Boater Sues C&RT for Section 8

[NigelMoore]

I am told that an criminal offence may have been committed under section 21 of the Theft Act (Blackmail) if CaRT knowingly set conditions, including the payment of money, for the return of the boat and these were outside those allowed for by Section 8. This would be irrespective of the legality in seizing the boat.

 

It certainly comprises blackmail, to the same extent as it comprises theft – but the same situation obtains in both as mayalld keeps pointing out: it would be equally as impossible to establish a statutory crime, given that all concerned could and would plead their belief in their right to the actions. That removes an essential element in both instances, to the statutory offence.

 

Crime is undoubtedly committed nonetheless, but which crime depends upon whether the Court determines that s.8 empowers seizure as lien on debt or not. If it does not [and s.8 is simply a right to remove a vessel from the waterway under appropriate circumstances], then holding the boat subject to demands for licence arrears and/or any other debt [such as any court costs involved in obtaining a court order to action s.8] is an offence under the Torts etc Act. If s.8 does empower seizure as lien on debt, then CaRT would be bound by the Tribunals etc Act and would commit an offence under that Act if seizing and holding boats for that purpose, without using authorised personnel acting under a court warrant.

[NigelMoore]

I can't answer that with any degree of certainty, however being retired I sometimes fall victim to daytime TV which has various programmes about Bailiffs and Sheriffs etc. It seems fairly commonplace for the losing defendant of a civil action to simply fail to pay an amount awarded by the court. For some reason I don't understand, this doesn't trigger any contempt of court issue, rather it remains up to the pursuer to recover the money privately via bailiffs or sheriffs, who have considerable constraints in what they can and can't take possession of.

 

I guess that with a S.8 the issues are more clear cut and the target of the action is specifically the boat, rather some vague notion about the general assets of the defendant, presuming he even has any that are realisable.

 

I see your point. The problem is, however, that the s.8 process is NOT taking possession of the boat in the same way that bailiffs do, nor for the same purpose [one of the aspects the court is being asked to clarify].

 

The judge in Mayers, in fact, clarifies the distinction nicely – did I ever link to the transcript of the proceedings in that case? If not, I can arrange to post it online. The end result of s.8 is re-imbursement only of the costs of removal and storage that have been incurred by CaRT - they derive no income from it.

 

So in the end, the civil suit for arrears is always going to be necessary anyway.

 

I would very much like the question of why this boat was transported at great cost so far from where it was seized to be examined.

 

This the element that is covered by the Statute of Marlborough IV; to be abolished if the Law Commission have their way.

 

A petition to retain this statute would be in order.

[nicknorman]

I see your point. The problem is, however, that the s.8 process is NOT taking possession of the boat in the same way that bailiffs do, nor for the same purpose [one of the aspects the court is being asked to clarify].

 

The judge in Mayers, in fact, clarifies the distinction nicely – did I ever link to the transcript of the proceedings in that case? If not, I can arrange to post it online. The end result of s.8 is re-imbursement only of the costs of removal and storage that have been incurred by CaRT - they derive no income from it.

 

So in the end, the civil suit for arrears is always going to be necessary anyway.

Whilst all that is true, the reality is that the whole S.8 process achieves the aim - which is to act as a deterrent and/or means of getting rid of and subsequently hopefully keeping unlicensed boats off CRT waters, rather than to recover a one-off modest licence fee arrears. I'm making no comment as to the rights or wrongs of this, just offering an explanation of why CRT do what they do.

[NigelMoore]

Whilst all that is true, the reality is that the whole S.8 process achieves the aim - which is to act as a deterrent and/or means of getting rid of and subsequently hopefully keeping unlicensed boats off CRT waters, rather than to recover a one-off modest licence fee arrears. I'm making no comment as to the rights or wrongs of this, just offering an explanation of why CRT do what they do.

 

And I completely agree with your explanation.

[NigelMoore]

. . . whether it is for the good of all to prove you can have a boat on the Trent without a licence is another matter.

 

 

The situation has never been any different from that obtaining with the non-tidal Thames up to 2010. The consequences of establishing the facts of the case is merit-neutral.

 

Those who keep a boat outside of the compulsory licensing areas may choose to be licensed regardless, in order to be free to navigate whenever they wish; only those intending not to use their boat for extended periods of time will opt for not getting a licence/certificate.

