CRT v Andy Wingfield Update

[NigelMoore]

Well I keep reading this thread out of curiosity for any judgements. I would love to know the layman terms for what exactly happened to all those aforementioned boaters who have been Shoosmithed or otherwise disadvantaged by CRT.

 

Sadly I'm too thick to understand legalese, or contractese, so I like it to be translated into ME speak.

 

If anyone could translate most of the stuff that has been on here for the last 59 pages, into ME speak, I'd then be in a better position to allocate my support!

 

Judgments &/or Orders are mostly published by CaRT here: -

 

https://canalrivertrust.org.uk/the-publication-scheme/our-publication-scheme/court-action-to-remove-boats-from-our-waterways

 

Most of those are straightforward, justified cases of licence evasion; they do not involve contested points of law.

 

Significant defended cases are:

 

Paul Davies – judgment held that moving to a new place every 14 days was NOT compliant with the law if done only to comply with the law. Boater now happily moored off-piste I believe. CC guidance modified to meet judge's criticisms.

 

Nigel Moore – Appeal Court judgment ruled that s.8 invalid for boats on a public navigable river, moored to private riparian property. Costs awarded against CaRT; no compensation for years of hassle, but tens of thousands of pounds refunded to other affected boaters who subsequently applied for refund of the boat licences they had been illegally compelled to buy.

 

Geoff Mayers – judgment could not and did not rule on the points of law contested, although the judge took the trouble to make some valuable obiter dicta commentary on them. CaRT were to restore his licence if he found a home mooring and applied for one. He did so, but was snaffled when he left the mooring and the boat was effectively destroyed.

 

Andy Wingfield – final recent judgment ruled that a boat on a public navigable river, moored to private riparian property, even with both a current Pleasure Boat Certificate and a paid up CaRT home mooring, could be ejected from all CaRT’s waterways if it did not comply with CC guidance. Boat now happily moored off-piste.

 

Tony Dunkley – no judgment. First reprise of the Wingfield issues withdrawn on receipt of Defence; new case yet to be filed.

 

[NigelMoore]

 

Do you have a bit more information on this please Nigel?

 

The case is Canal and River Trust v Martin Jones.

 

I do not have all the details, but at the first County Court hearing the judge agreed with CaRT that they should be treated in the same way that Council Housing Authorities are treated at County Court level, when dealing with the issues of proportionality that are central to any Human Rights arguments. In those cases County Courts take the position that it is not for them to delve into the rationale for the Authority’s decisions; it is to be taken as a given that they make their decisions on the correct basis, such that they must be considered proportionate measures in the public interest – in which case, the HRA does not ‘bite’.

 

The boater appealed in the High Court but lost, and the case has been taken to the Court of Appeal. It is to be heard fairly soon, but I do not have more detail readily to hand.

 

[NigelMoore]

. . . Whilst it is arguable that the Court may or may not have the authority and power to make such an Order in respect of the canals . . .

 

Actually, in respect of the canals, the injunctions essentially say no more than what the relevant byelaw and the 1995 Act does, anyway.

 

It is the EFFECT of them that counts for CaRT, because boaters automatically think [as Andy was saying to me the other day] that they constitute a lifetime ban on using CaRT waterways unless they exercise benevolence and deign to let you back.

 

The truth is that where a licence is required to keep and use a boat on the canals, THAT is the necessary “prior consent”, and that consent can ONLY be withheld if the 1995 provisions are not met.

 

Nothing in these Court Injunctions actually gainsays that, so far as I can see. The only added dimension [and it is a real one] is that entry onto CaRT waters without the relevant consent then comprises Contempt of Court; it is already a criminal offence to enter CaRT canals without a licence, but to do so in the face of an injunction means you could [and probably would] be sent to prison, not merely fined.

 

[BMC problems]

 

The case is Canal and River Trust v Martin Jones.

