CRT v Andy Wingfield Update

[Higgs]

Please help

Read the thread, must please remind me?

So who's miss easty

Who Mr Fowles again

And the out come?

Who's the Cowboys

And who's the Indians

 

 

Miss Marple in the Wild West. Mr Fowles is working for the big bad landowner who wants to run his railroad through a reservation. Miss Easty was caught in the middle of a shootout. Was a bit wounded. The cowboys are hired guns for the railroad. The injuns are run of the reservation.

[NigelMoore]

Please help

Read the thread, must please remind me?

So who's miss easty

Who Mr Fowles again

And the out come?

Who's the Cowboys

And who's the Indians

 

Case is Cart [claimant] v Wingfield [defendant]

 

Claim was for approval of s.8 removal of unlicensed boat, said boat’s consent being revoked & refused for not adhering to CC guidance.

 

Miss Easty was counsel for Wingfield.

 

Mr Fowles was counsel for CaRT

 

The outcome was a mutual sort of undertaking that CaRT would provide a home mooring, while Wingfield promised to comply with CC guidance when away from it. Details not known, because subject to confidentiality, and a copy of the settlement was not left with the court for public disclosure.

 

Who’s the Cowboys and who’s the Indians is for you to decide.

[NigelMoore]

Further to my elucidation above [and with apologies for having jumped between various forms of identifying the parties to date], the outcome as expressed in the Consent Order is published by CaRT here, in response to a FoI request from Allan Richards: -

 

https://www.whatdotheyknow.com/request/254406/response/620847/attach/2/4492%20001.pdf

[nicknorman]

Further to my elucidation above [and with apologies for having jumped between various forms of identifying the parties to date], the outcome as expressed in the Consent Order is published by CaRT here, in response to a FoI request from Allan Richards: -

 

https://www.whatdotheyknow.com/request/254406/response/620847/attach/2/4492%20001.pdf

Hardly seems worth trying to keep that secret!

[NigelMoore]

Hardly seems worth trying to keep that secret!

 

Agreed. What was surprisingly contrary to prior expectation, is that it was Andy’s counsel who proposed that the terms of the settlement be confidential.

 

But reading through the relevant preliminary skirmishes on this again more carefully, I believe that I can now see that the confidentiality clause was specifically to keep confidential the pattern and extent of movement which was to be incorporated into it, as the minimum movement CaRT would be satisfied with under Andy Wingfield’s particular circumstances. CaRT were properly concerned that any such specific pattern could be seized upon as setting a precedent. As, on their claim, the pattern and extent of movement was irrelevant anyway, this was something they wished to avoid. Miss Easty’s suggestion was a way of avoiding that potential outcome.

 

MR. FOWLES: What we can say is that, if he wants to use the canal or river, he should comply with the conditions that other people have to comply with.

 

JUDGE PUGSLEY: Yes, but I am fed up to the back teeth of trying cases which are not like this. In one week I had a case where the costs in some cases on one side were well over ten times the amount of compensation and, in a stinging judgment in a case call Piglowska v Piglowski, Lord Hoffmann laid into the courts, to put it bluntly, saying there must be some proportionality between the issue and the amount of costs.

 

Now, for a moment, may I make it clear I have not reached a view either way. I should think that is pretty obvious, but the context of continuous cruising is a wide one. I have every sympathy with the argument, but I have not heard the defendant on the topic, so I am only giving a provisional view and not a final one, that you should not try and dodge round the parking meters to secure for yourself a parking bay all day, but, equally, I am concerned as to what the other limit on other continuous cruising is. I am a bit rusty, but, I mean, if you are on the Brecon & Abergavenny Canal, that beautiful canal, there would be a limit to how far you could continuously cruise. I mean, I cannot remember it, but it has no access to any other part of the navigation system.

