Boater Sues C&RT for Section 8

[NigelMoore]

Sounds quite lengthy for a directions hearing/strike out application but I'm no expert.

 

An hour would ordinarily be the allotted time, but CaRT argued at the first hearing last November, that that would be insufficient time to consider their strike out application, with the further application in case of failure, to remove my involvement.

 

The Strike-out application itself was multi-layered, in that they really wanted the whole case struck out, but if they failed they wanted the Statement of Case struck out; in the further alternative they wanted the section of the Statement entitled ‘Presumption of Probity’ struck out.

 

They failed to persuade the Master to strike out the Claim, and he just struck out the Statement, leaving Leigh the option of introducing the material at a more appropriate time. For the case to stand without that, the Particulars of Claim needed amending, so he gave some advice on that.

 

That all took up most of the time.

 

The previous hearing had seen their arguments against my involvement take centre stage already, so that did not take up much time during this second hearing. The Master having asked Leigh what it was he wished and why, I was allowed to speak for Leigh during the hearing, while my continuing assistance was to be dependant on how concise I could make an effective amended ‘Particulars’,. It was accepted that Leigh needed help, and that if I ‘stuck to the program’ [instead of widening the issues into a generalised campaign], my assistance would be helpful.

 

CaRT had to swallow that, for all that they urged their wish for him to have professional assistance instead.

 

CaRT have since accepted the amended Particulars and provided their amended Defence as Ordered, so we should at last be on course to discuss how to proceed from here.

 

We have never yet had a hearing to obtain directions as to the issues etc. because of these preliminary skirmishes. The next hearing in September has been allocated a half day. That will be approximately 18 months since start of proceedings! They have probably been hoping that Leigh would tire of it all and give up [and/or for me to die of old age before any trial]. At this stage, a trial date could not be much earlier than a year away I fear. Hopefully I am wrong.

[NigelMoore]

 

If only the middle third of the river is the "Main Navigable Channel" that is the "River Waterway" for the purposes of needing 1971 Act Registration, the other two thirds at the edges are within the scope of "canal (not being a river waterway)", and a licence is required.

 

Having been going over the latest argument from CaRT on this aspect, I realise that you both have very different approaches after all, so that you have managed to come up with something they had not thought of! The effect of both your arguments is that public navigable waters outside of the MNC are subject to registration/licensing, but the underlying arguments are actually poles apart.

 

Their argument runs that section 4 of the 1983 Act states: “Notwithstanding anything in the Act of 1971 or the Act of 1974 or in any other enactment relating to the Board or their inland waterways, the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine.”

 

Disregarding the claim both of you make regarding the all-encompassing nature of s.43 of the 1962 Transport Act - that would have rendered such later empowerment redundant - their Defence submits that “In the premises notwithstanding any limitations placed on ‘river waterways’ in the 1971 Act, section 4 of the 1983 Act empowered the Trust to register pleasure boats for such periods and on payment of such charges as they may from time to time determine without geographical limitation.”

 

So their “in the alternative” argument is that the registration scheme from 1983 onwards was applicable anywhere; it no longer mattered how “main navigable channel” was defined, because that geographical limitation was abolished.

 

It is not, in other words, that they can apply the 1976 Byelaw to the areas of rivers falling outside of the main navigable channel [as you were arguing], it is that they can apply the 1971 registration requirement to those areas. In fact, according to this reasoning, they could impose PBC’s on canals too! Not that they would want to reduce their income in that way of course.

 

You will, naturally, recognise just how tenuous their line of reasoning is; your argument is so much stronger.

 

They would still be barred from re-litigating the point using your argument, else I would have to present the contrary reasons in support of Hildyard J’s decision on whether the legislation differentiates between PRN and non-PRN waters. It makes for interesting debate though, amongst ourselves.

 

[Allan(nb Albert)]

 

Having been going over the latest argument from CaRT on this aspect, I realise that you both have very different approaches after all, so that you have managed to come up with something they had not thought of! The effect of both your arguments is that public navigable waters outside of the MNC are subject to registration/licensing, but the underlying arguments are actually poles apart.

 

Their argument runs that section 4 of the 1983 Act states: “Notwithstanding anything in the Act of 1971 or the Act of 1974 or in any other enactment relating to the Board or their inland waterways, the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine.”

