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

[Fu Manchu]

A bit late, sorry, but a couple of thoughts

In section 63 of the judgement

"If Mr Moore were right it would be necessary to conduct  frequent surveys  of  all inland waterways for which CRT is responsible in order to obtain up to date details of the position of the deepest channel and to record the same ..."

They should be doing this anyway in order to know where to carry out dredging, so it is not a problem.

 

In section 65

"it seems to me that it is not normal to assume that a pleasure boat will be "kept" in such a thorough fare at all"

I'm guessing, but in artificial channels such as lock cuts the main navigable channel will be the whole width, and it is quite possible to "keep" a boat there.

[Chewbacka]

7 hours ago, Fu Manchu said:

A bit late, sorry, but a couple of thoughts

In section 63 of the judgement

"If Mr Moore were right it would be necessary to conduct  frequent surveys  of  all inland waterways for which CRT is responsible in order to obtain up to date details of the position of the deepest channel and to record the same ..."

They should be doing this anyway in order to know where to carry out dredging, so it is not a problem.

 

In section 65

"it seems to me that it is not normal to assume that a pleasure boat will be "kept" in such a thorough fare at all"

I'm guessing, but in artificial channels such as lock cuts the main navigable channel will be the whole width, and it is quite possible to "keep" a boat there.

I think the logic is that you would not keep a boat in the 'thorough fare' as it would be a hazard to navigation especially of larger craft attempting to pass, you would keep it to the side of the waterway, out of the 'thorough fare'.

[NigelMoore]

8 hours ago, Fu Manchu said:

A bit late, sorry, but a couple of thoughts

In section 63 of the judgement

"If Mr Moore were right it would be necessary to conduct  frequent surveys  of  all inland waterways for which CRT is responsible in order to obtain up to date details of the position of the deepest channel and to record the same ..."

They should be doing this anyway in order to know where to carry out dredging, so it is not a problem.

They ARE doing this anyway. There is useful information in CaRT’s Dredging Paper April 2011 –

http://www.britishwaterways.co.uk/media/documents/meetings/wusig/WUSIG-dredging-paper-April-2011.doc

This explains in detail just what is currently done and seen to be necessary in identifying the location and dimensions of the navigational channels within both canals and rivers, and notes that for most, surveys need only be carried out every 8 years.

The majority of the work is carried out under a national contract with Land and Water Group Ltd.

Exhibited for the judge were the Waterscape Restriction Notices re: River Ouse – first, Boothferry swing bridge from February to May 2011 –

“All river traffic should use the main navigable channel of the swung section. No other channels should be used.”

“24 hour restriction notice but does not affect the main channel . . . All river traffic should use the main navigable channel under the swung span. No other channels should be used.”

“Encapsulated scaffolding will be erected on the north and south brisdge piers to the main navigable channel. The scaffolding will extend beyond the piers into the channel reducing the overall navigable channel by 2.0m. The navigation lights are to be temporarily moved to mark the channel during the works . . . no other channel should be used.”

Same river, Selby Town Swing Bridge –

“. . . scaffolding below the fixed section of the bridge will prevent river traffic from using this section. Only the channel below the swung section will remain open to river traffic . . . All river traffic should use the main navigable channel under the swung span. No other channels should be used.”

April 2015 CaRT publication warning of hazards on this same river: “The main navigable channel between Boothferry Bridge and Howdendyke Island changes position. The plan overleaf indicates the navigable channel at this location.” This was what she picked up on, as an example, however, of the impracticality of having such plans drawn up!

As to the impracticality of marker buoys and the like indicating the channel [not really needed most of the time], the same publication notes: “Navigation lights are in place at various locations on the river banks and on fixed structures including wharves and bridges where they mark the navigable channel.”

The earlier 2013 Notice on restrictions had warned “The hydrographic survey along this section has been planned to confirm the position and depth of the main navigable channel. The survey will be undertaken by a 10m survey vessel ‘Little Shuva’.”

Confronted with evidence that surveys ARE regularly carried out over all canals and rivers; that they WERE carried out on sections where the MNC could have shifted; that plans showing the new channel WERE subsequently published, and that marking that channel HAD been carried out, it seems somewhat perverse to use that information to the opposite effect of demonstrating the impracticality of such work.

