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NigelMoore

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NigelMoore last won the day on November 10 2016

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  1. This aspect was the last considered, and Mr Stoner really went to town seeking to play the whole thing down - to a rather dangerous extent I thought; some of what was said almost seemed to suggest that even the communications admitted by CaRT to be wrong, could be interpreted as not explicitly demanding payment of the alleged arrears. Thankfully, that was one area where my response gave an opportunity to read out the relevant correspondence over a month - from Mr Garner's own exhibits no less - that definitively give the lie to any suggestion that Shoosmiths & CaRT were not fully aware of the challenge on this specific point both by Ms Thomas and Leigh, to which nothing was said other than "your points are noted", while saying he could only get the boat back upon paying the demanded sums [they only backed off on the Court costs order originally included, because that was subject to appeal]!
  2. Yes, the Judge has reserved judgment. This is normal in any complex case where the Judge is going to have to recount the pros & cons; cite case law and legal maxims, and demonstrate the reasoning that has led to their decision. And this case has 3 layers to it. That takes time. The 3 months is the maximum time they have for handing down a judgment [unless that has changed since last I looked].
  3. The judge at no time made any mention of running online commentaries – but I was/am being cautious nonetheless. First day was very curious; the judge began by expressing her dismay that the High Court were being asked to deliberate over the issues behind a case wherein Mr Ravenscroft was asking for relatively little, and where the costs in the event of failure would be ruinous to him, and she was concerned that his case was being’ hijacked’ for the purposes of others. At whom that was directed I cannot say; I hope she was not thinking it was me &/or a group of disenchanted boaters – the phraseology was uncomfortable close to what CaRT were accusing me of in the CMC’s. Given that Chief Master Marsh had not agreed with that accusation so far as I can tell, and given that both Leigh and I had hopefully got across that he had always been willing to come to some accommodation providing only that CaRT published their admission respecting holding the boat as lien on the licence arrears, then it could be that she actually had CaRT in mind. Anyway, she left the court for 10 minutes to give the 2 sides a chance to settle. Leigh would have been willing, despite his passion to “see justice done”, to rest content with the figure he was claiming free and clear plus an agreed order as to the lien issue, but CaRT felt [somewhat understandably it has to be said] that having come this far, to leave without a binding finding would be too frustrating and the costs for nothing – Mr Stoner cited the example of the Brown Judicial Review in his explanations for failure to reach agreement between the parties, though he began by saying they would not rule out the possibility, but that 10 mins was too short for realistic negotiations. The Judge then said if more time was needed she would give an hour – so Leigh said much as he always had, to Mr Stoner, then off we went to have a quick smoke outside while the CaRT/Shoosmiths contingent huddled in a conference room. They unilaterally decided that agreement was not going to be feasible, so when the hour was over Mr Stoner regretfully announced that agreement was not going to be possible, and we made a rather late start with me outlining Leigh’s case. As usual, once I started deviating from my written notes I was faced with having to talk off the cuff, and I just hope I managed to cover the salient points in the hour or so before we broke off for lunch. I had to finish with saying I would need to refer her to the Skeleton for anything I had omitted, but in retrospect, I do wish I had taken more time, and had taken her through my exhibits and authorities to make my points, rather than simply referring to them. In fact, some of the going through those were done by Mr Stoner, which was tactical on his part [intending to ward off some of the stronger points], but helpful in my opinion, to Leigh’s case, thankfully. I am still not entirely sure of the “rules” regarding this. From some of the Judge’s earlier comments, and discussing with Mr Stoner, we decided that we could dispense with cross-examination provided that we could not be held to agree with anything disputed. The judge took a very pragmatic approach to that, and suggested we hand up a list of those things in the statement we disagreed with. Surprisingly, then, Mr Stoner said that witnesses should at least take the stand and be sworn in, and once there, he really went to town on Leigh, attempting to get enough to trip him. In my opinion, Leigh did very well. I doubt that Mr Stoner’s main angle that the licence fees were only brought up by Mr Garner in reply to Leigh did him any good. He made an issue of Leigh having said “What do I owe on licence fees” on the video, as an acknowledgment that he owed them and that Mr Garner was only answering that question, so that the question over whether they should be paid as well to get the boat back was not in evidence at that point in time – the demand was a later slip-up. I had a chat with Leigh, and we decided to stick with the ‘minimal intervention’ plan, so my cross-examination was minimal. I rather liked Mr Deards; it would be profitable to sit down and discuss with him the whole approach they take at some point, though it could have been a court persona of reasonableness that has taken me in; I would hope not. Maybe thinking over some of what I have said will sink in, having been forced to sit and hear the case for the disproportionality of how they use s.8. Mr Garner I spent very little time with and only asked 2 questions. The last was simply whether he had been shown Leigh’s response to