 

Disregarding the claim both of you make regarding the all-encompassing nature of s.43 of the 1962 Transport Act - that would have rendered such later empowerment redundant - their Defence submits that “In the premises notwithstanding any limitations placed on ‘river waterways’ in the 1971 Act, section 4 of the 1983 Act empowered the Trust to register pleasure boats for such periods and on payment of such charges as they may from time to time determine without geographical limitation.”

 

So their “in the alternative” argument is that the registration scheme from 1983 onwards was applicable anywhere; it no longer mattered how “main navigable channel” was defined, because that geographical limitation was abolished.

 

It is not, in other words, that they can apply the 1976 Byelaw to the areas of rivers falling outside of the main navigable channel [as you were arguing], it is that they can apply the 1971 registration requirement to those areas. In fact, according to this reasoning, they could impose PBC’s on canals too! Not that they would want to reduce their income in that way of course.

 

You will, naturally, recognise just how tenuous their line of reasoning is; your argument is so much stronger.

 

They would still be barred from re-litigating the point using your argument, else I would have to present the contrary reasons in support of Hildyard J’s decision on whether the legislation differentiates between PRN and non-PRN waters. It makes for interesting debate though, amongst ourselves.

 

What constitutes an 'inland waterway' is the same in the 71 and 83 Acts. The 76 Byelaw says 'canal' but provides the same definition. It means any 'waterways belonging to or under control of the board' (and goes on to include any land or premises owned or controlled).

The 71 Act also specifies 'river waterways' in a schedule and states that boats using the 'main navigable channel' need a PBC. It therefore follows that CaRT control the main navigable channel.

 

My question is do CaRT control river waterways outwith the main navigable channel?

Edited July 24, 2016 by Allan(nb Albert)

[NigelMoore]

 

My question is do CaRT control river waterways outwith the main navigable channel?

Of course they do. Same as BW did throughout the decade prior to the 1971 Act. All the Act did was to confer additional powers to demand registration over part of the rivers already under their control.

 

Remember the 1965 byelaw requiring pleasure boats to move out of the main navigable channel to give way to commercial boats; that was applicable to both canals and rivers.

 

 

Edit to add a necessary clarifier: by the relevant statutory definition, "river waterways" ARE the "main navigable channel" of the scheduled rivers, so of course CaRT control them! But I know you meant to refer to the areas of the rivers that do NOT comprise "river waterways"; i.e. the areas either side of the main navigable channel.

Edited July 25, 2016 by NigelMoore

[NigelMoore]

The very fact that such questions get asked time and again is a fascinating revelation of how effectively BW/CaRT have been disseminating the concept that control of the waterways is bound up solely with the issue of boat licences.

Once that is established, it follows that eviction of boats due to revocation of the licences is the sole penalty applicable; this being the point of the exercise I suspect.

Even if you do not hold this view, it tends to be attributed to you anyway – as they are doing in Leigh’s case. His position is being falsely portrayed as a denial that CaRT have any navigational control over the majority of the rivers. Successfully set up a straw man like that, and you are bound to win a judge over.

[Tony Dunkley]

. . . . . . . . .

 

Their argument runs that section 4 of the 1983 Act states: “Notwithstanding anything in the Act of 1971 or the Act of 1974 or in any other enactment relating to the Board or their inland waterways, the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine.”

 

. . . . . . . . .

 

So their “in the alternative” argument is that the registration scheme from 1983 onwards was applicable anywhere; it no longer mattered how “main navigable channel” was defined, because that geographical limitation was abolished.

 

 

 

It is great news, and highly encouraging, that C&RT now appear to have recognized the fact that the MNC does not extend across the full width of any navigation and are now reduced to relying on such a pathetically weak argument in support of their claim to have powers to demand the registration of pleasure boats not being kept or used within the MNC of a scheduled river navigation.

 

To attempt to convert the fiscal and temporal parameters of S.4 of the 1983 Act into the widening of a geographical constraint smacks more than a little of sheer desperation. No wonder they are stalling and delaying by every means available, . . . I think they have finally recognized just what a mess they've got themselves into.

[NigelMoore]

 

It is great news, and highly encouraging, that C&RT now appear to have recognized the fact that the MNC does not extend across the full width of any navigation . .

 

Nothing to get too excited/encouraged about Tony. This is their back-up argument only, in case the Court finds them wrong over the breadth of the MNC; it does not indicate that they have changed their minds over that.

