CRT v Andy Wingfield Update

[GoodGurl]

 

I personally believe that you have it wrong.

 

Mr Fowles is just blurting out what HE SAYS it says in the Act/s, and as I told the court respecting Johnson – I believe he knows EXACTLY what he is talking about.

 

I could be wrong of course; he could just have been blurting out his instructing solicitors’ message to all survivors of the regime, while remaining blissfully ignorant of what the legislation says.

 

It would of course be kinder – taking into account his future prospects – to hold to that view, but I have personally been more impressed with Shoosmiths’ grasp of the legalities than with their grasp of the morality of correctly applying that knowledge.

so mr fowles intention then is to try and tie the judge in knots to get to where he is going?

[StarUKKiwi]

I just want to thank Nigel for this. I am reading and re-reading the thread. It appears to me that Mr Fowles was trying to bamboozle HHCJ, who started to see through the argument.

I have twi questions, if there are only 100 of these houseboats, as defined by the Act, why would Shoesmiths instruct their barrister to apply a houseboat classification to any other boat type, unless to try and confuse the judge?

Oh and another question, I was talking to a couple yesterday who have been involved in various boater's cases and they wondered why CRT use Shoesmiths and not in house legal team, I wondered if it was to keep a distance?

Edited for semantics

Edited August 30, 2015 by StarUKKiwi

[Dave Clinton]

Question; Nigel, why does Fowles keep referring to a 'houseboat certificate' when he means what 'we' understand as a 'pleasure boat license'.

 

Is this simply more smoke and mirrors or is it technically correct ?

[MtB]

Question; Nigel, why does Fowles keep referring to a 'houseboat certificate' when he means what 'we' understand as a 'pleasure boat license'.

 

Is this simply more smoke and mirrors or is it technically correct ?

 

Honestly I expected better from you. DO read the thread, Nige has explained all this WAY back!

 

A houseboat certificate is different and far preferable to CRT as the T&Cs attached to a houseboat certificate are mandatory, unlike the pleasure boat certificate, as I understand it.

Especially as you were telling me to read the acts earlier!

[Dave Clinton]

Read my question properly plumber.

 

JULT

Edited August 30, 2015 by Dave Clinton

[NigelMoore]

why does Fowles keep referring to a 'houseboat certificate' when he means what 'we' understand as a 'pleasure boat license'.

 

Is this simply more smoke and mirrors or is it technically correct ?

 

It is incorrect technically, and whichever way else you approach it.

 

Actually [being pedantic], Andy did not have a 'pleasure boat licence'; he had a 'pleasure boat certificate' [what CaRT refer to as a 'rivers only licence'.] the distinction is crucial to understanding the case, as this was yet another of the Trent cases, so falling within the 1971 legislation rather than the 1976 legislation.

 

I do not have the benefit of reading the skeleton argument of Andy’s counsel, but reading between the lines of what CaRT were saying vis-a-vis my own case, it seems apparent that she was running much the same or similar argument as we are in Leigh Ravenscroft’s case.

 

Right at the beginning, immediately prior to launching into this ‘houseboat’ nonsense, Mr Fowles says:

 

“Now, one of the issues that is taken by my learned friend is that the County Hall Steps or perhaps other part of the Trent as well are not within the ownership of the Canal & River Trust and my learned friend" . . . "for that reason, I would, if I may, just like to take your Honour through the legislation so that your Honour sees where I differ from my learned friend on that particular point, because my learned friend also relies on a Court of Appeal case called Moore v British Waterways Board. I need to explain to your Honour why that case is distinctive and distinguishable. "

 

I may well be wrong, but the only way that this makes sense to me is that Andy’s counsel had argued that Andy was moored outside of the area where ‘licensing’ was mandatory.

 

Mr Fowles is very obviously muddling the issues of ‘ownership’ and ‘jurisdiction’, but I think it clear that he was anxious to avoid meeting the “main navigable channel” argument head on – and relying on the ‘houseboat’ classification was [and is] the only possible argument open to him to evade that issue.

 

[i say ‘only possible argument’ in terms of feasibility; in Leigh’s case CaRT run two further alternative counter arguments, but these are really non-starters]

[Bod]

Comments please.

1995 BW act

Schedule I

Part III

Para 7 + para 15

 

http://www.legislation.gov.uk/ukla/1995/1/schedule/1/enacted

 

Am I missing something?

 

Bod

My reading.

Houseboat cannot move from mooring (para 7)

If moves becomes pleasure boat (para 15)

Edited August 30, 2015 by Bod

[Bod]

 

It is incorrect technically, and whichever way else you approach it.

