Injunctive Relief

[NigelMoore]

As a new s.8 case looms in the London County Court, wherein CaRT are asking for the usual “declaratory and injunctive relief” – and which will almost inevitably be rubber-stamped, because no acknowledgement of service or defence was filed – it may be considered timely to take stock of exactly what these costly proceedings are intended to accomplish, in light of the responsibilities for maintenance of the national asset in fulfilling the charitable objectives entrusted to CaRT.

 

At its simplest, the issue is whether CaRT should be seeking to grow its income by enforcing the purchase of licences where mandatory, or whether, instead, it should be continuing to purge the system of those not paying their way [&/or removing those who challenge the legalities of T&C’s, whether in content or at all, even if otherwise willing to purchase the licence].

 

For context - the immediate case deals with a boater who flatly refused to sign agreement to the T&C’s, although he fulfilled all the statutory requirements when applying for the licence – not that that issue will have a chance to be determined under the circumstances, unless his challenge to the jurisdiction has merit.

 

My question seeks to approach the issue from a different standpoint than the HRA position of proportionality; it seeks to query the practical benefits of the alternatives. In line with the topic’s heading, for example, what does the application for injunctive relief accomplish? Insofar as they are not ultra vires in any event, I suggest they add nothing material or useful to the situation whatsoever.

 

The most they could legitimately be viewed as stating, is surely redundant – that boats must not be kept or used on waterways wherein relevant consents are mandatory, without that relevant consent. At worst, they are an ultra vires extension of statute to overturn public rights of navigation in a blind condoning of that criminal activity.

 

We had much heated discussion on here over the ‘Tadworth’ dispute, wherein CaRT had refused to re-license a boat by reason of the usual Order of the County Court that prohibited the boat from being brought back onto CaRT waterways “without prior written consent”. If, as CaRT attempted to argue, this meant giving them unilateral powers to decide whether or not to re-licence a boat [and asserting that to re-licence s.8'd boats was inappropriate], then they are/were using such Orders to circumvent the statutory obligation: to issue a relevant consent if the 3 s.17 requirements are met. If the Orders meant only that the boat must possess a relevant consent to re-enter CaRT waterways, then surely they are superfluous?

 

I was interested to note while collecting the s.8 Orders published by CaRT – they are now up to date including 2016 – one of the very first from 2012 that involved CaRT replacing BW. In that instance, HHJ Harris QC evidently felt the need to interpolate his own clarification into Shoosmiths’ standard wording, by adding the proper meaning in parenthesis: -

 

[Richard10002]

For context - the immediate case deals with a boater who flatly refused to sign agreement to the T&C’s, although he fulfilled all the statutory requirements when applying for the licence – not that that issue will have a chance to be determined under the circumstances, unless his challenge to the jurisdiction has merit.

 

 

I find it hard to believe that this boater is being taken to court merely because the T & Cs have not been signed?

 

Most T & Cs these days have a clause which states that, even you do not physically sign the contract, or a T & Cs document, you are deemed to have accepted them by the very nature of participating in the activity to which they relate. I would be surprised if the CaRT T & Cs did not have a clause to this effect.

 

Are you sure that the lack of a signature is the only reason for the legal action, or have there been alleged transgressions of one or more of the T & Cs which have led CaRT to decide that the only solution is to go to Court.

 

 

From the limited info that you provide "for Context", given that he/she flatly refused to sign suggests that the boater is

 

i) deliberately using the opportunity to test a point of law, and/or the terms and conditions. I would suggest that this is unlikely, "because no acknowledgement of service or defence was filed", and this would be the first things that would happen in a "test case".

 

or

 

ii) deliberately obstroperous, (which could be for a variety of reasons)

 

It is also my understanding that these matters only get to court after a relatively lengthy period of communications, or attempted communications, with a particular boater. i.e. CaRT dont identify a missing signed copy of the T & Cs, and immediately instruct solicitors to take the action to authorise the removal of a boat from the waterway - there is a lot which will happen in between, and which is missing from your context.

 

Thus, I am wondering why a boater wouldn't just sign a document, if that was all it would have taken to stop the threat of having their boat, (home?), removed from the waterway. I am also thinking that there must be more to this than meets the eye, and the boater must have broken the rules and continued to do so, despite being asked not to?

[WotEver]

AIUI from Nigel's posts, the boater refused to sign the T&Cs and therefore CaRT refused to issue a license. As he's unlicensed CaRT are taking him to court for breaching the rules.

 

Nigel advised him to "just sign the damned form" but he declined.

 

I'm sure Nigel will correct me if I have any of that wrong

Edited December 31, 2016 by WotEver

[NigelMoore]

All correct, save that he is being taken to court for not having a licence; that is the only 'rule' that has been breached. He does not have one; he should have one, so it is an open and shut case given the unchallenged Part 8 procedure.