the late Shoosmiths letter proposing narrowing the issues by dropping that which they had admitted [Yes], and then asking why he did not see fit to include that response which demonstrated that Leigh had not simply refused flatly the proposal, but had explained his position and made a counter proposal [it is buried in a separate bundle unrelated to the Garner Statement exhibits]. But the first of those was the one bit I decided I could not let go by, where he claimed in his sworn statement that Shoosmiths had written on a certain date affirming that CaRT was not holding the boat as a lien on debt. I took him to that email and asked him to show the court just exactly where that was said. As he had to admit, it simply was not there at all [it was an invention to play down the problem for them over this issue]. I am told by those at the back that his expression was a picture. The Judge had something else on the next morning, so we didn’t start until 2pm. We were not able to work out the Court’s Monitor and connection to my laptop, so we adjourned the video watching for the next day, while Mr Stoner put the case for CaRT. The rest of the afternoon was on the main navigable channel interpretation. Wednesday morning was the chance to play the videos, and after a chat with Leigh, decided to show only 3 clips, but I think they were telling ones, despite having too much extraneous nonsense involving the police. Significantly, the first showing Mr Garner trying to get close to Leigh while Leigh was walking back from as he spoke, was a significantly different picture to the nose to nose intimidation as portrayed in the witness statement, and how anyone can mistake the lashing out of his hand at the camera without even looking at whoever it was, for a polite reasoned request with a hand held up just to block the view and not striking the camera, is beyond me. We also had the very clear introduction of the 4 year licence fee being mentioned, and Leigh’s father demanding to know what those amounted to so he could pay on the spot. Mr Stoner then took the rest of the time to one o’clock presenting CaRT’s case re: proportionality and “distress”. After lunch I had about 2&1/2 hours to address certain points raised by Mr Stoner, and because I had introduced something not dealt with earlier, Mr Stoner was able to briefly respond to those. I am not going to say much more than this for now, while the Judge deliberates; others who were there could provide their own views freely should they wish.
  4. Not quite like the movies! However, as I said, Leigh as Claimant gets the last word, so I can pick up and deal with anything said that needs contradicting. One good thing was that I was able to refer to documents such as the Waterways Ombudsman Report 2010 that were in the bundle CaRT objected to, and in response to the Judge noting that it was largely public domain material anyway, Mr Stoner sensibly declined to make an issue over it. A freelance reporter was there, wanting details of the argument for an article on this case and others, while Leigh afterwards received a message from somebody asking if he would help with a documentary. There were several observers in the back of the court, a few of whom I knew, but did not have time to chat to. One was a member of this Forum.
  5. First day over; Judge began urging settlement and gave us first 10 minutes to decide if there was potential, and then when Mr Stoner came back and told her that though it was not ruled out the time was too short, she gave a full hour of time out. No dice from CaRT, so we went ahead, First precis of case outlined from me with quite a few probing questions from the Judge, then Leigh cross-examined on his witness statement by Mr Stoner, followed by an exceptionally brief cross of Garner and Mr Deards by me, despite having prepared lengthy lists of questions - but I took my cue from the Judge that she wanted tight focus on issues directly determinative of the questions she had to decide, which meant that there was really no point in just making them look bad over their opinions. Tomorrow will be afternoon only from 2pm, when we watch a selection of video clips on the court's widescreen - if my laptop works with Shoosmiths' lead and both work with the courts equipment. We will then have the benefit of Mr Stoner's exposition for the rest of the day and probably into Wednesday, with time for a final word on Leigh's behalf. 3 days max.
  6. Essentially you are perfectly correct- government wanted shot of the responsibility and costs, and happily fell in with the “rats leaving the sinking ship” plans that the then Chairman & CEO had been working on for some years. The then Legal Director Nigel Johnson was hugely instrumental in formulating the details and lobbying the sympathetic MP’s and Waterways Minister of the time [who had vested interests in the matter]. However that does not negate the possibility of Ministers stepping in should they wish to. They remain adamant that CaRT is no longer any responsibility of theirs, and lean on the fact that a “Protector” has oversight of affairs [though in practice he concerns himself only with whether they are gambling unacceptably with their share of the public purse]. Nonetheless, the legislation still provides the statutory right/responsibility for intervention should they see fit. In fact, they could at any time pull the plug on CaRT altogether and replace them with a different trustee of the national assets, should they prove insolvent. Technically of course, they have been insolvent from the beginning. However the inclination to intervene is not there – although if enough public exposure threatened to draw sufficient adverse attention, then they could well decide to involve themselves.
  7. Me too now - what did you leave him?
  8. Not to worry; their interest has obviously revived, and every question starting from afresh is an opportunity to see things with fresh eyes.
  9. I wanted to leave some comment, money, and food for you in recognition of your contributions to the thread, but your signature link appears not to work.
