Section 8

[Alan de Enfield]

NilesMI, on 04 Aug 2014 - 1:36 PM, said:

 

It is para 6.4 of the judgement kindly linked to by NigelMoore.

 

http://www.scribd.com/doc/235689154/Meyers-Judgment-2013

 

Many thanks

 

Whilst its probably already been said, reading section 6:3 thru 6:6 would appear to (almost exactly) cover the Tony Dunkley situation

.

Quote from the Judgement :

 

"A boat which has a home mooring is not required to be 'bona fide used for navigation throughout the period of the licence', but neither is it ever required to use its home mooring. The act requires that the mooring is available, it does not say it must be used."

 

Well - that seems pretty clear to me.

Edited August 4, 2014 by Alan de Enfield

[Paul C]

 

notwithstanding that the mooring stands there available for use, if the person who has taken the mooring indicates that he will not take his boat there, it ceases to be a place where the boat can reasonably be kept.

 

Should he change his mind, then it does indeed become a mooring again.

 

For the duration of his refusal to use it, it is not.

 

Very interesting.

 

It does provide some comfort to Mr Dunkley.

 

However, in terms of CCing, it pretty well consolidates CRTs position post-Davies (the comment about Davies being VERY persuasive is interesting)

 

 

 

This stretches the meaning of 'reasonably' by making it dependant on the intent of the actor. In this case, the intent of the licencee to keep the boat at the mooring place.

 

The words 'reasonable' or 'reasonably' crop up in law to qualify some kind of state or behaviour, e.g. 'reasonable force', 'an unreasonably long time'. Negligence is defined in terms of failing to exercise 'reasonable' care. In criminal cases juries convict if they believe the case is proved beyond 'reasonable' doubt. It's a subjective test, but it's one which a jury or a judge can determine by comparing someone's actions with those of a reasonable person.

 

I suggest that's exactly what Parliament intended when they included the word 'reasonably' in the 1995 Act. It places a subjective test on the mooring place. The boat can reasonably be kept there if it's a place a reasonable person would think the boat could be kept. The intent of the licencee doesn't, cannot, impinge on that test.

 

It would seem that CRT agree with that, as in Mayers, one of the remedies offered to allow him to avoid the requirements to use his boat bona fide to navigate was to simply acquire a home mooring. The offer did not state that he would be required to actually keep his boat there, let alone maintain an intent to do so. The judgement also says that CRT conceeded the point in the course of argument that if GDM acquired a home mooring for Pearl he would be left undisturbed provided he met the 14 day requirement.

 

I agree with NilesMI in that I don't think that CRT could successfully argue that the boat can't reasonably be kept at the mooring - after all, that would be a function of the boat's size and the mooring size, accessibility, etc. Not the thoughts of its owner.

 

HOWEVER I do think they could argue that they weren't satisfied with the mooring arrangement. That's the problem Tony Dunkley has. If he can convince the court that CRT ought to be satisfied, for example by citing other examples where they've been satisfied. The CRT vs Mayers case may not be a good one - its theoretical, not actually tested in court, because he gave up the mooring then he went CCing and deliberately stopped moving, then the case was lost on those details.

[NilesMI]

HOWEVER I do think they could argue that they weren't satisfied with the mooring arrangement.

 

They are arguing that the home mooring is merely a device to allow him to avoid the requirements of CCing.

 

Superficially there is a similarity to revenue cases where although within the letter of the law, certain positions are taken merely to avoid payment of tax.

 

CRT have to be consistent, though. In the case of Mayers they have conceeded that acquiring a home mooring is a legitimate remedy for a boat not being bona fide used for navigation. It is not a precedent made by the courts, it is their own acceptance that the law does not require the home mooring to be used. They can't conceed in the course of legal argument in one court that it would have been an acceptable remedy for Mayers (simply to have a home mooring whether used or not) then in another court state that it's not acceptable for Dunkley, other material facts being the same (boat not being bona fide, blah, blah)

[Mr Badger]

The requirement for the Board to be satisfied in (3)©(i) only gives it a quasi-judicial role in deciding whether the statutory conditions are met. If the fact is that they are met then the Board can't lawfully withhold its satisfaction.

 

I think the Board may have more scope to withhold satisfaction under (3)©(ii) because they must make a judgement as to the boater's good faith (bona fide).

[MtB]

 

 

 

I agree with NilesMI in that I don't think that CRT could successfully argue that the boat can't reasonably be kept at the mooring -

 

I disagree. I seem to remember Mr Dunkley going on record and saying he didn't keep the boat on his home mooring because access was awkward and difficult, and (possibly) he wasn't so physically fit and able to get there.