21 minutes ago, Chewbacka said:

I think the logic is that you would not keep a boat in the 'thorough fare' as it would be a hazard to navigation especially of larger craft attempting to pass, you would keep it to the side of the waterway, out of the 'thorough fare'.

I was at pains during presenting the case to warn of the danger in fully equating one phrase with another; a main [and secondary] navigable channel may be contained within a “fairway”, and a fairway may be a part only of a main navigable channel. Hence, as I said, it is important to concentrate on the phrase in question, albeit comparisons are valuable in gaining an overall understanding.

The EA “River Thames Team” update of 23 June this year, noted “For your safety, we have marked all known shallow areas in the main navigable channel (the middle third of the river, also known as the ‘fairway’) with red and green buoys.” In that usage, they have equated a ‘fairway’ with the MNC, yet areas within that are clearly unnavigable.

It is relevant that the judgment notes the Google Earth photos I provided, showing boats moored within the centre of the middle third of the river [the ‘main navigable channel’ according to the EA] as well as to the banks, and sometimes extending from the banks via jetties and pontoons into the MNC. The point I had made was that this illustrates the location specific characteristics of various waterways, wherein ‘keeping’ a boat within the MNC of a broad waterway will be practical, whereas in other instances it will certainly not be.

It does seem rather bizarre to have made the statement she does, having seen the evidence to the contrary.

[Paul C]

So having now digested the judgement, do you think there's still valid grounds of appeal? I don't know the technical/legal term, but isn't there a mechanism where Leigh needs to prove ability to pay the costs if he loses, before he can take it to the next stage? Is this present (or likely to be) here?

[NigelMoore]

3 minutes ago, Paul C said:

So having now digested the judgement, do you think there's still valid grounds of appeal? I don't know the technical/legal term, but isn't there a mechanism where Leigh needs to prove ability to pay the costs if he loses, before he can take it to the next stage? Is this present (or likely to be) here?

I have been avoiding reading let alone 'digesting' the judgment over the last few days, in favour of pressing matters of my own [company accounts time again]. Still, discussing this with Leigh yesterday, even on a brief overview of the judgment and the reasons given, I am confident that there are indeed good grounds for Appeal. For one thing, she has avoided ALL reference to the fact that she was to construe a private Act of Parliament, so applying the broad approach she uses [however good an approach if applied correctly] without reviewing the special considerations that must apply to privately promoted Acts, is a serious defect in the judgment. It was wrong for her to suggest [even if only by implication], that Leigh and I had agreed to her using this approach alone - we had NOT, and expressly said so. Anyone reading the judgment alone would have to think otherwise of course.

The decision on proportionality relied upon characterising the sanctions of the 1971 Act for failure to register, as action for recovery of debt, and yet that is not so; the primary aim of the sanction is to compel registration, with Orders for owed fees being an additional possibility open to the Magistrates. The fact of the daily fine from conviction until compliance is evidence enough for that. If debt recovery alone was sought, s.5 of the 1983 Act so provides, should civil action be preferred over prosecution. This affected the whole question of proportionality under the HRA.

The decision over Distress is bizarre, given CaRT's admission that this was a mistake, yet had convoluted argument as to why it did not legally constitute distress, and that no damage had occurred. Leigh wanted a declaration that s.8 could not be used as it had been, and was fully entitled to that, even IF it was determined that he had suffered no loss thereby, and that it had all been an 'unfortunate mistake'. As to that last, to categorise their action as an oversight is utterly perverse in light of the specific correspondence content she was taken to. Not only are falsehoods repeated that are demonstrably incorrect, there are serious omissions and failures to acknowledge pertinent facts.

There are, in fact, at least 3 completely false statements in the judgment, however impossible for someone not privy to the pleadings and evidence and transcripts to realise. Decisions based upon these are inherently unsafe.

