Spesh

Thanks for all the responses. I've just sent a cheque for a copy of the guide book so cheers for that tip. I'll report back with news of the number of rowing boats sunk

Is this the "old bathing place"? Certainly does look nice and wide there. I think I shall have to send a cheque off to the good people at the trust and get myself a copy. I do like a challenge when steering, but not absolutely wedded to the idea of turning left out of the basin if it's a very silly idea!

I'm hiring in September and doing the Avon ring and want to have a little explore of the Avon upstream of Stratford. I know making it to the limit of navigation isn't an option, but does anybody know the furthest point you could safely wind a 67 foot boat? Canal Plan suggests "The Red House" but I can't work out where that is. Pearson's has a place marked which appears to be here: http://maps.google.co.uk/maps?q=stratford+upon+avon&hl=en&ll=52.207526,-1.671802&spn=0.000976,0.002835&sll=53.852527,-4.042969&sspn=15.437014,46.450195&t=h&z=19 Looks like plenty of space to turn here, but then again impossible to assess depth. Any useful info would be much appreciated. Edit to put link to google map as technical inability prevented embedding it.

Minos has it more or less right on the legal side. You could have refused to accept the date change and had a refund, but once you accepted the new date then you've got a contract for that date just like you did for the original date. No holiday company with the slightest bit of sense is going to have contract terms which allow the customer to change the date at the drop of a hat. The same terms will apply to your revised booking as did the original. As a consumer dealing with a business it's not the case the contract is the be all and end all because there are various protections that will override unreasonable terms, but I can't see how any would apply in this case. Obviously the legal position doesn't excuse bad customer service, and they should have done what they could to accomodate a date change in order to keep their customer happy. That said, I would have thought that last minute changes of date are extremely difficult to accomodate without the hire company losing all the revenue for the booking. I don't think I'd expect to be able to change the date in the way you wanted to without having to pay, but on the basis of what you say the way they went about turning you down left a lot to be desired.

It's probably semantics, I just disagreed with your use of "persecution". There certainly are varying views about who is more to blame for overstaying, but I genuinely don't think I've seen lots of people calling for CCers to be persecuted. We've perhaps just got different understandings of the word.

Grrr, I've been dragged back in. Having actually read the words people write I've not seen anybody say they feel CCers should be persecuted. It would be more accurate to say there are some on here who believe that boaters should be required to abide by the terms of their licence/relevant statutes, and engage in reasoned debate as to exactly what the terms of the licence/relevant statute are. This is never however accepted by some posters who refuse to participate in reasoned debate and instead reply (both vocally and repeatedly) with something along the lines of "you hate all CCers, you think BW should force CCers to never moor for more than 15 seconds at a time, you blame CCers for all and every problem suffered by not just the waterways network but also the universe as a whole and you think CCers arranged for Lord Lucan to shoot JFK whilst using Shergar as a getaway and simultaneously faking the moon landings". Thus is created and perpetuated the pretty much entirely incorrect view that people on here want CCers to be persecuted. Read what is actually written by the alleged persecutors and you'll discover it's not the case.

No, it is not as simple as that. I cannot understand how you can read the factual statements of legal principle that have been made previously without grasping this. The rule for moorers is laid down in a contract between BW and the person with the boat. It is a matter of interpreting that contractual term using the usual rules of contractual construction established by the courts. BW may very well have intended what you claim they did, but this does not in any way mean a court would give the words they used the intention they may claim. BW clarifying their intention would make not one jot of difference becuase a contract is a two way thing. The only way they can make any difference legally is by changing the drafting of the contract. Until that happens the term will be constructed by a court in the same way as any other contract. Contractual terms are not constructed by just asking one of the parties what they actually intended it to mean. This would entirely undermine the very purpose of a contract. Please don't just ignore this as you did my previous response. If you want to do some research and argue that the above misstates the relevant principles of contract law then let's have that debate, but please stop just making the same statements over and over again. Numerous people have spent significant time explaining why your statements demonstrate a fundamental misunderstanding of the issues. Ignoring those explanations and saying the same thing all the time is little more than trolling. It's preventing the discussion moving on to something worthwhile - debating alternative wordings of both the statute and the relevant licence condition which are sensible and workable would seem like one good option. I generally agree with all you said, but as a point of clarification it is important to recognise the distinction between the two rules. Only the CCer rule is the law enacted by parliament, the licence term is a contract between the boater and BW. Granted BW's power to impose that contract term derives from parliamentary authority, but as long as they don't exceed that authority the terms of the licence contract are something for BW to put down in writing and a boater to agree to. See above for why it's (broadly speaking) the words of the term itself and not BW's intention that matters when working out what that term means. Edit - principle not principal. I'll learn this eventually.

