CRT v Andy Wingfield Update

[tidal]

If they solely plead on HRA there is a very good chance that they will lose (IMO)

However any "precedent" that might be gained would surely not be applicable in cases defended on the regulation basis that Nigel suggests?

[Phil.]

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.

Then perhaps the legal team need to be asked why they are not defending the case in the way you point out. The defendant is perfectly entitled to ask and if not happy with the response ask them to look again at it. It is after all his case not theirs and they should defend it in the manner he requests, unless it is in their opinion flawed.

[NigelMoore]

Then perhaps the legal team need to be asked why they are not defending the case in the way you point out. The defendant is perfectly entitled to ask and if not happy with the response ask them to look again at it. It is after all his case not theirs and they should defend it in the manner he requests, unless it is in their opinion flawed.

 

You are absolutely right. The legal team work within their narrow field of expertise and knowledge only - as is natural - however, asking them to defend the case with reference to the specific, relevant waterways legislation in the less apologetic vein I have suggested, confronts 2 difficulties:

 

In the first place, professional pride and sensitivities are involved – for all that they should not be.

 

In the second place, it is all very well presenting them with more detailed instructions as to the wider field of the various Acts, Miss Easty has to argue them in court – and that demands thorough acquaintance with it. With a probably packed agenda of other cases more within her field, I am dubious as to her being able to absorb the necessary background within the short time-frame available. They are in court this Thursday.

 

The most useful thing Andy’s solicitor could achieve at this stage, is to act according to HHJ Pugsley’s [apparent] demand that any further action such as this be referred to him, and place a request to that effect.

 

In the meantime, I have done my best since yesterday afternoon, to amend/add to Miss Easty’s draft Defence so that Andy can sign it off as what he wants, and send it to them. We can only wait and see how they respond.

[Tony Dunkley]

Whilst agreeing wholeheartedly with Nigel Moore's assessment of Andy Wingfield's legal representitives, I would add that the fact that C&RT now feel confident enough to go ahead with an action such as this, but on grounds even more blatently unlawful than those they attempted on me, is a reflection of just how much notice they've taken of the protests, and pleas for reasonableness and adherence to the law, from the boating organizations such as NABO. On the date my licence was revoked, I was actually moored to C&RT land, but AW was not.

The fact that AW's Licence has been revoked, for the second time, for 'overstaying' whilst moored to land not owned by C&RT, almost beggars belief, and yet his legal representitives choose to ignore this demonstrably unlawful act, which once verified in Court as being so, completely destroys C&RT's case without any need for recourse to further argument.

The next logical progression from this is for C&RT to begin revoking the licences of any boat that either stays on it's home mooring for longer than 14 days or doesn't cover a sufficient, but undefined, distance when it does move.

The culture of trying to extend the range of their powers way beyond that which Parliament gave them goes way back into the times of BW but appears to have gained in terms of mindless fanaticism under C&RT. I believe they will just continue to behave in this manner, regardless of the consequences, for as long as they are in a position to do so.

Edited October 4, 2015 by Tony Dunkley

[Arthur Marshall]

I'm still trying to make sense out of CRT's attitude to this, without getting involved in the emotions of it all. Are they saying, in effect, that you can only stay in a place for more than 14 days if you have a mooring permit for that place? So you are OK on your home mooring (if you have one, obviously), but you can't stop for longer on CRT water, even if it's on someone else's EOG mooring or private land (with the agreement of the landowner)?

I suppose if you stop in a marina you are covered by that marina's permits (at least I hope so - my boat's been at Stoke Boats for six weeks now). Can you actually have more than one mooring permit - in effect several home moorings?

[Tony Dunkley]

I'm still trying to make sense out of CRT's attitude to this, without getting involved in the emotions of it all. Are they saying, in effect, that you can only stay in a place for more than 14 days if you have a mooring permit for that place? So you are OK on your home mooring (if you have one, obviously), but you can't stop for longer on CRT water, even if it's on someone else's EOG mooring or private land (with the agreement of the landowner)?

I suppose if you stop in a marina you are covered by that marina's permits (at least I hope so - my boat's been at Stoke Boats for six weeks now). Can you actually have more than one mooring permit - in effect several home moorings?

 

I'm unsure of whether or not they've formally issued any such edict, but that is certainly the effect of what they have now done with regard to Andy Wingfield. On both occasions when his boat Licence was revoked it has been on the grounds that he was 'overstaying'. The fact that the moorings on which he was allegedly 'overstaying' are owned by Nottinghamshire County Council, and therefore not under C&RT control has been conveniently ignored.

