Section 8

[David Mack]

 

As in my #239 -

 

CaRT solicitor, 26 March 2014 to Tony Dunkley -

 

. . . if you make an application for a licence on the basis of having a home mooring at x we would not issue you with a licence because we would not be satisfied that this mooring would be a place where you intend to reasonably keep and lawfully leave your vessel. [my bold]

 

But where in the Act does it say that a boater must intend to reasonably keep and lawfully leave his vessel on the home mooring? It only refers to a "mooring or other place where the vessel can reasonably be kept and may lawfully be left". And I don't think anyone is disputing that TD's boat can be left there.

 

Whilst I can't really support TD's apparent behaviour as being within the spirit of the rules I can't see that he has actually contravened any specific requirements.

[Captain Zim]

 

Understood. But I still believe he was genuine.

 

 

Sure, I meant no disrespect. I have nothing but the utmost admiration for the judiciary. In my experience, judges are exceedingly clever and perceptive individuals. An opinion that some might question when they read the odd sensationalist headline about a lax sentence. I was merely trying to say, badly I think, that a judge rarely says things for no reason.

 

Maybe it wasn't generous after all.

[NigelMoore]

But where in the Act does it say that a boater must intend to reasonably keep and lawfully leave his vessel on the home mooring?

 

Nowhere.

In my experience, judges are exceedingly clever and perceptive individuals.

 

Well, this one at least, made the same penetrating observation as to the point of "used bona fide for navigation" as you did!

 

So I think you are biased.

[MtB]

But where in the Act does it say that a boater must intend to reasonably keep and lawfully leave his vessel on the home mooring? It only refers to a "mooring or other place where the vessel can reasonably be kept and may lawfully be left". And I don't think anyone is disputing that TD's boat can be left there.

 

Whilst I can't really support TD's apparent behaviour as being within the spirit of the rules I can't see that he has actually contravened any specific requirements.

 

 

We went around this logic loop a few pages back.

 

The law doesn't say the boater must intend. It does however say 'the board is satisfied that...etc' so if the board says it isn't satisfied with Mr Dunkley's mooring, it's game set and match to CRT, it appears.

 

Except that the board must also be both reasonable and consistent in it's treatment of customers, and it could be argued they are not being reasonable or consistent in rejecting Mr Dunkley's legally compliant mooring.

 

Therefore Mr Dunkley will win...

 

 

Perhaps...

 

 

 

MtB

Edited August 1, 2014 by Mike the Boilerman

[David Mack]

The law doesn't say the boater must intend. It does however say 'the board is satisfied that...etc' so if the board says it isn't satisfied with Mr Dunkley's mooring, it's game set and match to CRT, it appears.

 

But that is to misinterpret what the act requires about "satisfying". CRT must be satisfied that the boat can be left etc. not satisfied that the boater intends to moor there.

[mark99]

I wonder if the actual Judge on the day is going to take too much notice of the finer legal pontifications and legal minutiae proffered by each respective party as the killer legal point or whether he is just going to think "CaRT are the authority, the defender is clearly a miscreant or chancer" and finds for CaRT.

 

Shall I say it again - we will see!

[NigelMoore]

I wonder if the actual Judge on the day is going to take too much notice of the finer legal pontifications and legal minutiae proffered by each respective party as the killer legal point or whether he is just going to think "CaRT are the authority, the defender is clearly a miscreant or chancer" and finds for CaRT.

 

Shall I say it again - we will see!

 

We will see, of course. At the same time, it is of interest to debate the issues on here in the interim – as your own participation illustrates – and the debate besides, provides food for thought for both Mr Dunkley and CaRT in the lead up to the case management conference in a month’s time. Not to mention educating ourselves.

 

You are quite right as the potential approach that might be taken; I suspect it will be as you say for the reasons I’ve given already. However if the authority will not sit down to discuss such issues with us beforehand, we can at least publish our views for their edification regardless.

 

As I said a few posts ago – BW may have promoted the original Bill back in 1990, but the concerted evidence and persuasion of boaters over years, moulded the 1995 Act that eventuated.

We have that much power at least, especially if the information can be fed to the legislators and judiciary by such [albeit indirect] means as the internet.

[mark99]

 

We will see, of course. At the same time, it is of interest to debate the issues on here in the interim – as your own participation illustrates – and the debate besides, provides food for thought for both Mr Dunkley and CaRT in the lead up to the case management conference in a month’s time. Not to mention educating ourselves.

 

You are quite right as the potential approach that might be taken; I suspect it will be as you say for the reasons I’ve given already. However if the authority will not sit down to discuss such issues with us beforehand, we can at least publish our views for their edification regardless.