The CCer rule is not defined by BW. You could not be any more wrong about this. The piece of legislation I linked to before (which now works) is the rule. It is absolutely not defined by BW. BW simply provide guidance to aid in the understanding of that rule. I am not saying this because I have any axe to grind. I am saying this because due to many years of boring study, and just as many years of boring practice, I understand how the law works and am therefore trying to explain this to those who are fortunate enough not to do the dull job I do. What I am saying is very simply what the law says. It's fact, not opinion. For what feels like the 100th time, there is no rational reason for there to be a difference, but the fact that the two relevant rules are written differently means by definition there is a difference. All we can go on is the words, which even you can't possibly argue are the same. The licence condition is a term of a contract between BW and the boater. There does not need to be anything from BW confirming that it allows bridge hopping because, as has been pointed out, the default position in this country is if something is not prohibited it is allowed. The contract between BW and a boater with a home mooring says nothing more than that boater may not moor on the waterway for more than 14 days whilst cruising. In the absence of any other term in that contract, or other relevant law (and my understanding is that there is nothing else relevant), this means that as long as you untie your ropes and move you may then moor up again for another 14 days. I'm about as certain as you can be about these things that if BW were to attempt to claim in court that the same interpretation should be given to that wording as that in the statute they would be laughed out of court because (1) the statute is completely irrelevant when construing a term of a contract between a boater and BW and (2) that court would say "but the contract doesn't say what the statute does, so given that we're arguing over the contract we have to go on the words in that contract. If you wanted it to mean something else you would have presumably made it say that". BW may well have intended to apply broadly the same rules to moorers as they do CCers. As you say, if they were acting logically you'd have thought that is what they would have wanted to do. The problem is that even if that was their intention, it was not reflected in the wording they used in the contract, and as a result that intention (if it existed) has no bearing whatsoever on the actual terms of the licence. It's only the actual words in that licence that matter. In broad terms that is pretty much they key rule you need to know when interpreting a contract. The courts will almost always give effect to the actual words without looking behind them. Until BW redraft the relevant contractual term of the licence the difference will remain to be taken advantage of by people looking to find a way round the CC rules. Again, I have no axe to grind here, no view on who causes problems, or even if there are any problems, I'm just explaining the legal situation because that's what I do for a living. Go and talk to another solicitor if you don't want to believe me, but bear in mind you'll probably have to pay for the privilige! Fixed now in the original post, repeated to save folks having to scroll up: http://www.legislati...tion/17/enacted

Probably not, because there are too many different issues at work for it to be resolved by a court. The CCing rules could be made clearer if a case made it to a higher court that could set binding precedent, but that could only ever come up with a somewhat workable test for determining the subjective issue of bona fide navigation. Whilst there is the subjective element in the legislation there is only so much clarity a court can provide. If clarity is required parliament needs to amend the statute (and hopefully take a bit more care over the drafting). The licence condition issue is not really a court issue if you accept that BW can, within reason, set those conditions as they chose. It's a contractual term between BW and the boater, so it's up to BW to amend it if they see fit to close the loophole. Does use of the word "if" suggest you still don't accept it does? The reason is very simple, the relevant bit of the act is a subjective test and therefore lacks clarity, so by producing guidelance BW are saving every CCer the trouble of taking their own legal advice about the sort of cruising pattern/intention that is or is not likely to be acceptable. That's fairly clear from the guidelines themselves. It's also absolutely standard practice. Government departments are always issuing guidance to aid in the interpretation of statutes. This doesn't mean said statutes don't exist, it's simply an acknowledgement that the vast majority of the population who are not legally trained will benefit from some guidance as to the meaning of statutes that impact their lives. Edit - and it's "Guidance", not "Guidelines". That may seem trivial, but guidance is the term they use for a reason because it is guidance to help you stay within the likely meaning of the law, not a separate set of guidelines that should be seen as being separate to the law.

