of the 1988 Act as amended could not be clearer. I do not consider that the words of the statute can be "read down" to provide that tolls are only authorised where the vessel's owner can be shown to have received a personal benefit from the performance of Authority's duties. It is true that statutes imposing liabilities to pay public authorities are to be construed strictly - see the presumptions against implicit authorisation of taxation-but the words here are clear. There would be no point in section 13 if it only applied to vessels which used or are moored in the navigation area because the unamended 1988 Act made provision for tolls on such vessels.[35]In my judgment the Crown Court fell into error in the way that it used the decision in Forth Conservancy Board v IRC. That case concerned whether the conservators of the Firth of Forth were liable to income tax on revenue raised from dues levied on vessels, which revenue had to be applied to preserve and improve the appropriate part of the Firth of Forth. As a result of previous authority, the House of Lords felt constrained to hold that the conservators were liable to pay tax on the dues. A distinction was drawn between the position of rate payers and those who paid dues such as those in that case because - see for example Viscount Dunedin at 548 and 549 and Lord Macmillan at 546 - rate payers get some direct benefit from sums paid to the Local Authority.[36]The language of the decision provides some assistance as to the merits of the case argued by the respondent. But the decision does not establish a principle which limits the power of Parliament to authorise a body such as the Broads Authority to raise revenue by imposing charges on moored vessels which do not use the navigation area for which the Broads Authority is responsible. In this case, Parliament has done so expressly in the amendments to section 13 of the 1988 Act inserted as a result of Schedule 7 to the 2009 Act.[37]I turn to Mr Fry's submissions on uncertainty and unreasonableness. There was no material before the Crown Court and there is no material before this court to show that the charge is discriminatory. It appears from what Mr Fry has said that the charge for a houseboat is half the charge levied for a power boat. So some distinction is made between different kinds of vessels.[38]As to uncertainty, it is common ground that the tolls are published on the Broad Authority's website. In any event the cases relied upon by Mr McCracken show that the hurdle that must be overcome in order to establish a bylaw is uncertain is very high. At common law a person who submits that secondary legislation such as the bylaws in this case is invalid because of uncertainty has to show that the provision is so uncertain as to have either no ascertainable meaning or is so unclear in its effect as to be incapable of application in any case see the decision of the Court of Appeal in Percy v Hall [1997] QB 924. There must, in the words of Simon Brown LJ in that case: at 941 and 942, be "no lawful touchstone of liability whatever". Simon Brown LJ, who gave the leading judgment, discussed two approaches in earlier cases to determine whether a bylaw is sufficiently uncertain to render it invalid. The first is that in Kruse v Johnson, on which Mr McCracken relied. The second is that in Fawcett Properties v Buckingham County Council [1961] AC 636. The approach in Kruse v Johnson focused on the bylaw needing to contain adequate information as to the duties of those who were to obey, and it must be reasonable. The approach in Fawcett's case was that a bylaw was only invalid if it could be given no meaning or no ascertainable meaning. In Percy v Hall the Court of Appeal chose and applied the Fawcett test. Simon Brown LJ stated it was better to treat an instrument as valid, unless it was so uncertain in its language to have no ascertainable meaning or so unclear that its effect was incapable of certain application in any case.[39]That case concerned whether bylaws protecting areas of military land, identified by a thick black line on a small scale plan annexed to a bylaw identified the protected areas with sufficient certainty. Simon Brown LJ stated at 938:
"There will always be literally a border of uncertainty. That should not, in my judgment, invalidate the bylaws and make them void or unenforceable even against those who deliberately flagrantly trespass within the very centre of the protected areas."
He explained Staden v Tarjanyi, on which the respondent relied, as a case about a bylaw prohibiting hang-gliding over a particular pleasure ground in circumstances in which another court had previously held it was lawful to fly at such a height and that nobody could possibly be inconvenienced. Simon Brown LJ considered that it was in those circumstances that the court held that the bylaw was invalid. In his words that was because there was no lawful touchstone of liability in the prohibition. He, however, also stated that had the criterion been one of nuisance or annoyance, although there would be uncertainty in its application, the court would have found it acceptable.[40]In the present case the complaint is that bylaw 19 is invalid as is not certain and positive in its terms. It is common ground that the tolls are set by the Authority's Committee annually and that they are posted on the Authority's website. In my judgment, the bylaw and the subsequent promulgation of the tolls satisfy both the Fawcett and the Kruse v Johnson tests. Therefore the submission that the bylaws are invalid for uncertainty is not made out.[41]As to the submission that the charge was not reasonable because it has been ruled to be unlawful by the Crown Court, it is the function of this court to consider whether the finding of the Crown Court contained an error of law. As Mr McCracken submitted, the correctness of the ruling of the Crown Court cannot be assumed for the purpose of determining an appeal against that ruling. It follows from what I have said in relation to the approach of the Crown Court that, if my Lord agrees, this appeal should be allowed. In my judgment, the appropriate disposition is to remit the matter to the Crown Court for reconsideration in the light of this judgment. In view of the judge's retirement this will have to be a differently constituted bench. Such reconsideration should include consideration of the matters that do not seem, as far as I can tell from the case stated, to have been before the court, that is the implications for this case of section 27 of the Harbours Act.[42]MR JUSTICE MITTING: I agree. I respectfully and gratefully adopt my Lord's analysis of the statutory material subject to the qualification which I will explain in a moment.[43]I add my own words only because I wish to explain why Parliament must be taken to have limited tolls imposed on those who moor boats in adjacent waters to such charges as may be reasonable.[44]The starting point is that the Broads are "a harbour" This may come as a surprise to many people, as it did to me. Mr McCracken, on behalf of the Authority, submits that the Broads are a harbour because of the definition in section 1 of the Pilotage Act 1987 which provides:
