Moore v British Waterways Board [2012] EWHC 182

[Allan(nb Albert)]

No he couldn't.

 

Edited to add: Not successfully, at least.

 

Agree with Carl!

 

Article 8 states

 

Everyone has the right to respect for his private and family life, his home and his correspondence.

 

Also 'There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'.

 

Quite simply, if you are breaking the law and an authority acts appropriately then, as Carl says, you can not successfully claim your rights are infringed under Article 8.

[mrsmelly]

No it's totally different, really.

 

The British Waterways Act is a shoddily written piece of legislation, cobbled together from previous bits of law, by a government not that interested in the matter.

 

The Highways Act is a comprehensive piece of legislation with surprisingly few loopholes, considering the size and complexity of the subject matter, put together using the time and expertise befitting such an important piece of law.

 

Wether a shoddy bit of legislation or not, it is still a piece of legislation and I for one find it very simple and obvious how to comply with it. The problem is with is being as you rightly say shoddy it holds itself open to the few pee takers that we have out there. If the pee takers contnue they may score an own goal by forcing tougher legislation that doesnt pussy foot around and they may find their boats are then in far greater jeopardy than at present if they fail to comply.

[mayalld]

Agree with Carl!

 

Article 8 states

 

Everyone has the right to respect for his private and family life, his home and his correspondence.

 

Also 'There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'.

 

Quite simply, if you are breaking the law and an authority acts appropriately then, as Carl says, you can not successfully claim your rights are infringed under Article 8.

 

 

That is the point!

 

It has been shown that every point upon which Mr Moore sought to argue that his mooring was lawful was dismissed. It has been established that the mooring was unlawful.

 

The HRA then sets a further barrier, that says "Even if somebody's home is unlawful, you can't deprive him of it unless that action is proportionate"

 

No it's totally different, really.

 

The British Waterways Act is a shoddily written piece of legislation, cobbled together from previous bits of law, by a government not that interested in the matter.

 

The Highways Act is a comprehensive piece of legislation with surprisingly few loopholes, considering the size and complexity of the subject matter, put together using the time and expertise befitting such an important piece of law.

 

I can't argue against your views of the relative merits of the two sets of legislation.

 

It is, however (as you already know) a complete red herring.

 

Notwithstanding that the BW Acts are a dogs breakfast, and that this made the judges task more complex, he very clearly found that Mr Moore's boats were unlawfully moored. There was, in this case, no loophole.

 

It isn't a loophole in the BW Acts that was found. The only thing that now remains is that the Judge has provisionally found that the haste with which BW acted may have breached Mr Moore's human rights. He will, ultimately, have to go. The only thing to be decided is how much longer he can string it out using HRA.

[Ray T]

Thank you Allan & Dave, it is a lot clearer now.

[David Mack]

I hope (possibly against hope) that BW/CaRT have learnt from this episode, and they get themselves better organised, communicate better, improve and streamline the rules/regulations/statutes/whatever to enhance clarity and legality in boating for everyone, so that every boater can see what we can do, and what we shouldn't. Then, at last, the limited funds of CaRT can be used to improve the waterways for all boaters, and those that decide to flout the rules may be easily determined and brought to book.

 

Unfortunately not. As I understand it, the case revolved around lots of different bits of law, going back to the original Grand Junction Canal Act under which the canal was originally built and various bits of subsequent legislation, as well as common law issues relating to public rights of navigation. Moore had done a whole lot of research which led him to one conclusion, BW's lawyers therefore had to do likewise to refute his case, and the judge had to review both interpretations and come to a conclusion - which was in BW's favour.

 

To resolve all this lot formally would require an awful lot of legal and parliamentary work, at enormous cost, and to very little benefit (since cases like Moore's are infrequent), and this simply wouldn't be a priority for BW/CRT, Parliament or the courts.

 

And I guess some precedent has now been set which can be invoked in any future similar case.

 

David

[KJT]

Ahh

 

Good now I understand it clearly........Hes a freeloader and doesnt want to comply with the simple bit of legislation that I and many others adhere to. Thanks Dave, have a greenie.

 

 

 

Its very similar realy. There are a small minority of boaters who will use any means to avoid paying, just as there are a small minority of car drivers who do the same. Both are a pain in the arse and both very similar to worse criminals soon shout out " Injustice " when they cant get their own way easily. The human rights crap is just a modernistic way to be a pain in the butt. I have never had my Human Rights infringed by BW or anyone else for that matter.

 

Thank you....thats my understanding as well!