 

What IS for the good of all [including CaRT itself] is ensuring that everyone knows and keeps to the law. Demanding toll for use of waterways over which unamended PRN’s exist has been a crime since the dawn of legal memory; allowing CaRT to profit from that crime - regardless of how much such profit might be needed - is not for the good of any, least of all for the maintenance of this country's constitutional 'rule of law'.

[erivers]

 

 

The situation has never been any different from that obtaining with the non-tidal Thames up to 2010.

And it's worth remembering that the only thing that changed on the non-tidal Thames as a result of the 2010 Order was the requirement for registration for boats kept on the river rather than just used on the river. It did not extend that requirement to boats moored in marinas or other private waters where there was no PRN and that were not used on the river. The adjacent waters provision sought by the EA was removed entirely from the Order. The definition of the River Thames remains exactly as described in the TC Act 1932 and in earlier Acts.

[NigelMoore]

if the court do rule that C&RT only have to maintain the main navigable channel . . .

 

[NigelMoore]

 

Did it not state something to the effect of the navigable channel shall be 2x ( + a bit for passing) the width of the 'standard sized boat' that used that waterway ?

 

The BW analysis criteria are expounded here: -

 

http://www.britishwaterways.co.uk/media/documents/meetings/wusig/WUSIG-MOC-dimensions-paper-April-2011.doc

[NigelMoore]

 

The BW analysis criteria . . .

 

I have noted Allan Richard’s article on the CaRT refusal to concede the points raised by Leigh Ravenscroft. Far from being willing to accept they have been wrong, CaRT have instructed Shoosmiths to defend the entire case that Leigh has brought.

 

The first of the 3 issues is naturally that of the extent of the main navigable channel. It was always to be expected that CaRT, as BW before them, would argue that – for licensing purposes only, not with respect to dredging obligations – the main navigable channel extends from bank to bank. It will, however, be interesting to see how they resolve the difficulty inherent in demanding a different interpretation of exactly the same phrase within closely timed and linked legislation.

 

The decision to defend against the proposition that s.8 is NOT empowering a lien on debt is a more intriguing development – hitherto they have never been explicit as to that alleged statutory empowerment; indeed, at times the legal department have expressly acknowledged that seized boats could not be held a lien against Court costs orders for example. The anomalous position they thereby place themselves in, of course, is that if the court finds in their favour on the point, then Leigh wins over the illegality of the action, because it would have violated the Tribunals, Courts & Enforcement Act 2007, in becoming a seizure of goods without court warrant – as was the main burden of the YouTube video ‘conversation’.

 

A win for CaRT on the right under s.8 to seize and hold boats as lien on debt carries the inescapable corollary requirement to obtain Court Orders for seizure in EVERY instance, live-aboards or not. Further, because even prior to 2007 this requirement is amongst the very oldest statutes still ‘on the books’, the offence of disregarding this essential Human Rights element of our historic legal system will apply to every seizure of unlicensed boats since the 1983 Act. That would amount to a more than 30 year record of criminal behaviour.

 

It would be infinitely preferable for CaRT to admit that demanding payments for anything other than removal and storage costs as a pre-requisite for releasing seized boats is ultra-vires. That would amount to acknowledgement that they have behaved criminally in far fewer instances [in fact, I personally have no proof that they have persisted in such demands for anyone other than in Leigh’s case].

 

The third issue is a more vexed one: whether s.8(2) empowers removal of boats in circumstances where the owner is known and the boat causing no obstruction under the 1995 Act, is the least clear-cut argument, and a court could be not be second-guessed as to what their decision on that might be.

 

At all events, the CaRT Defence is due very shortly.

[larkshall]

Why bother Crt wins, bigger, more money, has government backing.

 

All the law wants is money. A plague to all their houses, the law was, is, and always be an arse

[nicknorman]

I have noted Allan Richard’s article on the CaRT refusal to concede the points raised by Leigh Ravenscroft. Far from being willing to accept they have been wrong, CaRT have instructed Shoosmiths to defend the entire case that Leigh has brought.

 

The first of the 3 issues is naturally that of the extent of the main navigable channel. It was always to be expected that CaRT, as BW before them, would argue that – for licensing purposes only, not with respect to dredging obligations – the main navigable channel extends from bank to bank. It will, however, be interesting to see how they resolve the difficulty inherent in demanding a different interpretation of exactly the same phrase within closely timed and linked legislation.

