CRT v Andy Wingfield Update

[NigelMoore]

I am struggling a bit with the meaning of some of the dialogue in the proceedings, but apparently Shoosmiths served the Notice of Hearing on CLP on 11 September.

 

Whether or not Shoosmiths sent the necessary Response Pack with that is unclear, but it appears that some acknowledgement of service may have taken place between the two firms of solicitors, even though not filed with the Court as required. Shoosmiths, in other words, cannot be reasonably accused in this particular instance, of contributing to failure to respond appropriately.

 

The confusing response to the judge’s query over this, was a denial that the factual elements of the case were disputed at all -?! That possibly corroborates the judge's assertion that no such paperwork [respecting suitability of Part 8] had been filed.

 

That denial of any dispute over facts sits uncomfortably with Ms Easty's previous agreement that Andy’s denial of CaRT’s ‘facts’ were “correct” - and the judgment, paragraph 28, clearly refers to the “unsupported or unparticularised assertion that his boat was moved regularly, every fourteen days . . .” in contradiction of Garner's statement.

[Graham.m]

I think what is the judgement as accurate as it is an agreed Judgement. I also suspect that Judges are very careful over dates and the like.

 

All I can say is "'Curiouser and curiouser!' cried Alice"

[Loafer]

Wow! Shhhhh!

[Graham.m]

I am struggling a bit with the meaning of some of the dialogue in the proceedings, but apparently Shoosmiths served the Notice of Hearing on CLP on 11 September.

 

Whether or not Shoosmiths sent the necessary Response Pack with that is unclear, but it appears that some acknowledgement of service may have taken place between the two firms of solicitors, even though not filed with the Court as required. Shoosmiths, in other words, cannot be reasonably accused in this particular instance, of contributing to failure to respond appropriately.

 

The confusing response to the judge’s query over this, was a denial that the factual elements of the case were disputed at all -?! That possibly corroborates the judge's assertion that no such paperwork [respecting suitability of Part 8] had been filed.

 

That denial of any dispute over facts sits uncomfortably with Ms Easty's previous agreement that Andy’s denial of CaRT’s ‘facts’ were “correct” - and the judgment, paragraph 28, clearly refers to the “unsupported or unparticularised assertion that his boat was moved regularly, every fourteen days . . .” in contradiction of Garner's statement.

 

Nigel,

 

Perhaps it ios timne to let it fad a bit until you hear whether Andy's appeal has been granted, as winning that could make things different. I am wondering if there was a verbal or fax exchange with Shoosmith and CLP were told OK no problem we will see to the court for you or some such similar.

 

Suspect there is stuff to do on the other matter :

Edited December 1, 2015 by Graham.m

[NigelMoore]

"Other matter" - as in singular?!!!?

[Graham.m]

"Other matter" - as in singular?!!!?

I should have guessed multiple

[NigelMoore]

Perhaps it ios timne to let it fad a bit until you hear whether Andy's appeal has been granted, as winning that could make things different.

 

As I have said here before, I encouraged Andy to continue with CLP and team in order to make the Appeal, for whatever that was worth. It IS just possible that it could succeed, though I am highly dubious.

 

As I have also said before, on several occasions, CLP are the only firm I know of that are prepared to deal with these cases – so unless and until another firm is found prepared to take these on, your only alternative is to go it alone as an LiP [i imagine that if you were well funded, you could track down a firm who would take your money, but that still doesn’t ensure the necessary competence and experience in the field].

 

Sometimes, the more highly paid lawyers are, the less time they give to your case [unless they know your pockets are unlimited]. The most outrageous response I had from a solicitor I employed for a conveyance on behalf of a company, declined to do it according to my instructions because of his vague perception of the effect of recent anti money laundering laws.

 

I looked up the Land Registry rules on the topic; discovered that the solution was very simply to fill in a Form witnessed by a notary that you were a real person acting on the company’s behalf, and hey presto. The following day I rang and said I was bringing in the form, only to be told that he still wouldn’t do it as I wanted; he would not take my word for it, and his time was so valuable, I was told, that he could not afford to spend it keeping abreast of all the latest legislation [that had taken me all of 10 minutes to suss out].