 

I do not have all the details, but at the first County Court hearing the judge agreed with CaRT that they should be treated in the same way that Council Housing Authorities are treated at County Court level, when dealing with the issues of proportionality that are central to any Human Rights arguments. In those cases County Courts take the position that it is not for them to delve into the rationale for the Authority’s decisions; it is to be taken as a given that they make their decisions on the correct basis, such that they must be considered proportionate measures in the public interest – in which case, the HRA does not ‘bite’.

 

The boater appealed in the High Court but lost, and the case has been taken to the Court of Appeal. It is to be heard fairly soon, but I do not have more detail readily to hand.

 

 

Thank you. Sounds more than a little disturbing..

[Alan de Enfield]

 

The case is Canal and River Trust v Martin Jones.

 

I do not have all the details, but at the first County Court hearing the judge agreed with CaRT that they should be treated in the same way that Council Housing Authorities are treated at County Court level, when dealing with the issues of proportionality that are central to any Human Rights arguments. In those cases County Courts take the position that it is not for them to delve into the rationale for the Authority’s decisions; it is to be taken as a given that they make their decisions on the correct basis, such that they must be considered proportionate measures in the public interest – in which case, the HRA does not ‘bite’.

 

The boater appealed in the High Court but lost, and the case has been taken to the Court of Appeal. It is to be heard fairly soon, but I do not have more detail readily to hand.

 

 

Is this not suggesting "trust us to make the correct decisions" ?

 

Surely BW, and subsequently C&RTs, history suggests otherwise. Why should they get 'it right' with the Human Rights Act when they cannot with any other Act ?

[NigelMoore]

 

Is this not suggesting "trust us to make the correct decisions" ?

 

Surely BW, and subsequently C&RTs, history suggests otherwise. Why should they get 'it right' with the Human Rights Act when they cannot with any other Act ?

 

Mr Justice Hildard in his Supplemental Judgment in Moore v British Waterways [2013] noted both the general presumption and its inapplicability in my own case: -

 

"Looking first at the public authority's justification for doing as it has done, in many cases there will in effect be a presumption of proportionality. As made clear in cases such as Powell and Pinnock, it is unusual for Local Authorities to be required to justify their decisions because it is ordinarily to be assumed that everything has been done properly and for legitimate management reasons. The flaws in BWB's approach tend to militate against that presumption in this case.” [my bold]

 

It would seem a valuable decision example to draw to the Appeal Court’s attention in the Jones case, but the solicitor in that case, to whom I sent copies of the judgment, took the position that he would only be doing me a favour by looking at them, which at the time he was disinclined to. I can only hope that professionalism will overcome pique before the case is heard.

 

[NigelMoore]

I promised to upload CaRT's Skeleton opposing Andy's Appeal, and it is apposite to the immediately preceding issue on presumption of proportionality, as the judge specifically refers to the history of the CaRT v Martin Jones case.

 

https://www.scribd.com/doc/302912963/CaRT-v-Wingfield-CaRT-Skeleton-for-Appeal

 

He notes that the Appeal hearing is listed for May 2016, so we will know the result of that in a few months. I believe CLP are handling that Appeal also.

[Mike Todd]

 

Actually, in respect of the canals, the injunctions essentially say no more than what the relevant byelaw and the 1995 Act does, anyway.

 

It is the EFFECT of them that counts for CaRT, because boaters automatically think [as Andy was saying to me the other day] that they constitute a lifetime ban on using CaRT waterways unless they exercise benevolence and deign to let you back.

 

The truth is that where a licence is required to keep and use a boat on the canals, THAT is the necessary “prior consent”, and that consent can ONLY be withheld if the 1995 provisions are not met.

 

Nothing in these Court Injunctions actually gainsays that, so far as I can see. The only added dimension [and it is a real one] is that entry onto CaRT waters without the relevant consent then comprises Contempt of Court; it is already a criminal offence to enter CaRT canals without a licence, but to do so in the face of an injunction means you could [and probably would] be sent to prison, not merely fined.