 

Now, all I am saying is that it is not an easy concept. I am not sneering. I think we all know what you actually are aiming at, that if you are a sort of water-bound toad wandering around the lanes, but in this case the canals, of England, that is perfectly legitimate and I suspect there are some people who do it, you know, take a year out, early retirement, but I am just concerned as to whether, even at this stage, there is some room for movement. I think the defendant would have to really co-operate with the claimant. I do not want to lay down a schedule. I do not think I have the power to or, if I have the power, it would be a very wise exercise of discretion, but, I mean, if your client is prepared to give an undertaking which is enforceable, just like an injunction, by penal sanctions that he undertakes that he will abide by a schedule of movement, I have to say I think there might be common sense all round.

 

MISS EASTY: Your Honour, for the avoidance of doubt, because, again, this case has wider implications in terms of, as you have said in the opening, that they do not want to set a precedent as it were, we are quite happy to maintain confidentiality of any agreement.

 

JUDGE PUGSLEY: Yes, I mean----

 

MISS EASTY: If that is something that the court would find of assistance.

 

JUDGE PUGSLEY: --what I am trying to get at is, say, for example, human situations can vary so much and I do not want to set a precedent that it is not continuous cruising unless you do, you know, like income tax laws, you live in the Channel Islands and you do not want to pay income tax in England, that you are only allowed so many days and all that business. I do not want it to be as rigid as that, but I am just thinking that, overall, I would have thought there was room for negotiation here on both sides.

 

MR. FOWLES: If your Honour does not want to set a precedent, you can imagine the position the Canal & River Trust is in, that, if we gave Mr. Wingfield a schedule of movements, whether that might be referred to by other boaters as what they needed to do without regard to the particular circumstances of this case.

 

JUDGE PUGSLEY: Well ( a ) there could be a confidentiality clause with the judgment, but ( b ) and in the alternative, in the recital it would surely say continuous cruising in the context of this area.

 

So the aspect kept hidden is the pattern and extent of movement permitted Andy when away from his new mooring - for the avoidance of setting precedent.

 

 

 

edit to add: my bold for emphasis and clarity in all above instances.

Edited August 31, 2015 by NigelMoore

[Bod]

I get the feeling that the judge stepped in to early. He didn't hear the defence rebuttal, that would have been the interesting bit!

The offer of a confidential settlement, was I feel made by Miss Easty too early, before she had a chance to put the defence case. No settlement would have been required.

Do we hear Mr Gardners evidence?

 

 

Bod

[NigelMoore]

I get the feeling that the judge stepped in to early. He didn't hear the defence rebuttal, that would have been the interesting bit!

The offer of a confidential settlement, was I feel made by Miss Easty too early, before she had a chance to put the defence case.

 

I can’t really agree. The judge did not need to hear a defence to understand that the whole exercise was an ultimately futile and above all disproportionate one, achieving no real managerial benefit. In such circumstances CaRT were, in his opinion, far better off settling the matter on a pragmatic basis.

 

Taking CaRT’s assertion that all boaters should conform to the same rules at face value, and that intent was the deciding factor in determining their criminality or not: - what would be achieved by judging one party as conformist or non-conformist for a pattern of movement whose legitimacy depended entirely on their state of mind, as compared to another boater’s identical pattern of movement with a different state of mind? In his own words, he was "fed up to the back teeth" with cases wherein the actions taken were vastly disproportionate to the end result allegedly desired.

 

In fact, the state of mind question could only arise by reason of a pattern of movement that CaRT objected to anyway, so the whole argumentation from CaRT is disingenuous.

 

Whatever he decided after hearing the defence, unless he laid down a pattern of movement as a template for satisfaction [which CaRT did not want], how could any judgment he handed down have taken things to an improved level?

 

The idea of a common sense settlement was entirely down to the judge, not Miss Easty. Miss Easty’s contribution was only to suggest confidentiality as a means of answering CaRT’s objections to the judge’s proposal.

 

It remains to be added that CaRT fiercely objected to the whole settlement concept.