 

As an explanation justifying ignorance of the law, that still leaves me breathless whenever I recall it. I sacked them and did it myself.

 

Reverting to topic – the advantage of using a firm like CLP, again as I have said before, lies where you are entitled to Legal Aid; this insulates you from the potential costs fall-out, that assistance being unavailable to go-it-aloners. So you need to be extremely wealthy if you are going to employ your own choice of representation, or intend to go it alone – or, [in the latter case] be able to plead your own impecuniosity.

 

People in the middle are taking a nasty gamble, because all litigation is a two-up game. CaRT in common with all big companies, rely on your recognition of this. It is, besides, always preferable to seek resolution outside of the Courts [and the Courts are increasingly sensitive to this]; sadly, CaRT are still preferring the big stick approach, unless you are prepared to back down all the way under a cloud of imposed silence.

 

Whether or not CLP get consent for and win an appeal in this instance, the lesson for everyone remains as nicknorman said much earlier – you must get in control of whoever you are employing, ensure that they do what is needed, and ensure that it is done timeously. For that, you need to be armed with the appropriate knowledge yourself - and that is part of why I post as I do.

[Graham.m]

 

Whether or not CLP get consent for and win an appeal in this instance, the lesson for everyone remains as nicknorman said much earlier – you must get in control of whoever you are employing, ensure that they do what is needed, and ensure that it is done timeously. For that, you need to be armed with the appropriate knowledge yourself - and that is part of why I post as I do.

 

I think people who employ a solicitor forget they are an advisor and there to carry out what you ask them to do in a timely, economic, legal way. Therefore it is important not to just put the papers on the solicitor's desk and walk away expecting all will be well. Read the laws applying, work out what you want to do and get the solicitor to do it. Listen to them yes, always remember you are the client and in charge not the solicitor and your decisions count.. Even if you are on legal aid.

Edited December 2, 2015 by Graham.m

[Mike Todd]

 

I think people who employ a solicitor forget they are an advisor and there to carry out what you ask them to do in a timely, economic, legal way. Therefore it is important not to just put the papers on the solicitor's desk and walk away expecting all will be well. Read the laws applying, work out what you want to do and get the solicitor to do it. Listen to them yes, always remember you are the client and in charge not the solicitor and your decisions count.. Even if you are on legal aid.

yes, but push too hard and they may well just decide that they cannot adequately represent you and withdraw. An expensive outcome.

[pearlygeoff]

 

As I have said here before, I encouraged Andy to continue with CLP and team in order to make the Appeal, for whatever that was worth. It IS just possible that it could succeed, though I am highly dubious.

 

As I have also said before, on several occasions, CLP are the only firm I know of that are prepared to deal with these cases – so unless and until another firm is found prepared to take these on, your only alternative is to go it alone as an LiP [i imagine that if you were well funded, you could track down a firm who would take your money, but that still doesn’t ensure the necessary competence and experience in the field].

 

Sometimes, the more highly paid lawyers are, the less time they give to your case [unless they know your pockets are unlimited]. The most outrageous response I had from a solicitor I employed for a conveyance on behalf of a company, declined to do it according to my instructions because of his vague perception of the effect of recent anti money laundering laws.

 

I looked up the Land Registry rules on the topic; discovered that the solution was very simply to fill in a Form witnessed by a notary that you were a real person acting on the company’s behalf, and hey presto. The following day I rang and said I was bringing in the form, only to be told that he still wouldn’t do it as I wanted; he would not take my word for it, and his time was so valuable, I was told, that he could not afford to spend it keeping abreast of all the latest legislation [that had taken me all of 10 minutes to suss out].

 

As an explanation justifying ignorance of the law, that still leaves me breathless whenever I recall it. I sacked them and did it myself.

 

Reverting to topic – the advantage of using a firm like CLP, again as I have said before, lies where you are entitled to Legal Aid; this insulates you from the potential costs fall-out, that assistance being unavailable to go-it-aloners. So you need to be extremely wealthy if you are going to employ your own choice of representation, or intend to go it alone – or, [in the latter case] be able to plead your own impecuniosity.

