Lightship Advertised for Sale

[Chewbacka]

Sorry to cross forum post but Td has made a brief comment that the injunction was refused and the berthing contract is valid and that crt can add terms and conditions that override statutory law.

 

I am aware this may have serious consequences for everyone and a fuller update will come out later today and he is sorry for the late update but they were working on next steps first.

But they should not come as a surprise.

When you sign a mooring agreement and it clearly states the terms and conditions that you must comply with and the consequences if you do not, then if you don't comply you know what may happen.

 

So for example, and speaking generally, if you don't pay your mooring fees for months, and then you are told to quit the mooring and you don't, then you will be told if you don't quit the mooring they will move your vessel and you will be responsible for the costs incurred. If you still do not move the vessel as required then they then move your vessel and if you do not pay the fees associated with the removal then they will sell the vessel and recover their fees, returning the balance to you as was clear in the mooring contract that you freely agreed to. This is what will happen when the mooring owner has had enough of fruitless negotiating.

 

 

Taking legal action to prevent the mooring owner from exercising their legal rights under the contract is risky, as if you loose then there is more costs incurred by both sides.

 

In this case as a body responsible for spending public money, CRT have a duty to recover debts and costs where it is reasonable to do so, and this will include their legal costs if the judge rules in favour of CRT.

 

So some may see CRT seeking legal costs from the other party as vindictive and heavy handed and even as a means to prevent the other party taking action, but as this is public money they do have a duty to explain and justify why they did not recover those cost if they choose not to.

[Paul C]

The owner needs to seek professional legal advice as soon as possible. Somewhat accidentally, he's probably helped himself increase the amount of money returned to him, by legitimising the sale and thus removing a grey area from any potential buyers over its certainty. However CRT can still sell it for less than market value if they so wished.

 

However some of the costs incurred on his behalf so far are quite unreasonable and are open to challenge - with proper negotiation.

[Chewbacka]

The owner needs to seek professional legal advice as soon as possible. Somewhat accidentally, he's probably helped himself increase the amount of money returned to him, by legitimising the sale and thus removing a grey area from any potential buyers over its certainty. However CRT can still sell it for less than market value if they so wished.

 

However some of the costs incurred on his behalf so far are quite unreasonable and are open to challenge - with proper negotiation.

Fully agree as another failed legal challenge could easily result in additional legal fees being added to his already large costs.

[Mike Todd]

 

Outside of this case - the ramifications of that statement is more than a little worrying

 

eg :

 

C&RT can refuse to issue you a licence (if they so wish) even if you meet the 3 criteria listed in the 1995 Act (BSS, Insurance, & a mooring declaration) which have previously been considered sacrosanct.

Are you perhaps conflating the standard cruising licence with a berthing licence? The former is constrained by specific legislation and can only be refused in defined circumstances whilst the latter is a more conventional commercial operation and, like any marina owner, they can operate in which part of the market they choose, subject only to some very general matters, such as unfair contracts.

 

I would be surprised if this case (principally about a berthing contract) had much to say either way about the validty of T&C's attached to a 'cruising' licence.

[matty40s]

 

Oh the injunction is already gained as you put it.

 

Don't worry, the man who knows everything says all is OK.

[Graham Davis]

The owner needs to seek professional legal advice as soon as possible. Somewhat accidentally, he's probably helped himself increase the amount of money returned to him, by legitimising the sale and thus removing a grey area from any potential buyers over its certainty. However CRT can still sell it for less than market value if they so wished.

 

However some of the costs incurred on his behalf so far are quite unreasonable and are open to challenge - with proper negotiation.

 

Having read the comments by TD I think that comment is very pertinent.

 

(Awaits the sarcastic comment about me from Jenlyn on TB!! Yes I am a member!!)

[Geo]

Are you perhaps conflating the standard cruising licence with a berthing licence? The former is constrained by specific legislation and can only be refused in defined circumstances whilst the latter is a more conventional commercial operation and, like any marina owner, they can operate in which part of the market they choose, subject only to some very general matters, such as unfair contracts.

 

I would be surprised if this case (principally about a berthing contract) had much to say either way about the validty of T&C's attached to a 'cruising' licence.