What's perverse is applying a personal interpretation to very simple words because the obvious meaning of those simple words does not reflect what you think they ought to say. There is no interpretation required. The law as applies to CCers states no more than 14 days in one place. The licence condition for those with a mooring says you may not be moored for more than 14 days. Just moored. No reference to place. Your continued claim that nothing in the legislation covers the 14 day rule for CCers may explain why you're still arguing against this point (and it's a little surprising that you have been so vocal on all this if you haven't taken the time to understand the very basic underlying issues). Have a look at http://www.legislation.gov.uk/ukla/1995/1/section/17/enacted, specifically 17 (3) © (ii). The 14 day rule for CCers is absolutely in an act of Parliament. It is nothing at all to do with BW. The rule for moorers is not, as far as I am aware, in any legislation, it is something BW have written in the licence condition. This is why it is possible for there to be a difference in the rules. Edit - Trying but failing miserably to stop c in brackets turning into a copyright symbol. Also to fix link.

No, of course they don't, and no, of course that was not the intention. It is simply the practical (and indisputable) impact of the relevant law as it currently stands. There is a glaring great big loophole which clearly enables someone to stay in one place ad infinitum if they happen to be able to prove they have a mooring somewhere in the country. It's an unintended consequence of two laws/regulations that have been drafted separately and which should of course be corrected (as generally happens to loop holes with the passage of time). The fact that this side-effect is non-sensical and can be taken advantage of by those who wish to do so does not however mean it does not exist, and does not mean that those pointing it out have any agenda in doing so. It's just the way things are. Edit: Dave beat me to it.

If I'm one of the hard-of-thinking types you refer to (and it's good to see another person not able to post without resorting to snide comments) the answer is that nobody was trying to solve anything, it was simply a discussion about the meaning of a relevant piece of legislation and how a court case might clarify that piece of legislation. I suppose the only thing attempting to be solved is therefore uncertainty about the meaning of that law. That's in the interests of anybody impacted by that law is it not? But there's no reason why that needs to be discussed here. It wasn't an issue in this thread until someone decided to quote some statistics about overstaying which have nothing at all to do with the meaning of the relevant statute, which is what was being rationally discussed before it all went to pot. Who is to blame for over staying is a separate topic so can't it be discussed in a separate thread?

You're really not capable of engaging in debate without being rude and offensive, are you? There's a perfectly sensible response in the middle there, what on earth is gained by topping and tailing it with condescending drivel? Yep, I know there have been plenty of other posts from plenty of other posters that this applies to just as much, you just seem to particularly excel at it (and no, that's not a compliment!). On topic, there doesn't seem to be much to be gained from debating these particular numbers because they can be used to support or debunk any claim. I'm also not sure why it really matters. If you want to stop at a nice location and can't because it's taken by a bunch of boats ignoring a posted time limit said overstayers shouldn't be there and should be dealt with. Who cares whether they have moorings or not?

I don't want to appear presumptious that I'm the bloke you're referring to, but if so I am still here, just more as a slightly baffled observer at the moment. I'm very happy trying to provide vaguely informed explanation/clarification of the legal issues but I'm not sure that's a great deal of help in a discussion which has veered away from rationality. I don't really understand why this can't just be discussed on the basis of the facts available without people chucking out some really very strange claims. How trying to understand a statute could possibly have anything to do with class warfare is entirely beyond me. There's not much point trying to bring rationality to an irrational debate, it's a waste of time and incredibly frustrating. I get more than enough of that from the wife!

