EA back in court again

[matty40s]

Following a clear judgement against them where they tried to extend the statutory definition of river to include private waters in order to force boat owners to register their vessels, the EA are back in court today to appeal against the verdict.

22 boaters whose vessels never entered the river, had charges against them for failing to register their vessels dismissed in the judgement.

The EA are today trying to get this overturned, even though being described by the judge as repugnant in their process and attempting to impose legislation by the back door.

Throwing public money at an action, just to achieve what??

 

The outcomes will be closely monitored by the people at CRT and Shoosmiths who like throwing charitable income away in court too.

[NigelMoore]

In the RCJ now, waiting to go back in for the Marina's barrister to put their case.

 

It has been a long 2&1/2 hours of EA argument so far - and then the fire alarm went off and everyone had to evacuate the building!

[OldGoat]

All the EA are trying to do - is what CaRT already do. That is if a boat is on their waters (includes in a marina), then it should pay a fee.

CaRT have the powers to change the rules, EA being a Gov't department have to go for more expensive legislation.

So not a level playing field...

[matty40s]

All the EA are trying to do - is what CaRT already do. That is if a boat is on their waters (includes in a marina), then it should pay a fee.

CaRT have the powers to change the rules, EA being a Gov't department have to go for more expensive legislation.

So not a level playing field...

CRT don't have the powers to change the rules - they do however, alter the Terms and Conditions of Licence on a regular basis to suit.

They also are not able to charge a fee in some marinas (and not just river marinas).

What EA are trying to achieve is VERY relevant to what CRT would also wish to achieve.

[Tam & Di]

All the EA are trying to do - is what CaRT already do.

 

You may be more right than you realise with that part of your statement. What they are trying to do here is to circumvent the fact that they have no basis in law for the charge and to make it by other means, which is exactly what C&RT do with their Network Access Agreements.

[NigelMoore]

edit out, as lying phone in bad reception said I had not sent it.

Edited December 13, 2016 by NigelMoore

[OldGoat]

CRT don't have the powers to change the rules - they do however, alter the Terms and Conditions of Licence on a regular basis to suit.

They also are not able to charge a fee in some marinas (and not just river marinas).

What EA are trying to achieve is VERY relevant to what CRT would also wish to achieve.

That was 'by agreement' BW asked - or more likely - gave options for marinas to join (or not) and the sensible ones (?) with foresight said No.

 

 

You may be more right than you realise with that part of your statement. What they are trying to do here is to circumvent the fact that they have no basis in law for the charge and to make it by other means, which is exactly what C&RT do with their Network Access Agreements.

Methinks - having made a right mess of the 'adjacent waters' issue, perhaps confusing the (other) government lawyers that they were trying a land grab, that the latter said it was ultra vires (wasn't that the point of the TWO anyway??).

EA then tried to extend the term 'works' which is part of the TCAs anyway.

 

I've no particular axe to grind, but both organisations are (desperately in EA's case) underfunded so to my mind if you float on their waters you must pay. I was happy to pay when moored in a weir stream, now I'm shortly to go 'inside', I'm still happy to pay....

[NigelMoore]

Well that was all a bit uncomfortable. While one can never be wholly confident about calling the shots in these things, the distinct impression I had was that the judges had worked out where they wanted to take this and had determined their questioning strategy accordingly.

 

The whole “adjacent waters” application and Secretary of State response was dismissed before even going there, as beside the point of the appeal; they were there to construe the meaning of the Thames as per s.4 of the 1932 Act only, not test the value of what some minister in an untested remark produced.

 

That left both sides rather grasping at air, as neither had approached the matter from quite the angle the judges wanted to take. But while the judges needled both barristers equally, they supplied the EA with better arguments couched better, as alternatives, while herding the boaters’ barrister into a corner over the definition of “works” whence he was unable to satisfactorily extricate himself. Ditto regarding the link that they saw between the PRN and the extent of jurisdiction.

