BW vs Davies

[carlt]

 

The guidelines are just as vague as they ever were, but it seems clear that moving VERY slowly around the network is acceptable, but establishing a pattern of cruising to remain withing commuting distance of a particular place is not.

Again you are putting your own spin on what is actually written, Dave.

 

They have merely swapped one set of troublesome statements, with another.

[Allan(nb Albert)]

No, a county court is not binding on any other court.

 

BW disagree with you Dave. The six week old press statement says -

 

The decision of the Learned Judge in the case of British Waterways v Davies will be binding on lower courts (and District Judges) and persuasive on Circuit Judges throughout England and Wales.

[deletedaccount]

No, a county court is not binding on any other court.

 

weird, my solicitor sister said it was, but I could have been asking the wrong question of her.

 

(binding to lower courts that is)

[Spesh]

No, I'm no lawer but in English law everyone is entitled to a fair trial based on the evidence. A previous judgement which is relevant to the case could be brought to the attention of the judge but the judge does not have to make his decision based on it or even take it into consideration.

 

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.

Edited May 17, 2011 by Spesh

[Gibbo]

BW disagree with you Dave. The six week old press statement says -

 

The decision of the Learned Judge in the case of British Waterways v Davies will be binding on lower courts (and District Judges) and persuasive on Circuit Judges throughout England and Wales.

 

http://legal-directory.net/english-law/rules-of-precedent-civil-courts.htm

 

County Court

The County Court is bound by all decisions of the higher courts, but its own decisions never create precedents.

[mayalld]

BW disagree with you Dave. The six week old press statement says -

 

The decision of the Learned Judge in the case of British Waterways v Davies will be binding on lower courts (and District Judges) and persuasive on Circuit Judges throughout England and Wales.

 

Yes, I know what their statement said.

 

Their statement was wrong, and it is my considered opinion that the reason for the incorrect statement was cock-up rather than conspiracy.

 

I know that your deep conviction that BW is run by diabolical evil people intent upon subjigation of the masses won't allow you to accept my opinion, but I really don't think there is a smoking gun here.

[Allan(nb Albert)]

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.

 

As BW refused to consider a complaint about this matter it is now with the Waterways Ombudsman having technically exhausted BW's internal complaints proceedure. Perhaps the reason the statement is still there is best summed up by the person that made the complaint -

 

I believe that to make such a misleading statement about the law is both unjust and unfair. It could have very serious consequences for any boat owners who do not have home moorings who believe that the judgement creates a legal precedent. In particular, in misleading these boat owners about the extent of their rights, it could discourage them from exercising their right to defend themselves against Section 8 action or against a threat of having their licence revoked. In the case of people who live on their boats, this could mislead them into giving up their home unwillingly or failing to defend themselves against Section 8 action and having their home, often the only asset they own, removed from them. This would be an injustice of the most serious nature; there are few things more devastating than losing one's home.

 

My understanding, from correspondence I have seen, is that BW made the same statement in a private letter to the complainant which had resulted in a previous complaint. As such, BW would have known that the statement was grossly misleading prior to publication. I therefore tend to the 'deliberate act' rather than 'mistake' point of view.

 

BW's intransigence in retracting the statement only reinforces that view.

 

BTW, it should be marketing director Simon Salem providing an explanation not Paul Morgan.

Edited May 17, 2011 by Allan(nb Albert)

[KenK]

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.

 

I did say I wasn't a lawyer.

 

So if a higher court makes a decision then the lower court must abide by that decision. Then the appeal would be held in the higher court which could reverse the decision it made originally. Is that correct?

 

Ken

[mayalld]

My understanding, from correspondence I have seen, is that BW made the same statement in a private letter to the complainant which had resulted in a previous complaint. As such, BW would have known that the statement was grossly misleading prior to publication. I therefore tend to the 'deliberate act' rather than 'mistake' point of view.

 

Yes, but much as we must judge BW from their actions, we must judge your opinion based on our knowledge that you habitually see a conspiracy at BW.

[Allan(nb Albert)]

Yes, but much as we must judge BW from their actions, we must judge your opinion based on our knowledge that you habitually see a conspiracy at BW.