 

As I said a few posts ago – BW may have promoted the original Bill back in 1990, but the concerted evidence and persuasion of boaters over years,

 

Don't get me wrong, I enjoy the discussion; however it's tempting (guilty as charged) though to suggest that it could be more "rubber stamp" than a battle of legal titans.

 

Personally I think CaRT and the defendant should with-hold their council pre- case for fear of letting the other side look into the window of the others soul and construct a case winning argument there-to.

 

I suspect CaRT are looking at this thread right now, taking a mild interest, whilst managing to hold their council.

Edited August 1, 2014 by mark99

[NigelMoore]

Agreed. None of these cases involve a battle of equal arms.

 

The Defence will have already been filed, so CaRT already know what arguments have been produced, and their own arguments were filed to start off with. There is no danger of damaging disclosure.

 

CaRT will indubitably be monitoring this thread - it is a large part of why I contribute as I do.

[NigelMoore]

So CRT are bound to lose then!

 

I wonder why they expect to win.

 

Another consideration to bear in mind, is the typical propensities of legal minds. This is all the more a factor by reason of the fact that such conflicts are always farmed out to commercial litigants, whose interests are best served by taking the opportunity to demonstrate their talents in the public display of a trial. Even winning or losing in really important cases is immaterial to the reputational aspect, because it is recognised in the profession that a professional must represent their client, and losing a case is less important than taking part in the shaping of the law. [A lost case if important is still something to boast of in their CV]

 

As to the available arguments in this case - which appear to the ordinary person to be ridiculous - Christ characterised the lawyers of his day as those “who strain at a gnat, and swallow a camel”. The profession has had 2 millennia since then to work on the elasticity of their oesophagi. They are only too happy for opportunities to demonstrate this dubious talent.

[NigelMoore]

I wonder why they expect to win.

 

There is another reason for confidence [if CaRT do indeed possess this], and it relates to the belated advice I gave in the ‘Home Moorer’ thread – that the boater ought to have taken the initiative, and sued CaRT for declaratory relief or judicial review at the time they first revoked his licence, and certainly upon their refusal to renew.

 

I strongly suspect that CaRT’s team will be leaning heavily on the procedural precedents illustrated by Ward and Mayers –especially the latter. The judge in Mayers exemplified the type described by Captain Zim, and the majority of his judgment is measured, even-handed and even sympathetic. I take issue mainly with a blip at the end, where he claimed that CaRT were not subject to the Human Rights Act because they were not exercising a public function [despite his noting CaRT’s concession a few paragraphs earlier, that licensing issues were an exercise of public functions.]

 

The litigation in Mayers was in fact provoked [it appears] by the boater, who obviously did not understand that he could and should have taken BW/CaRT to court over their revocation of his licence – he thought it necessary that the authority sue him, whereupon he could argue that the reasons for revocation were unsound. Unfortunately, as the judge remarked, that conduct made it impossible for the judge to do what the boater intended.

 

The bare facts were that the boat was present on the waterway without a valid licence, and as the boater took no action himself to legally challenge the revocation, the specific salient point was that he remained on the waterway unlicensed.

 

That being so, whether the reasons for revoking the licence were valid or not, the result was that the boat fitted the s.8 scenario. Mr Meyers had 5 months from revocation of his licence to take action himself, before BW commenced proceedings.

 

According to the judge: “He provoked this litigation in order to obtain a decision on whether the Continuous Cruising Guidelines are or are not justified by the statutory regime and in particular subsection 17(3). However by refusing to move at all he has unquestionably put himself in breach of the subsection because if Pearl is not moving at all it is certainly not navigating and GDM is also in breach of the 14 day rule. An intention to provoke litigation is certainly not a reasonable cause for staying longer than 14 days in the same place.

 

This and the decision by CRT not to rely on the guidelines at all but only on the wording of the statutes, means that it is not necessary for this Court to rule on whether the guidelines are justified by the statutes. I need only decide whether what was physically done by GDM with Pearl over the relevant period does or does not comply with the statutes, and in particular with subsection 17(3). Thus, GDM’s own actions have deprived this Court of the ability to rule on whether the guidelines are congruent with the statutes which was his main purpose in provoking the litigation.”

 

It is not actually fully true to say that the sidelining of the reasons for revocation was entirely down to the boater – it was CaRT’s legal team who capitalised on the situation, by deciding to drop all argument over the guidelines themselves. It is as I often say – it is down to careful choice of issues; it’s clever stuff, expert tactical manoeuvring.

 

The same tactic could be attempted in this case - bare facts? on the waterways without a licence; forget any reasons why. Compared to Mr Mayers however, Mr Dunkley has a few vital factors in his favour:

 

i) he has not invited the litigation, he has renewed attempts to get his licence and been turned down;

ii) CaRT have initiated this litigation too soon after that refusal of the new application – he was still within time to have applied for Judicial Review of that decision, and,

iii) Unlike Mayers, he has not remained in the main navigation channel where the licence is mandatory, but has returned to his home mooring. He is not in breach of the statutes.

