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

[Paul C]

It looks like this case was successfully used as a precedent against Tony Dunkley's county court case (15th Aug) (he was moored on a river without a licence) and he now has to comply with a court order and pay CRTs costs. Also it was a quick uneventful hearing and he didn't get the chance to put a detailed argument exploring some of the points he wanted to make. Well, he did, but in writing, but it didn't sway the judge.

[NigelMoore]

It is fair to point out that Tony was unable to attend court in person, and the judge agreed to his particpation by phone, which I would certainly not have wished to do; it places one under an immediate disadvantage.

 

Also, Tony was not really prepared, having previously been notified that this was to be a directions hearing only. CaRT unilaterally had the nature and location of the hearing amended to be a final hearing at a more distant court.

 

If Tony had been relying only on the MNC argument, that would have been a foregone conclusion given the Asplin J judgment - and that was what the judge declared. However Tony was relying mainly on the nature of 'lawful authority', as in: the authority to navigate on the rivers derives from the PRN not the registration requirement - hence the difference in nomenclature between 'licence' and 'registration certificate'. Failure to be registered under the 1971 Act is an offence punishable according to the provisions therein, but it has nothing to do with authority ('licence') to be there.

 

That was altogether overlooked by the judge, although Tony is pleased that he at last managed to persuade the judge of the difference, which is reflected in the wording of the Order. The inconsistency between that acknowledgement and the decision that s.8 nonetheless applied, could form the basis of a possible appeal.

 

As I have noted earlier: challenging the judgment in Leigh's case is possible, because consent to appeal was granted - but that would require leap-frogging the whole County Court & High Court process. Tony felt it simpler to avoid that with his different argument, though in the event it was not considered.

 

Still a matter of 'watch this space' I suspect.

[Machpoint005]

58 minutes ago, NigelMoore said:

Also, Tony was not really prepared, having previously been notified that this was to be a directions hearing only. CaRT unilaterally had the nature and location of the hearing amended to be a final hearing at a more distant court

 

Does this rather illustrate the ancient saying that a person who represents himself in court has a fool for a client?

 

 

[NigelMoore]

38 minutes ago, Machpoint005 said:

 

Does this rather illustrate the ancient saying that a person who represents himself in court has a fool for a client?

 

 

Not really, the saying applies to professionals – “a lawyer who represents himself has a fool for a client”. There are sound reasons for the cautionary note therein that have to do with perhaps over-confidence when dealing with litigation areas outside of their professional specialty, and a lack of the dispassionate viewpoint so critical to success.

 

It is only a generalisation though; a professional would be more aware of the procedural games that are played, as in this instance. When one is prepared for a particular type of preparatory hearing, to be faced with a final hearing instead is to be thrown out of kilter. A true professional would be prepared for any eventuality.

 

It doesn’t just apply to dealing with procedural games within the available protocols; entirely unexpected events can find you unprepared. I was prosecuting a case last week, in what was to be a directions hearing (as it would be called in civil court), only to find that the defendant did not turn up, and had sent an email to the court pleading guilty, and asking that the court hear the case in her absence. Despite what she told the court, she had not informed me of this.

 

OK, that meant that I succeeded, but it spiked certain requests for court orders that I was going to present, and I had not gone in expecting to have to justify costs awards, for which the judge said I would need to cite authority, because his understanding was that such awards were severely limited (not surprising given the relative rarity of private prosecutions). Consequently I said that I would not apply for my costs, even though I knew that I was entitled to them, not having the authorities to hand.

 

Tony will have outlined his case in his skeleton argument, but those rarely get aired in the absence of oral representations. Not a fool then, just outplayed by experienced litigators. Not being present in person will have further dented his effectiveness.

[Paul C]

Changing it to a final hearing would have probably saved on the overall legal costs though, which Tony now has to pay (for CRT). Do you have any idea what these are?

[NigelMoore]

1 hour ago, Paul C said:

Changing it to a final hearing would have probably saved on the overall legal costs though, which Tony now has to pay (for CRT). Do you have any idea what these are?