 

Actually [being pedantic], Andy did not have a 'pleasure boat licence'; he had a 'pleasure boat certificate' [what CaRT refer to as a 'rivers only licence'.] the distinction is crucial to understanding the case, as this was yet another of the Trent cases, so falling within the 1971 legislation rather than the 1976 legislation.

 

I do not have the benefit of reading the skeleton argument of Andy’s counsel, but reading between the lines of what CaRT were saying vis-a-vis my own case, it seems apparent that she was running much the same or similar argument as we are in Leigh Ravenscroft’s case.

 

Right at the beginning, immediately prior to launching into this ‘houseboat’ nonsense, Mr Fowles says:

 

“Now, one of the issues that is taken by my learned friend is that the County Hall Steps or perhaps other part of the Trent as well are not within the ownership of the Canal & River Trust and my learned friend" . . . "for that reason, I would, if I may, just like to take your Honour through the legislation so that your Honour sees where I differ from my learned friend on that particular point, because my learned friend also relies on a Court of Appeal case called Moore v British Waterways Board. I need to explain to your Honour why that case is distinctive and distinguishable. "

 

I may well be wrong, but the only way that this makes sense to me is that Andy’s counsel had argued that Andy was moored outside of the area where ‘licensing’ was mandatory.

 

Mr Fowles is very obviously muddling the issues of ‘ownership’ and ‘jurisdiction’, but I think it clear that he was anxious to avoid meeting the “main navigable channel” argument head on – and relying on the ‘houseboat’ classification was [and is] the only possible argument open to him to evade that issue.

 

[i say ‘only possible argument’ in terms of feasibility; in Leigh’s case CaRT run two further alternative counter arguments, but these are really non-starters]

 

Oh yes,I can see now where Fowles wanted to go, as far as possible from the 1971 act!!

Once the boat was defined as a pleasure boat, the 1971 act definitions and restrictions, brought the case to a stop. (and his pay packet)

 

Bod

[NigelMoore]

Am I missing something?

 

Yes.

 

You are missing the lawyer gene.

 

The ability to strain at gnats while swallowing camels.

[NigelMoore]

My reading.

Houseboat cannot move from mooring (para 7)

If moves becomes pleasure boat (para 15)

 

Crucially also, given that a houseboat certificate cannot be separated from the specific mooring site assigned to it, while being moved it can only be deemed to be a pleasure boat with a home mooring. It is a legal impossibility for it to ever be deemed a pleasure boat without a home mooring and subject to 17(3)( c )(ii).

[NigelMoore]

they wondered why CRT use Shoesmiths and not in house legal team,

 

Only CaRT could tell you.

 

My very first job in the UK was as an orange peeling machine watcher at the Schweppes factory in west London.

 

The factory was manned year round with permanent staff, but for the only 3 months in the year when it actually did any work [during the Spanish orange and lemon picking season], they brought in an outside team of temps to do the work, while the permanent staff just told us what to do.

 

It’s an English thing I guess.

[Dave Clinton]

 

It is incorrect technically, and whichever way else you approach it.

 

Actually [being pedantic], Andy did not have a 'pleasure boat licence'; he had a 'pleasure boat certificate' [what CaRT refer to as a 'rivers only licence'.] the distinction is crucial to understanding the case, as this was yet another of the Trent cases, so falling within the 1971 legislation rather than the 1976 legislation.

 

I do not have the benefit of reading the skeleton argument of Andys counsel, but reading between the lines of what CaRT were saying vis-a-vis my own case, it seems apparent that she was running much the same or similar argument as we are in Leigh Ravenscrofts case.

 

Right at the beginning, immediately prior to launching into this houseboat nonsense, Mr Fowles says:

 

Now, one of the issues that is taken by my learned friend is that the County Hall Steps or perhaps other part of the Trent as well are not within the ownership of the Canal & River Trust and my learned friend" . . . "for that reason, I would, if I may, just like to take your Honour through the legislation so that your Honour sees where I differ from my learned friend on that particular point, because my learned friend also relies on a Court of Appeal case called Moore v British Waterways Board. I need to explain to your Honour why that case is distinctive and distinguishable. "

 

I may well be wrong, but the only way that this makes sense to me is that Andys counsel had argued that Andy was moored outside of the area where licensing was mandatory.

 

Mr Fowles is very obviously muddling the issues of ownership and jurisdiction, but I think it clear that he was anxious to avoid meeting the main navigable channel argument head on and relying on the houseboat classification was [and is] the only possible argument open to him to evade that issue.

