Lightship Advertised for Sale

[costalot]

 

 

 

By asking for indemnity costs and costs order against Tony, they are looking for a route to actually get some costs back if the win.

Would CRT be able to add all the legal expenses to their costs in disposing of the lightship?

[mayalld]

Would CRT be able to add all the legal expenses to their costs in disposing of the lightship?

 

If the Judge orders it, then yes they could.

 

It used to be said that the law was only open to the rich, who could afford to fight a legal battle, and if they lost could walk away bloodied but unbroken.

 

It then became more the case that the law was open to the rich and to the very poor. The rich could still afford it, and those with nothing to lose could represent themselves. They would probably not win, but even if they lost, they had nothing, and the winner still had expenses. Those who were neither rich nor impecunious had too much to lose to play.

 

We then started to see the advent of crowdfunding of cases. That changed the landscape, as the impecunious were enabled to fight cases with more vigour, but were still unable to pay any costs. The cases cited are leading cases that deal with the fact that if you put up the recources to enable somebody to engage in legal battles that they wouldn't have fought otherwise. you can be required to pay the opponents costs.

 

Its just like joint enterprise.

[Mike Todd]

see http://www.gabyhardwicke.co.uk/images/library/files/briefingnotes/Costs_in_Litigation.pdf(just the first I found on Google)

 

Liability of non-parties

 

In exceptional cases, costs orders can be made against people who are not parties to the litigation. This is relevant to both the winner and the loser. If the winner finds that the loser cannot pay, there still might be circumstances justifying an award of costs against someone else altogether. This is possible where the non-party not only funds the proceedings, but substantially also controls or at any rate is to benefit from them

 

(Other sections of this note are also helpful to understanding the foregoing discussion)

[jeanb]

It gets a mention in Private Eye today.

[NigelMoore]

I have had another look at the berthing agreement in light of Monday’s decision, and a comment elsewhere respecting contracts between businesses.

 

The contract at issue was an agreement between Mr Roberts as a natural person and CaRT as the Estate Owner; it was not a contract between two businesses. Under clause 6.7.1 of the agreement, the conduct of any trade or business within the dock was to be the subject of a separate agreement - if any - with the estate owner; the berthing agreement specifically disallowed it otherwise.

 

The statutory protections of natural person rights therefore apply in this instance, and the potential overriding of certain statutes in business to business contracts does not arise. Unfair contract terms would consequently apply to this berthing agreement, supposing that the extension of an implied meaning of “sole discretion” could possibly be taken to apply [as it has been] beyond the taking of reasonable steps to sell the ship in situ.

 

Furthermore, the agreement specifically cites application of the Law of Property Act 1925 as applicable, “as if the Estate Owner [CaRT] were a lessor and the Licensee were a lessee” [providing additionally, however, that the service of Notices under that Act could alternatively be considered met if simply affixed to the vessel].

 

That, it seems to me, has implications regarding the argument accepted by the Chester judge as to the character of the agreement, i.e. that the Tribunals Act 2007 does not cover the situation because the agreement does not deal with occupation of land.

 

One law dictionary explains the relevant terms: -

 

Tenant

First of all, the term tenant doesn't necessarily refer to a lease. Anyone who pays rent for a car may also be referred to as tenant. In this context, every lessee is a tenant, but not every tenant is a lessee.

The term tenant may also refer to the occupier, who does not pay and/or is not obliged to pay the lease.

Lessee

Lessee (also: leaseholder) is the person that occupies an immovable property and pay lease for it. Unlike renter, it solely refers to lease agreements.

Landlord

A landlord is the owner of the immovable property, irrespective of being party to the lease agreement.

The lease agreement regarding the property may be between the lessee and a third party, while landlord, as the owner of the property, is not involved in the lease agreement. In most civil laws, a lease agreement excluding the landlord is recognized though it is binding over its parties only.

Lessor

Lessor is the party to the lease agreement, who makes the property available to the lessee; irrespective of owning the property.

In practice, the landlord and the lessee are often the same person, but they are separated as described above in terms of law, because most civil laws allow lease agreements between a lessee and a lessor, who doesn't own the property.

Note that any infringement that may be caused by such an agreement will be between the landlord and the lessor, because the real property of the landlord is absolute, while the lease agreement is exclusively between its parties.

 

I am uncertain what jurisdiction those definitions apply to, but lessor and lessee surely must involve a lease, and in this instance can only be for the occupation of land. The corollary to that is that contrary to the finding of the Chester judge, the 2007 Act s.85 DOES apply, such that any contractual term purporting to grant rights of seizure and sale are void.