 

Do you know of any recent cases where a licence has been refused even though the boater has now complied with whatever it was brought the action in the first place?

 

My impression, through the 'trial' period shorter licences was that CaRT were prepared to consider the 'rehabilitation of offenders'

[NigelMoore]

The only instance I know of was Tony Dunkley. He returned to his home mooring after s.8, and in due course applied for a new PBC. CaRT refused to accept that the home mooring was genuine, and insisted that he demonstrate a provable record of a suitable boat movement pattern before they would grant a new certificate based on cc'ing.

 

No explanation was forthcoming as to how he could legally accomplish this with a revoked PBC.

[Loafer]

 

Judgments &/or Orders are mostly published by CaRT here: -

 

https://canalrivertrust.org.uk/the-publication-scheme/our-publication-scheme/court-action-to-remove-boats-from-our-waterways

 

Most of those are straightforward, justified cases of licence evasion; they do not involve contested points of law.

 

Significant defended cases are:

 

Paul Davies – judgment held that moving to a new place every 14 days was NOT compliant with the law if done only to comply with the law. Boater now happily moored off-piste I believe. CC guidance modified to meet judge's criticisms.

 

Nigel Moore – Appeal Court judgment ruled that s.8 invalid for boats on a public navigable river, moored to private riparian property. Costs awarded against CaRT; no compensation for years of hassle, but tens of thousands of pounds refunded to other affected boaters who subsequently applied for refund of the boat licences they had been illegally compelled to buy.

 

Geoff Mayers – judgment could not and did not rule on the points of law contested, although the judge took the trouble to make some valuable obiter dicta commentary on them. CaRT were to restore his licence if he found a home mooring and applied for one. He did so, but was snaffled when he left the mooring and the boat was effectively destroyed.

 

Andy Wingfield – final recent judgment ruled that a boat on a public navigable river, moored to private riparian property, even with both a current Pleasure Boat Certificate and a paid up CaRT home mooring, could be ejected from all CaRT’s waterways if it did not comply with CC guidance. Boat now happily moored off-piste.

 

Tony Dunkley – no judgment. First reprise of the Wingfield issues withdrawn on receipt of Defence; new case yet to be filed.

 

 

 

Thanks for the effort, Nigel. A lot clearer now! Greenie awarded.

[Tony Dunkley]

Do you know of any recent cases where a licence has been refused even though the boater has now complied with whatever it was brought the action in the first place?

 

My impression, through the 'trial' period shorter licences was that CaRT were prepared to consider the 'rehabilitation of offenders'

 

Reference the circumstances that Nigel has just mentioned in post #1184.

 

More like 'incitement to offend' rather than 'rehabilitation of offenders', . . . especially if sent to someone who is beyond redemption anyway.

 

This from C&RT on 23 July 2014 :~

 

Dear Mr Dunkley

 

Thank you for your email below. If the current absence of your boat from the vicinity of Holme Lock is an indication that you are starting to cruise that is encouraging. As we explained to you at court on the 4th of July 2014, our interest is in being satisfied that you cruise when you navigate your boat away from your home mooring on inland waterways controlled or managed by CRT. If you are keeping a record of your boats movement and the short periods of not moving your boat whilst on CRTs inland waterways and you provide us with these details, we can take these into account together with our own sightings to satisfy ourselves that you are cruising. It would be as helpful to you as it would be to us if you informed us of the current location of your boat. We would have to monitor the situation over a period and would have to have your assurance that you would not be reverting back to what has been the pattern of movement that led to your licence being revoked. We would only consider suspending the enforcement action if there is demonstrable evidence that you are willing to cruise. This could then progress to the issue of a new licence.

 

And this on 28 July 2014 :~

 

Dear Mr Dunkley

 

I refer to your email below.

