CRT v Andy Wingfield Update

[NigelMoore]

To understand CaRT’s case better, and to understand the background to the oral presentation of Mr Fowles, I have uploaded CaRT’s Skeleton Argument for anyone who wishes to examine the case more thoroughly.

 

https://www.scribd.com/doc/283207117/CaRT-v-Wingfield-Claimant-Skeleton

 

Interest in this case continues, obviously – Day 1 of the Transcripts now has 174 reads, while Day 2 has 95.

 

I continue to be fascinated by why CaRT wanted confidentiality over the Settlement terms, which were discussed in any event, and because if CaRT wanted to enforce the terms, they would become open to the public at that point anyway – as Miss Easty pointed out:

 

MISS EASTY, It seems a bit odd because, quite frankly, if it is going to come back if it is enforced, if it is ever necessary, then it is going to be disclosed to the court at that point, but, again, I have no major objection to it?

 

Replying to the judge asking what was wrong with “the old brown envelope”, Mr Fowles made the point that documents on court file were open to public access.

 

JUDGE PUGSLEY: . . . you say that we can all apply to go through the laundry basket of other people’s dirty linen.

 

MR FOWLES: Well, it is the dirty linen they choose to put on the court file, your honour.

 

JUDGE PUGSLEY: Sorry?

 

MR. FOWLES: It is the dirty linen they choose to put on the court file.

 

JUDGE PUGSLEY: Yes.

 

MR. FOWLES, I mean, it is things that may end up being referred to in open court in any event.

 

JUDGE PUGSLEY: Well, I have no objection to that. Have you?

 

No-one did, so the Settlement was not kept on court file. But as CaRT have since revoked the licence once more and are having another go at Andy next week, the Settlement terms will be ‘outed’ soon enough. CaRT’s “dirty linen”, if that is indeed how Mr Fowles saw it, will become public knowledge.

[Mike Todd]

To understand CaRT’s case better, and to understand the background to the oral presentation of Mr Fowles, I have uploaded CaRT’s Skeleton Argument for anyone who wishes to examine the case more thoroughly.

 

https://www.scribd.com/doc/283207117/CaRT-v-Wingfield-Claimant-Skeleton

 

Interest in this case continues, obviously – Day 1 of the Transcripts now has 174 reads, while Day 2 has 95.

 

I continue to be fascinated by why CaRT wanted confidentiality over the Settlement terms, which were discussed in any event, and because if CaRT wanted to enforce the terms, they would become open to the public at that point anyway – as Miss Easty pointed out:

 

MISS EASTY, It seems a bit odd because, quite frankly, if it is going to come back if it is enforced, if it is ever necessary, then it is going to be disclosed to the court at that point, but, again, I have no major objection to it?

 

Replying to the judge asking what was wrong with “the old brown envelope”, Mr Fowles made the point that documents on court file were open to public access.

 

JUDGE PUGSLEY: . . . you say that we can all apply to go through the laundry basket of other people’s dirty linen.

 

MR FOWLES: Well, it is the dirty linen they choose to put on the court file, your honour.

 

JUDGE PUGSLEY: Sorry?

 

MR. FOWLES: It is the dirty linen they choose to put on the court file.

 

JUDGE PUGSLEY: Yes.

 

MR. FOWLES, I mean, it is things that may end up being referred to in open court in any event.

 

JUDGE PUGSLEY: Well, I have no objection to that. Have you?

 

No-one did, so the Settlement was not kept on court file. But as CaRT have since revoked the licence once more and are having another go at Andy next week, the Settlement terms will be ‘outed’ soon enough. CaRT’s “dirty linen”, if that is indeed how Mr Fowles saw it, will become public knowledge.

In general, it is possible that a specific settlement included reference to personal circumstances which would run foul of proper confidentiality if openly published - but i am not aware that this applied here.

 

What has gone wrong with the settlement? Who has not fulfilled what - do you know?

[NigelMoore]

In general, it is possible that a specific settlement included reference to personal circumstances which would run foul of proper confidentiality if openly published - but i am not aware that this applied here.

 

What has gone wrong with the settlement? Who has not fulfilled what - do you know?

 

I cannot answer that with any great confidence; I do not think it has anything to do with the terms of the settlement, because there is no indication that the settlement contained anything other than agreement on CaRT’s part to provide a mooring and renew his boat licence, with the associated agreement on Andy’s part that he would maintain payments for those [with some tolerance to be exercised if any payment defaults were not within Andy’s immediate knowledge/control]. Nothing to be confidential about there.

