Jump to content

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


Horace42

Featured Posts

1 hour ago, Sir Nibble said:

Too late to be any use now I suppose

Far too late for the hearing now long over, sadly. Still - I quoted enough of CaRT and Shoosmith correspondence to drive the point home sufficiently; it would just have been so nice to have been able to demonstrate how current the inadvertent "admission" was!

Regardless, it is NOT too late for use in Leigh's Appeal against the injunction costs, which is due to be heard in the Court of Appeal on 1 November. Lord Justice McFarlane has specifically noted that if, amongst other things, CaRT had admitted to using their possession under s.8 to unlawfully "squeeze" him for payment of the disputed fees, then that could well provide grounds for exemption from the rule that litigants discontinuing a case should be responsible for the Defendant's costs.

To have incorporated that admission into their own argument is consequently a bit of a classic boob.

Link to comment
Share on other sites

  • 4 weeks later...
20 minutes ago, Sir Nibble said:

Leigh and Nigel out on the pop in celebration at CaRT's expense I hope

Very far from it.

The Court has dismissed ALL his claims emphatically, even that admitted by CaRT. I will be able to inform in greater detail once the approved judgment is corrected and released.

Link to comment
Share on other sites

For those interested, the transcripts from the hearing obtained for the purpose of using in the forthcoming appeal hearing over the injunction costs.

First the evidence of the Enforcement Officer Stuart Garner on oath: -

https://www.scribd.com/document/354614776/Ravenscroft-v-CaRT-Garner-Evidence-at-Trial  This example of perjury was totally ignored, and it was accepted that it was merely 'unfortunate' that the alleged arrears were bundled up in the sums demanded for the boat's release.

Second, submissions by Mr Stoner and myself over the ‘distress’ angle: -

https://www.scribd.com/document/354614777/Ravenscroft-v-CaRT-Submissions-at-Court-on-Distress

Note particularly, in the latter, p16, E to G, where evidence is read out that Leigh specifically proposed paying the removal and storage costs only, as quoted. The judge has nonetheless denied in her judgment that any such offer was made.

Link to comment
Share on other sites

So are we any clearer? Does this mean he needed a rivers-only licence (PBC or whatever its official terminology - you know what I mean) to moor where he did, ie on the main bit of the Trent (not a subsidiary of it or a backwater etc etc)?

Link to comment
Share on other sites

Yes. It was accepted that tributaries, back waters and marinas etc were excluded from the registration requirement, but that anywhere on the 'main drag' was liable, as the MNC extended bank to bank of that as CaRT had argued. Leigh was on part of the main river section. It boiled down to her considering that the registration scheme would be unworkable otherwise.

Link to comment
Share on other sites

11 minutes ago, NigelMoore said:

Yes. It was accepted that tributaries, back waters and marinas etc were excluded from the registration requirement, but that anywhere on the 'main drag' was liable, as the MNC extended bank to bank of that as CaRT had argued. Leigh was on part of the main river section. It boiled down to her considering that the registration scheme would be unworkable otherwise.

Taken at face value, this makes sense. Are you going to argue against this at appeal? With the possibility that hundreds of boaters who are moored on the edge of a river could no longer need a licence, and might have a valid claim for a refund over a number of years?

Link to comment
Share on other sites

It is entirely down to Leigh whether he wants to pursue this. At present, he is very set on doing so. The judge has ignored the standard maxim over construction of private Acts, and considered the purposive approach only [with a nod to maxims over criminal law, that there must be certainty over the parameters of the created offence]. So whatever one feels about some people 'getting away' with not paying where those on canals do, there is a valid issue at stake. He may well have been less enthused over pursuing the construction point had he won on the other 2, but dismissing proportionality and distress leaves him nowhere to go; he is backed into a corner.

Link to comment
Share on other sites

9 minutes ago, Paul C said:

Taken at face value, this makes sense. Are you going to argue against this at appeal? With the possibility that hundreds of boaters who are moored on the edge of a river could no longer need a licence, and might have a valid claim for a refund over a number of years?

