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Nigel,

 

that looks like a fair summary, which boils down to "All the various questions of liens, and Statute of Marlborough etc are moot points unless the main plank of the CRT argument fails"

 

CRT have a contract with the owner, that allows them to do certain things. It is suggested that the terms of that contract are sufficiently onerous as to fall foul of the Unfair Terms in Contracts Act, an argument that may have some merit.

 

What that means as of now is that CRT have acted in a way that is consistent with their rights in a contract. They have not used any statutory powers. The fact that it has been suggested that the terms of the contract may be unenforceable doesn't make tem unenforceable. Basically, until a court rules that the contract is deficient it must be presumed to be valid (rather that assuming it to be defective until approved by a court).

 

The upshot is that CRT's actions, however illogical, mean spirited and vindictive people may think them are CURRENTLY lawful.

 

If a court subsequently decides that parts of the contract are unenforceable, CRT will have to undo anything they have done that relies upon those bits of the contract.

 

The man signed a contract with CRT. That contract gave CRT power to do various things if he didn't pay. CRT have done those things.

 

Nothing illegal there. If you want to describe their actions as Harsh, or petulant, then I might even agree with you, but they are NOT illegal.

 

The fact that something is written in a contract does not mean that it is legal, nor does the fact someone signed that contract make it legal. As I understand it just because something is in a contract does not make you give up your rights under the law. Rather think you will find that the law specifically protects people from unfair terms in a contract and will over rule them,

 

 

 

 

As I understand it, if a court decides parts of a contract are unfair, the whole contract is set aside.

 

Wrong only those terms that go against the law. The rest of the contract stands.

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The fact that something is written in a contract does not mean that it is legal, nor does the fact someone signed that contract make it legal. As I understand it just because something is in a contract does not make you give up your rights under the law. Rather think you will find that the law specifically protects people from unfair terms in a contract and will over rule them,

 

 

 

Wrong only those terms that go against the law. The rest of the contract stands.

What rights have I got to trespass once I've been asked to leave?

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That C&RT have laid themselves open to challenge under the Unfair Contracts Act 1977 is not the essential point.

 

They are in dire trouble with regard to the seizure and their stated intentions post seizure, simply because their actions would have been lawful ONLY in the circumstance of their Berthing Agreement T&C's prevailing over statute, . . . which is why they have now brought Shoosmiths in to try and bluster and bullshit their way out of the hole they've dug themselves into, . . . like this :~

 

E-mail letter, Wednesday 28 September 2016 at 1256hrs :~

 

Dear Mr Dunkley

 

As Canal & River Trust confirmed to you by email yesterday, we are instructed to act on their behalf in relation to this matter.

 

Mr Alan Roberts entered into a licence with Canal & River Trust for the berthing of his vessel, “Planet Light Vessel” (“the Vessel”) dated 15 April 2014 (“the Agreement”).

 

Pursuant to section 10.1 of the Agreement, upon termination of the licence (whether by effluxion of time or otherwise) Mr Roberts was required to remove the Vessel from Liverpool Waterfront, failing which Canal & River Trust are entitled (amongst other things) to sell the Vessel (and property thereon) without prior notice to Mr Roberts. Further, it permits Canal & River Trust, at its sole discretion, to determine and deduct the costs and expenses of and incidental to such sale (including the costs and expenses of storage and insurance pending sale) from the proceeds of sale. In the event of a breach of the Agreement, section 8.1 of the Agreement permits Canal & River Trust to take possession of the Vessel and/or to move the Vessel and/or to take such other action of whatsoever nature in relation to the Vessel as the Harbour Manager may in his sole discretion determine, without prior notice to Mr Roberts.

 

Your email is therefore misconceived; Canal & River Trust have not removed the Vessel pursuant to a lien as you state and therefore the Torts (Interference with goods) Act 1977, and requirement to serve a notice thereunder, is not relevant. Canal & River Trust have taken possession of the Vessel pursuant to their contractual rights under the Agreement, following Mr Roberts’ breach of the Agreement by failing to remove the Vessel following termination of the Agreement; Notice was given to him to remove the Vessel in letters dated 15 April 2016 and 5 August 2016, even though no such requirement is necessary under the Agreement. No prior court order is required. It is therefore denied that Canal & River Trust have acted unlawfully.

