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

[Alan de Enfield]

 

It could better be read, perhaps, that although Shoosmiths advise him that such statements are at best legally arguable, he is going to assert them as fact anyway, regardless of advice from CaRT’s solicitors. Curious. A get-out clause insisted upon by Shoosmiths? That would be canny of them. It would make far more sense, even though it would still leave Mr Stoner in an awkward position; he will still be obliged to hold an opposite stand, in deference to his greater duty to the Court.

 

 

As the 'man on the Clapham omnibus' I read it this way.

 

Shoosmiths advise that their interpretation is this, but 'it is arguable either way'. That stance doesn't sit well with C&RT who want to state that it is 'definitely fact' and intend to do so.

 

Yet again C&RT are trying the 'Bullshit baffles brains' technique, and, if you shout it loud enough and repeat it often enough it becomes fact.

 

The following quote is one I like to refer to on occasions such as this

 

"When a well-packaged web of lies has been sold gradually to the masses over many years,

the truth will seem utterly preposterous and its speaker a raving lunatic". Dresden James

[NigelMoore]

As the 'man on the Clapham omnibus' I read it this way.

 

Shoosmiths advise that their interpretation is this, but 'it is arguable either way'. That stance doesn't sit well with C&RT who want to state that it is 'definitely fact' and intend to do so.

 

I believe you read it aright Alan, but there remains the possibility that, for all Shoosmiths acknowledge “it is arguable either way”, they are telling Mr Grimes what his employer’s case is.

 

Paragraph 18 “I am informed by Shoosmiths LLP that - whilst a matter of legal argument (if the point is disputed) - it is the Trust’s case that . . .”

 

Paragraph 20 is less transparent, but could also be read that way.

 

If Mr Grimes needs Shoosmiths to tell him what his employer’s case is, who needs his witness statement? He is effectively acting only as a spokesperson for his firm’s solicitors; it is a device to get their oar in on legal argument that has been overlooked hitherto, because the client has not appreciated properly what their case really is!

 

For Shoosmiths’ sake, I would hope my last ‘take’ was correct; on CaRT’s side I cannot see that either way of reading the statement reflects well on them.

[Mike Todd]

Interesting that 'contrary to common perceptions there is no public right of navigation' on the River' (Paragraph 17)

The key part cited seems to be:

 

(5)Section 17 of the M1Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

(a)confers any public or private right of navigation over the waterway; or

(b)imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect.

How do folk interpret that with regard to PRN? Is it this para that was previously argued?

[Phil.]

I believe you read it aright Alan, but there remains the possibility that, for all Shoosmiths acknowledge “[/size]it is arguable either way”, they are [/size]telling Mr Grimes what his employer’s case is.[/size]

 

Paragraph 18 “I am informed by Shoosmiths LLP that - whilst a matter of legal argument (if the point is disputed) - it is the Trust’s case that . . .”

 

Paragraph 20 is less transparent, but could also be read that way.

 

If Mr Grimes needs Shoosmiths to tell him what his employer’s case is, who needs his witness statement? He is effectively acting only as a spokesperson for his firm’s solicitors; it is a device to get their oar in on legal argument that has been overlooked hitherto, because the client has not appreciated properly what their case really is!

 

For Shoosmiths’ sake, I would hope my last ‘take’ was correct; on CaRT’s side I cannot see that either way of reading the statement reflects well on them.

To me it indicates a lack of confidence in the legal position he is taking in his statement and the caveat is there so that if the matter is challenged legally, he can state he was holding that position on the basis of advice, thereby reducing any criticism he may receive personally, if his point is found in court to be baseless.

[NigelMoore]

 

The key part cited seems to be:

 

(5)Section 17 of the M1Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

(a)confers any public or private right of navigation over the waterway; or

(b)imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect.

How do folk interpret that with regard to PRN? Is it this para that was previously argued?