 

And we end up indirectly paying for the legal costs through our hard earned licence fees!

[Allan(nb Albert)]

Thank you Allan & Dave, it is a lot clearer now.

 

Well actually its not!

 

There has been a lot muddying of the waters. For example, the issue of why BW infringed Moore's human rights has nothing to do with mooring as has been implied. Quite simply, BW attempted the reason BW gave for removing Moores Boat was that it was unlicensed. Moore claimed that he did not need a licence because of a right of public navigation. This he managed to show to the satisfaction of the judge. Thus BW was wrong in attempting to remove his boat for the reason it gave. However, it was BW not following its own procedures which would have meant that he would have been given the opportunity to explain his position in court prior to action being taken that led to the infringement of his rights.

 

On the subject of mooring there will be an appeal because of contradictory findings. Having agreed that Moore does not need a licence the court is suggesting that he needs a houseboat certificate (which is a different type of licence) to moor against his own property.

 

It was because of the complexity of the case that I tried to pick out in a previous post its relevance to boaters. I said -

 

I would suggest that the important issue is not who won or lost but rather what does this mean to us boaters. This is the same reasoning I have used for Davies vs BW where the outcome for boaters is that BW has watered down and renamed its guidance to the 1995 Act which suggests that previously it was acting ultra vires.

 

As I see it, the case gives NBTA much additional firepower in the judicial review of BW's powers that it has instigated.

 

In particular -

 

• 
   
  
• BW can be shown to be acting in a draconian manner ignoring its own procedures.
  
• Contrary to BW's arguments, the public right of navigation on tidal rivers without a BW licence exists. I might add that this suggests that BW acted unlawfully when, after the conclusion of the Davies case, they declined him entry to Thames Lock last summer!
  
• That BW's legislative framework is a complete mess.
  
• That BW must use Section 8 of the 1983 Act very sparingly and as a last resort. Also if they go down that path, that they must check FIRST whether the boat is a live-aboard and if so engage in court process (this reiterates what took place in the Davies case)
  

 

Does the NBTA have a case? I think they have done the homework and have very good case. The Moore case is just a bit of icing on top.

[NigelMoore]

I still await the approved and sealed Order in the case, plus the final two judgments, so cannot yet speak to those. It is appropriate however, that I respond to some of the fatuous analyses, if only for the record and the interest of those who have read without comment. I will do so in respect of each contributor in turn in separate posts.

 

‘Matty40s’ “Moore lost. Hope this helps”

 

Ah, now if only the judge had known that so brilliantly penetrating a mind had been out there to whom he could have turned for assistance. As it was, he had to struggle with the same question alone. At handing down of judgment he said: “As it seems to me the question of success in this action is more difficult than Mr. Stoner suggests. It depends what the question is. If the question is as you highlighted it to be, and as to some extent - though I will ask Mr. Stoner to comment on this - BWB promoted it to be was: does a vessel exercising only PRN in a tidal stretch require a licence? On that issue, on that highlighted issue, you won. You lost on the bigger issue which was unlawfully moored for want of a right, which Mr. Stoner rightly identifies as having been his ... case ab initio. It is not easy to see; I cannot really tell.”

 

‘Allan (nb Albert’) “. . . this suggests that BW acted unlawfully when, after the conclusion of the Davies case, they declined him entry to Thames Lock last summer!”

 

If that happened, and it has happened to clients of mine in the past so I can well believe it, then it was not simply unlawful it was criminal. Any obstruction to or denial of the public right of navigation is a criminal offence.

[NigelMoore]

‘Mayalld’ Now we come to the genuinely giant brain. “. . . I feel that I have amassed sufficient experience . . . to understand what I don’t yet know.”

 

“1) Mr Moore has engaged in extensive amounts of litigation, in order to prove that he is far cleverer than anybody else, and to prove that he can do exactly as he pleases, whatever BW say.”

 

I sent a letter before action asking for the notices to be withdrawn. At the later initiative of the court following the trial on preliminary issues, I offered to engage in negotiation. BW insisted that litigation was needed to determine the issues. I litigated in defence of my home and my business, confident that I was right in my stated grounds. BW disagreed that I was correct in those, the judge agreed that I was correct. As to whether BW would have continued with the Section 8 threat if they had accepted that which the court found to be true, Mr Justice Hildyard asked the same question: “Supposing they had accepted that no licence was required, what would have happened? It is more difficult to identify.”

 

“2) He was wrong.”

 

In what precisely?

 

“3) He doesn't actually feel it necessary to pay for his little ego trip, and has paid almost nothing of the £6,000 that was awarded to BW in costs.”

