CRT v Andy Wingfield Update

[Tony Dunkley]

They failed to have the Claim struck out.

 

The Master did strike out the Statement of Case, the material in which he said could be useful later in proceedings, but it was inappropriate at this juncture. He felt there was sufficient within the Particulars of Claim to found the case, and has given us a month to revise that into a more suitable format.

 

They have failed to block my assistance; probably galling them the most just now, but I do have to prove my worth with the revision.

 

Leigh is delighted: he thought at one stage we had lost, so was all the more tickled when it sunk in that we had achieved a 2:1 win and his case survives this first round of attack.

 

Great news Nigel, and I'm both delighted and relieved on Leigh's behalf.

I would think that having the SoC struck out with the proviso that it could be reintroduced into the proceedings at some point won't have done much for C&RT/ Shoosmiths confidence.

 

I'll continue badgering them about the delay in serving my now well overdue Court papers, not that it's likely to have any real effect, but it may at least add to their increasing discomfort, as well as further straining their excuse making inventiveness.

Edited March 24, 2016 by Tony Dunkley

[onionbargee]

 

Yes, they are fairly well hidden on the C&RT website in what they call their "publication scheme" [ that really should say 'scheming'] under 'Court action to remove boats from our waterways'.

There is a short passage of dishonest and nauseatingly hypocritical claptrap preceding the list, and it hasn't been updated since it was, apparently, 'edited' on 13 November 2015. The last entry is now for 20 March 2015.

Found it, thanks Tony.

Edited March 23, 2016 by canon7578

[NigelMoore]

 

Great news Nigel, and I'm both delighted and relieved on Leigh's behalf.

I would think that having the SoC struck out with the proviso that it could be reintroduced into the proceedings at some point won't have done much for C&RT/ Shoosmiths confidence.

 

I'll continue badgering them about the delay in serving my now well overdue Court papers, not that it's likely to have any real effect, but it may at least add to their increasing discomfort, as well as further straining their excuse making inventiveness.

 

CaRT are very mindful of pending cases such as yours, as was revealed in the hearing. It seems improbable [though not impossible] that they will be pursuing County Court trials that duplicate the issues, now that Leigh's case is progressing.

 

Although Shoosmiths had indicated to the Court last year that the case should properly be transferred to the County Court in the interests of costs, yesterday their QC acknowledged that it would be in their interests – if the case was to survive their Strike-out application - to keep it in the High Court to avoid the duplication of successive CC trials [many being in the pipeline] on the same issues, none of which would result in binding judgments. This will be cheaper for them in the long run [if they win of course].

 

It put me in the happy position of agreeing with the opposition entirely, although the Master pointed out to me some potential argument over my reliance on the Toll aspect, which he suggested I might want to look up. I don’t think it holds water particularly [from his precis], but it will be interesting to see – and it has not mattered anyway for this case.

 

So you may have plenty of opportunity to prolong your correspondence.

 

Interestingly, I caught a very faint hint from the Master's comments at one point, that he may have been researching the background beyond what each side's pleadings provided. He seemed aware of a groundswell of boater dissatisfaction with the way CaRT were applying s.8's in many cases, that was not in anything the parties had specifically mentioned. Perhaps he also, is reading the Forum? Unlikely perhaps, but it is indicative of more than usual care and interest being exercised.

 

[Sir Nibble]

Bump?

Anything happening? Maybe there is a slight crisis of confidence at castle shoesmith?

[Loafer]

Whassat? Oh yes. Any news?

[NigelMoore]

Whassat? Oh yes. Any news?

This is one for Tony I think. I will keep posting updates re: Leigh's case under the specific topic on that, as they become available - the Chief Master not returning until sometime later this month, no sealed Order is yet issued.

[bassplayer]

Bump?

Anything happening? Maybe there is a slight crisis of confidence at castle shoesmith?

Maybe he's moved on...

[NigelMoore]

Maybe he's moved on...

Andy? Yes he has - and unless he was of a mind to take action against his representatives (which I would not encourage for his own sake), then there will be no more directly relevant updates.