 

People in the middle are taking a nasty gamble, because all litigation is a two-up game. CaRT in common with all big companies, rely on your recognition of this. It is, besides, always preferable to seek resolution outside of the Courts [and the Courts are increasingly sensitive to this]; sadly, CaRT are still preferring the big stick approach, unless you are prepared to back down all the way under a cloud of imposed silence.

 

Whether or not CLP get consent for and win an appeal in this instance, the lesson for everyone remains as nicknorman said much earlier – you must get in control of whoever you are employing, ensure that they do what is needed, and ensure that it is done timeously. For that, you need to be armed with the appropriate knowledge yourself - and that is part of why I post as I do.

 

 

'......get in control of whoever you are employing and ensure that they do what is needed.'

 

 

Not possible. They will mislead you, lie to you, ignore what you say and do it their way regardless. Particularly if you are on legal aid.

 

With legal aid they have to prevent the injunction, or whatever is sought, not, necessarily, present the legal arguments you have. They do this by springing on you at the last minute - the half hour before the hearing - that you must agree to what the claimants want and offer no defence.

 

The 'My client is very sorry and he will do as you say' defence. (He is of good character, currently employed etc blah, blah, blah). '

 

Standard formulaic 'defence' like most of what passes for legal representation.

 

My case would not have gone beyond the first hearing - in fact there would have been another 'first hearing' with the solicitor I saw first - let alone the second, third etc. for three years (until I knew I wouldn't get another adjournment and wouldn't get further legal aid - which was no longer available anyway), if I hadn't fought and argued and written to the judge and threatened to sack the barrister in the court - which is why there was a second barrister I wasn't allowed to communicate with.

 

The firm, having been taken over by another group - twice - and wanting to get rid of legal aid, wanted my case out of the way. I was a 'pain in the ass' - but, strangely, I carried on regardless.

 

What you expect and what you get are entirely different and you can't, effectively, control the situation as you have no idea what's going on. I've encountered the same problems before so I knew what I was getting into.

 

It's a ridiculous process for getting justice or redress.

 

Solicitors pursue their own interests. They pursue your case with consideration of their own interests. They don't want to win a case for a lowly person on legal aid against a company, organisation or 'authority'. They may get future lucrative work from the company, they won't from you.

 

They also know there is little chance of success as a consideration for a judge is 'the relative social standing of the claimant and defendant'.

 

Trust me, if you haven't been through it you have no idea what it's like and you will seriously risk your psychological well being. If you're not on anti anxiety/anti depressants at the start you will need them later. I recommend Citalopram 20 mg.

 

 

I could go on but I've written this and more on my website 'Canal and river tyranny'. (MJG will give you the link). (thankyou).

[Graham.m]

yes, but push too hard and they may well just decide that they cannot adequately represent you and withdraw. An expensive outcome.

 

You have to remember the solicitor is supposed to be an expert in his/her specific field, If you insist on doing something that he/she feel is potentially bad for you they can take one of two paths ask you to sign a waiver or withdraw. Again I say listen to them. I assume you have done the research and they are well versed in the area of law needed.

 

Oh and treat him/her a friend with respect

[erivers]

In the recent Environment Agency Thames and Anglian ‘adjacent waters’ registration cases the ‘accused’ were ably represented by the same direct-access barrister.

 

He very quickly reviewed and assimilated the mass of evidence produced by the lay advisers to whom it had been clear all along that the EA was acting unlawfully. After a single meeting, at which he gave his time generously and his attention even more so, he identified the strictly relevant points of law - and the rest, as they say, is history…….

 

….. Well, for now anyway, as in at least one case the EA has lodged an appeal to the Administrative Court at further expense to public purse.

 

The ‘defendants’ remain confident that their very approachable and attentive barrister, with his clear grasp of the relevant waterways legislation matched by a masterful courtroom presence will succeed yet again at appeal in exposing Environment Agency deceit and upholding justice.