 

 

Yes, exactly that. Johnson had to admit that he was wrong in the interpretation that this included the rivers, over which the PRN's were NOT conferred by legislation, but which were only confirmed by legislation. The crucial qualifier is in s.115 – “Interpretation of Part VII”

 

“(2) Nothing in section 105 or in any order under section 112 of this Act shall be construed as abrogating any rights of navigation which subsist otherwise than by virtue of the enactments referred to in subsections (5) and (6) of the said section 105 or subsection (1) of the said section 112; and in those subsections references to rights conferred by an enactment do not include references to rights which are merely confirmed by it and which, if that enactment had not been passed, would subsist otherwise than by virtue of any such enactments as aforesaid.” [my emphasis]

 

This was crystal clear to Mr Justice Hildyard, who noted that not only had Johnson's assertions been wrong, they were couched in abrasive and contemptuous language of assumed superiority that set the abrasive tone for the ensuing years of litigation.

 

As to Mr Grimes' paragraph 20 argument respecting the effect of s.43 of the 1962 Transport Act, I have recently obtained a copy of BW’s report to Parliament on the state of the waterways in 1965. Titled “The Facts About The Waterways”, this was part of the lead-up research into the 1968 Transport Act.

 

Despite being published only 3 years on from the 1962 Transport Act, BW appeared strangely oblivious to the fact that s.43 gave them unlimited powers to make licences mandatory regardless of PRN’s, and to make those subject to whatever charges and conditions they pleased – whether on rivers or canals.

 

On canals they had followed the example of their predecessors and offered annual licences in lieu of tolls, even though this meant lesser gross income [because it netted greater net income], but on the rivers the only tolls were for lock passages, and you could use the rivers between locks for free. [The same situation applied to many canals also of course, though obviously neither BW nor their predecessors troubled themselves overmuch with such ‘technicalities’.]

 

As relevant to the content of Mr Grimes statement though, on page 37 under the heading “Pleasure Boating” they said:

 

“As far as certain rivers are concerned there would be a perceptible (though not dramatic) improvement IF the Board were statutorily enabled to make charges on craft not using locks.” [my emphasis]

 

This reflects the content of the BW Annual report for 1964, wherein, under the heading “River Navigations”, paragraph 65 noted:

 

“The Board’s powers to require pleasure craft to be licensed on some of the river navigations – including the Lee, Stort, Severn and Trent – are limited by the existence of public rights of navigation. Pleasure craft owners do not require a licence to operate in such cases: but to pass though locks they must be in possession of a valid licence or lock pass or pay the relevant lockage charges.” [my bold]

 

If only they had had then, the benefit of Mr Grimes’ superior understanding of what the Act of a few years’ previous had already granted them! They would not then have had to go to the enormous trouble and expense of promoting the Bill that became the totally redundant 1971 Act, ostensibly conferring an hitherto unavailable power to demand chargeable registration of craft not using locks on the main navigable channel of the rivers. Not to mention the compulsory chargeable registration of houseboats.

 

Representing the perceived need for the British Waterways Bill 1970, the MP Mr John Wells informed the House of Commons on 19 March 1970:

 

“The board has insufficient powers to introduce such a scheme without Parliamentary approval. None of the ancient public rights of navigation existing on the board's free rivers was affected by nationalisation or the subsequent Section 105 of the Transport Act, 1968, which abolished, in so far as they may have existed, the free rights of navigation on its artificial canals.

 

The proposed registration scheme contained in the Bill would enable the board to raise from users of pleasure craft income which would not otherwise be available to it.”

 

Poor silly Parliamentarian; why was Mr Grimes born so late?

To me it indicates a lack of confidence in the legal position he is taking in his statement and the caveat is there so that if the matter is challenged legally, he can state he was holding that position on the basis of advice, thereby reducing any criticism he may receive personally, if his point is found in court to be baseless.

 

I agree, that is another strong possibility. Sensible fellow if so.

[NigelMoore]

Related to the paragraph 17 of Mr Grimes' statement respecting the supposed abolition of PRN's, it has been pointed out to me that I had overlooked his paragraph 12, claiming that the Trent had been “created” in the immediate context of the preceding paragraph referring to the “creators of the canal network”!