 

Yours sincerely

 

 

Lucy Barry
Associate

Solicitor-Advocate

SHOOSMITHS LLP

Edited by Tony Dunkley
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What rights have I got to trespass once I've been asked to leave?

 

None whatsoever.

 

The boat owner’s rights under the circumstances are limited to the statutory protection against disproportionate sanctions being taken against him, rather than simple eviction.

 

My position on that is that the contract terms should not over-ride those statutory protections, to the purported effect that CaRT have freedom to exercise their unilateral discretion as to what they do with the boat, no matter how unreasonable and disproportionate to the offence.

 

I have yet to see definitive case law on this though.

 

- Tony has just posted much the same sentiment I see. If a contract purports to give rights to an action that is unlawful, the contract is necessarily void; the question, I suppose, is whether anybody can voluntarily give up the protection of law?

 

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None whatsoever.

 

The boat owner’s rights under the circumstances are limited to the statutory protection against disproportionate sanctions being taken against him, rather than simple eviction.

 

My position on that is that the contract terms should not over-ride those statutory protections, to the purported effect that CaRT have freedom to exercise their unilateral discretion as to what they do with the boat, no matter how unreasonable and disproportionate to the offence.

 

I have yet to see definitive case law on this though.

 

- Tony has just posted much the same sentiment I see. If a contract purports to give rights to an action that is unlawful, the contract is necessarily void; the question, I suppose, is whether anybody can voluntarily give up the protection of law?

 

I would suggest that an individual can voluntarily give up the protection of the law otherwise Boxing as a sport would cease to exist.

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- Tony has just posted much the same sentiment I see. If a contract purports to give rights to an action that is unlawful, the contract is necessarily void; the question, I suppose, is whether anybody can voluntarily give up the protection of law?

 

It has always been my understanding that you cannot even willingly give up or sign away your statuary rights in law. In much the same way that ignorance of the law is no defence if you do something illegal without realising it. I don't have a reference for it though.

 

I could not legally sign a contract that says, I agree to be paid less than the minimum wage for instance.

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In the context of this debate I found this paper interesting and informative:

 

http://www.39essex.com/content/wp-content/uploads/2015/07/Exclusion-Limitation-Clauses-in-Business-Contracts-Presentation-Paper-JM-Bellamy.pdf

 

Paragraph 21 in particular is interesting as it suggests that the burden of proof that a contract limitation or exclusion clause is "fair and reasonable" will always lie with the party seeking to rely on it. In the absence of such proof the term will inevitably be found unfair.

Assuming that the summary you cite is generally correct and accepted, it offers two important elements to this debate:

 

1. It is generally assumed that two business negotiate in good faith and unless shown otherwise that they agreed terms that were the best test of fairness (I assume that is a kind of perfect market in economic terms)

 

2. It is the liability at the time of signing that matters not at a later date when a breach is being pursued.

 

Most of the debate in earlier posts seems to relate to those aspects that govern contracts where one party is a consumer rather than a business.

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I would suggest that an individual can voluntarily give up the protection of the law otherwise Boxing as a sport would cease to exist.

Why? What is otherwise illegal about boxing?

 

It is not a sport I enjoy but I am not aware of having to sign any rights away to participate.

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Why? What is otherwise illegal about boxing?

 

It is not a sport I enjoy but I am not aware of having to sign any rights away to participate.

Provided that it is fought under Queensbury rules the fighters cannot later prosecute their opponent for injury caused during a bout (several have suffered serious head injuries and even death over the years). They therefore agree to fight under Queensbury rules which removes their legal protection from assault (and protects them from charges of assault). As a private individual I cannot consent to a GBH injury to myself however a boxer can under these rules. And no it isn't a sport I particularly enjoy either, it was merely an illustration of an example of voluntarily giving up legal protections.

 

ETA if you choose to participate in bare knuckle fighting not under the Queensbury rules you are liable to prosecution for assault.