 

Since your boat moved from the Holme Lock vicinity from 17^th July, we have not seen the boat as yet. We endeavour to check our inland waterways every 14 days. If in the course of those checks we do note over a period that any specific boat is not complying with the licence terms and conditions then the enforcement process may be followed; this is what happened in the case of Halcyon Daze resulting in the action we have taken to date. As our licence terms and conditions apply to the inland waterways we own or control, it follows that our checks are confined to those inland waterways. We do not check sections of rivers and waterways that are not within our ownership and control and we do not check marinas or other moorings where boats are moored off the waterway.

 

As stated in my email of 23 July 2014, if we find from our monitoring data going forward that over a period of time Halcyon Daze is cruising when it is on the inland waterway and not overstaying during stops whilst cruising then we would be willing to suspend the enforcement action. If you wish to provide your own evidence of the movement of your boat whilst on the waterway (such as a movement log which may include photographs), we would consider it together with our own monitoring records. The provision of your own supporting evidence is a matter for you, you are not obliged to provide it, but if you wish to show that you are now complying with our rules for using the inland waterways, then you may take the view that your supporting evidence may be of assistance to you.

 

_______________________________

 

In light of the action taken against Andy Wingfield whilst moored to land NOT in C&RT ownership and in consequence C&RT having no control over mooring other than with regard to a vessel causing an obstruction, the highlighted sentence in the 28 July E-mail letter would seem to merit some kind of explanation.

 

There is also some notable inconsistency in the fact that C&RT have now declared their intention to resurrect their legal action against me for what amounts to stopping well short of what they were inviting me to do in these two E-mails, by now leaving the same boat on it's 'home' mooring, and not 'cruising' without a current PBC.

Edited March 8, 2016 by Tony Dunkley

[Mike Todd]

 

Reference the circumstances that Nigel has just mentioned in post #1184.

 

More like 'incitement to offend' rather than 'rehabilitation of offenders', . . . especially if sent to someone who is beyond redemption anyway.

 

This from C&RT on 23 July 2014 :~

 

Dear Mr Dunkley

 

Thank you for your email below. If the current absence of your boat from the vicinity of Holme Lock is an indication that you are starting to cruise that is encouraging. As we explained to you at court on the 4th of July 2014, our interest is in being satisfied that you cruise when you navigate your boat away from your home mooring on inland waterways controlled or managed by CRT. If you are keeping a record of your boats movement and the short periods of not moving your boat whilst on CRTs inland waterways and you provide us with these details, we can take these into account together with our own sightings to satisfy ourselves that you are cruising. It would be as helpful to you as it would be to us if you informed us of the current location of your boat. We would have to monitor the situation over a period and would have to have your assurance that you would not be reverting back to what has been the pattern of movement that led to your licence being revoked. We would only consider suspending the enforcement action if there is demonstrable evidence that you are willing to cruise. This could then progress to the issue of a new licence.

 

And this on 28 July 2014 :~

 

Dear Mr Dunkley

 

I refer to your email below.

 

Since your boat moved from the Holme Lock vicinity from 17^th July, we have not seen the boat as yet. We endeavour to check our inland waterways every 14 days. If in the course of those checks we do note over a period that any specific boat is not complying with the licence terms and conditions then the enforcement process may be followed; this is what happened in the case of Halcyon Daze resulting in the action we have taken to date. As our licence terms and conditions apply to the inland waterways we own or control, it follows that our checks are confined to those inland waterways. We do not check sections of rivers and waterways that are not within our ownership and control and we do not check marinas or other moorings where boats are moored off the waterway.

 

As stated in my email of 23 July 2014, if we find from our monitoring data going forward that over a period of time Halcyon Daze is cruising when it is on the inland waterway and not overstaying during stops whilst cruising then we would be willing to suspend the enforcement action. If you wish to provide your own evidence of the movement of your boat whilst on the waterway (such as a movement log which may include photographs), we would consider it together with our own monitoring records. The provision of your own supporting evidence is a matter for you, you are not obliged to provide it, but if you wish to show that you are now complying with our rules for using the inland waterways, then you may take the view that your supporting evidence may be of assistance to you.

