High Court Judgment
On 15 January 2020 we received the disappointing news that our High Court claim was unsuccessful. We were nevertheless encouraged by elements of the written judgment and intend to appeal. A copy of the judgment can be downloaded here.
The judge agreed with us that CYBC is obliged to charge market rate annual mooring fees (see paras 49 and 57). The judge agreed with us that charging an additional premium for a licence may suppress the market rate of the mooring fee (para 56) and the judge agreed with us that if CYBC does not charge market rate annual mooring fees that may be a breach of the River Works Licence (para 56).
However, the judge decided that security of tenure is different to a mooring licence and that CYBC has been selling security of tenure and not the capitalisation of a payment that would otherwise be made as an annual mooring fee (para 56).
It is this line of reasoning that boatowners will appeal to the Court of Appeal. The argument is straightforward; as the amount paid by one mechanism goes up the payment by the other mechanism must necessarily go down. So if a berth at CYBC is worth, say, 20k a year then as the amount paid by boatowners for a licence goes up the amount they pay as mooring fees will go down. CYBC’s own evidence from its director Andrew Moffat confirms this is correct so boatowners are optimistic on appeal.
Andrew Moffat admitted that boatowners who have paid a premium to CYBC for a licence pay £98/ft/yr less for their mooring fees. This is so that those who have bought a licence are not paying more than those who have not (para 28 of the judgment). That seems to us to prove that the market rate for mooring fees is suppressed by the fact that boatowners have to pay CYBC an additional sum for a licence on top of mooring fees.
Why do CYBC structure the payments in this way? Probably because the PLA is entitled to 20% of all mooring fees received. CYBC has not been paying the PLA 20% of the licence premiums.
The judge also decided that the PLA is not obliged to obtain best consideration for the River Works Licences that it sells to commercial companies to operate moorings on the tidal Thames. That may strike the public as surprising and a little worrying; they don’t put opportunites out to tender so how does the public know that we are getting value for money?