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Boater Sues C&RT for Section 8


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Who would have thought that such a minor matter, pre-trial, would have attracted so much attention?

 

http://www.bailii.org/ew/cases/EWHC/Ch/2016/2282.html

 

 

 

Two thoughts spring to mind as I follow this sort of stuff with interest.

 

The plain truth is normally inversely proportional to complexity.

 

The more puss which builds up in a spot, the bigger the explosion and subsequent relief.

 

(I apologise if you were eating your breakfast).

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Well I think everybody likes mucking about in boats, even lawyers. Hence the remarkable level of interest.

 

That’s a nice thought, MtB, but on reflection I suspect rather, that the interest reflects the concerns of the ‘industry’ over the extent to which lay persons are permitted to encroach upon their professional preserves.

 

The main thrust of most attached comments to the Law Gazette article is horror over the ‘prolixity’ of the original Statement of Case, and approvals and disapprovals of such comments - though fairly evenly divided - lean to approval. So on balance the legal profession is not best pleased. The fact that this judgment was published by Bailii suggests that it is seen as a landmark decision on the principles underlying the grant of any permission for lay advocacy.

 

As such, it comes complete with the appropriate stern warnings over any conduct that would undermine the efficiency of the litigation process.

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That’s a nice thought, MtB, but on reflection I suspect rather, that the interest reflects the concerns of the ‘industry’ over the extent to which lay persons are permitted to encroach upon their professional preserves.

 

The main thrust of most attached comments to the Law Gazette article is horror over the ‘prolixity’ of the original Statement of Case, and approvals and disapprovals of such comments - though fairly evenly divided - lean to approval. So on balance the legal profession is not best pleased. The fact that this judgment was published by Bailii suggests that it is seen as a landmark decision on the principles underlying the grant of any permission for lay advocacy.

 

As such, it comes complete with the appropriate stern warnings over any conduct that would undermine the efficiency of the litigation process.

 

I think it puts you in an unenviable position, someone who is trying to help Justice and obedience to the law. If all goes well it will make the case for mckenzie friends to get permission to appear a little easier the other way harder.

 

I have a feeling that you will be able to balance the needs to be efficient in the litigation process and get all the points and information over and extract from the other side the holes in their witnesses evidence.

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That’s a nice thought, MtB, but on reflection I suspect rather, that the interest reflects the concerns of the ‘industry’ over the extent to which lay persons are permitted to encroach upon their professional preserves.

 

The main thrust of most attached comments to the Law Gazette article is horror over the ‘prolixity’ of the original Statement of Case, and approvals and disapprovals of such comments - though fairly evenly divided - lean to approval. So on balance the legal profession is not best pleased. The fact that this judgment was published by Bailii suggests that it is seen as a landmark decision on the principles underlying the grant of any permission for lay advocacy.

 

As such, it comes complete with the appropriate stern warnings over any conduct that would undermine the efficiency of the litigation process.

 

 

On reflection you're probably right. The terms underwhich a MF may be allowed have obvious far reaching consequences and it is nothing to do with 50% of the population harbouring a secret and frustrated desire to cut loose and live carefree on a boat for the remainder of their complicated lives.

 

I feel the judge has a point about prolixity. Your use of language is pleasingly concise and precise but such precision sometimes comes at the price of brevity. (Was that a bit prolix of me?)

 

Nice word, 'prolix'. Must add it to me list.

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Reading through the judgment in hard copy, I am struck also by the degree of attention the Chief Master paid to dealing with CaRT’s application for permission to use privileged material from our correspondence when seeking to resolve matters out of court.

This also, must be another element he saw as desirable to publish, by way of establishing guidelines in similar applications.

"13. The CRT also seeks to rely upon a short extract from without prejudice communications between Mr Moore and the CRT relating to this claim. The communication arose in the course of negotiations seeking terms of settlement and they are undoubtedly subject to with prejudice privilege. Having heard submissions on this point, the extract I was asked to consider was handed up on the basis that if I concluded that it should not be taken into account I would disregard it. Although Mr Ravenscroft, through Mr Moore, said he had no objection to the court considering the without prejudice communication, his agreement to this course of action was conditional upon the court considering all of the without prejudice communications. That was not the approach the CRT wished to adopt and, therefore, I treated the application as being opposed.

14. Mr Stoner QC submitted that, relying upon the analysis of the principles which underpin without prejudice privilege, as explained by Clarke LJ in Somatra Ltd –v- Sinclair Roche & Temperley [2000] 1WLR 2453, the court is permitted to have regard to statements made in without prejudice communications for the purposes of interlocutory hearings. This, he says, does not infringe the public policy requirement that admissions made in without prejudice communications may not be used for the purposes of a trial
."

The Master concluded in paragraph 18: “I do not see that the decision in Sumatra Ltd v Sinclair Roche v Temperley provides any support for the application made by Mr Stoner QC.” . . . “What the CRT is seeking to do here is to cherry-pick from one communication made in the course of a series of without prejudice communications for the purposes of opposing Mr Ravenscroft's application to permit Mr Moore to act as a McKenzie Friend.” . . . “I am satisfied that there is no basis for permitting the CRT to rely upon an extract of a communication from Mr Moore in the course of early negotiations in this claim and I shall not have regard to it.

