Dunkley v CRT. An injunction?

[bobtom]

Ever since Tony Dunkley's first post, this topic, like topsy, has just "grow'd". I, like many others following this case, I suspect, find it informative and educational. At the moment we are all stuck in limbo waiting for the 24th. Hopefully this thread will keep us junkies satisfied till then.

 

One thing that hasn't been covered, in detail, is the subject of injunctions.

 

Nigel Moore

Posted 22 October 2014 - 09:12 PM

"Earlier in fact the time to initiate action was from the moment they revoked the licence in the first place. That took place months before he applied for a new one and was refused.

 

The very first thing to do under those circumstances is to apply for an injunction against them acting on the situation. If nothing else, they dont care for that, and would probably offer an undertaking not to so act without at least initial discussion within the legal department at a higher level than is ordinarily indulged in."

 

How would a person, in Tony Dunkley's situation, go about this? What does it involve? Could they get legal aid?

 

 

As an aside may I ask Tony Dunkley why you didn't apply for one? All along I have thought it was out of ignorance, as it would have been for myself and, perhaps, many others. I'm not sure that this is correct though. Only yesterday it occurred to me that you had written some very knowledgeable and insightful posts.

 

Tom

[NigelMoore]

There may be some wisdom in Tony not answering the direct question just yet, but it is probably fair to say that as for most of us in such situations, he has learnt quickly.

 

I doubt many would ever have known the best course of action in this instance – or even that pre-emptive action was possible at all. I only knew myself because I had been assisted some years previously by another boater in a non-waterways contretemps, when he recommended this, so I applied the same procedure once Johnson had snottily dismissed my suggestion that the notices be withdrawn.

 

It works, and ideally – as happened initially in my case – it need go no further, and the hearing can be vacated. The legal department got very busy doing their best to come up with a suggested temporary ‘pax’ to give us time to discuss the issues outside of the court. It was only when, after a couple of weeks of being put off, I discovered they were instructing a barrister with the intent to take the matter into the local County Court before a particular judge, that I took alarm and went ahead myself into the High Court.

 

I really believe that these days, faced with the reality of a boater initiating such an action, they would sit down to discuss things more readily.

 

edit to add: some useful information can be acquired through a quick internet search. An example here - http://uk.practicallaw.com/2-211-3117

Edited November 3, 2014 by NigelMoore

[Alf Roberts]

I find it interesting that the malfeasance of CRT and its legal advisors is leading to the boating community becoming very well educated in waterways law and court practice.

 

A big thank you to the Neil Kinnock tribute band and all the less well known helpers.

 

It is a real shame that this has become necessary but it is a road where gains will not be lost.

[thunderbird]

I find it interesting that the malfeasance of CRT and its legal advisors is leading to the boating community becoming very well educated in waterways law and court practice.

 

A big thank you to the Neil Kinnock tribute band and all the less well known helpers.

 

It is a real shame that this has become necessary but it is a road where gains will not be lost.

Indeed!

[thunderbird]

There may be some wisdom in Tony not answering the direct question just yet, but it is probably fair to say that as for most of us in such situations, he has learnt quickly.

 

I doubt many would ever have known the best course of action in this instance – or even that pre-emptive action was possible at all. I only knew myself because I had been assisted some years previously by another boater in a non-waterways contretemps, when he recommended this, so I applied the same procedure once Johnson had snottily dismissed my suggestion that the notices be withdrawn.

 

It works, and ideally – as happened initially in my case – it need go no further, and the hearing can be vacated. The legal department got very busy doing their best to come up with a suggested temporary ‘pax’ to give us time to discuss the issues outside of the court. It was only when, after a couple of weeks of being put off, I discovered they were instructing a barrister with the intent to take the matter into the local County Court before a particular judge, that I took alarm and went ahead myself into the High Court.

 

I really believe that these days, faced with the reality of a boater initiating such an action, they would sit down to discuss things more readily.

 

edit to add: some useful information can be acquired through a quick internet search. An example here - http://uk.practicallaw.com/2-211-3117

It helped to wake boaters up to the situation when it was revealed that CaRT/Shoosmiths were serving boaters with Civil Notices i.e. Part 8 Notices that required a response if they were to be defended.

