Lightship Advertised for Sale

[mayalld]

 

 

Subject to the caveat that we all hear and remember things differently – and I would not wish to bound by any of my observations prior to reading carefully through a transcript of proceedings and judgment – it was my distinct impression that the judge did NOT uphold any view that contracts over-ruled statute.

 

The only statutes cited by Mr Roberts were the Torts and the Tribunals Acts. The judge upheld some characterisation of applicability of the Torts Act that I did not follow [and look forward to seeing a transcript so that I can look into that], while in respect of the relevant section of the Tribunals Act [s.85 voiding contracts purporting to assume powers only conferred by the Act] he denied that the berthing contract was a licence to occupy land, hence fell outside of that Act’s remit.

 

It was not, in other words, that the contract term over-rode the application of the statutes, but rather that the statutes for various reasons did not apply in the first place.

 

IF the judge is correct that the Tribunals Act affords no protection to any other than a narrow class of debtor, then the Law Commission have got it wrong in citing that Act as a sufficient substitution for Marlborough, and I hope to draw their attention to this. Meanwhile, of course, Marlborough still stands unamended or abolished and would have to apply – but Mr Roberts did not raise that point of law.

 

Nor did Mr Roberts raise the Unfair Terms legislation, while he also did not strongly press the proportionality argument.

 

As to that last, it was surprising to me that the judge specifically denied any responsibility to take the proportionality issue into account, while acknowledging that it was open to Mr Roberts to pursue that aspect by other means than his injunction application.

 

The result seems to be where I imagined that it would be.

 

As has been expressed by lawyers over the years, a LIP has a fool for a client. The LIP (and in this case his "representative") are simply too emotionally invested in the case, too filled with a sense of righteousness, to see things clearly.

 

As I said, it was arguable that the berthing contract was a licence to occupy land, but equally arguable that it wasn't. It will be of interest to hear exactly what was said on that point, because with that going against the owner, it removes the firmest bulwark against action.

 

It appears that the "unfair contract terms" angle was neglected, which was probably unwise. Although contracting as a business means that there is a relatively high threshold to climb to prove a contract unfair, it is something that might usefully have been argued.

 

Unfortunately, it would appear that all the eggs were placed in the Torts Act Basket, and upon an argument that no contract could override this statute. This is, as I've said before not a sound argument.

 

The torts act is all about "Wrongful interference with goods". It has no bearing upon acts that are done with the approval of the owner. As such, absent a ruling that the contractual term was unfair, the actions of CRT were authorised by the owner. Clearly, he attempted to revoke that authorisation at the point of removal, but it wasn't open to him to unilaterally cancel a contract.

 

I make no secret of the fact that I find it difficult to extend any sympathy towards an individual who appears to have wilfully failed to pay what he owed, and to have taken the view that he could do so with impunity, but who has discovered that this isn't the case. That isn't to say, however that I would support him being saddled with a disproportionate penalty.

 

The man needs proper legal advice (not Tony, and with the greatest respect not you either) to see if he can salvage anything here.

 

I would suggest that he has one remaining angle under unfair contract terms legislation, in that he could argue that the charges incurred in the removal are so manifestly in excess of what was owed that they amount to a penalty charge.

[NigelMoore]

I suspect the argument may be that the the alleged lack of proportionality will only arise once the boat has been sold and CaRT deduct the amounts from the proceeds. Until then they can indicate what might happen (as they have by creating invoices) but will not have carried it out. As such it is a separate (albeit related) issue from that of preventing the sale going ahead. In any case, you cant get an injunction to prevent what has already happened (the seizure of the boat). It is open to Mr Roberts to seek a judgement for the return of his boat but that was not the case he submitted to the court.

 

The proportionality was respecting the cost of removal elsewhere, when any sale by online auction could have taken place without any seizure and removal of the vessel at all.

 

CaRT argued that the removal had nothing to do with recovery of monies owed; it was simply removing the ship from their property as they had warned the owner would happen if he did not do that himself. The “sole discretion” awarded them under the contract imposing no limits as to how or where they removed it.

 

The judge allowed that the proportionality of that could be challenged in other proceedings. What that overlooks is the whole issue of proportionality upheld by Marlborough [which was not pleaded] and under the HRA. If, as the judge acknowledged, such elements could be introduced in proceedings aimed at getting the boat back, then that ought as I see it, to have been factored into the injunction request.

 

Essentially the injunction request is simply asking for a stay upon execution until a court has had time to decided on the larger issue; if there is a reasonable prospect of success in that, then it is just to order the stay. If proportionality was an issue for the ‘main’ case, then it should have been an issue for the interim request.