 

The barrister for the boaters properly argued [in my belief] that the PRN did not extend into the private marinas, but this itself involved a reluctant acceptance that it was a crucial point – which on my understanding, it is not. CaRT, as one example, cannot deny entry into the river Brent/Grand Union, because of the PRN – but that fact never brought it within the jurisdiction of the early Thames Conservancy under the same exemptive terms for then existing privately owned and constructed works [in 1866 & 1894] as were to apply to works built for private purposes after 1932. The judge in my preliminary hearing so found [he was utterly wrong on the pertinent facts, but the legal principle was sound].

 

That judgment, then, upholds the early category of PRIVATE “works” as being exempt, irrespective of the continued PRN – which necessarily extended to all such “works” along the tidal Thames stretch; the tides reached into all of them; they remained private and exempt from TC jurisdiction nonetheless.

 

Instead of taking that tack, however, when put on the spot the boaters’ barrister denied that those “docks, locks” etc were “works”. It was damned uncomfortable; I could see what he was trying to do and agree with what he was trying to do, but in the context of the probing, it was the wrong reaction and made the whole argument look terrible, weak and floundering. He needed to appeal to the prior statutes showing both exempt and applicable “works”, with the difference lying in whether they were public or private, not in whether they were classifiable as works or not. Easy to say when not in the hot seat.

 

Judgment sometime in the [not likely to be] happy new year. One can only hope that the side getting the worst pasting did so as misleading tactics to show how brutally fair the judges are, and that even as they determined for themselves what the point of construction should be for determining, so they will research that properly for themselves.

Edited December 13, 2016 by NigelMoore

[baz gimson]

Well that was all a bit uncomfortable. While one can never be wholly confident about calling the shots in these things, the distinct impression I had was that the judges had worked out where they wanted to take this and had determined their questioning strategy accordingly.

 

The whole “adjacent waters” application and Secretary of State response was dismissed before even going there, as beside the point of the appeal; they were there to construe the meaning of the Thames as per s.4 of the 1932 Act only, not test the value of what some minister in an untested remark produced.

 

That left both sides rather grasping at air, as neither had approached the matter from quite the angle the judges wanted to take. But while the judges needled both barristers equally, they supplied the EA with better arguments couched better, as alternatives, while herding the boaters’ barrister into a corner over the definition of “works” whence he was unable to satisfactorily extricate himself. Ditto regarding the link that they saw between the PRN and the extent of jurisdiction.

 

The barrister for the boaters properly argued [in my belief] that the PRN did not extend into the private marinas, but this itself involved a reluctant acceptance that it was a crucial point – which on my understanding, it is not. CaRT, as one example, cannot deny entry into the river Brent/Grand Union, because of the PRN – but that fact never brought it within the jurisdiction of the early Thames Conservancy under the same exemptive terms for then existing privately owned and constructed works [in 1866 & 1894] as were to apply to works built for private purposes after 1932. The judge in my preliminary hearing so found [he was utterly wrong on the pertinent facts, but the legal principle was sound].

 

That judgment, then, upholds the early category of PRIVATE “works” as being exempt, irrespective of the continued PRN – which necessarily extended to all such “works” along the tidal Thames stretch; the tides reached into all of them; they remained private and exempt from TC jurisdiction nonetheless.

 

Instead of taking that tack, however, when put on the spot the boaters’ barrister denied that those “docks, locks” etc were “works”. It was damned uncomfortable; I could see what he was trying to do and agree with what he was trying to do, but in the context of the probing, it was the wrong reaction and made the whole argument look terrible, weak and floundering. He needed to appeal to the prior statutes showing both exempt and applicable “works”, with the difference lying in whether they were public or private, not in whether they were classifiable as works or not. Easy to say when not in the hot seat.

 

Judgment sometime in the [not likely to be] happy new year. One can only hope that the side getting the worst pasting did so as misleading tactics to show how brutally fair the judges are, and that even as they determined for themselves what the point of construction should be for determining, so they will research that properly for themselves.