 

I think its more a case of judging BW from their inaction. In particular, not correcting something they know to be grossly misleading.

 

At least I have some knowledge on which to base my opinion for why they have not done so. If you do not accept it or make a different interpretation, that's fine by me.

 

In this particular case matters little if it you tend towards the cock up or the conspiracy theory. BW should rectify the injustice now and not wait months for the Waterways Ombudsman's report to confirm what we already know.

[Spesh]

I did say I wasn't a lawyer.

 

So if a higher court makes a decision then the lower court must abide by that decision. Then the appeal would be held in the higher court which could reverse the decision it made originally. Is that correct?

 

Ken

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.

 

I think its more a case of judging BW from their inaction. In particular, not correcting something they know to be grossly misleading.

 

At least I have some knowledge on which to base my opinion for why they have not done so. If you do not accept it or make a different interpretation, that's fine by me.

 

In this particular case matters little if it you tend towards the cock up or the conspiracy theory. BW should rectify the injustice now and not wait months for the Waterways Ombudsman's report to confirm what we already know.

 

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.

[Allan(nb Albert)]

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.

 

At least we seem to agree that the press release is wrong and it should be corrected. As BW were told on the 6th April that it was wrong and should be corrected, is that another cockup?

[Sir Nibble]

At least we seem to agree that the press release is wrong and it should be corrected. As BW were told on the 6th April that it was wrong and should be corrected, is that another cockup?

It's not down to BW, they have their instructions from their masters at the priory of sion who have to continue to divert attention away from their assassination of JFK which had to be carried out to thwart his plan to fake moon landings. Cock up? I don't think so!

[Spesh]

At least we seem to agree that the press release is wrong and it should be corrected. As BW were told on the 6th April that it was wrong and should be corrected, is that another cockup?

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.

[Sir Nibble]

The entire suggestion of dire consequences arising from this innacurrate statement seems overblown to me. There are two types of people who will read the guidelines, those who accept the commonsense view and will either be off on a long continuous cruise or accept that ccing is unsuitable for their need to remain in one area, and those who are still busily convincing themselves that their heavily self interest influenced reading of the law takes precedence. I cannot see this innacuracy having any effect upon anyone; unless it is seen as conclusive evidence that the whole guideline is a deliberate lie.

[sueb]

Don't be ridiculous. Think for a moment before posting such curmudgeonly rubbish.

I know you love insulting me but you can't pretend that the case BW v Davies cost BW nothing. Also enforcement costs money not able to be spent on maintenance.

Sue

[Allan(nb Albert)]

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.

 

I suggest you read up on BW's two stage complaints procedure and the waterways ombudsman system before making comments on what you think constitutes a complaint and how it is handled.

 

Looking at the documentation that has been sent to me it seems -

 

• 
   
  
• That a complaint was made to BW that part of the wording in a letter sent to a boater was misleading. This was several months ago.
  
• That the complaint was not resolved at level 1 or 2 of BW's internal complaints procedure.
  
• The complaint was passed to the waterways ombudsman who ruled on it.
  
• BW subsequently issued a press release which contained the exact same wording.
  
• Another complaint was made.
  
• BW refused to consider the complaint on the grounds that it was not substantively different from a previous complaint.
  
• The complainant took the complaint to the waterways ombudsman (as allowed by the procedure) on the basis that it is substantively different saying that the difference is that of misleading in a private letter and a press statement that has been reproduced elsewhere (including narrowboatworld but not by me!).
   
  

 

The waterways ombudsman has yet to publish her report for 2010/11 so her findings for the initial complaint are not in the public domain. My guess (I have not been given access to the WO's report so it is a guess) is that the original complaint was upheld but the WO held that the claimant had not suffered loss as BW's statement was not believed. Alternatively, the WO may have advised the complainant that she was unable to investigate the complaint as no personal loss had been suffered.

 

Based on my experience, the WO will uphold the current complaint and BW will be required to issue a press release retracting its claims. However, this will be months down the track.

Edited May 17, 2011 by Allan(nb Albert)

[Allan(nb Albert)]

I know you love insulting me but you can't pretend that the case BW v Davies cost BW nothing. Also enforcement costs money not able to be spent on maintenance.

