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section 8 canning dock ?


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Probably what people would like to see is for Mr Roberts to be represented by someone who will get the best result for him rather than perhaps someone who showboats then complains of the ineptitude of the Judge, unfair methods of the opposition legal team, and the fact that everyone else is lying if the case goes against him. Sticking it to CRT doesn't achieve anything at all if you lose the case by whatever means.

I've got to say that while Tony and I have had our disagreements, when I've spoken to him in the past I have rarely actually dealt with anyone so helpful or knowledgable. I would be pretty sure that any advice he has given to Mr Roberts will have been carefully thought through and wouldn't contain any elements of showboating (what gets put on here may be different for a number of reasons!). I also have no doubts about the ineptitude of a lot of legal bods, and that an awful lot of people lie in court...

  • Greenie 3
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A lawyer isn't going to make errors that destroy the case (think of Pearly, where in an attempt to force a day in court Geoff destroyed his case).

 

A layman may have a better grasp of the FACTS of the case.

 

 

 

But did get the case into court and get a Judge's opinion of the rules CRT seek to enforce and expose many, shall we say, 'failings', and abuses, of the legal process.

 

My representatives ignored the facts of my case which I had given them and had strongly argued for.

 

They misled me and went ahead with arguments I had specifically challenged and had written to the barrister (breach of protocol) and called a meeting to get an agreement on what case would be presented.

 

There were about 8 hearings in the two and a half years of my case and I had to fight my own representatives all the way to, firstly, get them to submit a defence and then to determine what that defence was.

 

I had the submissions for the 'trial' delivered to me, and the hundreds of pages of the CRT submissions, two days before it commenced. If the availability of legal aid had not been withdrawn I might have called (again) for an adjournment but I'm sure the Judge wouldn't have allowed it.

 

The usual procedure when a defendant is on legal aid is to offer no defence but say 'my client is very sorry and will agree to anything you say'. That is what you get as representation. It's not the same as being a 'paying customer'. I did well to get as far as I did and did get an undertaking to the court that I could stay on the canal subject to negotiation. The Judge addressed me directly and assured me he would find a way for me to stay on my boat.

 

CRT didn't like this. They ignored it and got a court order, that didn't mention it, by devious means, the execution of which was stayed at the last minute, and I had another hearing, with no representation, where CRT were required to agree to the undertaking again. They subsequently seized my boat in defiance of the undertaking and, it seems, I have to take them to court at my expense rather than just say to the court, 'they breached the undertaking they gave can you sort it out please. They are in contempt of your court'. Or make a complaint to the police as it's a criminal offence. I did that. They tell me (surprise, surprise) 'It's a civil matter'.

 

So, I did get the case into court having been told by the Ombudsman that she couldn't decide on my complaint (regarding rules and enforcement) and I would have to take them to court. I said I, obviously, couldn't take them to court so they will have to take me to court then I can be publicly funded as they are. If they had responded to my complaint in which I was correct, as found by another court and admitted, subsequently, by CRT, then there would have been no need of the costs and consequences (ongoing) of the legal action.

 

More of this on my website which details the dubious, and systemic, practices in the legal process that outweigh and preclude the presentation and consideration of actual legal argument pertaining to the relevant facts.

  • Greenie 2
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I see, . . . so you do want Alan Roberts to be represented by someone who will let C&RT walk all over him ?

 

OFFS!!!

Please remove the chip!!

You know exactly what he meant; a properly qualified barrister who understands the legal system and how it can be argued about.

  • Greenie 1
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OFFS!!!

Please remove the chip!!

You know exactly what he meant; a properly qualified barrister who understands the legal system and how it can be argued about.

If you really feel that Mr Roberts would be better served by a barrister, why not contact him and suggest it. This would be better than questioning the motives and qualifications of those that want to help him.

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Actually, The Protection of Freedoms Act is, to my mind, a classic example of the exception proving the rule.

