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

[peterboat]

37 minutes ago, NigelMoore said:

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.

Glad you have the go ahead to go back to court and good luck

[NigelMoore]

From a very recent FoI response -

https://www.whatdotheyknow.com/request/the_total_outstanding_arrears_bi

“If a boat remains unlicensed and we eventually seize the boat we then raise a bill for the removal and this includes a sum equivalent to licence fees for the period the boat was on our waters unlicensed.” 

It was the prime argument for Asplin J, in rejecting the Ravenscroft claim of disproportionality in use of s.8, that it was designedly NOT to enforce recovery of licence arrears, so could not be equated with cheaper, less intrusive measures to do that. She also accepted that CaRT’s wrongful use of possession of a seized boat - to refuse return unless arrears were paid - was an administrative oversight only.

Is there wriggle-room in the above reply, to evade any charge that they continue to promote an unlawful activity? There may be, but it would be highly embarrassing for any conscientious advocate required to perform the wriggling.

[Red Ruth]

Oh dear!!!! looks like they might not have all their messages properly joined up here! Will be interesting to see what the Court makes of that. Any idea when the hearing will be?

[NigelMoore]

2 minutes ago, Red Ruth said:

Oh dear!!!! looks like they might not have all their messages properly joined up here! Will be interesting to see what the Court makes of that. Any idea when the hearing will be?

There are two hearings currently listed. The first, to consider whether additional material will be permitted, is in October; the appeal hearing itself is in November.

[Red Ruth]

Just now, NigelMoore said:

There are two hearings currently listed. The first, to consider whether additional material will be permitted, is in October; the appeal hearing itself is in November.

OK so some time to prepare then.. I don't know how these things work - are you usually permitted to use everything you did in the last trial? 

[NigelMoore]

2 minutes ago, Red Ruth said:

OK so some time to prepare then.. I don't know how these things work - are you usually permitted to use everything you did in the last trial? 

One should be, but in this case CaRT have refused to agree to inclusion of the most relevant documentation in the Appeal Bundle, so under the CPR Leigh must now make yet another application, for permission to use material that WAS before the judge, which she directly quoted even, and do so at the extra cost of another £500 plus, not to mention the time and aggravation of doing so.

All part of the 'wear them down' tactics.

[Red Ruth]

2 minutes ago, NigelMoore said:

One should be, but in this case CaRT have refused to agree to inclusion of the most relevant documentation in the Appeal Bundle, so under the CPR Leigh must now make yet another application, for permission to use material that WAS before the judge, which she directly quoted even, and do so at the extra cost of another £500 plus, not to mention the time and aggravation of doing so.

All part of the 'wear them down' tactics.

And some on other threads wonder why I doubt CRT play fair... 

[MtB]

5 minutes ago, Red Ruth said:

And some on other threads wonder why I doubt CRT play fair... 

 

But it isn't a CRT tactic is it?

CRT have delegated running the case to Shoosmiths, with freedom to do whatever they see fit to win. Shoosmiths are the ones employing the 'wear them down' tactics. 

[Red Ruth]

 

2 minutes ago, Mike the Boilerman said:

But it isn't a CRT tactic is it?

CRT have delegated running the case to Shoosmiths, with freedom to do whatever they see fit to win. Shoosmiths are the ones employing the 'wear them down' tactics. 

Strictly specking that's not correct - the lawyers always have to give advice and then take instructions - CRT have the final say on how the case is conducted

[MtB]

Can you imagine CRT instructing Shoosmiths to conduct the case but to 'play fair'? 

<Blank looks around the meeting table from all the Shoosmiths bods>  

Tactics like this are typical of how the law is used in my limited experience, once the gloves are off. 

 

 

Edited April 10, 2018 by Mike the Boilerman
Grammar

[Red Ruth]

2 minutes ago, Mike the Boilerman said:

Can you imagine CRT instructing Shoosmiths to conduct the case but to 'play fair'?

no not at all!! But they could play fair if they wanted to, was all i was saying - you seem to agree with me that they probably don't. 

[MtB]

8 minutes ago, Red Ruth said:

no not at all!! But they could play fair if they wanted to, was all i was saying - you seem to agree with me that they probably don't. 

 

Sort of. I'm saying that Shoosmiths (and probably any law firm instructed) would not tolerate the client sticking their oar in and telling them how to conduct the case. They would decline the work rather than accept a 'back seat driver' of a client interfering and reducing their chances of 'winning'.

[Red Ruth]

Maybe - you might be right - I don't know enough about how law firms work with clients in general. In this case though, I suspect Shoesmiths and CRT are pretty much of the same mind - I doubt there's been any disagreement between them about whether to play fair or not! 

[Naughty Cal]

13 hours ago, Red Ruth said:

Maybe - you might be right - I don't know enough about how law firms work with clients in general. In this case though, I suspect Shoesmiths and CRT are pretty much of the same mind - I doubt there's been any disagreement between them about whether to play fair or not! 

