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enforcement of mooring charge


aracer

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49 minutes ago, aracer said:

IMHO it's well worth getting het up about organisations ignoring data protection laws - or should we just let them pass on our details to Nigerian princes? CRT certainly won't amend their T&Cs in a way which isn't allowed - there is no way in which them passing on details to whoever they feel like would be a reasonable contractual term.

But as Captain Pegg has pointed out to you they haven't broken the GDP Regulations. 
Perhaps you need to read his comments again.

49 minutes ago, aracer said:

 

I note that whilst it's the argument most have been addressing it's far from being the only argument - I've recently come back to the one about the user of the boat, rather than the licence holder being the only one entering into a contract with the landowner.

There aren't - I've now been and checked (it seems they do realise the difference between mooring and parking) - so you're probably right that they wouldn't bother pursuing it.

It has been a purely academic question from very early on, as I realised before most of the angry people joined in. Though I've only just confirmed my assumptions about why it's an academic question even if you do want to moor in that vicinity.

I see someone earlier used the term "barrack room lawyer".....................................if the cap fit's...................................................

46 minutes ago, Naughty Cal said:

I take it I don't need to read the whole of this topic it is just the OP not getting the answer he had hoped for and expected?

Correct, Rachael.

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Who actually gives a flying #### 

You moor, you pay the pittance of the fee that is asked and you get on with life.

I hope the OP is not as boring in real life as he appears to be from this thread.

Its well chuffing dull.

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So if my car is snapped speeding I as the registered keeper must inform dvla who is driving it or I have to accept the penalty. The drivers picture may or may not have been captured. 

With the boat though, the "contract" is entered into by the person in charge, at the helm/the moorer. What duty am I under to identify the person in charge at the time, where does the burden of proof lie? Afaik its written in law re dvla and vehicles, but with a contract on a sign? One could just reply and ask for proof of who was in charge. 

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I have read this thread with some interest although it appears a number of posters are getting het up by CRT T & C's and the meanings of such. What nobody has clearly pointed out, although Captain Pegg did brush upon it, is that the detail of GDPR compliance is not actually in the T & C's but is enshrined in CRT privacy policies and the last paragraph of the policy for customers actually covers this scenario.

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31 minutes ago, Jim Riley said:

So if my car is snapped speeding I as the registered keeper must inform dvla who is driving it or I have to accept the penalty. The drivers picture may or may not have been captured. 

With the boat though, the "contract" is entered into by the person in charge, at the helm/the moorer. What duty am I under to identify the person in charge at the time, where does the burden of proof lie? Afaik its written in law re dvla and vehicles, but with a contract on a sign? One could just reply and ask for proof of who was in charge. 

They'd simply pursue the licence holder instead of the person in charge (at the time). Of course, being a contract, and them trying to enforce it retrospectively, the chance of their success is low anyway - just as with private parking firms (they are unlikely to take it all the way to small claims court for the amounts of concern). 

 

The idea is more that a penalty/fine (although this one is weirdly, not set massively high, or higher than the original rate anyway) is a deterrent. Or that people are simply honest and would pay up since its a fair charge; in a similar way that one might approach a busy newsstand and instead of simply taking a paper and walking away, would take their items but then (maybe queue up to) pay.

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On ‎23‎/‎02‎/‎2019 at 10:01, aracer said:

Hmm, I was hoping for replies from somebody who actually knew

Sounds like you were hoping for a reply that says they can't charge you, and you aren't happy with responses that say they can.

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58 minutes ago, Jim Riley said:

. What duty am I under to identify the person in charge at the time, where does the burden of proof lie?

If you lie to the police or to the courts  about the who was driving a car when an offence is committed   its called perverting the course of justice for which a prison sentence was recently imposed . Would the same not apply to a boat?

All a bit over the top for not paying a parking fee. Is it not simply easier to pay the fee or go and park where it is free. just like you might in a road vehicle.

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36 minutes ago, MartynG said:

If you lie to the police or to the courts  about the who was driving a car when an offence is committed   its called perverting the course of justice for which a prison sentence was recently imposed . Would the same not apply to a boat?

