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New T&C's - merged thread


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48 minutes ago, IanD said:

Correct, it was that bit.

 

People keep saying that because that's what the judge said it's now a legal fact and binding on CART. I'm asking whether that is the case or not, which I believe depends on whether it's a civil or criminal case.

 

Civil case : judges finding/opinion only, a different judge in another case could come to a different decision (happens all the time) ==> precedent doesn't apply ==> not binding on CART

Criminal case : judges finding/opinion becomes part of case law and sets a precedent ==> legally the case until/unless it's challenged/overthrown (and there are limited legal/factual grounds for doing this) ==> binding on CART

 

Before arguing further, we need an opinion on this from somebody who understands this, preferably legally qualified -- a real lawyer, not an armchair one ?

 

It depends more on the court, according to Nigel.  As I understand it, because it was a lower court it isn't a binding precedent, which makes the endless quoting of what was, if you think about it, a fairly barmy ruling completely pointless.

Mayers simply refused to move from a rather nice mooring outside a pub, citing various ludicrous reasons and fulminating to anyone who would listen about the iniquities he had suffered and, rather oddly, misogynistic rants about the evil of letting women be in charge of anything. When I met him, what started as a pleasant chat wound up quite frightening, so much so that I made sure my doors were locked when I was in my boat. And I don't scare easy. (I didn't know who he was at the time). Having read the judge's nonsense, I'm hard pushed to decide which had less of a grasp on reality.

What intrigues me is that those who quote that bit of the case approvingly dismiss all other judgements as flawed. The law, as is well known, is an ass.

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14 minutes ago, Ex Brummie said:

These were people who declared thus without our knowledge. If CaRT do not check up, how are we to know? 

Wow, so anyone can claim they have a home mooring (say, in a marina) without any confirmation from the marina that this is the case, and CART don't check that the mooring either exists or is allocated to the boat?

 

Sounds like the system is completely broken already... ?

 

But this doesn't stack up with what Alan said:

 

"Marinas and moorings providers already have to report to C&RT the names and numbers of all of their moorers."

 

So, still sounds to me like the marina/club is on the fiddle...

Edited by IanD
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2 minutes ago, TheBiscuits said:

.  It should be stressed that these views are not authoritative

Actually, if I seek authoritative views on a point of law, a judge is exactly the person I'll go to, and believe.

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5 minutes ago, Athy said:

Actually, if I seek authoritative views on a point of law, a judge is exactly the person I'll go to, and believe.

 

You didn't read the linked article then?

 

7.22.1. It is, as I have already said several times, unnecessary for me to comment on whether the guidelines match the legislation. I do so in only two respects and with the express proviso that this does not form part of the decision.

 

- HHJ Halbert specifically excluded his own observations from the court decision.

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9 minutes ago, Athy said:

Actually, if I seek authoritative views on a point of law, a judge is exactly the person I'll go to, and believe.

But the question is crucial -- is it just the view of that one judge in that one case (where another judge in another case could come to a completely different decision), or does it form a binding legal precedent which applies to future cases?

 

We need a lawyer to give us a more authoritative opinion, but it sounds to me that the first is the case, so no matter how many times the judge's decision is quoted on this forum as if it's legally binding on CART, it isn't.

 

Which means there's nothing stopping CART changing the rules about home mooring as they seem to be planning, so anyone relying on this case to stop this happening could well be disappointed.

 

Somebody could then challenge CART in (civil) court but there's no guarantee that they'd win; the judge could well find that CART are perfectly entitled to change the rules to stop abuse/fiddling of the system by bridge-hopping home moorers, regardless of how many there are.

Edited by IanD
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12 minutes ago, IanD said:

But this doesn't stack up with what Alan said:

 

"Marinas and moorings providers already have to report to C&RT the names and numbers of all of their moorers."

 

Whilst I acknowledge that not 100% of mooring providers require a NAA, the ones that do have, as a condition :

 

• Requires the marina operator not to allow any boat to be moored in the marina which does not have a current valid CRT pleasure boat licence, to keep records of the owners of all boats in the marina and to allow CRT to have access to the marina to inspect boats and these records.

 

When we were looking to buy a marina, the then owner said we had to keep updated records of all moorers and send the information to C&RT so they can cross refer licence application claims with what marinas are actually recording to stop 'ghost moorings'

 

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19 minutes ago, Alan de Enfield said:

 

Whilst I acknowledge that not 100% of mooring providers require a NAA, the ones that do have, as a condition :

 

• Requires the marina operator not to allow any boat to be moored in the marina which does not have a current valid CRT pleasure boat licence, to keep records of the owners of all boats in the marina and to allow CRT to have access to the marina to inspect boats and these records.

 

When we were looking to buy a marina, the then owner said we had to keep updated records of all moorers and send the information to C&RT so they can cross refer licence application claims with what marinas are actually recording to stop 'ghost moorings'

 

To me that clause just says they have to record who is currently moored there; not that they need a record of anyone declaring that location as their Home Mooring.