 

Defence of my home is a need thrust upon me, not an ego trip. I could perhaps have slunk off defeated, except that I couldn’t, because the boats were undergoing extensive engine works at the time and were incapable of surviving out on the tidal Thames even if they found a place to moor. As to the interim costs, in circumstances where BW had closed down my business and driven off tenants, depriving me of any means of income, they can hardly be surprised at an inability to pay. That will be sorted out in the end in any event. It is the height of absurd insult to claim that the poverty to which BW’s actions reduced me, disqualifies me from defending my corner.

 

“4) BW aren't legal experts when it comes to obscure bits of the system that aren't part of the mainstream.”

 

They don’t need to be, they know perfectly well what the general legal situation is with tidal waters, as evidenced by years of Select Committee Minutes. Johnson knew that perfectly well also; he simply believed that if he lied about it I would be bluffed.

 

“5) Notwithstanding that their reasoning for why the rules apply to Mr Moore was wrong, the end result isn't materially different.”

 

What rules are being talked about? The judge made a finding that Section 8 applied in the absence of any rules being broken; he found that I had NOT broken the only applicable rule [being without a necessary licence], but that Section 8 could be construed broadly enough to encompass situations wherein no positive right of some description could be proven, to permanently moor.

 

There are several end results, some useful, some rather more deleterious than has obviously been grasped by this vast intelligence. I was not found to have been in breach of any mooring regulation – think of the import of that for a moment. It means that, if BW chose, they could Section 8 anyone with online home moorings whenever they wished, unless the landowner could prove some special right to have boats moored there outwith riparian rights [which the judge has declared contain no right to moor].

 

Absent proof of some special and specific right, all online moorings whether owned by BW or privately, are therefore, by the judge’s findings, unlawful. He did not accept that any canal Act gave a sufficient right to moor to the bank either, nor did he wish to consider LPA consent. So how smugly confident can you be, that you are “abiding by the rules”? By this judgment, only perhaps if you are moored offline are you potentially lawful.

 

“6) BW forgot that because they are a corporation, they are expected to be utterly reasonable at all times even though Mr Moore was not, and got a finger wagged at them for that.”

 

I’d be interested to see where the judge ever suggested that I was unreasonable. “Stubborn and relentless” were his descriptions; I have no quarrel with that; quite a different thing.

 

“7) Even though Mr Moore was wrong in every respect as to his rights to moor where he did, the Judge has allowed him that BWs actions may have contravened his human rights.”

 

Untrue. The judge made a finding on the mooring within artificially limited facts and did not suggest that no other rights to moor might be capable of establishment. “If you wish me to clarify it, as I think I did this morning, that if subsequently you were to establish a prescriptive or customary right, I cannot stop you doing that and nothing that I have said is intended to decide one way or the other. I do not think I have decided that.”

 

The judge has since confirmed, following the further day’s hearing, that BW HAVE contravened my human rights.

 

To continue with ‘Mayalld’s masterfully professional forensic dissection of the case -

 

“Mr Moore seeks to set himself apart from other boaters by claiming a right to moor without permission, and without payment, a right that a court has, at considerable expense to BW, but not to Mr Moore, found to be non-existent.”

 

Whence does this massive intellect pluck such gems of insight into the facts of the case? For the record: there has never been a claim to a right to moor without permission, the landowner’s permission applied at all times for the last 65 years. Insofar as any payment might be due, it was down to me whether I charged or not, which mostly I did not and currently do not [while reserving my right to do so when the legal issues have been sorted]. There being no such claim, there has been no relevant finding. As to any payment due to BW, the judge found that if there had been a right to moor, then there would have been no right for BW to charge for it.

 

“The man is a freeloader, who not only isn't paying his way, but has caused BW to spend a significant amount of money on indulging his desire for a day in court.”

 

Off whom am I supposed to be freeloading? What way am I not paying? I wonder how many of you out there would pay for a boat licence if they were assured that they did not need to? I and my friends/clients voluntarily paid for three boats to be licensed even while maintaining at all times that we did not need to – and was vindicated in that by the judge, yet even so, we still pay for licences. Would you?

 

You pompously make a virtue out of your own strict necessity to pay, and accuse others who need not, but do pay voluntarily, of being freeloaders; so morally robust an intellect will doubtless be capable of explicating whatever convoluted path of reasoning underlies the charge?

 

BW insisted on their day in court; they could have simply rescinded the notices as I demanded. They did so, moreover, knowing exactly what the state of my finances were.

