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CRT being sued in the High Court for misuse of Section 8 rule


Horace42

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I have just received the transcript of the bulk of the first day’s proceedings in the main trial. [I have already published the Garner cross-examination, and the final submissions in rebuttal.]

 For those interested in reading this, I have uploaded to scribd –

https://www.scribd.com/document/365392289/Ravenscroft-v-CaRT-Main-Trial-1st-Day-Proceedings

I am aware that some have found difficulty in accessing that site, so I have put the text in full on thunderboat, which you can go to if you wish; I am conscious that it constitutes a fair amount of text, so am wary of taking up space here. Link to the page for those not wishing to search through that forum for it -

http://thunderboat.boards.net/thread/632/leigh-ravenscroft-crt?page=56#ixzz4zN3pBc9z

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Thanks Arthur. It was something of an anguished and last minute decision, but I could not have enjoyed it anyway, wondering what was being done behind my back.

Not only was there the sneakiness of things being played out while keeping me in the dark over what was being planned down in Brentford, and the very recent communications from the Middle Level Commissioners, the outcome of the recent hearing at the High Court was significant.

CaRT had applied for a final charging order against property for which Leigh is trustee, held in the Royal Courts of Justice on Wednesday. Neither of us knew what this was really all about, but the Master was understanding and helpful in explaining. CaRT had gained [without Leigh having been aware until after the event] what is called an interim charging order against a couple of titles Leigh holds in trust for his children. That would mean that on any disposition of the property, CaRT would automatically get the amount lodged as owing to them [in this instance, £30,000 – the amount awarded by way of summary assessment by Asplin J, even though this is being appealed].

Given that Leigh – with his children’s consent – had already put this on the market for an auction to be held mid December, with the aim of satisfying the debt, it did not seem to matter either way what was granted at the hearing, but . . .

What CaRT were applying for would have then allowed them to file another application forcing sale, at whatever they could get at fire-sale levels [and we know what they’d find acceptable from the Lightship history]. However the Master reserved judgment on their application, pending Leigh filing a witness statement with documentation proving that the Trust was not a ‘sham’ one dreamt up for the occasion [as suggested by CaRT], so we have been frantically assembling the available evidence, because he was only given a week to do this.

CaRT will then have a fortnight to respond; following that there will be another 2 hour hearing on the matter in the first available time slot from January third, with skeleton arguments and a bundle to be filed 2 days prior.

None of this having anything to do with my ‘specialist subject’ of waterways legislation, it is all highly tedious, leaving me wondering how I ever became embroiled in this. But it does mean that, together with the other stuff engaging my attention, I need to be in the dingy winter of the UK for the foreseeable future. At least my own hitherto concurrent litigation has been settled out of court!

Back to the topic - the Court of Appeal have allocated a court reference to the application to produce fresh evidence for Leigh’s main appeal, and these also, could entail a need for swift responses if the relevant permissions are granted.

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16 minutes ago, Mike the Boilerman said:

And all because Leigh decided to try his luck and not buy a license whilst moored outside the navigable channel? Do I have this right?

Not quite so straightforward as that. It is pejorative to suggest [as ‘try his luck’ implies] that he was trying to get away with something he knew was wrong; he genuinely believed that he did not need registration where he was. I would agree with him given the situation he was in. Moreover, it is not even in contention that such registration is not required outside the main navigable channel; the issue was what the extent of that was.

Even though I disagree with the judgment on the issue, at least it affirms that only the single channel of the relevant waterways are subject to registration, even if the MNC was bank to bank on those parts.

Plus, there were the generally important issues of proportionality even if registration had been required, and the legality of using possession under s.8 as a lien on licence arrears and other debts. At least that latter is one that Leigh can boast of having clarified publicly, even if the judge misdirected herself so as to avoid any declaration to that effect. CaRT’s website [under ‘License it or lose it’] was successfully challenged and modified only as a direct result of Leigh’s Claim.

Would Leigh now say it was worth it? Emphatically not, given the outcome, but results have certainly benefitted others, and coralled CaRT within the law in at least some degree.

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35 minutes ago, NigelMoore said:

he genuinely believed that he did not need registration where he was.

 

The reasonable man on that bus would have imagined he needed a license, so I find myself wondering if Leigh went out of his way to read the law in detail and came to a different conclusion.

A conclusion that CRT disagreed with, and faced with refusal by Leigh to discuss the matter with them sensibly (or at all), I'm not surprised CRT decided to make an issue of it and grab his boat. Had he responded to their letters in the first place I would not think he was 'pushing his luck'. 

