Injunctive Relief

[tommytelford]

I didn't realise that we had so many armchair lawyers on this site

[NigelMoore]

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.

 

That would be an interesting point of fact to discover – it may be coming to be more and more the current situation, but I suspect that is a fairly recent development if so.

[Chewbacka]

 

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.

They do it that way because it is top level policy - As CRT says on their web page "Licence it or lose it" and later they stress "So, our title is not kidding"

https://canalrivertrust.org.uk/enjoy-the-waterways/boating/licensing-your-boat/licence-it-or-lose-it

[NigelMoore]

You are right, it IS policy from the top, and has been so from before CaRT started up even – that webpage was prepared in advance of the take-over.

 

Even in its recently amended form, now omitting the declaration of illegal usage of the power, it is remains a lie in that s.8 is NOT their main enforcement tool; it is the main – indeed sole – enforcement tool used.

[Richard10002]

 

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.

 

Nigel,

 

forgive me for being pedantic, but your original context setting statement suggested that the issue was that the boater refused to sign the T & Cs. This led me to believe that he was happy to pay for the licence, but that he wouldn't sign the T & Cs, for whatever reason - my assumption was that he didnt think they were fair, but he might just be the kind of person who has a difficulty with any kind of authority.

 

So, from your description, I didnt see this a case where CaRt were trying to get the licence fee paid, merely that they want the boater to formally agree to their T & Cs, in writing, with signature.

 

Your two most recent posts mention the costs of Section 8 being a bit of a sledgehammer to crack a nut, when a small claim would/should have the desired effect.

 

Are you now saying that, not only has the boater refused to sign the T & Cs, or has he also refused to pay the fee?

[NigelMoore]

You are forgiven. There has been a lot of cross-over opinions, on several related threads, which is contributing to some confusion.

 

This topic was intended to concentrate on what positive outcomes are to be seen, if any, from use of s.8 instead of prosecutions or small claims – by way of being distinct from any consideration of the ethics or potential HRA abuse in use of s.8, which belonged more to the HRA thread.

 

Probably I made a mistake in using ANY particular case as context. However, you were right to begin with – the boater I referred to refused to sign the T&C’s, being unhappy with claims from CaRT as to their mandatory nature. He was happy to pay.

 

CaRT in his case are not seeking payment [which they have refused]; they are seeking only to evict him from the waterways. This is but one example of the reasons for employing s.8, and recovery of licence fees can never legally be a part of that.

 

The implication of the injunctions for most, is that they place the boat/boater in a position vis-à-vis CaRT wherein CaRT hold all the cards at their sole discretion – but that is not legally possible.

 

I am attempting within this topic to address the reasons for deploying s.8 in preference to other avenues, so the costs issues are also relevant to that general topic, even though irrelevant to the example I began with. Is that clearer?

[Arthur Marshall]

I suspect that CRT think that while they could pursue a nonlicensed or noncompliant boater through the courts, they would probably have the expense of doing this year in and year out and that this would be a continuing drain on their resources and that is therefore simpler and cheaper in the long run just to get rid of the boater. They would also bear in mind that the boater may well not have the money to pay any fines, or indeed the licence, and may have no intention of acting in accordance with any agreement made. Again, it is just simpler to get rid.

[Chewbacka]

I suspect that CRT think that while they could pursue a nonlicensed or noncompliant boater through the courts, they would probably have the expense of doing this year in and year out and that this would be a continuing drain on their resources and that is therefore simpler and cheaper in the long run just to get rid of the boater. They would also bear in mind that the boater may well not have the money to pay any fines, or indeed the licence, and may have no intention of acting in accordance with any agreement made. Again, it is just simpler to get rid.

and it sends a clear message to the rest of us.............

[Arthur Marshall]

and it sends a clear message to the rest of us.............

I do doubt that's very important. The majority of boaters seem to cruise without problems (in fact, I suspect a fair proportion of boat owners hardly ever leave their marinas). If the bulk of CRT's agggravation is caused by a small number, they may well feel the money well spent now in getting rid of them so they can concentrate ever scarcer resources in future on those who cause them no grief.

Note - I am not arguing the moral or legal rightness of this, just trying to act Devil's advocate to Nigel...

[dmr]

Lifting a boat out generates publicity, though not often good. I suspect many boaters here on the K&A have a fair idea of how many boats have been lifted out in the last year, but not a clue about who CaRT might be chasing in the small claims court. If CaRT want a deterrent (or incentive depending upon your philosophy) then lifting boats out probably looks like a good idea.