 

Of course, in my opinion they already know full well exactly what their own legislation conveys; so all this argument is defending a commercially driven adopted viewpoint, not defending anything they really believe.

 

Their defence against Leigh’s Claim on this issue relies on a double back-up:

 

1. Primary argument: MNC means whole of the river from bank to bank;

2. In the alternative [if wrong about that], the MNC element has been abolished; no such geographical limitation is applicable any longer;

3. In the further alternative [if wrong about that also], then none of it matters anyway, because any boat not moving can be classified as a houseboat, respecting registration of which, no geographical limitations exist.

 

It is surprising how successful that final back up can be. The moron who was deputised as a High Court judge in my own preliminary issues hearing, was all for throwing out my case entire - on that basis alone - before it even got started.

 

One might wonder why they bother with boat licences at all, and do not simply class all boats as houseboats instead. That would avoid a lot of expensive argument over uncomfortable truths. In fact, they tried doing exactly this on the Brent, the legal department having spent a year at the task of of working out how they could still demand "licences" from boats moored here, following their final defeat in my case. Some of the nonsense they came up with in the official letters sent out was marvellous, though I was able to advise on effective rebuttals of CaRT's re-classification of their boats as houseboats - but I digress.

 

[mayalld]

 

It is great news, and highly encouraging, that C&RT now appear to have recognized the fact that the MNC does not extend across the full width of any navigation and are now reduced to relying on such a pathetically weak argument in support of their claim to have powers to demand the registration of pleasure boats not being kept or used within the MNC of a scheduled river navigation.

 

 

I can't see that they are doing that.

 

All they are doing is setting out that IF their main argument is rejected, they have a second argument that they want to be considered (and naturally, in their view it is a weaker argument, but it is there in case the stronger argument falls).

 

This is just how it works in the legal world.

[Tony Dunkley]

 

Nothing to get too excited/encouraged about Tony. This is their back-up argument only, in case the Court finds them wrong over the breadth of the MNC; it does not indicate that they have changed their minds over that.

 

> . . . . . . . . . . .

 

1. Primary argument: MNC means whole of the river from bank to bank;

2. In the alternative [if wrong about that], the MNC element has been abolished; no such geographical limitation is applicable any longer;

3. In the further alternative [if wrong about that also], then none of it matters anyway, because any boat not moving can be classified as a houseboat, respecting registration of which, no geographical limitations exist.

 

> . . . . . . . . . .

 

 

I can't see that they are doing that.

 

All they are doing is setting out that IF their main argument is rejected, they have a second argument that they want to be considered (and naturally, in their view it is a weaker argument, but it is there in case the stronger argument falls).

 

 

This much more of a desperation argument than a back-up one.

 

Until fairly recently Shoosmiths were blissfully unaware of the wording and implications of Byelaw 19 (1), which, if C&RT's contention that the MNC extends for the full width of any navigation was correct, ie. from bank to bank, could only be complied with by amphibious pleasure craft capable of climbing out of the water when encountering an oncoming or overtaking commercial vessel.

[NigelMoore]

 

 

This much more of a desperation argument than a back-up one.

 

Aren't they all?

[Tony Dunkley]

 

Aren't they all?

 

Well, yes, but there are degrees of desperation and I can't help thinking that this one, along with the recent strike out /sack Nigel Moore Application, is pretty close to the top of the scale.

Almost everything they're saying and doing with regard to Leigh's Claim, and to their current issue sharing Claim against me seems to be aimed at avoiding, or at least postponing for the longest possible time, having to air their ridiculous arguments in an open Court hearing.

I think, in reality, they are seriously concerned over the probable outcome and repurcussions from all this, and are now regretting that their own excesses have brought about the situation they find themselves in.

Edited July 25, 2016 by Tony Dunkley

[DavidLS]

Surely, Tony, if that's the case they would be attempting to settle, no?

[Tony Dunkley]

Surely, Tony, if that's the case they would be attempting to settle, no?

 

No, . . . they are far too bloody-minded and arrogant to climb down sufficiently to make proposals realistic and conciliatory enough to result in a settlement.

[Alan de Enfield]

Surely, Tony, if that's the case they would be attempting to settle, no?

