Appeal Court hearing: Are CaRT bound by the HRA?

[NigelMoore]

Simplistically titled; they are, of course, but the lower court judgments in CaRT v Jones agreed that CaRT should be treated the same way as local housing authorities are, by the courts – the rationale behind their decisions to take actions otherwise in breach of the HRA is not to be questioned; their reasons should be taken as being the result of sound management decision making processes in accordance with law.

The effect is to remove HRA arguments against s.8 actions.

Mr Jones was given Leave to Appeal to a full hearing at the Court of Appeal by Lord Justice Lewison. This will be heard within the next week. I will see if I can make it to the hearing. It will be slightly awkward, because this is the one where the potentially useful material from my own Case could have been pivotal, but CLP were insufficiently interested, and considered they would be doing me a favour by reading it, rather than looking for anything in it that could help them.

The fact that the High Court had made findings that BW were in breach of the HRA ought to have at least piqued their curiosity, and been seen as very pertinent precedent argument for the standard presumption to be set aside in these cases with their successor.

I do not know who is representing Mr Jones as Counsel; one might sincerely hope that someone effective is used, but I am not in the least sanguine about this. It seems doubtful that CLP are even aware that the current High Court Ravenscroft case engages relevant arguments.

[onionbargee]

When i contacted CLP about Tadworth they did not know or want to know the difference between the requirements for licences with moorings or licences as CC'ers. A total waste of time in my case.

[Tam & Di]

It sounds as if dangerous precedents might be created.

[alan_fincher]

For the uninitiated, where you refer to "CLP" without decoding that three letter abbreviation I assume you are referring to this firm?

 

Community Law Partnership

 

Am I correct, please?

[NilesMI]

But, surely... that a case will be heard at the Court of Appeal is, on the face of it, a good thing because it will set a precedent.

[NigelMoore]

For the uninitiated, where you refer to "CLP" without decoding that three letter abbreviation I assume you are referring to this firm?

 

Community Law Partnership

 

Am I correct, please?

Sorry, that was careless presumption. Yes, you are correct.

[Richard10002]

Presumably CLP are acting for Mr. Jones, but the barrister handling the appeal on their/his behalf will be completely independent of them. Assuming this to be the case, if you were able to attend with your bundle of papers, the relevant parts marked, the barrister might find them extremely useful in supporting the appeal.

 

I have often found barristers quite dismissive of their clients solicitors, so I dont think you would be treading on anybodys toes if you did this, (nor should you care if it's the right thing to do).

 

Clearly, if you can identify Counsel in advance, you can email or post your stuff in advance.

[NigelMoore]

But, surely... that a case will be heard at the Court of Appeal is, on the face of it, a good thing because it will set a precedent.

The precedent was already set by the High Court when it decided on the first appeal against the County Court judgment.

 

It is 'dangerous' because it stamps Court approval on the removal of an invaluable control over the exercise of power. The HRA does not prevent the exercise of powers affecting people's rights - so long as that encroachment is considered necessary for a well governed society, and the usual test will (or should) be whether or not some less onerous recourse is available to the authority.

 

If a less onerous avenue of enforcement is available to an authority than some more draconian action, then the choice of the more onerous option is unnecessary and in breach of the HRA.

 

An Appeal Court confirmation that CaRT are not required to justify their choice of maximum sanctions would mean that CaRT can freely continue with their policy of ignoring the specific penalties for offences, in favour of boat seizures as the sole enforcement tool.

 

Doubtless, some will cheer them on, but it is an abuse of power when inappropriately applied, for all that it might cater to a taste for massive retaliation.

[NigelMoore]

Presumably CLP are acting for Mr. Jones, but the barrister handling the appeal on their/his behalf will be completely independent of them. Assuming this to be the case, if you were able to attend with your bundle of papers, the relevant parts marked, the barrister might find them extremely useful in supporting the appeal.

 

I have often found barristers quite dismissive of their clients solicitors, so I dont think you would be treading on anybodys toes if you did this, (nor should you care if it's the right thing to do).

 

Clearly, if you can identify Counsel in advance, you can email or post your stuff in advance.