[bassplayer]

 

Another consideration to bear in mind, is the typical propensities of legal minds. This is all the more a factor by reason of the fact that such conflicts are always farmed out to commercial litigants, whose interests are best served by taking the opportunity to demonstrate their talents in the public display of a trial. Even winning or losing in really important cases is immaterial to the reputational aspect, because it is recognised in the profession that a professional must represent their client, and losing a case is less important than taking part in the shaping of the law. [A lost case if important is still something to boast of in their CV]

 

As to the available arguments in this case - which appear to the ordinary person to be ridiculous - Christ characterised the lawyers of his day as those who strain at a gnat, and swallow a camel. The profession has had 2 millennia since then to work on the elasticity of their oesophagi. They are only too happy for opportunities to demonstrate this dubious talent.

Ego is a huge driver as is greed. I'm sure these two factors get in the way of obtaining fair justice as does the influence of 'certain' organisations...

[NigelMoore]

If they win what effect will it have on the wider boating community?

 

Presumably it will not create a precedent as future cases will still need to be judged on a case by case basis.

 

If they choose to fight for the core ‘operational issue’ behind the action – and win – then the effect on the wider boating community will be that all those with home moorings will be held to the necessity of being a CC’er whenever they leave their mooring.

 

In practical terms, it is unnecessary for them to get a binding precedent, because boaters will mostly be scared off challenging any court ruling. How many have done so? The only explanation I’ve heard is precisely that the boaters don’t want to risk setting a precedent against other boaters. Perhaps.

 

Then again, BW/CaRT trumpet a County Court judgment as setting a precedent anyway, and most believe them.

 

As someone else has said – it won’t mean that they will automatically be chasing all newly defined/created ‘miscreants’, merely that they will have the toolkit available to do so whenever they choose.

 

If they chicken out and are given the chance to fly the Mayers route instead - and win - then it will have accomplished nothing but the loss of another would-be customer. [and the plaudits of sectors of the wider boating community of course, simply for flexing their muscles].

[Sir Nibble]

CaRT will indubitably be monitoring this thread - it is a large part of why I contribute as I do.

This I doubt. I do not believe CaRT have sufficient interest in what this forum or boaters in general think to justify logging on. They will be too busy avidly participating in cycling and angling groups.

[Timleech]

This I doubt. I do not believe CaRT have sufficient interest in what this forum or boaters in general think to justify logging on. They will be too busy avidly participating in cycling and angling groups.

 

I'm told that they have software which automatically scans newsgroups etc for keywords or subjects that they might want to follow.

 

Tim

[Sir Nibble]

I'm told that they have software which automatically scans newsgroups etc for keywords or subjects that they might want to follow.

 

Tim

Words like "Bicycle", or "cyclepath" or "keepnet".

[MtB]

"Donation", and "vole".

 

MtB

[Tuscan]

If they choose to fight for the core ‘operational issue’ behind the action – and win – then the effect on the wider boating community will be that all those with home moorings will be held to the necessity of being a CC’er whenever they leave their mooring.

 

In practical terms, it is unnecessary for them to get a binding precedent, because boaters will mostly be scared off challenging any court ruling. How many have done so? The only explanation I’ve heard is precisely that the boaters don’t want to risk setting a precedent against other boaters. Perhaps.

 

Then again, BW/CaRT trumpet a County Court judgment as setting a precedent anyway, and most believe them.

 

As someone else has said – it won’t mean that they will automatically be chasing all newly defined/created ‘miscreants’, merely that they will have the toolkit available to do so whenever they choose.

 

If they chicken out and are given the chance to fly the Mayers route instead - and win - then it will have accomplished nothing but the loss of another would-be customer. [and the plaudits of sectors of the wider boating community of course, simply for flexing their muscles].

 

But the problem is the only "tool kit" they feel able to use is the long and expensive S8 process which even with or without this result is just using a huge sledgehammer to crack the occasional nut. I wonder if when they grab the EA navigations (which they will want to I am sure what management doesn't want to increase their powers?) there will need to be a act of parliament which will be used to increase their powers of enforcement without having to resort to S8 process. Whether this would be a good thing no doubt is an item for further debate.

[MtB]

But the problem is the only "tool kit" they feel able to use is the long and expensive S8 process which even with or without this result is just using a huge sledgehammer to crack the occasional nut. I wonder if when they grab the EA navigations (which they will want to I am sure what management doesn't want to increase their powers?) there will need to be a act of parliament which will be used to increase their powers of enforcement without having to resort to S8 process. Whether this would be a good thing no doubt is an item for further debate.