[Graham.m]

Perhaps you could PM Nigel the barrister's details?

[NigelMoore]

Perhaps you could PM Nigel the barrister's details?

 

Yes please, if you feel it inappropriate to advertise him on here for all to see. That would be of greater potential use.

 

Perhaps he could be asked whether he minded or would appreciate the word-of-mouth advertising?

[Tony Dunkley]

In Post # 832, Nigel has drawn attention to the dilemmas facing those selected for special attention by C&RT's Enforcement gang and lawyers.

 

From Nigel's # 832 :~

" . . . . . the advantage of using a firm like CLP, again as I have said before, lies where you are entitled to Legal Aid; this insulates you from the potential costs fall-out, that assistance being unavailable to go-it-aloners. So you need to be extremely wealthy if you are going to employ your own choice of representation, or intend to go it alone – or, [in the latter case] be able to plead your own impecuniosity.

People in the middle are taking a nasty gamble, because all litigation is a two-up game. CaRT in common with all big companies, rely on your recognition of this. It is, besides, always preferable to seek resolution outside of the Courts [and the Courts are increasingly sensitive to this]; sadly, CaRT are still preferring the big stick approach, unless you are prepared to back down all the way under a cloud of imposed silence."

 

I couldn't agree more with all said, and I feel the point about seeking a resolution outside of the Courts is something well worth further thought with regard to what stage in the whole process that such attempts should begin.

My own view is that efforts to resolve the dispute must begin from the time of receipt of the first communication from C&RT which indicates any probability of unlawful punitive action on their part, and that the response from the intended victim must under no circumstances be conciliatory or apologetic, but rather, begin with a considered, factual and written rebuttal of what will almost certainly be the ill-considered and flawed premises upon which their intended action will be based.

The years of successful intimidation, and 'steamrollering' boaters in Court by means of underhanded methods and inappropriate legal process have left C&RT and their lawyers with a false sense of invincibility, and this has in turn led to a high degree of sloppiness and complacency which can work to the intended victim's advantage.

They are not familiar, or comfortable, with having to produce specific, valid and well founded arguments in support of their threats, and when obliged to do so are apt to dig themselves holes to fall into. In the event that the matter does end with C&RT pushing it all the way to Court, despite the boater having made a well documented attempt to dissuade them from pursuing an ill-founded Claim, then the written exchanges will, at the very least, be extremely useful material for the Defence.

There is, at present, an opportunity to put this theory to a very open and public test. C&RT are in the early stages of beginning another Claim against me, and it is my intention to post, on this Forum, all the exchanges with C&RT and their lawyers, throughout the whole process and to it's conclusion. The Claim itself will be the same as that against Andy W, the usual Section 8 and 13 Declaration and Injunction nonsense, and the circumstances are similar in that I'm moored to land not owned by C&RT, on the Trent, without a Licence and not using the boat. There is some difference in the reasons for having no Licence; rather than the Licence being refused by C&RT, as in Andy's case, I have refused to renew it whilst the boat is not being kept or used within the main navigable channel of the river.

[Loafer]

IThere is, at present, an opportunity to put this theory to a very open and public test. C&RT are in the early stages of beginning another Claim against me, and it is my intention to post, on this Forum, all the exchanges with C&RT and their lawyers, throughout the whole process and to it's conclusion. The Claim itself will be the same as that against Andy W, the usual Section 8 and 13 Declaration and Injunction nonsense, and the circumstances are similar in that I'm moored to land not owned by C&RT, on the Trent, without a Licence and not using the boat. There is some difference in the reasons for having no Licence; rather than the Licence being refused by C&RT, as in Andy's case, I have refused to renew it whilst the boat is not being kept or used within the main navigable channel of the river.

 

That would be very noble of you. Good man.

[erivers]

 

Yes please, if you feel it inappropriate to advertise him on here for all to see. That would be of greater potential use.

 

Perhaps he could be asked whether he minded or would appreciate the word-of-mouth advertising?

 

PM sent to Nigel.

 

As a matter of courtesy, I will seek permission before providing more details publicly.