 

It raises intriguing possibilities for cross-examination. The concept that CaRT’s predecessors “created” the river Trent instead of God, brings onto potential focus the Courts claim to be the administrators of God’s law - the ostensible basis of English common law - sitting under the motto of ‘Dieu et mon Droit’.

 

Would CaRT, in the coming proceedings in the Court, claim their precedence over the Court’s ultimate Master? Obviously, this is a rather desperate attempt to have the Trent seen as a navigation whose public rights depend upon legislative endowment rather than the common law.

 

One wonders when they would place the creation date. Their own website acknowledges use of the Trent by the Romans, so they have extended their genealogy thus far at least.

[Mike Todd]

Related to the paragraph 17 of Mr Grimes' statement respecting the supposed abolition of PRN's, it has been pointed out to me that I had overlooked his paragraph 12, claiming that the Trent had been “created” in the immediate context of the preceding paragraph referring to the “creators of the canal network”!

 

It raises intriguing possibilities for cross-examination. The concept that CaRT’s predecessors “created” the river Trent instead of God, brings onto potential focus the Courts claim to be the administrators of God’s law - the ostensible basis of English common law - sitting under the motto of ‘Dieu et mon Droit’.

 

Would CaRT, in the coming proceedings in the Court, claim their precedence over the Court’s ultimate Master? Obviously, this is a rather desperate attempt to have the Trent seen as a navigation whose public rights depend upon legislative endowment rather than the common law.

 

One wonders when they would place the creation date. Their own website acknowledges use of the Trent by the Romans, so they have extended their genealogy thus far at least.

Whilst accepting that it is not that well drafted, I suspect we would all understand that he is speaking of the River Trent as a navigation and that it is the works to make it navigable as a commercial waterway that is the 'creation'. How much of the navigation is natural and how much artificial might be an interesting argument!

 

In any case, it is being argued elsewhere that not all of the 'natural' creation is part of a navigation - here in respect of the main navigable channel and on the Thames and others regarding off line sections for mooring.

[NigelMoore]

Spoilsport.

 

As pertinent to the argument though, Acts providing for the improvement of navigable rivers never impacted on the public right of navigation except in so far as they allowed for certain tolls on cargoes to repay the expenditure on the improvements. No works were needed to make the Trent "navigable as a commercial waterway", given it has been used for commercial purposes for two millenia at least. Various Acts were passed, of course, to improve the navigation to allow for ships of greater size to navigate.

 

While English law recognised “Four Great Rivers of England”, namely the Thames, Severn, Ouse and Trent, the provisions of Magna Carta demanded removal of navigation obstructions from ALL rivers throughout England, for the public benefit.

 

The Trent in particular – as pertinent to the Ravenscroft case – was specifically referred to having a public right of navigation that was being adversely affected by works such as kiddells, contrary to Magna Carta, which were subject to an early abatement order as noted in an earlier post [will try to find it again].

 

As also posted earlier, Parliament has recognised, as did BW originally, that rivers were unaffected by the 1968 Act abolishing the PRN’s; Mr Grimes is asserting otherwise – and that contradicting argument could only be sustained if Parliament had, at any time, conferred by statute rights of navigation on the rivers that would not have existed but for such statutes.

 

Such enactments only ever applied to wholly artificially created waterways.

[NigelMoore]

The information I was looking for was Richard’s “Royal Commission to inquire into Obstructions of the course of the Trent at Colwick” dated November 16, 1383.

 

“Know ye that whereas the great rivers in our kingdom aforesaid ought to be held common and open for the passage of ships and boats passing with victuals and other merchandise from place to place by the same rivers, and the water of Trent, which is one of the said rivers, has been used to and ought to hold its course from the place where it takes its source to the castle and town of Nottingham . . . and from thence direct to the water of Humber and further into the high sea, on which river of Trent ships and boats with victuals and other merchandise were used in times past to pass to the same castle and town and to return from thence without any impediment . . .”