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24 minutes ago, IanD said:

But the question is crucial -- is it just the view of that one judge in that one case (where another judge in another case could come to a completely different decision), or does it form a binding legal precedent which applies to future cases?

 

We need a lawyer to give us a more authoritative opinion, but it sounds to me that the first is the case, so no matter how many times the judge's decision is quoted on this forum as if it's legally binding on CART, it isn't.

 

Which means there's nothing stopping CART changing the rules about home mooring as they seem to be planning, so anyone relying on this case to stop this happening could well be disappointed.

 

Somebody could then challenge CART in (civil) court but there's no guarantee that they'd win; the judge could well find that CART are perfectly entitled to change the rules to stop abuse/fiddling of the system by bridge-hopping home moorers, regardless of how many there are.

It's not binding. You don't need a lawyer, their job is to find an answer you like, not one that's true. Nor is a judge much use, that's why you have a court of appeal.

I think the only binding judgements are made in the higher courts. Mayer's wasn't one. I think you'll find CRT have consulted their legal boffins, who no doubt will have found reasons to give them what they want. In an adversarial system, that's what lawyers are for. To challenge  you have to buy a better lawyer.

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Just now, Cheese said:

To me that clause just says they have to record who is currently moored there; not that they need a record of anyone declaring that location as their Home Mooring.

 

 

Maybe I was not clear :

 

The marina must record who is actually mooring there.

 

C&RT require anyone applying for a licence to inform them of the mooring provider.

 

C&RT cross refer the two lists and take whatever action they determine if someone is claiming a mooring that the mooring provided knows nothing about.

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47 minutes ago, Athy said:

You raise good points - largely in jest I know, and I hope the fun-loving CARTsters will see them that way too.

The builder's name should surely be O.K: otherwise it would be akin to cars not being allowed to have a badge proclaiming that they are a Ford, Vauxhall or whatever.

In theory I should be worried about our boat, as it displays the logo of a record company which is still trading. In practice I'm not worried at all. Anyone requesting that we change it will be invited to go and whistle.

But the Highways Agency don't have a rule like this so it can't be interpreted that way. I really don't understand why they have created another rod for their backs with what appears to be a totally unnecessary rule. 

Perhaps if every boater with the name of their boat builder, painter, chimney maker or whatever immediately cintacts them to request permission to have that name on show they may realise?

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21 minutes ago, Alan de Enfield said:

 

 

Maybe I was not clear :

 

The marina must record who is actually mooring there.

 

C&RT require anyone applying for a licence to inform them of the mooring provider.

 

C&RT cross refer the two lists and take whatever action they determine if someone is claiming a mooring that the mooring provided knows nothing about.

This doesn't stack up with what Ex Brummie said:

 

"These were people who declared thus without our knowledge. If CaRT do not check up, how are we to know?"

 

Obviously, both can't be true...

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18 minutes ago, cheshire~rose said:

 

Perhaps if every boater with the name of their boat builder, painter, chimney maker or whatever immediately cintacts them to request permission to have that name on show they may realise?

Either that, or they will police and enforce the rule comprehensively and efficiently, just as they do with all their other rules.

....oh, hang on....

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27 minutes ago, Arthur Marshall said:

It's not binding. You don't need a lawyer, their job is to find an answer you like, not one that's true. Nor is a judge much use, that's why you have a court of appeal.

I think the only binding judgements are made in the higher courts. Mayer's wasn't one. I think you'll find CRT have consulted their legal boffins, who no doubt will have found reasons to give them what they want. In an adversarial system, that's what lawyers are for. To challenge  you have to buy a better lawyer.

So keeping on quoting the judge's finding (I've seen this at least a dozen times) as if it will stop CART changing the rules is pointless... ?

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1 minute ago, IanD said:

This doesn't stack up with what Ex Brummie said:

 

"These were people who declared thus without our knowledge. If CaRT do not check up, how are we to know?"

 

Obviously, both can't be true...

 

 

He also said "it was some time ago",

 

How would a marina be expected to know who was claiming to be there if they were not there.

The only ones with both sets of data are C&RT, C&RT NOW say the correlate the two lists but maybe X years ago they didn't

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2 hours ago, cheshire~rose said:

On our last boat the boat painter had signed his work so is that allowed?

 

Ours, and no doubt many others, has ‘Lovingly handpainted by Andy Russell’, i’ve seen other painters do the same.

 

Theres’s also every TravelSat install that carries the name and phone no.

 

why don’t they outlaw something useful like those godawful creepy Rosie & Jim dolls ?

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1 minute ago, Alan de Enfield said:

 

 

He also said "it was some time ago",

 

How would a marina be expected to know who was claiming to be there if they were not there.