 

I don't. One might hope that these will be far less than the previous usual high figures, now that CaRT are using in-house lawyers rather than instructing outsourced solicitors to instruct barristers.

 

I presume he will appeal though, and ask for the costs order to be stayed pending the result of the appeal.

[Chewbacka]

8 minutes ago, NigelMoore said:

 

I don't. One might hope that these will be far less than the previous usual high figures, now that CaRT are using in-house lawyers rather than instructing outsourced solicitors to instruct barristers.

 

I presume he will appeal though, and ask for the costs order to be stayed pending the result of the appeal.

Maybe, but a lost appeal as others have found simply adds to the costs that have to be paid....

Best get professional advice before making that decision.

[NigelMoore]

4 minutes ago, Chewbacka said:

Maybe, but a lost appeal as others have found simply adds to the costs that have to be paid....

Best get professional advice before making that decision.

Of course. Getting professional advice, however, is difficult when so very few professionals are versed in this particular recondite area of law.

[Paul C]

46 minutes ago, NigelMoore said:

Of course. Getting professional advice, however, is difficult when so very few professionals are versed in this particular recondite area of law.

 

But it always was, and always will be - making these types of challenges somewhat of a crusade. He must have known that from the outset. I am not convinced of the wider benefit if Tony went on to "win" this one anyway - it seemed to be a cul-de-sac of waterways legislation. Still, its Tony's money and he can spend it on what he likes, I guess.

[Paul C]

1 hour ago, NigelMoore said:

 

and ask for the costs order to be stayed pending the result of the appeal.

 

This isn't a "given" though, it has a threshold and its entirely possible that it wouldn't be stayed, and/or the court can insist Tony puts up some type of security for the possible costs incurred by CRT if he loses the appeal. If the procedure isn't followed correctly, or Tony simply doesn't have the required funds, its effectively "game over" at this point.

[Paul C]

It looks like Tony Dunkley has failed to comply with the court order to obtain a Rivers Only Licence, due to his boat not having a BSS.

[Arthur Marshall]

6 minutes ago, Paul C said:

It looks like Tony Dunkley has failed to comply with the court order to obtain a Rivers Only Licence, due to his boat not having a BSS.

His argument, as I understand it, is that he doesn't want a licence, he wants a registration. CRT say they are the same thing, he says they aren't. A licence gives you the right to use the boat on the river, the registration just, presumably, allows it to be there. There's a difference in vat liability too which also seems to be part of his argument, which is too esoteric for me. 

I've never understood what the purpose of "registration" is if you then can't use the boat, but I suspect Tony does, as will Nigel. 

It's not relevant to me as I'm strictly nontidal. 

[Paul C]

I think he eventually swallowed his pride and realised he needs to buy the licence. But he didn't understand the BSS exemption rules properly and CRT have decided to inspect the boat. But it was all too late to comply in time. Whether CRT give some leeway or not, remains to be seen. 

[Arthur Marshall]

On 20/08/2019 at 18:24, Paul C said:

 

This isn't a "given" though, it has a threshold and its entirely possible that it wouldn't be stayed, and/or the court can insist Tony puts up some type of security for the possible costs incurred by CRT if he loses the appeal. If the procedure isn't followed correctly, or Tony simply doesn't have the required funds, its effectively "game over" at this point.

I understand he is currently bankrupt. Whether this affect anything I have no idea. 

[Alan de Enfield]

1 hour ago, Arthur Marshall said:

His argument, as I understand it, is that he doesn't want a licence, he wants a registration. CRT say they are the same thing, he says they aren't. A licence gives you the right to use the boat on the river, the registration just, presumably, allows it to be there. There's a difference in vat liability too which also seems to be part of his argument, which is too esoteric for me. 

I've never understood what the purpose of "registration" is if you then can't use the boat, but I suspect Tony does, as will Nigel. 

It's not relevant to me as I'm strictly nontidal. 

The VAT "Problem" is that :

 

The EA state that a River Registration is Zero Rated for VAT. C&RT claim that a River Registration is subject to VAT at 20%.