 

I do not wish to go into any more detail within the context of this debate, because it is a tangent and premature [i do not know what he will decide to do and it is a case I have only observed from the 'sidelines'. It is only a week to wait for what happens there after all].

 

Within the context of my present query, the fact that CaRT are NOT asking for a ruling that agreement to T&C's is a mandatory pre-requisite for licence issue, is part of the uselessness of such proceedings; no useful determinations are sought, only an affirmation that they can get the boat off 'their' waterways.

[WotEver]

All correct, save that he is being taken to court for not having a licence; that is the only 'rule' that has been breached.

Yes, that was what I meant by my first paragraph. Apologies for my lack of clarity.

[Richard10002]

All correct, save that he is being taken to court for not having a licence; that is the only 'rule' that has been breached. He does not have one; he should have one, so it is an open and shut case given the unchallenged Part 8 procedure.

 

I do not wish to go into any more detail within the context of this debate, because it is a tangent and premature [i do not know what he will decide to do and it is a case I have only observed from the 'sidelines'. It is only a week to wait for what happens there after all].

 

Within the context of my present query, the fact that CaRT are NOT asking for a ruling that agreement to T&C's is a mandatory pre-requisite for licence issue, is part of the uselessness of such proceedings; no useful determinations are sought, only an affirmation that they can get the boat off 'their' waterways.

 

One would hope that the judge/s decide that there is a clause in the contract which assumes that the T & Cs have been agreed to, whether a signed document is available or not, if a boater "boats". After all, it is the norm with many other things in life these days.

 

If this were to be the outcome, the court should direct CaRt to stop wasting its' time, sort out it's licence agreement, and issue one to the boater in question.

 

Assuming that CaRT don't want rid of this boater merely because he has failed to sign the T & Cs, they will have to find another route.

 

If the judges do not do as suggested above, then they are their own worst enemies, and are wasting their own time.

[Chewbacka]

If the boater has made it very clear that the T's&C's are rejected then CRT can not claim the fact that the boater is boating or that they issued a licence to a boater is evidence of agreement. It clearly is not if the boater has explicitly stated that they do not agree.

 

If CRT issue a licence knowing the boater does not agree then more boaters will do the same making it harder for CRT to enforce the rules as they would have agreed for those boaters the rules do not apply, otherwise why give them a licence.

 

This then means that CRT either turn a blind eye and allow the boater to boat without a licence, or they issue a licence basically agreeing that the T's&C's don't apply or they start an action to remove the boater from their waterway. I don't see another option for CRT.

The first two options are clearly unacceptable to CRT.

[NigelMoore]

I will be interested in replying with details of that particular case once the immediate fracas is over, but meantime will keep them for another topic, later. Obviously it is of interest to others also, but it is purely illustrative for my present purposes. I want to uncover what, if any, positive results come from such use of s.8.

[NigelMoore]

. . . CRT either turn a blind eye and allow the boater to boat without a licence, or they issue a licence basically agreeing that the T's&C's don't apply or they start an action to remove the boater from their waterway.

 

Accurate enough assessment, except that there was a choice CaRT made to make an issue out of something they needn't. It was as foolish for CaRT to make an issue out of this as it was for the boater; probably more, in fact, given potential future repercussions.

 

What s.8 does in this instance is get rid of what they see to be a troublemaker without having to test the grounds. It was a gamble that has paid off in this instance, whereas if it happened with someone who was both well prepared and willing to take this to a Judicial Review, it would definitely be embarrassing.

 

I have always advocated ticking the box and if felt strongly about, attaching a cover note. ‘Tadworth’ ended up doing just that I believe. I am suspicious over the impartiality of Judicial Reviews also.

 

However, to keep on point, this use of s.8 costs money, time, a customer, and good will, without establishing anything positive or useful from their point of view. If it was desired to obtain a ruling on the point, an application for a declaration to that effect would have created a value to the action. If they had ignored the box-ticking exercise and just granted the licence, they would have gained a fee-paying customer - and so far as enforcing T&C's are concerned, any that are enforceable remain so by virtue of statute and byelaws; agreeing to them or not makes no difference whatsoever.

[Chewbacka]

If I was CRT and a boater requested a licence and stated they would not accept the T's&C's I would not issue them with a licence, why would I?

If I did issue them with a licence I would have accepted that the T's&C's did not apply to the boater.

It would allow the boater to claim that the bye laws do not apply as a licence has been issued under the explicit agreement that the T's&C's do not apply to this boater.

 

Even the CC guidelines issued by CRT could be argued are not applicable.

If it ended up in court how would CRT argue the CC rules apply when they gave written permission (in the form of licence) to the boater to be on their waterways without having to abide by the T's&C's????

