Injunctive Relief

[Horace42]

"

What legally unenforceable penalties have I agreed to by singing the license application form, and what obligations have I committed myself to, in either case, that would not apply had I not signe/d.?

 

PS edit. I have said "I" but in a broader sense, it is "we". How does it affect all of us ?

Edited January 2, 2017 by Horace42

[Arthur Marshall]

"

What legally unenforceable penalties have I agreed to by singing the license application form, and what obligations have I committed myself to, in either case, that would not apply had I not signe/d.?

 

PS edit. I have said "I" but in a broader sense, it is "we". How does it affect all of us ?

If you don't sign the application form, you won't get a licence as you haven't applied for one. So you are then on the cut without legal right. I should think that's logical enough.

The T&Cs issue is different because as I understand it, they can be challenged in court if they are unreasonable or illegal. This challenge may of course bankrupt you and also be unsuccessful. Again, it would seem logical that if you DON'T challenge them you will be deemed to have accepted them as legitimate and the penalties claimed by the instigator upheld.

What perhaps needs to be determined is which of the T&Cs we think (or know) are unreasonable bearing in mind the changes of canal/river use since the Act, and then concentrate on challenging those.

[Phil.]

Agreed Nigel, but I don't think "Phil" realises just what the Magistrates look at when a case is brought in front of them.

 

Oh dear. Clearly an undefended action is going to result in a finding of guilt. I thought that so obvious that I did not put it into the post. As for the point made by Nigel as to whether CRT have given thought to the fact that civil proceedings are easier for them than criminal ones, I would think that is a given. Certainly if i was working in CRT enforcement and legal departments, I would go for the option that gave the most positive results for the least amount of effort, especially if what I was doing was crossing the line in respect of my statutory powers, and I did not want this fact to be examined too closely.

[NigelMoore]

"

What legally unenforceable penalties have I agreed to by singing the license application form, and what obligations have I committed myself to, in either case, that would not apply had I not signe/d.?

 

I have never had to sing for my licence thank goodness – a blessing for CaRT as much as for myself no doubt, but signed or sung, there are NO legally enforceable penalties you have laid yourself open to that did not apply had you not so signed.

 

Aside from the fact that Arthur has observed: that they will not give you the licence otherwise, which lays you arguably open to the relevant legal penalties, the obligations you have committed yourself to [supposing that this absurdity was enforceable, which it is not, being illegal] include allowing any CaRT employee to board your boat at their whim without asking you or letting you know, and obligating yourself to pay the expenses involved should any CaRT employee decide to shift your boat along the towpath.

 

You are also allegedly committing yourself to accepting whatever pattern of movement CaRT might deem minimally acceptable from time to time.

[NigelMoore]

it would seem logical that if you DON'T challenge them you will be deemed to have accepted them as legitimate and the penalties claimed by the instigator upheld.

 

No, that would not happen – not at High Court level anyway [too many judges at County Court level are overly impressed with CaRT’s standing and presumed probity].

 

When bodies are given powers to regulate the conduct of the citizenry, to levy charges and impose conditions on the exercise of their rights, those powers are to be constrained by very particular wording in the empowering legislation, and no implied extension or extrapolation of those powers is to be countenanced.

 

CaRT are given a power to regulate what boats are permitted to be kept and used on the relevant portion of the nation’s inland waterways asset; that power is strictly constrained in the terms of the 1995 Act, which provides that CaRT may ONLY refuse the issue of a boat licence on 3 stated mandatory grounds.

 

That means that demanding anything extra as a condition of the licence is illegal and directly contrary to their own statute. I have quoted it before, but it bears quoting again – when handing down judgment in a case where the Attorney General attempted to justify the imposition of a tax on milk by reason of the Dairies having agreed to this in a contract, one of the Appeal Court judges said:

 

“It makes no difference that the obligation to pay the money is expressed in the form of an agreement. It was illegal for the Food Controller to require such an agreement as a condition of any licence. It was illegal for him to enter into such an agreement. The agreement itself is not enforceable against the other contracting party; and if he had paid under it he could, having paid under protest, recover back the sums paid, as money had and received to his use.” [my bold]

[Bod]

 

No, that would not happen – not at High Court level anyway [too many judges at County Court level are overly impressed with CaRT’s standing and presumed probity].

 

When bodies are given powers to regulate the conduct of the citizenry, to levy charges and impose conditions on the exercise of their rights, those powers are to be constrained by very particular wording in the empowering legislation, and no implied extension or extrapolation of those powers is to be countenanced.