 

I would add that regarding the berthing contract, subject to seeing the judgement, it is more about being a businessman rather than a normal consumer who knows less about the law of contract than the businessman should. Also what was reasonable under the circumstances for both parties to have done?

 

I think you have to ask was it reasonable for CRT to have removed the vessel after many months of trying to get the owner to remove it and the owner's failure to remove it. Was it reasonable for CRT act in the manner detailed in the berthing contract. If the answer is yes then the application to confirm the injunction will fail.

 

The costs that CRT are attempting to charge are a different and separate matter. It does not mean that a court asked the question are the charges that CRT are attempting to levy reasonable and fair would find for CRT.

 

As for the rest of the grumbling about licences etc this matter has no effect on them nor influence on them.

Don't worry, the man who knows everything says all is OK.

 

Oh but I did not, nor did I think it.

[Arthur Marshall]

The impression I get is that the judge ruled that signing a contract containing T&Cs overrules your original statutory rights. To be honest, this makes sense, as signing something implies agreement. The safeguards are that you can still challenge the T&Cs if you think they are unreasonable, but all the odds are with the issuer of the contract.

Many years ago when I studied this sort of thing, I was told that contract law was the last remaining bit of feudalism, when all the power lay with the boss and virtually nothing with the underdog. Wishful thinking is not a good basis for going to law.

[Alan de Enfield]

Are you perhaps conflating the standard cruising licence with a berthing licence? .....................

 

Maybe - but - taking the statement "crt can add terms and conditions that override statutory law" at face value, and having seen over the years how BW, & now C&RT, push the boundaries, it concerns me that they will now assume they have 'unlimited powers' to write anything into their T&Cs

[Chewbacka]

 

Maybe - but - taking the statement "crt can add terms and conditions that override statutory law" at face value, and having seen over the years how BW, & now C&RT, push the boundaries, it concerns me that they will now assume they have 'unlimited powers' to write anything into their T&Cs

But they do not have unlimited powers, otherwise they would write T's&C's that made continuous cruising clearly defined and in line with what they want, which is certainly not what they have now.

In this case CRT legal team had already warned that the laws upon which the injunction were relying on were not applicable, to which it seems the judge has agreed.

So can organisations freely override laws with their own T's&C's? of course not. But they can within the legislation decide under which laws they wish their contract to be governed by.

Edited December 20, 2016 by Chewbacka

[Arthur Marshall]

 

Maybe - but - taking the statement "crt can add terms and conditions that override statutory law" at face value, and having seen over the years how BW, & now C&RT, push the boundaries, it concerns me that they will now assume they have 'unlimited powers' to write anything into their T&Cs

Trouble is, of course, it isn't only CRT that push the boundaries and it could well be argued that their attemmpt to amend statutory rights by T&Cs is a response to their customers' rule-bending and is therefore valid. Situations change and you have to update the law somehow and if Parliament won't do it, it gets done in a different way.

[Mike Todd]

The impression I get is that the judge ruled that signing a contract containing T&Cs overrules your original statutory rights. To be honest, this makes sense, as signing something implies agreement. The safeguards are that you can still challenge the T&Cs if you think they are unreasonable, but all the odds are with the issuer of the contract.

Many years ago when I studied this sort of thing, I was told that contract law was the last remaining bit of feudalism, when all the power lay with the boss and virtually nothing with the underdog. Wishful thinking is not a good basis for going to law.

Believers in a free market would challenge that view - albeit that I tend to share it!

 

Maybe - but - taking the statement "crt can add terms and conditions that override statutory law" at face value, and having seen over the years how BW, & now C&RT, push the boundaries, it concerns me that they will now assume they have 'unlimited powers' to write anything into their T&Cs

I'd be surprised if this were the case. After all, they are trying to balance a number of competing, sometimes contradictory, pressures. Most organisations instinctively prefer the status quo unless pressed to change by external forces.

[MtB]

The impression I get is that the judge ruled that signing a contract containing T&Cs overrules your original statutory rights. To be honest, this makes sense, as signing something implies agreement.

 

 

I'm inclined to disagree. Is there not a principle that one cannot sign away one's statutory rights? Or is that just consumer law?

 

In my world of gas when landlord gas safety certificates were first made mandatory unscrupulous landlords wrote terms into lettings contracts passing responsibility for having them carried out onto the tenant, so I understand. This was pretty quickly ruled illegal by the courts.