 

As can be read from the discussion in court, the confidentiality clause was broached by Miss Easty, only as a means of meeting CaRT’s objections to having published details of accepted boat movement/patterns that others could seize upon as precedent. That only applied if Andy maintained a licence on a CC’ing basis. Obviously, they preferred to offer a mooring instead anyway, bypassing the basis of the suggested confidentiality.

 

What appears to have happened since, is that even though maintaining payments on the mooring, Andy has preferred to spend little time there, and has been gently cruising around and mooring up at the Council owned moorings for extended periods. At some point he broke a leg, somewhat restricting his ability to move around, at which point Mr Garner stepped in and revoked his licence for overstaying yet again, serving both s.8 and s.13 notices once more.

 

This time around, setting aside the “reasonable” reason for staying put, and setting aside the fact of Andy not being moored to the towpath, the issue has probably morphed into another Dunkley issue – not abiding by CC Guidance even though now having an approved home mooring.

 

Nothing, in other words, to do with the Settlement terms, only with the effect of them. The additional twist - again reminiscent of the Dunkley debacle - is that once his licence was revoked, Andy refused to move from where he is, on the grounds that he would no longer be covered by insurance if he set off minus the licence [and would be in breach of the law in any event, whereas he arguably is not, if staying at a private mooring outside the main navigable channel.]

[kris88]

Do you think mr garner is on commission from shoosmiths?

 

Regards kris

[tidal]

I shall watch developments with interest.

[Arthur Marshall]

I though his argument for not moving in the original case was that he had broken a leg. Unless that was someone else...

[mayalld]

I though his argument for not moving in the original case was that he had broken a leg. Unless that was someone else...

 

To break one leg may be regarded as a misfortune......

[NigelMoore]

I though his argument for not moving in the original case was that he had broken a leg. Unless that was someone else...

 

Not everything in the saga is as clear as it could be, but contributing to confusion is the length of time the processes are taking.

 

Remember that this completed court action took place 18 months ago. That highlighted a major ‘overstay’ period which was due to flood conditions in the area. The broken leg incident which triggered a further eviction process had already taken place and been publicised by Andy on various forums post the case, in the last year.

 

It is unsurprising then, that the two sets of action, each arising from differing ‘reasons’ for the major 'overstay', appear to overlap.

 

What is evident from Mr Garner’s statements, is that he feels to some measure aggrieved by the language employed by Andy during phone conversations relating to reasons for ‘overstay’.

 

He has not [allegedly] always been characterised in the terms of respect he obviously feels entitled to. The vocabulary he 'quotes' could not be reproduced on this forum.

 

Whether that factors into his motives for this dogged pursuit is, of course, a matter of pure conjecture.

[NigelMoore]

Do you think mr garner is on commission from shoosmiths?

 

I can see why the question might arise, but no, I don’t believe so, anymore than I believe he is on some bonus scheme from CaRT.

 

I believe that the simple explanation for his zeal is that his personal predilections align beautifully with those of the enforcement and legal personnel of his employer – notably, of course, with those of the CEO.

 

If that were so, he would need no extraneous inducements to act with such conscientious fervour.

[kris88]

I was kind of joking, mr garner has been well known around Nottingham for a long while.

The new enforcement regime must suit him right down to the ground though.

He seems to enjoy his job, just a little bit too much.

 

Regards kris

[NigelMoore]

I think we are all lucky in this case that the judge seemed to understand more of the legalities of the situation than either party's legal representatives.

 

I think he understood the general point of legislation and its application, more than the specifics of this legislation.

 

The views of judges are usually impenetrable from their comments in the course of such trials, but I can recognise areas of possibly dangerous inaccuracy in his apprehension of the relevant law. I could well be wrong, and it is no criticism of him in the circumstances. This, however, is where effective and knowledgeable representation is so vital.

 

In the event, however, the judge's ability to ‘see the wood for the trees’ is what saved the day; I believe that such an approach is always key to proper construing of any legislation.

[NigelMoore]

mr garner has been well known around Nottingham for a long while.

The new enforcement regime must suit him right down to the ground . . .

 

The rationale for refusing Andy's previous 'licence', and for seeking an Injunction banning him from all CaRT waterways, was explicitly laid out by Mr Garner:

 

MR. FOWLES: Thank you, your Honour. If you just stay on p.140, Mr. Garner, in para.10, you say: “Should the Defendant’s or any other boat wish or require to moor in a certain area for long periods of time, a home mooring should be obtained for their vessel, as is clearly stated in CRT’s General Terms and Conditions for boat licences.” Why does the CRT require a home mooring to be obtained?