 

[i say only possible argument in terms of feasibility; in Leighs case CaRT run two further alternative counter arguments, but these are really non-starters]

sorry if I'm labouring the point but I'm trying to understand the court procedure. Fowles says, repeatedly, 'houseboat certificate' when he is referring to a 'pleasure boat certificate' presumably in an attempt to make the houseboat legislation fit Andy's boat. Why did Andy's council not challenge this immediately?

 

On the grounds of a error of fact?

As an attempt to lie to the court?

[cotswoldsman]

As an attempt to lie to the court?

 

Misleading the Court was something Mr Fowles did a number of times and Judge Pugsley pulled him up an number of times. A classic one being when they were trying to negotiate a settlement

 

 

JUDGE PUGSLEY: Please do not waste time. You have misled your opponent and me quite inadvertently into thinking that you were wanting the draconian step that, if there were any breach, however insignificant, you could remove his boat from the canal. I am getting tired of you wasting time. That is not what you want, you now say. All you want is power to come back to the court to enforce that provision.

[Bod]

 

Yes.

 

You are missing the lawyer gene.

 

The ability to strain at gnats while swallowing camels.

 

My sister got that gene!

Specializes in property.

 

Bod

[Higgs]

As I believe CRT have no direct legal powers inside a private marina, and the licence on a boat inside a marina confers no entitlement to access the canal, without a further payment, the T&C or contract that a boater has with CRT is not in effect. A boat, inside a private marina connot be subject to any of CRT's classifications. Until the boat passes beyond the entrance of a marina and onto a CRT waterway, it is beyond classification.

 

CRT have indirect power, inside a marina. This indirect power (NAA) does not carry with it the laws that govern normal operations, outside, on the main waterway. If you are without a licence, inside a private marina, the marina owners will tell you it is in contravention of their operating business licence - not the laws that CRT use from the various Acts.

 

As you can see, from the extract below - with limited right of assignment, the houseboat certificate will be associated with a Trust long term mooring. The reference to "generally" is followed by the qualification - limited rights of assignment (to a particular CRT long term mooring).

 

A Houseboat is defined as a boat whose predominant use is for a purpose other than navigation and which, if required for the purpose, has planning permission, for the site where it is moored. A Houseboat may be used for navigation from time to time provided it does not become its predominant use. Houseboat Certificates are generally associated with a particular Canal & River Trust long term mooring permit and carry with them a limited right of assignment of the mooring permit.

 

CRT's direct legal power is limited to Trust managed waterways and Trust associated moorings and the use of Indirect power through other devices that do not carry the weight of Waterways law. The NAA, being one device.

 

My unqualified assessment.

[Tony Dunkley]

~ ~ ~ ~ ~ ~

I may well be wrong, but the only way that this makes sense to me is that Andy’s counsel had argued that Andy was moored outside of the area where ‘licensing’ was mandatory.

 

Mr Fowles is very obviously muddling the issues of ‘ownership’ and ‘jurisdiction’, but I think it clear that he was anxious to avoid meeting the “main navigable channel” argument head on – and relying on the ‘houseboat’ classification was [and is] the only possible argument open to him to evade that issue.

 

[i say ‘only possible argument’ in terms of feasibility; in Leigh’s case CaRT run two further alternative counter arguments, but these are really non-starters]

 

If Andy W's boat was at County Hall steps in Nottingham when the Section 8 and 13 Notices were served then there is little doubt that Fowles was ducking the "main navigable channel " argument.

The length of the Trent in which County Hall steps are was originally omitted from the Schedule in the 1971 Act but subsequently included by way of the amendment in S.36(2) of the 1974 Act, viz. " . . . . . . the length of the river Trent from it's junction with the Nottingham Canal to Beeston Weir".

Edited August 30, 2015 by Tony Dunkley

[NigelMoore]

Why did Andy's council not challenge this immediately?

 

Well we don’t usually indulge in the American style of jumping up and shouting ‘Objection’ whenever we disagree with something in UK courts. Opposing counsel get their chance to rebut the other side when it is their turn. In fact, as I said earlier, Andy’s counsel never got that far. She had at most a few minutes of comment before lunch the first day, prior to Mr Garner being put into the witness stand.

 

The two main points she made respected CaRT’s movement pattern requirements, and the applicability of the HRA.

 

Really, her only [very general] comment on the law itself was that she would, when her turn came, deal with CaRT’s approach to the legislation and their analysis of the legislation.