Reference to the extent to which C&RT can lawfully control the mooring of vessels, other than when concerning matters of safety or obstructing the navigation / towpath, is on page 10 of the current Licence T&C's : ~

 

LEGAL PROVISIONS AND GENERAL PRINCIPLES

 

1. There are no public law provisions concerning moorings along the Trust’s canals. This is entirely a matter for management by the Trust as property owners.

 

2. Moorings along the towpath, other than those designated for use by long term permit holders only, are available for boaters to use subject to conditions. As a land owner, the Trust may impose further conditions over and above those within the licence conditions.

__________________________________________

 

There is nothing in any statute that prevents you from having any number of 'home moorings'. All that the Law requires is that one such mooring is 'available' for any boat that is not going to be moved every 14 days.

There is nothing in the Statutes that confers any powers on C&RT to regulate the use of land in other ownership or control than their own.

Edited October 4, 2015 by Tony Dunkley

[Phil.]

You are absolutely right. The legal team work within their narrow field of expertise and knowledge only - as is natural - however, asking them to defend the case with reference to the specific, relevant waterways legislation in the less apologetic vein I have suggested, confronts 2 difficulties:

 

In the first place, professional pride and sensitivities are involved – for all that they should not be.

 

In the second place, it is all very well presenting them with more detailed instructions as to the wider field of the various Acts, Miss Easty has to argue them in court – and that demands thorough acquaintance with it. With a probably packed agenda of other cases more within her field, I am dubious as to her being able to absorb the necessary background within the short time-frame available. They are in court this Thursday.

 

The most useful thing Andy’s solicitor could achieve at this stage, is to act according to HHJ Pugsley’s [apparent] demand that any further action such as this be referred to him, and place a request to that effect.

 

In the meantime, I have done my best since yesterday afternoon, to amend/add to Miss Easty’s draft Defence so that Andy can sign it off as what he wants, and send it to them. We can only wait and see how they respond.

I don't completely buy this. It sounds to me like you have done all the hard work researching the relevant acts and identifying breaches in the law. All Miss Easty has to do is present the arguement in court, a simple task for any reasonable advocate who should be able to read a brief and understand it even in the short time available. If she can't do it then I would seriously question her ability as a barrister to perform what should be a bread and butter task for someone who is legally trained.

[Tony Dunkley]

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

 

I don't agree that all the Nottingham based Judges should have the accusation of bias levelled at them. Like any other group of individuals there will almost inevitably be a mixture of those who carry out their duties as we would hope, and those who fall a long way short of our expectations, and indeed, the expectations of those who appoint them and write their job descriptions.

I have personally experienced both ends of the spectrum in Nottingham County Court, with the Judge sitting for C&RT's initial Declaration and Injunction hearing being everything one could hope for in terms of both impartiality and adherence to official guidelines with regard to litigants in person, whereas in the two subsequent hearings when C&RT were seeking to overturn the costs liability imposed upon them by the Civil Procedure Rules, the Judge sitting at both costs hearings was blatantly biased towards C&RT's arguments to the extent of finding for them in total disregard of several High Court and Appeal Court precedents.

I would add, that, given the 'luck of the draw' element that is always present in any Court proceedings, particularly so at County Court level, I do question whether the best course of action for anyone under attack from C&RT is to play by the rules and argue your case in the conventional way in Court, or to take a leaf out of C&RT's and Shoosmiths' book, and indulge in some slightly more 'inventive' tactics, calculated to wreck C&RT's case after they've spent a lot of money paying Shoosmiths to prepare it, but before it reaches the final hearing stage.

If this happened a sufficient number of times in a sufficient number of individual cases, perhaps even C&RT's seemingly unlimited boater persecution budget may eventually become overstretched, giving even them cause to reconsider whether or not pursuing their pointless agenda is really worth all the trouble, expense and bad publicity.

Edited October 4, 2015 by Tony Dunkley

[Arthur Marshall]

Does this then go back to the argument that the charge for the Mooring Permit has no legal validity?

[Tony Dunkley]

Does this then go back to the argument that the charge for the Mooring Permit has no legal validity?

 

No, I think it goes back to the time when those now charged with the care of our waterways were conceived, and the 'oppressor gene' was passed on to them by one or other of their parents.