All a bit over the top for not paying a parking fee. Is it not simply easier to pay the fee or go and park where it is free. just like you might in a road vehicle.

Some stupid local to me MP has just been done for this and is inside as I type

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7 minutes ago, Loddon said:

Some stupid local to me MP has just been done for this and is inside as I type

There are ways round it if you have enough money but I bet it cost a lot more than 4 quid https://www.birminghammail.co.uk/news/showbiz-tv/david-beckham-escapes-prosecution-over-15210237

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5 hours ago, Paul C said:

I don't think CRT are ignoring them though. They're vaguely aware of their duties under GDPR and other data protection regulations (in fact the T&Cs were changed not so long ago, this is one of the areas of change) and they added in the sections which have been cited. Yes - I dare say its not 100% right, BUT pragmatically, I don't think any judge in the land will side with a boater here who finds the tiniest loophole to avoid paying their charge. Neither do I think ICO would take any action in this instance. They might in others, eg if CRT were passing boaters details on to private individuals or firms without due diligence - eg your "Nigerian Prince" examples but this clearly isn't the case here and it remains a hypothetical example.

You're right - with CP's help we established that there is a contractual term which covers this situation (unlike all the other terms the angry mob were quoting). In my reply to him I acknowledged that (which the angry mob seems not to have bothered to read). So I agree with you - I don't think a judge or the ICO would think there anything wrong with the details being passed on in the case discussed in the OP. However the point I was replying to seemed to suggest that CRT would supply details whatever the T&Cs (it's been hinted at previously that they've given out details willy nilly) - all I was suggesting is that if they did give them out to a private landowner then that's the sort of thing the ICO might be interested, given that there is nothing in the T&Cs giving them permission to do that.

Quote

User of boat vs owner - I don't think this will be a barrier either. It would probably be interpreted as the owner of the boat is deemed to have accepted into mooring 'contracts' etc if the user at the time does so - they'll pursue the owner, and then they'd need to either burden the responsibility or pass it onto the user at the time. Its exactly like this with parking (do some research on it - you can't get away with "prove I was the driver.....I'm not telling you who the driver was.....you can't force me" any more - that loophole was closed a while ago!)

It most certainly would be a barrier. The only reason it isn't for parking is that there is now specific legislation - such legislation doesn't cover boats and mooring, hence it's not the same (I don't need to do any research, I'm well aware of the law on this, it's one of the issues which prompted the OP and I've mentioned it myself a few times). The owner/licence holder of the boat certainly won't be deemed to have entered into a contract if they weren't the user - under contract law you can't bind somebody else in a contract without their consent. This issue has been tested in the courts in relation to parking charges and is the reason there is now specific legislation relating to parking.

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And of course, an area you've not touched upon (apologies if you have, and I've missed your reply) is that even if you did find some loophole or caveat, the wider picture is either CRT or the local council would amend their procedures/wording/etc, or the mooring would be lost as "not worth the bother" - thus not being for the greater good of the boating community and costing an amount of money in admin. Recent court cases suggest that even if there were loopholes etc, the judge is far more likely to rule "absurdity" - the legislation couldn't have meant that - and take a common sense approach anyway.

It's fundamentally not possible for the CRT or council to change their wording in order to transfer responsibility for a contract/debt from the user to the licence holder - any such attempt wouldn't comply with contract law. Meanwhile use of such a "loophole" (or others I can think of) certainly wouldn't result in a judge ruling absurdity - as I just mentioned there is plenty of precedent in parking cases. One important point here is that it's up to the plaintiff to prove their case, the plaintiff being the landowner claiming damages for trespass - again referring back to parking cases, they would for instance have to prove that the signage clearly showed that a contract was being entered into.

 

The comment about losing the mooring has been made previously and I've simply commented that it's irrelevant because we're discussing the legal basis for pursuit of the debt, not the further consequences. But given unlike others you've remained polite in your responses I'll expand - you may be right in some cases, though as I mentioned earlier, the discussion has been purely hypothetical since very early on in the thread, hence those circumstances wouldn't arise. In this particular case it's hard to see how the mooring could or would be removed - I can't believe the cost to the council of providing the mooring is significant compared to the costs they incur for maintaining the bank with or without moorings. Finally as I've also mentioned a few times but most seem to be ignoring, I doubt that those people stopping for an hour or so in the day and not paying would make the slightest difference to them - the charges are quite clearly aimed at those mooring overnight and priced accordingly - is it reasonable for a boater to pay over 6 times as much to moor as it costs a driver to park?