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5 hours ago, Mike the Boilerman said:

 

The reasonable man on that bus would have imagined he needed a license, so I find myself wondering if Leigh went out of his way to read the law in detail and came to a different conclusion.

A conclusion that CRT disagreed with, and faced with refusal by Leigh to discuss the matter with them sensibly (or at all), I'm not surprised CRT decided to make an issue of it and grab his boat. Had he responded to their letters in the first place I would not think he was 'pushing his luck'. 

You might consider your own view to be that of the typical reasonable man, but the fact is that at least some boaters on the Trent have long been of the opposite view, without any going out of their way to read the law with the intent to find loopholes to their advantage. In fact their familiarity with the BW legislation has been minimal, and they have relied on extrapolation from an understanding of the common law as respecting riparian rights.

A classic example was an owner of property at Beeston Chalets early in 2008, who asked for online legal advice when one of his boats was seized under s.8. The barrister advising him was no more familiar with BW legislation than his ‘client’, and firmly supported his view that the boat was effectively stolen.

The position was hardly clarified by the gibberish that the enforcement officer came up with when contacted! When I first read through all the correspondence [most of it now removed from online], I felt that that the barrister had been entirely misguided, and that both of them had misunderstood the legislation; only years later when reading the 1971 Act carefully in conjunction with something else, did I come to take the view that these people [including Leigh] had been right after all, even if for the wrong reasons.

https://www.justanswer.com/uk-law/1gy4s-own-property-river-mooring-trent-this-not.html

At least that chap contacted BW straight away [there does not appear to have been any prior correspondence mentioned prior to the seizure; this may have been because the property was a holiday chalet visited only occasionally]; It cannot be gainsaid that it would have been sensible for Leigh to have responded to at least the final s.8 which he acknowledges he was shown by one of his friends working on the boat.

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I'd agree that there may be important benefits here to other boaters. Given that the '71 Act provides a proper process for the recovery of charges owed for licences, and this case has confirmed that s8 is designed to facilitate the safe management of the waterways rather than the recovery of debts, any boater now is free to apply for their licence and insist that CRT use s5 to take the money. That way they could satisfy the mooring/insurance/BSS conditions, allowing CRT to do their 'safety' job, and precluding their use of s8, whilst opening up the opportunity to raise a 'reasonable excuse' for not paying for it before a court. 

'88 However, if the ability to recover arrears of licence fees by way of a debt or prosecution were directly comparable with section 8, I would have decided that whilst prosecution was not less intrusive, recovery of a debt would have been.'

 

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On 25/11/2017 at 01:02, Mike the Boilerman said:

 

The reasonable man on that bus would have imagined he needed a license, so I find myself wondering if Leigh went out of his way to read the law in detail and came to a different conclusion.

A conclusion that CRT disagreed with, and faced with refusal by Leigh to discuss the matter with them sensibly (or at all), I'm not surprised CRT decided to make an issue of it and grab his boat. Had he responded to their letters in the first place I would not think he was 'pushing his luck'. 

I have to agree with this.

Surely the better way to have dealt with this would have been to licence the boat and then take up the case that a licence wasn't needed?

In which case he would still have a boat.

Attempting to save a few hundred quid in licence fees has in this case cost him dearly. 

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48 minutes ago, Naughty Cal said:

Surely the better way to have dealt with this would have been to licence the boat and then take up the case that a licence wasn't needed?

 

I too think this would have been a far better course of action, with hindsight. Buy the licence in response to letters from CRT insisting it it needed, then sue them for a refund on the grounds their letters advising a license is necessary were wrong. 

I wonder how that would have played out. 

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35 minutes ago, Mike the Boilerman said:

 

I too think this would have been a far better course of action, with hindsight. Buy the licence in response to letters from CRT insisting it it needed, then sue them for a refund on the grounds their letters advising a license is necessary were wrong. 

I wonder how that would have played out. 

I think CaRT would have investigated, realised it was a tricky and potentially legal grey area and come to a suitable agreement with a serious non-disclosure clause, so Leigh would have done well.

I think this is not what its about though, the objective in some of these cases is to inflict a high profile and humiliating legal defeat upon CaRT in order to:

Punish them for bad behaviour in the past (not really a good thing)

Discourage them from doing illegal or immoral things in the future (a good thing)

Establish the right to moor or use a boat free of charge (possibly good for those concerned, very bad for everybody else)

......these remarks refer to various legal challenges in general, rather than to this one in particular....

.................Dave

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11 minutes ago, dmr said:

I think CaRT would have investigated, realised it was a tricky and potentially legal grey area and come to a suitable agreement with a serious non-disclosure clause, so Leigh would have done well.

