Spesh

I have the dubious pleasure of drafting contracts for a living, so should be able to shed some light on this. Essentially, those who have been raising points about penalties are correct - under English law penalty clauses are not enforceable. It's not the same as "illegality" (although as an aside a contract term requiring an illegal act is indeed not enforceable, so should you hire a hit man who takes the money but doesn't bump off your chosen victim, were you to be stupid enough to sue said hit man for breach of contract you'd both go to prison and fail to win the contract claim), in that you don't commit an offence by including such a term, it's just not treated by the law as being a binding promise. As another example, you can't exclude your liability under a contract for causing death or personal injury, any term attempting to do so would be ignored by a court. As for the specific term, the distinction which is relevant here is between what are known as "liquidated damages" and penalties. Liquidated damages are the parties agreeing upfront the compensation payable by a party if they breach a specific term of the contract. An agreed payment will be liquidated damages (so enforceable) if it is a genuine estimate of the loss suffered by the non-breaching party. If not, it will be a penalty and not enforceable. It's a bit legally (as it's a note from a law firm) but http://www.shoosmiths.co.uk/client-resources/Penalty-clauses-liquidated-damages-Traps-for-unwary-4897.aspx provides some more info. Agreements to pay interest are generally fine, because that's a decent approximation of the loss suffered when payment is delayed. Doubling the amount payable looks pretty questionable to me. I don't see how the marina operator's loss if payment was one day late could be anything like the entire value of the payment. There is also no link between the extra amount payable and how overdue payment is, which is something you'd expect were it to be a genuine estimate of the loss suffered. Absent any specific facts which would justify that charge I'd therefore view it as a penalty which wouldn't be enforceable.

An element of Bijou Line still exists, in that Bijou Line was owned by (or something like that) the same people as have Brookline at Dunhampstead near Worcester. I had a couple of family holidays from Bijou in the late 80s/early 90s (not entirely sure which, but think boats were "Mercury" and "Emerald", at least one of which had a GRP roof which came as a bit of a surprise the first time one of us jumped onto it!) and hired from Brookline a few years back. When picking up the boat at Brookline we spotted they had a note pad with the Bijou Line logo on it so asked what happened to Bijou, as far as I can recall (and my memory is a bit vague on this) they said something along the lines of the rent being vastly increased so they could no longer afford the base, presumably the landlord wanted them off so houses could be put up as you have seen.

This is just a semantics point on what is meant by "market" though. The market, i.e. people being able to get money by suing people is/was created by judges developing the law in that direction. The advertising allows that market to be exploited by spreading the word. I also never said that advertising has had no effect, in fact I said the complete opposite if you read what I wrote. It's plainly had a huge impact but I don't think it's the logical place to poke the finger of blame because it's not the underlying cause. If the judiciary had been a bit more sensible there wouldn't be anything to advertise about.

The advice was from external solicitors, good ones, to us as the in-house legal team, and it was that the claimant had a reasonable case. I mentioned it just to point out that the "it wasn't a proper path" argument isn't necessarily as helpful as it might seem it should be. I totally agree though that the inclination is always to settle small claims even if you have a high likelihood of winning, and that no doubt encourages spurious litigants and their ambulance chasing assistants. Much though I hate the ambulance chasers and the negative impact they have on the view of the profession as a whole, blaming the government for allowing lawyers to advertise doesn't make much sense. If the market didn't exist in the first place there would be no business to advertise for. Yes, the proliferation of "have you had an accident" adverts has no doubt vastly increased awareness of the possibility to make claims and therefore the number of claims, but that's a symptom not the cause. The underlying issue is the shift of the law of negligence in favour of claimants, that is what has created the market which the ambulance chasers exploit. No win no fee is also nothing new, and it's no more than a business model, so there is nothing there for a government to curb. If Government is to act it should be to sensibly legislate on negligence to restore the emphasis on accidents being a fact of life, and people being required to take responsibility for their own actions. Nice theory, but it was government which significantly de-regulated the legal services industry allowing all sorts of people to provide legal services which is a significant competition issue for traditional law firms. See http://www.bbc.co.uk/news/uk-15187154. This was strongly resisted by solicitors but government didn't listen, so that argument doesn't make much sense. Comparatively few solicitors will be benefitting from the claims explosion anyway, the vast majority of those at no win no fee claims factories will be just claims processors and not actually solicitors.