 

Sadly, I have blotted my copybook previously with this firm, in doing what I thought to be the right thing regardless of toe-treading, and the reaction of the barrister used on that occasion was far worse than the solicitor’s! I would question also, the idea that a barrister is entirely independent of their instructing solicitors.

 

It is way too late in the day to provide effective material now, even if I knew who the appointed barrister was going to be. I did try some months back to point relevant people in the right direction for viewing the precedent hearings and judgments, and just maybe that back-door approach did the trick.

 

Any half decent barrister should recognise the issues anyway: first off, the question should be posed as to whether the organisation has a history of abuse of the HRA – which CaRT does [so the normal presumption should not apply]; second, the question should be posed as to whether less onerous sanctions are available for the authority to use in respect of a particular breach of the law – which there are [so that use of the most draconian sanctions, even if otherwise applicable, are disproportionate].

 

A third pertinent question should be posed as to the desired effect of the sanction – does it contribute to the more fair governance of the system, and promote through increased revenue the better maintenance of the system? The enforcement of payment for boat licences, for example, is cheaper and quicker than removing boats from the system, resulting in increased revenue. If the preferred option is more deleterious financially, then that is a further dent in the credibility of the rationale for such decisions.

 

[onionbargee]

Do CRT pursue the payment of owed licence fees in the section 8 process ? Do they even pursue the payment of the legal costs awarded by the court in the court order ?

 

The section 8 process seems to be about moving as much public money over to Shoesmiths as possible ?

[NigelMoore]

Have heard that this case has now been adjourned to later in the year. The Court must be busy.

It will not be the same barrister as represented Andy Wingfield, it will be another specialist in [amongst a few other things] Judicial Review and Human Rights.

[NigelMoore]

Do CRT pursue the payment of owed licence fees in the section 8 process ? Do they even pursue the payment of the legal costs awarded by the court in the court order ?

 

The section 8 process seems to be about moving as much public money over to Shoesmiths as possible ?

 

 

Sometimes; see some of the earlier Orders as listed on CaRT’s website. It would be odd if they did for most cases – the whole point of s.8 being to remove the boat from the waterway, insisting on payment for the right to remain would seem counter-productive. This would be especially true in those instances where the boater had been fully paid up but had their licence refused/revoked.

 

However: one of the ‘odd’ elements in Leigh’s case, was that they insisted, not only on payment of past years’ fees, but for the then current year extending some months into the future – yet refusing permission to put his effectively licensed boat back in the water! So they got paid for the certificate but would not allow him to use it.

 

They pursue the legal costs if they believe there is any chance of recovery; it seems as though, in cases where worthwhile boats are involved, they insist on repayment of the court costs as a condition of releasing the boat back to the owner. This is what they attempted both with Leigh Ravenscroft and with Geoff Mayers [though with Geoff they ended up acknowledging that they were not entitled to do this].

 

Only 9 seized boats were returned to owners after payment during one period since CaRT took over; the records I have seen do not indicate whether the payments for retrieval included court costs &/or licence fees. A minority of those 9 went back on CaRT water.

 

[onionbargee]

If the court order includes an order for the payment of costs, does the claimant ( CRT) have to pursue this if they are not paid ? Or is it the court who pursues the defendant for the payment ?

 

Is there a time limit to costs being pursued ?

[NigelMoore]

If the court order includes an order for the payment of costs, does the claimant ( CRT) have to pursue this if they are not paid ? Or is it the court who pursues the defendant for the payment ?

 

Is there a time limit to costs being pursued ?

A court order for costs is not pursued by the court. This must be chased up by the creditor as with any civil debt. It could involve a follow-up enforcement order and bailiff action.

 

There is no time limit. A bankruptcy or winding up petition can be lodged against the debtor at any time in the future, when a formerly impecunious debtor has perhaps accumulated worthwhile assets.

[NigelMoore]

I am posting an update on this, because I have only just come across the published judgment of the first appeal [which was the subject of what I think is a still ongoing second appeal to be heard early next year]. This very short judgment puts a whole different complexion on the issues, that does not quite gel with the above impression I had formed [as per the OP] from the published commentaries to date.

