Judicial Review of the Guidance for Boaters Without a Home Mooring

[jenlyn]

Update from Jonothan Ludford CRT:

 

20 May 2014

Brown vs Canal & River Trust – summary of key points

The Canal & River Trust is committed to being open and transparent. Specifically we are committed to making available information regarding the recent Judicial Review hearing.

Following the hearing held in London on 19 February we obtained copies of the official Court approved transcript of the Judgment and the transcript of the court proceedings that led up to the Judgement. We then asked the court whether there was any objection to us publishing these transcripts and we were informed that although Mr Justice Lewis did not have any issue with us publishing the approved judgement (which we did on our website recently) he did not approve of us publishing the transcript of the court proceedings.

 

Update 21 May 2014: You can now read the email exchange between the Canal & River Trust and the Court. Please click on this link to view.

We note that the unapproved transcript of proceedings has recently been made available elsewhere on the internet, in spite of Mr Justice Lewis not having approved its publication.

Mr Justice Lewis didn’t give his approval, we understand, because he did not want the transcript of the hearing to be misinterpreted as a judgment of the court, stating that the transcript of the hearing is simply a record of what was debated and discussed during the proceedings (which has not been checked by either party or the Judge) and is not binding in any way. Until we have that permission we’ve not felt it right or proper to go against the express wishes of a High Court Judge.

We refute any suggestion that we do not want boaters to see the transcript; we support the full disclosure in principle, but wish that others had not gone against the views of the Judge by circumventing the approval process.

 

The hearing

Regarding the hearing, Mr Justice Lewis did not reach a decision on the claim itself, following the discontinuance of the action by Mr Brown and, as such, there is no binding Judgment on which courts may rely on in the future. However, a number of relevant points were discussed during Mr Justice Lewis’s questioning of the claimant’s case and this note summarises them.

 

Brown’s challenge not supported by evidence

Mr Justice Lewis did not see the point of Mr Brown’s challenge on the Trust’s Guidance in the abstract.

Firstly, he did not see how Mr Brown could establish that the Guidance was unlawful in the absence of a proper factual context. Mr Justice Lewis noted that Mr Brown had not provided enough evidence of his own boat movements against which it would be possible for a court to judge whether the Guidance accurately reflected the requirements of the Act. In fact, the Judge expressed some interest as to why Mr Brown had not submitted evidence on his own boat movements, which he surmised (on the limited evidence before him) were probably very similar to the movements of Mr Davies (in British Waterways –v- Davies heard in Bristol County Court on 31^st March 2011) which had been held by a county court judge not to meet the requirements of bona fide navigation. Mr Justice Lewis was very reluctant to get into abstract arguments in the absence of a set of facts and queried whether the case had any useful purpose at all.

 

Guidance not in itself objectionable

Secondly, during proceedings, it became increasingly obvious from the Judge’s questioning of Mr Brown’s counsel, Martin Westgate QC, that he saw very little which was objectionable in the actual wording of the Guidance and in particular that he did not agree with Mr Westgate’s assertion that there was anything in the wording which created an overall impression of not being in compliance with the Act. The Judge appeared to view the Guidance as a valid interpretation of section 17(3)©(ii) of the British Waterways Act 1995, in terms of setting out the Trust’s general approach to the requirement for boaters without a home mooring to use their vessel bona fide for navigation throughout the period of their licence. He repeatedly challenged Mr Westgate to identify which words in the specific clauses from the Guidance he objected to.

 

Definition of ‘Place’

Mr Justice Lewis did observe that the word “place” was used both in section 17(3)©(i) in the context of a home mooring or other “place” where a boat may be kept, and in section 17(3)©(ii) in the context of a boater without a home mooring not remaining in any one “place” for more than 14 days. The Judge commented that usually it was desirable to interpret a word in the same way where it appeared in the same legislation, however, he came to no conclusion about whether the word “place” could be interpreted in the same way here (and indeed spent some time reflecting on the quite different meaning implied).

 

Bona fide navigation is not ‘shuffling’ – Davies case helpful

The Judge accepted that defining bona fide navigation was difficult to do in the absence of a factual context of a particular case, although he did agree that a boater could not simply “shuffle” between one place and another nearby place for the purposes of section 17(3)©(ii) and that the Davies case was helpful in this regard. He reiterated that whether a particular boater was, in fact, complying with the terms of this subsection would always turn on the facts of the case and this was why he was unwilling to get into a detailed analysis of hypothetical scenarios of boat movement. He challenged Mr Westgate by asking him whether it was his case that an otherwise static boat making an occasional trip to a canalside pub could theoretically be in bona fide navigation.