This is not to say that permission to appeal will be granted; if the bruited suspicions are true, that directives from on high have dictated the results in this and the earlier EA v Barras cases, then permission is unlikely - but at present, Leigh is of a mind to try. I would hope that he can get some decent pro bono professional advocate to help him from this point on, and am trying to help him in this; unquestionably my advocacy was never going to be up to the standard of a competent professional, albeit that, for all my regrets over my failure to more actively take the judge through the evidence, I still feel that enough was presented for the right decisions to have been made. The omissions of certain evidence, the misinterpretation of others, and the uncritical acceptance of certain statements by CaRT, are evidence enough that she had a good grasp of the issues and facts as presented. I am not convinced that a professional unacquainted with the specific legislative background could have been more persuasive at this level, but going forward - especially given the material assembled - I think they could be. That would be especially true with the HRA issue.

[Paul C]

That's my point, partly. Even taking into account that there's elements of the judgement which you think are illogical or wrong based on the evidence, putting these to one side are they incidental or pivotal to the main thrust of the judgement, in that the main navigable channel need not mean exactly the same thing in different Acts or documents; such that, the basic fact is a licence is needed bank-to-bank and to not do so would be unworkable, so could never have been the intention of the legislators. Whilst you're keen to point out the illogical bits, based on the evidence, there's an amount of what the judge basically dismissed/didn't believe/labelled as lies/etc (choose your own weighting or phraseology) regarding Leigh selling the boat, still paying for a licence even though he didn't own it, then buying back the same boat, etc etc and then simply ignoring the notices and/or not engaging with CRT in an effort to resolve, until they took the action of removing the boat.

[NigelMoore]

All acknowledged Paul. I was not referring to her disbelief of Leigh's evidence as you list; that is within her discretion and is of only emotive impact on the issues at stake, relevant only to any bias based on a perception of unreliability. Leigh did himself no favours in ignoring the situation - which was admittedly the case, even on his own admission respecting the last Notice. Whether he did or did not have sight of previous notices cannot alter the fact of ignoring the last. Communication even at that late stage would have been the sensible thing to do.

The only grounds for appeal must relate to pertinent errors of fact and law. My provisional view is that these definitely exist.

[Iain_S]

5 hours ago, Chewbacka said:

I think the logic is that you would not keep a boat in the 'thorough fare' as it would be a hazard to navigation especially of larger craft attempting to pass, you would keep it to the side of the waterway, out of the 'thorough fare'.

i.e. out of the Main Navigational Channel !

[Mike Todd]

13 hours ago, Fu Manchu said:

A bit late, sorry, but a couple of thoughts

In section 63 of the judgement

"If Mr Moore were right it would be necessary to conduct  frequent surveys  of  all inland waterways for which CRT is responsible in order to obtain up to date details of the position of the deepest channel and to record the same ..."

They should be doing this anyway in order to know where to carry out dredging, so it is not a problem.

 

In section 65

"it seems to me that it is not normal to assume that a pleasure boat will be "kept" in such a thorough fare at all"

I'm guessing, but in artificial channels such as lock cuts the main navigable channel will be the whole width, and it is quite possible to "keep" a boat there.

Which canals have you been on? Where have you found that you can always guarantee to get your boat alongside the towpath, let alone the offside? Moat were built either U or V shaped.

[Chewbacka]

46 minutes ago, Iain_S said:

i.e. out of the Main Navigational Channel !

Not in this case as "main navigation channel" is not a legally defined term and so can mean different things in different contexts.

Added - I mean, yes in this case, but no you can not them apply this definition/use to that used to define the area requiring a licence as 'Main navigation channel' is not a defined term, so means whatever is appropriate to the context it is used in.  Which may be frustrating, but is what it is.

 

Edited July 28, 2017 by Chewbacka

[Wanderer Vagabond]

4 hours ago, NigelMoore said:

.....There are, in fact, at least 3 completely false statements in the judgment, however impossible for someone not privy to the pleadings and evidence and transcripts to realise. Decisions based upon these are inherently unsafe......

 

I think that this might need some clarification, have you said here exactly what you mean? I may agree that there could be 3 incorrect assessments contained in the judgement; if however you are stating that the Judge has made 3 false statements within her judgement, you are effectively calling her a liar (what else is a false statement?). That would be a matter for the Lord Chief Justice to deal with if you claim that the judge is lying, but I would hope that the evidence would be incontrovertible. She identified what she felt were the false statements made by Leigh, what were the lies told by the judge?  