 

What the judgment does make clear though, is the very clever manipulation of case management for which Shoosmiths are renowned experts. Unless the point at issue is directly and very accurately identified, judges get asked to pronounce upon tangential issues that can have the opposite effect of what should happen.

It was interesting, by the way, to read a newly emergent appellation of the ‘CC Licence’, which has now become the “Continuous Navigation Licence”.

What emerges from the appeal judgment [if that is to be considered an accurate appraisal of the facts] is that Mr Jones did NOT argue the application of the HRA as demanding a proportionality test per se; rather he had argued that because of the HRA, CaRT ought to have considered his housing needs in reaching their decision to terminate his licence.

If that was indeed the burden of his argument – instead of claiming that the proportionality issue in general effect should be addressed – then I have to say I understand the failure on the point. I had not realised that the boater had been so explicit re the housing question; I had thought that it was CaRT’s argument that they should be treated in the same way as housing authorities – i.e that their decisions should not be questioned by County Court judges, who according to a Supreme Court judgment cannot be expected to take time over such questioning.

If that had been the burden of the decision, I would have [and have done] objected strenuously, because the proportionality issue is of considerable importance – to the extent that IF CC Judges cannot be expected to take this into account, then they are improper adjudicators on so important an issue, and s.8 cases should never be brought before them.

However this was NOT the case. The judge at appeal declared rather: “As a public body which is not a housing authority, the trust cannot owe any duty to the Appellant in relation to his housing needs under Article 8. Accordingly any test to be applied to a local authority housing department would not apply . . .” [my bold]

Thus far, I would be in complete agreement. However the judge did, in my opinion, start to go off the rails with the content of my ellipsis, which concluded: “. . . no proportionality argument, however it is to be determined, can arise.”

This got worse when she went on to say [respecting the CCJ] “Nonetheless the learned Judge went on to consider whether the Article 8 point might raise a triable issue. In an ex tempore judgment the learned Judge determined that the Trust could not be expected to investigate or deal with the Appellant’s Article 8 rights as the burden imposed would be too great.” She upheld that reasoning.

The question, then, is whether in that Appeal judgment, the Judge was upholding the finding that the PARTICULAR reliance on the A.8 point could be dismissed, or whether she was upholding a finding that ANY A.8 defence could be dismissed. Whichever, it is a finding on the A.8 point [re: right to a home] only, NOT on the application of the HRA requirement for universal proportionality of actions offensive to the HRA, however lawfully provided for in national statute. It is all too often the case [in fact it is EVERY case thus far to my knowledge – apart the Ravenscroft case] that A.8 is the only HRA issue raised, and so they become vulnerable to the dismissals exampled in the Jones case.

This overlooks the equally important issue of Article 1 Protocol 1 of the HRA, to do with protection of property. That avoids the whole vexed question of whether CaRT is or is not a housing authority, and hence whether housing needs ought to be brought to bear in the decision making process.

In fact, the whole question of proportionality becomes a very much simplified one; the sole question that need arise in such a context is whether [as i commented earlier in this thread] any less draconian remedy for the offence is within the authority’s remit – if so, then the HRA should bite and the alternative applied that does NOT involve breach of the HRA.

This is a hasty analysis of the effect of the judgment; I would be interested to hear consider appraisals from others –

www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2015/534.html&query=(British)+AND+(Waterways)+AND+(Board)+AND+(v)+AND+(National)+AND+(Rivers)+AND+(Authority)

[Chewbacka]

I had a read through the appeal judgement and concluded -

 

Facts

1) CRT is NOT a housing authority

2) The Appellant only held a continuous navigation licence

3) The appeal was considering only the applicability of the HRA relating to assessment etc of housing needs and proportionality of actions taken.

 

This then resulted in judgement -

 

1) CRT is not a housing authority and therefore has no duty to the appellant in relation to his housing needs

2) Therefore as Article 8 does not apply, there is no proportionality argument to be considered.

 

This last bit is very important for future claims as he did say that " and no proportionality argument, however it is to be determined, can arise"

It was also interesting that he said "It may be that he encouraged false hope by suggesting that the competing arguments were "finely balanced". They are not."

 

So the arguments are not balanced and it is clear that in future claims that Article 8 does not apply, therefore proportionality arguments under article 8 are also bound to fail.