 

The decision to defend against the proposition that s.8 is NOT empowering a lien on debt is a more intriguing development – hitherto they have never been explicit as to that alleged statutory empowerment; indeed, at times the legal department have expressly acknowledged that seized boats could not be held a lien against Court costs orders for example. The anomalous position they thereby place themselves in, of course, is that if the court finds in their favour on the point, then Leigh wins over the illegality of the action, because it would have violated the Tribunals, Courts & Enforcement Act 2007, in becoming a seizure of goods without court warrant – as was the main burden of the YouTube video ‘conversation’.

 

A win for CaRT on the right under s.8 to seize and hold boats as lien on debt carries the inescapable corollary requirement to obtain Court Orders for seizure in EVERY instance, live-aboards or not. Further, because even prior to 2007 this requirement is amongst the very oldest statutes still ‘on the books’, the offence of disregarding this essential Human Rights element of our historic legal system will apply to every seizure of unlicensed boats since the 1983 Act. That would amount to a more than 30 year record of criminal behaviour.

 

It would be infinitely preferable for CaRT to admit that demanding payments for anything other than removal and storage costs as a pre-requisite for releasing seized boats is ultra-vires. That would amount to acknowledgement that they have behaved criminally in far fewer instances [in fact, I personally have no proof that they have persisted in such demands for anyone other than in Leigh’s case].

 

The third issue is a more vexed one: whether s.8(2) empowers removal of boats in circumstances where the owner is known and the boat causing no obstruction under the 1995 Act, is the least clear-cut argument, and a court could be not be second-guessed as to what their decision on that might be.

 

At all events, the CaRT Defence is due very shortly.

It does seem quite an important case. But presumably any decision the court comes to will only apply to this specific case? Am I right in thinking that a legal precedent is only set if there's an appeal? So ideally Leigh would lose, and then win at appeal? Because if he won, CRT probably wouldn't want to go to appeal in case it scuppered them big time.

[matty40s]

Why bother Crt wins, bigger, more money, has government backing.

 

All the law wants is money. A plague to all their houses, the law was, is, and always be an arse

Because the Law is more important than what you suggest.

The Law does not want money, the solicitors and lawyers do.

In this case, CRT could well do to step back from the precipice.

Edited June 16, 2015 by Theo
Correct Spelling mistake in response to report

[NigelMoore]

Why bother Crt wins, bigger, more money, has government backing.

 

All the law wants is money. A plague to all their houses, the law was, is, and always be an arse

 

I have no quarrel with the cynicism of that post, but I do decry the defeatism of it.

 

If we were all to despair of justice by reason of manifold injustices, the judiciary would never change for the better – and for all the current failures, the present day system is so far improved upon the situation even of a century ago that it is all but unrecognisable.

 

In great part, that is down to those who have entered the arena and played by the rules in defiant challenge to then current injustices and [largely by reason of publicity] have succeeded in gradually forcing greater public accountability and ethical standing.

 

Besides: regardless of potential success or failure when challenging governmental corruption, it is personally better to fight and lose than to roll over and lose – if win they must, let them know they must still fight for it.

 

All the above supposing that your cause is worth it of course.

[MtB]

It does seem quite an important case. But presumably any decision the court comes to will only apply to this specific case? Am I right in thinking that a legal precedent is only set if there's an appeal? So ideally Leigh would lose, and then win at appeal? Because if he won, CRT probably wouldn't want to go to appeal in case it scuppered them big time.

 

 

My flaky understanding is that decisions reached in the county court only apply to the specific case. High Court decisions create a legal precedent.

 

just posting this so Nige can correct me and edumacate the board!

 

 

 

MtB

[NigelMoore]

It does seem quite an important case. But presumably any decision the court comes to will only apply to this specific case? Am I right in thinking that a legal precedent is only set if there's an appeal? So ideally Leigh would lose, and then win at appeal? Because if he won, CRT probably wouldn't want to go to appeal in case it scuppered them big time.

 

No, a High Court decision sets a precedent binding on all lower courts, and is hugely persuasive respecting all peer courts. Bear in mind that virtually all BW/CaRT cases have been hitherto processed at the County Court level, with very few, rare exceptions.

 

This is not a case wherein the issues decided will depend upon specific individual circumstances; the primary issue affects all river waterways [250 miles of them], while the secondary issues affect all s.8 seizures whether live-aboards or not, system-wide.

 

For example, as I have said: if CaRT win the issue over s.8 empowering the seizure and holding of boats as a lien on licence arrears etc, then they instantly open themselves up to the laws governing such seizures – which would apply ‘across the board’.