 

As to the material helpfully copied from here by debbifiggy, that WAS read, and seems to have proved something of an 'own goal': “Mr Ravenscroft himself added a few observations of his own in support of his application. He pointed to the fact the Mr Moore had been successful in his own case and that he is entirely content for Mr Moore to post information about his case on the forum. Mr Ravenscroft said he "wants to scream it from the rooftops".”

 

Leigh having won this particular application against CaRT's opposition [and his opposition to CaRT's application re privilege], I am very pleased to see that the Master has recorded that the costs of that application will be "costs in the case" - which will go some way to offsetting the costs against Leigh on the partial success of CaRT's Strike-Out application.

 

The judgment agrees -- and indeed insists - that the conduct of his case is down to Leigh, no matter how much assistance he feels necessary to call on, in the course of conducting the case.

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Have spent the afternoon reading this thread from beginning to end (so far) and have found it interesting, illuminating and concerning. Regardless of the personal character of Mr Ravenscroft or his past deeds this subject is of great importance and I for one am greatful for all the information contained in this thread. Whilst I have no desire to endorse wilful avoidance of license fees or mooring violations on any waterway, the idea that an organisation such as C&RT can use bullying and questionable (illegal) means to enforce such subjects should be a worry to all of us who live on the waterways of the U.K. I take heart that there are people like Nigel Moore who are prepared to step up to the plate for the 'little man' and to keep the rest of us informed as to what's going on. My interest was initially interested as I live on the river Lark which, as part of the Great Ouse system could end up being ceded from the E.A to C&RT. An editorial in the GOBA magazine hinted at this being a good thing but a in a subsequent issue a readers letter hinted at 'be careful what you wish for'! Now having read all of this I'm not sure I would welcome such an organisation taking over our waterway. Anyway, to all that have had meaningful input to this thread, thank you for educating me to some degree.

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My interest was initially interested as I live on the river Lark which, as part of the Great Ouse system could end up being ceded from the E.A to C&RT. An editorial in the GOBA magazine hinted at this being a good thing but a in a subsequent issue a readers letter hinted at 'be careful what you wish for'! Now having read all of this I'm not sure I would welcome such an organisation taking over our waterway.

A perfectly reasonable concern, of course, but don't imagine for one moment that the EA isn't just as capable of making up the law as it goes along, making unwarranted demands and threats and wasting precious navigation funding on senior counsel to argue (and subsequently lose) court cases. There is a very recent example on the Great Ouse and another concerning the Thames to be heard quite soon in the High Court.

Nigel's excellent work on the Ravenscroft and other cases has very important implications should C&RT ever take over the EA waterways as unlike the main canal system they have a statutory public right of navigation.

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I hate to say this because I have found this thread most interesting but can I suggest it carries with it a narrative which could well explain His Honour's reservations. There is a degree of entertainment in the content and it could be seen as grandstanding by those looking for a negative portrayal, (It's the Nigel Moore show!) I would suggest keeping any further updates to news of significant developments reported concisely and without editorialising.

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I hate to say this because I have found this thread most interesting but can I suggest it carries with it a narrative which could well explain His Honour's reservations. There is a degree of entertainment in the content and it could be seen as grandstanding by those looking for a negative portrayal, (It's the Nigel Moore show!) I would suggest keeping any further updates to news of significant developments reported concisely and without editorialising.

That has to be accepted as sound cautionary advice - there should, above all, be no suggestion that this case is anything other than Leigh's challenge to CaRT that (as he sees it) they stole his boat and violated the most ancient, fundamental statutes protecting the common man against those in power.

 

 

edit to add – it is only fair [i think] to point out that insofar as the case has, over the last year, turned into anything resembling “the Nigel Moore show”, that has been entirely due to CaRT, against the express wishes of both Leigh and myself.

 

There should be [but won’t be] considerable embarrassment, that such prolonged efforts to deny Leigh the assistance of a fellow layman should have been pursued at such length, by an organisation with limitless funds and both in-house and retained solicitors and barristers, with a senior QC to head the battle against an illiterate individual.

 

I understand that there is evident personal animosity colouring their opposition to my involvement - but that is highly unprofessional, at the very least. Plus: had they agreed to sit down and discuss this face to face, we might have got somewhere without all the lawyers and litigation. I was also pleased to note that Chief Master Marsh made the comment that Leigh being permitted assistance would be helpful to CaRT, not just to Leigh.

Edited by NigelMoore
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Journalists do like their puns. The latest headline blog on Leigh’s case –

 

CANAL TRUST’S ATTEMPTS TO BARGE OVER WITHOUT PREJUDICE RULE IS SUNK WITHOUT TRACE: NO WATERING DOWN OF THE PRINCIPLES

 

https://civillitigationbrief.wordpress.com/2016/09/18/canal-trusts-attempts-to-barge-over-without-prejudice-rule-is-sunk-without-trace-no-watering-down-of-the-principles/

 

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  • 2 weeks later...

