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NigelMoore

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NigelMoore last won the day on October 15 2017

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  1. Of course. Getting professional advice, however, is difficult when so very few professionals are versed in this particular recondite area of law.
  2. I don't. One might hope that these will be far less than the previous usual high figures, now that CaRT are using in-house lawyers rather than instructing outsourced solicitors to instruct barristers. I presume he will appeal though, and ask for the costs order to be stayed pending the result of the appeal.
  3. Not really, the saying applies to professionals – “a lawyer who represents himself has a fool for a client”. There are sound reasons for the cautionary note therein that have to do with perhaps over-confidence when dealing with litigation areas outside of their professional specialty, and a lack of the dispassionate viewpoint so critical to success. It is only a generalisation though; a professional would be more aware of the procedural games that are played, as in this instance. When one is prepared for a particular type of preparatory hearing, to be faced with a final hearing instead is to be thrown out of kilter. A true professional would be prepared for any eventuality. It doesn’t just apply to dealing with procedural games within the available protocols; entirely unexpected events can find you unprepared. I was prosecuting a case last week, in what was to be a directions hearing (as it would be called in civil court), only to find that the defendant did not turn up, and had sent an email to the court pleading guilty, and asking that the court hear the case in her absence. Despite what she told the court, she had not informed me of this. OK, that meant that I succeeded, but it spiked certain requests for court orders that I was going to present, and I had not gone in expecting to have to justify costs awards, for which the judge said I would need to cite authority, because his understanding was that such awards were severely limited (not surprising given the relative rarity of private prosecutions). Consequently I said that I would not apply for my costs, even though I knew that I was entitled to them, not having the authorities to hand. Tony will have outlined his case in his skeleton argument, but those rarely get aired in the absence of oral representations. Not a fool then, just outplayed by experienced litigators. Not being present in person will have further dented his effectiveness.
  4. It is fair to point out that Tony was unable to attend court in person, and the judge agreed to his particpation by phone, which I would certainly not have wished to do; it places one under an immediate disadvantage. Also, Tony was not really prepared, having previously been notified that this was to be a directions hearing only. CaRT unilaterally had the nature and location of the hearing amended to be a final hearing at a more distant court. If Tony had been relying only on the MNC argument, that would have been a foregone conclusion given the Asplin J judgment - and that was what the judge declared. However Tony was relying mainly on the nature of 'lawful authority', as in: the authority to navigate on the rivers derives from the PRN not the registration requirement - hence the difference in nomenclature between 'licence' and 'registration certificate'. Failure to be registered under the 1971 Act is an offence punishable according to the provisions therein, but it has nothing to do with authority ('licence') to be there. That was altogether overlooked by the judge, although Tony is pleased that he at last managed to persuade the judge of the difference, which is reflected in the wording of the Order. The inconsistency between that acknowledgement and the decision that s.8 nonetheless applied, could form the basis of a possible appeal. As I have noted earlier: challenging the judgment in Leigh's case is possible, because consent to appeal was granted - but that would require leap-frogging the whole County Court & High Court process. Tony felt it simpler to avoid that with his different argument, though in the event it was not considered. Still a matter of 'watch this space' I suspect.
  5. It would be helpful to cite the source of your quotes Alan. In this instance you have quoted from a third party's advisory document, whereas some might think it was a quote from planning law. It is a good and helpful document, but it should not be taken as the law, only as a commentary on it. https://www.aina.org.uk/wp-content/uploads/2018/04/RUIW-Feb11.pdf
  6. Not technically true. Any individual may lay an information at the Magistrates Court with an application for a summons, without having to ask permission – the right to do so is enshrined in law. In practice, once that step has been taken, a District Judge may or may not choose to ask the would-be prosecutor to attend a hearing, in order to satisfy the court that issuing a summons is indeed justified because there is a clear case to answer. Of course, if a summons is issued without that preliminary enquiry, the prosecutor will need to have demonstrably good grounds for his action when it comes to to a hearing, because any abuse of process could prove an expensive mistake. Even when a judge has agreed to issue a summons because they believe there is a case to answer, there can be costly fall-out if higher judges disagree - witness the Boris Johnson example. On the other hand, if no abuse of process is found, the private prosecutor can ask for his reasonable costs to be paid out of central funds even if the prosecution fails and the defendant is acquitted. The Supreme Court justices are interestingly split on the value & desirability of the continued right of individuals to bring prosecutions, but Parliament has been too explicit in preserving the right for judges to do anything to circumvent it; they can only be extra critical as to compliance with the “full code test” - even though that does not apply to private prosecutions, it has been used to cast doubt on the validity of charges when the judges want to.
  7. Quite. CaRT never have brought a private prosecution for breach of the byelaw demanding that a boat be licensed, but it is the standard response for other navigation authorities. It has always been my view that such a process is actually more proportionate than actioning s.8. Courts never have, to my knowledge anyway, sent anyone to prison for not having a licence, but they certainly fine them. A fine is the only penalty set out in the BW byelaws, so prison would only ensue if found in contempt of the order to pay that.