[RLWP]

Hi Nigel, Welcome to the forum. I think we may know who you are, however to avoid confusion, would you mind putting something about yourself in the Introduce Yourself thread? It would be as well to be clear before getting into anything contentious

 

http://www.canalworld.net/forums/index.php?showtopic=2704&st=740

 

Richard

[NigelMoore]

Thank you Richard. I will put something brief about myself on that thread later for anyone interested. I suspect, however, that there is quite enough information ‘out there’ already! But in case it is not clear in the context of this thread, I am the eponymous Claimant in the case being discussed.

 

It is always dangerous and misleading when third parties comment on such without paying sufficient care when reading. Even the professional commentators have all got at least one fact wrong somewhere along the line, and that is far worse than when amateurs do the same. In both instances, however, authoritative sounding people are accorded a degree of respect that may be overly trusting.

 

Most of the web articles thus far have concentrated on the Human Rights angle. Only the first one had anything of interest to say and it has taken me a while to absorb some of what she said [it was worth it once it had actually penetrated!] One solicitors’ article only, so far, seems to have dealt with the maritime aspect and they quite egregiously padded the findings [to say something I agreed with, but it had very specifically not formed part of the judgment.]

 

I am more concerned though, with forums such as these where bandwagons are jumped on with too little thought given to facts other than those which superficially appear to bolster the prejudices of one ‘side’ or the other. The tone of many contributors is that of boaters resentful of other boaters’ way of life; the feeling intensifies when some get the idea that they are having to pay more for their fun than someone else.

 

As is usual when a few genuinely selfish operators create tensions through their behaviour, that winds up polarising people into classifications that have no cohesive existence in the wider reality. It is so unnecessary, so unwarranted, and so divisive of a body of canal users that need all the comity possible in the face of the coming changes in administration.

[RLWP]

Thank you Richard. I will put something brief about myself on that thread later for anyone interested.

 

<snip>

 

I would appreciate that Nigel. It would suggest you are here to have a discussion. After all, participating in a tussle with people you don't know is brawling

 

I think you will find people here who support your view as well as people vehemently against it. I am interested to see the resulting discussion, it will help me to understand the issue better

 

Richard

[jenlyn]

Thank you Richard. I will put something brief about myself on that thread later for anyone interested. I suspect, however, that there is quite enough information ‘out there’ already! But in case it is not clear in the context of this thread, I am the eponymous Claimant in the case being discussed.

 

It is always dangerous and misleading when third parties comment on such without paying sufficient care when reading. Even the professional commentators have all got at least one fact wrong somewhere along the line, and that is far worse than when amateurs do the same. In both instances, however, authoritative sounding people are accorded a degree of respect that may be overly trusting.

 

Most of the web articles thus far have concentrated on the Human Rights angle. Only the first one had anything of interest to say and it has taken me a while to absorb some of what she said [it was worth it once it had actually penetrated!] One solicitors’ article only, so far, seems to have dealt with the maritime aspect and they quite egregiously padded the findings [to say something I agreed with, but it had very specifically not formed part of the judgment.]

 

I am more concerned though, with forums such as these where bandwagons are jumped on with too little thought given to facts other than those which superficially appear to bolster the prejudices of one ‘side’ or the other. The tone of many contributors is that of boaters resentful of other boaters’ way of life; the feeling intensifies when some get the idea that they are having to pay more for their fun than someone else.

 

As is usual when a few genuinely selfish operators create tensions through their behaviour, that winds up polarising people into classifications that have no cohesive existence in the wider reality. It is so unnecessary, so unwarranted, and so divisive of a body of canal users that need all the comity possible in the face of the coming changes in administration.

Interesting reading, thanks for taking the time and effort in posting on here.

[NigelMoore]

My apologies for the lengthy posts, am still getting to grips with how this site operates, and separate posts within too short a time span are obviously compiled into one.

 

To continue with the contributions of ‘Mayalld’ -

 

“Where we have one boater acting to the detriment of many boaters . . .”

 

I acted to the benefit of those who had entrusted their boats to my care. Most eventually left, but because of my action they had been given the chance to do so in their own time as they became capable of arranging alternatives. Did they but realise it, many more could benefit hugely from the findings, and no one in future need ever accept the treatment such as Allan mentions of Paul Davies, being denied entry onto public navigable waters.