[NigelMoore]

 

PM sent to Nigel.

 

Sure you sent it to me? It hasn't come through.

[erivers]

 

Sure you sent it to me? It hasn't come through.

 

Sure now! Went on a bit, I'm afraid.

[NigelMoore]

In the event that the matter does end with C&RT pushing it all the way to Court, despite the boater having made a well documented attempt to dissuade them from pursuing an ill-founded Claim, then the written exchanges will, at the very least, be extremely useful material for the Defence.

 

That is the best possible alternative defence against potential costs liabilities; not foolproof by any means, but if it can be shown that pursuing litigation rather than discussion is entirely CaRT's choice, then even if they won, such conduct could rebut the standard presumption that loser picks up the tab.

[NigelMoore]

The Claim itself will be the same as that against Andy W, the usual Section 8 and 13 Declaration and Injunction nonsense, and the circumstances are similar in that I'm moored to land not owned by C&RT, on the Trent, without a Licence and not using the boat. There is some difference in the reasons for having no Licence; rather than the Licence being refused by C&RT, as in Andy's case, I have refused to renew it whilst the boat is not being kept or used within the main navigable channel of the river.

 

The arguments and material in Leigh’s case will be invaluable for a counter-claim in yours. Just a note [knowing you are aware of this, but for the sake of keeping the dialogue tight] respecting use of the term “licence” – while applicable to the canals, in cases such as all these ones on the Trent, it is vital to keep clearly to the forefront that NO “licence” is required to keep a boat – EVEN within the main navigable channel.

 

Statute requires that a boat kept and/or used in the main navigable channel of the scheduled rivers must have paid up registration certificates. Harking back to my previous comments on the relationship between “rights” and “conditions on exercising those rights”, there is a penalty for breaching the requirement to have a current pleasure boat certificate, but because that certificate is not a “licence”, it does not purport to grant permission to keep a boat on the river. It cannot, therefore [on my argument] be regarded as any form of “lawful authority” for the boat to be on the river [whereas the pleasure boat licence IS such a lawful authority for the boat to be on the canals].

 

On the rivers, the relevant lawful authority derives from the common law right of navigation – still present on all of the rivers affected by the 1971 legislation. Hence absence of the pleasure boat certificate, while it is a criminal offence where demanded by statute, cannot create a basis for exercising s.8 powers. EVEN IF, in other words, the ‘main navigable channel’ was held to encompass the whole of the river, exercising s.8 powers would still be in itself a criminal offence of obstructing the public right.

 

Let CaRT sue for the boater’s criminal offence if they consider that applicable; let’s not allow them to commit criminal offences of their own, with these inappropriate violations of the public right of navigation via use of s.8.

 

I will upload the latest pleadings in Leigh’s case when I’ve completed and served them, which will help expound this more clearly, but that won’t be until January.

 

Meanwhile, that even CaRT themselves understand the qualitative difference between licences and certificates, see their FoI response of 2 August 2013 –

 

https://www.whatdotheyknow.com/request/river_licence_a_percentage_of_fu#comment-40388

 

“The canal licence (which includes use of rivers) is distinctly a licence – this is because we own the canals and the device for granting permission to use is via a licence. Rivers are different. There is a statutory right of navigation and we don’t own them, so all that people have to do is to ‘register’ to use them (subject to a fee which the statutes allow for subject to the percentage condition we covered in the last query). So technically, it is not a ‘river only licence’ but a ‘river registration’.” [my emphasis of course]

 

It is a very muddled and self-contradictory answer, but the essence is there within my extract.

[Graham.m]

On phone

Tony, recosts, when a judge looks at awarding costs they look at whether the other side has followed the rules. Has dealt with things in a timely open manner and a considered manner. Now in CRT's case I suspect they are unlikely to engage about the law and its effects only to say words to effect we are right. If they do that then I suspect the costs wall goes away.

 

Do do everything in writing, email or letter. If you have to phone them take contemporaneous notes and if you can record the call, don't bother to tell them, it would be the judge who decides if he wanted to here the recording. Oh and keep everything.