 

It is only the threatened action against Tony that would reprise the issues so neatly sidestepped in the eponymous proceedings of this topic.

[Phil.]

Can one assume that due to the lack of update in respect of Tony's situation, CRT/Shoosmiths are having second thoughts about the legality of what they are doing. I mean it has been quite some time now.

[NigelMoore]

They will not be having second thoughts about the legalities, they have always known what those were; they are more likely to want to reserve further action pending resolution of the Ravenscroft situation.

 

The next CMC hearing for that, will not be until July.

[Tony Dunkley]

I E-mailed C&RT's Head of Illegal Activities last week asking where the then 6 weeks overdue [beyond their stated deadline for me to remove my boat from a PRN river] Court papers had got to, but there was no response.

I then tried a few phone calls, including C&RT's 'in house' Solicitors, their 'in pocket' Solicitors [shoosmiths], and various members of the 'Enforcement Team' including the Head of Enforcement, Dense Yelland.

Whilst there was considerable disparity between the stories, the consensus amongst those prepared to speak was that a standard form of words Declaration and Injunction Claim had been filed at Nottingham County Court, and the delay in service was due solely to the Court's workload.

Edited April 10, 2016 by Tony Dunkley

[NigelMoore]

I rather think that they are obliged to serve the papers on you themselves, rather than leave it to the Court [what happened last time?]

[Tony Dunkley]

I rather think that they are obliged to serve the papers on you themselves, rather than leave it to the Court [what happened last time?]

 

Yes, that's so, the Claimant is responsible for service of the papers on the Defendant, and of course, to serve not only all of the papers, but to serve them promptly so as not to reduce further the limited time available to the Defendant to respond, failing which within the specified time limits, the Defendant loses the right to mount a Defence, and the misleading of the Court into believing that it is dealing with a genuine CPR Part 8 Claim is successfully wrapped up.

 

Last time [ in 2014] the 'Acknowledgement of Service' Form and the accompanying 'Notes for Defendant' conveniently [for Shoosmiths and C&RT] went missing from the papers sometime between them being collected from the Court Office and being served on me with only around some 48 hours, or so, of the 14 day response time limit remaining.

I have little cause to believe that they won't try the same tactics again, as this time, the avoidance of their having to argue the issues before a Judge is more of an imperative, rather than just simply desirable.

[Tony Dunkley]

This morning I received the following belated response to my E-mail of 22 March 2016 [ Post # 1215 in this Topic] :~

 

"Dear Mr Dunkley,

 

I believe the Trust’s position regarding the authority for boaters needing to have a licence on the River was clearly stated previously, in the attachment to the email which Graham Waldron sent you on 17 September 2015. I would therefore refer you back to it now for the explanation you have requested and I have attached a further copy, for your convenience.

 

The Trust is not seeking to rescind common law public rights of navigation (to the extent that they exist on this part of the River Trent), as you have alleged, however I am advised the Trust does have the statutory rights claimed and so the licensing (i.e. registration) requirement will be enforced if necessary.

 

Yours sincerely,

 

Denise Yelland (Ms)"

___________________________

 

To which I have replied :~

 

Dear Ms. Yelland,

I refer to the second paragraph of your 11 April 2016 E-mail in which you state that " The Trust is not seeking to rescind common law public rights of navigation".

Despite your denial, there is no escaping the fact that the Trust is declaring a belief that a specific vessel, namely 'Halcyon Daze Index No. 52721, is unlawfully located and moored on a PRN river.

Please explain the reasoning behind the Trust's claim that the above mentioned boat is on the river Trent ''without lawful authority'' and ''unlawfully moored'' at a location on the river Trent, whilst it is unarguably there as of right, and exercising the common law right of navigation.

Yours sincerely, A.K.Dunkley.

 

_______________________________

 

No response so far, but if C&RT can maintain their hitherto promptness in replying, then there could be something by early May.

Edited April 11, 2016 by Tony Dunkley

[Tony Dunkley]

 

Last time [ in 2014] the 'Acknowledgement of Service' Form and the accompanying 'Notes for Defendant' conveniently [for Shoosmiths and C&RT] went missing from the papers sometime between them being collected from the Court Office and being served on me with only around some 48 hours, or so, of the 14 day response time limit remaining.