 

MR. FOWLES: Obviously to lawyers that would all look very well, but, practically speaking, that is not necessarily going to be enough of a protection for the Canal & River Trust and, your Honour, if the court will not give guidance on the meaning of what Parliament says, there is no real reason why the Canal & River Trust should. I mean----

 

JUDGE PUGSLEY: I regard that as a highly irresponsible statement.

 

MR. FOWLES: I am sorry, your Honour?

 

JUDGE PUGSLEY: I regard that as a highly irresponsible statement. You cannot lay down in concrete what words like this mean. What you can do is, in the recital, surely, to make it absolutely clear that you are dealing with a man of advanced years, you are dealing with a man who has some physical disability and that, in the context of this case, the Board accept that, for this person, continuous cruising would be A, B and C. That would be totally different for a young couple in their mid-thirties who had no health inhibitions, no requirement foreseeable to seek any medical advice. Secondly, it would ignore completely all that legislation in the Equality Act. You have to bear in mind that people are not necessarily terminally ill or, in the alternative, fit for full duties and I think it would be perfectly feasible to take that into account and say “This should not be taken as a precedent for what continuous cruising means in all circumstances founded on this case, with this claimant at this age.”

 

MR. FOWLES: My instructions are that the demographic does tend to be older.

 

JUDGE PUGSLEY: Sorry?

 

MR. FOWLES: The demographic of boaters does tend to be older, so you would not necessarily very often get a position where you would be able to distinguish Mr. Wingfield’s position, say, from a young family. You know, the demographic of the boaters tends to be at the older end of the scale, if you like. So there would not necessarily be that----

 

JUDGE PUGSLEY: I am not so sure that would necessarily be true in areas of London. Anyway, let us not debate the abstract. If you do not want to discuss it with the claimant, you are perfectly entitled not to.

 

MR. FOWLES: May I take instructions?

 

JUDGE PUGSLEY: Yes. (Mr. Fowles took instructions) Mr. Garner, do sit down. I am not trying to force either of you. I can understand that the last thing you want to do, as a public authority, in effect, a charity limited by guarantee?

 

MR. FOWLES: Yes.

 

JUDGE PUGSLEY: Is to meet another 99 claims, especially if I may say, and I am not being silly, although you may think I am, but I am not intending to be silly, to say that the problems that the Canal & River Trust have may be markedly different in industrial cities like Birmingham and Nottingham and Manchester than they would be in rural areas, on the one hand, but dramatically different in the metropolitan areas, where mooring could be abused tremendously in areas of high tourist visibility and where there would be a far greater incentive. Having regard to the price of property in parts of Chiswick and adjacent areas up the Thames, where you are talking really big money could lead for rents and purchase, it could make houseboats and their leases seem very attractive. It would be monstrously unfair if one opened the door and locked the lock, as it were, to people having an entitlement that would be environmentally detrimental and unfair on other people who very much want moorings but could not afford it. So I fully understand. I mean, I leave it to you. I could envisage a plan.

 

And later: -

 

MISS EASTY: If it may assist the court, your Honour, we are quite happy, in terms of the court powers, because at the moment negotiations are moved and my learned friend is seeking further information, but we are quite happy to submit to a schedule, which we can draw up in the absence of assistance from the claimants, of a schedule of movement to whatever the court requires and submit to that. We are also quite happy not to call any evidence and provide such a schedule for this court to endorse with any kind of, in the preamble which would again assist the court.

 

MR. FOWLES: Your Honour, with respect, this all does rather beg the question, which is whether movement is what is the test for “bona fide navigation” and, as I have tried to make clear, Davies says that purpose is the question. So producing a schedule of movements would not really----

 

JUDGE PUGSLEY: If you do not want to settle this case and you are considering you are right, then you are perfectly entitled, however much it costs, to litigate. Whether you are wise to do so is another matter.