Edited by aracer
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3 hours ago, Jim Riley said:

So if my car is snapped speeding I as the registered keeper must inform dvla who is driving it or I have to accept the penalty. The drivers picture may or may not have been captured. 

With the boat though, the "contract" is entered into by the person in charge, at the helm/the moorer. What duty am I under to identify the person in charge at the time, where does the burden of proof lie? Afaik its written in law re dvla and vehicles, but with a contract on a sign? One could just reply and ask for proof of who was in charge. 

You are under no duty at all - congratulations for understanding this point ?

2 hours ago, Paul C said:

They'd simply pursue the licence holder instead of the person in charge (at the time). Of course, being a contract, and them trying to enforce it retrospectively, the chance of their success is low anyway - just as with private parking firms (they are unlikely to take it all the way to small claims court for the amounts of concern). 

The chances of success are zero - as I just discussed above. A judge would throw out any case where the plaintiff attempted to enforce a contract against a third party who hadn't entered into it.

2 hours ago, mayalld said:

Sounds like you were hoping for a reply that says they can't charge you, and you aren't happy with responses that say they can.

You probably need to read the thread more thoroughly - my replies to Captain Pegg are the relevant bits here.

1 hour ago, MartynG said:

If you lie to the police or to the courts  about the who was driving a car when an offence is committed   its called perverting the course of justice for which a prison sentence was recently imposed . Would the same not apply to a boat?

All a bit over the top for not paying a parking fee. Is it not simply easier to pay the fee or go and park where it is free. just like you might in a road vehicle.

There would be no requirement to lie to the courts, you simply shrug your shoulders and stay silent if asked who was in charge of your boat. It's up to the plaintiff to prove who entered into the contract. This is different to driving offences, because in that case there is specific legislation requiring the registered keeper to identify the driver, which is why some people lie.

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On 23/02/2019 at 12:29, Paul C said:

I'm a bit confused on what you're comparing, and why. You can't compare the potential cost of a court action (presumably it would be some kind of counterclaim or defence against a fine/penalty for non-payment) to the cost of a single-time parking/mooring, they're not really equivalent.

 

Also if you won a court action and got your costs, then by definition it should have cost you £0? If it didn't, then you didn't fully recover your costs.

It is very rare that anyone fully recovers their costs in a case thay win. There are also limits to costs awards in certain circumstances. For example anybody slapped with a parking ticket will always be automatically out of pocket even if the ticket was wrongly issued, because loss of wages for the time taken to fight the case is not allowable.

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1 hour ago, aracer said:

You are under no duty at all - congratulations for understanding this point ?

The chances of success are zero - as I just discussed above. A judge would throw out any case where the plaintiff attempted to enforce a contract against a third party who hadn't entered into it.

You probably need to read the thread more thoroughly - my replies to Captain Pegg are the relevant bits here.

There would be no requirement to lie to the courts, you simply shrug your shoulders and stay silent if asked who was in charge of your boat. It's up to the plaintiff to prove who entered into the contract. This is different to driving offences, because in that case there is specific legislation requiring the registered keeper to identify the driver, which is why some people lie.

Since you seem to have all of the answers what was the purpose of your original post ?

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27 minutes ago, NigelMoore said:

It is very rare that anyone fully recovers their costs in a case thay win. There are also limits to costs awards in certain circumstances. For example anybody slapped with a parking ticket will always be automatically out of pocket even if the ticket was wrongly issued, because loss of wages for the time taken to fight the case is not allowable.

Nigel, I know that this forum respects your knowledge of law relating to Inland Waterways. I PM'ed eracer a couple of days back suggesting that C&RT has a duty to provide information arising from the BW 1971 Act Section 18.  As such the provision of such information was not discretionary as suggested in T's & C's.

 

My questions are -

 

Has this been repealed?