 

_______________________________

 

In light of the action taken against Andy Wingfield whilst moored to land NOT in C&RT ownership and in consequence C&RT having no control over mooring other than with regard to a vessel causing an obstruction, the highlighted sentence in the 28 July E-mail letter would seem to merit some kind of explanation.

 

There is also some notable inconsistency in the fact that C&RT have now declared their intention to resurrect their legal action against me for what amounts to stopping well short of what they were inviting me to do in these two E-mails, by now leaving the same boat on it's 'home' mooring, and not 'cruising' without a current PBC.

They clearly have to steer a fine line between proving that you have not been compliant and you having to prove that you have. The former is necessary but the latter is not, short of having to rebut a claim to the contrary. Whilst they say that you do not have to supply the data, they then do say that you may wish to show that you are compliant. Of course you have no such duty absent a claim to the contrary,

 

Of course, your case is now rather different from the run-of-the-mill canal over-staying claim (and your situation as described in the cited letters) as your contest is over the nature of licensing on a river with PRN.

 

From other threads, the claim that marinas are not checked seems a bit in error. (Unless they mean that they don't do it because it is 'subcontracted' to the marina owners)

[valrene9600]

Boat checker told me he does marinas onn his patch once a month.

[Tony Dunkley]

They clearly have to steer a fine line between proving that you have not been compliant and you having to prove that you have. The former is necessary but the latter is not, short of having to rebut a claim to the contrary. Whilst they say that you do not have to supply the data, they then do say that you may wish to show that you are compliant. Of course you have no such duty absent a claim to the contrary,

 

Of course, your case is now rather different from the run-of-the-mill canal over-staying claim (and your situation as described in the cited letters) as your contest is over the nature of licensing on a river with PRN.

 

From other threads, the claim that marinas are not checked seems a bit in error. (Unless they mean that they don't do it because it is 'subcontracted' to the marina owners)

 

You have raised some points which are not entirely clear.

 

* What have you in mind that C&RT need to be satisfied that I am/was compliant with, and what sort of optional data do you mean ?

 

* What is an 'over-staying claim' ?

 

* What do you mean by ' the nature of licensing on a river with PRN ?

[Alan de Enfield]

Our marina is checked by 2, or sometimes 3 staff, most Friday afternoons in the Summer.

 

It is only 200 yards from the C&RT office but I cannot imagine why its only Fridays.

[NigelMoore]

They clearly have to steer a fine line between proving that you have not been compliant and you having to prove that you have.

 

This is past tense, and overlooks the central point Tony is making – he was not concerned with whether or not he should be obliged to provide evidence of his movement patterns, past, present or future.

 

What he is highlighting is that CaRT were asking, not for evidence [whether their own or Tony’s] of past movement, but for evidence of movements he would have to make over a period of time from the date of the letters, BEFORE they would re-issue a PBC. In other words they were demanding that he navigate illegally, having had his PBC revoked, for a certain period of time sufficient for them to be convinced that he was conforming to CC guidelines, even though not in possession of the relevant consent.

 

Despite, as it happened, his being at a home mooring that had always been accepted as such previously.

 

[Mike Todd]

 

This is past tense, and overlooks the central point Tony is making – he was not concerned with whether or not he should be obliged to provide evidence of his movement patterns, past, present or future.

 

What he is highlighting is that CaRT were asking, not for evidence [whether their own or Tony’s] of past movement, but for evidence of movements he would have to make over a period of time from the date of the letters, BEFORE they would re-issue a PBC. In other words they were demanding that he navigate illegally, having had his PBC revoked, for a certain period of time sufficient for them to be convinced that he was conforming to CC guidelines, even though not in possession of the relevant consent.

 

Despite, as it happened, his being at a home mooring that had always been accepted as such previously.