I have little cause to believe that they won't try the same tactics again, as this time, the avoidance of their having to argue the issues before a Judge is more of an imperative, rather than just simply desirable.

 

Although, in light of the current High Court claim [Ravenscroft v C&RT] against them, I would have thought it would be very much to C&RT's advantage and benefit to keep arguments with regard to PRN rivers and the main navigable channels thereof as far away from Courts of law and the public domain as possible, they have now initiated proceedings, grounded on the same basic issues, against me in Nottingham County Court after more than 6 months of procrastination and prevarication.

This time they have tried a slightly different method of 'wrong footing' me before proceedings have got underway by serving the Claim papers, which have a 14 day time limit for filing a response, a full 21 days after they were issued and sealed by the Court.

 

The Claim was, as usual, issued under CPR Part 8, under which the Claimant "seeks the Court’s decision on a question which is unlikely to involve a substantial dispute of fact ", and is for the customary Declaratory and Injunctive Relief sought by C&RT in Section 8 and 13 actions.

Somewhat strangely for a Claim in which, by going via the CPR Part 8 route, C&RT are telling the Court, involves no 'substantial dispute of fact', the papers served include a seven page Skeleton Argument and an authorities bundle consisting of carefully chosen and edited extracts from some, but by no means all, of the relevant inland waterways legislation.

 

On being served with the papers last Friday, 22 April 2016, I did wonder if they had finally made the decision to proceed against me now as a sort of 'dry run' for their arguments re. PRN and the main navigable channel in the forthcoming High Court hearings. However, having now read through the skeleton and the accompanying bundle a few times, it does appear that their intention is to attempt to avoid the PRN issue altogether by demonstrating that the part of the Trent Navigation [ in which my mooring is located ] from Shardlow to the tail of Meadow Lane lock in Nottingham is included within the schedule of canals for which the PRN was extinguished under the 1968 Transport Act.

 

To this end they have included in the authorities bundle the full schedules, from the 1968 Act, of both Commercial and Cruising Waterways, one of which [cruising waterway] is the Trent from Shardlow to the tail of Meadow Lane lock in Nottingham, whilst carefully omitting Sections 5, 6 and 7, and Schedule 1 [River Waterways upon which there is a common law public right of navigation and therefore NO Licence required] of the 1971 BW Act, and Section 36(2) of the 1974 BW Act.

Section 5(1) of the 1971 Act requires that any pleasure boat kept or used on a river waterway must have a current Pleasure Boat [registration] Certificate, as distinct from a Licence, which is deemed to be acceptable alternative, and NOT compulsory, proof of registration. Section 36(2) of the 1974 BW Act amends Schedule 1 of the 1971 Act by the addition of the Trent Navigation from Shardlow to the tail of Meadow Lane lock.

Edited April 26, 2016 by Tony Dunkley

[Alan de Enfield]

Keep up the pressure on them.

Maybe it is 'good' that it is finally coming to a 'head' and you can win your day in court and get on with your life.

[BMC problems]

What will you do about the time limit scam?

 

Is there an avenue of complaint / redress that they are attempting a Part 8 procedure when it should be fairly obvious to anyone reading your correspondence with CRT that this will be contested?

[Phil.]

Yes it is interesting about the time limit scam. If added to the previous occasion where I believe it was left until the last minute and served incomplete, I would suggest that on the balance of probabilities alone, something at the very least grossly unprofessional, if not necessarily unlawful is occurring and the matter should be brought to the attention of the court.

Edited April 26, 2016 by Phil.

[Giant]

Tony, I hope that you are contacting the court this morning to inform them of the late service. I expect it will be an uphill battle to complain the service was late once the proceedings are further along.

 

Perhaps the Bar Standards Board might also be interested if this is a repeated pattern of behaviour.

 

I think they might be correct about the case not involving a substantial dispute of fact. As I understand it, there is a distinction between disputes of fact and disputes of law. Whether your boat has been moored where they say it is would be a dispute of fact. Whether it is legal for it to be there would be a dispute of law.