 

This all came to a 'head' when C&RT wanted to charge Rowing Clubs a licence fee. The rowing clubs expected the fees to be the same (VAT zero rated)as they paid the EA

 

There was a series of communications  between Suzie Mercer (C&RT Boating Trade Manager) and the Rowing Clubs, eventually they sorted out a compromise that the individual clubs would pay XXXXXXX and then XXXXXXX would pay C&RT (inclusive of VAT) then XXXXXXX would reclaim the VAT.

 

Edit to add : got the email to post :

 

 

Edited August 31, 2019 by Alan de Enfield

[Alan de Enfield]

I have a documents showing / listing all of the statutes, acts and commissions and history relating to the Public Right of Navigation on our Rivers, this lists every one back to the Magna Carta up to 'today' but unfortunately being a Pdf I can no longer post it on the forum.

 

One brief extract from the 37 pages :

 

1215 Magna Carta (see clause 33)
“All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole
of England, except on the sea coast.”
Although the Magna Carta of 1215 is the subject of it's 800 year anniversary celebration this
year, it is the 1297 reissue as the Great Charter of Liberties (see below) that is considered
formally as a statute. Whist there had been some changes and revisions from the 1215
version there was no change to clause 33 (later numbered clause 23).
In a lecture to the All Party Parliamentary Group on the Constitution, 26 February 2013 (see
page 2), Professor Nigel Saul, Professor of Medieval History, Royal Holloway University of
London said “Magna Carta ......... , clause 33 was to be of enormous significance in the
history of navigation in this country, because it established the principle of free passage
along England's rivers, so laying the foundations for transport development in the
Industrial Revolution.”
The Magna Carta Project academic commentary on Clause 33 (at the end of section (b))
confirms that this applied to all rivers - “Londoners came to believe that this could only be
achieved if they had the control of the whole of the Thames. The Charter did not make this
sweeping concession, but repeated John’s prohibition, without a penalty clause, and
extended it to all English rivers.”
The case of the King v Clark (1702) (12 Mod 615; 88 ER 1558) confirms “And per Holt,
Chief Justice, to hinder the course of a navigable river is against Magna Charta, c. 23, and
anything that aggravates the fact, though not directly to the issue, may be given in evidence
upon it; as here the taking of money to let people pass. And it is no exception to a witness
here, that he contributes to carry on the suit, or that this public nuisance was to his private
nuisance.”
There is therefore clear legal and academic precedent confirming that clause 33 was
witness to public navigation rights in all rivers.

[Alan de Enfield]

Another example (re the River Trent)

 

 

1377 Feb 22

Commission to Thomas de Ingelby, Roger de Kyrketon, Simon de Leke, William de Burgh and
William de Lughtburgh, on complaint that many weirs, mills, stanks, palings and kiddles are newly
placed and raised in the water of Trent between Nottingham and Kenaldeferye, so that the course of
the water is so diverted, obstructed and narrowed that ships and boats cannot pass as they used,
against the form of the ordinance made in the parliament lately held at Westminster, to survey all
such weirs, mills, stanks, palings and kiddles, and all other defects of the said water, find by
inquisition in the counties of Nottingham and Lincoln what weirs &c. were raised in the time of the
king's grandfather and afterwards, and by whom and when, compel the removal of all such and of
all other defects of the water by those who raised them and others who are bound to do this, do all
other things necessary for the better and safer passage of ships and boats, and hear and determine
the premises. Edward III, vol. 16, p. 489

[Paul C]

Alan, the arguments don't matter any more.......Tony had his chance in court, lost, and its looking like he can't appeal.

[Arthur Marshall]

So what does registering your boat get you, as opposed to licensing it? Is the implication that if there's a PRN, a licence is not required? Are some rivers treated differently from others? This has been rambling on for years, and I've never got anyone to explain it terms an idiot like myself can understand. 

[Alan de Enfield]

24 minutes ago, Arthur Marshall said:

So what does registering your boat get you, as opposed to licensing it? Is the implication that if there's a PRN, a licence is not required? Are some rivers treated differently from others? This has been rambling on for years, and I've never got anyone to explain it terms an idiot like myself can understand. 

