Court Case Quotation - Can you Identify It ?

[Alan de Enfield]

Some time ago I was reading through several BW / C&RT court cases and saved some interesting paragraphs - unfortunately on this one I did not record which case it was, can anyone please identify the case so I can in future attribute it correctly.

 

6:3 There are clear anomalies in both positions, CRT clearly regard the occupation of moorings by permanently residential boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. 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 required to ever use its home mooring. The act requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places. If those who are causing the overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet & Avon canal near Bristol and the home mooring could be in Birmingham and totally unused.

 

 

[Tuscan]

Some time ago I was reading through several BW / C&RT court cases and saved some interesting paragraphs - unfortunately on this one I did not record which case it was, can anyone please identify the case so I can in future attribute it correctly.

 

6:3 There are clear anomalies in both positions, CRT clearly regard the occupation of moorings by permanently residential boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. 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 required to ever use its home mooring. The act requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places. If those who are causing the overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet & Avon canal near Bristol and the home mooring could be in Birmingham and totally unused.

 

This is from the judgement in the CRT v Mayers case

[Alan de Enfield]

Many thanks.

[Tony Dunkley]

Some time ago I was reading through several BW / C&RT court cases and saved some interesting paragraphs - unfortunately on this one I did not record which case it was, can anyone please identify the case so I can in future attribute it correctly.

 

6:3 There are clear anomalies in both positions, CRT clearly regard the occupation of moorings by permanently residential boat owners who do not move very much as a significant problem (see paragraphs 3.5 and 3.6 above). However, neither the statutory regime in subsection 17(3) nor the guidelines can deal with this problem. 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 required to ever use its home mooring. The act requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing whatever to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places. If those who are causing the overcrowding at popular spots have home moorings anywhere in the country the present regime cannot control their overuse of the popular spots. Such an owner could cruise to and fro along the Kennet & Avon canal near Bristol and the home mooring could be in Birmingham and totally unused.

 

 

 

As Tuscan says it's from C&RT v Mayers, and unsurprisingly, in contrast to other Judgments that have gone their way, C&RT have kept very quiet about this one.

[Jim Riley]

Does it create a precedent?

[Tony Dunkley]

Does it create a precedent?

No, because it's a County Court Judgment and precedents can only be created by higher Courts, but comments made in a Judgment in any Court will inevitably have a strong influence on future proceedings arising from similar disputes and issues.

[Jim Riley]

Thanks, thought I'd read that before, in one of the many discussions.

[Dave_P]

Does it create a precedent?

I don't see that it needs to create a precedent. The judge's comments are not an interpretation of the act, they are simply stating what the act says. The fact that this anomaly exists (that boaters can legally bridge-hop if they have a genuine mooring elsewhere) has been well known amongst boaters for some time. Of course, it helps in terms of clarity that a judge has made these statements.

 

An example of where a precedent could be created would be if a court case against a cc'er went to a higher court and the judge made some statements about minimum reasonable distances to move every 14 days. It's unlikely that this will ever happen though.

[Tony Dunkley]

I don't see that it needs to create a precedent. The judge's comments are not an interpretation of the act, they are simply stating what the act says. The fact that this anomaly exists (that boaters can legally bridge-hop if they have a genuine mooring elsewhere) has been well known amongst boaters for some time. Of course, it helps in terms of clarity that a judge has made these statements.

 

An example of where a precedent could be created would be if a court case against a cc'er went to a higher court and the judge made some statements about minimum reasonable distances to move every 14 days. It's unlikely that this will ever happen though.

Parry and his Enforcement gang don't think so. They reckon you have to be 'cruising' if you're not at your home mooring.

Edited January 23, 2015 by Tony Dunkley

[Alan de Enfield]

Parry and his Enforcement gang don't think so. They reckon you have to be 'cruising' if you're at your home mooring.

 

What ever gives you that idea ?

[Tony Dunkley]

 

What ever gives you that idea ?

 

It's Parrynoia.

[Alan de Enfield]

 

It's Parrynoia.

 

Big sigh - Hhhhhmmmmmmmm !!

[Dave_P]

Parry and his Enforcement gang don't think so. They reckon you have to be 'cruising' if you're not at your home mooring.

Well quite. Which is why something smells a bit fishy given that CRT didn't publish this judgment. There's a clear gap between what CRT say the legislation says and what it actually says.

[Allan(nb Albert)]

Well quite. Which is why something smells a bit fishy given that CRT didn't publish this judgment. There's a clear gap between what CRT say the legislation says and what it actually says.

I requested via whatdotheyknow.com that CaRT provide a copy of the Mayers judgement in the hope that they would publish it on their website.

 

They refused.

 

I have also asked CaRT to provide any recorded information they hold that supports Richard Parry's assertion on facebook 'Allan, there was nothing in this case that changed our view of our Guidance. That’s why we’ve not changed it."'

 

CaRT claim that such information exists but have refused to provide it.

 

 

[Paul C]

I requested via whatdotheyknow.com that CaRT provide a copy of the Mayers judgement in the hope that they would publish it on their website.

 

They refused.