  8. What is unfair? I did not say BW sent him to prison, I said they HAD him sent to prison. The court judge sends him down, as a result of an application to find him in contempt. Of course a judge can imprison anyone for contempt without an application if they feel that is appropriate, without intervention. Even with a finding of contempt the judge need not send him to prison and could instead fine him – I think, though I have not looked into that. But in the end, anybody who has brought a case against somebody resulting in a court order that is then not complied with, and who then apply for a finding of contempt, are ultimately the party that has had that other party sent to prison (should that be the decision of the judge). Even if the aggrieved party do not apply for a contempt order, and a judge sends the other to prison for matters arising from the action, the party that brought the initial action can be said to have taken action that resulted in the other party being sent to prison. And if they deserved that, why is that unfair anyway? If there was in fact deception, I agree. I can't see it myself; perhaps some questionable ducking and diving within the rules . . .
  9. It could look fraudulent and an attempt to dodge issues, but CaRT were at all times aware of its history and professed themselves willing to continue the licence if he found a home mooring. So that tack would not work. Yes, failure to comply with a court order is contempt of court, punishable, as all the BW/CaRT s.8 Orders make plain, with imprisonment. Usually the party in whose interest the order was made would have to apply to the court to have them declared in contempt. I know of one boater BW had sent to Wormwood Scrubs for 6 months for contempt, though I think the basis there was failure to comply with some court process, even though due to having to juggle with the conditions of parallel proceedings. He got out in 3 months after employing a barrister to grovel before the judge and “purge his contempt”.
  10. I think you are wrong, although obviously CaRT hold that view. The 2017 Order and injunction related to a previous incarnation of the boat, in different ownership. Since that Order the boat was apparently burnt out, and subsequently rebuilt to dimensions allowing it to comply with a more extensive cruising range, and on that basis CaRT re-licensed the vessel, albeit under a new name and owner. Having accepted the rebuilt vessel and issued a fresh licence, it is stretching thngs very far indeed to rely upon that 2017 Order.
  11. Just a reminder of what navigation authorities aspire to – while CaRT are not entitled to refuse a licence application from anyone just because they have previously been the subject of enforcement – and from the information quoted here that is exactly what they have done - the Middle Level Bill sought exactly that. Somehow I could not persuade their Lordships that such was the effect of the relevant section of the Bill, but thankfully the Commissioners themselves saw the light, and graciously volunteered an essential amendment of their own to mitigate the effect of the noxious clause.
  12. I think the main point in this instance - which the NBTA should be arguing if they have not – is that CaRT ARE legally obligated, in the circumstances of the initial reason for revoking the licence, to refrain from unreasonably withholding consent to the movement or use of the vessel subject to such reasonable conditions as they may determine. From the information cited by Alan (if that is correct), instead of allowing use of the vessel subject to reasonable conditions relating to the safety issues, they abandoned that line and relied instead on a 3 year old injunction - subsequent to which, they had re-licensed the vessel (presumably because modifications to it had then permitted it to navigate through the pinch points which it had previously been unable to do). The validity of such reliance is effectively what the NBTA appear to be questioning. Does an injunction continue to operate regardless of later compliance with the statutory conditions as accepted by CaRT? If it does, then once such an Order has been obtained any vessel could be removed at whim regardless of compliance with licence conditions ever after.
  13. Where do you find such a “legal obligation” to refuse a licence? Section 17(3) states: “the Board MAY refuse a relevant consent in respect of any vessel unless—". If a legal obligation was intended, the word “SHALL” would have been used. Instead, refusal of a licence where a mandatory condition was not met, was to be at the Board’s discretion. The mandatory term imposing an obligation was used in various of the following sections, for example (appropriate to the safety issue initially claimed), s.11 – “( a ) The refusal or withdrawal by the Board of a relevant consent in respect of any vessel on the grounds that the vessel does not comply with the standards applicable to that vessel shall not preclude the movement or use of the vessel with the consent of the Board (which shall not be unreasonably withheld) and subject to such reasonable conditions (if any) as they may determine. ( b ) Without prejudice to the generality of paragraph (a) above, the Board shall not withhold their consent under this subsection to the movement or use of a vessel for the purpose of taking it to a place where it may be repaired or modified so as to comply with the standards applicable to it, or for the purpose of taking the vessel to be destroyed, unless such movement or use would give rise to the risk of obstruction or danger to navigation or to persons or property. ( c ) Nothing in this section shall affect the operation of section 7 (Control of unsafe vessels) of the Act of 1983.”
  14. Obviously not a good thing for the survey; it suggests that the more people know about CaRT the less happy about them they are.
  15. It was hardly BW’s brief to close down the inland waterways, although such an impression is understandable, because they spent the first 6 years of their existence passing one Act after another dedicated to doing just that, piecemeal, until the Transport Act 1968 drew a line under how far they could go with the process. The purpose of the then BW’s management was, of course, dictated by commercial considerations more than distaste, despite the government intent to preserve the waterways from market forces, through nationalisation. The tragedy of the 1968 Act was that while imposing an enforceable obligation on BW to maintain the waterways to minimum standards, there was a ‘get-out’ clause that effectively allowed them to plead impoverishment as an excuse for any failures to meet those obligations. For so long as the waterways were in government hands, that get-out clause was not especially significant, because government were obliged to supply the necessary funds (although their absurd system of apportioning funds led to considerable budgeting difficulties for BW). Now that control has been privatised, following the promise of the old guard to become self-sustaining, the plea of impecuniosity has become an all too real bar to practical enforcement. Unless something can be done about transforming the current CaRT ethos in top management, conservation and preservation (let alone improvement) must remain largely in the realms of hope.
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