Edited by Wanderer Vagabond
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I can admit that I have evicted boats myself, for various reasons including non-payment of fees, and have done so according to my own T&C’s [largely incorporating the BMF template] with as little as 48 hours notice in one extreme case.

That extreme case had the potential to turn nasty, but the boat owner bowed to the inevitable when I gave him a choice of where I towed him. I could have dropped him off at the towpath opposite [i had warned BW beforehand], but he elected to be taken out onto the tidal Thames, to a location of his choosing.

The point to the story is that I could never have legitimately towed his boat further than necessary to remove it from my premises to a safe position, and that towing it further than that was only by request of the owner. In the circumstances, I was more than happy to oblige, feeling about the owner much as CaRT evidently feel about their tenant, and pleased to see him as far away as possible.

Also, in that particular instance, I called it quits on the money owed, in preference to having any further dealings with the owner. The lien vanished upon the boat leaving my premises, and I knew that pursuit of the sums owed would be more trouble than it was worth [the boat itself was certainly almost worthless anyway].

In other cases I have exercised a lien pending payment of bills owed, others still I have allowed to leave and pursued the debt afterwards through the Small Claims Court. On one occasion I could not trace an owner who owed for work and moorings over an extended period – I accordingly published a Torts Notice in the Gazette, the Times, and a local paper, stating that I would sell the boat if not contacted within a certain period. A friend of the owner saw the local paper’s notice; contacted him, and he turned up and sorted everything amicably.

These are all legitimate avenues to pursue, and effective in achieving legitimate management objectives. CaRT likewise, were in an enviably strong position compared to most creditors, and should have ['in my opinion'] played safe, according to the accepted rules.

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A common one is to sign away the protection of the working time directive.

 

But see for example –

 

https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/basic-rights-at-work/

 

Your rights at work will depend on:-

• your statutory rights (see below), and

• your contract of employment (see below).

 

Your contract of employment cannot take away rights you have by law. So if, for example, you have a contract which states you are only entitled to two weeks' paid holiday per year when, by law, all full-time employees are entitled to 28 days' paid holiday per year, this part of your contract is void and does not apply. The right you have under law (to 28 days' holiday in this case) applies instead.

 

I can only presume that such a contract would have been signed, else the matter would never arise; but signed regardless, that which is unlawful is void, so it would appear.

 

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In the context of this debate I found this paper interesting and informative:

 

http://www.39essex.com/content/wp-content/uploads/2015/07/Exclusion-Limitation-Clauses-in-Business-Contracts-Presentation-Paper-JM-Bellamy.pdf

 

Paragraph 21 in particular is interesting as it suggests that the burden of proof that a contract limitation or exclusion clause is "fair and reasonable" will always lie with the party seeking to rely on it. In the absence of such proof the term will inevitably be found unfair.

Nice.

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A common one is to sign away the protection of the working time directive.

Yes you can "opt out" of the working time directive of working an average of 48 hours per week but an individuals right to "opt out" was included in the law when the EU regulation was enacted into UK law. So, in this case you are just exercising a legal right by opting out rather than signing away your rights under the working time directive.

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Assuming that the summary you cite is generally correct and accepted, it offers two important elements to this debate:

 

1. It is generally assumed that two business negotiate in good faith and unless shown otherwise that they agreed terms that were the best test of fairness (I assume that is a kind of perfect market in economic terms)

 

2. It is the liability at the time of signing that matters not at a later date when a breach is being pursued.

 

Most of the debate in earlier posts seems to relate to those aspects that govern contracts where one party is a consumer rather than a business.

 

I have a feeling that the owner will be considered as a consumer, there is no way that he can be considered an equal with CRT in any way at all. There is no reason why a company should not be a consumer, all it means is a user of a service or product etc provided by another.

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But see for example –

 

https://www.citizensadvice.org.uk/work/rights-at-work/basic-rights-and-contracts/basic-rights-at-work/

 

Your rights at work will depend on:-

• your statutory rights (see below), and

• your contract of employment (see below).