[Fu Manchu]

47 minutes ago, Mike Todd said:

Which canals have you been on? Where have you found that you can always guarantee to get your boat alongside the towpath, let alone the offside? Moat were built either U or V shaped.

It's over 30 years since I last cruised on the Trent below Nottingham so I don't claim to know the situation there.  But more recently I had no trouble geting a boat alongside the towpath in the lock cut above Sawley Lock, for example.

[NigelMoore]

42 minutes ago, Wanderer Vagabond said:

I think that this might need some clarification, have you said here exactly what you mean? I may agree that there could be 3 incorrect assessments contained in the judgement; if however you are stating that the Judge has made 3 false statements within her judgement, you are effectively calling her a liar (what else is a false statement?). That would be a matter for the Lord Chief Justice to deal with if you claim that the judge is lying, but I would hope that the evidence would be incontrovertible. She identified what she felt were the false statements made by Leigh, what were the lies told by the judge?  

“False statement” I use in the sense that the statement is false to fact, i.e. incorrect. Whether the judge knew that they were incorrect or not would determine whether one could call them lies.

Paragraph 19: “It is not disputed that during heated scenes at the Marina, at which the police were present, Mr Ravenscroft’s father offered to pay any arrears of licence fees . . .” whereas the attached list of refutations has CaRT saying [point 35] : “Not accepted Mr Ravenscroft’s father made an offer to pay”. She may not have read what she attached to her judgment of course, and may have forgotten that the same disputation was maintained by CaRT in their Defence.

 Paragraph 28 “Mr Garner was cross examined by Mr Moore. Mr Garner maintained that there was no intention on the part of the CRT to hold the vessel as a lien for arrears of licence fees . . .” That is a completely incorrect description of what Garner said in my cross examination of him. His sworn written witness statement had claimed Shoosmiths maintained that, in an email to Leigh; asked to show the court where the email said that, he had to admit: “No, it doesn’t.” That is the sum total of everything he said under my cross examination respecting CaRT’s intentions. The judge may not having been paying attention of course, and/or may have simply misunderstood "No it doesn't" to mean "that is what I thought anyway".

Paragraph 98 “there was no offer purely to pay the storage and removal charges despite the fact that the correspondence reveals that Mr Ravenscroft was aware of the distinction.” From the transcript of proceedings: - “I’m making reference to this because I thought I understood Mr Stoner to say that there wasn’t any offer to pay the sum of removal and storage costs, but on p.54 Mr Ravenscroft sends to Lucy Grey of Shoosmiths . . . [reading exhibited emails] “I . . .  will arrange to transfer the quoted sum of £6,630 when I know where to send it.” And the 6,630 is what he understood to be the removal and storage costs only.”  The read out response to that was the repeated demand for twice that sum. Perhaps by this stage I had bored the judge into total somnambulism and she never heard or read the exhibited offer purely to pay the storage and removal costs.

So I am not accusing her of deliberately misrepresenting facts, but the statements are demonstrably false to the facts regardless. Given that all the above factored into the proportionality and [particularly] distress determinations, those determinations are suspect whether she believed her statements or not.

[Fu Manchu]

13 hours ago, Wanderer Vagabond said:

I think that this might need some clarification, have you said here exactly what you mean? I may agree that there could be 3 incorrect assessments contained in the judgement; if however you are stating that the Judge has made 3 false statements within her judgement, you are effectively calling her a liar (what else is a false statement?). That would be a matter for the Lord Chief Justice to deal with if you claim that the judge is lying, but I would hope that the evidence would be incontrovertible. She identified what she felt were the false statements made by Leigh, what were the lies told by the judge?  

 

11 hours ago, NigelMoore said:

“False statement” I use in the sense that the statement is false to fact, i.e. incorrect. Whether the judge knew that they were incorrect or not would determine whether one could call them lies.

We know that you used it in that sense, but one of the definitions of "false" in the dictionary is "deceptive".  Better to say "incorrect" and nobody can misunderstand that!