 

A Obviously, financially it will help, it’s a source of income for a mooring fee obtained and it would also prevent the waterways being clogged up on visitor moorings and other mooring sites.

 

My response would be: obviously, financially CaRT would like to obtain greater income, but as they are a minority moorings provider according to them, the imposition of the requirement is less likely to benefit them, statistically, than private providers.

 

The only genuine management rationale is his latter point. In that respect, for so long as boats are NOT clogging up visitor moorings and other CaRT mooring sites, then there are no grounds for managerial concern.

 

Besides which – if a boater wishes to stay in a particular area for a lengthy period [whether HM’er or CC’er], there is absolutely NO requirement that they take up a “home mooring”; it needs only to be a legitimate mooring where the boat may reasonably be kept and lawfully left. They can keep their home mooring as such if they have one, or maintain their CC’ing status if they do not.

 

The point of the legislation is to prevent boats clogging up the towpath, visitor moorings, and boater facilities; so long as that situation obtains, then all CaRT’s obligations to maintain the system available to all are satisfied.

 

The fixation on constantly re-worked T&C’s, and lawsuits determined to pin down patterns of movement, appears to overlook this essentially simple concept. The latest Wingfield attack is due in court a week from today, despite CaRT having been getting both licence fees and mooring fees, and regardless of the fact that Andy is not moored to CaRT property.

 

So CaRT have been enjoying the increased income from his mooring, and they do not face any clogging up of towpath and visitor moorings.

 

Mr Garner's stated rationale no longer being applicable: the point of this latest exercise is . . .?

 

 

edit for spacing

Edited October 2, 2015 by NigelMoore

[Arthur Marshall]

The fixation on constantly re-worked T&C’s, and lawsuits determined to pin down patterns of movement, appears to overlook this essentially simple concept. The latest Wingfield attack is due in court a week from today, despite CaRT having been getting both licence fees and mooring fees, and regardless of the fact that Andy is not moored to CaRT property.

Is this then a test of the T&Cs that boaters with a home mooring must when away from it, cruise same as CCers? I suppose I'm moored to non CRT property at my farm home mooring but still pay for a mooring permit to CRT as I'm over their canal bed. So would the same affect me if i visited a friend on the L&L and moored on their EOG mooring for six weeks?

[The Lockie]

Anyone having problems with scribe?? Cannot view these docs either from browser or saved to device!!

 

This on an Android tablet

[NigelMoore]

The links work for my android phone, so cannot understand why they should not work on a tablet. Not my field though. Hopefully the more internet erudite can assist.

[tidal]

I had trouble with my android tablet until I loaded the site app. After that it was fine

Mind you mine is an old and fairly dire tablet

[The Lockie]

Have downloaded the App and registered but have not taken up the "free" trial wondering if that's the reason.

I can open and download the file to my device but when opening just get a blank page.

 

Anyone got it t as a PDF file?? I can get them to work!!

[NigelMoore]

Anyone got it t as a PDF file?? I can get them to work!!

 

I can upload a pdf version for you. Give me time though, my broadband is going haywire just now.

[The Lockie]

Thanks for that Nigel, much appreciated. I shall remain patient!! ;-)

[NigelMoore]

Done – but my available programs mean that the pdf conversion results in huge file sizes. The 2 days together amount to about 25MB.

 

Good luck with it though –

 

https://www.scribd.com/doc/283549132/Wingfield-Transcript-Days-1-2-2

 

 

edit to add - I suspect that what you need to download for the original 'word' files, is an office app of some sort suitable for your android device.

Edited October 3, 2015 by NigelMoore

[The Lockie]

AARRGH!!!

 

My fault for an ambiguous explanation!!!

 

Scribe is the problem it refuses to allow me access to you original file OR to the PDF you kindly uploaded to it!!

 

I meant to say a link to a PDF accessible through Adobe!!

 

Am currently dealing with a very nice lady from Scribe who is doing her best but no luck so far!! I can download the books from scribe but not the doc files. Dontcha just love technology!!

[NigelMoore]

I love technology when it works.

 

If you like, PM me your email address and I will send the word doc.s directly.

[StarUKKiwi]

Thanks for the extra document Nigel - I downloaded all to my tablet and am half way through Day 1. That judge didn't suffer fools gladly did he? I have found both it and this thread illuminating - the fact that Mr Garner was a policeman and has not done equality training with CRT especially so

[NigelMoore]

That judge didn't suffer fools gladly did he?