[NigelMoore]

Indeed, I would never have known about this Part 8 process myself if it had not been for the Tony Dunkley revelations. It was not something I had had to cope with, because in my instance they were in too much of a rush; they gave no warning before serving the s.8’s, and had not intended to give any court time to the matter, they were just going to haul us all away.

 

I often feel as though I am always catching up with learning the necessary, just that bit after the event! Belated notwithstanding, knowledge is invaluable in coping with such organisations, and dissemination of it more widely is hugely important in the current administrative climate.

 

It should, of course, be emphasised that all the knowledge in the world is not going to help the obvious violaters of law; it only helps those who are victimised as pawns in a game of seeking ostensible judicial sanction for strained interpretations.

[NigelMoore]

A point that does need making in this context – the very first thing you need to do, even before filing for an injunction or declaration, is to write to the CaRT legal department explaining why you believe the s.8 is inappropriate; suggesting that they withdraw it, and state clearly what legal action you will take if they are not prepared to at least give a formal undertaking, in writing, that time will not run on the s.8 nor any action taken on it, unless and until there is agreement that talks have broken down.

 

Quite apart from the sensibility of that, you need to show the court that your application to them came about only because that alternative route had failed. Never phone and talk; always put everything in writing [emails are perfect]. You only need to be alert to the possibility that they will be putting things in motion while you are talking, and be ready yourself to pre-empt or respond appropriately.

 

If you are going the 'Declaratory Relief' route, you should still take it to the High Court. With all respect to County Court judges, it is bad enough trying to get High Court judges to consider that the legislator may not be presenting a proper interpretation of their own legislation. In order to succeed in getting heard in the High Court though, you would have to provide a statement explaining why the High Court is the proper avenue rather than the County Court.

 

The case would not comply with the normal criteria of involving considerable sums of money, so there are only two possible reasons, one or both of which might apply: 1) your case involves interpretation of a private Act, and on the authority of the court in Swan Hill Development v BWB, the High Court is the appropriate replacement for the early Commissioners; 2) if the issue involves dispute over what you believe to be an unwarranted charge for use of the waterway, then the High Court is the only avenue permitted to deal with Tolls,

 

I would hope this is superfluous, but - for goodness sake, know what you are about before letting yourself get into such a position, if there is any alternative way of avoiding it. Even if you believe strongly enough that you are in the right and are willing and able to fight over it, give yourself time - if possible - to marshal your facts and arguments well in advance of needing them.

 

The possibility of obtaining legal aid is remote, but not necessarily impossible - best contact the NBTA in that respect, who would point you in the direction of a firm with relevant experience.

[Sabcat]

It's be a good idea, probably after the 24th, to get all this info onto a site, rather than a forum where other posts/arguments clutter up the info. A guide to boaters finding themselves being hit by the kind of action Tony and others have experienced. I can't write the info but I can host it/provide the url.

[Gordias]

It's be a good idea, probably after the 24th, to get all this info onto a site, rather than a forum where other posts/arguments clutter up the info. A guide to boaters finding themselves being hit by the kind of action Tony and others have experienced. I can't write the info but I can host it/provide the url.

 

I'd suggest trying for "flowcharts and template documents" if possible. If that's not practical, examples of documents that have been successful are the next best thing (anonymized in advance, because if they get used at all, sooner or later someone will copy/paste without reading

Edited November 4, 2014 by Gordias

[bobtom]

Thank you Nigel I had looked at the practicallaw.com site but couldn't relate it to this discussion. However, looking again, I realise that I needed to log in. I'm a lot clearer on it now.

I very much agree, with any enforcement dispute, the first action is to contact CRT.

 

It's be a good idea, probably after the 24th, to get all this info onto a site, rather than a forum where other posts/arguments clutter up the info. A guide to boaters finding themselves being hit by the kind of action Tony and others have experienced. I can't write the info but I can host it/provide the url.

I agree but would suggest that it encompasses any form of enforcement from pre-CC1 to section 8.