 

https://archive.org/stream/recordsofborough01nott#page/229/mode/1up

[Alan de Enfield]

The information I was looking for was Richard’s “Royal Commission to inquire into Obstructions of the course of the Trent at Colwick” dated November 16, 1383.

 

 

 

But you know that you are not allowed to introduce relevant facts - they just 'muddy the water'.

[NigelMoore]

Sorry.

[erivers]

 

In any case, it is being argued elsewhere that not all of the 'natural' creation is part of a navigation - here in respect of the main navigable channel and on the Thames and others regarding off line sections for mooring.

With respect, and particularly in relation to the Thames, this is misunderstanding of the position.

There is no argument about the "natural" parts of the river Thames forming part of the navigation. This has already been decided by Rowlands v EA.

The current argument is whether or not the entirely unnatural man-made ex-gravel pits joined to the river by a cut have become part of the river Thames as defined by the 1932 Act.

We shall soon know. Judgment in the EA's High Court appeal against an earlier judgment that the adjacent water marinas were not part of the navigation covered by the legislation is expected imminently.

[NigelMoore]

Latest update, hot off the press:

Leigh was in the Court of Appeal today, respecting the contested costs orders arising from his discontinuance of the initial injunction proceedings he had brought [to prevent CaRT disposing of his boat while he thought they would do so after 6 weeks, if he had not coughed up what they said he owed them by then]. His appeal against the District Recorder’s award, heard by Judge Godsmark at Nottingham, was refused, so Leigh appealed against that [which had resulted in yet further costs awarded against him].

That application was refused on paper, so he asked for an oral hearing, and that was granted sometime last year. Today was the long awaited hearing when Leigh had the chance to convince the Lord Justice of Appeal that he had enough of a case to justify permission.

For various reasons, I insisted that Leigh read out as best he could, the notes we had prepared for him to put across. While the Court was very happy for me to provide whatever else they thought necessary, they were equally happy for Leigh to stumble through those notes as best he could – and I think this was a major reason for the success of today.

The Judge was very concerned over two aspects that he identified as potentially qualifying this case as one capable of overturning the standard presumption of costs against a discontinuer. They both have to do with the conduct of the other party as a contributor to the proceedings. The problem for himself, of course, was that the evidence for at least one of these issues [neither focussed on in the Godsmark hearing] has only arisen in pleadings in the main case that post-dated the Appeal Bundle by a considerable length of time.

Bearing all that in mind, he has ordered that a date be set for a half day hearing before a full Appeal Court, initially to consider whether permission should be given, and if so, to proceed immediately thereafter to hearing of the issues [it sort of rolls into one when it comes down to it]. This will be months away yet of course, and could well post-date a judgment in the main case, which would inform what the judge described as “satellite” proceedings all the more.

This is an excellent result for Leigh, and the Judge’s commentary will be of huge assistance as to what should be concentrated on, and what evidence needs to be produced.

It makes it all the more poignant that the last letter from Shoosmiths to Leigh had poo-poohed his appeal application as misguided, saying that he had exhausted his avenues of recourse in this respect.

I look forward to seeing a copy of the judgment, which of course I will publish for everyone when Leigh gets it and forwards a copy to me. Chickens are beginning to come home to roost.

[NigelMoore]

 

Sorry for size and quality - usual links no longer allowed apparently [?] so tried the 'attach files' button instead.

Edited February 2, 2017 by NigelMoore

[NigelMoore]

Another item establishing the ancient PRN, dated 19 April 1388 –

 

http://discovery.nationalarchives.gov.uk/details/r/C9294071

 

Reference: SC 8/165/8226

Description: Petitioners: Commons of Nottinghamshire, Lincolnshire and Yorkshire.

Addressees: King and council.

Nature of request: “The commons of Nottinghamshire, Lincolnshire and Yorkshire request remedy against Monbocher and his men, who arrest the boats on the River Trent until a ransom is paid for their return. The River Trent is the King's highway and has always been common and free to all people passing with their goods by boat.”