 

I have since discovered that he has quite a reputation; He is known to shout at people he considers in need of dressing down, as he is for injecting humour. “A great judge” was one comment.

 

Having been told of some of his comments that do not appear in the transcripts, I have to wonder whether he has a switch under his bench, to turn recordings off and on - I am darkly suspicious over the recording having not started until half an hour after the hearing started!

 

Unfortunately, the Nottingham judges, on the other hand, have a reputation for siding with authorities, and that is where Andy is headed next week. He has a clear-cut case, yet I fear the worst, because his legal team are not seeing that case; they have concentrated on their specialty the HRA, and are basically arguing that it would be frightfully unfair to action s.8 because Andy would be put to great inconvenience.

 

What they need to be doing is demonstrating that the only unlawful behaviour in the case is that of CaRT, in refusing to license a boat that fulfils every one of the essential criteria: s.17(3)(a) – it has a BSSC valid for the next 4 years; s.17(3)( b ) – it has insurance, and s.17(3)( c )(i) – it has a paid up home mooring.

 

Under those circumstances they had absolutely NO statutory grounds for revoking the ‘licence’ in the first place. This is now a case which is four-square on the same grounds as the Dunkley case, yet both solicitor and Miss Easty appear totally oblivious to the background of modified T&C’s and the applicable law. Instead of addressing the violation by CaRT of the 1995 Act; instead of addressing the ludicrous “houseboat” classification; instead of addressing the private nature of the ‘overstay’ moorings which their EoG Informative recognises as outside their control, and instead of referring to the Dunkley Defence over the inapplicable use of T&C’s to justify revoking licences – they prefer to witter on about ‘reasonable excuses’ and Article 8.

 

In pleading the HRA, they do not even refer to the “less onerous” lawful recourses open to CaRT under the relevant legislation respecting the alleged offence [not having a relevant consent].

 

No wonder that boaters lose cases, with this quality of representation. One can well begin to understand the frustration of Geoff Mayers which led to his dismissing [too late] his own legally-aided team.

 

The sole benefit of having legal aid, it appears to me, is to be insulated to some extent, from the costs burden when the case is lost for you. That, and the understanding of how to navigate the procedures of course.

[kris88]

 

 

 

 

 

Unfortunately, the Nottingham judges, on the other hand, have a reputation for siding with authorities, and that is where Andy is headed next week. He has a clear-cut case, yet I fear the worst, because his legal team are not seeing that case; they have concentrated on their specialty the HRA, and are basically arguing that it would be frightfully unfair to action s.8 because Andy would be put to great inconvenience.

 

What they need to be doing is demonstrating that the only unlawful behaviour in the case is that of CaRT, in refusing to license a boat that fulfils every one of the essential criteria: s.17(3)(a) it has a BSSC valid for the next 4 years; s.17(3)( b ) it has insurance, and s.17(3)( c )(i) it has a paid up home mooring.

 

Under those circumstances they had absolutely NO statutory grounds for revoking the licence in the first place. This is now a case which is four-square on the same grounds as the Dunkley case, yet both solicitor and Miss Easty appear totally oblivious to the background of modified T&Cs and the applicable law. Instead of addressing the violation by CaRT of the 1995 Act; instead of addressing the ludicrous houseboat classification; instead of addressing the private nature of the overstay moorings which their EoG Informative recognises as outside their control, and instead of referring to the Dunkley Defence over the inapplicable use of T&Cs to justify revoking licences they prefer to witter on about reasonable excuses and Article 8.

 

In pleading the HRA, they do not even refer to the less onerous lawful recourses open to CaRT under the relevant legislation respecting the alleged offence [not having a relevant consent].

 

No wonder that boaters lose cases, with this quality of representation. One can well begin to understand the frustration of Geoff Mayers which led to his dismissing [too late] his own legally-aided team.

 

The sole benefit of having legal aid, it appears to me, is to be insulated to some extent, from the costs burden when the case is lost for you. That, and the understanding of how to navigate the procedures of course.

The judges in Nottingham do have a reputation of siding with the authorities. Maybe this is why CRT seem so keen on pursuing this issue through these courts. They seem to really want to have a precident set on this issue. They must need it for a bigger agenda.

It doesn't always follow that any legal representation is better than none.

 

Regards kris

Edited October 4, 2015 by kris88