 

Aside from that, there is, as Allan has touched upon, the very real benefit that accrues to all boaters from the caution that BW will exercise from this point on instead of bullying and bluffing their way when dealing with us. The judge himself since noted that we should, ideally, not need to rely on BW’s interpretation of the law as it stands – one of the prime reasons for his suggestion that they seek consolidating legislation.

 

“I do contend that the HRA is too broadly interpreted, and that it has become the last resort of the scoundrel. When all else has failed, when it has been definitively shown that he is wrong upon every point that he tried to make, Mr Moore plays the "get out of jail free" card of the HRA, effectively saying "yeah, I was wrong about everything, but you should let me get away with it anyway".

 

“Last resort of the scoundrel”? The Human Rights aspect of the case was introduced early in the proceedings at the request of the Appellate judge Lady Justice Arden. A bold move by a bold intellect to accuse her Ladyship of encouraging scoundrelly behaviour. Then, Mr Justice Hildyard took it upon himself to introduce the topic of Legitimate Expectation that founds the charge of human rights abuse. I declined the judge’s offer of more time to make out a greater case for a reason to “get out of jail free” on the HRA ticket, eliciting the response from the judge: “It is very characteristic of you that you have not sought to make a point just for the sake of it. So I am obliged.”

 

“wrong on every point that he tried to make”? See Mr Justice Hildyard’s comment quoted in my first paragraph. In addition to which: "You won on legitimate expectations and at any rate to that extent you demonstrated some infringement, even if procedural, of your human rights and you have my remarks as to my concerns about the way the matter proceeded."

[NigelMoore]

I hadn’t realised ‘Mayalld’ was so prolific but these are the last of his comments I respond to:

 

“BW are footing the legal bill, because Mr Moore has failed to comply with an order for costs;”

 

BW are footing the bill for a multiplicity of reasons having to do with the ratio of success, the proportionality of their aims vis-a-vis human rights, and their behaviour in the course of proceedings. That will only become evident once the approved judgment on costs is available.

 

“the vast majority of it centres on saying that Mr Moore was wrong”

 

I was found wrong on a single issue – that Section 8 applied [against my argument] to licensed boats. The finding re: mooring was a negative finding that I had not proven a positive right to moor – any more than you could establish such a right.

 

“Human Rights are a wonderful thing, I just wonder why it is so necessary that certain people have a human right to stick two fingers up at the rest of us and exercise their right to do as they damn well please.”

 

How does ‘certain people’s defence of their home and possessions when lawfully on the waterways constitute any insult to any other boater equally lawfully on the waterways?

 

“It has been shown that every point upon which Mr Moore sought to argue that his mooring was lawful was dismissed. It has been established that the mooring was unlawful.”

 

The cardinal point on which BW sought to argue that my mooring was unlawful, was wrong and dismissed; the judge found it to be unlawful - not because it infringed any regulation, or because the boats needed a licence (BW’s principle argument), but - because in his opinion I could not prove a positive right for permanently mooring to riparian land. Even then, he has left it open whether other sources of such a right might be claimable.

[NigelMoore]

Well, yes Richard, you are right, and I was hoping to put across the judge’s view as much as my own. Actually, I am not all that sure that ‘my view’ within this topic has any wider application outside of the case.

 

The only ‘views’ I have that I can think of as being pertinent in general terms [but arising from the specific case], is that we should be able to trust to the representations made by the authorities; be able to have confidence that a situation they have approved for years will continue to be approved; that we are treated with transparency, respect and honesty; that actions taken are for the genuine benefit of the waterways and its users rather than for the indulgence of ulterior motives; that correspondence/discussion will always be entered into before taking any action, and that BW will abide by the law just as they may reasonably expect us to.

 

Do you mean ‘support/oppose my position’ more than ‘support/oppose my view’? Most don’t appear to understand quite what my position is/was, not surprisingly of course. My former company provided moorings on the Brent since 1947 and are mentioned as mooring providers in Philip Priestly’s 1987 book on Living on Boats.

 

Enough detail is mentioned in the judgment to get a glimpse of the history, but we had been mooring boats online continuously since 1990 [which was when I first turned up in my brand new shell]. Not only was this with BW’s knowledge and approval [so long as the boats were licensed], all three of the remaining boats have been licensed while mooring there and ‘Gilgie’ in particular, in 2009, was assured that BW would be happy to continue licensing her while continuing to moor there.

 

BW had always understood the moorings to be private facilities as described in their earliest booklets and the BW and then Waterscape websites. My position/view had always been that we were not required to have the licences BW insisted on, but we asked that all boat owners on the cut license their boats anyway; I simply did not want the complication of tussles with the authority when those on the cut were there because they wanted [usually] to be in a position to cruise at a moments notice [which the boats inside the basin could not do, due to the variance in tide levels].