[NigelMoore]

That is how I read it too, although it worries me slightly that the "no proportionality" claim carries only implied relevance solely to the housing issue.

 

The High Court "he" is a "she" by the way, just in case she might take offence.

 

Why it is taking so long to come before the Appeal Court is an interesting question; I have to wonder whether other related issues are being considered first. Currently it is expected to be heard early this coming year.

[Chewbacka]

The judge was ruling on the appeal and the appeal case was concerning the housing issue hence only ruled that in this case proportionality could not be considered as Article 8 was not applicable as CRT is not an housing authority. There was nothing implied, it was - I think - intended as a statement of fact.

 

As to the applicability of proportionality to other and different situations, the learned judge was not asked to consider these.

[Chewbacka]

So your comment -

Thus far, I would be in complete agreement. However the judge did, in my opinion, start to go off the rails with the content of my ellipsis, which concluded: “. . . no proportionality argument, however it is to be determined, can arise.”

 

to me is not logical as if Article 8 is not applicable then a proportionality claim from article 8 must also fail. The comment 'however it is determined' relates - I think in this case-only to a proportionality claim based upon article 8. Of course a proportionality claim brought for other valid reasons could be progressed but that was not within the appeal claim.

Edited December 28, 2016 by Chewbacka

[Sir Nibble]

Is this not highly significant in the firm determination that CaRT is not a housing authority?

[NigelMoore]

So your comment -

Thus far, I would be in complete agreement. However the judge did, in my opinion, start to go off the rails with the content of my ellipsis, which concluded: “. . . no proportionality argument, however it is to be determined, can arise.”

 

to me is not logical as if Article 8 is not applicable then a proportionality claim from article 8 must also fail. The comment 'however it is determined' relates - I think in this case-only to a proportionality claim based upon article 8. Of course a proportionality claim brought for other valid reasons could be progressed but that was not within the appeal claim.

 

I took on board both the logical progression and the context – hence going on to say: “Whichever, it is a finding on the A.8 point [re: right to a home] only, NOT on the application of the HRA requirement for universal proportionality of actions offensive to the HRA . . .”

 

Nonetheless I am darkly suspicious when judges so draft their judgments as to leave isolated sound-bites that can be quoted out of context to convey more than [hopefully] intended. Perhaps I am getting too cynical.

 

The more I think about this judgment though, the less I care for the reasoning anyway. I do not see why an authority should be free to disregard the impact of their actions on any of the protected rights, just because they are not specifically authorised to provide those.

 

CaRT is not obliged to provide cheap boats for pleasure use either, for example – does that free them from considering Article 1?

 

There is in fact a Human Rights Act Check List CaRT employees are supposed to work through before passing s.8 cases on to Shoosmiths, the existence of which I only learnt yesterday. I would be interested to see what that comprises.

[NigelMoore]

Is this not highly significant in the firm determination that CaRT is not a housing authority?

 

It certainly confirms the obvious in that respect. Why that should be highly significant I don’t know. I am aware that there are those who consider that CaRT have some sort of responsibility to provide “housing” in the form of specifically catering for live-aboards, but I do not see it myself.

[NilesMI]

CaRT is not obliged to provide cheap boats for pleasure use either, for example – does that free them from considering Article 1?

 

The HRA makes it unlawful for a public body to act in a way which infringes a persons rights under the ECHR. So is CRT a public body or not?

 

In some respects it must be, as it carries out the statutory functions of a navigation authority, on behalf of the state. In other respects it acts as a private company and in yet other respects, as a charitable organisation.

 

Article 1 (of Protocol 1) of the ECHR concerns the right of the individual, versus the state, to own and enjoy property without hindrance, e.g. arbitrary confiscation. It is not an absolute right. The state can deprive someone of ownership or use of their property where necessary in the general interest and specifically to secure the payment of taxes, contributions or penalties. If an agent of the state deprived someone of their property, it would prima facie be an infringement of that person's Convention right and it would be justiciable under the HRA. If a private company or an individual deprived someone of their property, it would prima facie be theft.

 

In what respects to you think CRT should be considering their actions under Article 1?