I think this is not what its about though, the objective in some of these cases is to inflict a high profile and humiliating legal defeat upon CaRT in order to:

Punish them for bad behaviour in the past (not really a good thing)

Discourage them from doing illegal or immoral things in the future (a good thing)

Establish the right to moor or use a boat free of charge (possibly good for those concerned, very bad for everybody else)

......these remarks refer to various legal challenges in general, rather than to this one in particular....

.................Dave

If that is the end goal then it isn't working out as a good plan just yet!

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11 minutes ago, dmr said:

I think CaRT would have investigated, realised it was a tricky and potentially legal grey area and come to a suitable agreement with a serious non-disclosure clause, so Leigh would have done well.

 

I think you're probably right. 

However, the offer (including the demand for confidentiallity) could then be declined and published, thereby defeating CRT's goal of keeping their doubts about their position secret. 

I'm sure a brief crowd-fund would reimburse the lost license cost for anyone trying this in future. 

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10 minutes ago, dmr said:

Establish the right to moor or use a boat free of charge (possibly good for those concerned, very bad for everybody else)

......these remarks refer to various legal challenges in general, rather than to this one in particular....

Indeed; the right to moor to private riparian property in Leigh's case, was never disputed by CaRT. I am told, however, without my being able to verify it, that they have been demanding their paid consent for this elsewhere on the Trent, and people have responded by simply selling up and leaving.

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20 minutes ago, Mike the Boilerman said:

I think you're probably right. 

However, the offer (including the demand for confidentiallity) could then be declined and published, thereby defeating CRT's goal of keeping their doubts about their position secret. 

He is. CaRT were prepared to do something like this at an early stage, but as that fell under ‘without prejudice’ communications, I am not at liberty to disclose particulars.

Still, at a far later stage, they offered a small compromise which they themselves placed on record as outside privileged communication, provided Leigh abandon his claim that they were not entitled to use possession of the boat [whether legally seized or not] as lien on the alleged ‘licence’ arrears. As the issue closest to Leigh’s heart, he refused to do this.

Given that the Claim in this respect was admitted, it was, in my opinion, an indulgence in serious misdirection of herself that the judge re-interpreted Leigh’s case on that issue and dismissed it.

As to avoiding the more drastic outcomes by paying for the PBC, it should be noted that Leigh’s father had offered to pay the alleged arrears on the spot, although that was at the stage when the boat was already on a lorry, and CaRT demanded the whole quoted removal and storage [?] costs before putting it back into the water.

Without a shadow of doubt, of course, payment beforehand would have obviated the situation.

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22 minutes ago, Naughty Cal said:

If that is the end goal then it isn't working out as a good plan just yet!

Well actually, small comfort to Leigh though it is, his case DID accomplish the admission by CaRT that possession under s.8 could not be used as lien on other debts, and the CaRT website statement of many years' standing was altered as a direct result. That could just possibly entail a more cautious approach to the use of s.8 in future.

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A few observations come to my mind.

If a boat cost 30k and a license costs £900 non payment of that license does not reasonably justify trying to lawfully steal a 30k boat to cover £900 surely, so the license it or loose it angle needs challenging, especially when CRT restrict and remove licenses on customers boats that CRT claim have not moved enough in a license period, when the act does not stipulate a specific distance.

If you ask CRT to dredge a mooring you pay end of garden fees on there answer will be "we don't have to as it's not the main channel" so I get this guys point of view totally.

 

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36 minutes ago, Jenwil said:

A few observations come to my mind.

If a boat cost 30k and a license costs £900 non payment of that license does not reasonably justify trying to lawfully steal a 30k boat to cover £900 surely, so the license it or loose it angle needs challenging, especially when CRT restrict and remove licenses on customers boats that CRT claim have not moved enough in a license period, when the act does not stipulate a specific distance.

If you ask CRT to dredge a mooring you pay end of garden fees on there answer will be "we don't have to as it's not the main channel" so I get this guys point of view totally.

 

Welcome to the perspicacious minority, Jenwil ! 

Does your comment with regard to CRT and the main (navigable) channel arise out of personal experience ?

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Yeah well... the fact that the act doesn't state a specific distance, just that there should be an intention to navigate, simply means that whether one has moved enough is a matter of opinion, and CRT's will reckon that their's is better than yours, and that as their lawyers are probably better than yours as well, their's is going to be the right one. The court will probably agree with them too as like it or not, it's common sense that a boat that is supposed to be continuously cruising, should be doing what is generally understood by that term rather than doing it's best to sit under the same tree for as long as possible and as often as possible.  And, anyway, courts tend to agree with big institutions, for reasons irrelevant here (!).