 

There may be other aspects to this that I am not aware of – as, for example, that this was a “without notice application” which may carry other implications.

 

There WAS another, separate but linked application for the return of the ship. Apparently, however, Mr Roberts [who had to do all this himself, Tony being unavailable at the time] was seemingly confused what went into what application [so that reasons for one may have been applied to the other and vice versa], and also there is considerable confusion over whether the two were treated as one application or remain separate [advice from the court over what would be most economical entered the picture I believe].

[NigelMoore]

 

The owner didn't need a "daring and imaginative" legal team though, what he needed was somebody with competance in running a business to oversee the figures, understand the risks, weaknesses etc of the business plan and point out clearly "that berthing agreement has teeth; your priority is paying up the rent regularly". The "daring and imaginative" element comes in when a business owner can see opportunities, maximise the available strengths in the business model, and capitalise on these effectively to make a business a robust going concern. I understand there's someone willing to buy the boat - he/she is going go get bargain of the century here!!! Had the owner (I have every sympathy with health concerns) been more conservative and realised he could/should sell as a going concern with the boat moored in Liverpool, he would have had a much better outcome.

 

Nobody, certainly not I, is disputing that there were very many sensible options for Mr Roberts to have followed prior to all this. My quoted comments were by way of general observation confirming the validity of Arthur's comment respecting representation.

 

For all the obvious pitfalls in representing yourself, having poor professional representation CAN be worse. At least judges are supposed to extend some leeway to LiP's, and in certain areas the judge in this case did just that.

 

 

edit with apologies for spelling

Edited December 20, 2016 by NigelMoore

[NigelMoore]

 

The man needs proper legal advice (not Tony, and with the greatest respect not you either) to see if he can salvage anything here.

 

I would suggest that he has one remaining angle under unfair contract terms legislation, in that he could argue that the charges incurred in the removal are so manifestly in excess of what was owed that they amount to a penalty charge.

 

No disrespect felt or taken; it is a good precis over all.

 

I would just say that the Torts Act point was not, as I recall, disposed of in the terms you have argued, but over something else that escaped me entirely, which is why I am interested to read a transcript very carefully.

 

What surprised me was that before going in to the court, Mr Roberts was confidently asserting the proportionality of everything as key, which became a fumbling afterthought when put on the spot.

 

Nerves will do that of course, plus, the judge departed from the usual procedure of allowing the Claimant to introduce his case, by first spending time initially questioning CaRT over several fine points of their case. That would have been enough to throw the Claimant off track.

[Paul C]

 

Nobody, certainly not I, is disputing that there were very many sensible options for Mr Roberts to have followed prior to all this. My quoted comments were by way of general observation confirming the validity of Arther's comment respecting representation.

 

For all the obvious pitfalls in representing yourself, having poor professional representation CAN be worse. At least judges are supposed to extend some leeway to LiP's, and in certain areas the judge in this case did just that.

 

Indeed. Which is why any business which relies upon success in the courts, is "high risk" and definitely "high cost".

[Arthur Marshall]

"As has been expressed by lawyers over the years, a LIP has a fool for a client. The LIP (and in this case his "representative") are simply too emotionally invested in the case, too filled with a sense of righteousness, to see things clearly."

This is probably true, but enough clients have had fools for lawyers to balance it out. And anyway, it's now irrelevant as legal aid is more or less extinct and no-one in ordinary employment (or out of it) can afford to hire lawyers of any ability, if at all. The idea that justice is available to all (if it was ever true, which I doubt) is an extremely dodgy idea to carry with you into a courtroom.

And especially if you are facing some large organisation which, justifiably or not, has a reputation for efficiency, you need to be properly prepared and, even more important, in the right frame of mind to state your case.

This one looks as if it was a total shambles, and if he was muddling up what went in which application, had been one from well before he got to the courtroom.

[raymondh]

Can someone advise where the closest canal and river trust berth to Liverpool for a boat of this size would be

 

Ray

[NigelMoore]

Why is a Canal and River Trust berth in the vicinity of interest?

[NigelMoore]

One item of fact arising from the hearing that is worth pointing out – the judge asked CaRT what the current situation was, and how imminent any disposal of the ship was. It transpires that NO bids for the ship were received by the deadline, and that CaRT have set themselves a deadline for disposal otherwise than by sale, of March next year [presumably they mean scrapping it].

 

The judge asked if they could assure him that they would not scrap it before that date, and on conferring, they agreed.

 

The judge made the point that this was not an official undertaking to the court so was not enforceable; he acknowledged that any force to the assurance relied only upon their behaving honourably.