[Chewbacka]

11 hours ago, NigelMoore said:

“False statement” I use in the sense that the statement is false to fact, i.e. incorrect. Whether the judge knew that they were incorrect or not would determine whether one could call them lies.

Paragraph 19: “It is not disputed that during heated scenes at the Marina, at which the police were present, Mr Ravenscroft’s father offered to pay any arrears of licence fees . . .” whereas the attached list of refutations has CaRT saying [point 35] : “Not accepted Mr Ravenscroft’s father made an offer to pay”. She may not have read what she attached to her judgment of course, and may have forgotten that the same disputation was maintained by CaRT in their Defence.

 Paragraph 28 “Mr Garner was cross examined by Mr Moore. Mr Garner maintained that there was no intention on the part of the CRT to hold the vessel as a lien for arrears of licence fees . . .” That is a completely incorrect description of what Garner said in my cross examination of him. His sworn written witness statement had claimed Shoosmiths maintained that, in an email to Leigh; asked to show the court where the email said that, he had to admit: “No, it doesn’t.” That is the sum total of everything he said under my cross examination respecting CaRT’s intentions. The judge may not having been paying attention of course, and/or may have simply misunderstood "No it doesn't" to mean "that is what I thought anyway".

Paragraph 98 “there was no offer purely to pay the storage and removal charges despite the fact that the correspondence reveals that Mr Ravenscroft was aware of the distinction.” From the transcript of proceedings: - “I’m making reference to this because I thought I understood Mr Stoner to say that there wasn’t any offer to pay the sum of removal and storage costs, but on p.54 Mr Ravenscroft sends to Lucy Grey of Shoosmiths . . . [reading exhibited emails] “I . . .  will arrange to transfer the quoted sum of £6,630 when I know where to send it.” And the 6,630 is what he understood to be the removal and storage costs only.”  The read out response to that was the repeated demand for twice that sum. Perhaps by this stage I had bored the judge into total somnambulism and she never heard or read the exhibited offer purely to pay the storage and removal costs.

So I am not accusing her of deliberately misrepresenting facts, but the statements are demonstrably false to the facts regardless. Given that all the above factored into the proportionality and [particularly] distress determinations, those determinations are suspect whether she believed her statements or not.

Nigel - You requested some comments upon the judgement and presumably especially concerning your comments above.

So not wishing to offend you, my comments are solely based upon the judgement.  Note that I have not read all the witness statements and more importantly I was not present at the court.  However from reading the judgement my opinion is somewhat different to yours.

 

So............deep breath....... - and I am not a lawyer - some comments.

Para 19 -  “It is not disputed that during heated scenes at the Marina, at which the police were present, Mr Ravenscroft’s father offered to pay any arrears of licence fees . . .”   As this is the judgement I take "not disputed" to mean that having heard all the evidence from both sides, including the video, that it is now clear and accepted by the judge that Mr Ravenscroft’s father offered to pay any arrears of licence fees . .  

Which I would assume you do agree with.

 

Para 21 details the amount of £6630 plus additional storage charges currently accruing at £45 per week that must be paid to release the boat.  That is the required amount to release the vessel.  The para goes on to say that back licence fees are also owed £1685.20 however it does not state that this must be paid before the boat is released.  Then the total figure of monies owed currently stands at £8315.20.  It is clear that CRT only require £6630 plus £45 per week of ongoing storage fees to release the boat.

Para 22 states that CRT then requested £12,676 to release the boat, but this was contested by Mr Ravenscroft who offered £8176 which was accepted by CRT and the boat released.  There is no comment made as to whether CRT would have released the boat had he offered £6330 plus however many £45 were also accrued, as he made an offer greater than this figure.  CRT were under no obligation to advise him that they would have accepted less than the £8176 that he did offer.  

Para 28  Mr Garner maintained that CRT were not holding the boat as a lien for licence arrears.  He did quote a figure including arrears claiming that he was answering the question of "total owed".   The judge concludes that  "He" (Mr Garner) "accepted the total figure that he had quoted orally on that occasion to enable Mr Ravenscroft to recover his vessel had included such arrears".