The only ones with both sets of data are C&RT, C&RT NOW say the correlate the two lists but maybe X years ago they didn't

 

He said:

 

"A couple of years back, our club was sent a list of our declared 'moorers'. It was probably 3 times our actual number. "

 

I doubt whether CART have greatly changed their checking process in the last couple of years.

 

So something still doesn't add up -- either his claim is wrong, or CART aren't checking as Alan says.

 

I'm not trying to prove anyone wrong here, but if CART are trying to change the rules we need to know what they are now, whether they're enforced or not, as well as whether they can legally change them or not.

 

It's crucial to the whole argument about "CART can't do this because..." ?

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1 hour ago, IanD said:

 

 

"Marinas and moorings providers already have to report to C&RT the names and numbers of all of their moorers."

 

So, still sounds to me like the marina/club is on the fiddle...

The Club does advise CaRT, and administers the licence applications of its members. You can hardly blame any organisation if an individual declares falsely. As the licence checker passes us about once a fortnight, you would have thought that might help them work phantom declarations out. They certainly notice if there are gaps as I have twice been notified that my boat was not on its mooring!

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28 minutes ago, IanD said:

I'm not trying to prove anyone wrong here, but if CART are trying to change the rules we need to know what they are now, whether they're enforced or not, as well as whether they can legally change them or not.

 

Somewhere I have the C&RT documenst where they explain their location / mooring checking procedure.

 

In the meantime C&RT statement, which I suggest are the opposite of HHJ Halberts 'interpretation' of the law :

 

From a C&RT Q&A session.

 

I know of boaters who declare a home mooring but never use it

so this is a loophole isn’t it?

Yes and no. If we never observe your boat on the mooring you’ve declared, or we see you repeatedly on the towpath in an area distant from the declared mooring, we will contact you and ask you to confirm your mooring status. We may use powers under the data protection legislation to ask the mooring operator to confirm that you do hold the mooring you’ve declared. But either way, if you never use the mooring, it amounts to a false declaration which makes the licence invalid. We are just starting to apply this approach where a ‘ghost’ mooring is suspected.

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1 hour ago, cheshire~rose said:

But the Highways Agency don't have a rule like this so it can't be interpreted that way. I really don't understand why they have created another rod for their backs with what appears to be a totally unnecessary rule. 

Perhaps if every boater with the name of their boat builder, painter, chimney maker or whatever immediately cintacts them to request permission to have that name on show they may realise?

 

I trust you will contact CRT for permission to advertise the London, Midland and Scottish Railway - that will have them scratching their heads... :giggles:

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11 minutes ago, magpie patrick said:

 

I trust you will contact CRT for permission to advertise the London, Midland and Scottish Railway - that will have them scratching their heads... :giggles:

I already opened one can of worms with an email this month! Their business department needs to investigate further before they can answer my question. 

Don't temp me....

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7 hours ago, Alan de Enfield said:

 

 

And that conflicts with ....................................

 

 

The judgement in the case of CaRT v Mayers ...

Was it not obiter dictum - and thus not part of the judgement?

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2 hours ago, IanD said:

But the question is crucial -- is it just the view of that one judge in that one case (where another judge in another case could come to a completely different decision), or does it form a binding legal precedent which applies to future cases?

 

We need a lawyer to give us a more authoritative opinion, but it sounds to me that the first is the case, so no matter how many times the judge's decision is quoted on this forum as if it's legally binding on CART, it isn't.

 

Which means there's nothing stopping CART changing the rules about home mooring as they seem to be planning, so anyone relying on this case to stop this happening could well be disappointed.

 

Somebody could then challenge CART in (civil) court but there's no guarantee that they'd win; the judge could well find that CART are perfectly entitled to change the rules to stop abuse/fiddling of the system by bridge-hopping home moorers, regardless of how many there are.

Binding precedent applies to both criminal and civil cases as a principle.  Whether one judgement binds a later court depends on some rather complex rules relating to hierarchy.  Rather obviously, the higher Court of Appeal is not bound by County Court decisions, for example.  Wiki is never wrong https://en.wikipedia.org/wiki/Precedent.

 

In practice, there will often be a question as to whether one set of facts is entirely on all-fours with another.  Lord Denning was a master (good pun!) of the identifying distinctions which allowed(?) him to apply the golden rule of statutory interpretation.

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1 hour ago, Ex Brummie said:

The Club does advise CaRT, and administers the licence applications of its members. You can hardly blame any organisation if an individual declares falsely. As the licence checker passes us about once a fortnight, you would have thought that might help them work phantom declarations out. They certainly notice if there are gaps as I have twice been notified that my boat was not on its mooring!

Hang on -- how can 3 different boats each declare the same mooring space as their home mooring without the club/marina or CART noticing? Surely the club would notice that space number 37 had 3 boats claiming it as home (and paying for it!), and so would CART? If a boat tells CART "I have a home mooring, it's space#37 at this club", surely CART check this with the club? It's basic paperwork...

Edited by IanD
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