[Paul C]

One item of fact arising from the hearing that is worth pointing out – the judge asked CaRT what the current situation was, and how imminent any disposal of the ship was. It transpires that NO bids for the ship were received by the deadline, and that CaRT have set themselves a deadline for disposal otherwise than by sale, of March next year [presumably they mean scrapping it].

 

The judge asked if they could assure him that they would not scrap it before that date, and on conferring, they agreed.

 

The judge made the point that this was not an official undertaking to the court so was not enforceable; he acknowledged that any force to the assurance relied only upon their behaving honourably.

 

They invited bids over £100k in the first instance though, thus rendering any bidders only interested in its scrap value, "out". I believe the owner is now trying to sell it independently, this may be his worst move yet since a potential buyer now has a choice of parties to approach to try and buy it - and may conduct a "Dutch auction" style approach.

 

He needs to seek proper legal advice before doing anything. I'd suggest the Christmas period is a good time to reflect upon it all and gather his thoughts, since it is unlikely any significant developments will occur over it.

[MtB]

Why is a Canal and River Trust berth in the vicinity of interest?

 

 

Because one of the planks of the 'proportionality' argument is that CRT moved the boat further than they needed, AIUI.

[NigelMoore]

 

 

Because one of the planks of the 'proportionality' argument is that CRT moved the boat further than they needed, AIUI.

 

One of the planks of the 'proportionality' argument is that CRT did not need to move the boat AT ALL. If they wished to move it off their property, they could have arranged to an alternate berth with other businesses nearby. Moving to another of their own berths achieves nothing in terms of removing it from their property; it just shuffles from one to t'other.

[Paul C]

 

One of the planks of the 'proportionality' argument is that CRT did not need to move the boat AT ALL. If they wished to move it off their property, they could have arranged to an alternate berth with other businesses nearby. Moving to another of their own berths achieves nothing in terms of removing it from their property; it just shuffles from one to t'other.

 

Have all the other places a berth could have been obtained, been contacted and said they'd happily take the boat? I suspect they all said "no chance" if/when approached, given the circumstances. Also, referring to the berthing agreement with CRT, if they "want" to move it rather than "need" to, they can, right? It just needs to be a (excuse the sloppy English) reasonable reason for doing so - did they hint at this in court?

[NigelMoore]

 

Have all the other places a berth could have been obtained, been contacted and said they'd happily take the boat? I suspect they all said "no chance" if/when approached, given the circumstances. Also, referring to the berthing agreement with CRT, if they "want" to move it rather than "need" to, they can, right? It just needs to be a (excuse the sloppy English) reasonable reason for doing so - did they hint at this in court?

 

According to Mr Roberts there are places that have expressed willingness to take the boat; I cannot say more than that nor vouch for its accuracy

 

According to the berthing agreement there doesn't have to be any "reasonable reason" for what they do at all - it is all at their "sole discretion". They can do whatever they like.

[Mike Todd]

 

They invited bids over £100k in the first instance though, thus rendering any bidders only interested in its scrap value, "out". I believe the owner is now trying to sell it independently, this may be his worst move yet since a potential buyer now has a choice of parties to approach to try and buy it - and may conduct a "Dutch auction" style approach.

 

He needs to seek proper legal advice before doing anything. I'd suggest the Christmas period is a good time to reflect upon it all and gather his thoughts, since it is unlikely any significant developments will occur over it.

Given that a number of people have signed a petition or otherwise locally declared their concern that the symbolic ship is not longer part of the waterside vista, perhaps the best hope is that they form a local 'museum' charitable trust and seek to run it on that basis. (Provided they can construct a viable business plan that is) I cannot imagine that Mr Roberts has any chance of resuming his former business as the first thing he would have to do in order to get a (new) business/trading licence from CaRT, let alone a berthing contract, would be to submit a viable business plan and the history of the past few years would suggest that this is one thing that has long been absent. Anyone setting up there now would have to invest considerably as all interested authorities would be hawk-eyed about compliance with every known regulation going - and and a few more besides no doubt! As I understand it from earlier in this thread there are several very similar ships on the market which suggests that there is not a great value to be had from them at the moment. The only think going for Mr Roberts would seem to be the uniqueness to its former location and a certain amount of local goodwill.

[mayalld]

 

According to Mr Roberts there are places that have expressed willingness to take the boat; I cannot say more than that nor vouch for its accuracy

If there were places willing to take the boat, it rather beggars belief that Mr Roberts failed to avail himself of that willingness himself.