It isn't about playing fair, it is about getting the result that you want.

Isn't any court case?

[NigelMoore]

Final update on the case – CaRT and Leigh have settled and the Appeal has been dropped. The Appeal Court has confirmed by sealed Order that the hearing scheduled for 23 October has now been vacated.

While it is disappointing that what I believe to be a dishonest judgment will not now be challenged before the Court of Appeal, the outcome was always going to be a risk for both parties, and with his home on the line, Leigh felt - with a degree of disillusionment with the judicial system – that the risk was too great. I could hardly do otherwise than support his decision in the circumstances.

It is to the credit of CaRT in this instance that they agreed to Leigh’s offer of settlement (the risk cuts both ways of course, as they will have recognised), and hopefully this is an indication that with Shoosmiths dropped and all litigation of this nature now being handled in-house, there will be less of a disposition to follow the advice of lawyers only interested in ‘earning’ the most they can from such situations. Time will tell.

There have been positive outcomes from the years of the proceedings. With recognition that s.8 cannot lawfully be used as means of enforcing/extracting licence payments, greater thought and re-consideration of the much abused process will hopefully eventuate. Certainly, regardless of how CaRT go about things in future, the effect of the skewed Asplin judgment played a significant part in ensuring that new legislation affecting the Middle Level has built-in protection against their similar proposed boat removal powers being used as anything other than the last resort it was always intended to be under the BW legislation. The MLC had argued that the HRA would ensure against abuse of the system, but the Asplin judgment demonstrated just how ineffectual in practice that was, which the Select Committee took on board.

The proper response to licence/certificate dodging is to follow the EA example, and employ the specific legislated process to compel compliance. Seizure of boats should be relegated to the cases where all else has failed. The MLC legislation will now mandate that, while the EA have always automatically made that choice; perhaps CaRT’s hitherto recalcitrant differing position will now undergo reappraisal.

The same principle should apply to breaches of any other byelaws; it is past time CaRT began prosecuting those, instead of finagling unilaterally drafted ‘contractual’ T&C’s and using any breach of those to justify employment of s.8. Instead of the legally invalid contractual nonsense, they should be confronting mooring problems – to use the major perceived current headache as an example - with properly drafted, relevant new byelaws. The monies wasted over the past decade on court wrangles attempting to justify abuses of s.8, and arguing that the County Courts should not apply the HRA to them, could have paid for such sensible byelaws several times over.

As for the central issue over ‘main navigable channel’, it will be for others to address the flaws in the Asplin judgment, should CaRT decide to continue parallel proceedings resting on substantially the same issue. CaRT would, however, be well advised to quietly discontinue those.

There was never any question but that the phrase was capable of being interpreted in either of the ways BW/CaRT have argued for over the decades (depending upon which interpretation suited their immediate interest – as the Ombudsman pointed out); Asplin J sought to avoid application of the firm legal maxim when confronting such ambiguity in private Acts (favouring the public against the promoters) by writing to the protagonists post hearing, asking for confirmation that a modern approach to construing public (rather than private) Acts would be agreed. CaRT enthusiastically endorsed her chosen approach, whereas our agreement was conditioned by the caveat that such an approach should not be at the cost of factoring in the other applicable maxims. In her judgment, however, Asplin J ignored that qualification, and proceeded as though we had agreed to not applying the relevant maxim applicable to private Acts.

As for the reasons she gave as to why she thought the more restricted construction would be ridiculous and unworkable, those are contradicted by a wealth of examples from other marine legislation – notably including BW’s – and indeed, she perversely used exhibited BW bulletins detailing steps taken to survey and buoy main navigable channels, as proof that they could never contemplate such impractical (in her view) actions!
 

At least she recorded the fact of Leigh’s claim being valid (that s.8 could not be used as leverage for payment of licence arrears), despite refusing to acknowledge the evidence that CaRT did so use it. The result - due to another boater’s challenge on the topic - was, as recorded earlier in this thread, that the relevant website wording was altered to remove the bit that claimed they could do this. That alone was a good result from the case.

As to her pronouncements on the proportionality argument, those relied upon an extraordinary ‘misunderstanding’ of the purpose of prosecuting offences – but as I have said, the rather obvious perversity of that has at least led to better legislation for other navigation authorities.

It has been an interesting and informative 4 years; one can only hope that CaRT also have found it instructive. Certainly, the recent decision to deal with litigation in-house ought to change the complexion of such responses to legal disputes.

 

[Alan de Enfield]

Thanks for the update / closure details.

[Sir Nibble]

I think that whether or not one supports CaRT or the individual in these cases, I am sure that everyone would support due process and equality before the law. It is a scandal that justice carries a hefty price tag and I personally applaud your efforts as in effect a soldier in the defence of the right of the common man to a fair hearing.

[matty40s]

Not only that, but a soldier who taken on the megalith and has made BW and CRT step back from its "do what suits" to maybe be more careful in its future actions.