For what it's worth, it's not really anything to do with the government. Claims of this type aren't health and safety, which is mainly to do with the workplace and ensuring employers provide a safe place to work. They are negligence claims, and negligence is pretty much entirely a common law issue which means it's judge made law. The only fault you can attribute to government is not legislating to pull back the way the judiciary have expanded the scope of negligence. Also worth noting that it not being the proper path doesn't necessarily mean there isn't a claim. We were recently advised at work to settle a claim a visitor to one of our sites had brought because he'd taken a short cut through a small hedge in the car park and bumped his head on a metal sign on a lamppost which stated the parking restrictions. That case had been picked up by one of the ambulance chasing scum firms.That sort of thing makes it exceedingly clear that the compensation culture has gone way too far, but if you're looking for a scapegoat blame the judiciary.

Good website, for what it's worth I like that bit about it not being a business as I'd rather put my money towards someone who is small scale and independent. Perhaps worth just adding an FAQ about being around in the event of any problems though, you don't want people thinking you are going to do it for a couple of months and then bugger off to Uni and not be contactable should there be any construction issues need sorting out etc. Not that I'm questioning your workmanship, but for £130 people will probably want assurance that if there are any problems you'll be contactable to sort it out or provide a replacement. Not sure if this was one of the typos which you said had been fixed, but the "not" was still missing from the low bridge FAQ when I just had a look. To be ultra picky, the start of the second sentence of the weatherproof FAQ is also lower case, you never know, that might put a member of the grammar police off making an order!

In simple terms, reorganisations of public bodies happen fairly frequently (think changes of local councils, NHS trusts etc etc), and when it happens responsibility for existing liabilities, acts, statements etc will always transfer to the new body. It couldn't happen any other way because otherwise there is a total lack of accountability for the actions of the previous authority which, if you'd been wronged by it, wouldn't be desperately fair.

For those that are interested in the legal stuff, there is some information about the impact of the "What you are doing is fine" statements made by BW available on wikipedia (http://en.wikipedia.org/wiki/Legitimate_expectation) and in a briefing from a law firm (http://www.pinsentmasons.com/PDF/LegitimateExpectationRevisited0708.pdf) "Legitimate Expectation" is essentially a curb on public authorities saying one thing and then changing their minds. In one case it's been defined as 'Legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or the existence of a regular practice which the claimant can reasonably expect to continue'. I think at the very least, as Jenlyn says, CRT could have expected this to have been raised if they had pursued enforcement proceedings against boaters who fall within this group, and I'd have thought that such an argument would have had a decent chance of success. Equally, without knowing for sure that they could use this defence, the relevant boaters still had some uncertainty as to the status of their homes. The roving permit idea therefore makes pefect sense for both those boaters as well as CRT, and is a very sensible solution to the issue.

As a version of point 2, a simple improvement to the current proposal would surely be that the operators of the trip boat are required to make their home mooring available as visitor moorings whenever they are running trips from the existing visitor moorings. It's not ideal because it looks like the trip boat's "home" is shorter than the visitor pontoon so it wouldn't provide as much space, but it's still better than nothing. Otherwise the trip boat mooring sits empty all day whilst passing boats can't stop because 5 minutes every hour the trip boat needs the visitor moorings. It says they are going to be putting signs on the visitor mooring when the trip boat is operating, so just put on that sign that during those times moorings are avilable 200 yards downstream.

Should have said "may therefore have been required". Well spotted!

I did go to the link, I also went directly to the statute on legislation.gov.uk beforehand and had a quick look there. I was just making the point that the link was a summary and not the actual statute so wasn't in itself a definitive source. The pics are lovely, although I don't see how it's possible to tell simply by looking at the bird whether it was in proximity to a nest (in the absence of said nest in the pic) and that an appropriate licence was therefore required.

