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

[Allan(nb Albert)]

Answer is no; neither of the Consent Orders listed contained confidentiality clauses – but neither does this one, and they have already disclosed it, so nothing prevents listing this case and linking the Order on the appropriate web page as with all the others.

 

The terms of the settlement to which the Consent Order refers, is, however, a matter between the parties to that agreement. Allan has already asked for a copy of it, and the probable answer will be that they are bound by a confidentiality clause, whether that is the case or not.

It is possible that CaRT might claim an exemption under section 41 (Information provided in Confidence) of the Freedom of Information Act. However, my reading of this section of the Act suggests that this does not apply because it is not confidential information provided by Andy Wingfield to CaRT.

[MtB]

There appears to have been a reprise of the situation in that he has yet again been s.8’d, this time for ‘overstaying’ in an area away from his home mooring, rather than for not CC’ing according to the ‘rules’ [if that was what he had been accused of previously].

 

 

Just to clarify my understanding, I didn't think a boat could be section 8'd for anything other than being unlicenced.

 

So a step has been missed out I think. 'Overstayers' first have their licence revoked for 'overstaying', and THEN the S.8 process begins because the boat is not licenced..

 

Once the S.8 application gets to court (assuming a liveaboard) success of the application hinges on the narrow fact of whether the boat is licenced or not. Discussion of the reasons for the missing licence is not relevant or permitted.

 

Yes/no Nigel?

 

 

MtB

[NigelMoore]

 

 

Just to clarify my understanding, I didn't think a boat could be section 8'd for anything other than being unlicenced.

 

So a step has been missed out I think. 'Overstayers' first have their licence revoked for 'overstaying', and THEN the S.8 process begins because the boat is not licenced..

 

Once the S.8 application gets to court (assuming a liveaboard) success of the application hinges on the narrow fact of whether the boat is licenced or not. Discussion of the reasons for the missing licence is not relevant or permitted.

 

Yes/no Nigel?

 

 

MtB

 

Absolutely correct MtB, I worded that too loosely, under the assumption that what you have said would be taken for granted [but it should not be].

 

Whether there is any chance to argue the toss as to whether the licence should have been revoked, will depend on the procedural adroitness of those professionals representing boaters in such cases, &/or upon a judge recognising an LiP's limitations and permitting argument on the point to be lodged in defence [in other words, the judge will need to accept that the Part 8 procedure was inadmissible, and direct that a defence be filed and the case proceed as normal].

 

Ordinarily - and ideally - to be sure of presenting a defence to the s.8, the boater with an arguable case will need to have taken the initiative and challenged the revoking/refusing of the licence ASAP prior to CaRT filing Part 8 claims.

[NigelMoore]

Was Nigel Moore offered a settlement in his case?

 

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

 

No settlement was ever offered, at any stage of the proceedings in any of the multiple cases between myself and BW/CaRT. I had suggested this would be sensible, prior to and throughout the various proceedings – and indeed, in the lead up to the main s.8 case the court itself suggested alternative dispute resolution on their own initiative – but BW/CaRT would have none of it.

 

The one point in time at which CaRT indicated they would be willing to engage in ADR [responding to a second court recommendation, this time from an Appeal Court judge] was immediately prior to the final appeal in the main s.8 case, having already obtained the High Court Order entitling them to throw me off the waterways. However when queried as to what potential areas of discussion there might be, so that I could assess what value there might possibly be in agreeing to this, their solicitors stone-walled me.

 

In any event, I very soon discovered that hitherto unbeknownst to me, they had been trying to get Hounslow Council to do their dirty work for them, under planning law, and had been urging the Secretary of State to reject my planning appeal against the Council.

 

Under those circumstances, as I wrote to the court rejecting the proposed ADR, I could have no trust whatsoever in CaRT’s integrity; an attitude backed by my experience of their previous cavalier attitude, even to court undertakings.

 

I did have initial hopes that Parry as new CEO would see merit in discussing honourable disposition of a later case in lieu of relying on legal argument, but he too would have none of it – which evoked criticism by the High Court Master in the event, who declared that BW/CaRT had treated me badly.

 

So it cannot be said that BW/CaRT at any time offered me an out-of court settlement in lieu of litigation to the end.

 

The point is well made however, that in extremis the sensible thing to do is to reach as tolerable a compromise as is on offer. I had early reached just such a compromise with the town centre developer in the first case, in which BW had been their litigation [and business] partner. Robin Evans poured scorn on the developers’ amicable resolution with me, and condemned them for making life difficult for BW’s litigation.