 

Your contract of employment cannot take away rights you have by law. So if, for example, you have a contract which states you are only entitled to two weeks' paid holiday per year when, by law, all full-time employees are entitled to 28 days' paid holiday per year, this part of your contract is void and does not apply. The right you have under law (to 28 days' holiday in this case) applies instead.

 

I can only presume that such a contract would have been signed, else the matter would never arise; but signed regardless, that which is unlawful is void, so it would appear.

 

 

I think you are right Nigel. Another example is people who are paid less than the minimum wage, being charged various deductions.There have been several cases where the companies have been found to have acted illegally and made to pay up.

 

People will sign contracts because they have no option, they need to work to feed the children etc and they sign. That is why the principle of not being able to sign away the rights that exist in law. Might even go back to Marlborough.

But if you choose to retain that right you don't get the job.

 

But that is why you can sign the contract and then claim the rights. Can cost the company dear.

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I was not commenting on the seaworthiness or otherwise - but rather the suggestion that HSE not CaRT is responsible for ensuring safety of vessels on its waters. Note that in most circumstances a licence requires both insurance and BSS to be current - the former probably also requires the latter.

My knowledge centres more on Birmingham where the safe operation of businesses there are controlled by the MCA. Planet differs from these trip boats though because it is unpowered and therefore permanently moored which is why I would expect the local council to be the enforcing body for the business operation, with the HSE intervening only in certain circumstances.

 

https://liverpool.gov.uk/business/health-and-safety/

 

Having said that, this digression is irrelevant to the point of this thread; that being, did CRT have to legal right to remove the vessel in the way they did.

 

We probably wont know until a court decides now but CRT clearly have some explaining to do. Even if they acted lawfully, by the skin of their teeth, I simply cannot see how they could be said to have acted reasonably.

 

The fact that Mr Roberts also acted unreasonably does not get CRT off the hook on this.

Edited by Dave_P
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My knowledge centres more on Birmingham where the safe operation of businesses there are controlled by the MCA. Planet differs from these trip boats though because it is unpowered and therefore permanently moored which is why I would expect the local council to be the enforcing body for the business operation, with the HSE intervening only in certain circumstances.

 

https://liverpool.gov.uk/business/health-and-safety/

 

Having said that, this digression is irrelevant to the point of this thread; that being, did CRT have to legal right to remove the vessel in the way they did.

 

We probably wont know until a court decides now but CRT clearly have some explaining to do. Even if they acted lawfully, by the skin of their teeth, I simply cannot see how they could be said to have acted reasonably.

 

The fact that Mr Roberts also acted unreasonably does not get CRT off the hook on this.

 

I couldn't agree more, . . . vapouring on about safety to create an illusion of diligence is the all too common 'red herring' resort of companies and organizations indulging in activities they know to be questionable, and C&RT wasted no time in introducing it into the dubious goings on in Liverpool last week.

 

C&RT most certainly were not entitled to seize and take semi-permanent, long term possession of the vessel, or to take it to Sharpness via the Irish Sea and Bristol Channel. The preliminaries, procedures and restrictions applicable to such activities in respect of another's property are unambiguously defined and laid down in the Torts (Interference with Goods) Act 1977 and the Tribunals, Courts and Enforcement Act 2007, in neither of which are the provisions and stipulations open to or in need of any form of 'interpretation'.

Edited by Tony Dunkley
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I couldn't agree more, . . . vapouring on about safety to create an illusion of diligence is the all too common 'red herring' resort of companies and organizations indulging in activities they know to be questionable, and C&RT wasted no time in introducing it into the dubious goings on in Liverpool last week.

 

C&RT most certainly were not entitled to seize and take semi-permanent, long term possession of the vessel, or to take it to Sharpness via the Irish Sea and Bristol Channel. The preliminaries, procedures and restrictions applicable to such activities in respect of another's property are unambiguously defined and laid down in the Torts (Interference with Goods) Act 1977 and the Tribunals, Courts and Enforcement Act 2007, in neither of which are the provisions and stipulations open to or in need of any form of 'interpretation'.