 

Brown discontinues review and costs awarded to the Canal & River Trust

Mr Brown decided to apply to discontinue the judicial review only after the Judge had clearly implied that he did not see any merit in his claim and that he could not make a judgement in the absence of specific facts about boat movements, whilst seeming to find nothing unlawful in the Trust’s Guidance.

At the end of the trial, Mr Justice Lewis ordered Mr Brown to pay the Trust’s considerable costs up to the date when Mr Brown obtained Legal Aid funding (which carries with it automatic protection against having to pay the other side’s costs). In addition, there was also a relatively small amount of costs incurred by the Trust prior to the decision of Lord Justice Jackson in summer 2013 to allow the judicial review to go ahead which are not recoverable.

Whilst he understood that Mr Brown was not represented until just before the trial, Mr Justice Lewis noted that Mr Brown’s written grounds for review were very lengthy and difficult to digest. He acknowledged that this would have resulted in the Trust having incurred considerable wasted costs when preparing for the hearing.

 

As is usual with such court cases, the Trust will be submitting a detailed breakdown of its costs figures to Court before a specific costs figure can be approved and will then proceed to recover the costs it has incurred on this abortive process.

 

 

The Canal & River Trust is a new charity entrusted with the care of 2,000 miles of waterways in England and Wales. Get involved, join us - Visit / Donate / Volunteer at www.canalrivertrust.org.uk

Canal & River Trust is a charitable company limited by guarantee registered in England & Wales with company number 7807276 and charity number 1146792. Registered office address First Floor North, Station House, 500 Elder Gate, Milton Keynes MK9 1BB.

Elusen newydd yw Glandŵr Cymru sy’n gofalu am 2,000 o filltiroedd o ddyfrffyrdd yng Nghymru a Lloegr. Cymerwch ran, ymunwch â ni - Ewch i Rhoddion a Gwirfoddoli yn www.glandwrcymru.org.uk

Mae Glandŵr Cymru yn gwmni cyfyngedig drwy warant a gofrestrwyd yng Nghymru a Lloegr gyda rhif cwmni 7807276 a rhif elusen gofrestredig 1146792. Swyddfa gofrestredig: First Floor North, Station House, 500 Elder Gate, Milton Keynes MK9 1BB.

Jonathan not a member of this forum then?

[NigelMoore]

Having read the email correspondence just now [from the linked site provided], I am less impressed with Mr Ludford’s transparency.

 

The difference in the way the judge’s comments have been put forward in the ‘update’ and the way it reads in the court email, may be subtle, but no less striking for all that. The CaRT ‘update’ gives the impression that the judge positively disapproves of publishing the proceedings, whereas he actually simply refused to give his official approval [for which CaRT were asking] – for the reasons stated.

 

To quote:

 

“It remains the Judge’s position that nothing should be said to indicate that the contents of the transcript have been approved (they have not).

 

Similarly nothing should be said to indicate that the judge has approved the publication of the transcript on a website or by other means. Any such statements would not accurately reflect the position.

 

The judge cannot prevent any individual or organisation from distributing the publication of the transcript of the proceedings or putting it on a website. Equally, he does not propose to agree to its publication, for whatever purpose, on a website.”

[Alan de Enfield]

There are C&RT employees / Staff / Managers who are members on here - you would have expected them thought that they would welcome the opportunity to present their side of the various stories being discussed in a number of similar threads.

 

I suppose that by asking 3rd parties to post information on their behalf they assume there can be no questions asked of them

[Ssscrudddy]

If CaRT are carrying on like that, it isnt just some rogue employee doing it, it will be driven by the management. The bog standard employees probably have it in their contract that they cant talk about any of these things, & even if they dont have that restriction, they more than likely dont want to risk their jobs by sounding off about 'work'.

[Allan(nb Albert)]

There are C&RT employees / Staff / Managers who are members on here - you would have expected them thought that they would welcome the opportunity to present their side of the various stories being discussed in a number of similar threads.

 

I suppose that by asking 3rd parties to post information on their behalf they assume there can be no questions asked of them

It is quite simple Alan.