 

Loss of face

Admitting they were / are wrong

Opening the 'floodgates'

 

They cannot afford to back down. just plough on throwing good money after bad and hoping it gets lost in 'other news'

[NigelMoore]

They cannot afford to back down. just plough on throwing good money after bad and hoping it gets lost in 'other news'

 

There does come a point when you find yourself painted into a corner.

 

CaRT could have settle ages ago, for 2/3rds of what they estimate to be the minimum cost of a trial, with the innocuous additional requirement of a public apology on the one issue they actually acknowledge to be true.

 

It was all too much to swallow apparently; meanwhile they have idiotically progressed matters with Tony, so that even if they agreed a settlement with Leigh at this stage, it would not help them keep things under wraps in the long run.

 

However it must not be forgotten also, that they retain a lobbying firm dedicated to promoting their causes through Parliamentary back doors; this has to engender a powerful feeling of invulnerability, and a confidence that everything possible will be done to prevent any too-disastrous outcome.

 

Neither Parliament nor the Judiciary want to end up with egg on their faces.

 

[NigelMoore]

An interesting explanation for the choice by CaRT to use s.8 instead of the legislated recourses for failure to have licences/certificates, is given in their amended Defence. With reference to the HRA CaRT deny “that in using section 8 of the 1983 Act the Trust it is acting disproportionately:

(1) If use of the less intrusive measure unacceptably compromises the legitimate aims of the Trust; or
(2) If use of the less intrusive measure is less effective to achieve the legitimate aims of the Trust.”

So there we have it: the legislation designed to address and remedy breaches of the licensing/registration requirements is allegedly unfit for purpose. Using the Magistrates Courts to compel compliance with the law “unacceptably compromises the legitimate aims of the Trust” and is “less effective” in ensuring compliance.

They appear to overlook the fact that using s.8 does not compel compliance with the law AT ALL, it only evicts the boat until next licence application. Furthermore, one has to wonder whether they have ever given the legislated avenues a chance in the first place, in order that these comparisons could be made [i do not know of any instances at all, though surely there must once have been some cases?].

[NigelMoore]

 

So, if the argument about the MNC being the middle third holds true, the position as to licencing etc is that from 1971 to 1976 there was a period when a registration was only required if you entered the fairway, but from 1976 a licence was required outside the fairway.

 

As the number of boats that remain permanently in the fairway is approximately zero, and as a licence is always an acceptable alternative to a registration, it could be that there has been nobody legitimately eligible for a River Registration for the past 40 years, and that BW got it right when they called it a Rivers Only Licence!

 

As noted before, CaRT’s argument is almost the opposite: rather than extending the range of the compulsory Licence, their argument extends the range of the Certificate.

 

CaRT effectively claim that the PBC can be demanded anywhere now [following the 1983 Act] – the unrecognised corollary of which is that the PBC could cover all the inland waterways, including the canals!

 

I would love to see CaRT’s reaction to anyone on the canals who applied for a pleasure boat certificate on this argument, in order to benefit from the 40% fee reduction.

 

[NigelMoore]

. . . one has to wonder whether they have ever given the legislated avenues a chance in the first place, in order that these comparisons could be made [i do not know of any instances at all, though surely there must once have been some cases?].

 

 

That there must have been prosecutions in earlier times is established [supposing one assumes honesty in BW’s statements to Parliament] by their “Statements of Intent” dated 18 June 1993.

 

That stated: “The established practice of the Board is to bring prosecutions in connection with any failure to have a relevant consent in force of a vessel . . .”

 

Other navigation authorities, naturally, successfully bring such prosecutions still, as a matter of course; Quite how they manage to square such a procedure with their responsibilities to manage their waterways effective and economically is something they should share, perhaps, with the bedevilled CaRT.

 

[Alan de Enfield]

 

That stated: “The established practice of the Board is to bring prosecutions in connection with any failure to have a relevant consent in force of a vessel . . .”

 

 

 

Maybe they are still practicing.

[NigelMoore]

 

Maybe they are still practicing.

 

Clever, Alan, but of course the problem is precisely that they have long ceased practising. This is because they prefer to wield what they see as a more effective ‘big stick’. No half-measures [as they see it] suit the temperament of their executive.

 

This is why I have characterised their abuse of powers as an institutional policy. I cannot recall any other navigational authority claiming that their statutory enforcement measures are unfit for purpose, thus justifying removal of their customers altogether.