 

Just reprising discussion on this aspect, I wonder if the situations are so different?

 

Yes, the 2012 Act makes a point of specifically disallowing consent to the newly prohibited act of impounding a vehicle within freely accessible premises, where prior to the Act there was no prohibition on impounding it [and post the Act, there is still no prohibition on impounding a vehicle that has been delivered into secured premises]. This portion of the Act was a direct response to grotesque abuses of the common law right of lien.

 

The new law addressed nothing respecting the common law right to exercise a lien on goods where they have been delivered into your possession for payable services; it addresses, with a very narrow focus, mere temporary trespass upon your openly accessible land [and provided greater facility for charging for parking such vehicles]..

 

The Torts Act addressed rather the opposite problem – getting rid of goods where the owner had no desire to remove them, where by contrast, the 2012 Act prohibited the prevention of the owner removing them when he wanted to.

 

The constant, however, is the existence of statutory protection for the owners of goods, by way of limiting the powers of those the owners are trespassing against, to act unilaterally according to their own vengeful tastes. It is all so very consistent with Marlborough.

 

The question remains, then, whether one can voluntarily disown the hard-won rights of centuries? Perhaps the 2012 express prohibition against that, rather than being ‘the exception that proves the rule’, reflects rather, a recognised need in modern times, to reinforce what was once taken for granted?

 

Just a thought.

 

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A couple of items I just came across –

 

Consumer Rights Act 2015

http://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/4/crossheading/can-a-trader-contract-out-of-statutory-rights-and-remedies-under-a-services-contract/enacted

"Can a trader contract out of statutory rights and remedies under a services contract?

57 Liability that cannot be excluded or restricted


(1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader’s liability arising under section 49 (service to be performed with reasonable care and skill).

(2) Subject to section 50(2), a term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader’s liability arising under section 50 (information about trader or service to be binding).

(3) A term of a contract to supply services is not binding on the consumer to the extent that it would restrict the trader’s liability arising under any of sections 49 and 50 and, where they apply, sections 51 and 52 (reasonable price and reasonable time), if it would prevent the consumer in an appropriate case from recovering the price paid or the value of any other consideration. (If it would not prevent the consumer from doing so, Part 2 (unfair terms) may apply.)

(4) That also means that a term of a contract to supply services is not binding on the consumer to the extent that it would —

( a ) exclude or restrict a right or remedy in respect of a liability under any of sections 49 to 52,

( b ) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,

( c ) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or

( d ) exclude or restrict rules of evidence or procedure.

(5) The references in subsections (1) to (3) to excluding or restricting a liability also include preventing an obligation or duty arising or limiting its extent.

(6) An agreement in writing to submit present or future differences to arbitration is not to be regarded as excluding or restricting any liability for the purposes of this section.

(7) See Schedule 3 for provision about the enforcement of this section.
"

See also the House of Lords Judgment in Bruton v. London and Quadrant Housing Trust [1999] UKHL 26; [2000] 1 AC 406; [1999] 3 All ER 481 (24th June, 1999)

http://www.bailii.org/uk/cases/UKHL/1999/26.html

Giving the leading judgment on the nature of the tenancy and the terms of the agreement, Lord Hoffman declared –

The term that Mr Bruton could be told to vacate on reasonable notice was ineffective, as one cannot contract out of statute.”

Mr. Bruton's agreement is irrelevant because one cannot contract out of the statute.”

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Nigel,

 

Wow a lovely find. Now if I understand it correctly CRT did not or could not grant a licence only a tenancy under the term of the laws regarding tenancy of property and exclusive use.

 

To me I think there are some important questions that could change things

 

  1. Was CRT just licensing the use of its water?
  2. Or because for the water to be there CRT were granting a tenancy of the land over which the water stood?
  3. It would appear that CRT also granted use of the quayside if so land was definitely involved.
  4. Was the use of that particular stretch of the quayside exclusive, could that vessel be moved as part of the agreement to any other part of the dock?
  5. Did CRT at anytime require and enforce the movement to any other part of the dock. If they did not could that imply exclusive use of the particular stretch of the dockside/quayside?
  6. Was there anything in the agreement that stopped anyone living aboard the vessel?
  7. Did anyone actually live aboard the vessel?
  8. On the day of the removal was someone living aboard the vessel? Someone I believe was aboard on the day of removal.