 

I am personally fascinated to see what approach CaRT will take. They have acknowledged a duty to file their Defence by close of play tomorrow.

 

MtB - where County Court judgments depend upon an interpreted principle, they can be 'persuasive' when applied to similar cases, even though you are correct, that they can set no binding precedent.

[larkshall]

The law is lawyers judges and such other blood sucking leeches as this world can unleash. If I was the defendant I would write it off to experience go do something with less stressful, and less expensive. As I said earlier the law is and will always be an arse. UK LAW BEING THE WORST.

[NigelMoore]

The law is lawyers judges and such other blood sucking leeches as this world can unleash. If I was the defendant I would write it off to experience go do something with less stressful, and less expensive. As I said earlier the law is and will always be an arse. UK LAW BEING THE WORST.

 

In this instance, CaRT IS the defendant. The boater has taken them to court, not the other way around.

 

When CaRT take you to court, the option of ‘walking away’ is not open to you [although in the case of s.8 threats, removing your boat from their jurisdiction would render the threat null and void]. Taking the initiative as Leigh has done helps enormously, as it allows you to set the ‘agenda’ so to speak. It will of course be stressful and expensive, and possibly eat up years of his life, but campaigning for justice and adherence to the process of law is a large part of his life anyway - this is a new arena for him, that's all.

 

The danger lies in Shoosmiths’ ability to twist the Case Management issues to best suit them, regardless, but that is something that just has to be dealt with as best you can.

 

For all the blatant travesties exampled in some case decisions here, to claim the UK legal system is the worst anywhere, is extraordinary; I would place it around the finest anywhere, despite having occasionally been on the receiving end of some disgusting disregard for the law by manipulative top judges.

[NigelMoore]

Why bother Crt wins, bigger, more money, has government backing.

 

Just to set the record straight – in virtually all the cases known to me where the individual has sued BW/CaRT rather than been sued by them, the individual has won – won at least something, even if not everything.

 

Burnett won both at the High Court and at Appeal against BW, in 1973, for damages in negligence, denying the application of s.43(3) of the Transport Act 1962 in circumstances where there was no express or implied agreement to the terms of use of BW facilities, and where he had had no choice in the matter. Awarded damages and costs against BW.

 

A company rather than an individual, but Swan Hill Developments won against BW both in the High Court, and at Appeal in 1997, over the interpretation of the terms of the Grand Junction Canal Company enabling Act of 1793. Awarded costs in both instances against BW, and further granted costs respecting BW's failed application to the House of Lords.

 

Taylor won against BW in 2001 in the County Court, over a Breach of Contract suit and was awarded damages and costs against BW.

 

My own case won against BW in the High Court, in 2012, over interpretation of: the GJCC Act 1793; the Transport Act 1968; the BW Act 1975, and the General Canal Byelaws of 1976, and won against CaRT on Appeal, in 2013, over the interpretation of s.8 of the BW Act 1983. Awarded costs against BW/CaRT both for the High Court and Appeal Court.

 

My personal experience revealed just how very reluctant the courts are, to make findings against such authorities – but as the record shows, that is not an inevitably insurmountable barrier if you are sufficiently pig-headed as well as right. Luck plays a part too of course, and coping with the case management manipulation is key - but my point is: it is doable; a CaRT win is NOT a foregone conclusion despite the inevitable bias and the 'Inequality of Arms'.

[kris88]

Thank you Nigel for you very informative and educational posts.

Regards kris

[larkshall]

As you said luck. I'm not a gambling man. I know I despise the legal profession with very very good reason. But as soon odds fall below ten to one on. I bail.

[carlt]

 

Just to set the record straight – in virtually all the cases known to me where the individual has sued BW/CaRT rather than been sued by them, the individual has won – won at least something, even if not everything.

That is not counting the many cases (mine included) where BW pulled out at the 11th hour leaving them with costs and counter claims to pay.

[onionbargee]

Personally I find the legal system impossible to understand, and the cost of legal profesionals way out of my meagre funds. Legal aid has been cut back, and ordinary people have no chance against big firms like Shoosmiths. The law is not fair, its based on money. Lawyers relieving you of yours, to be more accurate.

[NigelMoore]

Personally I find the legal system impossible to understand, and the cost of legal profesionals way out of my meagre funds. Legal aid has been cut back, and ordinary people have no chance against big firms like Shoosmiths. The law is not fair, its based on money. Lawyers relieving you of yours, to be more accurate.

