NBTA Press Release : The continuous cruising case CRT couldn't win

[BrumSaint]

IN THE NOTTINGHAM COUNTY COURT CLAIM NO: 3NG01237

 

BETWEEN:

 

CANAL AND RIVER TRUST ------------- Claimant

 

-and-

 

ANDY WINGFIELD ------------- Defendant

 

____________________________________________________________________________________________________________

 

CONSENT ORDER

____________________________________________________________________________________________________________

 

Upon the Claimant's claim and upon the parties agreeing to compromise the claim upon the

terms set out in the document entitled "Settlement of claim number 3NG01237 between the

Canal and River Trust and Mr Andy Wingfield" ("The Settlement").

 

It is ordered by consent that:

 

1. The proceedings be stayed upon the terms set out in the Settlement dated and signed by the solicitors for each party, the original of which has been retained by the Claimant's solicitors and a copy of which has been retained by the Defendant's solicitors, except for the purpose of enforcing those terms.

2. Either party may be permitted to apply to the Court to enforce the terms upon which this case has been stayed without the need to bring a new claim.

3. No copy of the Settlement shall be retained upon the Court file. If such a copy is retained on the Court file it shall not be released to anyone save the parties' solicitors.

4. No order as to costs save for detailed assessment of the Defendant's publicly funded costs.

Dated this 4 day of March 2014

____________________________________________________________________________________________________________

 

 

The reasons for C&RT not wanting to publicise this Consent Order, considered to be the way to go by their Solicitors on the second day of a hearing, are sufficiently plain to need no further explanation, as are the implications arising from it.

Tony either you have forgotten to copy in something or you have paranormal abilities.

 

For those of us without second sight can you please explain (apart from the fact that no costs were awarded against either side) what reasons are 'sufficiently plain' from the extract you've published. Also 'the implications arising from it.'

[kris88]

I think your the one who is being rather blinkered.

Regards kris

[PaulG]

Yes, he was looking for an argument and he just tried to pick one with me.

 

.. and yes I will be writing on the matter.

 

 

Good for you, Allan.

[bassplayer]

Tony either you have forgotten to copy in something or you have paranormal abilities.

 

For those of us without second sight can you please explain (apart from the fact that no costs were awarded against either side) what reasons are 'sufficiently plain' from the extract you've published. Also 'the implications arising from it.'

'Gagging' order?

[Graham Davis]

Looks like Mr Wingfield agreed to accept a compromise!:

 

Upon the Claimant's claim and upon the parties agreeing to compromise the claim upon the

terms set out in the document entitled "Settlement of claim number 3NG01237 between the

Canal and River Trust and Mr Andy Wingfield" ("The Settlement").

[Alf Roberts]

Looks like Mr Wingfield agreed to accept a compromise!:

 

Upon the Claimant's claim and upon the parties agreeing to compromise the claim upon the

terms set out in the document entitled "Settlement of claim number 3NG01237 between the

Canal and River Trust and Mr Andy Wingfield" ("The Settlement").

Wouldn't you? If an all-powerful said "we'll lay off evicting you if you keep quiet about our reasons for backing down" - would you accept the terms and keep your home or fight with the possibility of losing for any unforeseeable reason - one of which might be continuing to fight after your opponent had offered to withdraw the claim?

 

 

Courts don't take kindly to 'grandstanding' actions even when they are justified.

 

There is, of course, no reason for Mr Wingfield to pursue his defence to the bitter end just to please the observing public.

 

Pragmatism is the order of the day when your home is at risk.

 

 

and...

 

let's enter the realms of speculation for a moment (as seems the fashion here) - what if CRT had said "keep quiet and we'll give you a cheap mooring" ?

 

Again what would you do?

 

As I say speculation.

 

So your statement "Looks like Mr Wingfield agreed to accept a compromise!" doesn't say much about him or CRT or the case.

 

I do hope one of the FOI requests arising from this is how much of our money was given to Shoosmiths to pursue this action when is was apparent to all observers long ago that compromise could have been reached without court action.

Edited February 25, 2015 by Alf Roberts

[Paul C]

Others haven't in the past, believing they're 100% in the right - Moore vs CRT springs to mind.

[Alf Roberts]

Others haven't in the past, believing they're 100% in the right - Moore vs CRT springs to mind.

Was Nigel Moore offered a settlement in his case?

 

At what point was that? During the case proper or during his appeal?

[Paul C]

Was Nigel Moore offered a settlement in his case?

 

At what point was that? During the case proper or during his appeal?

 

Good point - I don't remember one being offered, maybe if negotiations had taken a different course a settlement before court could have been offered - but of course that's a big "what if" scenario.

[Alf Roberts]

my memory was that it was the then legal director Nigel (?) Johnson who was determined to take it to the wire. Of course, it wasn't his money, home or livelihood at stake.