[NigelMoore]

If there were places willing to take the boat, it rather beggars belief that Mr Roberts failed to avail himself of that willingness himself.

 

He has only asked around for alternatives since the removal. Agreed without question - he ought to have done that when first notified that he was to remove it.

 

An interesting point relating to that however, that he brought up in court, was that immediately following/in the same letter [can't remember] he was told that he could not by himself or his agents trespass on the dock and enter the ship in order to move it as demanded.

 

If that is so, it is all a bit twisted is it not? So even if he had made the effort to find alternative moorings, he would not have been allowed to move the boat there until after CaRT had removed it from their dock anyway.

Just as an aside and something I was trying to find out without success; what qualification would have been needed to speak for a litigant in this case?, presumably a solicitor rather than a barrister but j couldn't find out what specifically defined the right of advocacy.

 

Lucy Barry of Shoosmiths is, I believe, a solicitor/advocate. Any such, or barrister, having right of audience can fill the role. It is exceptional for a layman to be granted that right in acting as a MF, but the faint possibility exists. It would have to be specially applied for well beforehand though.

[Graham Davis]

I see that according to TD Mr Roberts has given Notice of Appeal.

[NigelMoore]

So some may see CRT seeking legal costs from the other party as vindictive and heavy handed and even as a means to prevent the other party taking action, but as this is public money they do have a duty to explain and justify why they did not recover those cost if they choose not to.

 

The successful party – in this case CaRT – is entitled to their costs. However an interesting measure of CaRT’s approach to proportionality – i.e. their over the top approach – was well illustrated by their argument before the court on costs in this case. Not content with applying for standard costs assessment, they persistently argued for the costs to be awarded on an “indemnity basis”. I did not know what that was, so did not follow the argument between CaRT and the judge on that score, but have just looked it up.

Basically, if indemnity costs are allowed, the sums claimed need not be “proportionate”.

 

According to the Law Gazette: “If costs are assessed on the indemnity basis, the court will give the benefit of any doubt as to whether the costs were reasonably incurred or whether the costs were reasonable in amount in favour of the receiving party. If costs are assessed on the standard basis, the court will give the benefit of any doubt as to whether the costs were reasonably incurred or were reasonable in amount in favour of the paying party.”

 

The judge refused to allow this.

 

Then CaRT went on to make good their previous threat to Tony that they would seek costs against him also, for assisting Mr Roberts. The judge likewise refused that demand. Quite frankly, in my view seeking punitive costs, and going for his assistant as well, definitely qualifies as "vindictive and heavy handed and even as a means to prevent the other party taking action".

[Arthur Marshall]

I see that according to TD Mr Roberts has given Notice of Appeal.

According to the judge, leave to appeal was denied.

[NigelMoore]

According to the judge, leave to appeal was denied.

 

For a start, no appeal has yet been lodged; CaRT have been informed only that that is one of 3 options Mr Roberts is considering.

 

Plus: the judge refusing permission to appeal is pretty standard. As he explained to Mr Roberts, that does not prevent him from applying for permission to the Appeal Court itself.

[MtB]

 

He has only asked around for alternatives since the removal. Agreed without question - he ought to have done that when first notified that he was to remove it.

 

 

 

I can't help but sense the shadow of the case of Pillings Lock falling across this case. I suspect it deeply influenced Mr Roberts in his decision-making. With Pillings CRT backed down repeatedly and failed to enforce the terms of their NAA.

 

I suspect Mr Roberts watched closely and concluded the way Mr Lilley played CRT illustrated the legal dept could be taken for fools who never follow through, and the same 'brinksmanship' tactics could be employed by himself to major advantage.

 

I suspect Mr Roberts believed CRT would never actually remove his ship from the dock, and would put up with being jerked around endlessly as Mr Lilley seemed able to do.

[Graham Davis]

 

For a start, no appeal has yet been lodged; CaRT have been informed only that that is one of 3 options Mr Roberts is considering.

 

Plus: the judge refusing permission to appeal is pretty standard. As he explained to Mr Roberts, that does not prevent him from applying for permission to the Appeal Court itself.

 

Then my apologies to TD, I misunderstood his comments.

 

However, I hope Mr Roberts understands just how expensive this all could be if he does proceed and then fails.

Edited December 21, 2016 by Graham Davis

[mayalld]

 

The successful party – in this case CaRT – is entitled to their costs. However an interesting measure of CaRT’s approach to proportionality – i.e. their over the top approach – was well illustrated by their argument before the court on costs in this case. Not content with applying for standard costs assessment, they persistently argued for the costs to be awarded on an “indemnity basis”. I did not know what that was, so did not follow the argument between CaRT and the judge on that score, but have just looked it up.