 

MR. FOWLES: Yes, your Honour. Well, your Honour, it is----

 

JUDGE PUGSLEY: We are dealing with human people, human beings and their happiness and we are not dealing with a matter that can be susceptible to the same legal definitions as you might give to whether a transfer of a business related to appoint of time or a period of time in the Transfer of Undertaking Regulations. It is not that sort of law, but I do understand your legitimate concerns that you should not lay down a precedent. I think, whatever happens, one has to be very careful to make it absolutely clear that this is not laying down a precedent, it is deciding a case on these particular facts, bearing in mind the age and relatively poor health of the defendant.

 

MR. FOWLES: Your Honour, I do not mean to split hairs, but there is a point here that, if one decided on a schedule of movements as a form of settlement and said “Well, this is not setting a precedent because it is in particular circumstances,” one would arguably still set a precedent in the sense that one could say “This is a matter of movement and not of purpose and, in this case, this is all that needed to happen that, basically the CRT and Mr. Wingfield needed to agree some movements and that was all okay.” Now, if the test is one of purpose, it is never going to be okay in a case where someone does not have a genuine purpose of navigation just to agree some schedules of movements with that person, however----

 

JUDGE PUGSLEY: If you do not want to engage in the exercise, you are perfectly free to take the view you are.

 

MR. FOWLES: Well, I will----

 

JUDGE PUGSLEY: I question how great your experience is of human motivation and how something like this can backfire.

 

MISS EASTY: Your Honour, would it assist----

 

JUDGE PUGSLEY: I do not think anything is going to assist, but go on, have a bash.

 

MISS EASTY: Again, in terms of the court’s jurisdiction, as I hopefully made clear, we are entirely happy to provide a schedule either of movement and/or purpose, saying “We are going here to do shopping” or whatever, in a proper format but to submit to the court through its jurisdiction.

 

JUDGE PUGSLEY: But the form would absolutely have to be that this cannot be used to gain a fulltime mooring on transient mooring sites by purely artificial arrangements. However, one should accept that people with advancing years may limit the scope of their continuous movement and circumstances may dictate that they have access to regular medical facilities.

 

 

Again - my bold in all instances.

[ROBDEN]

I bet C&RT will cringe if they get this judge in their next case.

 

Oh! I do hope so.

Edited August 31, 2015 by ROBDEN

[jenlyn]

I bet C&RT will cringe if they get this judge in their next case.

 

Oh! I do hope so.

They may well cringe when the new waterways minister reads it.

[NigelMoore]

The rather forward young Mr Fowles' anxious insistence that he wanted to argue the case and set a precedent in CaRT’s favour, rather than attempt a common sense settlement, began obviously to grate very much on the judge’s nerves. When Mr Fowles went even further and claimed that if the judge’s decision was not palatable to CaRT they would appeal, the judge [as I envisage from the transcript] began to turn rather purple.

 

“JUDGE PUGSLEY: What you are really trying to establish is his Honour Judge O’Malley’s decision on the particular facts of that case binds me and binds everybody else.

 

MR. FOWLES: I am not, your Honour. I said that it does not bind you. It is simply a matter of duty to----

 

JUDGE PUGSLEY: Well, that is how it is coming across. I am dealing with the facts of this case, which are rather different.

 

MR. FOWLES: Well, your Honour, I am arguing, I would wish to argue this particular case and that is what I am here to do.

 

JUDGE PUGSLEY: Well, it is clear that you wish to argue this particular case, but, if you think you are going to establish a general principle favourable to the Inland Waterways Board, as they used to be called, you may be right or you may be wrong, you take that risk. But, if you fail, it becomes a wider application.

 

MR. FOWLES: Well, if we believed that a precedent was set that was unfavourable, we would seek to appeal it, obviously, so that is obviously a risk that we recognise.