[mayalld]

As have I in the course of my work, given that Allan is a journo that covers the inland waterways is it that surprising that he might use standard methods to obtain information?

 

I wasn't aware that he is a journalist.

 

I thought he wrote in a blog.

[Alf Roberts]

how is it you criticise Allan Richards for making FOI requests rather than CRT for not being open and transparent with the data he wants?

[mayalld]

 

Of course.

 

It is not the case, by the way, that consensus is rare between us: I often agree with your comments and normally only interject when I feel that either a balance needs to be struck, or a perceived error needs a countermanding argument.

 

Regardless of agreement or disagreement, I consider you to be the most valuable contributor to my increase in understanding in certain areas, precisely because disagreement – if with cogent argument - provokes re-appraisal of my viewpoints with associated research. For all that humanly speaking I value support, I can only learn from those who disagree – and gain much needed practice in putting my perceptions across with sufficient lucidity.

 

For that reason I am still interested to read your responses to my previous questions on the s.43 issue.

 

OK, let us look at the relevant parts

 

 

 

43 Charges and facilities: general provisions.

(1) Subject to this Act,

(a) all charges schemes under Part V of the M1Transport Act 1947, shall cease to have effect, and .

( no local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them .

(i) for the carriage of passengers or goods, .

(ii) for the use of any railway, or of any inland waterway by any ship or boat, .

(iii) for services and facilities connected with the carriage of passengers or goods, or with the use of any railway, or of any inland waterway by any ship or boat, or .

(iv) for services and facilities in or connected with a harbour, .

(whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the British Waterways Board or the Strategic Rail Authority

 

(2) Paragraph ( of the foregoing subsection shall not be read as exempting the British Waterways Board or the Strategic Rail Authority from any local enactment so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge. .

 

(3) Subject to this Act and to any such enactment as is mentioned in the last foregoing subsection, the British Waterways Board and the Strategic Rail Authority shall have power to demand, take and recover or waive such charges for their services and facilities, and to make the use of those services and facilities subject to such terms and conditions, as they think fit. .

 

(8)The services and facilities referred to in subsection (3) of this section include, in the case of the British Waterways Board, the use of any inland waterway owned or managed by them by any ship or boat. .

 

 

Are, I believe the relevant parts;

 

We are, I believe, in agreement that this;

• Rescinds any maximum charge laid down by a local act for a particular service
• Re-affirms any explicit exemption from charges (notwithstanding the above)
• Enables, in general and wide ranging terms, BWB to make charges other than those charges that are forbidden

Where we differ is in determining what charges are forbidden. Your position is that any charge that is not mentioned in the earlier acts was forbidden by them. Mine is that such charges were deemed to be forbidden due to a lack of authority in the acts, but that subsections 3 & 8 now provide that authority.

 

Clearly, the key to this is the meaning of;

 

so far as it expressly provides for freedom from charges or otherwise prohibits the making of any charge

 

Your position, as I understand it, is that the first part of that sentence is in reference to any explicit text in an Act that prohibits a charge being made, and that as that covers anything explicit, the second part can only be talking about implicit prohibition due to a right to levy a charge.

 

My view of this sentence differs!

 

I would contend that prohibits the making of any charge covers anything within an Act which states that the company shall not levy a charge "the company shall not levy any charge for the use of locks".or "the company shall not levy any charge upon pleasure craft"

 

expressly provides for freedom from charges implies that a charge is permitted, but that the act prescribes some criteria which relieves the person who would otherwise pay that charge from paying it. One cannot be freed from a charge that doesn't exist! "any boat which is unladen shall be exempt from the charges laid down for passage through locks" or "boats passing through locks on Sunday may do so without the payment of tolls"

[mayalld]

how is it you criticise Allan Richards for making FOI requests rather than CRT for not being open and transparent with the data he wants?

 

The fact that a blogger WANTS information doen't make it right and proper for CRT to release it.

 

For all you or I know, the case might have been settled on the basis that the boater suffers from a particular medical condition, and they have agreed that it would violate his privacy to disclose this.,

[cotswoldsman]

 

The fact that a blogger WANTS information doen't make it right and proper for CRT to release it.

 

For all you or I know, the case might have been settled on the basis that the boater suffers from a particular medical condition, and they have agreed that it would violate his privacy to disclose this.,

I can assure you that was not the case

[Tony Dunkley]

Tony either you have forgotten to copy in something or you have paranormal abilities.

 

For those of us without second sight can you please explain (apart from the fact that no costs were awarded against either side) what reasons are 'sufficiently plain' from the extract you've published. Also 'the implications arising from it.'

 

I've neither forgotten to 'copy in' anything, nor do I have 'paranormal abilities' and 'second sight'. However, I do have the benefit of knowing how adept C&RT are in the use of Consent Orders when faced imminent defeat in Court, and a careful re-reading of my Post # 42 together with some research on the way Consent Orders work will provide all the answers you want.