[NigelMoore]

For those finding difficulty in reading the photo of the Order posted above [Leigh is not hot on photo technique], the essential part is that “The Applicant [should be ‘Application’] for permission to appeal is adjourned to be listed before the full court 2LJs on notice with appeal to follow T/E half a day on a date following the conclusion of the High Court action currently pending between these parties or, in any event, on a date after 1st June 2017.”

That will make it almost exactly 2 years on from the judgment being appealed! As Lord Justice McFarlane was troubled by the whole lien on debt use of the held boat, it is as well that Leigh declined CaRT’s request to remove this issue from his Claim, so the Appeal Court will have the advantage of seeing for themselves the way CaRT both trivialised the “mistake” and scorned the validity of Leigh’s appeal against the injunction costs.

[NigelMoore]

As said, one of the issues troubling Lord Justice McFarlane was CaRT’s use of the boat to demand the alleged licence arrears [as an example of unreasonable behaviour], and he has said that Leigh needs to exhibit the evidence that they both did so, and admitted their “mistake” in their main case pleadings.

 

The last two paragraphs of Garner’s Witness Statement will provide all the evidence needed for both this, and the attempt to remove the issue with a suggested offset of the sum illegally extorted against the injunction costs orders.

 

“The Trust’s pleaded case is that requesting the Claimant pay the sums of £1682.50 towards the arrears of licence fees for the return of his vessel was a mistake, and it accepts that these sums are not recoverable under section 8 of the 1983 Act; however there are two costs orders payable by the Claimant in the Trust’s favour from the County Court in Nottingham totaling £7575.10 and the Trust seeks to set them off against the aforementioned sum, alternatively as sums recoverable under section 5(2) of the 1983 Act as pleaded.

 

On 8 December 2016 Shoosmiths sent a letter to the Claimant. The letter confirmed the Trust’s position as above. The letter highlighted that as the sum was owed to the Defendant it seems plainly disproportionate for a High Court Judge to deal with this at Court. The letter further stated that in so far as the matter was remitted to the County Court for determination it would be disproportionate to have a separate hearing on this matter alone. The letter suggested that in the circumstances the parties should narrow the issues at Trial by agreeing to set off the £1658.20 from sums owed by the Claimant to the Defendant thus removing it from the issues to be determined by the Court. A copy of this letter is at page 67 of Exhibit “SG1”. The Claimant has refused to agree to this proposal.”

 

What Mr Garner omits from his exhibit is, of course, Leigh’s reply with the reasons why he refused to agree to the proposal.

 

It should be obvious that all the sums spoken of are disputed in any event – the alleged licence arrears, and the costs orders - so agreeing to offsetting one against the other as the price for dropping this element of his Claim made no sense whatsoever to Leigh.

 

The letter exhibited had said: “We are aware that you have again sought to appeal the costs orders, although your current application to the Court of Appeal is misconceived as the appeal process is now concluded following the refusal of permission to appeal (“Decision on an application for a second appeal”) dated 10 May 2016.” [my bold]

 

It finished: “Be aware that there may be costs consequences of the parties unreasonably refusing to agree to narrow the issues, thus reducing court time and costs.”

 

The latest Order confirms that the above CaRT assertion that the Appeal process was finished is wrong, and by reason of the costs orders still being in dispute after the main trial, the letter's concluding warning is meaningless.

[NigelMoore]

Slightly odd latest news – the clerks at the Appeal Court set a ‘hear-by’ date for the Costs Appeal in March!

To her credit, Ms Barry of Shoosmiths has written to the Court pointing out that the Order states that such a hearing cannot be set to take place until some time after judgment in the main case at the earliest. A new date has been requested.

[NigelMoore]

Following on from that last post, the mess has been sorted - in large part thanks to Ms Barry of Shoosmiths - and a hearing date for the costs appeal is now set down for November this year, well after conclusion of the main case next month.