 

BW’s unilateral pursuit of their partner's’ lawsuit failed to accomplish their purpose, and their most recent attempt to re-interpret the decision in that case has likewise just failed. Their costs in that one line of attack are incalculable, but has to be close to the £100 thousand mark [this is additionally to the quarter million spent on the s.8 case.]

[Allan(nb Albert)]

Just to clarify my understanding, I didn't think a boat could be section 8'd for anything other than being unlicenced.

 

So a step has been missed out I think. 'Overstayers' first have their licence revoked for 'overstaying', and THEN the S.8 process begins because the boat is not licenced..

 

Once the S.8 application gets to court (assuming a liveaboard) success of the application hinges on the narrow fact of whether the boat is licenced or not. Discussion of the reasons for the missing licence is not relevant or permitted.

 

Yes/no Nigel?

 

 

MtB

My understanding (from the man himself)is that Andy Wingfield has not been sectioned 8'ed twice.

 

I suggest you reread defended cases (Davies and Mayer's).

[Loafer]

OK here's a hypothetical but related question. Here's me, CCing and overstaying-tastic. I first get told to move on and comply with the rules or else I'm out.

 

I still don't move enough, so they tell me they are not going to renew my licence next year for being jolly naughty..

 

Once my current license expires, I guess a s8, for not being licenced, will soon be stuck to my boat.

 

So, apart from avoiding the situation in the first place, which is what I do, how to I go about protecting myself against a 'PART 8' procedure?

 

or, how do I go about opposing/arguing/defending against the Part 8 bit, which I assume then means that the court doesn't just 'rubber stamp' the s8 notice without giving me the opportunity to haggle?

 

Any tips from you battle-hardened warriors would be greatly appreciated.

[bassplayer]

OK here's a hypothetical but related question. Here's me, CCing and overstaying-tastic. I first get told to move on and comply with the rules or else I'm out.

 

I still don't move enough, so they tell me they are not going to renew my licence next year for being jolly naughty..

 

Once my current license expires, I guess a s8, for not being licenced, will soon be stuck to my boat.

 

So, apart from avoiding the situation in the first place, which is what I do, how to I go about protecting myself against a 'PART 8' procedure?

 

or, how do I go about opposing/arguing/defending against the Part 8 bit, which I assume then means that the court doesn't just 'rubber stamp' the s8 notice without giving me the opportunity to haggle?

 

Any tips from you battle-hardened warriors would be greatly appreciated.

Make friends with Richard Parry?

[kris88]

It seems if you buy him a pint your in, or alternately you could adopt a stretch of tow path give CRT some money each year, then you can make your own rules up it seems.

Regards kris

 

Sorry can't do smileys "humour was intended"

Edited March 1, 2015 by kris88

[Loafer]

It seems if you buy him a pint your in, or alternately you could adopt a stretch of tow path give CRT some money each year, then you can make your own rules up it seems.

Regards kris

 

Sorry can't do smileys "humour was intended"

 

OK I see the humour, but I'm still interested in the PART 8, not SECTION 8.

 

You know, the bit that assumes I'm not going to challenge it.

 

But HOW do I challenge it?

[kris88]

I'm shure an expert will be along shortly

Regards kris

[bassplayer]

OK I see the humour, but I'm still interested in the PART 8, not SECTION 8.

 

You know, the bit that assumes I'm not going to challenge it.

 

But HOW do I challenge it?

I'm guessing that IF it can be proven that CRT carried out any wrongdoing during the process, you could take legal action against them and sue them for damages and losses. It wouldn't be the first time individuals have received big payouts from big organisations. It takes a lot of bottle and you've got to be prepared to go all the way. The organisations count on that! The sad truth though, is it will be all of us who cough up if CRT have to pay out.

[Thorfast]

OK here's a hypothetical but related question. Here's me, CCing and overstaying-tastic. I first get told to move on and comply with the rules or else I'm out.

 

I still don't move enough, so they tell me they are not going to renew my licence next year for being jolly naughty..

 

Once my current license expires, I guess a s8, for not being licenced, will soon be stuck to my boat.

 

So, apart from avoiding the situation in the first place, which is what I do, how to I go about protecting myself against a 'PART 8' procedure?

 

or, how do I go about opposing/arguing/defending against the Part 8 bit, which I assume then means that the court doesn't just 'rubber stamp' the s8 notice without giving me the opportunity to haggle?

 

Any tips from you battle-hardened warriors would be greatly appreciated.

 

Apart from complying by moving, as you stated at the beginning, perhaps you should not be able to oppose/argue/defend yourself against the Part 8 --- self inflicted problem.