"Meaning of 'competent harbour authority' and 'harbour' (1)Subject to the following provisions of this section, in this Act 'competent harbour authority' means any harbour authority— (a)which has statutory powers in relation to the regulation of shipping movements and the safety of navigation within its harbour; and (b)whose harbour falls wholly or partly within an active former pilotage district; and references to a harbour authority’s harbour are to the area or areas inside the limits of which its statutory powers and duties as a harbour authority are exercisable ..."
There is no further definition of "harbour". Thus, as will be apparent from the words that I have cited, the definition of "harbour" is circular. It is the "harbour" within which the Authority's functions are exercised.[45]Given that the 1988 Act as amended by the 2009 Act makes express reference to section 26 of the Harbours Act 1964, I believe it is to that statute that one should refer to define what is meant by "harbour". There is a clear definition in section 57(1):
"'harbour', except where used with reference to a local lighthouse authority, means any harbour, whether natural or artificial, and any port, haven, estuary, tidal or other river or inland waterway navigated by sea-going ships ..."
The Broads qualifies under that definition as an inland water navigated by sea-going ships, even though most of its traffic will be vessels that are not sea going.[46]Section 13(1) 1988 Act has since 1st June 2012 read as follows:
"The Authority may determine and recover tolls in respect of vessels moored, used or navigated on adjacent waters as well as in the navigation area." "
Toll" is exclusively defined in section 2(1) of the 2009 Act:
"'toll' means a charge levied by the Authority under section 26 of the Harbours Act 1964 (c. 4) and includes any charge levied in respect of a vessel moored, used or navigated on any adjacent waters."
[47]That definition, in my judgment, means that the toll must be a levied charge levied by the Authority as Harbour Authority under the 1964 Act and includes a charge levied in respect of a vessel moored on any adjacent waters. The use of the word "includes" suggests that the definition in section 26 is not to be extended.[48]Section 26 of the 1964 Act unhelpfully does not expressly authorise the levying of a toll. What it does is to remove limitations in earlier enactments upon what may be imposed by way of a toll and to do so expressly by reference to three categories of toll:
"the ship, passenger and goods dues chargeable by them at a harbour."
[49]I draw attention to those words because they feature in section 27. Section 27 provides as follows:
"(1) In place of any limitation imposed, by a statutory provision made with respect to them in particular, on the discretion of a harbour authority as to charges (of any kind other than excepted charges) that may be made ... 112 by them at a harbour which, in the exercise and performance of statutory powers and duties, they are engaged in improving, maintaining or managing ... there shall, by virtue of this subsection, be imposed the limitation that the charges shall be such as may be reasonable."
Subsection (2) provides that amongst other categories of "excepted charges" there shall be "ship, passenger and goods dues." Accordingly, section 26, which removes the limitation on ship passenger and goods dues contained in earlier enactments, deals only by implication with charges that are not "ship, passenger and goods dues". A separate method of challenging ship, passenger and goods dues is provided in section 31 of the 1964 Act.[50]The charges levied on a vessel moored in any adjacent waters are clearly not "ship, passenger and goods dues" and so are not expressly covered by the lifting of prior statutory limitations on what might be imposed. The charges therefore clearly fall within section 27 of the 1964 Act as charges other than excepted charges. Parliament has therefore imposed a limitation on charges imposed on vessels moored in any adjacent waters that they must be such as may be reasonable.[51]I share my Lord's concern that the route to interpreting these statutory provisions and these bylaws should be so complex and obscure, but I believe that that is the explanation of them.[52]For that reason, I would, like my Lord, quash the decision of the Crown Court and direct that the matter be remitted to the Crown Court to determine afresh on the basis no doubt of evidence from both sides as to whether or not the charges levied in respect of Mr Fry's vessel are reasonable.[53]MR McCRACKEN: My Lords, I think that the order is therefore fairly clear, subject to one matter which is that of costs. As my client is a Public Authority I am bound to put before the court the schedule of costs that was circulated a couple of days ago. I should indicate --

LORD JUSTICE BEATSON: Circulated but did not reach me any way.

[55]MR McCRACKEN: If I can ask the court usher to hand up two copies.

LORD JUSTICE BEATSON: My Lord had it, I had not.

[57]MR McCRACKEN: Your Lordship will see that the amount that is claimed, I say by way of lighter side, rather than for any other reason, is something like I think a seventh of the estimate of costs of Mr Fry who, amongst other things ... One simply notes that his estimate of costs was about £70,000. I placed that schedule of our costs before the court because the Broads Authority is a Public Authority. I am very conscious that Mr Fry has, in a sense, been round the houses over this point of principle and the matter is not even now finally resolved.

LORD JUSTICE BEATSON: And this is going to be everybody's interest including the Authority's to sort it out.

[59]MR McCRACKEN: Absolutely. I am also very conscious that the reason we have had to come here is not in a sense Mr Fry's fault. I mean it is nobody's fault but it was the decision of the Crown Court. I feel I ought to --

LORD JUSTICE BEATSON: I think we understand the position. (The Bench Conferred)

LORD JUSTICE BEATSON: Thank you for your submissions as to costs. We are going to make no order as to costs.

[62]MR McCRACKEN: I am much obliged my Lord.