And licence and mooring fees are going to be a bit more than £900 a year, and there were several years in question in this case.

You could argue exactly the same about bad car parking - towing away a car that may well have cost more than a boat for a parking fine.  But it's done.  There are several different facets to this case, mostly down to the fact that the acts and laws as they stand aren't really, as we boaters love to say about the spotting regime, fit for the purpose any more.  Whether anyone thinks a new Act would improve things at all is yet another matter of opinion - they generally are just as badly worded and cause as much grief as they solve (apart from to the lawyers, who get another payday out if it).

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1 hour ago, Jenwil said:

If a boat cost 30k and a license costs £900 non payment of that license does not reasonably justify trying to lawfully steal a 30k boat to cover £900 surely,

 

Logic error here. Boats are not 'lawfully stolen' for want of paying the license fee.

They are 'lawfully stolen' because license holder has had their license cancelled or refused due to The Board not being satisfied they are using the boat bona fide for navigation.

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It's the difference between rivers - where there is no need for CRT's 'permission' to be there, and canals - where there is. CRT own the canals, and they count as land - the licence constitutes a permission to be there, so to be there without one is a trespass. CRT can refuse their permission only on 3 grounds - BSS, insurance or failure to a)have a mooring, or B) satisfy them that you are using the boat bona fide for navigation. Where they are not satisfied they can revoke your permission and take you off their land. On rivers, the requirement is to register your boat - not to have CRT's permission to be there. Having said that, it is unlawful to be there without a pleasure boat certificate, but it's the law that says so - not CRT. So the £900/£30,000 argument works in cases on rivers, but not on canals. 

if the reason for not having a licence is the refusal to pay for it - if the boat is a safety hazard the s8 is lawful. That's what the court in Ravenscroft was getting at. 

Edited by Teasel
edited to add
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4 hours ago, Arthur Marshall said:

Yeah well... the fact that the act doesn't state a specific distance, just that there should be an intention to navigate, simply means that whether one has moved enough is a matter of opinion, and CRT's will reckon that their's is better than yours, and that as their lawyers are probably better than yours as well, their's is going to be the right one. The court will probably agree with them too as like it or not, it's common sense that a boat that is supposed to be continuously cruising, should be doing what is generally understood by that term rather than doing it's best to sit under the same tree for as long as possible and as often as possible.  And, anyway, courts tend to agree with big institutions, for reasons irrelevant here (!).

And licence and mooring fees are going to be a bit more than £900 a year, and there were several years in question in this case.

You could argue exactly the same about bad car parking - towing away a car that may well have cost more than a boat for a parking fine.  But it's done.  There are several different facets to this case, mostly down to the fact that the acts and laws as they stand aren't really, as we boaters love to say about the spotting regime, fit for the purpose any more.  Whether anyone thinks a new Act would improve things at all is yet another matter of opinion - they generally are just as badly worded and cause as much grief as they solve (apart from to the lawyers, who get another payday out if it).

I'm not sure about the evidence that the courts tend to agree with large institutions per se - ie that they are biased. Is it not more likely that such institutions have access to better lawyers and other advisers and so produce a more convincing case in areas that are always going to be contentious? This will lead to them winning more often but this does not, in itself, indicate the kind of bias that you impute. Whether that is fair is another matter but legal action does not always align with everyone's sense of justice!

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7 hours ago, Jenwil said:

A few observations come to my mind.

If a boat cost 30k and a license costs £900 non payment of that license does not reasonably justify trying to lawfully steal a 30k boat to cover £900 surely, so the license it or loose it angle needs challenging, especially when CRT restrict and remove licenses on customers boats that CRT claim have not moved enough in a license period, when the act does not stipulate a specific distance.

If you ask CRT to dredge a mooring you pay end of garden fees on there answer will be "we don't have to as it's not the main channel" so I get this guys point of view totally.

 

CRT don't steal your boat, they tell you to remove it from their water.  If you refuse to remove it then they will remove it as they don't want it in their water, the choice as to who removes it, is the boaters.  They will give it back when you have paid their costs associated in removing it.

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  • 2 months later...

Have just been sent a copy of material from the Court of Appeal – a couple of weeks late! Leigh has been trying to get some work overseas, and was relying on friends to keep track of his mail.

Still, it is fairly comprehensive grant of permission to appeal on all the grounds for objection to the 3 issues at stake.

Appeal Permission decision, R v CaRT.jpg

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