 

As always my opinion and thoughts

[NigelMoore]

My own view is that efforts to resolve the dispute must begin from the time of receipt of the first communication from C&RT which indicates any probability of unlawful punitive action on their part, and that the response from the intended victim must under no circumstances be conciliatory or apologetic, but rather, begin with a considered, factual and written rebuttal of what will almost certainly be the ill-considered and flawed premises upon which their intended action will be based.

 

Public exposure and pressure can assist with this; in large part, perhaps, your promise to publicise all communication and pleadings will embarrass them [?!] into letting things quietly drop.

 

A concerted campaign by both national and London NBTA, with a public petition gaining over a thousand signatures very quickly, has just resulted in CaRT backing down from their refusal to renew a CC’ing licence. They have only given a 6 month one, but that is better than ending up in court over what was an absurd triviality whether considered a right or wrong interpretation of the “rules”.

[Phil.]

In Post # 832, Nigel has drawn attention to the dilemmas facing those selected for special attention by C&RT's Enforcement gang and lawyers.

 

From Nigel's # 832 :~

" . . . . . the advantage of using a firm like CLP, again as I have said before, lies where you are entitled to Legal Aid; this insulates you from the potential costs fall-out, that assistance being unavailable to go-it-aloners. So you need to be extremely wealthy if you are going to employ your own choice of representation, or intend to go it alone – or, [in the latter case] be able to plead your own impecuniosity.

People in the middle are taking a nasty gamble, because all litigation is a two-up game. CaRT in common with all big companies, rely on your recognition of this. It is, besides, always preferable to seek resolution outside of the Courts [and the Courts are increasingly sensitive to this]; sadly, CaRT are still preferring the big stick approach, unless you are prepared to back down all the way under a cloud of imposed silence."

 

I couldn't agree more with all said, and I feel the point about seeking a resolution outside of the Courts is something well worth further thought with regard to what stage in the whole process that such attempts should begin.

My own view is that efforts to resolve the dispute must begin from the time of receipt of the first communication from C&RT which indicates any probability of unlawful punitive action on their part, and that the response from the intended victim must under no circumstances be conciliatory or apologetic, but rather, begin with a considered, factual and written rebuttal of what will almost certainly be the ill-considered and flawed premises upon which their intended action will be based.

The years of successful intimidation, and 'steamrollering' boaters in Court by means of underhanded methods and inappropriate legal process have left C&RT and their lawyers with a false sense of invincibility, and this has in turn led to a high degree of sloppiness and complacency which can work to the intended victim's advantage.

They are not familiar, or comfortable, with having to produce specific, valid and well founded arguments in support of their threats, and when obliged to do so are apt to dig themselves holes to fall into. In the event that the matter does end with C&RT pushing it all the way to Court, despite the boater having made a well documented attempt to dissuade them from pursuing an ill-founded Claim, then the written exchanges will, at the very least, be extremely useful material for the Defence.

There is, at present, an opportunity to put this theory to a very open and public test. C&RT are in the early stages of beginning another Claim against me, and it is my intention to post, on this Forum, all the exchanges with C&RT and their lawyers, throughout the whole process and to it's conclusion. The Claim itself will be the same as that against Andy W, the usual Section 8 and 13 Declaration and Injunction nonsense, and the circumstances are similar in that I'm moored to land not owned by C&RT, on the Trent, without a Licence and not using the boat. There is some difference in the reasons for having no Licence; rather than the Licence being refused by C&RT, as in Andy's case, I have refused to renew it whilst the boat is not being kept or used within the main navigable channel of the river.

This will be a good read. I am almost looking forward to you being served papers in the nicest way of course. What I suspect will happen is when CRT become aware of your plan to subject them to full public scrutiny they will spoil the fun by quietly allowing the matter to drop.

[GillianOlcay]

 

A concerted campaign by both national and London NBTA, with a public petition gaining over a thousand signatures very quickly, has just resulted in CaRT backing down from their refusal to renew a CC’ing licence.

 

NBTA London have just posted up news of this on their facebook page.