But they would surely have to show that they had never ventured into the MNC.

Link to comment
Share on other sites

21 minutes ago, NigelMoore said:

Yes. It was accepted that tributaries, back waters and marinas etc were excluded from the registration requirement, but that anywhere on the 'main drag' was liable, as the MNC extended bank to bank of that as CaRT had argued. Leigh was on part of the main river section. It boiled down to her considering that the registration scheme would be unworkable otherwise.

10 minutes ago, Paul C said:

Taken at face value, this makes sense. Are you going to argue against this at appeal? With the possibility that hundreds of boaters who are moored on the edge of a river could no longer need a licence, and might have a valid claim for a refund over a number of years?

Am I reading this 'wrong'

The Judge says the MNC (Main navigable channel) encompasses all the water from bank to bank, and not as suggested, just a 'bit up the centre', and any boat between the banks needs a registration / licence

In which case I don't follow PaulC comment.

Link to comment
Share on other sites

11 minutes ago, nicknorman said:

But they would surely have to show that they had never ventured into the MNC.

In order to claim a refund? Yes. a bit difficult to establish I suspect; easier for those in marinas where/if boat movements in and out were monitored. Most boats even where off the MNC by any interpretation, will maintain their PBC just so they are free to go out as the mood and opportunity takes them; they can hardly claim a refund if they happen not to go out after all throughout the year.

5 minutes ago, Alan de Enfield said:

Am I reading this 'wrong'

The Judge says the MNC (Main navigable channel) encompasses all the water from bank to bank, and not as suggested, just a 'bit up the centre', and any boat between the banks needs a registration / licence

In which case I don't follow PaulC comment.

I take Paul to suggest that IF it was to be appealed, so that MNC was restricted to the width of the dredged section, then those who had never left the banks could claim a refund.

Link to comment
Share on other sites

22 minutes ago, NigelMoore said:

It is entirely down to Leigh whether he wants to pursue this. At present, he is very set on doing so. The judge has ignored the standard maxim over construction of private Acts, and considered the purposive approach only [with a nod to maxims over criminal law, that there must be certainty over the parameters of the created offence]. So whatever one feels about some people 'getting away' with not paying where those on canals do, there is a valid issue at stake. He may well have been less enthused over pursuing the construction point had he won on the other 2, but dismissing proportionality and distress leaves him nowhere to go; he is backed into a corner.

 

Its not so much about "getting away" with it, but if that there's a valid legally correct reason to not pay something, then those who are paying it shouldn't need to pay it "just in case". For example (I know car analogies are always bad) my front driveway has no gate, but its clearly marked with a kerbstone and a change of surface - the road is tarmac and the driveway is hardcore/gravel. My car isn't on the main road, so I could in theory SORN it and not need road tax - even though I could start it up and drive it onto the road. I am not required to prove I haven't driven it on the road to be entitled to validly SORN it (and thus pay no road tax), the DVLA are required to prove I HAVE driven it on the road if they wanted to try charge me for my road tax/prosecute me etc.

But with today's news - is that the MNC, for the purposes of the licence, stretches bank-to-bank, pragmatically only because its difficult to enforce a "non paying" edge.

I guess the judge judged it as unworkable because unlike the DVLA, CRT don't have vehicles fitted with CCTV, ANPR records, and don't have as many details in the law which requires that a number plate is a certain font/size/visibility etc so that it can be picked up by automatic systems. And that rivers are somewhat quieter than roads. And that CRT simply doesn't have the resources to draw upon unlike the DVLA etc etc.

Once again, apologies that I've made a motoring analogy but it is in the hope it makes it clearer, not more confusing!

32 minutes ago, nicknorman said:

But they would surely have to show that they had never ventured into the MNC.

Answered above - I think the onus would be on CRT to prove they had ventured onto the MNC, than the boat owner proving they haven't. Of course, sightings on opposite sides/banks of the river would be awkward to explain away.....