As to the implications of this particular action, I think we can start with the one you've already drawn attention to.

Shoosmiths charge around £2000 per day to act in C&RT Enforcement cases. Therefore, the two days in Court added to the preparation time before the hearing will amount to a tidy sum wasted on pursuing a boater for doing no more than the Law allows.

[Tony Dunkley]

 

 

For all you or I know, the case might have been settled on the basis that the boater suffers from a particular medical condition, and they have agreed that it would violate his privacy to disclose this.,

 

If this ridiculous, straw grasping hypothesis were true, why would the 'medical condition' become apparent only after 2 days in Court ?

[Alf Roberts]

 

The fact that a blogger WANTS information doen't make it right and proper for CRT to release it.

 

For all you or I know, the case might have been settled on the basis that the boater suffers from a particular medical condition, and they have agreed that it would violate his privacy to disclose this.,

then there is provision within the FOI act for this ( as your are aware).

 

Your criticism was against Allan Richards for FOI requests in general so really you are clutching at straws in your reply and my points stand.

 

incidentally it is amusing that you should consider blogging to be an inferior channel of information but, strictly as point of interest, could you point me at Allan Richards' blog please.

[bassplayer]

If this ridiculous, straw grasping hypothesis were true, why would the 'medical condition' become apparent only after 2 days in Court ?

Being driven to a point of breaking down in tears stopped me from going as far as some. Justice seems to rely on people breaking down before their case is heard never mind during...

[Tony Dunkley]

Looks like Mr Wingfield agreed to accept a compromise!:

 

Upon the Claimant's claim and upon the parties agreeing to compromise the claim upon the

terms set out in the document entitled "Settlement of claim number 3NG01237 between the

Canal and River Trust and Mr Andy Wingfield" ("The Settlement").

 

You're missing the point, as usual.

The fact that Mr Wingfield agreed to a compromise is self evident from the wording of the Consent Order. The significance of that Order is that, at some time during the second day of the hearing C&RT recognized the need for a compromise to be offered before a Judgment was handed down. Having avoided what they must have considered to be impending defeat C&RT would obviously prefer the matter to be kept quiet rather than publicise yet another instance of their wasting money on unwinnable litigation.

[PaulG]

 

You're missing the point, as usual.

The fact that Mr Wingfield agreed to a compromise is self evident from the wording of the Consent Order. The significance of that Order is that, at some time during the second day of the hearing C&RT recognized the need for a compromise to be offered before a Judgment was handed down. Having avoided what they must have considered to be impending defeat C&RT would obviously prefer the matter to be kept quiet rather than publicise yet another instance of their wasting money on unwinnable litigation.

On the other hand, if the purpose of the legal action was to persuade Mr Wingfield that he needed to purchase a home mooring, the CRT would say that they were successful

[Tony Dunkley]

On the other hand, if the purpose of the legal action was to persuade Mr Wingfield that he needed to purchase a home mooring, the CRT would say that they were successful

 

Of course they would, and it would be said in the hope of it being accepted by those stupid enough to see it as a good reason for putting many thousands of pounds more of maintenance and repair money into into Shoosmith's pockets instead.

[Graham Davis]

I do hope one of the FOI requests arising from this is how much of our money was given to Shoosmiths to pursue this action when is was apparent to all observers long ago that compromise could have been reached without court action.

 

A FoI request will not give you that sort of information. It is beyond their remit.

 

You're missing the point, as usual.

The fact that Mr Wingfield agreed to a compromise is self evident from the wording of the Consent Order. The significance of that Order is that, at some time during the second day of the hearing C&RT recognized the need for a compromise to be offered before a Judgment was handed down. Having avoided what they must have considered to be impending defeat C&RT would obviously prefer the matter to be kept quiet rather than publicise yet another instance of their wasting money on unwinnable litigation.

 

Evidence, please?

Or are you jumping to conclusions as well?

 

Of course they would, and it would be said in the hope of it being accepted by those stupid enough to see it as a good reason for putting many thousands of pounds more of maintenance and repair money into into Shoosmith's pockets instead.

 

And as usual your usual biased sniping!!

[cotswoldsman]

On the other hand, if the purpose of the legal action was to persuade Mr Wingfield that he needed to purchase a home mooring, the CRT would say that they were successful

Ok so I have checked a few things today I would be interested to know where this information about Andy having a home mooring comes from? If he still does not have a home mooring does that mean they were unsuccessful?

[Allan(nb Albert)]

 

A FoI request will not give you that sort of information. It is beyond their remit.

 

Evidence, please?

Or are you jumping to conclusions as well?

 

And as usual your usual biased sniping!!

 

On the contrary, a Freedom of information Act request found that the costs of litigation with Nigel Moore were £82,168.50 in respect of Solicitors fees and £157,813.75 Council's fees.

 

*****Edited to make it clear second amount was for council's fees.

Edited February 25, 2015 by Allan(nb Albert)