Sue

 

May I suggest a foi request......

[blodger]

How much do the cmers cost BW? Much more than a foi.

Sue

Some loss of revenue depending on how much BW would make from 'cmers' having a mooring not an expenditure cost until you start taking action.

 

If you think it through and force all to have a mooring the so called problems will not evaporate because folk will still moor where they want to not necessarily on the home mooring. It is not about cost for the majority.

[paulmorgan]

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.

 

Spesh,

I'll ask the lawyer handling the case for BW if she's in the office tomorrow about it, and I'll try and speak to the press office and see if anything comes back. The press releases are entered by the press office into the system, so I have no direct input into them... apart from making sure it doesn't fall over.

 

BTW, to add more fuel to your discussions I've googled around and found this interesting Wikipedia article on "Stare decisis" and "jurisprudence constante" which may give things a little more context. In particular, read the opening summary and then the English Legal System, Interpretation and Judicial resistance sections - the wrinkle seems to be in a civil as opposed to criminal context.

 

http://en.wikipedia.org/wiki/Stare_decisis

 

Anyway hth,

Paul

 

It's not down to BW, they have their instructions from their masters at the priory of sion who have to continue to divert attention away from their assassination of JFK which had to be carried out to thwart his plan to fake moon landings. Cock up? I don't think so!

 

Dude! shush! I'm making a fortune in Moon rocklets on ebay.

 

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.

 

is it this FOI request on whatdotheyknow.com that you want to see Spesh?

 

http://www.whatdotheyknow.com/request/british_waterways_vs_davies#incoming-174565

 

All the best,

Paul

Edited May 17, 2011 by paulmorgan

[Allan(nb Albert)]

******** Post deleted as the question posed answered in the post above.

Edited May 18, 2011 by Allan(nb Albert)

[ymu]

Am I alone in thinking that they may have shot themselves in the foot with:

That's been in it forever though.

 

I can't even see what's changed, on a quick glance through.

 

I should catch up with the thread though ...

 

So does this mean that shuttling up and down a short distance isn't bona fide for navigation even if you aren't Paul Davies? What if another judge decides it is? Does that overturn the earlier verdict or is it acceptably consistant for two judgements to be mutually exclusive?

The implication of the judgement seems to be that you could do what Davies did if you were genuinely fascinated by that ten mile stretch and wanted to spend the rest of your life on it.

 

The problem appears to be that Paul Davies was doing it just to be able to live on his boat and keep his job. And admitted it.

[Allan(nb Albert)]

Spesh,

I'll ask the lawyer handling the case for BW if she's in the office tomorrow about it, and I'll try and speak to the press office and see if anything comes back. The press releases are entered by the press office into the system, so I have no direct input into them... apart from making sure it doesn't fall over.

 

Anyway hth,

Paul

 

Hi Paul

 

It is very good of you to offer to undertake this.

 

Assuming that your lawyer handling the case agrees that the press release is incorrect, can you find out why no action was take to remedy the situation when it was brought to the attention of Kelly Radley (Head of Customer Relations) on the 6th April. Indeed, the response from Ms Radley indicates a complete reluctance on the part of BW to address the issue.

[mayalld]

I think its more a case of judging BW from their inaction. In particular, not correcting something they know to be grossly misleading.

 

It is all a matter of process.

 

BW will have a process for issuing press releases etc, that is optimised for speed, and with a process for authorisation.

 

They probably don't have a simple process for altering one, which will mean that it has to go through some longer process to get it sorted.

 

Whilst this may not suit this case, there has to be some proper process of authorisation and audit trail to ensure that changes to the site are authorised.

[Allan(nb Albert)]

It is all a matter of process.

 

BW will have a process for issuing press releases etc, that is optimised for speed, and with a process for authorisation.

 

They probably don't have a simple process for altering one, which will mean that it has to go through some longer process to get it sorted.

 

Whilst this may not suit this case, there has to be some proper process of authorisation and audit trail to ensure that changes to the site are authorised.

 

Agreed but as you say it does not suit this case. BW has already rejected a request made on 6th April that the press release be corrected.