The case was originally heard by His Honour Judge Bowers in the Queen's Bench Division of the High Court of Justice of England and Wales.

On Saturday, 27 December, shortly after midnight, the claimant, John Donoghue, dived into the sea at Folkestone Harbour, Kent from a slipway.

It was originally the contention of the claimant that he had implicit permission to be on the premises, though he was later forced to concede that the duty, if any, was owed to him under the Occupiers' Liability Act 1984, which is concerned with persons other than visitors, (most commonly trespassers), predominantly because the defendant had no idea the claimant was on their premises, nor did they have any reason to suspect he may be.

[4] The harbour had been historically been used for swimming and diving, and so the claimant contested that the defendant should have offered some kind of protection to people doing so.

Unfortunately for the claimant, the court accepted the counter argument from the defendant that they could not reasonably have been expected to be aware of his presence on the premises as all previous events had taken place in the daytime in the summer, as opposed to a December night.