 

If not can it be construed to mean all licence data rather than certificate registration?

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2 hours ago, aracer said:

 

It most certainly would be a barrier. The only reason it isn't for parking is that there is now specific legislation - such legislation doesn't cover boats and mooring, hence it's not the same (I don't need to do any research, I'm well aware of the law on this, it's one of the issues which prompted the OP and I've mentioned it myself a few times). The owner/licence holder of the boat certainly won't be deemed to have entered into a contract if they weren't the user - under contract law you can't bind somebody else in a contract without their consent. This issue has been tested in the courts in relation to parking charges and is the reason there is now specific legislation relating to parking.

 

 

2 hours ago, aracer said:

 

The chances of success are zero - as I just discussed above. A judge would throw out any case where the plaintiff attempted to enforce a contract against a third party who hadn't entered into it.

 

There would be no requirement to lie to the courts, you simply shrug your shoulders and stay silent if asked who was in charge of your boat. 

 

One thing I've always been cautious of is to second guess what judges do in courts, especially lower ones. Basically, there's been a number of clangers and the pattern is that CRT seems to come off well, and the piss taker/boater seems not to. They seem to apply "the duck test" rather than bothering with the actual wording of the law. Of course, if you have the willpower and nothing to lose, then appeal appeal appeal, fight it in higher courts, etc etc but I believe one of the barriers to this is that if the argument you're making is sufficiently unstable, they can/do ask for security of paying the other parties legal fees, in a higher court if/when it goes to appeal. This would be a barrier for those with "nothing to lose" and if those with something to lose did it....you never know....they might lose it.

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44 minutes ago, Allan(nb Albert) said:

Nigel, I know that this forum respects your knowledge of law relating to Inland Waterways. I PM'ed eracer a couple of days back suggesting that C&RT has a duty to provide information arising from the BW 1971 Act Section 18.  As such the provision of such information was not discretionary as suggested in T's & C's.

 

My questions are -

 

Has this been repealed?

 

If not can it be construed to mean all licence data rather than certificate registration?

Allan, I cannot say with any certainty that it has been expressly repealed. However data protection Acts post-dating 1971 could well have the effect of an implied repeal.

 

The T&C's cannot be taken as binding, because assent to them is an involuntary condition extra-legally imposed by CaRT for issue of the licence, but I am not going to belabour that point again.

 

To address other aspects of the debate - there is, as others have pointed out, NO right to moor to privately owned banks of any navigation, rivers or canal, without consent of the owner. The situation with local council owned riverbanks is, however, somewhat vexed, because unless they have had SoS approval of relevant byelaws, it can be argued that they do not possess the right of a natural person to condition and charge for use of their property; they are reliant solely on the terms of their originating legislation.

 

A snag arises from the Localism Act 2011, which purports on the face of it to permit such authorities “to do anything that individuals generally may do.” The extent of this has been rightfully challenged, on the principle of the thing and because s.2(2) states that “the general power does not enable a local authority to do – (a) anything which the authority is unable to do by virtue of a pre-commencement limitation.” Pre-commencement limitations including the Court approved prohibition on such bodies exercising the powers of natural persons, there seems an extraordinary internal conflict.

 

Resolving the situation properly involves having such relevant byelaws passed as would legitimately enable the councils to control mooring to their land and to levy charges for same, with enforceable penalties. Richmond has done so, Hounslow is following suit – sadly, with increasing reactionary fervour in terms that are detrimental to their own proper remits, but the principle behind following that route is sound.

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25 minutes ago, Paul C said:

 

 

One thing I've always been cautious of is to second guess what judges do in courts, especially lower ones. Basically, there's been a number of clangers and the pattern is that CRT seems to come off well, and the piss taker/boater seems not to. They seem to apply "the duck test" rather than bothering with the actual wording of the law. Of course, if you have the willpower and nothing to lose, then appeal appeal appeal, fight it in higher courts, etc etc but I believe one of the barriers to this is that if the argument you're making is sufficiently unstable, they can/do ask for security of paying the other parties legal fees, in a higher court if/when it goes to appeal. This would be a barrier for those with "nothing to lose" and if those with something to lose did it....you never know....they might lose it.