Indeed, I only quoted your post because it included the summary of the relevant wording. The point I was refuting was Jerra's claim that "it is against the law to photograph them at or even near a nest without a special license" which is pretty misleading and would be, as Athy points out, bloody stupid! With the addition of "intentional or reckless disturbance" it does make sense. Edit - Athy, yep, very much realised you were being flippant, and in doing so you nicely demonstrated how silly the original "all pictures near the nest are illegal" claim was. Oh, and if I can italicise something and also underline it the third formatting shortcut in Word is going to feel terribly left out if I can't also bold it!

First, that link is just someone's summary, it's not actually the statute, so it's not a definitive source, although for the purposes of this let's assume it's an accurate summary. Secondly, the bit I've bolded is what's relevant. It would plainly be utterly absurd if simply taking a photo of anything near a nest would automatically be a criminal offence. You could have a massive lens and do so from half a mile away, the suggestion that the moment you pressed the shutter the local wildlife bobby would drag you off to the cells is plainly ridiculous. If you are simply sat on the front of your boat cruising along and there happens to be a kingfisher in the bushes and you take a photo, then even if it was right on its nest you are not committing an offence. If you steer your boat into said bush and panic the poor thing then yes you could be in trouble, but in the absence of "intentional or reckless" disturbance feel free to click away.

This is worth watching for anybody doubting the benefits of winter tyres. If you can afford the initial outlay it's a very simple decision, they're better all winter even if it doesn't snow, and on the odd occasion when there is snow the difference is night and day. Edit - Failed attempt to embed you tube vid. Will keep trying, but any instructions in the meantime would be gratefully received! Further edit - Sorted (fairly obviously)

I'd echo what others have been saying about Avon Ring being doable in a reasonably enthusiastic week. I did it in September last year going via droitwich (which makes it a bit longer) and think our longest day was probably 8 hours with a couple significantly less. We did manage to get away before 1pm on the first day which was a big help. We had 3 active crew members (the other was pregant so not active!) which I think makes a big difference on the canal sections with all the locks as someone is free to go on ahead to set locks up, and we had a very good method worked out (which meant tardebigge took not much more than 2 1/2 hours). With just two I think the canal sections would take an awful lot longer so consequently significantly longer days would be needed. Off topic, but I'd be tweaking the canal plan defaults if it was telling me that 4 counties needs 9.5 hours per day. With 4 active crew members 4 counties is a stroll in a week. Edit to add: Hadn't spotted that OP is a first timer, in which case with just two I wouldn't even consider trying to get round the Avon Ring. You need to be pretty efficient through all the locks on the canal sections and (without being patronising) it's inevitable that it takes a while for someone new to figure out an efficient method that works well for them. Some of the locks on the Avon have also got slightly awkward approaches/departures and you've got to faff on with ropes front and back in each one which again isn't going to be easy with just two who haven't done it before. So all in all in the OP's shoes I'd definitely be doing Stourport.

Would guess they are on the York Boat floating pontoons at the next bridge upstream. That's where the one that sunk in September was put when it was refloated.

Only problem there is that I did no such thing, as I made very clear in the other thread when you made this claim. Nor did I say or imply you had any involvement in the lift bridges thread, that was very clearly meant in jest. Funny really, you claim I've done something I haven't and in the process you actually do the very thing you falsely claim I did. This seems to be a recurring theme.

I was responding to your post stating that you don't consider I'm qualified to comment on legal issues. I'm not sure what CRT are likely to be able to add to that particular discussion, although I note that you have again failed to say anything to support your claim so perhaps CRT are indeed a better option. This "information" you speak of, you're surely not only the second person in history to have a copy of the official operating instructions for lift bridges are you!? Hmm, that's a good question which I'm not desperately comfortable trying to answer. The licence term is clearly a contract so the argument is much simpler. If they just said "this statute says we can set whatever rules we like so we're going to charge you if you stay longer than 14 days" then I guess that's not a contract, but I'm not convinced it would make much difference. I'd have thought they would still need to make clear what the charge was going to be before they tried to enforce it, not doing so would be unreasonable. In practical terms I'd guess that means enforcing it as a statutory charge would need either some kind of notice sent to all boaters stating the amount if it were to apply across the whole system, or alternatively signs in the relevant locations where the charge applied. As I say though, statutory charging mechanisms is very much not an area I work in, so treat this as a somewhat educated guess rather than anything more definitive.