Basically, if indemnity costs are allowed, the sums claimed need not be “proportionate”.

 

According to the Law Gazette: “If costs are assessed on the indemnity basis, the court will give the benefit of any doubt as to whether the costs were reasonably incurred or whether the costs were reasonable in amount in favour of the receiving party. If costs are assessed on the standard basis, the court will give the benefit of any doubt as to whether the costs were reasonably incurred or were reasonable in amount in favour of the paying party.”

 

The judge refused to allow this.

 

Then CaRT went on to make good their previous threat to Tony that they would seek costs against him also, for assisting Mr Roberts. The judge likewise refused that demand. Quite frankly, in my view seeking punitive costs, and going for his assistant as well, definitely qualifies as "vindictive and heavy handed and even as a means to prevent the other party taking action".

 

This is an interesting area, and one upon which I have very mixed feelings.

 

I understand the reasons for it.CRT, like any company, is at risk of incurring large legal expenses in fighting cases where the other party isn't risking his or her funds in fighting the case, and as such may feel free to indulge in hopeless causes with little personal expense, but enormous expense to the other party (and I say that without actually offering an opinion as to the merit of this case).

 

Mr Roberts, assuming that he cannot afford proper representation, has very little to lose in fighting on. CRT must either roll over or incur expense in fighting the case.

 

It does seem right and proper that somebody who puts somebody else to enormous expense should pay for their trouble if the case goes against them.

 

The next step on that road is where the disputant is not able to fight his battle, but somebody who believes in his cause takes it up as his own cause. In this case, we know that Tony has a beef with CRT, and it is not entirely unreasonable to suggest that his involvement is at least in part an attempt to use Mr Roberts as a proxy in his own on-going dispute.

 

If Mr Roberts is impecunious, and his legal dispute is dragged out beyond his own funds and will to fight, then it is similarly right and proper that those who assist in that process should potentially be liable.

 

The Excalibur and Arkin cases are relevant here.

 

Basically, Arkin says that anybody who funds litigation for another can be liable for costs to the third party. So, if 1000 people put up a tenner each to pay a lawyer to take a case against CRT, and CRT wins, everybody who put up a tenner can be held liable for CRT costs. However, Arkin says that they are only liable for the same amount as they originally invested.

 

Excalibur says that if costs are on an indemnity basis, that cap is lifted.

 

So, in this case, Mr Roberts probably has no money. Tony could reasonably claim that his contribution has a small financial value, so CRT finds itself racking up costs fighting an opponent with almost no prospect of recovering those costs.

 

By asking for indemnity costs and costs order against Tony, they are looking for a route to actually get some costs back if the win.

[peterboat]

 

This is an interesting area, and one upon which I have very mixed feelings.

 

I understand the reasons for it.CRT, like any company, is at risk of incurring large legal expenses in fighting cases where the other party isn't risking his or her funds in fighting the case, and as such may feel free to indulge in hopeless causes with little personal expense, but enormous expense to the other party (and I say that without actually offering an opinion as to the merit of this case).

 

Mr Roberts, assuming that he cannot afford proper representation, has very little to lose in fighting on. CRT must either roll over or incur expense in fighting the case.

 

It does seem right and proper that somebody who puts somebody else to enormous expense should pay for their trouble if the case goes against them.

 

The next step on that road is where the disputant is not able to fight his battle, but somebody who believes in his cause takes it up as his own cause. In this case, we know that Tony has a beef with CRT, and it is not entirely unreasonable to suggest that his involvement is at least in part an attempt to use Mr Roberts as a proxy in his own on-going dispute.

 

If Mr Roberts is impecunious, and his legal dispute is dragged out beyond his own funds and will to fight, then it is similarly right and proper that those who assist in that process should potentially be liable.

 

The Excalibur and Arkin cases are relevant here.

 

Basically, Arkin says that anybody who funds litigation for another can be liable for costs to the third party. So, if 1000 people put up a tenner each to pay a lawyer to take a case against CRT, and CRT wins, everybody who put up a tenner can be held liable for CRT costs. However, Arkin says that they are only liable for the same amount as they originally invested.

 

Excalibur says that if costs are on an indemnity basis, that cap is lifted.

 

So, in this case, Mr Roberts probably has no money. Tony could reasonably claim that his contribution has a small financial value, so CRT finds itself racking up costs fighting an opponent with almost no prospect of recovering those costs.

 

By asking for indemnity costs and costs order against Tony, they are looking for a route to actually get some costs back if the win.

greenie well explained