 

Para 95~98  The vessel was legally removed under S8 and was not removed for non-payment of licence fees.  CRT accepts at the court that they had no right to demand licence fees as a condition of release even though CRT did quote figures both verbally and in writing that included licence arrears.  However Mr Ravenscroft did not explicitly offer to pay only the storage and removal charges to gain release of his vessel.

So whilst Mr Ravenscroft may have asked where to send £6630 he did not explicitly state he only wished to pay removal and storage, also by this date, the £6630 figure was presumably inadequate as there must have been a number of weeks of unpaid storage costs of £45 per week accrued, and so the 'offer' of £6630 was probably inadequate to cover the removal and storage charges accrued, in which case CRT were not obligated to accept the offer and release the vessel.

Had Mr Ravenscroft made an offer or even a payment of £6630 plus how ever many £45 were accrued and clearly stated this was to cover the removal and storage costs and demanded the release of his vessel it would have been very different had CRT refused.  However this offer would appear to never have been explicitly and formally made, though Mr Ravenscroft may consider that his request of where to send £6630 did constitute such an offer.  But as I said above, I assume that the sum of £6630 is inadequate to cover the charges and so would have been an inadequate offer and can be refused.

 

[NigelMoore]

1 hour ago, Chewbacka said:

Nigel - You requested some comments upon the judgement and presumably especially concerning your comments above.

So not wishing to offend you, my comments are solely based upon the judgement.  Note that I have not read all the witness statements and more importantly I was not present at the court.  However from reading the judgement my opinion is somewhat different to yours.
 

No offence whatsoever; glad of your constructive criticism. It is unsurprising that reading from the judgment alone gives rise to a different opinion – that is part of what I find at fault with it.

Paragraph 19 – I do of course agree that the judge having heard the video, accepted that the offer to pay was made. The phraseology about that ‘not being disputed’, however, does not match up with that being her considered opinion as against CaRT’s denial. Commensurate with her style when analysing Leigh’s evidence, she would normally have said: “I am unable to accept Mr Stoner’s denial that an offer to pay was made”. At the very least, “I do not dispute” the fact, would have met your scenario more realistically than “it is not disputed”. I don’t think she ever refers to herself in the third person elsewhere, or in such a style.

Paragraph 28 – what Mr Garner said in his statement and in court responding to Mr Stoner, should not be confused with what he said under cross examination by me, to which the judge explicitly refers. Of course they have been denying ever since Leigh launched his case, that they had had any intention of holding the boat pending payment of ‘licence’ arrears. The question at issue with Mr Garner’s statement was whether Shoosmiths had in fact said explicitly said so to Leigh, prior to allowing return of the boat. The facts are that neither Shoosmiths nor CaRT said anything about it at all – even though both Leigh, and before that his then MF, had explicitly claimed that only removal and storage costs need be paid, and put them on written notice to that effect. You cannot get that from the judgment, but it was in evidence, and was read out in court.

Pargaraph 98 - Leigh’s stated intent to send the £6,630 was in the repeatedly stated context of that being all he was obliged under law to pay, and that being the quoted figure for removal and storage costs only. It was not accepted – not on the basis that it did not cover additional days, but because it did not include either ‘licence’ arrears or court costs. The quoted sum for removal and storage had already included the weekly charges to the date of Leigh’s email I believe, though I would have to check. Regardless, whether the sum he mentioned was accurately to date or not, the stated intention to pay removal and storage costs only is absolutely clear in the evidence, and that is what is being denied.

It is pertinent to note that in the parallel proceedings due to be heard later this year, Shoosmiths filed a skeleton argument wherein they state: “On 27 January 2015, the Trust removed the Boat from the Property pursuant to its statutory powers and arranged storage of the Boat pending payment of the sums owing to the Trust by the Appellant, which included the cost of removal and storage of the boat.”