Link to comment
Share on other sites

3 minutes ago, Paul C said:

 . . .  that the MNC, for the purposes of the licence, stretches bank-to-bank, pragmatically only because its difficult to enforce a "non paying" edge.

That's the gist of the judgment. There are still. of course, "non paying edges" of broad river interfaces which could be hard to pin down. The other aspect that she latched on to was that the legislation applies also to be boats merely "kept" in the MNC, which despite photographs of just such situations, she felt was not something which would have been envisaged by the legislators.

She held that prior examples where the meaning of the phrase was admittedly what we argued for, were no help because prior to this Act, and later examples of the same were no help because after the Act.

Link to comment
Share on other sites

4 minutes ago, NigelMoore said:

That's the gist of the judgment. There are still. of course, "non paying edges" of broad river interfaces which could be hard to pin down. The other aspect that she latched on to was that the legislation applies also to be boats merely "kept" in the MNC, which despite photographs of just such situations, she felt was not something which would have been envisaged by the legislators.

She held that prior examples where the meaning of the phrase was admittedly what we argued for, were no help because prior to this Act, and later examples of the same were no help because after the Act.

What were the other 2 issues Leigh lost on?

Link to comment
Share on other sites

7 minutes ago, Paul C said:

What were the other 2 issues Leigh lost on?

Proportionality and distress.

He argued that even if he was obliged to hold the PBC, using s.8 to remove the boat at a cost in excess of £6k was disproportionate when the specific legislated procedure would have cost far less, and would have resulted in a registered boat. Using s.8 to accomplish a registered boat only worked if the law was flouted - which was the third point: using possession of the seized boat, even if the seizure was legitimate, was against the law, being illegal distress. 

The judge agreed with CaRT that proportionality need not always be considered, and that prosecution for the offence was no less intrusive a measure anyway [though civil action on the debt would not have been]. I have not got my head around her finding that no distress was levied even though they admitted s.8 could not be used to leverage payment of owed sums, and the fact was that they did so anyway, even after being put on notice as to that. She seems to have bought into CaRT's argument that it was an unfortunate mistake to bundle the 'licence' arrears into the sums demanded for release of the boat, and that because she agreed the sums were owed anyway, so what if they did not pursue the legal route?

Link to comment
Share on other sites

10 hours ago, NigelMoore said:

In order to claim a refund? Yes. a bit difficult to establish I suspect; easier for those in marinas where/if boat movements in and out were monitored. Most boats even where off the MNC by any interpretation, will maintain their PBC just so they are free to go out as the mood and opportunity takes them; they can hardly claim a refund if they happen not to go out after all throughout the year.

I take Paul to suggest that IF it was to be appealed, so that MNC was restricted to the width of the dredged section, then those who had never left the banks could claim a refund.

Thank you - reading it after a nights sleep I see  was misunderstanding.

 

Another question - if the MNC has been set by a court to mean 'bank to bank', will the MNC be dredged to the agreed depths, or will it be as the previous Waterways Ombudsman stated – “British Waterways themselves can sometimes interpret legislation in different ways depending on what suits them in a particular case”.

Link to comment
Share on other sites

10 hours ago, Paul C said:

I shudder to ask but - if Leigh undertook no further legal action from this point on - what's the current bill in £?

I'm curious as to why you'd ask, but I suppose there is always the option of funding through social media methods (crowd funding?) if enough people feel that strongly about it.

 

Link to comment
Share on other sites

More to the point, I'm curious about how Leigh has funded the action taken so far. 

If he ends up being responsible for paying CRT's costs then I would imagine this will bankrupt him. In which case he has nothing more to lose by fighting on.

As they say, "beware the man with nothing left to lose".

Link to comment
Share on other sites

1 hour ago, Alan de Enfield said:

Another question - if the MNC has been set by a court to mean 'bank to bank', will the MNC be dredged to the agreed depths,

Not knowing much asbout rivers is there a single agreed depth for a stretch of river or is it X metres at the bank and Y m in the channel?

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
  • Recently Browsing   0 members

    • No registered users viewing this page.
×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.