 

In point of fact though, I see no justification for interpreting Clause 10 of the agreement as conferring a right of seizure, because the cannot have been any need – the ship was already, holding over from the last agreement, in the possession of the estate Owner. The act of seizure was only in boarding and removing the ship from the premises. I cannot for the life of me see where Clause 10 could legitimately be said to cover that situation. If it did, however, then s.85 would void it.

 

Read aright, clause 10 of the agreement ought only be taken to be a re-wording of the Torts Act, while purportedly freeing CaRT from considerations respecting time periods and responsibilities. Even though such exemptive meanings are in my view unfair and untenable [and wholly unnecessary anyway], it STILL does not remove the basic obligations and responsibilities of a bailee, which are violated by the removal from the premises at the owner’s expense.

[mayalld]

I have had another look at the berthing agreement in light of Monday’s decision, and a comment elsewhere respecting contracts between businesses.

 

The contract at issue was an agreement between Mr Roberts as a natural person and CaRT as the Estate Owner; it was not a contract between two businesses. Under clause 6.7.1 of the agreement, the conduct of any trade or business within the dock was to be the subject of a separate agreement - if any - with the estate owner; the berthing agreement specifically disallowed it otherwise.

 

The statutory protections of natural person rights therefore apply in this instance, and the potential overriding of certain statutes in business to business contracts does not arise. Unfair contract terms would consequently apply to this berthing agreement, supposing that the extension of an implied meaning of “sole discretion” could possibly be taken to apply [as it has been] beyond the taking of reasonable steps to sell the ship in situ.

 

 

I don't think that argument has wings, because you are arguing against a straw man.

 

The differentiation in unfair contract law as to what constitutes "unfair" is not defined by one party being a natural or legal person, but by the nature of the contract.

 

That is to say whether one party was entering into the contract as a business or as a consumer.

 

Whilst it will nearly always be the case that a legal person contracts as a business, the contrary does not hold true. A natural person can enter into a contract that is of the nature of a business contract, and if he does so, he is not protected under consumer legislation.

 

It seems clear to me that Mr Roberts entered into a berthing contract as a sole trader, not as a consumer, and as such the unfair contract rules are those applying to business to business contracts

[Chewbacka]

Above section has I think an error -

Lessor

Lessor is the party to the lease agreement, who makes the property available to the lessee; irrespective of owning the property.

In practice, the landlord and the lessee are often the same person,

>>>>>I think you mean Lessor, or if you don't then I am very confused and had better study it some more.

[Paul C]

May I ask how much in legal costs Friday-Monday's attempt at getting an injunction is (I assume since it has failed, the owner has to now pay CRT's legal costs in the attempt)?

[NigelMoore]

 

Above section has I think an error -

>>>>>I think you mean Lessor, or if you don't then I am very confused and had better study it some more.

 

 

It was a copy and paste quote in italics - I agree, a slip up must have occurred.

[NigelMoore]

 

It seems clear to me that Mr Roberts entered into a berthing contract as a sole trader, not as a consumer, and as such the unfair contract rules are those applying to business to business contracts

 

How did you arrive at that conclusion, given the content of my second paragraph that you have quoted? –

 

“Under clause 6.7.1 of the agreement, the conduct of any trade or business within the dock was to be the subject of a separate agreement - if any - with the estate owner; the berthing agreement specifically disallowed it otherwise.”

 

The berthing agreement was with the individual for the berthing of the vessel, no more. Any carrying on of trade, whether individually or corporately, had to be approved - if at all - by a separate agreement.

 

To quote verbatim, the clause laid down that the lessee was:

 

“6.7 not without the prior written consent of the Estate Owner: - 6.7.1 - to carry on or permit or suffer to be carried on within the Estate any trade or business (including the sale charter or hire of the vessel).” [my bold]

[NigelMoore]

May I ask how much in legal costs Friday-Monday's attempt at getting an injunction is (I assume since it has failed, the owner has to now pay CRT's legal costs in the attempt)?

 

You may. He does have to pay those costs, if he does not appeal - £2,623.50 to be precise.

[Chewbacka]

 

How did you arrive at that conclusion, given the content of my second paragraph that you have quoted? –

 

“Under clause 6.7.1 of the agreement, the conduct of any trade or business within the dock was to be the subject of a separate agreement - if any - with the estate owner; the berthing agreement specifically disallowed it otherwise.”

 

The berthing agreement was with the individual for the berthing of the vessel, no more. Any carrying on of trade, whether individually or corporately, had to be approved - if at all - by a separate agreement.