[NigelMoore]

It may help to read such of the proceedings as Leigh got transcripts of. Partial transcripts from the hearing here, first the evidence of the Enforcement Officer Stuart Garner on oath: -

https://www.scribd.com/document/354614776/Ravenscroft-v-CaRT-Garner-Evidence-at-Trial

Second, submissions by Mr Stoner and myself over the ‘distress’ angle: -

https://www.scribd.com/document/354614777/Ravenscroft-v-CaRT-Submissions-at-Court-on-Distress

 

[Chewbacka]

Nigel - - I will read your links concerning evidence later.  However some more comments-

In court she would refer to herself as 'I' but in her written judgement where she is giving the judgement of the court, I (as in me), would expect her to use 'it is accepted' rather than 'I accept', and this is further supported - I think - by the style of writing used for the judgement and in the appendix where a number of witness claims are 'not accepted'.

It is clear from the judgement that only removal and storage charges were legally required to be paid for the return of the boat.  Also if you read para 103 it is clear that she was far from happy that for a period, including mention of the CRT web site, CRT were quoting a figure including licence fee arrears.   But the judgement goes on to say that the boat was removed under S8 and not because of any licence arrears and this was lawful.

 At this point, CRT then stated that to return the boat monies owed must be paid and were quoting a figure including licence arrears (Para 103).  Ultimately an offer was made and accepted, and because the vessel had been returned before proceedings had started for it's recovery then it can not be progressed - para 105.  However the judgement goes on to say that Mr Ravenscroft did not suffer any loss - he may have suffered loss, but it appears that no loss was presented to the court. If Mr Ravenscroft were to claim that holding the boat to force payment of licence arrears were unreasonable the judgement makes reference to this in para 104 " if distraint were levied whether unlawfully or by excessive means, Mr Ravenscroft might have been entitled to nominal damages"  Presumably Mr Ravenscroft did not explicitly present this to the court and seek damages.  But if he had they would have only been a nominal amount.

The judgement goes on to say that it 'may' under the 1977 act have been possible to advance a claim related to 'trespass to goods' - I don't know what that is or entails - but it seems that this was not explicitly claimed or presented to the court.  But again the judgement does go on to indicate that any claim had it succeeded would not be a great amount of money as there was no evidence of any loss presented.  So even if CRT had acted unlawfully or unreasonably in it's attempts to recover the licence arrears which Mr Ravenscroft owed, as Mr Ravenscroft had suffered no financial loss because of CRT's actions then little compensation could be awarded. 

You said above that "Regardless, whether the sum he mentioned was accurately to date or not, the stated intention to pay removal and storage costs only is absolutely clear in the evidence, and that is what is being denied."  I think that this is not denied by the courts findings, see my comments about para 104 above, as well as para 21 and para 95~98 of the judgement.

 

Tidied up the final paragraph as I posted before I had finished.

Edited July 29, 2017 by Chewbacka

[Muddy Ditch Rich]

 

Is there any evidence that BW or CaRT ever used the term 'MNC' to mean what it now means for river navigation's ?

[Chewbacka]

1 minute ago, Muddy Ditch Rich said:

 

Is there any evidence that BW or CaRT ever used the term 'MNC' to mean what it now means for river navigation's ?

I doubt it matters as we are talking about the meaning of MNC within the Act.  The Act is written by law makers and not by CRT/BW.  But as already discussed MNC is not a defined term and so can mean different things in different acts and it is finally up to the courts to decide what is meant by MNC in any specific context in any specific act.

[Chewbacka]

Nigel

Above - post #318 - I wrote "You said above that "Regardless, whether the sum he mentioned was accurately to date or not, the stated intention to pay removal and storage costs only is absolutely clear in the evidence, and that is what is being denied."  I think that this is not denied by the courts findings, see my comments about para 104 above, as well as para 21 and para 95~98 of the judgement."

Having read "extracts from closing submissions" from the link you posted I find that -  p6 marked on the doc,  which is web page 8 - zone c - the following -

Mr Stoner: ............that the powers under s8 do not entitle seizure and keeping of boats as a lien on prior debts

Judge: You agree

Mr Stoner:  Well I have accepted from the outset that licence arrears could not be claimed under s8....................

 

Added - So everybody agrees that a boat removed under s8 can not be held until outstanding licence fees and other unrelated debts to s8 are paid.  In fact Mr Stoner even raised the prospect of the court ordering the repayment to Mr Ravenscroft of the licence arrears that he had paid to gain release of his boat and if so, rather than paying him money could it be offset against his debts. - Web page 9, doc page 7 zone B

Added - Now I need a cup of tea, actually something a lot stronger after reading through all these court docs you linked to, especially the stuff about Marlborough.......