What you say is of course very largely correct. When challenging such authorities it will usually be necessary to go to the higher courts and expect to have to appeal. You also need to have plenty of funds or none at all, as you say.

 

As to 'security for costs' the argued case does not have to be “sufficiently unstable” to attract those; in fact if any doubt as to the feasibility of the argument existed there would be scope simply to have the case struck out. It is usually where the argument has an acknowledged chance of success, but the litigant is suspected of insufficient means to meet costs, that application is made for the relevant Order.

 

Those who are able to successfully plead their own impecuniosity however, could escape such an Order.

 

Leigh Ravenscroft was indeed an example of the costs that can be suffered enroute in any extended fight; that is, as you say, to be expected (and I had fully warned him of this beforehand). Any well-funded organisation will use the interim costs tactic to forestall the inevitably necessary climb to the Court of Appeal. It should be noted that the Appeal Court agreed that he had an arguable case on all 3 issues; but he (sensibly) decided that further risk (especially considering his ever more jaundiced view of the system) was unjustified when CaRT agreed to settling. He considers that it was a worthwhile exercise nonetheless. Not everyone would.

 

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55 minutes ago, Paul C said:

One thing I've always been cautious of is to second guess what judges do in courts, especially lower ones. Basically, there's been a number of clangers and the pattern is that CRT seems to come off well, and the piss taker/boater seems not to. They seem to apply "the duck test" rather than bothering with the actual wording of the law. Of course, if you have the willpower and nothing to lose, then appeal appeal appeal, fight it in higher courts, etc etc but I believe one of the barriers to this is that if the argument you're making is sufficiently unstable, they can/do ask for security of paying the other parties legal fees, in a higher court if/when it goes to appeal. This would be a barrier for those with "nothing to lose" and if those with something to lose did it....you never know....they might lose it.

In general I'd agree with you. However we're not talking here about CRT taking you to court over breaking their T&Cs (as in the other case you seem to refer to) or you taking CRT to court for going beyond their remit. In those cases then either new ground is being broken or there is presumably precedent of CRT winning.

 

What we are discussing here is simply a plaintiff (the landowner, not CRT) taking a defendant to court for breach of (implied) contract. There is no "challenging of authorities" here. Such contract law is extremely well established - at least partly through parking cases involving private parking companies, some of which cases have been taken to higher courts and set legal precedents which lower courts must abide by. One fundamental principle of contract law is that you can't be bound by a contract which you haven't agreed to, which is where any case the landowner takes against the licence holder for failing to pay mooring charges would fall over in the absence of any evidence that the licence holder was in charge of the boat at the time of mooring. The law is so well established on this that any judge ignoring it would have to be extremely perverse in their interpretation and an appeal to judges who actually know their law would be risk free.

 

I note that in a civil case like that there is absolutely no obligation on the licence holder to provide the plaintiff with any information whatsoever on who was in charge of the boat at a particular time.

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55 minutes ago, NigelMoore said:

Allan, I cannot say with any certainty that it has been expressly repealed. However data protection Acts post-dating 1971 could well have the effect of an implied repeal.

Thanks - I was assuming something like that given the incompatibility of the 1971 act with more recent data protection acts, however I wasn't certain of the process by which such law would be repealed and whether there was such a thing as implied repeal. My apologies again to Albert for not replying directly to his PM, I did however think I'd responded when he raised the issue on this thread.

55 minutes ago, NigelMoore said:

To address other aspects of the debate - there is, as others have pointed out, NO right to moor to privately owned banks of any navigation, rivers or canal, without consent of the owner.

I don't think there is any dispute about that - the question is what happens when somebody ignores that and moors there anyway and what rights does the landowner have to take action to pursue a claim for damages in such a case.

55 minutes ago, NigelMoore said:

Resolving the situation properly involves having such relevant byelaws passed as would legitimately enable the councils to control mooring to their land and to levy charges for same, with enforceable penalties. Richmond has done so, Hounslow is following suit – sadly, with increasing reactionary fervour in terms that are detrimental to their own proper remits, but the principle behind following that route is sound.

I'm curious exactly how such byelaws work - have they found a way to get around the contract law issues I mention above?

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