 

I have also asked CaRT to provide any recorded information they hold that supports Richard Parry's assertion on facebook 'Allan, there was nothing in this case that changed our view of our Guidance. That’s why we’ve not changed it."'

 

CaRT claim that such information exists but have refused to provide it.

 

 

 

Doesn't make sense - on the first point, its not necessarily CRT's call to publish the court case. I believe in this instance, the judge didn't want it made public, and CRT have abided with this guidance.

 

I don't get the other bit - what are CRT claiming exists?

[Tony Dunkley]

 

Doesn't make sense - on the first point, its not necessarily CRT's call to publish the court case. I believe in this instance, the judge didn't want it made public, and CRT have abided with this guidance.

 

I don't get the other bit - what are CRT claiming exists?

That isn't what the Judge wanted at all. His wishes and instructions as to any whole or part reproduction of the Judgment were expressed in it. It's just C&RT who don't want it made public, in contrast to every other Judgment that's gone their way, when they're usually falling over themselves to publish.

[Paul C]

That isn't what the Judge wanted at all. His wishes and instructions as to any whole or part reproduction of the Judgment were expressed in it. It's just C&RT who don't want it made public, in contrast to every other Judgment that's gone their way, when they're usually falling over themselves to publish.

 

Still doesn't make sense, CRT DID publish a summary of the judgement, its here: https://canalrivertrust.org.uk/media/library/5890.pdf

 

The full text of the judgement was already in the public domain, here: http://www.bargee-traveller.org.uk/wp-content/uploads/2013/07/CRT_v_Mayers_Judgment_22-11-13.pdf

 

The comment about the judge not wanting it public, is basically saying he doesn't want it to be selectively quoted so as to give a misleading impression as to its contents.

 

I think you're confusing "publish" with "publicise".

For completeness, here's the link to Allan's request: https://www.whatdotheyknow.com/request/cart_vs_mayers#outgoing-414290

[Tony Dunkley]

 

Still doesn't make sense, CRT DID publish a summary of the judgement, its here: https://canalrivertrust.org.uk/media/library/5890.pdf

 

The full text of the judgement was already in the public domain, here: http://www.bargee-traveller.org.uk/wp-content/uploads/2013/07/CRT_v_Mayers_Judgment_22-11-13.pdf

 

The comment about the judge not wanting it public, is basically saying he doesn't want it to be selectively quoted so as to give a misleading impression as to its contents.

 

I think you're confusing "publish" with "publicise".

For completeness, here's the link to Allan's request: https://www.whatdotheyknow.com/request/cart_vs_mayers#outgoing-414290

That's an Order, and isn't anything like as explanatory and detailed as a Judgment. Your correct about what the Judge said in respect of selective quotation, but in no way does that amount to not wanting it made public.

You're missing the point about C&RT keeping this one quiet. In previous cases, such as BW v Davies, where the Judges remarks or comments appeared to suggest approval of their Guidance for CC'ers they've been shouting about it as soon as the hearing ended, but in this instance there has been nothing but silence and denial on the Judges comments (in the Judgment) about distances to be moved and what amounts to a different place.

[Allan(nb Albert)]

That's an Order, and isn't anything like as explanatory and detailed as a Judgment. Your correct about what the Judge said in respect of selective quotation, but in no way does that amount to not wanting it made public.

You're missing the point about C&RT keeping this one quiet. In previous cases, such as BW v Davies, where the Judges remarks or comments appeared to suggest approval of their Guidance for CC'ers they've been shouting about it as soon as the hearing ended, but in this instance there has been nothing but silence and denial on the Judges comments (in the Judgment) about distances to be moved and what amounts to a different place.

That's not what happened in the Davies case. BW altered their guidance due to comments made in the judgement. I believe the reason for this is that they asked the Judge to comment on the guidance being a fair interpretation of the law and felt obliged act when he suggested in was not.

 

Actually in the Davis case, I also requested a copy of the judgement.

 

BW not only provided a copy of the judgement in response to the request, they also provided a copy of the court order and the guidance that they had amended in view of the judges comments.

 

The information request can be found here.

 

When you read BW's response to the request you will find that they also stated that they would publish the judgement on their website, which they did. The judgement also appeared on CaRT's website for a time but has now been removed from both websites.

 

There are parallel's between the two cases in as much as BW/CaRT won and both judges made comments that affect the 'guidance'.

 

In the Davis case, BW altered its guidance to take into account the judges comments. In the Mayers case, it appears that CaRT are reluctant to publish the judgement and whilst maintaining that they hold information that confirms the view expressed by Richard Parry that nothing in the judgement affects the guidance, they refuse to provide that either!

 

 

 

[Tony Dunkley]

That's not what happened in the Davies case. BW altered their guidance due to comments made in the judgement. I believe the reason for this is that they asked the Judge to comment on the guidance being a fair interpretation of the law and felt obliged act when he suggested in was not.

 

Actually in the Davis case, I also requested a copy of the judgement.

 

BW not only provided a copy of the judgement in response to the request, they also provided a copy of the court order and the guidance that they had amended in view of the judges comments.

 

The information request can be found here.