[hounddog]

terms and conditions have nothing to do with byelaws or vice versa - the clue is in the name bye-law

[Chewbacka]

terms and conditions have nothing to do with byelaws or vice versa - the clue is in the name bye-law

But the T's&C's clearly state amongst other requirements that you agree to comply with the bye laws, that you agree not to moor for more than 14 days in the same place etc.

If CRT give you written permission (ie a licence) to use their waterways without any T's&C's then I could argue I have been given an exemption to the bye laws, and so these are not applicable to me. So no need insurance, no need following the CC guidelines etc.

[Chewbacka]

This is taken from the licence T's&C's -

"You must comply with relevant legislation, bye-laws, and the navigation rules identified in

Schedule 5, and follow our lawful directions, spoken or written (including signs). This includes

signs that prohibit mooring or limit the period you may moor the Boat at specific locations."

Now if I specifically state that I do not accept the T's&C's including the above, and CRT agree that the T's&C's do not apply to me by giving me a licence on the clear understanding that I have rejected the T's&C's then I can reasonably claim that I am not bound by the above.

[WotEver]

This is taken from the licence T's&C's -

"You must comply with relevant legislation, bye-laws, and the navigation rules identified in

Schedule 5, and follow our lawful directions, spoken or written (including signs). This includes

signs that prohibit mooring or limit the period you may moor the Boat at specific locations."

 

Now if I specifically state that I do not accept the T's&C's including the above, and CRT agree that the T's&C's do not apply to me by giving me a licence on the clear understanding that I have rejected the T's&C's then I can reasonably claim that I am not bound by the above.

I don't follow your line of logic. If I drive a car on the road I accept that if I don't abide by the various motoring laws I can be prosecuted. I don't sign anything each year to state that I abide by the law, I simply have to do so.

 

Likewise with a boat on the inland waterways. Whether or not I sign something I am still obliged to obey the law of the land (in this case, bylaws).

[hounddog]

No, don't be daft. Not agreeing to the terms and conditions doesn't exempt you from abiding by the law. The terms and conditions contradict the law in many places and are invalid in any account ( an example is the right to board a boat )

 

It is a shame if this case is not contested although i believe it is too late, CRT should have been legally challenged when they refused a licence despite compliance with Section 17 of 1995 Act

[Richard10002]

I'd guess that this a particularly awkward boater and that CaRT will have exhausted all other avenues, so had a choice of letting things lie, with all of the ramifications of this with other boaters, or going to law.

 

The point they will be making, with this expensive process, is that you sign the document agreeing to our T & Cs, or you won't be using the waterways - take it or leave it!

[NigelMoore]

No, the point is that they will be doing no such thing. They will be getting approval for evicting the boat from 'their' waterways, and that only. The reason for his not being licensed will not and does not enter into their claim.

 

 

edit to add: yes, they are making that point to the individual - but again, just by way of vindictiveness, because they are not giving him the chance to profit from his admonitory experience. As far as the public and the court case is concerned, that will result in yet another uncontested Court Order to post up on their website, without a clue to anyone as to why the boat was unlicensed.

Edited January 1, 2017 by NigelMoore

[NigelMoore]

If CRT give you written permission (ie a licence) to use their waterways without any T's&C's then I could argue I have been given an exemption to the bye laws, and so these are not applicable to me. So no need insurance, no need following the CC guidelines etc.

 

Sadly, thoughtless posts such as these cause me to fast lose any respect for your opinions, which is a shame.

 

I would invite you to think about what you are saying a little more carefully. CaRT give you a licence if you meet the 3 statutory conditions because they have no choice. Nothing they do or do not do can circumvent the clear statutory obligations either on them, or on the boater.

 

Nobody is free from the obligation to abide by the law just because they have not signed agreement to do so; government does not operate under that sort of contract.

 

Equally, such of the T&C's as do not have the force of law, cannot achieve that enforceable status because allegedly agreed to by way of forced contract either.

If I was CRT and a boater requested a licence and stated they would not accept the T's&C's I would not issue them with a licence, why would I?

 

Well, you would not, for the same reason CaRT do not – because you care nothing for the law that obliges you to do so. Therein lies the reason for issuing the licence.

 

[Capt Ahab]

 

Accurate enough assessment, except that there was a choice CaRT made to make an issue out of something they needn't. It was as foolish for CaRT to make an issue out of this as it was for the boater; probably more, in fact, given potential future repercussions.

 

What s.8 does in this instance is get rid of what they see to be a troublemaker without having to test the grounds. It was a gamble that has paid off in this instance, whereas if it happened with someone who was both well prepared and willing to take this to a Judicial Review, it would definitely be embarrassing.