[NigelMoore]

I notice that Allan has done another NBW article with reference to Andy’s imminent new appearance in court in a few days’ time. He has correctly identified that this bears no relationship to the Settlement agreement from last time, but is a fresh action taken when Mr Garner decided to issue new s.8 & s.13 Notices after revoking Andy’s licence in November last year.

 

However one more thing is bothering me about this case: the Settlement was obviously [from discussion in the Transcript] to entail provision of a mooring and a boat licence, provided payment for these was made when due. My question is: from the court discussion with the judge, there was evidently initial confusion over the inequitable balance respecting rights to enforce – the Defendant’s rights as to that not appearing in the Settlement.

 

So – although, from CaRT’s point of view, they are proceeding on the basis of a fresh claim, that relies upon their having revoked and refused the boat licence for which [as well as the mooring] Andy continues to pay, as per the terms of the Settlement - IF Andy’s lawyers had done their job properly, should there not have been some provision for Andy to compel CaRT to live up to their side of the agreement to issue a boat licence, for so long as he had met the appropriate conditions?

 

As the transcripts had indicated, the Consent Order DID provide that “Either party may be permitted to apply to the Court to enforce the terms upon which this case has been stayed . . .” As no application appears to have been made by Andy’s legal team, this would suggest that the settlement terms contained NO provision for Andy to be able to insist upon CaRT living up to their side of the bargain. Or, was the settlement entirely one-sided in favour of CaRT?

 

My fear is that there has been a terrible lack of professional expertise being involved in Andy’s side’s negotiating that Settlement. Had it properly protected Andy as well as CaRT, this new case could never have been brought.

 

On the other hand, to be fair - how would any ordinary person comprehend the possibility that a body such as CaRT would act with open criminality in this way?

Edited October 5, 2015 by NigelMoore

[NigelMoore]

Apologies for multiple posts and distorted text. I am snarling in impotent rage with failures of both BT mainline broadband AND 3 mobile tethering to keep me online for more than a few minutes at a time.

Edited October 5, 2015 by NigelMoore

[Tuscan]

one wonders whether CRT are going to rely on the amended terms and conditions which require boaters wth a home mooring to boat in the same way as boaters that do not have one. Despite I believe there being no legal requirement to do so.

[ditchcrawler]

one wonders whether CRT are going to rely on the amended terms and conditions which require boaters wth a home mooring to boat in the same way as boaters that do not have one. Despite I believe there being no legal requirement to do so.

I think that could be their plan

[tidal]

I think that could be their plan

It may well be

 

I can't see how they can get away with that if challenged though

[MtB]

Apologies for multiple posts and distorted text. I am snarling in impotent rage with failures of both BT mainline broadband AND 3 mobile tethering to keep me online for more than a few minutes at a time.

 

 

It's a hard life. Thank God we don't reside in, well, most other places in the world...

[StarUKKiwi]

You are absolutely right. The legal team work within their narrow field of expertise and knowledge only - as is natural - however, asking them to defend the case with reference to the specific, relevant waterways legislation in the less apologetic vein I have suggested, confronts 2 difficulties:

 

In the first place, professional pride and sensitivities are involved – for all that they should not be.

 

In the second place, it is all very well presenting them with more detailed instructions as to the wider field of the various Acts, Miss Easty has to argue them in court – and that demands thorough acquaintance with it. With a probably packed agenda of other cases more within her field, I am dubious as to her being able to absorb the necessary background within the short time-frame available. They are in court this Thursday.

 

The most useful thing Andy’s solicitor could achieve at this stage, is to act according to HHJ Pugsley’s [apparent] demand that any further action such as this be referred to him, and place a request to that effect.

 

In the meantime, I have done my best since yesterday afternoon, to amend/add to Miss Easty’s draft Defence so that Andy can sign it off as what he wants, and send it to them. We can only wait and see how they respond.

I do hope that Miss Easty has sufficient time to read your brief. I do dthink there is something strange going on in the Nottingham area and not jusst concerning Boating. One wonders if this was Mr Garner going above and beyond or there is something else we are unaware of to do with the Council?.

[NigelMoore]

I can't see how they can get away with that if challenged though

 

But that is it - if they are NOT challenged with the appropriate legislative arguments, because the professionals are simply not au fait with them, CaRT CAN get away with it.

 

Andy is in that terrible position of suspecting his representatives of not doing what he wants, while simultaneously fearful of upsetting them to the point of winding up with no-one and a reprise of Geoff Mayers' position.

 

We still do not know whether the barrister has been forwarded the material Andy has already sent to his solicitor. Perhaps tomorrow will divulge happier news.