[NigelMoore]

 

The HRA makes it unlawful for a public body to act in a way which infringes a persons rights under the ECHR. So is CRT a public body or not?

 

In some respects it must be, as it carries out the statutory functions of a navigation authority, on behalf of the state. In other respects it acts as a private company and in yet other respects, as a charitable organisation.

 

Article 1 (of Protocol 1) of the ECHR concerns the right of the individual, versus the state, to own and enjoy property without hindrance, e.g. arbitrary confiscation. It is not an absolute right. The state can deprive someone of ownership or use of their property where necessary in the general interest and specifically to secure the payment of taxes, contributions or penalties. If an agent of the state deprived someone of their property, it would prima facie be an infringement of that person's Convention right and it would be justiciable under the HRA. If a private company or an individual deprived someone of their property, it would prima facie be theft.

 

In what respects to you think CRT should be considering their actions under Article 1?

 

There never has been any question but that CaRT, though a private company, nonetheless as a body wielding powers involving the exercise of public functions, IS subject to the HRA – as you rightly deduce.

 

The exercise of s.8 powers deprives individuals of their property, hence engages the HRA. As a lawful power if wielded for the designed purpose, the issue of proportionality is one CaRT are legally compelled to consider. The question to be asked in all the circumstances is whether some less draconian action would remedy the perceived affront to the legitimate purpose. If so, then the lesser action is mandatory.

 

If the charge against a boater is that there has been a failure to pay the legitimately demanded licence fees, then the s.8 process does not address that, unless - in live-aboard cases that reach a court - the judge happens to be sufficiently far-sighted to order payment of those fees to prevent seizure of the boat [which can, in any event, be moved by the owner off CaRT waters instead]. Such judges are few and far between, and anyway are actually providing a means to avoid the carrying out of s.8, rather than approving its use for the purpose of fee recovery.

 

If the recovery of those owed fees is seen as the purpose of using s.8 then that is illegal anyway; supposing for the sake of argument that it was a legitimate avenue to do so, the proportionality test would demand that the boater be either sued in the Small Claims procedure, or alternatively prosecuted in the Magistrates Court.

 

Whether those alternatives were more proportionate in an individual case would doubtless be determined by the value of the boat in question; seizing and selling a £50 dinghy would be a lesser infringement of the property rights than a £1,000 fine plus fees owed plus costs, but a £30,000 boat would present a different criterion.

[NilesMI]

Whether the issuing of an s.8 notice and subsequent seizure of a boat is proportionate, in the circumstances, is not necessarily a question of infringement of Article 1. In consideration of that, the question of proportionality would be a different one, namely; that of whether the seizure was proportionate to the maintenance of the waterway in the public interest.

 

It could be that in a particular case, the seizure of a boat was disproportionate in its effect and consequences for the boat's owner, while being proportionate to the maintaining of the general or public interest, or indeed, vice-versa. You have to keep the two tests of proportionality quite separate.

 

But I agree that in general, the fact that s.8 can deprive someone of their property means that you have to consider whether a Convention right could be infringed. So the first thing to look at is whether s.8 itself is compatible with Article 1.

 

Article 1 does not confer the absolute right to own and enjoy property and s.8 is not intended to permanently deprive someone of their property. In principle it allows a boat to be seized and removed from the waterway, but that the boat owner becomes liable for the consequential costs. Where the owner pays those costs and can satisfy CRT that he is the rightful owner of the boat, he can retrieve it. Given the fairly wide appreciation the ECtHR gives to states to make laws where there is a general or public interest, it would seem unlikely that s.8 itself would be found to be incompatible with Article 1.

 

Loss of property may arise where an owner cannot pay the consequential costs of removal of the boat, so you would have to turn your attention to a particular case to see whether each test of proportionality had been met. Where CRT deliberately choose to incur high costs in removal and storage of a seized boat, there would be a case to be made that their actions were disproportionate in their effect and maybe made it unavoidable that the property would be lost - e.g. where those costs approached or exceeded the value of the boat. You may also be able to make a case that by incurring a disproportionate cost, CRT had used the process of s.8 to effectively impose a punitive charge on the boat's owner and that Article 6 had been infringed.