[NilesMI]

 

Is there not a principle that one cannot sign away one's statutory rights?

 

It depends on the "rights". e.g. the Data Protection Act says that your personal data cannot be disclosed without your consent. It follows that you can consent to your data being disclosed, thus "signing away" your rights. You probably do this regularly, by ticking a box labelled "I have read and agree to the terms...".

 

Lots of other so-called "rights" are not absolute, but are qualified with terms such as "reasonable", necessary", "practicable" and so on.

 

The Gas Safety Certification is not a particularly good example of statutory "rights", rather it is a statutory "duty" placed on landlords. The courts would argue that a landlord making certification by the tennant a condition of the tennancy, had not complied with their statutory duty.

 

That the owner of "Planet" failed to get an injunction against the sale of the vessel does not read across to a statement such as; "crt can add terms and conditions that override statutory law". Unless the judge actually said that (and we wait to see whether he did) you would have to conclude, simply, that he found there was nothing in law which prevents CRT selling the vessel in the way they intend and that the owners rights do not extend to restricting CRT from doing so.

Edited December 20, 2016 by NilesMI

[Arthur Marshall]

That the owner of "Planet" failed to get an injunction against the sale of the vessel does not read across to a statement such as; "crt can add terms and conditions that override statutory law". Unless the judge actually said that (and we wait to see whether he did) you would have to conclude, simply, that he found there was nothing in law which prevents CRT selling the vessel in the way they intend and that the owners rights do not extend to restricting CRT from doing so.

The fact that Tony and Nigel appear to be seriously worried about this rather implies that he did.

[NigelMoore]

Just a general comment before addressing particulars – Mr Roberts had to speak for himself, having been under the impression that others could speak for him, so was at a disadvantage. No application had been made for assistance by a McKenzie Friend, but the judge at the hearing allowed Tony to assist, on the proviso that this was restricted to quiet advice and nudging; he was not allowed to speak.

 

Mr Roberts very obviously suffered under the usual LiP handicap of emotional involvement, and the natural idea that outrageous behaviour is necessarily illegal. It was at times uncomfortable both listening to the appeal for a sympathy vote and watching Tony squirming beside him, while trying to get the argument on track. At one point Tony actually stood up and asked the judge [while Mr Roberts was still speaking] if he could have a moment with the Claimant! To his credit, the judge did not reprove him for that, and later on Mr Roberts responded to nudges without that being necessary – so a few hasty huddles took place [on both sides] when matters veered off course.

 

I have to say that he did far better than I expected, and most material came out at some point, but it was understandably unfocussed and missing key elements presented coherently and sequentially. Could the judge have made sense of it and applied his own clarity to the argument? Yes, but he chose not to, and on at least two counts Mr Roberts contributed to an unfavourable impression being made on the judge. That would have diverted his direction.

 

It is all too easy from the back seats to criticise, but those in the hotseat are in a difficult and unfamiliar arena with a very narrow field of view.

[Alan de Enfield]

 

 

I'm inclined to disagree. Is there not a principle that one cannot sign away one's statutory rights? ..................

 

Extract from Lord Hoffmann :-

 

"Mr. Bruton's agreement is irrelevant because one cannot contract out of the statute".

 

in the case :

 

HOUSE OF LORDS

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Hoffmann

Lord Hope of Craighead Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

BRUTON (A.P.)

(APPELLANT)

v.

 

LONDON AND QUADRANT HOUSING TRUST

(RESPONDENTS)

ON 24 JUNE 1999

[NigelMoore]

The impression I get is that the judge ruled that signing a contract containing T&Cs overrules your original statutory rights. To be honest, this makes sense, as signing something implies agreement. The safeguards are that you can still challenge the T&Cs if you think they are unreasonable, but all the odds are with the issuer of the contract.

Many years ago when I studied this sort of thing, I was told that contract law was the last remaining bit of feudalism, when all the power lay with the boss and virtually nothing with the underdog. Wishful thinking is not a good basis for going to law.

 

 

Subject to the caveat that we all hear and remember things differently – and I would not wish to bound by any of my observations prior to reading carefully through a transcript of proceedings and judgment – it was my distinct impression that the judge did NOT uphold any view that contracts over-ruled statute.