 

Tom

[MtB]

Searching here for Part 8 for an explanation of the term seems to be a futile exercise.

 

Can anyone summarise the meaning of the term or link to a thread containing an explanation please?

 

Thanks,

 

MtB

[Allan(nb Albert)]

Searching here for Part 8 for an explanation of the term seems to be a futile exercise.

 

Can anyone summarise the meaning of the term or link to a thread containing an explanation please?

 

Thanks,

 

MtB

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part08

[NigelMoore]

Searching here for Part 8 for an explanation of the term seems to be a futile exercise.

 

Can anyone summarise the meaning of the term or link to a thread containing an explanation please?

 

MtB - further to the court page Allan has linked to, I summarised the matter back in the 'Boater with home mooring' topic:

 

http://www.canalworld.net/forums/index.php?showtopic=68206&view=findpost&p=1352225

[MtB]

Thank you, you two.

 

Currently finding it too impenetrable to get a grip on. I should be working - calling punters back and fixing their boilers!

 

MtB

[John V]

Much as I would like to understand things, I find that after a very short time wading through such an impenetrable swamp of legalise, my eyes glaze and I can hear the word "Doh!" coming from my lips

[NigelMoore]

Currently finding it too impenetrable to get a grip on.

 

‘Part 8’ is an alternative court procedure followed by claimants where they say no defence arises, and the court can rubber-stamp the claimant’s request for an Order in the terms they ask for.

 

In the context of this topic, it is a situation that hopefully would not arise because you will have pre-empted it. From the available evidence, ALL evictions proceedings on the basis of Section 8 are filed as such.

 

Unless the recipient of a court notice of such a proceeding knows that they must object to the procedure - if they are to be able to file a Defence to the proceedings - the court will take the Claimant’s word for it, and grant the Order they seek. No doubt that, in many instances, this will have been a valid way for the authority to conduct themselves, because there can have been no defence – but we can never know, from the available records.

 

Knowing the facts involving the process is, however, vital for anyone who believes that they have been targeted wrongly, and wants the chance to argue that. Ordinarily, it is required for any claimant, let alone a Part 8 Claimant, to include with the Court Notice a standard information pack advising the recipient of their rights and obligations, with what they need to do. Unfortunately, many will not find this comprehensible [although the court does a fair job of using plain English], and worse yet, you cannot guarantee that CaRT’s solicitors will not “forget” or “overlook” the need to include the obligatory information pack.

 

When BW boasted, as they often did [in London at least] of never losing a Section 8 case, it is no surprise then – none of them used to be defended, because no-one knew that they could be! Easy enough to “win” over a hog-tied opponent. The very few recent defended cases which BW/CaRT ‘won’, it needs to be recognised, each contained criticism of the Guidance as then drafted, and/or of the way the authority went about things.

 

The last of those cases [Mayers] was a significant warning to everyone of the need to take the positive action recommended by the topic’s title. IF you believe that you have done nothing wrong, then the responsibility lies with you to register that claim. Whatever people may fondly imagine, courts are not a venue within which you will necessarily have the opportunity to put your case; strict rules apply.

 

If you find yourself with your boat licence revoked and you believe that was wrong, you MUST take such action as shows the court that you did all that lies in your power to rectify the situation. The big mistake Mayers made was to goad BW into taking him to court so that he could plead his case and make a public ‘example’ of them – it couldn’t and didn’t happen that way. For so long as you are on their waterway without the relevant consent, there IS no defence against the simple charge that that is the situation – regardless of any reason why you [or even the court for that matter] think that might be unfair.

 

Remember too, that Tony was lucky. His home mooring was close by, and was outside of the relevant ‘river waterway’, so that he could return there while fighting the case. Even on the ‘bare bones’ of the claim, he had an arguable defence, unlike Mayers. Many will not be in that position.

 

Forewarned is forearmed.

[MtB]

I understand now. Thank you for an excellent explanation Nige.

 

 

MtB

[John V]

Nigel Thank goodness I can understand you without my brain exploding, otherwise I fear I would remain ignorant.

I just kept going "tilt" trying to read the link!!! Thankyou