I think its developing exactly as it would be expected to in that it's really only the absurd arguments that were ever likely to get to court. Anybody being even remotely sensible was never going to face a problem from BW/CRT, and thus the more moderate arguments are never going to be heard in court. BW/CRT were only going to fight a battle they knew they would win, and in Davies and Brown they found the perfect opponents. The judgments have certainly been very clear cut (indeed the language used in the judgments is about as definitive as you are ever likely to see), but that's inevitable because the cases have plainly been so one sided. I do agree though that are subtelties here which I don't think have been tested. The issue which I think would be interesting to see explored (and which would involve far more balanced arguments) is the extent to which intent can trump distance travelled (indeed I think the intent is the critical issue, distance is subsidiary). I think we had this discussion when the Davies decision was announced (and it was a factor in the judgment), but I can imagine two boats each moving within a 10km section of canal where one satisifes the statute and one does not. If you are there because of needing to get to work and only move because you are trying to do as little as possible to satisfy the statute then I don't see it as navigating in good faith. On the other hand, if you have no links to an area other than you simply adore that section of canal and spend your whole time moving up and down it because you love every little part and want to travel there for evermore I can see that could well be navigating in good faith. Hope that was the sort of thing you were getting at, if not please say and I'll have another go!

Having got all that off my chest, on the issue that Carl and Dave are currently discussing on the £25 mooring charges, I'm not convinced either opinion is spot on. I don't see it as charging twice for the same thing, or being a penalty charge. If something is within a contract and is a charge for a service being performed as part of that contract then broadly you are free to charge what you want. If you don't want to pay then don't make use of that service (in this case staying in one place for more than 14 days). Penalties are only an issue when you are talking about a breach of a contract which isn't happening here. I therefore agree with Dave that there are effectively two services being provided, and thus they can be charged for separately under the contractual arrangement. Where I disagree with Dave though is that the wording as has been quoted is enforceable. One of the requirements for any contractual term to be enforceable is that it must be sufficiently certain as to what it is that is being promised. I struggle to see how that is satisfied by a term which says "you can stay longer than 14 days, but you'll get charged more". There is no certainty there at all as to the amount so I think it's a term they would really struggle to enforce. If they could enforce £25 because they've decided that is what "more" means then logically they could decide "more" means £25,000,000 and enforce that which is plainly absurd. If they said "you can stay longer than 14 days and each 24 hour period will cost you £25" then that would be enforceable, as it would be if they said it would cost the amount stated on the sign in the relevant place. It could be sorted with a simple change to the wording, but simply referring to an indeterminate sum doesn't, I think, do the job. I'd therefore agree with the view of the CRT people that Alan Fincher has been quoting.

I've been lurking but attempting to resist posting in this thread, but you've left me no option but to respond to this. First, your constant claims that Dave doesn't know what he is talking about would be somewhat more persuasive were you to actually present some decent arguments yourself (and if it wasn't for the rather inconvenient fact that judges seem to keep sharing his opinions). "You don't know what you're talking about because I say so" doesn't count. If you are so sure he doesn't know what he is talking about your own knowledge of the relevant issues must be encyclopedic (because how else could you possibly know he is so wrong?), yet we see no evidence of that. To me it seems that you argue the person making the post and not the issues. That's a waste of everybody's time. Secondly, I have made no claim to be uniquely qualified on "this subject". I simply replied to a post where you said that Dave wasn't allowed to comment because he isn't a qualified lawyer to say that I was one (and therefore hoped that you would allow me to have a view) and my professional opinion on the relevant issue was that Dave's view pretty much accorded with my own (as it had done on many legal arguments on the board, although not all). I don't really understand what you mean by being qualified on "this subject" anyway. Are you suggesting that "canal law" is somehow something special which requires "canal lawyers"? If so you are just demonstrating your ignorance. What we are dealing with here is simple contract law and statutory interpretation. It's in the context of inland waterways but the overall rules are no different. Thirdly, the fact that you have managed to conclude that I am not suitably qualified to give an opinion on this subject is hypocrisy of the very highest order. On one hand you sit there and say only qualified people should give an opinion, and then when someone does you decide that they aren't actually qualified to give a view. How on earth are you in any position to make that decison? I can't recall you ever providing any cogent analysis of a legal issue, yet somehow you have managed to decide that someone who does so for a living isn't qualified to give a view. That is utterly absurd. If you think I've said stuff which is wrong, then please quote it, explain why you think it's wrong and we can have a sensible discussion about it (because I don't for a second claim that just because I'm a solicitor I'm right about anything which is legal in nature). If you can't do that then practice what you preach and only comment on issues on which you are in a position to add some substance to the debate.