 

In such circumstances the thoughts of the 'reasonable man' we are using as a yardstick, might be that it is not a place where Mr Dunkley in particular can reasonably keep his boat.

 

MtB

[Alan de Enfield]

 

I disagree. I seem to remember Mr Dunkley going on record and saying he didn't keep the boat on his home mooring because access was awkward and difficult, and (possibly) he wasn't so physically fit and able to get there.

 

..............................

 

I cannot remember, and cannot find, any such comments.

 

I have previously asked if anyone could point me towards them but so far no one has.

 

Maybe you know where it was quoted ?

[NilesMI]

I think the Board may have more scope to withhold satisfaction under (3)©(ii) because they must make a judgement as to the boater's good faith (bona fide).

 

The trust may feel that a licencee has not acted in good faith (to navigate) but it is still just their opinion.

 

 

In such circumstances the thoughts of the 'reasonable man' we are using as a yardstick, might be that it is not a place where Mr Dunkley in particular can reasonably keep his boat.

 

MtB

 

But you've neatly edited an Act of Parliament.

 

If it said "... place where the boat can reasonably be kept and accessed by the licencee" a reasonable person might conclude that it wasn't.

 

But it doesn't.

[MtB]

I don't. But I seem to remember it being mentioned early in this thead. Not Mr D saying it, but someone saying this is what he said (or wrote) to CRT in the early stages of the dispute.

 

I'll scan back and see if I can find it...

 

MtB

 

But you've neatly edited an Act of Parliament.

 

If it said "... place where the boat can reasonably be kept and accessed by the licencee" a reasonable person might conclude that it wasn't.

 

But it doesn't.

 

No I haven't!

 

I'm a reasonable person (I'm sure you'll agree), and I think that claiming a place as a home mooring you find difficult to access and don't want to use, is not reasonable.

 

Therefore the board are entitled to withhold their satisfaction.

 

MtB

[MtB]

After a brief scan, the best I can come up with is this:

 

http://www.canalworld.net/forums/index.php?showtopic=68206&page=2#entry1351204

 

"Is this the guy mentioned in a previous thread (which I can't now find) who freely admitted (although not to CRT) that he didn't like his home mooring because it had no access for his car, so he spends all his time on VMs instead? If so, it's not surprising he fails Richard's duck spotting test."

 

 

MtB

[Alan de Enfield]

After a brief scan, the best I can come up with is this:

 

http://www.canalworld.net/forums/index.php?showtopic=68206&page=2#entry1351204

 

"Is this the guy mentioned in a previous thread (which I can't now find) who freely admitted (although not to CRT) that he didn't like his home mooring because it had no access for his car, so he spends all his time on VMs instead? If so, it's not surprising he fails Richard's duck spotting test."

 

 

MtB

 

Thats all I can find, but there was an 'esteemed' member who some time ago mentioned that he had been told that TD wouldnt use the mooring because he had to walk across a field.

 

I think its become a case of tell the story enough times and it becomes fact.

[mayalld]

 

Thats all I can find, but there was an 'esteemed' member who some time ago mentioned that he had been told that TD wouldnt use the mooring because he had to walk across a field.

 

I think its become a case of tell the story enough times and it becomes fact.

 

I have certainly said as much, and so far as I am aware I didn't dream it up!

 

I am certain in my own mind that I have seen exactly such a statement from Mr Dunkley, but I cannot now find it.

[NilesMI]

I'm a reasonable person (I'm sure you'll agree), and I think that claiming a place as a home mooring you find difficult to access and don't want to use, is not reasonable.

 

Therefore the board are entitled to withhold their satisfaction.

 

MtB

 

But law says, and CRT have already conceded, that there is no rerquirement to keep the boat at the home mooring. If access to and the location of the home mooring present difficulties for Mr Dunkley, the fact he's not obliged to keep his boat there makes it seem very reasonable to me that he chooses to moor elsewhere.

[MtB]

There's THIS too... From mayalid himself!

 

http://www.canalworld.net/forums/index.php?showtopic=66657&page=6#entry1312649

 

 

OK, at the risk of promoting the dark side;

 

http://www.narrowboa...n-the-waterways

 

Now, this doesn't give huge amounts of detail, but it does tell us that Tony "chooses now not to use his home mooring", and that his home mooring "necessitates a three quarter of a mile walk to his boat".

 

MtB

[Paul C]

I think if we're going to start using NBW as factual evidence, we may as well start using Wikipedia for university research too!

[MtB]

Was Mr Dunkley not the author of the article on NBW?