All I've seen is people discussing the meaning of a piece of legislation. Who is being harassed? Nobody is suggesting that "they" might force anybody to do anything, there's just a discussion about how a law might be interpreted. It's really baffling to a non-partisan observer why this can't be discussed without insults being chucked around. In terms of a judge trying to assess intention I can certainly see why in certain factual scenarios always staying right up to the limit could be taken, along with other relevant facts, as evidence that the intention is to navigate as little as possible for the sole purpose of trying to satsify the law. In the Davies case that being the purpose of navigation was held to be short of bona fide navigation. To be absolutely clear this is not remotely the same as saying anybody who only moves every 14 days is not navigating in good faith. It just not implausible that in some cases a court may see it as one piece of relevant evidence to be considered along with all the other evidence. I don't see anything controversial about that. Edit - Sir Nibble was clearly typing away at the same time I was. Completely agree with how he has put the point in terms of assessing intention.

Indeed, and the judge actually said that someone spending their time genuinely progressing round the system would almost certainly live on the boat. It was just a relevant fact in establishing the purpose of the navigation. Living on boat plus working in one location plus barely moving boat does not equal using it in good faith for navigation. That was the conclusion on the facts of this case. I would guess it would come down to the intent behind the very limited pattern of movement. It's very hard to see how occasionally shuffling up and down a 12 mile stretch could be explained in any way other than wanting to stay close to a place of work or equivalent whilst trying to stay within the law, but that's not to say it would be impossible. If someone just adored 10 locations in that 12 mile stretch with no other reason for being there and spent their life regularly moving around those locations then perhaps that could be deemed to be navigating in good faith.

The judge didn't have an issue with the guy living on the boat, it was just a relevant fact in the case. The judgment can be more or less summarised as: Law says boat must be used in good faith for navigation Chap lived on boat Chap only moved boat every now and again for the purposes of doing the bare minimum to try and show he used it for navigation as well as a home Judge concluded that only moving to try and satisfy the law did not satisfy requirement that law says the navigation must be in good faith, i.e. you must be navigating because you want to navigate, not just because you want to live on your boat and work at a fixed location and are forced to move it every now and again to try and comply with the law. That's about it. If you genuinely loved one shortish stretch of canal and that was your reason for wanting to navigate up and down it then a judge may well view that as being navigating in good faith. It's the fact that the statute has a subjective test that makes attempting to provide one size fits all guidelines more or less impossible. BW's insertion of "may" in a number of places in the updated guidelines is a reflection of this.

I don't think I need any detailed knowledge of BW's complaints procedure to form the view that the majority of that complaint was unsubstantiated opinion/ranting which as such had little chance of being seriously investigated. Given that you have said the response was: It would seem my guess that it would essentially be ignored was pretty much correct. Many thanks for this Paul. Having seen the further information Allan has provided I don't think there is actually much of a question to answer. Customer services decided there was no need to invesitgate the complaint, nothing more was done, hence no change to the press release. Thanks for providing the link to the FOI request. I don't think I asked for it, but it's useful to read the correspondence so thanks. The wiki article is slightly misleading as it's a careless with terminology. Precedent is a complex beast, and as such you've got to be ultra careful with the terms you use to try and explain it. Mistakes such as those in the press release are what happens when suitable care is not taken. The reference to "civil law" in the introduction is about the difference between civil law jurisdictions (most of continental European countries are civil law jurisdictions) and common law jurisdictions (such and england and wales, Australia and some others), rather than civil law and criminal law within our legal system. The complaint was directed at customer services who decided there was no need to investigate it, presumably because the vast majority of said complaint made no sense and in any event duplicated a complaint previously raised. Complaint therefore dealt with, move onto next piece of work, no further action taken. Yes, in an ideal world customer services would have been able to glean the small amount of sense from the complaint and passed it to the press office/legal team to investigate, but it's not particularly surprising given the way the complaint was written that this didn't happen. I suspect a calm and rational note to the press office pointing out the error and suggesting it be corrected would have been far more effective. I think I'll make this my last on the conspiracy or cock up debate. I've made my points and we're clearly not going to agree so I'll stop derailing the thread and stick to just trying to clarify the legal stuff. I hear deep sighs of relief from all over cyberspace! One last point though, you have notably failed to answer the two questions I asked you earlier in the thread. I think this says far more about the validity of your position than any arguments I can come up with.Edit for typo