 

JUDGE PUGSLEY: And I think, if I were you, I would have a word with the person who sits behind you in the light blue tie. I think this is a case, if I may say so, where some overnight consideration would be very wise. I do not want you to think, either of you, that I have a fixed, firm resolve. At the moment, I have that terrifying difficulty that affects some judge sometimes that I think there is justice on both sides. This is a strange case. I am sorry but being addressed by you as though I was a Major going nowhere and you are a young subaltern with a Field Marshal’s baton in your hand is not the most, is not in fact the wisest choice. I do not think this is a case that is going to the House of Lords or even the Supreme Court. I think this is a case that ultimately is in difficulties because it founders in the middle.

 

MR. FOWLES: Your Honour, I am just trying to make submissions and explain our position.

 

JUDGE PUGSLEY: Yes. I am asking you to give thought to the ultimate result, not just make submissions.

 

[my bold]

[NigelMoore]

Do we hear Mr Gardners evidence?

 

Yes we do; I have not had the time or stomach to read through that yet, but I don’t anticipate anything particularly enlightening from it.

 

By way of light relief, ending the first day –

 

JUDGE PUGSLEY: Yes. Who is staying overnight?

 

MISS EASTY: I am, your Honour.

 

MR. FOWLES: Yes, I am.

 

JUDGE PUGSLEY: Oh well, if you find any good places in Chesterfield, let me know. I have been sitting here for over 20 years. Are you staying in Chesterfield?

 

MISS EASTY: Yes.

 

MR. FOWLES: Yes, your Honour. I am staying a little outside the centre.

 

JUDGE PUGSLEY: All of you from London?

 

MR. FOWLES: I am actually living in Preston at the moment, but my chambers is in London.

 

MISS EASTY: That is tough.

 

JUDGE PUGSLEY: It will be a social experience for you to stay in Chesterfield.

 

MISS EASTY: I have spent quite a long time here in the past as well. I like it.

 

JUDGE PUGSLEY: I look forward to hearing your incredibly interesting views of life in Chesterfield.

 

 

Does one gather an impression that the good judge was not over enamoured of the place?

[mayalld]

 

Yes we do; I have not had the time or stomach to read through that yet, but I dont anticipate anything particularly enlightening from it.

 

By way of light relief, ending the first day

 

JUDGE PUGSLEY: Yes. Who is staying overnight?

 

MISS EASTY: I am, your Honour.

 

MR. FOWLES: Yes, I am.

 

JUDGE PUGSLEY: Oh well, if you find any good places in Chesterfield, let me know. I have been sitting here for over 20 years. Are you staying in Chesterfield?

 

MISS EASTY: Yes.

 

MR. FOWLES: Yes, your Honour. I am staying a little outside the centre.

 

JUDGE PUGSLEY: All of you from London?

 

MR. FOWLES: I am actually living in Preston at the moment, but my chambers is in London.

 

MISS EASTY: That is tough.

 

JUDGE PUGSLEY: It will be a social experience for you to stay in Chesterfield.

 

MISS EASTY: I have spent quite a long time here in the past as well. I like it.

 

JUDGE PUGSLEY: I look forward to hearing your incredibly interesting views of life in Chesterfield.

 

 

Does one gather an impression that the good judge was not over enamoured of the place?

Having worked in Chesterfield for 15 years, I can find no fault with the learned judges opinion on this point!

[NigelMoore]

I can find no fault with the learned judges opinion on this point!

 

How do you feel about his point that in dealing with Mr Wingfield [whom the transcript reveals elsewhere was 52] “you are dealing with a man of advanced years”?

[mayalld]

 

How do you feel about his point that in dealing with Mr Wingfield [whom the transcript reveals elsewhere was 52] you are dealing with a man of advanced years?

Well as Mr Wingfield is older than me, I might agree with him.

 

On the other hand, having visited Chesterfield Market, where the average age appears to be 142, perhaps not so.

[NigelMoore]

as Mr Wingfield is older than me . . .

 

There really are boaters as young as you? According to Mr Fowles ‘demographic’ quoted earlier, you can hardly be a representative type. “My instructions are that the demographic does tend to be older.”