 

It was only when BW teamed up with the new Town Centre developers that they formed what I describe in the case as a tag-team with the developer, and slapped Section 8’s on most of us within a month of our mooring online, on the facilities we had been using with BW’s approval/acquiescence for over 10 years. The charge was that we were unlawfully moored because unlicensed [which was indeed true at the time, because we had not finished the work on most of them that would qualify them for the BSSC.

 

So my position/view? It was and is, that BW had no right to ‘Section 8’ us where we needed no licence and were moored to private riparian property on moorings they had acquiesced in for over a decade, and that they had no right to spring such notices on us anyway, without prior warning and discussion. They had had my mobile number and all other contact details for years.

 

I get a vague impression that some people have automatically classed us as ‘continuous moorers’ violating the ’14 day rule’. Perhaps there are other things they have in mind, some other ‘rules’ that they think we have broken – in which case I would be interested to know what those might be and why it is thought that they apply.

 

I know that there are those who are supportive; they are usually those who know the facts of the situation - and there are some commentators on this topic in this forum who have an obviously open mind. Putting the facts out there will hopefully help them understand the wider implications, and I am happy to answer specific questions.

 

For me personally, the specific issues are most important and I am appealing the mooring issue on two fronts, both of which affect everyone on the waterway network – but it is the front concerning the application of Section 8 that will benefit others more than me. It is curious that no-one appears to have picked up on this aspect of the case yet.

 

Interesting reading, thanks for taking the time and effort in posting on here.

 

You’re welcome. This is ‘holidaying’ in the midst of preparing for the appeal – it is good to break away from the concentrated effort from time to time. Time for bed now though, the time shift has taken me unawares!

[Nose Miner]

Thank you Sir, for your erudite explanations of the facts of the case. I, for one, fully support your right to challenge BW. If more people did so, their behaviour with regard to boat owners would be more consistent, reasonable and fair, to the profit of us all.

 

I must say, it is also good to see a well argued rebuttal of a certain pompous idiot on here! An enjoyable read.

[NigelMoore]

Hi Nigel, Welcome to the forum. I think we may know who you are, however to avoid confusion, would you mind putting something about yourself in the Introduce Yourself thread? It would be as well to be clear before getting into anything contentious

 

http://www.canalworld.net/forums/index.php?showtopic=2704&st=740

 

Richard

 

Done

[RLWP]

Done

 

Excellent

 

Richard

[NigelMoore]

I, for one, fully support your right to challenge BW. If more people did so, their behaviour with regard to boat owners would be more consistent, reasonable and fair, to the profit of us all.

 

Agreed. It is the [justified] feeling of invulnerability from consequences that has encouraged and enabled the attitude that they take to date. This latest judge in my case has been excellent, thorough and conscientious, despite his lack of experience in marine law – but I do regret that he copped out of the personal responsibility issues that I had brought in the case.

Considering those would really have helped us all enormously, but when a court simply declines to consider your case, there is little, so far as I know, that you can do [short of having a good whinge about it on appeal!]

 

Still, I more than made my case so far as corporate behaviour goes, so I should be grateful for that much. As you might expect, very little of the evidence of what actually has been going on outside of the court during these years has been explicitly recognised in the judgment; nonetheless it was there for the judge to see and it enabled him to see sufficient of the true state of affairs supporting his criticisms. The behaviour was not simply a matter of ‘forgetting’ to follow procedure.

 

Others should take encouragement from the fact that courts CAN uphold criticism of BW and their methods, and that the playing field is not quite as uneven as one might expect. And for further encouragement, I can vouch for that the fact that, after the first year’s contemptuous and despicable conduct, which led to my interim application for an injunction, BW quieted down and left matters largely to the lawyers – they did not wish a repeat of such action; it does work!

 

I would just add the caveat that you need to be absolutely confident of your facts, have them to hand with incontrovertible evidence, and you need to approach matters with icy calm and decorum as dispassionately as possible, for the court to take you seriously. I have to admit that the latter is not my strongest point, but I’ve been learning.

[Leni]

I would just add the caveat that you need to be absolutely confident of your facts, have them to hand with incontrovertible evidence, and you need to approach matters with icy calm and decorum as dispassionately as possible, for the court to take you seriously. I have to admit that the latter is not my strongest point, but I've been learning.