Well done Nigel. 

[NigelMoore]

Thank you gentlemen. Let's not forget also, though, the personal sacrifices that Leigh made to pursue this. In communications from him today, he feels that it was worthwhile.

[NigelMoore]

On 10/01/2017 at 17:58, RobertBrooks said:

How binding on them now is that " undertaking" though ?

 

Following my experience in the House of Lords Select Committee hearings over the Middle Level Bill, I must now correct my response to that in post #85, at least to some extent. We had expressed our concerns over the undertakings offered by the Commissioners, citing precisely the fears I here expressed over enforceability, and noting that in any event, the undertakings (certainly the BW ones) could be buried in obscurity and unavailable for the general public view.

 

The Chairman (an ex-Lord Chancellor) did make an interesting observation when asking the MLC “Would you include that undertaking (given in the House of Commons) to this House as well, because the enforcement mechanisms of this House are rather more transparent?”

 

That would tend to reinforce the belief that enforcing undertakings to the Commons, even where known, could possibly be problematic.

 

However, Lord Thomas was emphatic that, certainly when when given to the Lords, there would be no question of ability to enforce against any failure to abide by such undertakings – and in response to our concerns over discoverability, the MLC are to publish these online.

 

“It is important for me to emphasise, particularly to the petitioners, that the acceptance by us of undertakings is an important matter for the protection of the public in general. Under Standing Order 130, there is a procedure whereby this House can determine whether or not there has been a breach of the undertaking.”

 

Of course the BW Undertakings had been given to the Commons, but at least in theory, provided they could be discovered – which they now largely have been, thanks to Kanda & Nabo – they could be relied upon and enforced.

[Tuscan]

Thank you for posting this

[NigelMoore]

Sadly, perhaps, instead of quietly dropping the matter, CaRT have now decided to continue with their County Court case against Tony Dunkley, on the grounds that the judgment of Asplin J allows for summary disposition of their case against him with no need for any Directions hearing.

 

As of October 23rd, they have written to Nottingham County Court requesting a one hour hearing before a Circuit judge, dispensing with the Directions requirement of the Order dated 17 October 2016:

“Given the contents of the Defendant’s previously filed unsigned witness statement and Acknowledgement of Service dated 9 May 2016, and the Judgment of LJ Asplin in the High Court Claim, we do not think that it is proportionate to agree directions in this matter; this Judgment, wholly in the Claimant’s favour, deals with the issues raised by the Defendant in this claim. As this claim is a Part 8 claim, we therefore respectfully request that the matter be listed for a final hearing, with a listing time of 1 hour before a Circuit Judge.”

Although correct when informing the Court in their letter that “The appeal in this matter has now been dismissed”, that does not convey the impression some might take from it that the Appeal Court rejected the Grounds for that Appeal. Quite how Tony, should he wish to take up the mantle of this dispute, would have to respond in order to notify Nottingham that the dismissal was one of consent between those parties without prejudice to either party’s position on the accepted Grounds of Appeal, and that he wished to argue against the Asplin judgment in the terms accepted as arguable by the Court of Appeal, I don’t know. The County Court is in no position to rule against a High Court judgment, so maybe a transfer direct to the Court of Appeal would be necessary?

 

Procedural niceties at this level are beyond me, so if the arguments are yet to be rehearsed before the Court, Tony would be well advised to get professional advice on how to go about it.

[Graham Davis]

Are they looking to set precedent in some way, Nigel?

[Chewbacka]

Looks like Tony is between a rock and hard place as the court will have to consider the result of Leigh’s case in the high court that found in favour of CRT.  I don’t think Tony can go to the appeal court until there is a judgement against him as he can’t appeal someone else’s case.   I think Tony needs urgent advice otherwise it could get very expensive.

12 minutes ago, Graham Davis said:

Are they looking to set precedent in some way, Nigel?

I think that was set in Leigh’s case as CRT got the judgement they wanted and this is just completing unfinished business as far as CRT are concerned.

[NigelMoore]

2 hours ago, Graham Davis said:

Are they looking to set precedent in some way, Nigel?

No, as Chewbacka has said, the Asplin judgment has already set the relevant precedent, which binds the County Court (and the High Court for that matter).

 

The 2016 CC Order was in part a response to Tony’s registered objection to CaRT’s use of the Part 8 procedure, so it may not be a foregone conclusion that Nottingham will accede to the request to abandon a Directions hearing.

 

Perhaps, if Tony presents a case before the Nottingham judge that he intends to argue a defence against the charge based on Leigh’s relevant approved appeal grounds, that could form a basis for directing that the case leapfrog the usual process, but frankly I am totally in the dark as to that.

 

It could even be, should a judge of the right sort oversee the hearing, that they would be able to inform as to how best to go about this. If not, it will be a simple rubber-stamp exercise, and Tony would have to seek permission to appeal from that, even though the CCJ against him would, I suspect, be legally impeccable.