So we wont bother with any court procedure then, case proven by M'lud Mr Dunkley is it?

 

The part of this whole sorry saga that I can't get my head around is that the letter you copied to this thread clearly gave Mr Roberts the option of removing his vessel from the dock. Since lawful possession of the vessel as lien for the unpaid berthing fees was an option that they seem to be foregoing by telling him to leave, why did he not do so? If I were owing a considerable sum in berthing fees and the person to whom I owed the money told me to just go, that is precisely what I would have done. The vessel would still be in his possession and the berthing fees would have remained unpaid.

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C&RT most certainly were not entitled to seize and take semi-permanent, long term possession of the vessel, or to take it to Sharpness via the Irish Sea and Bristol Channel. The preliminaries, procedures and restrictions applicable to such activities in respect of another's property are unambiguously defined and laid down in the Torts (Interference with Goods) Act 1977 and the Tribunals, Courts and Enforcement Act 2007, in neither of which are the provisions and stipulations open to or in need of any form of 'interpretation'.

 

Sorry, but you cannot say that, since you are nothing more than a "common man". The only person who can make such a statement is a Judge. Until then it is nothing more than your opinion, and the sooner you recognise that the better.

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So we wont bother with any court procedure then, .......... ........... ...........

 

 

Whether or not this ends up before a Judge is something that C&RT can influence to their benefit, but the final decision rests with the vessel's owner.

If they return "Planet" to Liverpool and make appropriate reparations, then it may not do so, if they don't do both of those things, then it most certainly will.

Edited by Tony Dunkley
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It's very evident that C&RT continue to feel it necessary to keep the company identity and occupation/authority details of the four anonymous "Water Bailiffs" who boarded and seized "Planet" a closely guarded secret.

 

E-mail exchange with regard to these sledgehammer, crowbar and boltcutter wielding men of mystery from this morning :~

 

FAO. Thami Nomvete.
On 27 September 2016 I wrote to the Trust's Chantelle Seaborn, the Waterways Manager directly responsible for engaging the personnel who forcibly boarded and seized "Planet" on Monday 19 September 2016, saying that we had reason to believe that the forcible seizure of the vessel was a criminal act on the part of the Canal and River Trust and that the unidentified, and unidentifiable, personnel who boarded and broke in to the vessel on the morning of Monday 19 September 2016 were not authorized Officers of the Court, but employees of either the C&RT or contractors engaged by the C&RT.

I now refer you to the second paragraph of your E-mailed letter dated 28 September 2016 and timed at 1550hrs. wherein, in response to my enquiry as to the authority to act as Enforcement Agents and the identity of these anonymous personnel you limit yourself to saying " The Vessel was properly and professionally secured for removal and the contractors, and bailiffs engaged by the Trust to carry out and manage the process of removing the vessel acted professionally and lawfully."
I am not satisfied with that response and I am giving you a second opportunity to provide a more detailed and truthful answer to my enquiry.
Before responding, I suggest that you give consideration to the possibility that I may already be in possession of the information requested.
Signed A. K. Dunkley
(Owner's Representative)
and the response :~

Dear Mr Dunkley.

 

Thank you for your email. There is nothing further to add to what was stated in my email of 28th September and in the email of Lucy Barry from Shoosmiths, which was attached to my email of 28th September.

 

Kind Regards

Thami Nomvete

Solicitor

Legal

Edited by Tony Dunkley
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was a criminal act

 

Tony,

 

May I strongly suggest that you do not use the term "criminal act" but change it to "unlawful act". A lawyers mind looks at what you have written and debates is anything that we have done a "criminal act" under the meaning of any part of the criminal law, answer no and from that point tells you to go away. However I would suggest the use of the term "unlawful act" covers not only the criminal law but also Civil Law, like the Torts Act etc, now the lawyer has to ask the question is anything we have done conceivably a breach close to being a breach of any law and hence do I really need to engage with this person. Could get you and better answer.

 

Also it is less emotive

 

ETA I might even repeat your email opening saying I believe I incorrectly used the term "criminal act" rather than the term "unlawful act"

 

Edited by Geo
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