 

So after all that waffle ....what did the judges decide???? as organs of the state I would expect them to uphold the existing order...but I can't divine that from your post

[MtB]

 

So after all that waffle ....what did the judges decide???? as organs of the state I would expect them to uphold the existing order...but I can't divine that from your post

 

 

They didn't decide anything! Did you not read Nigel's last paragraph?

 

Judgement expected in the new year.

[mayalld]

 

So after all that waffle ....what did the judges decide???? as organs of the state I would expect them to uphold the existing order...but I can't divine that from your post

 

Had you read "all that waffle", it says "Judgment sometime in the [not likely to be] happy new year."

 

So they haven't told anybody yet.

[OldGoat]

 

So after all that waffle ....what did the judges decide???? as organs of the state I would expect them to uphold the existing order...but I can't divine that from your post

Umm - they didn't - they've gone away to 'think about it' and look through the paperwork -

"Judgment sometime in the [not likely to be] happy new year" from the above.

At least 'them 'as knows' have taken a different tack.

 

drat why do other folks beat me while I'm typing. Same message though...

Edited December 13, 2016 by OldGoat

[NigelMoore]

 

So after all that waffle ....

 

One needs to be so careful when choosing the vocabulary to employ in responses. It can be all too illuminative of the extent of one’s apprehension.

[NigelMoore]

One can only hope that the side getting the worst pasting did so as misleading tactics to show how brutally fair the judges are, and that even as they determined for themselves what the point of construction should be for determining, so they will research that properly for themselves.

 

I have since been told that the same leading judge took centre stage at the other EA case over the “houseboat” definition in the Anglian statutes, and that the same impression was given of his support for the EA arguments and criticism of the boaters’ arguments. In the end, however, the decision that the EA was wrong was emphatically unanimous.

 

There was some repeated reference made to that case in court today, but I did not quite follow the rationale of its potential relevance/influence. I have to say that that case hinged on a far finer point of balance and could so easily have gone either way. The issue here is so much clearer, in my mind.

 

Given that in this case the judges made a deliberate point that their job was to construe the meaning of primary legislation, and that in doing so it was their responsibility to do so regardless of the submissions of either Appellant or Respondent, it reinforces the hope that they will do their own investigation into the historical legislative background.

[baz gimson]

 

One needs to be so careful when choosing the vocabulary to employ in responses. It can be all too illuminative of the extent of one’s apprehension.

 

so...you say that the judges have their own angle on the case which reinforces the EA case rather than the opposition...that implies that they are supporting the state organisations position...which as you have posted before is the default position of the courts...I E the judiciary supports the state and legitimises its actions

[WotEver]

Given that in this case the judges made a deliberate point that their job was to construe the meaning of primary legislation, and that in doing so it was their responsibility to do so regardless of the submissions of either Appellant or Respondent, it reinforces the hope that they will do their own investigation into the historical legislative background.

My naïveté would tend me towards the same hope. Only time will tell I guess.

 

Edited to add a missing worm.

Edited December 13, 2016 by WotEver

[erivers]

 

I have since been told that the same leading judge took centre stage at the other EA case over the houseboat definition in the Anglian statutes, and that the same impression was given of his support for the EA arguments and criticism of the boaters arguments. In the end, however, the decision that the EA was wrong was emphatically unanimous.

 

There was some repeated reference made to that case in court today, but I did not quite follow the rationale of its potential relevance/influence. I have to say that that case hinged on a far finer point of balance and could so easily have gone either way. The issue here is so much clearer, in my mind.

 

Given that in this case the judges made a deliberate point that their job was to construe the meaning of primary legislation, and that in doing so it was their responsibility to do so regardless of the submissions of either Appellant or Respondent, it reinforces the hope that they will do their own investigation into the historical legislative background.

Just to correct one point if I may, Nigel. The Hartford case, at least in terms of the definition of vessel, did not concern the Anglian definition of a houseboat. Rather, it was about the definition of vessel in the newer EA (Inland Waterways) Order 2010 - the very same secondary legislation under which the EA also attempted to redefine the waters under their control, only to fail to gain approval and then claim that the attempted addition of "adjacent waters" including marinas was not necessary for that control and it was provided through existing legislation.