Edited October 5, 2015 by NigelMoore

[Allan(nb Albert)]

I notice that Allan has done another NBW article with reference to Andy’s imminent new appearance in court in a few days’ time. He has correctly identified that this bears no relationship to the Settlement agreement from last time, but is a fresh action taken when Mr Garner decided to issue new s.8 & s.13 Notices after revoking Andy’s licence in November last year.

 

However one more thing is bothering me about this case: the Settlement was obviously [from discussion in the Transcript] to entail provision of a mooring and a boat licence, provided payment for these was made when due. My question is: from the court discussion with the judge, there was evidently initial confusion over the inequitable balance respecting rights to enforce – the Defendant’s rights as to that not appearing in the Settlement.

 

So – although, from CaRT’s point of view, they are proceeding on the basis of a fresh claim, that relies upon their having revoked and refused the boat licence for which [as well as the mooring] Andy continues to pay, as per the terms of the Settlement - IF Andy’s lawyers had done their job properly, should there not have been some provision for Andy to compel CaRT to live up to their side of the agreement to issue a boat licence, for so long as he had met the appropriate conditions?

 

As the transcripts had indicated, the Consent Order DID provide that “Either party may be permitted to apply to the Court to enforce the terms upon which this case has been stayed . . .” As no application appears to have been made by Andy’s legal team, this would suggest that the settlement terms contained NO provision for Andy to be able to insist upon CaRT living up to their side of the bargain. Or, was the settlement entirely one-sided in favour of CaRT?

 

My fear is that there has been a terrible lack of professional expertise being involved in Andy’s side’s negotiating that Settlement. Had it properly protected Andy as well as CaRT, this new case could never have been brought.

 

On the other hand, to be fair - how would any ordinary person comprehend the possibility that a body such as CaRT would act with open criminality in this way?

 

one wonders whether CRT are going to rely on the amended terms and conditions which require boaters wth a home mooring to boat in the same way as boaters that do not have one. Despite I believe there being no legal requirement to do so.

 

It may well be

 

I can't see how they can get away with that if challenged though

My fear, hopefully unfounded, is that the confidential agreement included a houseboat certificate (rather than a pleasure boat licence) as well as a home mooring. If it did then CaRT would have a stronger case in that Andy would be subject to any T&C's they imposed.

 

Having said that, the 1995 Act still does not give breach of T's&C's as a reason for licence refusal ...

[NigelMoore]

One wonders if this was Mr Garner going above and beyond or there is something else we are unaware of to do with the Council?.

 

Potentially both, if my knowledge of London's Hounslow Council's shenanigans is anything to go by. They do tend to work hand in hand for each other with CaRT.

 

 

My fear, hopefully unfounded, is that the confidential agreement included a houseboat certificate (rather than a pleasure boat licence) as well as a home mooring. If it did then CaRT would have a stronger case in that Andy would be subject to any T&C's they imposed.

 

It is thankfully unfounded. Andy's last application was for a "Rivers Only 'licence'.

[NigelMoore]

 

 

It's a hard life. Thank God we don't reside in, well, most other places in the world...

 

Oh yeah?!

 

I’ve been in third world places where power is tapped from street lighting with all sorts of gimcrack technical Heath Robinson set-ups, and the service has beaten what I am experiencing, hands down.

 

And what about the telly programs showing African tribesmen in remote reservations, pulling out their smartphones and instantly loading pics up to facebook?

 

Sorry for the sour note, but few things are more frustrating than technology on the blink.

[Allan(nb Albert)]

It is thankfully unfounded. Andy's last application was for a "Rivers Only 'licence'.

I am very pleased to hear that.

 

For those interested in statistics, the first days transcript mentions 'houseboat' 76 times, 'pleasure boat' 14 times and 'rivers only' zero times.

[tidal]

 

But that is it - if they are NOT challenged with the appropriate legislative arguments, because the professionals are simply not au fait with them, CaRT CAN get away with it.

 

a valid and worrying point Nigel

[MtB]

Frankly I would rather live in a country were CRT push boaters about than one where the govt shoot bullets at citizens or incarcerate dissidents for torture.

[Ange]

Frankly I would rather live in a country were CRT push boaters about than one where the govt shoot bullets at citizens or incarcerate dissidents for torture.

You're being silly now. The fact that atrocities are happening in other parts of the world doesn't mean we have to put up with injustice.

 

CRT are bang out of order here.