Edited July 29, 2017 by Chewbacka

[NigelMoore]

1 hour ago, Chewbacka said:

I doubt it matters as we are talking about the meaning of MNC within the Act.  The Act is written by law makers and not by CRT/BW.  But as already discussed MNC is not a defined term and so can mean different things in different acts and it is finally up to the courts to decide what is meant by MNC in any specific context in any specific act.

First, thanks for the thoughtful observations, and I will think on them. For now though, your comment emboldened above is not strictly true in this instance. It is true of public Acts, but not of private Acts. The 1971 Act was written by BW as a privately promoted Bill, to be scrutinised and passed by Parliament, with possible omissions and amendments. That being so, different approaches must be made regarding the Court's construing their meaning - and the basic tenet is that any ambiguity must be construed against the promoters in favour of the public. The fact that the promoters in this instance have always held that the previous [public] Act that defined MNC, carried the meaning contested for by Leigh, would itself militate against an interpretation that meant more than what they argued for in that Act, in their own drafted Act of a few years later. This essential tenet of construction was bypassed altogether by the judge - and it was NOT agreed that the approach she had proposed was accepted as something to be applied without considering also, the other identified tenets such as those applying to private Acts.

[Chewbacka]

Nigel - I just had a google on 'main navigable channel' and in most cases it means the zone of a river that is navigable at low water, though in a few cases it means the main river but excludes tributaries, bays etc as well as where one 'half' of where the river splits in two and rejoins later, only one side being considered as the MNC.   But non of these are 'official' definitions.  If I come across one I will share with you.

[Chewbacka]

Nigel - A bit more for you to think on.

Copied from your post #316    It is pertinent to note that in the parallel proceedings due to be heard later this year, Shoosmiths filed a skeleton argument wherein they state: “On 27 January 2015, the Trust removed the Boat from the Property pursuant to its statutory powers and arranged storage of the Boat pending payment of the sums owing to the Trust by the Appellant, which included the cost of removal and storage of the boat.”

But this is not wrong in that they are entitled to claim under s8 the costs associated with the removal and storage of the boat.  Whilst 'included' to you or me means lots of other stuff as well, they will no doubt in light of this judgement now state that in this case it is of course only limited to those cost s8 specifically allows them to claim and certainly does not include licence arrears.  Under pressure they will possibly admit to an unfortunate mistake in also claiming other amounts of money which under s8 they were not entitled to claim........

[Wanderer Vagabond]

5 hours ago, NigelMoore said:

Paragraph 28 – what Mr Garner said in his statement and in court responding to Mr Stoner, should not be confused with what he said under cross examination by me, to which the judge explicitly refers. Of course they have been denying ever since Leigh launched his case, that they had had any intention of holding the boat pending payment of ‘licence’ arrears. The question at issue with Mr Garner’s statement was whether Shoosmiths had in fact said explicitly said so to Leigh, prior to allowing return of the boat. The facts are that neither Shoosmiths nor CaRT said anything about it at all – even though both Leigh, and before that his then MF, had explicitly claimed that only removal and storage costs need be paid, and put them on written notice to that effect. You cannot get that from the judgment, but it was in evidence, and was read out in court.

 

I think that this is an area that does give some confusion. In Mr Garner's response to your cross-examination he is effectively being questioned on the actions of  a third party, the author of the e-mail from Shoosmith's. From my limited Court experience, if the subject under consideration is uncontested then they are usually relaxed about someone doing this (although it is frowned upon). If however the matter is contested then it is the author of the relevant e-mail that needs to be cross-examined. Mr Garner may well have been accurately portraying CRT's position (your guess is as good as mine) but is being asked to answer for the contents of an e-mail from Shoosmiths not associated directly to him which may or may not have accurately represented CRT's position. Whilst Mr Garner, as a representative of CRT can be held responsible for CRT's actions, he isn't however a representative of Shoosmiths, who should answer for their own actions.