 

To quote verbatim, the clause laid down that the lessee was:

 

“6.7 not without the prior written consent of the Estate Owner: - 6.7.1 - to carry on or permit or suffer to be carried on within the Estate any trade or business (including the sale charter or hire of the vessel).” [my bold]

Even if a separate agreement was required to define the T's&C's associated with the trader's business, it does not mean that the mooring agreement is not a business arrangement.

 

So for a trader to run a business in the dock 'he' would need a mooring agreement and an additional agreement governing trading. The fact that he requires a separate trading agreement would not necessarily mean that the mooring agreement is not a commercial agreement.

[NigelMoore]

Sheesh . . .

 

ANY berthing/mooring agreement is a “business arrangement”; the issue is whether the agreement comprises a business to business arrangement for the purpose of conducting trade or business. This one specifically excludes that, and it is the nature of THAT contract that is pertinent.

 

So I am prone to believe.

[Chewbacka]

Sheesh . . .

 

ANY berthing/mooring agreement is a “business arrangement”; the issue is whether the agreement comprises a business to business arrangement for the purpose of conducting trade or business. This one specifically excludes that, and it is the nature of THAT contract that is pertinent.

 

So I am prone to believe.

Yes, but the point I was trying to make is just because the mooring agreement specifically excludes trade activity and it is clear that an additional agreement for trade is required, that exclusion to allow trade does not in itself mean that the mooring agreement is not a business to business agreement.

 

So for a business to trade from a 'fixed' location would require a mooring agreement AND and trade agreement, both of which would be business to business agreements.

[Mike Todd]

 

I don't think that argument has wings, because you are arguing against a straw man.

 

The differentiation in unfair contract law as to what constitutes "unfair" is not defined by one party being a natural or legal person, but by the nature of the contract.

 

That is to say whether one party was entering into the contract as a business or as a consumer.

 

Whilst it will nearly always be the case that a legal person contracts as a business, the contrary does not hold true. A natural person can enter into a contract that is of the nature of a business contract, and if he does so, he is not protected under consumer legislation.

 

It seems clear to me that Mr Roberts entered into a berthing contract as a sole trader, not as a consumer, and as such the unfair contract rules are those applying to business to business contracts

I agree - many small business are what is known as a Sole Trader usually in the name of the proprietor (who may also employ staff) The significant difference is between Sole Trader and a Limited Company as the former retains a personal liability.

[Mike Todd]

 

How did you arrive at that conclusion, given the content of my second paragraph that you have quoted? –

 

“Under clause 6.7.1 of the agreement, the conduct of any trade or business within the dock was to be the subject of a separate agreement - if any - with the estate owner; the berthing agreement specifically disallowed it otherwise.”

 

The berthing agreement was with the individual for the berthing of the vessel, no more. Any carrying on of trade, whether individually or corporately, had to be approved - if at all - by a separate agreement.

 

To quote verbatim, the clause laid down that the lessee was:

 

“6.7 not without the prior written consent of the Estate Owner: - 6.7.1 - to carry on or permit or suffer to be carried on within the Estate any trade or business (including the sale charter or hire of the vessel).” [my bold]

I suspect you will find that being a business does not wholly align with carrying on of a trade. The former describes the status of the person/organisation whilst the latter refers to an activity, in this case in a specific place.

 

In any event, was there ever any separate written consent regarding trading? Absent it all that remains is that a business person had contracted for the berthing of a vessel from which any trading activity was unauthorised. That unauthorised act cannot itself confer additional rights, surely? Such a principle would mean that we all would do something unauthorised just to get benefit . . . The issue might be that by failing to act against the unauthorised activity (if it were so) then CaRT have by default given their consent. But I suspect that you then will get mired in quite deep debates about when such consent can be deemed - never an easy one to resolve I suspect.

Yes, but the point I was trying to make is just because the mooring agreement specifically excludes trade activity and it is clear that an additional agreement for trade is required, that exclusion to allow trade does not in itself mean that the mooring agreement is not a business to business agreement.

 

So for a business to trade from a 'fixed' location would require a mooring agreement AND and trade agreement, both of which would be business to business agreements.

Just so - a business can legitimately obtain a berth for a vessel even if it does not intend to use it for trading.

[NigelMoore]

Just so - a business can legitimately obtain a berth for a vessel even if it does not intend to use it for trading.

 

Would this be an appropriate time to point out that the burden of the debate over the nature of the agreement containing the relevant clause, directly relates to the impact of the relevant controlling Acts that limit the validity of contractual overriding of statue? If an individual [as in this case] agreed to a berthing agreement not intending to use it for trading, yet later began to use it for trading - whether or no with the required landlord consent - then how were the original terms transmogrified from a personal contract into a business one?