 

Well, it is good to know you young things are out there to prove him wrong.

[NigelMoore]

The afternoon session must make some interesting reading!

 

Going through the cross-examination of Garner in the afternoon, the confusion and contradictions become somewhat bewildering, due to the continued insistence on referring to houseboats.

 

The judge actually asked at one point, whether there was any quota on houseboat certificates, and because of the insistence that any live-aboard is a houseboat, CaRT ran up into the absurd situation where they had to claim that no refusal of a houseboat certificate could be made, supposing only that the applicant conformed to 3( c )(ii) [and, of course, the insurance and construction standards], which is of course wrong.

 

Having clarified that boats could moor anywhere on both sides of the canal [incorrect again, of course, and Garner weirdly did not contradict this – nor did either counsel], the issue of obstruction cropped up.

 

This, of course, is really the only pertinent issue, and the discussion over quite why CaRT did not implement the appropriate legislation respecting this, descended into farce.

Remembering that using s.8 to justify seizure of an offending live-aboard boat and accompanying ban from all their waterways altogether [and that the costs involved inevitably ensure that recovery is extremely expensive and consequently rare], is acknowledged interference with Human Rights, the rationale for not simply moving a boat away from being an obstruction &/or levying the appropriate fine is ludicrous.

 

MR. FOWLES: If I may, your Honour, I am instructed that there are byelaws under which the Canal & River Trust can remove obstructions, for example, but the practice of the CRT is not to use those because they may obviously impact on people’s human rights, so the approach is relatively lenient in that particular regard.

 

MISS EASTY: Your Honour, if I may assist, the CRT do have powers to remove an obstruction either under statute or under byelaw, if it is an obstruction or is interfering with the right of navigation. In so far as there is that issue, we accept that.

 

JUDGE PUGSLEY: Yes.

 

MISS EASTY: But it is not under the----

 

JUDGE PUGSLEY: This legislation, but delegated byelaw legislation.

 

MISS EASTY: Yes, we accept that.

 

MR. FOWLES: So the distinction, I understand, is it would be possible to prosecute such people under the byelaws, but the CRT avoids criminalising boaters. In relation to----

 

JUDGE PUGSLEY: I suspect also they might be mindful that the fines are derisory if the byelaws are of some age, but yes.

 

MR. FOWLES: In relation to a section like subsection (5) of s.8, which is an emergency power to remove an obstruction, that is where the concern will be: “Well we do not want to interfere with the boaters’ human rights”. So, with the byelaws, it is a question of avoiding prosecution to avoid criminalising boaters and with respect to a subsection like subsection (5) or s.8, that is concerned about human rights.

 

JUDGE PUGSLEY: Yes, but it is also concerned with safety. With an obstruction just after a long tunnel, it would be----

 

MR. FOWLES: Yes, that would, absolutely, your Honour. Thank you.

 

JUDGE PUGSLEY: Have you finished?

 

MR. FOWLES: Your Honour, that concludes my questions. [my bold throughout]

 

It really is quite extraordinary that both counsel are seemingly oblivious to the fact that the ’95 Act s.18 criminalises the offence of obstruction, and provides for what is currently a £1,000 fine in additional to deeming the relevant craft subject to subsection 5 of s.8. Nothing derisory about that.

 

So the argument that CaRT do not employ the simple expedient of moving a boat on because of their sensitivity to Human Rights is risible.

 

The judge’s wry observation that their reason would have more to do with “derisory” fines has also gone uncorrected as to the statutory situation.

 

Again, keeping and using a boat on a river waterway without a current pleasure boat certificate is itself an offence under s.5(1) & (2) of the 1971 Act, so that revoking/refusing that consent directly criminalises the boater.

 

So – where is the logic in the proposition that one action is avoided because of fear of criminalising boaters, when you are criminalising them anyway through a more draconian action? And where is the logic in the proposition that one action is avoided to obviate interference with Human Rights when you are doing even worse in removing their home?