 

I think from the little I know of the agreement that you could have hit the nail on the head and there was a de facto tenancy regardless of there being a pseudo license and thus the tenant could not be removed without the a court ruling.

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Any minute now, someone is going to prove CONCLUSIVELY that CRT cannot legally impose any penalties whatsoever on anyone for any possible infringement of mooring contracts, licence conditions, terms and conditions, trading violations, Insurance, safety cert or anything else anyone using the system has ever signed up for. What's more, they will be PROVED to be legally unable to charge for long or short term mooring rights, use of their water (which it will also be proved belongs to someone else) or any other services they claim to provide. In the meantime, they will be obliged by statute to maintain all locks and bridges, dredge to to the original depth, keep the towpath clear, support vulnerable people (imostly self-defined as such), provide water points, elsan and pump-out facilities, refuse removal and remove fallen trees and sunken boats without delay.

All this will be paid for by the one person who, out of the sheer goodness of his/her heart, buys a licence, CRT mooring and a permit.

 

Alternatively - if C&RT just concentrated on doing what they should do & took actions that were 'within the law', the huge amount of money they saved in legal costs would mean that they could actually maintain the system as you describe.

I believe that a couple of years ago their backlog of repairs was running at £117 million and increasing.

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Alternatively - if C&RT just concentrated on doing what they should do & took actions that were 'within the law', the huge amount of money they saved in legal costs would mean that they could actually maintain the system as you describe.

I believe that a couple of years ago their backlog of repairs was running at £117 million and increasing.

 

 

If they did that though, and just allowed people like Mr Roberts to overstay without contributing as you appear to be proposing, what message would it send out and how many people would copy?

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Alternatively - if C&RT just concentrated on doing what they should do & took actions that were 'within the law', the huge amount of money they saved in legal costs would mean that they could actually maintain the system as you describe.

I believe that a couple of years ago their backlog of repairs was running at £117 million and increasing.

Actually, that was a figure calculated the year before last based on the known cost of fixing just some of the outstanding defects on the system. Doing the same calculation again for 2015/16 suggests it is about £161m. Even this figure is probably low and does not include dredging backlog.

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If they did that though, and just allowed people like Mr Roberts to overstay without contributing as you appear to be proposing, what message would it send out and how many people would copy?

 

Are you misreading what I said deliberately ?

 

I said if C&RT "took actions that were 'within the law'",

I made no suggestion that they should take no action against defaulters - just that they should take the correct & appropriate actions.

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A couple of items I just came across –

 

Consumer Rights Act 2015

 

http://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/4/crossheading/can-a-trader-contract-out-of-statutory-rights-and-remedies-under-a-services-contract/enacted

 

"Can a trader contract out of statutory rights and remedies under a services contract?

 

57 Liability that cannot be excluded or restricted

 

(1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader’s liability arising under section 49 (service to be performed with reasonable care and skill).

 

(2) Subject to section 50(2), a term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader’s liability arising under section 50 (information about trader or service to be binding).

 

(3) A term of a contract to supply services is not binding on the consumer to the extent that it would restrict the trader’s liability arising under any of sections 49 and 50 and, where they apply, sections 51 and 52 (reasonable price and reasonable time), if it would prevent the consumer in an appropriate case from recovering the price paid or the value of any other consideration. (If it would not prevent the consumer from doing so, Part 2 (unfair terms) may apply.)