Someone commented earlier as to how wary one must be when dealing with professionals of a certain ilk, and the traps that may lie in wait for the unschooled in jurisprudential rough and tumble.

By way of illustrating just how finicky all this can be, the latest contre-temps - over the wording of the recent Order following the Chief Master’s judgment on Leigh’s application for MF assistance – may help illustrate the point.

Shoosmiths were given the task of wording the appropriate Order, to be subject to Leigh’s approval so that no further hearing would be needed to settle the matter.

What they did, in the original draft, was to add in an entirely gratuitous element that seemed to suggest [to anyone not having read the background judgment] that the success of Leigh’s application was dependent upon the continuing assent of CaRT to this.

The contentious wording was –

AND UPON the permission granted below being expressly given on the basis of it being subject to withdrawal in the event of it being abused, whether such withdrawal be at the court’s own motion or by application on the part of the Canal & River Trust.”

Leigh’s response: -

I strongly object to the attempt to portray the permission granted by the Chief Master as contingent upon your client’s continuing assent. That is the implication I see in the addition of the words: “whether such withdrawal be at the court’s own motion or by application on the part of the Canal & River Trust.” It is accepted that your client is doubtless free to file fresh applications opposing the continued permission, if it feels that the Court has overlooked some transgression, but that forms no part of the judgment. I have copied and pasted the exact words of the judgment in replacement of this gratuitous additional wording.” i.e. –

AND UPON the permission granted below being made, as is usual, explicitly on the basis that it is not an open ended permission and may be withdrawn at any time if the permission is abused;”

The counter to that was –

As to the paragraph in the recitals objected to, it was never the intention to suggest that Mr Moore’s involvement was subject to the CRT’s continuing assent. Indeed part of the purpose of expressly including the words I did was to highlight that if the CRT wished to take any action it could only do so on the basis of a separate application notice. I am content with Mr Ravenscroft’s proposed amendment, save that the words “as is usual” should come out.” [my bold]

The next stage was sending in both versions for the Master’s perusal, and yet somehow both the versions were identical , being CaRT's version only!

Although the most objectionable wording was omitted as agreed, in the revised version, we did not respond in time to get the words “as is usual” kept in [Leigh’s access to and understanding of his email inbox is of uncertain and variable nature].

It may all seem petty, and doubtless it certainly is that – but on such petty little details depends public and judicial perceptions of the case. Omitting “as is usual” gives the firm impression that the qualifier attached to the permission is something extraordinary and peculiar to my involvement, instead of being the standard qualifier when granting such exceptional permission.

Clever is it not?

The sealed Order as eventually approved by the Court: –

https://www.scribd.com/document/326549079/Ravenscroft-v-CaRT-Order-of-29-September-2016

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Clever is it not?

 

 

Well, based on what you have described I wouldn't be putting Shoosmith's solicitor into the category of genius.

 

It is true that they have got their preferred version of the wording into the Order. But surely that was due to Leigh's failure to spot the error/subterfuge in time.

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It is true that they have got their preferred version of the wording into the Order. But surely that was due to Leigh's failure to spot the error/subterfuge in time.

 

Well they did not get their original version into the Order, so that was something - but yes, it is problematic that all contact is now through Leigh alone, because he cannot really read well enough to know what is said, and does not see/react to emails in good time. He did not send on the latest emails [with deadlines] from Shoosmiths until the day after the deadline.

 

Come to that, from Tony's posting of the latest letter to him, it seems that the court have set a date for a hearing in Leigh's case, and I still have not heard from him about that, even though he was on the phone yesterday and this afternoon!

 

Shoosmiths will be playing heavily on this disability.

Edited by NigelMoore
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Well they did not get their original version into the Order, so that was something - but yes, it is problematic that all contact is now through Leigh alone, because he cannot really read well enough to know what is said, and does not see/react to emails in good time. He did not send on the latest emails [with deadlines] from Shoosmiths until the day after the deadline.

 

Come to that, from Tony's posting of the latest letter to him, it seems that the court have set a date for a hearing in Leigh's case, and I still have not heard from about that, even though he was on the phone yesterday and this afternoon!

 

Shoosmiths will be playing heavily on this disability.

 

And don't they just get plenty of practice in that particular skill, . . . a considerable proportion of the subjects of C&RT's excesses have marked difficulties in both understanding the process they being put through and/or communicating about it. The latest one, in Liverpool, also falls into this category.

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And don't they just get plenty of practice in that particular skill, . . . a considerable proportion of the subjects of C&RT's excesses have marked difficulties in both understanding the process they being put through and/or communicating about it. The latest one, in Liverpool, also falls into this category.

 

 

That's an interesting and perceptive observation that many of us on here fail to realise.

 

Probably their failure to understand bureaucracy and inability to effectively communicate with it is the reason these people get into trouble in the first place.

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You ought to be able to set up a situation where all emails sent from Shoosmiths are automatically forwarded to yourself. It should be possible surely?

 

Shoosmiths are past masters in ensuring that as few Court papers as possible ever reach the intended recipient, so there is every likelihood that they've developed a similar method of ''inadvertently'' ensuring that as many e-mails as possible never arrive either.

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