 

The absurdity of the mealy-mouthed excuse is compounded by the fact that simply moving an obstructing boat without notice can be undertaken without also taking them into the Magistrates Court, though that option is there.

 

It is alarming that Andy’s counsel was completely oblivious to all this nonsense and so did not challenge it.

[Bod]

How many judges, or barristers have canal boating as a hobby?

There must be a time when C&RT will come up against somebody with a knowledge of the system.

 

Bod

[Dave Clinton]

It is alarming that Andy’s counsel was completely oblivious to all this nonsense and so did not challenge it.

 

From your reporting so far this is by far the most disturbing aspect. We expect CRT to be lying douchebags but for so much to go unchallenged at any point by the defence counsel is breathtaking.

 

How much does she get paid?

 

I wonder if there is anybody 'listening' in a position to raise these concerns with the Community Law Partnership?

Edited September 1, 2015 by Dave Clinton

[Arthur Marshall]

Can someone remind me what we hoped to learn from this transcript? It seems to me that the crucial bit, of what CRT might or might not define as a reasonable CC distance/definition, has been very carefully avoided by both CRT and the judge, and the only other thing we've learned is that highly paid lawyers are as incompetent as we suspected. The only person who comes out with any credit so far is the judge, as far as I can see.

[OldGoat]

To my mind the hearing was to sort out Andy's position. The two sides came to an agreement - so the matter was closed.

'Sorting out' CaRT was not the object - and A.W's brief had done her job.

She could have continued so that there was a formal judgement which might have created a precedent, although this being in a lower court could be easier to overturn later.

 

I'm obviously on shaky ground here - so quite happy to be shot down or corrected (please...)

[Tony Dunkley]

 

~ ~ ~ ~ ~ ~ ~ ~

 

It is alarming that Andy’s counsel was completely oblivious to all this nonsense and so did not challenge it.

 

From your reporting so far this is by far the most disturbing aspect. We expect CRT to be lying douchebags but for so much to go unchallenged at any point by the defence counsel is breathtaking.

 

 

I can't help thinking that if Defence Counsel had effectively savaged the C&RT garbage as and when the opportunity arose, then the Judge's advice to both parties to reach an agreement may well have left C&RT feeling even more vulnerable and in a considerably weaker negotiating position.

However, the fact that they got away with it unchallenged on this occasion could be of considerable assistance to their next potential victim.

Edited September 1, 2015 by Tony Dunkley

[GillianOlcay]

this is by far the most disturbing aspect . . . for so much to go unchallenged at any point by the defence counsel is breathtaking.

 

The Community Law Partnership specialise in Legal Aid cases [with a travellers and gypsies team] and would probably only employ barristers prepared to do pro-bono work. The harsh reality of public funded representation is that you get barristers fitting freebies in to a busy, far more profitable schedule. They will rarely be familiar will the relevant legislation, or in a position to give things the necessary time and thought.

 

Admittedly, Chris Johnson as the instructing solicitor has accumulated a fair degree of knowledge in this field, but it still forms only a section of his firm’s workload [and his/their emphasis is on the human rights angles], and even then you still have the problem of communicating a broad familiarity with the relevant law to a third person with minimal time to absorb, retain and present it on the hoof.

 

They are [usually] up against sophisticated silks with decades of experience in the BW legislation, who are virtually on a retainer. Mr Fowles hardly fits into that category of course; maybe Mr Stoner was on holiday, or too busy with other cases.

 

That’s another scary aspect – had this CaRT counsel not been filled with what the judge saw as far too much and too premature self-importance, the case could so easily have been yet another steamrollering of the opposition with incorrect legal submissions.