 

I have no doubt that the same lead judge in the current case will already be very well versed in the sad and sorry tale of this second-rate piece of legislation devised by the EA. I hope he will again see through the EA's incompetence and deceit.

[NigelMoore]

 

so...you say that the judges have their own angle on the case which reinforces the EA case rather than the opposition...that implies that they are supporting the state organisations position...which as you have posted before is the default position of the courts...I E the judiciary supports the state and legitimises its actions

 

Much better. Yes, supporting the state is the default position, but against that is what I have described as the primary position of the court system over-riding that, which is the maintenance of their own importance.

 

Which way that will sway their position on any particular legal aspect is something only they are privy to.

Just to correct one point if I may, Nigel. The Hartford case, at least in terms of the definition of vessel, did not concern the Anglian definition of a houseboat. Rather, it was about the definition of vessel in the newer EA (Inland Waterways) Order 2010

 

Thanks erivers, I was not aware of that, probably too wrapped in the BW legislative nonsense respecting their definition!

[erivers]

Duplicated post deleted.

Edited December 13, 2016 by erivers

[Arthur Marshall]

If the judges are going to do their own research, and use that to make their decision, what is the point of having lawyers very expensively chat to them?

[erivers]

If the judges are going to do their own research, and use that to make their decision, what is the point of having lawyers very expensively chat to them?

The function and indeed the duty of Counsel is to assist the judges including pointing them to relevant authorities. It is not unusual for judges to find and refer to other case law to support or counter the evidence presented to them when making their judgment.

 

Such was the case in the EA/ Hartford appeal when the judges, of their own volition, produced a paper with several new authorities and asked counsel to consider them at a recess. Those authorities transpired, in the main, to be helpful to the respondents.

[mayalld]

If the judges are going to do their own research, and use that to make their decision, what is the point of having lawyers very expensively chat to them?

 

Ponies for lawyers daughters cost money you know!

[NigelMoore]

If the judges are going to do their own research, and use that to make their decision, what is the point of having lawyers very expensively chat to them?

 

Further to the answers already given, the comments made by the judges yesterday did in fact describe the optimal situation respecting the role of judges in the construing of Parliamentary Acts. Theirs is the responsibility for determining [in theory] exactly what the people wanted [through their elected reps] when passing legislation affecting them.

 

Looked at in that way, they were right that their role should not be confined to that of referees in a duel between a couple of barristers, nor limited to such material as either of them came up with. Otherwise, that would mean [and sadly often does] that the administration of law was dependent solely on the calibre of competing counsel.

 

The judges were strictly right that the definition of ‘adjacent waters’ – whether as understood by the EA, the SoS or anyone else, was immaterial insofar as it did not enter the Order, which was expressed to cover the jurisdiction described by s.4 of the 1932 TC Act. Therefore, the only real question is: what does that say? That is too important a question to be restricted to the argument of lesser mortals.

 

Apropos, it was interesting that the EA were asked whether the judgment in this case would apply to the other 30 odd Thames marinas, and the answer, naturally enough [with indistinct reservations] was yes. How far the factual differences would mean individual battles would have to fought, remains to be seen, but the potential impact extends far beyond the 2 marinas presently involved.

[WotEver]

Nigel, when they finally come back with their pronouncements is that it? Are any further arguments allowed, or is that the end of the matter forever (or until parliament pass a new bill)?

[NigelMoore]

Not necessarily. Provided that the contention is over a pure point of law in the public interest, the Supreme Court may be persuaded to allow an appeal before them.

 

The boaters' barrister did not rule out that possibility - for either side to appeal - because he felt it WAS just such a matter of public interest.

 

From my own experience [from when it was the House of Lords admittedly] the classification was absurdly arbitrary; it boiled down to whether they were sufficiently interested.

 

In any event, I believe that absent an appeal, the case would be sent back to the Magistrates Court, when, presumably, the matter would be one for sentencing?