 

I don't go there. Too horrifying...

 

 

MtB

[mayalld]

I think if we're going to start using NBW as factual evidence, we may as well start using Wikipedia for university research too!

 

When I originally quoted it, I hesitated for just that reason.

 

However, given that the article is trying to set forth a case that what Mr D is doing is OK, and as Mr D hasn't disputed that the location of the mooring is the reason that he doesn't use it, we may conclude that NBW shot Mr D in the foot.

[Mr Badger]

The test for unreasonableness is so unreasonable that no reasonable person could think it reasonable. Some reasonable people might think the mooring in question is not a place where the vessel could reasonably be kept; but if other reasonable people could think it is a reasonable place it must be a reasonable place.

[Mr Badger]

Could CRT be pursuing this case as a forlorn hope to demonstrate to the legislature that they need new legislation? I think at least one judge has remarked on the weirdness of the law as it stands and the complexity of having to deal with several different Acts.

[muddywaters]

 

I disagree. I seem to remember Mr Dunkley going on record and saying he didn't keep the boat on his home mooring because access was awkward and difficult, and (possibly) he wasn't so physically fit and able to get there.

 

In such circumstances the thoughts of the 'reasonable man' we are using as a yardstick, might be that it is not a place where Mr Dunkley in particular can reasonably keep his boat.

 

MtB

Which begs the question why did he take on a mooring that should have been obvious to him would not be suitable.

And taken a mooring somewhere more suitable instead.

Taking a mooring you know is not going to be suitable for you is un reasonable to me.

Or am I missing something

[Alan de Enfield]

There's THIS too... From mayalid himself!

 

http://www.canalworld.net/forums/index.php?showtopic=66657&page=6#entry1312649

 

 

OK, at the risk of promoting the dark side;

 

http://www.narrowboa...n-the-waterways

 

Now, this doesn't give huge amounts of detail, but it does tell us that Tony "chooses now not to use his home mooring", and that his home mooring "necessitates a three quarter of a mile walk to his boat".

 

MtB

 

That may take us a little nearer to the 'source' but, yet again, does not meet the claim that TD has said his mooring is inconvenient and he will not use it.

 

Also the accusation of him "moving no more than three to five miles" is a tad incorrect when his mooring is at Barton in Fabis (10 miles away) and the C&RT accusations (since withdrawn) were that he overstayed on the VM's at Holme Lock

Was Mr Dunkley not the author of the article on NBW?

 

 

 

No - it was the infamous Pam Pickett

[Hawkmoth]

Now let's be reasonable here!

Bob

[Mr Badger]

 

Taking a mooring you know is not going to be suitable for you is un reasonable to me.

Or am I missing something

 

Well taking an unsuitable mooring could be reasonable for lots of reasons, such as being cheaper than a more suitable mooring for example.

Edited August 4, 2014 by Mr Badger

[mayalld]

 

That may take us a little nearer to the 'source' but, yet again, does not meet the claim that TD has said his mooring is inconvenient and he will not use it.

 

 

I am happy to set the record straight.

 

"In an article written to support Mr Dunkley's position on NBW, it was stated that he doesn't use his home mooring because it is a 3/4 mile walk over fields.

 

The article implies to me that as Mr Dunkley is not a well man, he finds it more convenient to moor where there is better access.

 

Mr Dunkley has neither confirmed nor denied this report, but on balance I find it believable."

 

Happy now?

[Alan de Enfield]

Tony Dunkley now has prostrate problems and ashma - he has held the mooring for many years (during which time C&RT/BW were happy it was a mooring), since his 'problems' C&RT have decided it is 'not a mooring' and then reversed their decision that 'it is a mooring', but that he only has a mooring to meet the requirements of the law.

 

I still put forward the case that there is no legal requirement to use a home mooring.

 

We are going around in circles.

 

(I only 'tax' my car because it is a legal requirement to do so).

 

I am happy to set the record straight.

 

"In an article written to support Mr Dunkley's position on NBW, it was stated that he doesn't use his home mooring because it is a 3/4 mile walk over fields.

 

The article implies to me that as Mr Dunkley is not a well man, he finds it more convenient to moor where there is better access.

 

Mr Dunkley has neither confirmed nor denied this report, but on balance I find it believable."

 

Happy now?

 

If I neither confirm or deny anything that is said about me, does that make it true ?

[NilesMI]

 

We are going around in circles.

 

Maybe we should go off at a tangent then...

 

Should the 1995 Act be amended to say that all boats so licensed must be used bona fide for navigation when not kept at their home mooring?