 

It may not be fair, and it can seem impenetrable, and yes, the layman is at a considerable disadvantage – but: the biggest mistakes corporations like BW/CaRT make is when they go after people with nothing to lose, and nowhere to go.

 

Then the boot is on the other foot, and you will find the big corporations bemoaning the unfairness of being sued by the indigent. Of course, such people cannot pay legal professionals and so have to be capable of learning how to DIY, and yes, that still puts them at a disadvantage – but it is an overcomable obstacle as I have illustrated, even if not for everyone. Sometimes being in a position to pay some professionals to do your work for you is the most disastrous and expensive position to find yourself in - if you do not know the relevant law and procedures, how do you assess your professional's grasp of it, or their ability in a courtroom?

 

carlt’s point figures into this too, even in those instances where BW/CaRT have instigated proceedings – individuals have managed to represent themselves against Shoosmiths and force back-downs. Tony Dunkley being a recent case in point.

 

None of this is intended to belittle the difficulties and inequalities, just to counter the defeatist belief that the individual with or without money stands no chance. Big legal firms like Shoosmiths are hacks after all; they can make mistakes, they can be careless and overlook things - and above all, they don't really care that much, whereas the individual cares a great deal.

[pearlygeoff]

 

It may not be fair, and it can seem impenetrable, and yes, the layman is at a considerable disadvantage – but: the biggest mistakes corporations like BW/CaRT make is when they go after people with nothing to lose, and nowhere to go.

 

Then the boot is on the other foot, and you will find the big corporations bemoaning the unfairness of being sued by the indigent. Of course, such people cannot pay legal professionals and so have to be capable of learning how to DIY, and yes, that still puts them at a disadvantage – but it is an overcomable obstacle as I have illustrated, even if not for everyone. Sometimes being in a position to pay some professionals to do your work for you is the most disastrous and expensive position to find yourself in - if you do not know the relevant law and procedures, how do you assess your professional's grasp of it, or their ability in a courtroom?

 

carlt’s point figures into this too, even in those instances where BW/CaRT have instigated proceedings – individuals have managed to represent themselves against Shoosmiths and force back-downs. Tony Dunkley being a recent case in point.

 

None of this is intended to belittle the difficulties and inequalities, just to counter the defeatist belief that the individual with or without money stands no chance. Big legal firms like Shoosmiths are hacks after all; they can make mistakes, they can be careless and overlook things - and above all, they don't really care that much, whereas the individual cares a great deal.

 

 

And whatever the result the 'dirty tricks', abuses of procedure and unhelpful protocols and procedures, and lying and breaches of instructions of the court can all be exposed by use of the internet.

Whether anyone takes any notice is another matter. You do what you can. If people prefer to remain in ignorance as to the criminality of BW/CRT that's up to them. Some of us take it seriously and put it above self preservation.

[NigelMoore]

 

It was taken from him with the intention of permanently depriving him of it (hence why they moved it to a location where they intend to dispose of it instead of arranging to have it stored nearby in order to return it) . . .

 

 

the reality is that the whole S.8 process achieves the aim - which is to act as a deterrent and/or means of getting rid of and subsequently hopefully keeping unlicensed boats off CRT waters, rather than to recover a one-off modest licence fee arrears.

 

The validity of these and other, similar observations is upheld by the fact that BW and CaRT have usually assumed that the considerable expense involved in retrieving a boat seized and removed over 100 miles, would be beyond the means of most boaters.

 

In Leigh’s case this belief was memorialised in their argument against his original Injunction Application [which had sought to affirm their inability to summarily sell his boat]: –

 

 

Since the 2012 take-over, up to August last year, CaRT had seized 35 boats, only 9 of which have been successfully reclaimed by their owners. Of those, only 3 were permitted to be relicensed to remain on the waterways. At least 8 were sold off after owners were served with Torts Notices giving a limited period in which to pay in full.

 

That included Geoff Mayers’ boat [though whether it has actually sold I do not know]. In his case also, they knew full well that there were no assets to fund retrieval, and that sale of the boat itself could never cover the extravagant costs in seizing, transporting, and 'storing' it. I seem to recall they were demanding in excess of £12,000 costs, with an asking price for the boat of some £3,500.

 

In Leigh’s case [not included in above figures], he borrowed the money to get the boat back, on condition of his selling it [which had always been the intention anyway], to enable repayment. It seems doubtful that he will end up with anything over, even if it does sell for what he is asking.

 

p.s. He rang late last night to say that he has received CaRT’s Defence; I am agog to read it.