Meanwhile, Leigh has at long last received the Transcript of Judgment of Chief Master Marsh from the March 2016 hearing, respecting the application by CaRT to have the whole Claim struck out.

https://www.scribd.com/document/344861453/Marsh-Judgment-23-March-2016

The outcome was, of course, that the amended Particulars were accepted and the Claim was allowed to proceed, with CaRT’s further Application - to debar Leigh’s McKenzie Friend - being refused at the ensuing hearing in September the same year. A little out-of-date at this stage, but it is all part of the big picture which others may take as cautionary advice.

Currently, Shoosmiths are declining to include the recently discovered documents posted above [and others] in the Bundle, because not listed in the Disclosure form of October last. If they persist [and having had all this time to read them along with accompanying comment it is very understandable that they would not wish these to be in evidence], Leigh may have to request permission of the Court to add them, in answer to the new grounds introduced by Mr Grimes and his replacement.

[NigelMoore]

On 25/01/2017 at 18:47, NigelMoore said:

Leigh was in the Court of Appeal today, respecting the contested costs orders arising from his discontinuance of the initial injunction proceedings he had brought [to prevent CaRT disposing of his boat while he thought they would do so after 6 weeks, if he had not coughed up what they said he owed them by then]. His appeal against the District Recorder’s award, heard by Judge Godsmark at Nottingham, was refused, so Leigh appealed against that [which had resulted in yet further costs awarded against him].
 

Yet another long overdue completed transcript arrived today, of the above January hearing before Lord Justice McFarlane as to permission to appeal the costs orders relating to Leigh's original discontinued Injunction claim.

https://www.scribd.com/document/344907106/Ravenscroft-v-CaRT-2nd-Appeal-Proceedings

Leigh still has not received the transcript of the Judgment itself - a single firm now has exclusive rights to Appeal Court judgments, and delivery must wait on them.

[NigelMoore]

Leigh has finally received a copy of the approved judgment from his oral hearing before Lord Justice McFarlane respecting his costs appeal from the discontinued Injunction proceedings.

It is a very good, fair appraisal, although he has evidently misunderstood a couple of points. The “events in his [ Leigh’s ] own family” had nothing to do with his decision to discontinue [paragraph 8], they were the reason he did not do so immediately when Ms Thomas had said he would.

Also, neither of us suggested that CaRT had “accepted that erroneous advice was given” by them; we only pointed out that they had not responded to Ms Thomas’s request for clarification as to that – but he is correct that we made the point that Shoosmiths at least, had accepted that the “impression” he had as to that was wrong, and of course he was right that we had said CaRT in their pleadings in the main case had acknowledged their “mistake” in using possession of the boat “as a means of putting pressure on him to pay any alleged outstanding licence fees.” [para 12] Well, we had put it in more astringent terms, but to the same effect.

It was exactly the right decision to adjourn the permission to appeal in the circumstances where he had not sight of the main case pleadings, which Leigh has now lodged with the Court as requested. CaRT have submitted a further Skeleton Argument for the pending hearing [in November], but I have not yet seen that.

https://www.scribd.com/document/345890469/Ravenscroft-v-CaRT-Appeal-Permission-Judgment-25-Jan-2017

[NigelMoore]

All is just about ready for next week's trial. It will be held at the Rolls Building in the week commencing Monday - details yet to be announced, we will hopefully learn that by tomorrow afternoon.

Skeleton Arguments have been exchanged; Leigh's can be found here -

https://www.scribd.com/document/348066797/Ravenscroft-v-CaRT-Claimant-Skeleton

[OldGoat]

Umm - very skeleton - blank page and details show '0,0' - or did I miss something?

[NigelMoore]

11 minutes ago, OldGoat said:

Umm - very skeleton - blank page and details show '0,0' - or did I miss something?

Something obviously amiss - when I click the link it brings up the whole document [very low resolution to keep file size down]. Perhaps others can see whether it works or not for them?

[Alan de Enfield]

3 minutes ago, NigelMoore said:

Something obviously amiss - when I click the link it brings up the whole document [very low resolution to keep file size down]. Perhaps others can see whether it works or not for them?

Works fine for me - all 50 pages