 

CaRT are given a power to regulate what boats are permitted to be kept and used on the relevant portion of the nation’s inland waterways asset; that power is strictly constrained in the terms of the 1995 Act, which provides that CaRT may ONLY refuse the issue of a boat licence on 3 stated mandatory grounds.

 

That means that demanding anything extra as a condition of the licence is illegal and directly contrary to their own statute.

 

This needs repeating. It is the the root cause of much of the troubles on the waterways. C&RT are trying to make their own laws, without Parliamentary approval.

Nor are they using the powers invested in themselves correctly.

 

Bod

[Arthur Marshall]

This needs repeating. It is the the root cause of much of the troubles on the waterways. C&RT are trying to make their own laws, without Parliamentary approval.

Nor are they using the powers invested in themselves correctly.

 

Bod

It could also be argued that CRT are using the T&Cs to put their interpretation of the Act's requirements into plain language so that boaters are aware of their responsibilities, and are therefore advised as to when they are endangering their rights to float by their noncompliance.

It would be interesting to look at all the T&Cs individually and see which are causing problems, and assuming my brain ever recovers from new year's eve, I may do that. Nigel mentioned starting a new threat re them, and that would be the place for that.

[NigelMoore]

It is probable that most people will be unaware of what CaRT ask for when applying for “injunctive relief”. Essentially, they are asking for a Court Order forbidding the boater from keeping or using the boat anywhere within their jurisdiction. Having a court order you off the waterways and forbidding you to come back without their prior written consent, is designed to place your presence on the waterways entirely at their mercy and whim for ever after.

 

That is the device relied upon when telling people like Tadworth’s owner that it would be inappropriate to consent to the boat being allowed back on the waterways ever again. It is how the situation is presented/allowed to appear to the public at large, as the slightly better alternative to having the boat destroyed.

 

What most people – including the judges – are blissfully unaware of, is that the scope of “the ban” extends beyond the areas over which CaRT have any legitimate pretension to control entry of boats, whether by licence or certificate of registration. The courts are [ignorantly] assuming a unilateral power to deny individuals their rights under the common law – additionally to denying [as usually interpreted by CaRT anyway] their rights under the 1995 Act.

 

The matter is not left up in the air, open to interpretation as to extent; a comprehensive list accompanies a coloured plan of Great Britain with every CaRT waterway listed by name and outlined in blue, attached as integral to the Order.

 

Not having my ‘proper’ laptop up and running with the relevant programs, I have used a trial program that leaves “sample” plastered all over the image, but you can see what it is all about well enough: -

 

No you can't - image extension not allowed apparently. Perhaps I need to wait until I can get the hardware sorted.

 

You can simply download from the CaRT listing here, and I will try posting them up directly later: -

 

https://canalrivertrust.org.uk/refresh/media/thumbnail/30672-court-order-fran-grogan-freedom.pdf

[Arthur Marshall]

 

You can simply download from the CaRT listing here, and I will try posting them up directly later: -

 

https://canalrivertrust.org.uk/refresh/media/thumbnail/30672-court-order-fran-grogan-freedom.pdf

Comes up as page not found...

[Harpur Hill]

It is probable that most people will be unaware of what CaRT ask for when applying for “injunctive relief”. Essentially, they are asking for a Court Order forbidding the boater from keeping or using the boat anywhere within their jurisdiction. Having a court order you off the waterways and forbidding you to come back without their prior written consent, is designed to place your presence on the waterways entirely at their mercy and whim for ever after.

 

That is the device relied upon when telling people like Tadworth’s owner that it would be inappropriate to consent to the boat being allowed back on the waterways ever again. It is how the situation is presented/allowed to appear to the public at large, as the slightly better alternative to having the boat destroyed.

 

What most people – including the judges – are blissfully unaware of, is that the scope of “the ban” extends beyond the areas over which CaRT have any legitimate pretension to control entry of boats, whether by licence or certificate of registration. The courts are [ignorantly] assuming a unilateral power to deny individuals their rights under the common law – additionally to denying [as usually interpreted by CaRT anyway] their rights under the 1995 Act.

 

The matter is not left up in the air, open to interpretation as to extent; a comprehensive list accompanies a coloured plan of Great Britain with every CaRT waterway listed by name and outlined in blue, attached as integral to the Order.

 

Not having my ‘proper’ laptop up and running with the relevant programs, I have used a trial program that leaves “sample” plastered all over the image, but you can see what it is all about well enough: -

 

No you can't - image extension not allowed apparently. Perhaps I need to wait until I can get the hardware sorted.