 

When you read BW's response to the request you will find that they also stated that they would publish the judgement on their website, which they did. The judgement also appeared on CaRT's website for a time but has now been removed from both websites.

 

There are parallel's between the two cases in as much as BW/CaRT won and both judges made comments that affect the 'guidance'.

 

In the Davis case, BW altered its guidance to take into account the judges comments. In the Mayers case, it appears that CaRT are reluctant to publish the judgement and whilst maintaining that they hold information that confirms the view expressed by Richard Parry that nothing in the judgement affects the guidance, they refuse to provide that either!

 

 

 

You're quite right Allan, when I referred to 'approval of their Guidance for CC'ers' it wasn't correct. What I was thinking about, and should have said, is that both Judgments concurred on the 'bona fide for navigation' argument, in as far as that compliance with the requirement is dependent on the purpose for the movement of the boat.

In addition to C&RT's desire to keep quiet about the Judge's opinions in the Mayers Judgment on distances to be moved and what amounts to a different place, his comments about the 1995 Act not requiring a boat to use it's home would also have made them reluctant to publish.

[Paul C]

That's not what happened in the Davies case. BW altered their guidance due to comments made in the judgement. I believe the reason for this is that they asked the Judge to comment on the guidance being a fair interpretation of the law and felt obliged act when he suggested in was not.

 

Actually in the Davis case, I also requested a copy of the judgement.

 

BW not only provided a copy of the judgement in response to the request, they also provided a copy of the court order and the guidance that they had amended in view of the judges comments.

 

The information request can be found here.

 

When you read BW's response to the request you will find that they also stated that they would publish the judgement on their website, which they did. The judgement also appeared on CaRT's website for a time but has now been removed from both websites.

 

There are parallel's between the two cases in as much as BW/CaRT won and both judges made comments that affect the 'guidance'.

 

In the Davis case, BW altered its guidance to take into account the judges comments. In the Mayers case, it appears that CaRT are reluctant to publish the judgement and whilst maintaining that they hold information that confirms the view expressed by Richard Parry that nothing in the judgement affects the guidance, they refuse to provide that either!

 

 

 

 

Having now re-read the judgement, I can't see anything in the Mayers case which should have demanded an update to the guidance, about defining/clarifying 'place' or anything else for that matter. What do you think needs adding/amending/updating?

Edited January 25, 2015 by Paul C

[Allan(nb Albert)]

Having now re-read the judgement, I can't see anything in the Mayers case which should have demanded an update to the guidance, about defining/clarifying 'place' or anything else for that matter. What do you think needs adding/amending/updating?

The main issue is 7.22.7. BW/CaRT rely heavily on extent of movement rather than the purpose of movement and this is the second judgement where it has been suggested that purpose of movement is the determining factor.

 

As an aside the request was the outcome of an exchange on Facebook where I asked Richard Parry if he intended to apologise to National Boating User Groups for holding discussions with them without making them aware of the judgement (which had a bearing on the matters discussed).

 

What it appears that he attempted to do was ask the groups to suggest minimum distances they required those without home moorings to travel in a year to comply with the law.

[BrumSaint]

Some time ago I was reading through several BW / C&RT court cases and saved some interesting paragraphs -

 

The problem with only saving part of a judgement is that if/when you seek to rely on it you can bet your bottom dollar the other side's lawyers will have read the whole judgement and will be able show (at the minimum) that you are selectively quoting from the judgement and seek to use that to undermine your case. Far better to keep the whole judgement, re-read the whole of it and be prepared for the inevitable attack against the section you are relying on to prove whatever point you are trying to make. This is why it costs so much to employ lawyers/barristers etc, because of the preparation work they do to be able to prove/defend the position they are advocating. (That sounds like a defence of lawyers, it is not and I am not a lawyer).

[Paul C]

The main issue is 7.22.7. BW/CaRT rely heavily on extent of movement rather than the purpose of movement and this is the second judgement where it has been suggested that purpose of movement is the determining factor.

 

As an aside the request was the outcome of an exchange on Facebook where I asked Richard Parry if he intended to apologise to National Boating User Groups for holding discussions with them without making them aware of the judgement (which had a bearing on the matters discussed).

 

What it appears that he attempted to do was ask the groups to suggest minimum distances they required those without home moorings to travel in a year to comply with the law.

 

Is that it?

[Paul C]

Given its been half a day or so, and nobody else has contributed to this thread; and nobody else thinks the guidance to CCers needs to be modified except you and Tony Dunkley, are you still convinced this is such a big deal at all? Are you escalating it to the ICO??

 

I've read the judgement, and I'm familiar with the case, it seems to be a relatively simple and uninteresting court case because it doesn't really rule on anything which isn't already very well established factually. Basically, Mayer erroneously decided to "CC" but blatantly not move anywhere, to invite court action against him. But in doing so, provided all the factual evidence needed (by not moving) for CRT to Section 8 the boat and it was an "easy win" in court for them. The guidance didn't need to be addressed at all, since CRT were able to win simply based on the law. Unlike for example BW vs Davies where there was some movement, so the court needed to decide whether it was sufficient etc.