[NigelMoore]

You will need to check up on this Tony, because I am talking on the hoof as it were – but I believe you will have the full time limit to respond dated from the time of service, not the date of Court sealing of the Claim. So there should be no problem - supposing only, of course, that a court date has not been already set as per last time, by reason of the Part 8 procedure..

 

I had thought there were stricter time limits for serving Claims once sealed, but in my case against Hounslow Council I discovered that it could in fact be left for some months [or quietly dropped of course, without involving the defendant in any costs whatever].

 

This time around, if you do not wish them to be in a position to once again discontinue the case at their whim/convenience, you would need to file a Counter-Claim along with your formal objection to the Part 8 procedure. That way, they could never unilaterally desist, and would have to face your own claim.

 

Despite my experience of the legal convolutions indulged in, I am having difficulty in believing that your analysis of their case vis-a-vis the status of your section of the Trent can be correct.

BW legislation uses the terms: “Inland waterways”; “Commercial waterways”; “Cruising waterways”; “Remainder waterways”, and “River waterways”. Whereas “Inland Waterways” is expressed as embracing everything to do with ’the track’ – i.e. towpaths, service buildings, locks etc, etc, [and presumably this applies also to “Remainder waterways”], the definition of “Commercial”; “Cruising”, and “River waterways” all confine that term to the particularised main navigable channel of each specified length.

 

ALL of the “River waterways” are embraced within the 1968 lists of either “Commercial” or “Cruising” waterways – so how does that help them isolate your stretch from the rest?

[NigelMoore]

I think they might be correct about the case not involving a substantial dispute of fact. As I understand it, there is a distinction between disputes of fact and disputes of law. Whether your boat has been moored where they say it is would be a dispute of fact. Whether it is legal for it to be there would be a dispute of law.

 

No, while in many s.8 cases there will indeed be no dispute as to the facts, in this instance there are very substantial disputes of fact.

 

The central dispute lies over the physical extent of the ‘main navigable channel’ on the section of the Trent where Tony moors. There is no dispute over whether registration is required while within whatever the ‘main navigable channel’ comprises – had there been, that would involve an interpretation of the law.

 

Not that interpretation of points of law do not come into this dispute, because they certainly do; but the dispute crucial to the general outcome re: registration requirement is a factual one.

[Giant]

The central dispute lies over the physical extent of the ‘main navigable channel’ on the section of the Trent where Tony moors. There is no dispute over whether registration is required while within whatever the ‘main navigable channel’ comprises – had there been, that would involve an interpretation of the law.

I was thinking of that more as a dispute of law rather than a dispute of fact - the question being about the interpretation of the term "main navigable channel", rather than e.g. a dispute over how many metres the boat extended into the river.

[NigelMoore]

I was thinking of that more as a dispute of law rather than a dispute of fact - the question being about the interpretation of the term "main navigable channel", rather than e.g. a dispute over how many metres the boat extended into the river.

 

Yes, I understood that to be your tentative position; it is an arguable point of view – the question of fact remains: is he or is he not, in the main navigable channel?

 

I still do not think that the difference of opinion over correct interpretation of the phrase detracts from that, for the purposes of determining which procedure is applicable.

 

A typical lawyer’s wrangle perhaps.

[onionbargee]

Seeing as Tony has various maps and official documents proving what the navigable channel is and is not, some fromBW/ CRT themselves, I can't see why CRT are wasting more money on fighting this issue, they seem determined to spend whatever it takes in legal fees to prove the unprovable.

[Tony Dunkley]

C&RT's already long drawn out and ponderous Claim against me for a Section 8 and 13 boat removal Declaration and Injunction was struck out on Wednesday morning last at Nottingham County Court, and they have been given 7 days to apply for the Order to be set aside.
For reasons which I'll explain in a few days time, I'm not going to publish any more information about what what went on, for the time being, except to say that there are indications that they are very anxious at the moment to avoid airing their arguments with regard to the PRN, and their contention that boats kept moored and out of commission on private moorings outside the main navigable channel of a scheduled river must be 'licensed'.