 

The only statutes cited by Mr Roberts were the Torts and the Tribunals Acts. The judge upheld some characterisation of applicability of the Torts Act that I did not follow [and look forward to seeing a transcript so that I can look into that], while in respect of the relevant section of the Tribunals Act [s.85 voiding contracts purporting to assume powers only conferred by the Act] he denied that the berthing contract was a licence to occupy land, hence fell outside of that Act’s remit.

 

It was not, in other words, that the contract term over-rode the application of the statutes, but rather that the statutes for various reasons did not apply in the first place.

 

IF the judge is correct that the Tribunals Act affords no protection to any other than a narrow class of debtor, then the Law Commission have got it wrong in citing that Act as a sufficient substitution for Marlborough, and I hope to draw their attention to this. Meanwhile, of course, Marlborough still stands unamended or abolished and would have to apply – but Mr Roberts did not raise that point of law.

 

Nor did Mr Roberts raise the Unfair Terms legislation, while he also did not strongly press the proportionality argument.

 

As to that last, it was surprising to me that the judge specifically denied any responsibility to take the proportionality issue into account, while acknowledging that it was open to Mr Roberts to pursue that aspect by other means than his injunction application.

[Arthur Marshall]

Isn't it time he got some proper advice before getting himself into further trouble? How come he was still "under the impression that others could speak for him"? If you want to tangle with the law, you should surely put some effort and thought into it. That the case presented was unfocussed, missing key elements and presented poorly seems a bit typical of Mr Roberts slapdash attitude to the whole business - he has surely had the time to write himself a proper script, of for Tony (or Nigel) to write him one if he was willing to follow it. That being said, I'd hate both to be a LiP or represented by a lawyer with no real interest or knowledge of the case.

Edited December 20, 2016 by Arthur Marshall

[MtB]

Isn't it time he got some proper advice before getting himself into further trouble? How come he was still "under the impression that others could speak for him"?

 

 

And therefore he presumably had some 'others' with him who were expecting to speak for him. Those 'others' would appear to have been similarly wrong-footed.

[Mike Todd]

 

 

I'm inclined to disagree. Is there not a principle that one cannot sign away one's statutory rights? Or is that just consumer law?

 

In my world of gas when landlord gas safety certificates were first made mandatory unscrupulous landlords wrote terms into lettings contracts passing responsibility for having them carried out onto the tenant, so I understand. This was pretty quickly ruled illegal by the courts.

In this case the boat owner was not a consumer as it was a commercial contract, I am led to understand.

[Mike Todd]

 

 

 

 

As to that last, it was surprising to me that the judge specifically denied any responsibility to take the proportionality issue into account, while acknowledging that it was open to Mr Roberts to pursue that aspect by other means than his injunction application.

I suspect the argument may be that the the alleged lack of proportionality will only arise once the boat has been sold and CaRT deduct the amounts from the proceeds. Until then they can indicate what might happen (as they have by creating invoices) but will not have carried it out. As such it is a separate (albeit related) issue from that of preventing the sale going ahead. In any case, you cant get an injunction to prevent what has already happened (the seizure of the boat). It is open to Mr Roberts to seek a judgement for the return of his boat but that was not the case he submitted to the court.

[hounddog]

 

 

Subject to the caveat that we all hear and remember things differently and I would not wish to bound by any of my observations prior to reading carefully through a transcript of proceedings and judgment it was my distinct impression that the judge did NOT uphold any view that contracts over-ruled statute.

 

The only statutes cited by Mr Roberts were the Torts and the Tribunals Acts. The judge upheld some characterisation of applicability of the Torts Act that I did not follow [and look forward to seeing a transcript so that I can look into that], while in respect of the relevant section of the Tribunals Act [s.85 voiding contracts purporting to assume powers only conferred by the Act] he denied that the berthing contract was a licence to occupy land, hence fell outside of that Acts remit.

 

It was not, in other words, that the contract term over-rode the application of the statutes, but rather that the statutes for various reasons did not apply in the first place.

 

IF the judge is correct that the Tribunals Act affords no protection to any other than a narrow class of debtor, then the Law Commission have got it wrong in citing that Act as a sufficient substitution for Marlborough, and I hope to draw their attention to this. Meanwhile, of course, Marlborough still stands unamended or abolished and would have to apply but Mr Roberts did not raise that point of law.