On any rational analysis of the situation, absolutely. The questions I've asked you apply just as much to the lack of correction as they do the inital press release. If you can't provide logical responses to those questions then a mistake continues to be the most likely explanation. You seem to have seen the response to the complaint, so I'm not sure why you are not providing any information about it unless it does nothing to support your view (or maybe it does support your view and you're just giving me enough rope to hang myself before unveiling the smoking gun!). To be honest I'm not sure what kind of response you expect to a "complaint" like that anyway. If it had simply said "you've said something here that is innacurrate, you might want to correct it because it's potentially misleading" then there is every chance the recipient may have checked with the legal people and it would have been sorted. Instead the mistake is lost in a mass of ridiculous claims about how it's an horrific statement, there must be a public apology and retraction, people will lose their homes and BW is the devil incarnate. It would be understandable given how much similar mail I imagine BW receive if it had been marked down as yet another rant and pretty much ignored. Yes, that is technically a cock up because the basis of the complaint was correct, but it's an understandable one.

Indeed you did, I was just trying to clarify it given the varying comments and your post seemed the most logical to quote - nothing personal meant by it Yep, that is pretty much it. Court of Appeal can only overrule a previous decision in limited circumstances, but otherwise a court generally does not have to follow a previous decision made at the same level. Obviously there would have to be a good reason not to follow a previous decision, hence why any decision is persuasive precedent, just not necessarily binding. The section of the complaint you posted was hardly the most rational piece of thought I've ever seen, so was perhaps not the best way to go about raising something that was a legitimate issue. A footnote in a press release leading to people giving up their rights is not a very persuasive argument. Irrational complaints rarely generate rational responses. Given your clear anti-BW bias you can't really expect people to base their opinion on something you say you have seen. If it is so conclusive why not share it, or at least provide some more details? I don't think your view makes sense, mainly because I can't come up with answers to these questions that would support your conspiracy argument: 1) How would anybody sufficiently cunning and nasty to come up with your claimed scheme think this would have the slightest chance of succeeding given that it is possible to show it is wrong by spending 10 seconds on google? 2) If the purpose is to intentionally mislead people, and presumably therefore all the relevant people, why only say it in the footnote to a press release, and say nothing in the actual guidance notes? I'll provide non-conspiracy answers. 1 - they wouldn't. 2- It's in the press release because it was a cock up. The press release was written by the press department who didn't check with the legal department. It's not in the guidance because the guidance was written by the legal department who actually know what the law is. You are right that at the end of the day what matters is that the statement should be corrected (to ensure accuracy, there's hardly been any "injustice"), but equally it is only fair to ask you to explain your position. You can't expect to constantly put forward anti-BW propaganda without being asked to objectively justify it.

Not quite. The general rule is that a lower court is bound by a higher court but not by itself (although the court of appeal generally does bind itself). Binding precedent can therefore only be created if there is a lower court. The county court is at the bottom of the pile, so can't therefore create binding precedent. Dave Mayall's explanations of precedent above have been pretty much spot on. The statement in the BW press release is misleading at best in that it is true that the judgment would bind lower courts if they existed. Unfortunately they don't. For reasons I've given in a previous thread I can't believe it's deliberate rather than just a case of the press office not checking with the legal department, but it would be useful if paulmorgan could explain why that misleading statement is still present in the press release on the BW website. Edit to add this might help explain the court structure: http://www.hmcourts-service.gov.uk/aboutus/structure/index.htm First paragraph also simplified.

Finding the money to do it now is an understandable problem, it would just seem odd if it wasn't considered when the reconnection was made as presumably at that time it wouldn't have added much to the overall cost of digging a great big tunnel under a road. Anybody know if the water at Luddendon Foot comes for free, or do BW have to pay the EA to extract it?