 

You can simply download from the CaRT listing here, and I will try posting them up directly later: -

 

https://canalrivertrust.org.uk/refresh/media/thumbnail/30672-court-order-fran-grogan-freedom.pdf

Seems to have gorn...

 

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[WotEver]

Comes up as page not found...

 

Take the space off the end: https://canalrivertrust.org.uk/refresh/media/thumbnail/30672-court-order-fran-grogan-freedom.pdf

[Harpur Hill]

Thank you WotEver.

[Arthur Marshall]

 

Take the space off the end: https://canalrivertrust.org.uk/refresh/media/thumbnail/30672-court-order-fran-grogan-freedom.pdf

Also thanks - I should have noticed that!

[Iain_S]

Since when do CaRT control the Caledonian, Forth & Clyde, Crinan and Edinburgh and Glasgow Union Canals?

 

 

e.t.a. Which are listed on the schedule, but, obviously, not marked on the plan .

 

Edited January 3, 2017 by Iain_S

[Iain_S]

 

(snip)

 

CaRT are given a power to regulate what boats are permitted to be kept and used on the relevant portion of the nation’s inland waterways asset; that power is strictly constrained in the terms of the 1995 Act, which provides that CaRT may ONLY refuse the issue of a boat licence on 3 stated mandatory grounds.

 

That means that demanding anything extra as a condition of the licence is illegal and directly contrary to their own statute.

(snip)

 

So how can they justify charging for the licence? If they may ONLY refuse on the statutory grounds, this implies that that they must issue a licence, even if the licensee refuses to pay for it!

[NilesMI]

If the question is why do CRT follow the s.8 route, rather than seek a prosecution for not complying with bye-laws, Phil's explanation is the likeliest one.

 

CRT cannot "manage" a criminal case to be determined in their favour, for the reason Phil suggests, but also because if it was a criminal prosecution it would be brought by the Crown Prosecutor. Even if CRT sought to bring a private prosecution, it would almost certainly be taken over by the CPS, which is their right and the CPS would look at all the relevant facts. Finally, a criminal case would be decided to the criminal standard - that the offence(s) be proved beyond reasonable doubt and the CPS would need to assess the totality of the evidence on that basis.

[NigelMoore]

 

So how can they justify charging for the licence? If they may ONLY refuse on the statutory grounds, this implies that that they must issue a licence, even if the licensee refuses to pay for it!

 

Silly me. There I was thinking that a filled in application form with a cheque constituted applying for a licence, which could only be refused on one or more of the 3 statutory grounds being not met.

 

Obviously I overlooked the obvious – that I need not present CaRT with anything to refuse; they should give me licences for any compliant boat of mine without even my application.

 

Live and learn; thank you for that insight; the corollary of my statement would otherwise have eternally escaped me. [i do have to own up to more of mine own mental inadequacies though - I have yet to work out how they would know what they were refusing. I shall have to work on that].

Edited January 3, 2017 by NigelMoore

[NigelMoore]

If the question is why do CRT follow the s.8 route, rather than seek a prosecution for not complying with bye-laws, Phil's explanation is the likeliest one.

 

CRT cannot "manage" a criminal case to be determined in their favour, for the reason Phil suggests, but also because if it was a criminal prosecution it would be brought by the Crown Prosecutor. Even if CRT sought to bring a private prosecution, it would almost certainly be taken over by the CPS, which is their right and the CPS would look at all the relevant facts. Finally, a criminal case would be decided to the criminal standard - that the offence(s) be proved beyond reasonable doubt and the CPS would need to assess the totality of the evidence on that basis.

 

Fair points [and I accepted his point as a possible explanation], but overlooking the awkward fact that the EA always do precisely what I have suggested - whether the end result of successful prosecutions results in payment or not. I know of no occasions where the CPS has taken over any of those private byelaw prosecutions.

 

The burden of proof for the majority of occasions [which I would define as those where the facts are undisputed, rather than those where the basis of a 'licence' refusal is disputed] would be met in all those cases where CaRT legitimately bring Part 8 civil actions.

 

The EA has come unstuck, to my knowledge, only where they have sought to extend the boundaries of their legislation. That would crop up whether the action was civil or criminal.

[Graham Davis]

If the question is why do CRT follow the s.8 route, rather than seek a prosecution for not complying with bye-laws, Phil's explanation is the likeliest one.