I'm sure that @NigelMoore can explain it simply, but, my understanding is that :

 

A canal is 'private land' and a 'licence to use' is issued for a fee. A licence basically means 'permission'.

 

A Rivers registration certificate recognises that a boater has an automatic right to navigate on a river (PRN = Public Right of Navigation but the Navigation authority can charge to 'register' the boat (basically the fee then allows you to use locks etc, which are not included in the right to navigate).

The fee for a River Registration is enschrined in law at 60% of the price of a canal licence.

 

Here are a couple of paragraphs of info Nigel has posted in the past :

 

 

British Waterways Act 1983 Section 4(1). It states: “. . . the Board may register pleasure boats and houseboats under the Act of 1971 for such periods and on payment of such charges as they may from time to time determine: Provided that the charge payable for the registration of a pleasure boat shall not at any time exceed 60 per centum of the amount which would be payable to the Board for the licensing of such vessel on any inland waterway other than a river waterway referred to in Schedule 1 to the Act of 1971 . . .”

 

 

 

.....................….Effectively they are one and the same for your purposes. The difference between calling the Boat Permits a Registration Certificate or a Canal & River Licence may seem pedantic, but it reflects a significant difference in the legal status of the different waterways.

Rivers Only “licences” are called Certificates, because strictly speaking you do not need the authority’s “licence” i.e. “permission” to be on the water, given that those rivers still enjoy public rights of navigation; what the 1971 Act did was to make registration of craft using those rivers compulsory, for which a fee could be charged.

The canals form a separate legal entity in that since the Transport Act of 1968, all conferred rights of navigation were abolished, and with the 1976 byelaws, boat Licences were made compulsory for those waters, use of them being no longer as of right but by permission.

The different terms, in other words, reflect the differing legal status of the particular affected waterways, but in terms of someone wanting a boat to be legally on the water it amounts, to all intents and purposes, to the same thing in practice.

 

Eventually C&RT have accepted (and put into writing) :

 

 

There is no technical difference between a 'Boat licence' and the 'Registration Certificate'. The canal licence (which includes use of rivers) is distinctly a licence – this is because we own the canals and the device for granting permission to use is via a licence. Rivers are different. There is a statutory right of navigation and we don’t own them, so all that people have to do is to ‘register’ to use them (subject to a fee which the statutes allow for subject to the percentage condition we covered in the last query). So technically, it is not a ‘river only licence’ but a ‘river registration’. Since in practice the terms and conditions are the same, we have not for many years made a distinction in order avoid confusion.

I hope this helps.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
Canal & River Trust | The Kiln | Mather Road | Newark | NG24 1FB | Tel 01636 675 740 | [mobile number]
Follow my Blogs and the Canal & River Trust’s Customer Service team on Twitter
Please visit our website to find out more about the Canal & River Trust and download our ‘Shaping our Future’ document on the About Us page.

Edited August 31, 2019 by Alan de Enfield

[nicknorman]

1 hour ago, Paul C said:

Alan, the arguments don't matter any more.......Tony had his chance in court, lost, and its looking like he can't appeal.

Paul I think you are out of order posting your interpretation / hearsay about Tony on here when you know he is banned from this forum and so can’t put his side of the story.

[Arthur Marshall]

Thanks Alan. So, again presumably, the only reason Tony was refusing to buy the rivers only licence was because of the VAT issue. Which I would have thought would be an argument with IRC rather than CRT. And which is another organisation that suffers from poor management. 

[MtB]

9 minutes ago, nicknorman said:

Paul I think you are out of order posting your interpretation / hearsay about Tony on here when you know he is banned from this forum and so can’t put his side of the story.

 

Had Tony not elected to ignore the posting rules here, he would be not have been banned and would be free to put his side of the story.

 

 

 

[nicknorman]

Just now, Mike the Boilerman said:

 

Had Tony not elected to ignore the posting rules here, he would be not have been banned and would be free to put his side of the story.

 

Quite correct but not relevant.

[MtB]

Just now, nicknorman said:

Quite correct but not relevant.

 

Perfectly relevant. Tony has effectively self-excluded himself from answering Paul C's comments, so you criticism of Paul C for commenting is invalid.