 

[NigelMoore]

Not long before the third Case Management Hearing! Hope finally to get directions in the case moving it forward, now that CaRT has failed in their Strike-Out application.

CaRT’s Amended Defence, following Leigh’s filing of his amended Particulars of Claim [as the Master had ordered]: -

https://www.scribd.com/document/321875292/Ravenscroft-v-CaRT-Amended-Defence

Leigh’s Reply to that, filed today: -

https://www.scribd.com/document/321875290/Ravenscroft-v-CaRT-Reply-to-Amended-Defence

We will have to prepare skeleton arguments over the issues to be decided no doubt, but that will be immediately prior to the hearing.

[Tony Dunkley]

Not long before the third Case Management Hearing! Hope finally to get directions in the case moving it forward, now that CaRT has failed in their Strike-Out application.

 

CaRT’s Amended Defence, following Leigh’s filing of his amended Particulars of Claim [as the Master had ordered]: -

 

https://www.scribd.com/document/321875292/Ravenscroft-v-CaRT-Amended-Defence

 

Leigh’s Reply to that, filed today: -

 

https://www.scribd.com/document/321875290/Ravenscroft-v-CaRT-Reply-to-Amended-Defence

 

We will have to prepare skeleton arguments over the issues to be decided no doubt, but that will be immediately prior to the hearing.

 

 

That Amended Defence seems very feeble to me.

The studious avoidance of the PRN issue, the pathetic attempts to establish some interchangeability in effect and function between a 'Licence' and a [registration] 'Certificate', and resorting yet again to the S.13/Houseboat nonsense, all smacks of the despair that must be felt by those being sent to a gunfight, armed only with a bag of rocks, . . . poor Mr Stoner !

Edited August 22, 2016 by Tony Dunkley

[NigelMoore]

 

That Amended Defence seems very feeble to me.

The studious avoidance of the PRN issue, the pathetic attempts to establish some interchangeability in effect and function between a 'Licence' and a [registration] 'Certificate', and resorting yet again to the S.13/Houseboat nonsense, all smacks of the despair that must be felt by those being sent to a gunfight, armed only with a bag of rocks, . . . poor Mr Stoner !

 

Worse still, this Amended Defence is written many months after they had had the opportunity to study the original Reply to Defence, wherein the judgment of Hildyard J was several times cited in contradiction of what they persist in claiming still, despite his unappealed findings.

 

“Poor” Mr Stoner? It was he who introduced me to the doctrine forbidding re-litigation over once-failed arguments by the same party. I sometimes wonder whether CaRT ever think back ruefully to the March 2012 press release: “British Waterways welcomes the Judgment of The Honourable Mr Justice Hildyard in the High Court of Justice on 16 February 2012 . . .”

 

The fact that links to that ‘Statement’ no longer seem to work [and that the judgment was removed from the 'Court Action' webpage] may be some indication that the welcome has worn thin.

 

[MtB]

“Poor” Mr Stoner? It was he who introduced me to the doctrine forbidding re-litigation over once-failed arguments by the same party. I sometimes wonder whether CaRT ever think back ruefully to the March 2012 press release: “British Waterways welcomes the Judgment of The Honourable Mr Justice Hildyard in the High Court of Justice on 16 February 2012 . . .”

 

 

 

I doubt CRT has the ability to think, being a corporate body rather than a sentient being in its own right. (Although I grant you its executives individually can think and do, when pressed.) But that's the problem. Much as people here would like CRT staff and executives to think collectively as if they were all of one mind, it ain't gonna happen.

[Tony Dunkley]

 

Worse still, this Amended Defence is written many months after they had had the opportunity to study the original Reply to Defence, wherein the judgment of Hildyard J was several times cited in contradiction of what they persist in claiming still, despite his unappealed findings.

 

 

Despite the Order, made on 5 July last, restoring C&RT's struck out Claim against me and ordering a Directions Hearing on the f.a.d. after 15 August 2016, the Nottingham County Court have yet to fix a date for Directions, so taking into account the usual interval between notice and hearing, C&RT aren't going to have the opportunity for a lower Court rehearsal of any of these lame arguments re. the MNC and the ludicrous assertions that the 1983 Act repealed certain 'inconvenient' aspects of the 1971 Act.

Edited August 22, 2016 by Tony Dunkley