[NigelMoore]

 

OK I see the humour, but I'm still interested in the PART 8, not SECTION 8.

 

You know, the bit that assumes I'm not going to challenge it.

 

But HOW do I challenge it?

 

You lodge an objection to the procedure with the court – pronto.

 

This, as with everything to do with civil procedures in the courts, is covered and explained in what the trade calls the “White Book”; but the Civil Procedure Rules are online and the section relating to your query is –

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part08

 

Procedure where defendant objects to use of the Part 8 procedure

8.8

(1) Where the defendant contends that the Part 8 procedure should not be used because –

( a ) there is a substantial dispute of fact; and

( b ) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,

he must state his reasons when he files his acknowledgment of service.

(Rule 8.5 requires a defendant who wishes to rely on written evidence to file it when he files his acknowledgment of service)

 

(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.

(Rule 8.1(3) allows the court to make an order that the claim continue as if the claimant had not used the Part 8 procedure)

 

The hypothetical boater in your example would have little chance, because that would be a case where Part 8 was appropriate. Only if you were not breaking the law and could contend that the authority were demanding more than the law provides for, could you mount a defence.

 

Tony has gone this route, so could provide you with a description of the practicalities.

 

It is appropriate to point out that this is leaving things later than desirable, and you really should have sought resolution or challenged refusal of the licence prior to CaRT making their legal move.

 

IF they were correct in maintaining that you have not complied with s17(3)( c )(ii), then they would be entitled to assert their dissatisfaction with your fresh avowal of intention to do so, hence entitled to withhold your licence. Your only recourse then would be to sell; move on, or get a mooring where you could leave the boat and apply for your licence under s17(3)( c )(i).

[Mike Todd]

I would really like to know what the facts are, because there appear to be two incidents rather than just one. From Mr Wingfield’s contributions on the YBW site, I gather that the year old dispute ending in the Court Order re: the settlement is done and dusted and he has, at least since that time if not before, obtained a home mooring - such that his renewed licence will have been granted on that basis.

 

There appears to have been a reprise of the situation in that he has yet again been s.8’d, this time for ‘overstaying’ in an area away from his home mooring, rather than for not CC’ing according to the ‘rules’ [if that was what he had been accused of previously]. His explanation for non-movement now being that he had broken his leg, instead of [as previously] because the Trent floods had made movement impossible. If that is the situation, then CaRT are trying a duplication of the Dunkley scenario [except that Tony had not stayed anywhere more than 14 days at a time, as distinct from this boater].

 

I notice that CaRT have still not added the Wingfield case and Order to their website list of concluded court cases.

 

If my understanding above is correct, then I worry that Mr Wingfield may be more concerned with waiting for CaRT to initiate court action once more [id they haven't already], rather than taking the initiative in challenging revoking of his licence.

Perhaps because it has not been 'concluded' but 'stayed'?

[NigelMoore]

Perhaps because it has not been 'concluded' but 'stayed'?

 

It is concluded so far as the Claim is concerned; the case is only kept open to the extent that either party can return to the court for the purpose [only] of enforcing the terms of the agreement.

 

The other Consent Order I linked to previously contained the same provision, so consistency would demand inclusion of this one also.

[Tony Dunkley]

OK here's a hypothetical but related question. Here's me, CCing and overstaying-tastic. I first get told to move on and comply with the rules or else I'm out.

 

I still don't move enough, so they tell me they are not going to renew my licence next year for being jolly naughty..

 

Once my current license expires, I guess a s8, for not being licenced, will soon be stuck to my boat.

 

So, apart from avoiding the situation in the first place, which is what I do, how to I go about protecting myself against a 'PART 8' procedure?

 

or, how do I go about opposing/arguing/defending against the Part 8 bit, which I assume then means that the court doesn't just 'rubber stamp' the s8 notice without giving me the opportunity to haggle?

 

Any tips from you battle-hardened warriors would be greatly appreciated.

 

What's the reason for the 'hypothetical' overstaying, and are you 'hypothetically' living aboard the boat, or not ?

Edited March 1, 2015 by Tony Dunkley

[NBTA London]

OK here's a hypothetical but related question. Here's me, CCing and overstaying-tastic. I first get told to move on and comply with the rules or else I'm out.

 

I still don't move enough, so they tell me they are not going to renew my licence next year for being jolly naughty..

 

Once my current license expires, I guess a s8, for not being licenced, will soon be stuck to my boat.