 

CRT cannot "manage" a criminal case to be determined in their favour, for the reason Phil suggests, but also because if it was a criminal prosecution it would be brought by the Crown Prosecutor. Even if CRT sought to bring a private prosecution, it would almost certainly be taken over by the CPS, which is their right and the CPS would look at all the relevant facts. Finally, a criminal case would be decided to the criminal standard - that the offence(s) be proved beyond reasonable doubt and the CPS would need to assess the totality of the evidence on that basis

 

Crown Prosecution Service are not the only body who can raise criminal prosecutions.

Try train operators for an example.

[Phil.]

Fair points [and I accepted his point as a possible explanation], but overlooking the awkward fact that the EA always do precisely what I have suggested - whether the end result of successful prosecutions results in payment or not. I know of no occasions where the CPS has taken over any of those private byelaw prosecutions.

 

The burden of proof for the majority of occasions [which I would define as those where the facts are undisputed, rather than those where the basis of a 'licence' refusal is disputed] would be met in all those cases where CaRT legitimately bring Part 8 civil actions.

 

The EA has come unstuck, to my knowledge, only where they have sought to extend the boundaries of their legislation. That would crop up whether the action was civil or criminal.

When comparing the cases brought by the two organisations you also have to look at the process by which the relevant vessels are unlicensed. So in the case of CRT it would appear they are predominantly unlicensed because CRT have either revoked them or refused to issue them on the basis of some misdeeds. In the cases brought by the EA it maybe that the vessels are unlicensed simply because the owners are trying to avoid paying the fee of the license. In these instances it would be easier to prove an intent to avoid the license fee rather than be confronted by a defendant who either has had or has attempt to obtain said licence and only does not have one because the organisation bring the case has stretched their powers.

[MtB]

 

Crown Prosecution Service are not the only body who can raise criminal prosecutions.

Try train operators for an example.

 

I thought CRT had that power too. And the RSPCA.

[NigelMoore]

. . . in the case of CRT it would appear they are predominantly unlicensed because CRT have either revoked them or refused to issue them on the basis of some misdeeds.

 

It is a curious misapprehension that the majority of s.8’d boats are those whose licences have been revoked/refused; I am puzzled whence the notion derived. Revoked/refused licences invariably involve live-aboards seen as not moving enough.

 

Hard as the numbers may be to pin down, it appears that CaRT have been removing about 70 boats per year because unlicensed. The huge majority of those never involve a court action at all, because they are not live-aboards. Scarcely 8 per year on average have ended up in a court case since CaRT began, out the hundreds removed.

 

For CaRT, it would seem that the choice is not so much between civil or criminal court action, but between court action and unilateral action. They prefer to just get rid of the unwanted instead of living up to their boasted motto of always pursuing owed monies in the interest of canal maintenance.

[Arthur Marshall]

 

Silly me. There I was thinking that a filled in application form with a cheque constituted applying for a licence, which could only be refused on one or more of the 3 statutory grounds being not met.

 

Obviously I overlooked the obvious that I need not present CaRT with anything to refuse; they should give me licences for any compliant boat of mine without even my application.

].

It's an interesting point though. You can send in your licence application saying you fulfil the three criteria, but none of them relates to money as far as I recall. So the implication is that other considerations can be added to the basic ones... I think that is what the poster was implying!

[NigelMoore]

My point is that payment is integral to the application. Provision of certain personal and other information is likewise integral to any legitimate application also. If you do not provide that, you have not completed a proper application. It takes such an application for there to be an application to refuse.

 

Once in receipt of an application containing the required information [name, address, boat details etc] with payment for the desired period, CaRT can check whether the 3 mandatory pre-conditions are met – and can check if they are still valid even after having issued a licence. The choice to issue or not to issue the licence that has been applied for [or to revoke one issued] will depend on their satisfaction that the 3 statutory criteria will be and are being met – and on that alone.

 

I am so tempted to suggest that quibbling over whether failure to supply relevant information and payment constitutes further reasons for refusal [and that this implies that other reasons also could apply], is getting to a sub-serious level. I am resolutely refraining from doing so, be it noted.

[Giant]

I'm not sure that the question about payment should be considered as flippant.

 

Everyone reasonably accepts that a license fee must be paid to secure a license, but what parts of the legislation actually provide for that? If there is not something specific, then is the requirement of a license fee not, in itself, a condition outwith those enumerated in s.17(3) of the 1995 Act? And if the imposition of this fee condition is to be accepted, then why not other arbitrary conditions?

 

I'm not saying this question has merit as a line of argument, but I think it's worthy of an answer.