 

(4) That also means that a term of a contract to supply services is not binding on the consumer to the extent that it would —

 

( a ) exclude or restrict a right or remedy in respect of a liability under any of sections 49 to 52,

 

( b ) make such a right or remedy or its enforcement subject to a restrictive or onerous condition,

 

( c ) allow a trader to put a person at a disadvantage as a result of pursuing such a right or remedy, or

 

( d ) exclude or restrict rules of evidence or procedure.

 

(5) The references in subsections (1) to (3) to excluding or restricting a liability also include preventing an obligation or duty arising or limiting its extent.

 

(6) An agreement in writing to submit present or future differences to arbitration is not to be regarded as excluding or restricting any liability for the purposes of this section.

 

(7) See Schedule 3 for provision about the enforcement of this section."

 

See also the House of Lords Judgment in Bruton v. London and Quadrant Housing Trust [1999] UKHL 26; [2000] 1 AC 406; [1999] 3 All ER 481 (24th June, 1999)

 

http://www.bailii.org/uk/cases/UKHL/1999/26.html

 

Giving the leading judgment on the nature of the tenancy and the terms of the agreement, Lord Hoffman declared –

 

The term that Mr Bruton could be told to vacate on reasonable notice was ineffective, as one cannot contract out of statute.”

 

Mr. Bruton's agreement is irrelevant because one cannot contract out of the statute.”

 

That case is very specific to the Landlord and Tenant Act, an area notorious for its complications and convolutions, not least as tenants and landlords seek to interpret unusual situations. Given the history of rental accommodation there are provisions that relate only to the situation where a tenancy exists, in the terms of the Act. Many of the arguments relate (as in this case) as to whether a tenancy exists (compared with a licence to occupy) Similarly back in the days when unfair dismissal cases were prevalent, the first part of a hearing was to establish whether an employment existed or not and some were rather complex to resolve.

 

I do not see clearly how this case applies to mooring contracts as such. Unless you can show that the bit you highlight is a matter relating to contract law as a whole. I am certainly aware of commercial contracts that go out of their way to prevent a tenancy under the Act.

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Nigel,

 

Wow a lovely find. Now if I understand it correctly CRT did not or could not grant a licence only a tenancy under the term of the laws regarding tenancy of property and exclusive use.

 

To me I think there are some important questions that could change things

 

  1. Was CRT just licensing the use of its water?
  2. Or because for the water to be there CRT were granting a tenancy of the land over which the water stood?
  3. It would appear that CRT also granted use of the quayside if so land was definitely involved.
  4. Was the use of that particular stretch of the quayside exclusive, could that vessel be moved as part of the agreement to any other part of the dock?
  5. Did CRT at anytime require and enforce the movement to any other part of the dock. If they did not could that imply exclusive use of the particular stretch of the dockside/quayside?
  6. Was there anything in the agreement that stopped anyone living aboard the vessel?
  7. Did anyone actually live aboard the vessel?
  8. On the day of the removal was someone living aboard the vessel? Someone I believe was aboard on the day of removal.

 

I think from the little I know of the agreement that you could have hit the nail on the head and there was a de facto tenancy regardless of there being a pseudo license and thus the tenant could not be removed without the a court ruling.

 

 

Goodness Geo – someone actually clicked the link and read the judgment!

 

However you have applied the main thrust of that judgment to this situation, in a way which, although an interesting twist of some potential merit, is not what I intended to introduce, nor does it takes the matter in a direction I would personally wish it to take.

 

My purpose in citing the judgment was to provide support for my basic contention that the terms of a contract are invalid when/if they seek to overturn statutory protections. The main argument in this case is that CaRT have taken actions in defiance of the due process laid down within the Torts Act, to which CaRT’s reply is that the statute has nothing to do with the matter, because the contract signed by Mr Roberts permits them to do what the statute does not.

 

To my mind, the House of Lords emphatic pronouncement that one cannot contract out of a statute, would be compellingly persuasive on any lesser court.