I think from CRT's perspective it is logical that breaches of CCing rules should be higher up the list of things to enforce, simply because it's plain that it's CRT's role to enforce the relevant bit of statute (and if they don't do it nobody can), whereas there is a separate statutory body which has primary responsibility for enforcing issues relating to planning. Even if the relevant term of the mooring agreement can be intepreted to apply to the leisure/residential issue I think CRT would massively struggle to effectively enforce it - boring legal explanation for why in smaller print below. As to what is actually the real issue here (as you rightly say), I don't really see how it can come down to grudge against a choice of lifestyle. It doesn't matter how a relevant individual choses to live their life so long as they shuffle their boat around enough to be within the meaning of the statute. If they comply with the law then they've got nothing to worry about, if they don't comply with the law then surely they can't complain if CRT refuses to grant them a licence? That applies universally, regardless of the shinyness (or lack thereof) of the boat, lifestyle choice of its owner etc etc. *It's a breach of contract situation and normal contractual remedies (compensation for the loss you suffer) aren't any use because the breach (i.e. using that mooring for residential purposes) isn't costing CRT anything. You can try to get a remedy called specifiic performance which means the person in breach is ordered by the court to comply with the terms of the contract, but courts are generally very reluctant to grant it.

I did say that it was the note which had been quoted which wasn't a "rule", and nothing else that had been cited at that point could be interpeted as a rule either. I just did a quick search for "Residence" in the mooring agreements, so had missed condition 8. This new stuff you've quoted is certainly a lot more rule like. That said, on condition 8 (your italicised bit) I think technically I probably agree with what Dave said, in the absence of any planning conditions that could be breached I'm not convinced that using a standard mooring for residential purposes would actually be a breach of the contract. I'd guess that with marinas the planning conditions probably specify whether berths can be used for residential purposes or not (which is probably why the term was in The Dog House's marina agreement), but if it's just an online mooring then I don't know if any kind of planning permission is needed for the mooring. If it's not, then there can't be a breach of it. You could possibly have an argument that the more general "relevant laws" would catch it regardless, but then you are really into technicalities of when doing something without planning permission constitutues a breach of a law and I don't know enough about planning law to have a view on that. What can be said with less doubt is that the first bit you quoted certainly suggests that whoever wrote that thinks it is part of the BW/CRT mooring agreement, so the original point raised about BW/CRT chosing not to enforce the "rule" is a valid one.

You said "I've just forked out £400 to get professional advice on this". If I made an assumption it was that what you wrote was accurate. It's kind of difficult to communicate in writing if you can't assume that what is written is accurate. No, I didn't miss it. Nor did I say he was qualified. All I am saying is that not being qualified and automatically being wrong (as seems to be your contention) are not one and the same. In the vast majority of cases Dave's posts on legal matters are accurate. I was simply referring to the fact that in this thread a number of people have made statements relating to legal matters, yet you have continually attacked Dave for doing so without being qualified with nothing similar being said to the others. That suggests to me that your issue is not one with unqualified people giving opinions but rather you just don't like Dave and are anxious to make that clear to all and sundry. I'm just not sure what the point is in doing so.

I genuinely don't see it as being a CRT rule, not in the slightest. It's in a section entitled "General Notes" in what is essentially an advert. It's just a point of information, look at all the other bullets in the same section, none of the rest of them are even close to something that could be interpreted as a "rule". It's the same as someone selling a car and putting a note at the bottom of the advert saying "By the way, on the Motorway you're not allowed to go faster than 70mph". That's not the seller's rule, it's just useful information for the buyer.