 

See also AD's intermediate post

 

I was trying to show the balance that has to be struck in the general case of over-staying (alleged or proven) on the basis of what was written in the two letters cited, in particular that of 28 Jul 14. Neither letter is well written and could have done with being better reviewed internally (one of the occasions that good legal advice might have helped!) before they were sent. I don't know, obviously, whether they were reviewed but it feels as if they were not.

 

As AD has stated, the letters themselves do not indicate how he was supposed the prove his ability to be compliant sand a valid licence (yet to be issued). Perhaps it was their intent, perhaps indicated in another letter?, that some form of temporary licence was envisaged as has been stated more generally as part of the current process. As I say, bad drafting at the very least.

 

However, I was more intent on pointing out the fine line between CaRT, on the one hand, alleging that someone has over-stayed and allowing them to rebut that allegation, and on the other hand stating that it is the boater's duty at all times to be able to prove that they are acting compliantly. Most boaters would not be in that position. Even retrospectively, the onus is to prove non-compliance, not to prove compliance.

 

However, and this is what I was also trying to highlight, I understood this to be academic in AD's case as his claim, as he describes it, is that he is compliantly moored long term and that he does not have to prove that he has established a suitable cruising pattern as demanded by CaRT in the letters. If that is his claim and if the court upholds that claim then the cruising pattern is not relevant, as applies to many other permanent moorers.

 

I suspect that there is then a greyer area in between that is mixed up with that basic issue: what form of document (licence, permit, registration, call it what you will) CaRT can require, and for what payment, in order for AD to move his boat away from what he claims is a valid mooring. That would then bring us into the area which does not seem to have been adequately resolved even on the simpler case of the canals of what is to be required of boats with a home mooring, as distinct from those without. It seems clear that a moorer with a home mooring still has to comply with limits on staying in one place (14 days or such other as designated) without the need to demonstrate a bona fide navigation.

 

Outside of a court, negotiation often involves getting the other party to disclose their 'red lines' first. In this case, AD ought to get CaRT to state which category they consider him to be in and on what basis. The line of argument then becomes clearer, before which there is a temptation on all sides to muddle the different requirements.

 

I would have thought that it would be better to resolve first the question of whether the boat is on a 'home mooring' or not, rather than to debate the compliance or otherwise of a cruising pattern. Depending on the answer to the first question, different evidence is needed to settle the second question. All of which is dependent on CaRT's ability to demonstrate that their requirement for a Rivers-Only document is enforceable. None of this is the same as other cases contested on the basis that a boat never enters the controlled waters if they remain permanently and validly moored out of the main channel.

[NigelMoore]

Indeed Mike, I was not taking issue with what you said, rather with the overlooking [intended or not] of Tony's point. There were no other letters that I know of; I do not believe they were drafted badly in terms of what they wished to say - they simply demanded that he demonstrate a period of cruising before isssuing a consent on that basis. It necessarily involved navigating contrary to Statute.

 

Prior to discontinuing that first action, they finally accepted that Tony had the required land-owner's consent to his mooring and issued his certificate based on Home mooring as before; there was never an issue with the status of the mooring itself - they revoked the licence on failure to conform to CC guidelines, then refused to accept his mooring because he had not used it, then refused to accept he had a right to it [despite having accepted it previously].

[Bod]

Wasn't Tony's home mooring at that time actually on EA waters, not C&RT waters?

 

Bod

[NigelMoore]

Wasn't Tony's home mooring at that time actually on EA waters, not C&RT waters

No, it was on the Trent.

[Bod]

Moored to EA land?

Or am I getting muddled up?

 

Bod

[NigelMoore]

Getting muddled. You may be thinking of the situation at Holmes Lock?

[waterworks]

What does " without prior consent" mean, as mentioned a while back ?

[NigelMoore]

What does " without prior consent" mean, as mentioned a while back ?

As in the terms of the usual Injunction Orders? The judges will assume it means that CaRT then possess the unilateral power to exercise their own discretion as to whether they give permission.

[matty40s]

It usually means you should have asked first but didn't.