 

I have always advocated ticking the box and if felt strongly about, attaching a cover note. ‘Tadworth’ ended up doing just that I believe. I am suspicious over the impartiality of Judicial Reviews also.

 

However, to keep on point, this use of s.8 costs money, time, a customer, and good will, without establishing anything positive or useful from their point of view. If it was desired to obtain a ruling on the point, an application for a declaration to that effect would have created a value to the action. If they had ignored the box-ticking exercise and just granted the licence, they would have gained a fee-paying customer - and so far as enforcing T&C's are concerned, any that are enforceable remain so by virtue of statute and byelaws; agreeing to them or not makes no difference whatsoever.

You cant pick and choose which T&C's you will accept - that is a completely unworkable approach. If the argument is the need to sign or not sign T&C's - frankly what does it matter? If we want to operate on CRT's track we have to abide by their rules. If we dont like their rules we get involved in the organisation and try to make changes. Seriously guys - life is just too short. Sign the damn thing and go boating.

[Graham Davis]

You cant pick and choose which T&C's you will accept - that is a completely unworkable approach. If the argument is the need to sign or not sign T&C's - frankly what does it matter? If we want to operate on CRT's track we have to abide by their rules. If we dont like their rules we get involved in the organisation and try to make changes. Seriously guys - life is just too short. Sign the damn thing and go boating.

 

Agreed Andy, but it seems like there are a few people who are out to cause as much "trouble" as possible, especially f the name mentioned over on Thunderboat in a discussion about this case is the one involved.

[Chewbacka]

 

.............................................

 

Well, you would not, for the same reason CaRT do not – because you care nothing for the law that obliges you to do so. Therein lies the reason for issuing the licence.

I should have made myself more clear, but I was not trying to justify their actions, more giving my view of how they see the world, and my thoughts of their logic behind their actions.

If I am correct in my assessment then it explains why an action such as refusing the T's&C's whilst actually complying with the requirements which may seem like a trivial gesture results in CRT taking drastic actions against the boater.

[NigelMoore]

I should have made myself more clear, but I was not trying to justify their actions, more giving my view of how they see the world, and my thoughts of their logic behind their actions.

If I am correct in my assessment then it explains why an action such as refusing the T's&C's whilst actually complying with the requirements which may seem like a trivial gesture results in CRT taking drastic actions against the boater.

 

Understood. But that explains the decision to take action, not the decision as to what action to take.

 

If the boater is recalcitrant/indigent [“man of straw”], then the irrecoverable sum will exceed £6,000 using the s.8 process, as against ‘only’ £500+ involved in laying information before the Magistrates Court, or even just suing in the small claims court [the former would be most appropriate].

 

Where is the business sense in placing at risk a ten-fold sum, using a process that cannot get the licence paid anyway?

 

Section 8 remains the last ditch alternative should the statutory remedies fail.

 

Agreed Andy, but it seems like there are a few people who are out to cause as much "trouble" as possible, especially f the name mentioned over on Thunderboat in a discussion about this case is the one involved.

 

Nobody involved in discussions on either site knows the name of the person involved, because that has not been divulged. They are new to the waterways here, and only bought the boat in January.

[Paul C]

 

Where is the business sense in placing at risk a ten-fold sum, using a process that cannot get the licence paid anyway?

 

 

 

They prefer it because its a deterrent.

[NigelMoore]

 

They prefer it because its a deterrent.

 

Yes indeed, it is a greater deterrent even than making criminals of non-licence payers, and caters to CaRT’s taste for using the biggest possible stick available – but it does NOT make business sense, unless you could reliably quantify the numbers of those who were persuaded to pay up by reason of their fear of the consequences.

[Paul C]

 

Yes indeed, it is a greater deterrent even than making criminals of non-licence payers, and caters to CaRT’s taste for using the biggest possible stick available – but it does NOT make business sense, unless you could reliably quantify the numbers of those who were persuaded to pay up by reason of their fear of the consequences.

 

I can't reliably quantify the numbers (and indeed, I don't think anyone can - after all how can you discover the inner workings of a criminal's mind) but obviously there is a deterrent effect in whichever route you took. The low deterrent value of MC route would mean an amount more admin/enforcement. The canals are mainly rural in nature, they're long stretches of nothingness interspersed with villages/towns/cities. They're difficult to (efficiently, cost effectively) patrol and enforce - and even in the towns and cities, the actual evidence required to be collected is a non-simple process.

 

PS I see you called them "non-licence payers", let's not forget they don't have a licence mainly because CRT declined it mainly because they took the piss, or broke the 'rules' (I know there's a debate to be had on whether not signing the T&Cs is a rulebreak etc) according to CRT. The actual issue of those who simply forgot or didn't realise they needed a licence, or it ran out etc, is a minor part of the overall picture.