 

Interesting point. When CRT were first formed ISTR they were not given the EA waters at the same time, but put 'on probation'. The decision would be made later, once they've built up a bit of a track record at running the cut successfully.

 

What enforcement powers do the EA have or need? There seems to be virtually no CMer problem on the Thames for example, which always surprises me. (Apart from a cluster on CMers at Reading, who now seem to have moved into the 'no man's land' backwater by Homebase, just downstream of the Reading Prison VMs.)

 

MtB

[NigelMoore]

But the problem is the only "tool kit" they feel able to use is the long and expensive S8 process which even with or without this result is just using a huge sledgehammer to crack the occasional nut.

 

They only need sufficient “show trials” confirming the rationale behind each action, enabling them to use these as the gentle convincer that they both would take action on those grounds again, and would win on those grounds again.

 

Then too, results can be manipulated; the bits of judgments for them can be aired widely, the bits they don’t like they bury. Why do you think, for example, they pulled the Hildyard judgment from the list of cases on their website, and published only the Order in Mayers [as with most others], not the judgment?

 

I haven’t yet looked closely at the statistics on the broader actions taken in enforcement on the Regent’s Canal in London – but the total of s.8’s is a minimal proportion.

[NigelMoore]

 

Interesting point. When CRT were first formed ISTR they were not given the EA waters at the same time, but put 'on probation'. The decision would be made later, once they've built up a bit of a track record at running the cut successfully.

 

What enforcement powers do the EA have or need? There seems to be virtually no CMer problem on the Thames for example, which always surprises me. (Apart from a cluster on CMers at Reading, who now seem to have moved into the 'no man's land' backwater by Homebase, just downstream of the Reading Prison VMs.)

 

Thankfully, the 'probation' criteria are largely economic. The flood defence responsibilities of the EA , not to mention other environment factors, are far too important to leave to the tender mercies of the financially incompetent. The early track record of CaRT in this regard saw a very early recognition by Parliament that any such transfer was not going to happen as scheduled.

 

The Environment Agency’s powers would continue to apply without any need for extra legislation. The equivalent powers they presently have [as amended in The Environment Agency (Inland Waterways) Order 2010] are far better drafted than the BW legislation of 1983, are very clear, and provide far less potential for abuse on either side.

 

Unlike the BW Acts, there is absolutely NO requirement for Home Moorings and/or use for navigation, so you only need to provide the required details, have insurance and BSS, pay your money – and the EA MUST register your boat [excepting that the EA are entitled to refuse an application respecting a boat that has had its prior registration revoked for non-insurance or BSS]. Excerpts -

 

Requirement for registration

 

4.—(1) An owner or master of a vessel must not keep, let for hire or use the vessel on the waterways unless—

( a ) the vessel is registered with the Agency under article 5; and

( b ) any requirement imposed by the Agency under article 8 when registering the vessel is

complied with.

 

Refusal and revocation of registration

 

7.—(1) The Agency may refuse to register a vessel if the requirements of article 6 have not been complied with or if the Agency has previously revoked the registration of the vessel under paragraph (3) or (4).

(2) The Agency may refuse to register a vessel if, having regard to the information supplied in accordance with article 6(a), it is not satisfied at the time when it determines the application that—

( a ) there is in force a policy of insurance for the vessel which complies with the requirements of Schedule 3 where such a policy is required by article 11; and

( b ) the vessel is constructed and equipped in accordance with such specification as may for the time being be prescribed by the Agency for such a vessel under article 12.

 

Removal of unregistered vessels

 

16.—(1) The Agency may relocate on or remove from the waterways any vessel which is not registered under this Order if—

( a ) the Agency has given notice under this paragraph; and

( b ) the requirements of paragraph (5) do not apply.

 

There is nothing about moorings controls so far as I've looked, probably because that is down to the riparian owners. edit to add: - not many towpaths on the rivers.

Edited August 2, 2014 by NigelMoore

[Ssscrudddy]

Yeah, & not many free places to moor either (on the Nene).

[NigelMoore]

 

There is nothing about moorings controls so far as I've looked, probably because that is down to the riparian owners. edit to add: - not many towpaths on the rivers.

 

Same reason, of course, why there are no such regulations provided for under the 1971 Act or elsewhere, respecting moorings on BW’s rivers.

 

Such as the Trent.

[mark99]

 

I'm told that they have software which automatically scans newsgroups etc for keywords or subjects that they might want to follow.

 

Tim

 

 

I'd be staggered if CaRT (press office, senior management) did not look in here virtually every day. It's a massive source of free feedback.

 

I'd give my right arm to have this intelligence re my customers and competitors. I'm forever looking at what my competitors are doing - using the internet mainly! and personal contacts/moles.

Edited August 2, 2014 by mark99

[NigelMoore]

A bit more of the Mayers judgment for those interested –