 

“JUDGE PUGSLEY: Shall we say two o’clock so that we do not break his evidence, which means you cannot talk to him and he will have the strain of giving evidence and it being broken off shortly. So you will be calling Mr. Garner and you will be calling?

 

MISS EASTY: Mr. Wingfield, your Honour.

 

JUDGE PUGSLEY: Yes. Whereas I think the calling of Mr. Garner is entirely a matter for you, I do not think jurisprudentially it is essential if it was agreed. I think you would be in a very difficult position if you did not call your client, but it is entirely a matter for you, because in fact, on its analysis, it really is for you to satisfy the Board or, in a failure, satisfy me as to what his state of mind was.

 

MISS EASTY: On my learned friend’s opening, that is doubtless the impression that you would be left with.

 

JUDGE PUGSLEY: Was he just playing the system or was it for general navigation purposes?

 

MISS EASTY: Yes, your Honour, that is the impression that my learned friend has given you.

 

JUDGE PUGSLEY: Yes.

 

MISS EASTY: And very fundamentally with both his approach to the legislation, his analysis of the legislation, the approach to be given to dates etc., etc.

 

JUDGE PUGSLEY: Yes, I rather gathered that.

 

MISS EASTY: But, on his case, yes.

 

JUDGE PUGSLEY: On his case, that is the inference.

 

MISS EASTY: How he puts it, yes.

 

On such scant clues I cannot say whether she would have included any challenge over the ‘houseboat’ issue when it came her turn to present her case. I, on the other hand, would certainly have taken the opportunity to challenge the point, the moment she was given the above opportunity to say how she would approach the case. It seems evident from the above exchange that she was going to challenge the degree to which intent should factor into the equation, and/or the criteria for assessing the intent.

 

It is altogether possible, though, that the nuances and effect of boat classification entirely escaped her, and that she was concentrating on her focal points of challenging the arbitrary application of space and time to a general principle, plus whatever she had in mind with the HRA.

 

It must be remembered that the Community Law Partnership that instructed her are basically Human Rights orientated, and have gained some knowledge of BW legislation by reason of experience at court promoting boaters’ rights against s.8’s. Their motivation and commitment is admirable, but they cannot match the familiarity with the relevant legislation that BW/CaRT and their regular solicitors enjoy.

[NigelMoore]

JUDGE PUGSLEY to Andy's counsel: ". . . on its analysis, it really is for you to satisfy the Board or, in a failure, satisfy me as to what his state of mind was."

 

MISS EASTY: On my learned friend’s opening, that is doubtless the impression that you would be left with.

 

What is interesting about this trial is the starting point that CaRT took, to align the case with the Paul Davies ‘test of intent’. The obvious reductio ad absurdum of this line of argument accepted by Judge O'Malley is that it could be applied no matter how far and wide a boat travelled. Incorporating the 14 day specification WAS the simple defining principle of the essential phrase.

 

CaRT [properly] refused to state any position on how far or often the boat should have moved; it was all down to the reason for the movement. It is important to understand that no position on the argument was taken by the judge, but it may be of interest for boaters to ‘hear’ as it were, the way the case was presented.

 

“JUDGE PUGSLEY: How do you put the case?

 

MR. FOWLES: I put the case on the basis of the decision of His Honour Judge O’Malley in British Waterways Board v Davies.

 

JUDGE PUGSLEY: No, on the statutory basis?

 

MR. FOWLES: On the statutory basis?

 

JUDGE PUGSLEY: Yes.

 

MR. FOWLES: I say that Mr. Wingfield was not using his boat “bona fide for navigation” because all he was doing was moving his boat up and down a short stretch of canal. He wanted to be close to relevant facilities and so on.

 

JUDGE PUGSLEY: Doctor, postman and all the rest of it, yes.

 

MR. FOWLES: He was using his boat primarily not for navigation but just as a replacement for a house, and the fact that he happened to be moving up and down did not mean that he was navigating. Therefore, the Canal & River Trust was entitled to refuse him a licence and to revoke his licence in the first place.

 

JUDGE PUGSLEY: Let us assume I am in a landlocked canal like the Brecon & Abergavenny Canal. I have my doctor, my children have their school, I have a post restante post office and I am registered in the nearest town which gives out giro cheques because I am on benefits. You say I cannot work the system (this is just in plain language) if I do not have a mooring, that I cannot gently potter up the 12 or 13 miles of the length of that canal stopping off at 28 days on each and effectively turn a number of transient stopping places into effectively a mooring place, but “for the purposes of navigation” means that I am cruising and I may need to stop off ancillary to the cruising, not I am a resident of a particular area and I have to move it, rather like barristers and solicitors move their car from one parking bay to another over the lunchtime adjournment.