 

So, apart from avoiding the situation in the first place, which is what I do, how to I go about protecting myself against a 'PART 8' procedure?

 

or, how do I go about opposing/arguing/defending against the Part 8 bit, which I assume then means that the court doesn't just 'rubber stamp' the s8 notice without giving me the opportunity to haggle?

 

Any tips from you battle-hardened warriors would be greatly appreciated.

Well, as they say, if I were going there, I wouldn't start from here...

 

You first get told to move on and comply with the rules or else you're out. You still don't move enough, so they tell you they are not going to renew your licence next year for being jolly naughty..

 

You'll get a series of letters during that process. You can reply to those letters, pointing out that your boat is your home (if it is). That means that they will need to go to court to confirm that they are acting proportionately. If you disagree that you haven't moved enough, you can also complain about the notices. You could also notify them at that point that, should things end up in court, you intend to dispute the case so it would not be appropriate to use Part 8. In short, you don't wait until you haven't got a licence to start dealing with it.

 

In general, though, the question sees confused. Would you (hypothetically) be in trouble for overstaying of for not moving far enough? If its the former, you are allowed to stay more than 14 if it's reasonable in the circumstances, so be prepared to have evidence to back up that claim. If it's the latter, make sure you record every journey you make because CaRT's data logging is notoriously patchy. It may be that you have moved a lot more than they have noticed so you may be able to prove that if you have evidence (dated photos, receipts from boatyards, etc.).

 

Or if you are (hypothetically) overstaying without a good reason, not moving and have no intention of moving much, it might just be easier to start talking to your local estate agent.

[kris88]

Hypothetically is there a time limit to the amount of time an overstay is allowed. Or is this done on a case by case basis, decided by the particular enforcement officer for that area.

I'm interested in what the legislation is

Regards kris

[NBTA London]

The legislation doesn't specify anything. It just says reasonable in the circumstances. The judge in Nigel Moore's case said that it was not possible to say in advance what was reasonable in any given circumstances.

 

I daresay they (CRT) will decide what they think is reasonable in each individual case, and you will need to argue it with them if you disagree. But it's probably advisable to let them know if you expect to be unable to move for any length of time. Also if the circumstances change and you find yourself unable to stick to a previously agreed overstay. They are much more likely to be amenable if you keep them informed. But ultimately, it could be something that a court has to decide if push comes to shove.

 

And if you have a medical/welfare reason for not moving as often, or for staying in certain places, then you should certainly discuss that with CaRT's Welfare Officer. They are legally obliged to take such circumstances into account, and it is the Welfare Officer's job to see that they do that.

[Tony Dunkley]

Hypothetically is there a time limit to the amount of time an overstay is allowed. Or is this done on a case by case basis, decided by the particular enforcement officer for that area.

I'm interested in what the legislation is

Regards kris

 

There is no time limit in the relevant legislation, which is the 1995 British Waterways Act, and that says if it's 'reasonable in the circumstances' then you can stay in one place beyond the 14 day limit. No maximum time limit is laid down in the Act, and C&RT have no statutory powers to impose one. Furthermore, you don't need permission from C&RT to exceed the 14 days in the event of breakdown, injury or other infirmity, flooding, freezing etc. . . . . you already have permission to 'overstay' in those circumstances, it was given to you by Parliament in 1995.

[kris88]

Thanks for the info, it's good to know.

Regards kris

It really does seem it depends upon the area your

In, to as how the regulations are enforced

Edited March 1, 2015 by kris88

[matty40s]

Loafer, it is best not to carry out your hypothetical situation in or near Nottingham.

[Jerra]

. you already have permission to 'overstay' in those circumstances, it was given to you by Parliament in 1995.

True but you are more likely to be not pressurised if you do CRT the common courtesy of informing them of your situation as suggested by NBTA London in #375

[Tuscan]

True but you are more likely to be not pressurised if you do CRT the common courtesy of informing them of your situation as suggested by NBTA London in #375

Seems a very reasonable thing to do, I would also confirm any call in an email so you have a record.

[Tony Dunkley]

True but you are more likely to be not pressurised if you do CRT the common courtesy of informing them of your situation as suggested by NBTA London in #375

 

Seems a very reasonable thing to do, I would also confirm any call in an email so you have a record.

 

Yes, I agree, but it is something, as you say, to tell them that your're doing, rather than asking to be allowed to do. If you ask permission then it's just an invitation for them to either refuse permission or put a time limit on the stay. A record of any sort is always worth having, but it must be in the form of a notification, and not a request.

Edited March 1, 2015 by Tony Dunkley