 

Nor did Mr Roberts raise the Unfair Terms legislation, while he also did not strongly press the proportionality argument.

 

As to that last, it was surprising to me that the judge specifically denied any responsibility to take the proportionality issue into account, while acknowledging that it was open to Mr Roberts to pursue that aspect by other means than his injunction application.

Just as an aside and something I was trying to find out without success; what qualification would have been needed to speak for a litigant in this case?, presumably a solicitor rather than a barrister but j couldn't find out what specifically defined the right of advocacy.

[NigelMoore]

That being said, I'd hate both to be a LiP or represented by a lawyer with no real interest or knowledge of the case.

 

That latter bit is the oft overlooked element. In my own experience, the professionals I have employed in the dim distant past have been catastrophically damaging. In my partner’s most recent Landlord and Tenant’s action against a tenant, she used local professionals who ran up a colossal bill to no avail when [as I learned following the judge’s comments] all the situation needed was a simple cost free application.

 

That latter damage was largely ameliorated when I wrote a lengthy response to the law firm demanding an internal review subject to reporting them, and an unreserved apology and reimbursement followed – but that does not change the fact that considerable emotional and financial distress had been incurred. It demonstrated yet again, that reliance on specialist professionals with whom you have had no previous experience, is a horrible gamble.

 

Again, most professionals take a very conservative approach [with liability issues to the forefront]; if I had listened to most advice many years ago, I would never have accomplished anything. Only the most expensive firms catering to wealthy clients can afford to be daring or imaginative. At lower levels, even with interest and expertise, the workload they adopt militates against the pros devoting the time and thought needed in unusual cases. Over confidence also, breeds disaster when they trot into court believing they know all that is needed without having to review things.

 

If I had the money, I would gladly employ a top-flight professional to represent me, whose unlimited time I could pay for exclusively; it ought not to make a difference but of course it does. But how would you know how to find and identify them?

 

On the whole, absent that knowledge of who to turn to, one is always best off researching for oneself; the problem there being one’s own limitations re areas of expertise and talents [not to mention the ability to switch off the emotional button].

[Paul C]

That latter bit is the oft overlooked element. In my own experience, the professionals I have employed in the dim distant past have been catastrophically damaging. In my partner’s most recent Landlord and Tenant’s action against a tenant, she used local professionals who ran up a colossal bill to no avail when [as I learned following the judge’s comments] all the situation needed was a simple cost free application.

 

That latter damage was largely ameliorated when I wrote a lengthy response to the law firm demanding an internal review subject to reporting them, and an unreserved apology and reimbursement followed – but that does not change the fact that considerable emotional and financial distress had been incurred. It demonstrated yet again, that reliance on specialist professionals with whom you have had no previous experience, is a horrible gamble.

 

Again, most professionals take a very conservative approach [with liability issues to the forefront]; if I had listened to most advice many years ago, I would never have accomplished anything. Only the most expensive firms catering to wealthy clients can afford to be daring or imaginative. At lower levels, even with interest and expertise, the workload they adopt militates against the pros devoting the time and thought needed in unusual cases. Over confidence also, breeds disaster when they trot into court believing they know all that is needed without having to review things.

 

If I had the money, I would gladly employ a top-flight professional to represent me, whose unlimited time I could pay for exclusively; it ought not to make a difference but of course it does. But how would you know how to find and identify them?

 

On the whole, absent that knowledge of who to turn to, one is always best off researching for oneself; the problem there being one’s own limitations re areas of expertise and talents [not to mention the ability to switch off the emotional button].

 

The owner didn't need a "daring and imaginative" legal team though, what he needed was somebody with competance in running a business to oversee the figures, understand the risks, weaknesses etc of the business plan and point out clearly "that berthing agreement has teeth; your priority is paying up the rent regularly". The "daring and imaginative" element comes in when a business owner can see opportunities, maximise the available strengths in the business model, and capitalise on these effectively to make a business a robust going concern. I understand there's someone willing to buy the boat - he/she is going go get bargain of the century here!!! Had the owner (I have every sympathy with health concerns) been more conservative and realised he could/should sell as a going concern with the boat moored in Liverpool, he would have had a much better outcome.