 

CaRT has attempted to prevent making the transcript of proceedings public despite a Freedom of Information Act request which would have placed the document in the public domain.

 

They claim they are committed to make this information available. However, the simple fact of the matter is they have not.

 

This despite Mr Justice Lewis saying that it is not within his remit to prevent them.

 

 

 

 

Edited May 23, 2014 by Allan(nb Albert)

[NigelMoore]

What DOES make all this seem rather pointless, is that they are going to have to redraft the Guidance again anyway. As I have noted in the CRT taking your licence thread, it is no longer enough that you keep up the mileage and have definite destinations etc – you are required to demonstrate that you are taking pleasure in doing so. So you will need to practice those big wide smiles for all CaRT officers when they come by, else you will place yourself in danger of losing your pleasure boat licence.

[carlt]

 

 

CaRT has attempted to prevent making the transcript of proceedings public despite a Freedom of Information Act request which would have placed the document in the public domain.

 

 

Is it up to C&RT to fulfill a FOI request concerning a document that isn't actually theirs to publish?

 

They may have had the right to publish it but did they have the obligation, FOI or not?

 

Perhaps you were FOIing the wrong organisation...

[NigelMoore]

Interesting expressed ambivalence in the emails, with reference to the FoI applicant.

 

They make a point of letting the judge know that the applicant “is a vocal critic of the Trust”, while emphasising their concern at the possibility of the applicant passing copies “to others without the same degree of responsibility”!

 

I wonder whether Allan(nb Albert) felt a warm cosy glow at this recognition of his sense of responsibility [though whence it derives is puzzling under the circumstances – were they being sarky?]

[jenlyn]

Interesting expressed ambivalence in the emails, with reference to the FoI applicant.

 

 

They make a point of letting the judge know that the applicant “is a vocal critic of the Trust”, while emphasising their concern at the possibility of the applicant passing copies “to others without the same degree of responsibility”!

 

 

I wonder whether Allan(nb Albert) felt a warm cosy glow at this recognition of his sense of responsibility [though whence it derives is puzzling under the circumstances – were they being sarky?]

 

CRTgate...........

[Allan(nb Albert)]

Is it up to C&RT to fulfill a FOI request concerning a document that isn't actually theirs to publish?

 

They may have had the right to publish it but did they have the obligation, FOI or not?

 

Perhaps you were FOIing the wrong organisation...

Two good questions.

 

With regard to the first one the simple answer is yes.

 

The longer answer is that a FOIA request is fulfilled by telling the requester if the information is held or not. If it is held then the authority should provide it.

 

However, the Act contains exemptions which may allow information to be withheld in full or part. Exemptions come in two flavours, mandatory and discretionary. With mandatory exemptions an authority may not release the information. Discretionary exemptions are subject to a public interest test.

 

With regard to 'They may have had the right to publish it but did they have the obligation, FOI or not?' -

 

There was no obligation to publish this information. The FOIA requires authorities to have a publication scheme and the information commissioner encourages certain types of information to be published pro-actively. However, this is not information that CaRT would be expected to publish under under its 'publication scheme'.

 

The legal obligation to provide a copy of the transcript only arose because of my FOIA request and no exceptions under the Act which meant it could be withheld.

 

 

 

 

 

[Allan(nb Albert)]

Interesting expressed ambivalence in the emails, with reference to the FoI applicant.

 

They make a point of letting the judge know that the applicant “is a vocal critic of the Trust”, while emphasising their concern at the possibility of the applicant passing copies “to others without the same degree of responsibility”!

 

I wonder whether Allan(nb Albert) felt a warm cosy glow at this recognition of his sense of responsibility [though whence it derives is puzzling under the circumstances – were they being sarky?]

 

Have they missed out an 'ir' somewhere?

 

CaRT say 'The Canal & River Trust is committed to being open and transparent. Specifically we are committed to making available information regarding the recent Judicial Review hearing.'

 

However on asking if they were now willing to publish the transcript on their website, Kelly Radley tells me today 'We are not prepared to put the transcript on our website as the judge does not approve such an action.'

[Alan de Enfield]

.............the judge does not approve such an action.'

as in

 

"the Judge does not HAVE to approve such an action", or

"the Judge does not approve OF such an action"

 

written by someone who has a clever use of words

[NigelMoore]

Essentially, the law becomes enforceable most properly, at time renewal of a licence is sought.