[Dave Clinton]

The Community Law Partnership specialise in Legal Aid cases [with a travellers and gypsies team] and would probably only employ barristers prepared to do pro-bono work. The harsh reality of public funded representation is that you get barristers fitting freebies in to a busy, far more profitable schedule. They will rarely be familiar will the relevant legislation, or in a position to give things the necessary time and thought.

 

Admittedly, Chris Johnson as the instructing solicitor has accumulated a fair degree of knowledge in this field, but it still forms only a section of his firm’s workload [and his/their emphasis is on the human rights angles], and even then you still have the problem of communicating a broad familiarity with the relevant law to a third person with minimal time to absorb, retain and present it on the hoof.

 

They are [usually] up against sophisticated silks with decades of experience in the BW legislation, who are virtually on a retainer. Mr Fowles hardly fits into that category of course; maybe Mr Stoner was on holiday, or too busy with other cases.

 

That’s another scary aspect – had this CaRT counsel not been filled with what the judge saw as far too much and too premature self-importance, the case could so easily have been yet another steamrollering of the opposition with incorrect legal submissions.

 

An insightful post. To my mind it is vital that the information and legal expertise garnered by Nigel Moore, Tony Dunkley and others working in this field is disseminated to the people in charge of defending these cases. It is possible to build up a body of expertise that is 'cloud' based and can be called upon.

 

It does nobody any good if barristers go unprepared. No matter how good they are at court procedures and the job of advocacy they need to be properly prepared.

 

I agree totally that CRT's complacency and their barrister's arrogance helped the result in this case. I would imagine that their legal teams will also be learning lessons and such an easy victory cannot be counted upon in a future case.

 

If the barrack room lawyers of this forum (I include myself) can see the obvious flaws in CRT's case it is inexcusable that someone paid so highly as Ms Easy was so badly prepared and briefed.

Edited September 1, 2015 by Dave Clinton

[Tony Dunkley]

An insightful post. To my mind it is vital that the information and legal expertise garnered by Nigel Moore, Tony Dunkley and others working in this field is disseminated to the people in charge of defending these cases. It is possible to build up a body of expertise that is 'cloud' based and can be called upon.

 

It does nobody any good if barristers go unprepared. No matter how good they are at court procedures and the job of advocacy they need to be properly prepared.

 

I agree totally that CRT's complacency and their barrister's arrogance helped the result in this case. I would imagine that their legal teams will also be learning lessons and such an easy victory cannot be counted upon in a future case.

 

If the barrack room lawyers of this forum (I include myself) can see the obvious flaws in CRT's case it is inexcusable that someone paid so highly as Ms Easy was so badly prepared and briefed.

 

A rather unfortunate choice of word in this particular instance, . . . . . if you don't mind me saying so.

Edited September 1, 2015 by Tony Dunkley

[NigelMoore]

If the barrack room lawyers of this forum (I include myself) can see the obvious flaws in CRT's case it is inexcusable that someone paid so highly as Ms Easy was so badly prepared and briefed.

 

Presumably you are not supposing that she was highly paid to do this case, but that she was a highly paid professional? She probably was paid nothing, or at least, a pittance in her usual terms to represent Andy. Yes, one would hope for better – but there are limits to what can be absorbed in the brief time probably available – and the solicitors instructing will not have the necessary breadth of background knowledge either.

 

When High Court judges can find the “morass” of BW legislation “Byzantine”, with so much cross-referencing between decades and centuries of statute to take into consideration, finding yourself in a position to challenge unexpected references is challenging to say the least.

 

Having said which, there was nothing particularly esoteric that Miss Easty had to contend with, and I agree that it was a poor showing.

 

I don’t see it as a “victory” for either side really, except insofar as Andy kept his boat, obtained a mooring from CaRT and had his licence renewed – all against their wishes. I definitely see the judge as the star of the day; his was a truly Alexandrian solution to an entirely artificial ‘problem’. And I think that insightfulness is the most profitable aspect to this record of proceedings.

 

A rather unfortunate choice of word in this particular instance

 

Well spotted.