 

Regardless of whether there might be any validity to the [previously volunteered tortured analyses of the nature of this agreement, not a single one of them – just for the record – was ever made in the course of the last hearing, by either side.

 

Suffice it to say that insofar as any such argument could be construed as plausible, the end result has to be the recognition of an arguable case either way that has not been made - such that the latest judgment is perfectly challengeable, despite not being necessarily appealable on those grounds.

[Paul C]

It all gets curiouser. As I understand it, a court won't rule on something if an attempt to resolve it wasn't made beforehand. How come Alan Robers said he sent a cheque, it got lost, then the next thing he knew was CRT were suing him in court (and succeeded)? Is he lying or did he deliberately not open letters/documents etc for over a year?

 

Also I think the time for pointing out the finer points in law has passed, no matter how much you're convinced he has a valid chance. He's had plenty of time to prepare the case for an injunction, and has been unsuccessful in obtaining one. If there were a valid case for it, it would have been granted since the bar for obtaining an injunction is obviously lower than winning a subsequent case.

 

Also, something else doesn't add up - he's trying to seek an injunction to prevent CRT selling the boat, at the same time as devising a strategy which includes immediately selling the boat. Seems upside-down to me! Is this a "race to sell" the boat, so that he can sell it, keep the full amount, and leave CRT out of pocket? If so, doesn't it somewhat neutralise the claim that CRT are being vindictive/punitive? Why should CRT, and indirectly ordinary boaters, lose a single penny here?

 

I believe there is only one area he has a valid claim - the proportionality of the costs incurred in moving the boat. This looks to be quite easy for CRT to defend however, so to successfully claim it will be an uphill struggle - worth focusing on. CRT will simply claim that that's what they were quoted/paid for each relevant action. There's a number of costs which are arguable only on amount, and a number where its arguable whether they needed to be spent at all. I believe this is where the issue should progress, and all others are something of a red-herring/frustration tactic, which are basically adding nothing to the owner's credibility but racking up huge legal fees in the process - a very risky tactic. Once again, I urge the owner to reflect on events so far and seek proper legal advice.

[Arthur Marshall]

Is it relevant that when the boat was first purchased and brought to Liverpool it was by (as I understand it) a limited company with several directors? At some stage these all left leaving Mr Roberts in sole charge but still I believe as a director of the company rather than an individual. Presumably the berthing agreement was signed as a director rather than a private individual.

[Graham Davis]

I see Mr Roberts has now been included in a video that appears to be inflamatory to CaRT and the Police. This will do little to help his case.

[Chewbacka]

I see Mr Roberts has now been included in a video that appears to be inflamatory to CaRT and the Police. This will do little to help his case.

and if i remember correctly the video was a bit rude about the court as well.

[tomsk]

And there's a lot of fuss and bother about people jumping off the boat, "it was removed as a safety precaution" or similar words from CRT. How is the open dockside in general not a similar issue. Arris fencing required all round maybe?

 

 

Heras please.

[Paul C]

The owner also claims that Tony Dunkley is acting as a McKenzie Friend - is this true?

[NigelMoore]

I believe there is only one area he has a valid claim - the proportionality of the costs incurred in moving the boat. This looks to be quite easy for CRT to defend however, so to successfully claim it will be an uphill struggle - worth focusing on. CRT will simply claim that that's what they were quoted/paid for each relevant action. There's a number of costs which are arguable only on amount, and a number where its arguable whether they needed to be spent at all. I believe this is where the issue should progress, and all others are something of a red-herring/frustration tactic, which are basically adding nothing to the owner's credibility but racking up huge legal fees in the process - a very risky tactic. Once again, I urge the owner to reflect on events so far and seek proper legal advice.

 

That is a fair analysis Paul.

 

It is most unfortunate that there are indeed a number of instances where the owner's credibility is called in question, as arose during the last hearing. That has not helped his case, as I have noted earlier.

 

This far, he has not racked up significant costs, but if he is to pursue this further, then that possibility certainly exists - and if he is to have any reasonable prospect of success, then he certainly does need professional representation of high calibre. His own representation this far has been damaging. As usual, however, the cost of obtaining the necessary assistance appears to be beyond his means..

[NigelMoore]

Is it relevant that when the boat was first purchased and brought to Liverpool it was by (as I understand it) a limited company with several directors? At some stage these all left leaving Mr Roberts in sole charge but still I believe as a director of the company rather than an individual. Presumably the berthing agreement was signed as a director rather than a private individual.