Does anybody with some background/local knowledge know why there wasn't a back pump installed when the Tuel Lane connection was made? I went that way last time I hired and the pound above Tuel Lane was very low, but as soon as we were through the next lock all the pounds were fine. It's presumably the deep lock that necessitates having a feeder to just that pound in the first place, so why not just have a back pump and not have to rely on taking water from the river? Is it something to do with the pound below not having enough capacity?

Allan, you're making some pretty big claims about this press release which, for the reasons I gave further up, I'm struggling to understand. If you think that BW was fully aware that the press release was factually wrong regarding precedent and they issued it like that deliberately as part of some kind of agenda against boaters it would be very helpful in understanding your view if you could expand on what you think BW could possibly gain from doing that given the non-existant chance that nobody would spot the mistake.

But I'm not sure what to give a view on! I don't want to make any assumptions about why you think Bona fide and navigation can be construed separately, so happy to wait until you've got time to expand on it a bit. In the meantime, I'll have a go at attempting to clarify why there seem to be different judgments floating around. I don't actually do contentious work of this nature so whilst interpreting statutes and decisions is something I'm happy doing I don't have the detailed knowledge of civil procedure rules that a litigator would. What follows will hopefully therefore be corrected if it's wrong by Smelly who I suspect knows a lot more about this side of things than I do. - 23/24th September 2010: court hearing held - 30 November 2010: draft judgement in respect of above hearing issued by judge. This includes wording stating: "I am uncertain as to whether the parties, having received my ruling on section 17, require it to be embodied in some formal order of the court. If so they are invited to submit an agreed form of words. There will need to be a formal pronouncement of judgment in open court at some date in the future. If there is to be a further hearing pronouncement of judgment can take place then." This is the version that has been published in a number of places. - Sometime between 30 November 2010 and 31 March 2011: Parties fail to agree regarding order of the court. - 31 March 2011: Formal pronouncement of judgment made in court, along with further hearing to settle the disagreement regarding orders. This is as envisaged by the judge in the wording quoted above. The judgment pronounced was presumably substantively the same as the draft dated 30 November 2010, but it doesn't appear to have been published anywhere yet. - 13 April 2011: Judgment issued by judge in respect of the further hearing held on 31 March 2011, attached to which is the draft order he is proposing to make, subject to any further comments from the parties which must be provided by 30 April 2011. This is the judgment linked to by Allan above. This is entirely separate to the original judgment, so is not a different version of it. It simply deals with the further hearing to decide the orders. - Sometime around now (presumably): Final version of order to be issued. I'm not sure there is any reason to think BW are lying about not having the main judgment. This is what was pronounced on 31 March 2011, and it seems perfectly plausible that they haven't yet been given a copy of it. The fact that it hasn't cropped up anywhere else would suggest it hasn't been provided to either side. The 13 April judgment clearly has been provided, but it's not actually the judgment in the case, it's just on the issue of orders. Once this is understood I think everything makes sense without any need for conspiracy theories. To respond to the question asked about why BW issued a press release if the case was ongoing, the answer is that they didn't. They issued their press release after formal judgment had been given in open court. The case was to all intents and purposes finished, other than the subsidiary procedural issue of determining orders. To use the same analogy, you wouldn't have a complaint with a guilty verdict being reported in the news even though sentencing may not yet have been determined. One point that is certainly valid is that the notes to editors section of the press release was a big screw up. I do however think it is a little far fetched to describe it, as the NBW article does, as "an attempt to mislead boaters into not defending court action". Anybody who has the necessary cunning to devise such a devious plot would also presumably have the necessary cunning to immediately realise it couldn't possibly succeed because it's based on an assertion that was bound to be shown to be innacurate. It would also be a little odd, if the aim was to decieve the masses, to only include it in the notes and not in the actual body of the release itself. It strikes me that the obvious answer is that somebody has just made a massive great big factual error. There is an absolutely genuine issue here in that the facts should have been checked before the press release was issued, even more so given the sensitivity of the issue. That failure is the issue that should be highlighted and BW should correct the press release and retract that statement. Unfortunately sensationalised articles making assertions that can't be substantiated tend to mask the very issue they seek to expose. Edit - Some of this was already covered by others whilst I was writing it which is why there is some repetition.