 

Addressing some of your questions though –

 

1. a berthing contract/mooring agreement is simply an agreement to attach a vessel to land; the water itself is no more CaRT’s that it is anyone’s; it is public property, the use of which is, however, within the gift of the adjacent land owner - CaRT in this case;

 

2. CaRT have done this in other circumstances, notoriously in Brentford [where they purported to lease half the riverbed to the adjacent developer when they not only did not own it, but were facing numerous objections to their registration from others, including the PLA]. Effectively also, this is an approach that they take to justify EoG mooring charges. It is still not a tenancy, whether they owned the riverbed or not;

 

3. granting a right to use of land does not necessarily involve a tenancy, exclusive or otherwise. Attachment of a vessel and access across land is a right of limited nature;

 

4. for slightly different reasons, most berthing agreements include a clause stating that exclusivity of any one mooring spot is not granted, and that the management may move the boat to any alternative berth at their sole discretion. The terms of this particular agreement makes this abundantly clear in far more extensive terms than usual [and quite legitimately, in my opinion];

 

5. whether they did or did not move the vessel is immaterial. Most moorings operators do not bother, and disuse does not disturb the right;

 

6. yes, the agreement stipulated that this could not be allowed without the prior written approval of the Estate Owner, other than by bona fide crew of the vessel for a total of not more than 14 days during the period of the licence;

 

7. cannot answer;

 

8. ditto, other than that someone was evidently aboard at the time.

 

In all the circumstances, I would argue that the agreement is nothing more than what it represented itself to be: “a bare licence which confers no tenancy or interest greater than the licence hereby granted . . .”

 

The actions taken are sufficiently clearly in contravention of the due process demanded by the Torts Act, for there to be no need to extend the range of offences into the realms of the Landlord and Tenants legislation. In denying the application of the Torts Act on the basis that Mr Roberts agreed to contracting out of that statute, the violation of that statute is tacitly admitted, I would say.

 

If this matter goes to court, the basic argument will turn upon that simple and narrow point - could either party contract out of the statute? If not, then Marlborough is engaged as is the Torts Act and probably others.

 

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I do not see clearly how this case applies to mooring contracts as such. Unless you can show that the bit you highlight is a matter relating to contract law as a whole. I am certainly aware of commercial contracts that go out of their way to prevent a tenancy under the Act.

 

I hope my answer to Geo goes some way to answering this?

 

A contract going out of its way to prevent a tenancy under the relevant Act is not wrong to do so; the question is only whether it succeeds or not. In the cited case the decision was that it did not. My only interest as it relates to the situation under debate is with the consequential determination that, as the agreement WAS found to constitute a tenancy, then the applicable statute applied to the effect that the tenant could not be summarily booted out - even though, as one item within the contract stipulated, he agreed that he could.

 

To repeat myself for the sake of clarity - in my opinion the tenancy aspects do not apply here, only the basic tenet upheld in the judgment that one cannot contract out of a statute; the applicable statutes in the case under discussion here, being Marlborough, Torts, and others, but NOT any Landlord and Tenants legislation.

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Thanks Nigel, I take it that you are comfortable that whilst the Judgement is specifically regarding housing that there is enough regarding being able or not being able to sign away rights to lend weigh to Mr Robert's case. BTW I did get that aspect but also as the Planet was capable of being used for accommodation that that the agreement could be null & void hence my questions.

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To my mind, the House of Lords emphatic pronouncement that one cannot contract out of a statute, would be compellingly persuasive on any lesser court.

 

 

 

There can be no doubt that any Court will uphold this position, and nor is this something brought about by or since this 1999 House of Lords Judgment.

 

The exact words used escape me now, it was around some 30 years ago, but I was assured most emphatically by a County Court Judge to the effect that no individual or organisation can impose conditions or terms which ultimately will prevail over statute.