 

MR. FOWLES: Exactly, your Honour. Your Honour has put it very well. Another way----

 

JUDGE PUGSLEY: Thank you.

 

MR. FOWLES: I am sorry, your Honour, with respect.

 

JUDGE PUGSLEY: Do not bother about respect, it drives me up the wall.

Edited August 31, 2015 by NigelMoore

[Bod]

The afternoon session must make some interesting reading!

 

Bod

[NigelMoore]

Fowles says, repeatedly, 'houseboat certificate' when he is referring to a 'pleasure boat certificate' presumably in an attempt to make the houseboat legislation fit Andy's boat. Why did Andy's council not challenge this

 

Had Miss Easty seized the opportunity to raise an objection just before lunch that day, while talking to the judge, she could have dispensed with the nonsense very easily by asking some pertinent questions: as to how many houseboat certificates WERE issued on the basis of CC’ing, and whether, if satisfied that Andy WOULD CC according to their guidelines, they would have issued him with one, instead of with the pleasure boat certificate.

 

It would also be interesting to know what form of certificate Andy WAS later given, following the provision of his mooring by CaRT.

 

One thing I would flag up as highly significant, arising from this case, is just how variable the perceptions and approaches of these County Court judges are. This is illustrated of course, even in the various Orders published on CaRT’s relevant web page – but it is sobering to reflect that, had he had a judge such as HHJ Pugsley, the outcome for Geoff Mayers could have been very different; he could have ended up with the same sort of deal as Andy.

 

In point of fact it WAS just such a deal that his judge urged upon CaRT, but by that stage the judgment had been passed already [in Geoff’s absence], and it relied upon CaRT’s good will to implement the suggestion.

 

That good will simply does not exist of course, and even though Geoff arranged his own mooring, they still pounced on him the moment he ventured out of the marina’s confines.

 

Something is very seriously wrong when two near identical cases end up with such drastically differing outcomes, dependant solely on the character of the judge and the effectiveness of any representation. I believe it also highlights fundamental flaws in the understanding of the purpose of the legislation - but that is another sub-topic.

[Higgs]

"That good will simply does not exist of course, and even though Geoff arranged his own mooring, they still pounced on him the moment he ventured out of the marina’s confines."

 

Sorry, couldn't resist the opportunity. CRT would have entered the confines of the marina if the water inside was part of the Trust's waterway.

[cotswoldsman]

"That good will simply does not exist of course, and even though Geoff arranged his own mooring, they still pounced on him the moment he ventured out of the marinas confines."

 

Sorry, couldn't resist the opportunity. CRT would have entered the confines of the marina if the water inside was part of the Trust's waterway.

You keep missing the point it is the access the marinas pay for

[Higgs]

You keep missing the point it is the access the marinas pay for

 

 

You may have missed the point. You only need (legally) a licence on the Trust's waterway. Not when you're off it. And certainly not if you never intend to go on it, Not even 1mm or second, that is.

Edited August 31, 2015 by Higgs

[bigcol]

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

[NigelMoore]

 

. . . there is little doubt that Fowles was ducking the "main navigable channel " argument.

 

I believe so, but whether that was in response to any of Miss Easty’s argument, I am not so sure of.

 

She definitely raised the issue of the ownership of the waterway [which is irrelevant to the jurisdictional authority], but it seems that she was going to make a point relevant to CaRT’s demand for the usual all-embracing Injunction to be added to the approval of s.8 removal.

 

In my mind, these injunctions are stretching things way beyond CaRT’s powers to demand, and, most definitely, the all-embracing ban they entail is illegal and criminal – they are expressed to include a ban from named tidal waters, for example, which is expressly forbidden to CaRT.

 

That, however, was not the burden of Miss Easty’s argument it seems; there appears to be some reliance on injunctions being invalid over other people’s property – something I know absolutely nothing about.

 

MR. FOWLES: There is also a point raised in my learned friend’s skeleton argument about whether we needed to join the local council, because they owned the County Hall Steps, and I am not sure whether that point is being pursued any longer.

MISS EASTY: I think my learned friend is reading something into my skeleton argument which is not there. It is a simple point, and let me put it even more simply, which is they cannot get an injunction over somebody else’s land. It is as simple as that. That is why the case is put on that particular narrow point.

 

JUDGE PUGSLEY: Well, I shall listen to the argument with interest, but can we move on?

 

Of course it never got to that stage, so we cannot know what the arguments were, which is rather a pity.