 

Very well done, sir! And thank you for coming here to enlighten us with the facts. I am not sure if you are feeling very 'icy calm' posting here, but I have to say you have presented yourself extremely dispassionately and with great decorum!

 

Good luck with your appeal.

[NigelMoore]

I am not sure if you are feeling very 'icy calm' posting here,

 

Well, not altogether perhaps. I am conscious of an ascerbic tone slipping in there a few times! But thank you.

 

I will use response to the few other adverse comments as a base for some further explanation of the issues and consequences -

 

‘Grace and Favour’ - “Mr Moore's case was verging on the spurious - for if no great advantage has been achieved for the common boater, there has been a deal of puff and expense incurred by BW that they/CaRT can ill afford.”

 

What idiot considers defence of one’s home a spurious action? BW ignored precisely the argument here that I had advanced to them years ago. That huge amounts of money were being expended over the past decade to no better end than eviction of me and other boaters in the area to make way for more profitable enterprises in which BW could share. For them, it was apparently worth the risk.

 

The advantage of any challenge to BW whether successful or not, is the extra care they are likely to take in future, knowing that they actually can be held accountable and may need to find ways of justifying their actions in court. This time, they couldn’t justify their actions, even in circumstances where the judge decided that they could move me off from this mooring. Next time they may well think first, and think hard, and that is a huge advantage.

 

“. . . those that decide to flout the rules may be easily determined and brought to book.”

 

Again, what rules are everyone referring to? The judge made his findings on the basis that Section 8 applied outwith breach of any rules, none of which I had breached. The only breach claimed by BW was lack of a licence, which was a claim the judge rejected. Tilting at windmills may be amusing to watch but it is not productive of useful discussion. Identification of your target would be helpful.

 

There was nothing of wider value in what BW did in my case, because nothing had changed in the last 10 years, nothing has changed now, and nothing will change, even if ‘Gilgie’ moves off – there are still another two boats left on my moorings, again, like ‘Gilgie’, voluntarily licensed. The only practical consequence for BW is that they have lost the revenue from licences for the boats that chose to leave the system altogether. [And, if I failed at appeal, the licence revenue they currently enjoy from ‘Gilgie’.]

 

Nor, as a further point [and somewhat bizarrely], have the terms of Section 8(2) been enforced by the judge with respect to ‘Gilgie’. She is not forced off the system – as the judge recognised: “The licence that you took out without prejudice in respect - or the owner did - in respect of “Gilgie” . . . was not a continuous cruising licence; it was a home mooring licence - as long as that is identified. Because I think what is got at is obviously having paid for it, you are entitled, over and above any other freedom, to use your rights as paid for.”

 

That reveals, perhaps, something of a misunderstanding of the judge as to contradictions within his reasoning. Because he has not declared that BW can action Section 8(2), his judgment is more of an approval of exercising Section 8(5). He recognises the right of the boat to remain on the waterways, whether tidal or canals, whilst failing to remember his recognition earlier that the only remedy available under Section 8(2) is expulsion from the system [the contradiction in terms forms a basis for appeal].

[NigelMoore]

One last round of dealing with comments, rounding off with a truly interesting point of debate, outside of the “I pay so why shouldn’t they” class of diatribe:

 

‘MrSmelly’ “He’s a freeloader and doesn’t want to comply with the simple bit of legislation that I and many others adhere to”

 

Another ‘Brain of Britain’. Previous comments refer. Freeloading off whom? What simple bit of legislation? I haven’t found one person identifying what simple bit of legislation they have in mind when spouting this nonsense. Really, stop to think, because it affects you all. Perhaps when you identify the legislation/rules you think BW are legitimately ‘punishing’ me for, the situation may become clearer, and the discussion can turn on real targets.

 

“There are a small minority of boaters who will use any means to avoid paying, just as there are a small minority of car drivers who do the same. Both are a pain in the arse and both very similar to worse criminals soon shout out " Injustice " when they cant get their own way easily. The human rights crap is just a modernistic way to be a pain in the butt.”

 

Once again you need to stand back and question what it is you are referring to. Avoid paying what? Calling me a ‘pain in the arse’ and a ‘criminal’ needs some foundation. For so long as boaters like this are complacent that they know the issues, know the law, and believe that BW invariably apply it for the good of us all, then for that long we will have confusion and suffer the injustice that feeds upon that. Lady Justice Arden, Mr Justice Hildyard take note; your concerns were just crap support for a lesser criminal.

 

‘NB Ellisiana’ “Thank you....thats my understanding as well!”