Edited by Tony Dunkley
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Any minute now, someone is going to prove CONCLUSIVELY that CRT cannot legally impose any penalties whatsoever on anyone for any possible infringement of mooring contracts, licence conditions, terms and conditions, trading violations, Insurance, safety cert or anything else anyone using the system has ever signed up for. What's more, they will be PROVED to be legally unable to charge for long or short term mooring rights, use of their water (which it will also be proved belongs to someone else) or any other services they claim to provide. In the meantime, they will be obliged by statute to maintain all locks and bridges, dredge to to the original depth, keep the towpath clear, support vulnerable people (imostly self-defined as such), provide water points, elsan and pump-out facilities, refuse removal and remove fallen trees and sunken boats without delay.

All this will be paid for by the one person who, out of the sheer goodness of his/her heart, buys a licence, CRT mooring and a permit.

 

A somewhat emotive over-reaction Arthur, however resonant with general opinion and informed by laudable concern for the future of our waterways?

 

My own criticisms generally, are based on CaRT’s failure to apply timely and appropriate sanctions when necessary. That failure, whether as a matter of policy, negligence, or indifference, sometimes leads to a point where patience is exhausted and retaliatory measures are disproportionately applied – as much, it sometimes seems, from frustration and vindictiveness, as “pour l’encouragement les autres”.

 

It may surprise some, but I am actually in visceral agreement with CaRT’s actions in this respect; my atavistic self reacts in precisely the same way. I regard myself as the epitome of casual, laid-back generosity and tolerance, but if I get a whiff of the proverbial two-fingered salute, I can instantly get very savage indeed.

 

The problem is, that in societies that allow for the physical expression of such emotions, communal living can be somewhat uncomfortable. In this country we enjoy the benefits of many centuries of developed societal disciplines, that in most become so subliminal a component of our thinking that we can forget they are just that – inculcated precepts, that look beyond immediate feral reactions, to the better oiled machinery of civilised society. These are enshrined within legislation for the avoidance of all doubt as to appropriate conduct where contention arises.

 

We are all [or most of us] human, but for practical reasons as much as anything else, we need to be vigilant over keeping things – whether personal or business – on a calm rational law-abiding basis. It is bad enough when that breaks down in individuals, when it breaks down in national institutions it is so much worse.

 

There are things CaRT can charge for, and things they cannot; there are conditions they can impose, and others they cannot; there are penalties they can have imposed - and jolly well ought to - and penalties they are prohibited from applying.

 

As to obligations under statute – they are in the ‘happy’ [?!] situation of having all such obligations effectively neutered; they need spend nothing on maintenance and provision of services that they feel is better spent elsewhere.

 

As to the money they receive from their direct clientele as distinct from public volunteering and involuntary taxes – I remain the "one person" I know of [there must of course be others?] who has voluntarily paid the boat licence fees of boats I did not even own, for years on end – even though knowing full well that we did not need to do so - while knowing also, moreover, that those thousands per year were helping to fund the authority’s level best efforts to throw me and those boats off ‘their’ waterways.

 

That tempers my sympathies for the poor beleaguered authority somewhat.

 

Even so, I like to believe that I have retained a measured and balanced over-view of the waterways administration and what it needs. I would maintain that my criticisms are as valid as my support [where applicable].

 

CaRT will gain greater support from individuals and society in general, the more it demonstrates that their practical administration of the waterways is firm but fair, and above all as law-abiding as they wish their clientele to be.

 

  • Greenie 3
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There can be no doubt that any Court will uphold this position, and nor is this something brought about by or since this 1999 House of Lords Judgment.

 

 

Of course!

 

Lord Hoffman was not, as you say, introducing some new legal precept; he was affirming the application of an age-old one to the situation. Moreover, his was not a mere ‘persuasive’ pronouncement, new precept or old.

 

My choice of vocabulary was inspired only by a desire to introduce a wry little note of irony into the discussion.

 

 

 

edit to add: a problem with some of these fundamental precepts of the law is that they have been accepted ‘as read’ for so very long, that finding judicial endorsement of them can be perversely problematic. That is why I was glad to come across this example.

Edited by NigelMoore
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