  10. The boat was neither registered nor licensed at the time. Leigh had registered it when he first bought it, in order to sell as a going concern. 3 years later, when he saw it still unused and becoming dilapidated, he bought it back, and intended to get it registered once ready to sell on again – but it was snatched before he could complete his preparations having received a good offer. The interim owner had never bothered to keep it registered, presumably because he never got around to planning a trip with it. Yes, CaRT DO say it was unlicensed [and it was not]; they have been consistently using that term throughout ALL the case pleadings, in the effort to confuse the matter and bury the significance behind the distinction. It is the sort of tactic that can work on a susceptible judge, and/or one with little time or inclination to question their probity [which is what happens in most of the necessarily cursory hearings in the County Courts].
  11. Correct. I think she must have been referring in 516 to yet another similar but earlier complaint though.
  12. Not quite correct. Licensing is mandatory for all canals, but NEVER for ‘river waterways’ [comprising the MNC of the listed navigations]. IF a boat has a Pleasure Boat Licence, it may use the ‘river waterways’ also [it will already be registered], but if the boat is intended to stay on the ‘river waterways’ only, it only needs the Pleasure Boat Certificate [which costs 60% of the Licence]. Sorry if this comes across as pedantic, but it touches on crucial points that also relate to the legal extent of application of s.8. All boats on the public navigable rivers have the lawful authority to be on those waterways by virtue of the common law right of navigation; the PBC is a superimposed requirement on the PRN that does NOT confer lawful authority to be on the waterway. The Environment Agency made exactly this argument in one of their cases earlier this year. I believe they are correct. Hence, you may be on the river waterway with lawful authority, even if you are acting unlawfully while exercising that public right – as in failing to comply with the registration requirement, or in breaking any of the relevant byelaws. As an early BW informative explained – on the canals it is different; all public and private rights of navigation on artificial canals were abolished in the Transport Act 1968; thenceforth, keeping &/or using a boat on the canals became permissive rather than of right, and the 1975 Act subsequently allowed BW to impose through byelaws, conditions of using and keeping boats on them. The 1976 byelaws followed accordingly, imposing the condition of being licensed [‘permitted’], while the 1995 Act imposed conditions for issue of the licence through primary rather than secondary legislation, because BW wanted those conditions to apply to all the river waterways as well – which they expressly could NOT impose through byelaws.
  13. Why would I agree that Leigh’s boat should have been registered? The requirement is limited to the ‘main navigable channel’ of the listed river navigations, not the entirety of those river navigations [still less to the rivers as a whole]. I happen to agree with Leigh that CaRT’s interpretation of the term when it appears in the 1968 Act is correct, and that it means pretty much what any ordinary person would think – a primary channel down the middle of the river. We differ from CaRT only when they claim that the same term should bear a totally different meaning in their own Act of 3 years later. They do not, in other words, have a right to demand any boat on the river, or even on the Navigation element of the river, must be registered – only where the boat is kept or used in the main navigable channel [with which CaRT agree] which means exactly what they say it does when applying the 1968 Act [with which CaRT disagree]. You are absolutely correct that the courts and only the courts can authorise seizure of goods in order to recoup a debt. CaRT do not [NOW] disagree; they say that the boat was seized because it was unlicensed, NOT because it had not paid for a licence [if you can unravel the subtle distinction for me, I would be obliged].
  14. Yes, it is a FACT that CaRT’s powers to manage their waterways are independent of ownership. The same applies to any “creature of statute”; they have no powers other than those expressly granted to them, so cannot exercise the same common law rights of a natural person in relation to their property – but equally, they can be expressly granted particular powers to govern the use of that which is NOT their property. It cuts both ways. CaRT have not made that up. You only have to read the terms of the relevant legislation, which are expressed to apply to waterways “owned OR managed” by them. Your second question is unclear to me. That it is a FACT that BW/CaRT have held that their maintenance obligation extends only to the ‘main navigable channel’ of Commercial and Cruising waterways [whether rivers or canals], and that for maintenance purposes as per the 1968 Act that refers only to the central dredged channel of specified dimensions, you can see from reading the case in the link I provided. Whether that is FACT or not [and it is my position and Leigh’s that they are correct], is the primary issue to be determined in this case. CaRT want a different interpretation to apply in the case of the 1971 Act such that it would apply bank to bank. But again, you are confusing two separate elements of legislation. Licensing is mandatory under the byelaws of 1976 as extended under the 1995 Act, and applies to all canals not river waterways, the requirement allowing for no geographic limitation to the main navigable channels of the canals. The river legislation of 1971 [as amended] is different; it applies solely to the main navigable channels of the scheduled river navigations. CaRT can therefore enforce the licensing laws against any non-compliant boat on the canals, whether moored outside of the main navigable channel or not, by prosecuting for the byelaw offence. Marinas and private arms do not comprise part of the canals of course, so the statutory licensing regime does not extend to them. No licensing laws apply to the rivers, because they are subject to public rights of navigation; only a registration requirement has been imposed upon that right by virtue [or otherwise] of the 1971 Act as amended in 1974 and 1995. Nothing contradictory in any of that.