 

Yet another member of the maritime intelligentsia. Doubtless one of ‘Mayalld’s school of esoteric philosophy, understanding what they don’t yet know. Quite a trick. I recommend getting to know the issues that you don’t yet know. You will all otherwise continue to spend much valuable leisure time hurling vitriol at each other on matters that genuinely don’t affect you and are just the knee-jerk reactions of unjustified resentment. I believe that I do know what your imagined targets are, and I don’t fit into the category, but if I am wrong then inform, don’t just insult on the basis of unthinking assumptions.

 

“And we end up indirectly paying for the legal costs through our hard earned licence fees!”

 

As do we all, through our boat licences – and our taxes; on top of which I have funded everything on my side with not a single cent of financial or moral support from those who could, should they choose, demand refunds of the hundreds of thousands of pounds criminally extracted by BW over the last 20 plus years.

 

“Wether a shoddy bit of legislation or not, it is still a piece of legislation and I for one find it very simple and obvious how to comply with it. The problem is with is being as you rightly say shoddy it holds itself open to the few pee takers that we have out there. If the pee takers contnue they may score an own goal by forcing tougher legislation that doesnt pussy foot around and they may find their boats are then in far greater jeopardy than at present if they fail to comply.”

 

I do not find the legislation shoddy; I find it simple and obvious as most probably do, but you cannot be one of them, because you cannot identify what legislation it is, that you purport to understand and comply with in this context. As the judge has appreciated, we have contravened no legislation. What have you discerned that the judge has not been able to?

 

‘David Mack’ “I guess some precedent has now been set which can be invoked in any future similar case”

 

Indeed. Unless I am successful at appeal, which I am completely confident I ought to be, then every online moorer is subject to seizure by BW at their whim. If you cannot come up with some special and specific right to permanently moor where you do - outside of riparian rights, or Enabling Act conferred rights, or LPA consent - you are now vulnerable. If I am a “pee taker” [in the elegant vocabulary of ‘Ellisiana’], then, for the same reason, so are most of you.

 

The situation is not quite as drastic as it sounds, because of course BW will not want to rid themselves of our valuable income source wholesale – but the judgment does currently give them the tools to extract anyone they want to in the same situation.

 

As the Rosalind English article suggests, the case in that respect strikes at the heart of the constitutional principles underlying our legislation, in that it grants power to an authority to exercise draconian powers arbitrarily, where the victim is guiltless of any breach of law.

 

It places the onus on you, the boater with a home mooring, to somehow prove a right to permanently moor there; a right that does not arise from your landlord’s interest in the land; has not been conferred by BW [via enabling statutes], and does not depend upon permission of the LPA.

 

Now there’s food for thought worthy of discussion.

[Morat]

Indeed. Unless I am successful at appeal, which I am completely confident I ought to be, then every online moorer is subject to seizure by BW at their whim. If you cannot come up with some special and specific right to permanently moor where you do - outside of riparian rights, or Enabling Act conferred rights, or LPA consent - you are now vulnerable. If I am a “pee taker” [in the elegant vocabulary of ‘Ellisiana’], then, for the same reason, so are most of you.

 

Hang on, what is an "online moorer"? I thought there were people with permanent moorings (whether online, in a marina or wherever) and Continuous Cruisers. Are you saying there's a third category?

[RLWP]

 

‘Matty40s’ “Moore lost. Hope this helps”

 

Ah, now if only the judge had known that so brilliantly penetrating a mind had been out there to whom he could have turned for assistance.

 

<snip>

 

 

 

 

‘Mayalld’ Now we come to the genuinely giant brain.

 

<snip>

 

 

 

‘Grace and Favour’ - “Mr Moore's case was verging on the spurious - for if no great advantage has been achieved for the common boater, there has been a deal of puff and expense incurred by BW that they/CaRT can ill afford.”

 

What idiot considers defence of one’s home a spurious action?

 

<snip>

 

 

<snip>

 

‘MrSmelly’ “He’s a freeloader and doesn’t want to comply with the simple bit of legislation that I and many others adhere to”

 

Another ‘Brain of Britain’.

 

<snip>

‘NB Ellisiana’ “Thank you....thats my understanding as well!”

 

Yet another member of the maritime intelligentsia.

 

<snip>

 

 

Nigel, when you signed up to this forum, did you read the conditions you agreed to follow? Specifically:

 

You agree, through your use of this service, that you will not use this forum to post any material which is knowingly false and/or defamatory, speculative,, inaccurate, aimed to deceive, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or otherwise volatile of any law.

 

Abusive and defamatory seem the appropriate words here

 

Richard