 

..............Dave

[Richard10002]

OK... if he has offered to pay, and CaRT have declined because he wont sign their terms, a court, with actions appropriate for making people pay, would probably be asked why CaRT were there, and suggest they just take his money - so the small claims court, or money claim online, can be discounted.

 

As far as I know, a magistrates court is a criminal court, (and also hears some civil matters, mainly family), so not really open for CaRT to bring proceedings here - you may know different?

 

I dont really know what you are looking for CaRT to do.... I guess they could bring an action in a court of some kind, (County Court? High Court?), which, if won, orders the boater to sign the T & Cs. However, given that he is currently in a process where his boat could be removed from the waterways, and which he could stop, or could have stopped, by signing and offering the money again, and he hasnt.... how likely is it that he would have signed up merely on the basis of an order of the court? I dont know what the outcome of the failure to follow a court order like this, but it would probably result in further court hearing/s, paid for by CaRT, but nothing that could physically hold the boaters hand and force him to sign, (unless you know different?)

 

Presumably CaRT have been communicating with this boater for a while, in an attempt to encourage him to sign the T & Cs, so that they can relieve him of his money, and give him a licence. At the end of this process, CaRTs judgement may have been that the above would be the likely outcome, thus a complete waste of time and money, which could easily mount up to as much as, or more than, the cost of a Sec. 8. They may also have decided that this is a boater who, given his intransigence to date, will likely be an expensive troublemaker in the future.

 

As a boater, I think the deal is that if we want to boat on CaRTs waterways, we pay our fee, sign to agree to CaRTs T & Cs, and boat accordingly - it's not rocket science, and seems to apply and work well for most boaters, and in many other areas of life.

 

In a similar way, there are also lots of people, (albeit a minority), who dont believe that the law, and terms and conditions, and rules and regulations, and even the common niceties of life, apply to them.

 

Thus, in this case, albeit with limited information, I think CaRT are probably using the correct tool, of those at their disposal. I suspect that there will be others here who think the same, and some who think it's over the top.

[NigelMoore]

As far as I know, a magistrates court is a criminal court,(and also hears some civil matters, mainly family), so not really open for CaRT to bring proceedings here - you may know different?

 

I do know different, yes. Failure to possess a current boat licence on the canals is a breach of the byelaws thus a criminal offence that CaRT can prosecute in the Magistrates Court, exactly as the EA does with those who fail to register their boats.

 

Arthur & Co are right: CaRT go the alternative route because it is such a dramatic demonstration of their power, that is calculated to scare others into submission.

 

Once upon a time they would bring County Court actions on a point of interpretation in order that their “guidance” achieve a degree of official approval. The Davies case, though they won it, rather frightened them off any repetition, because the judge there criticised core elements of the guidance principles, which had to be changed as a result.

 

For them, it is better to rely on the dissemination of their guidance as self-proclaimed authoritative law, knowing that the vast majority of their customers will nod enthusiastically in agreement. It is not worth risking further judicial criticism.

 

Hence, none of the ensuing court cases have ever sought refinement of guidance details or statutory interpretation; they are Part 8 cases wherein the court is asked only to confirm the validity of using s.8 in cases where the HRA is arguably engaged, with the undisputed facts being that the boat has no licence; needs one, and is subject to removal.

 

Anybody wishing to argue the toss with them in a court, needs to bring their own action ideally; at the very least - if CaRT have got in first - file a counter claim.

[Bod]

Basically if C&RT refuse to licence a boat,( which has insurance, BSS, and funds,) for what ever reason, then a Court injunction has to be sort, quickly, before C&RT muddies the waters with Section 8 removal.

C&RT have statutory requirements, and remedies. It's up to us to insure they are followed.

 

Bod

[NigelMoore]

Basically if C&RT refuse to licence a boat,( which has insurance, BSS, and funds,) for what ever reason, then a Court injunction has to be sort, quickly, before C&RT muddies the waters with Section 8 removal.

C&RT have statutory requirements, and remedies. It's up to us to insure they are followed.

 

It is sadly true that the individual has to be thoroughly acquainted with the facts of the legislation and with how to go about enforcing the meeting of CaRT’s obligations, should they wish to make an issue of it.

 

That might involve an injunction application upon receiving a s.8 Notice, in the course of a following claim for declaratory relief asserting the obligations to issue the licence.

 

I invariably suggest that long hard thought is given to the inevitability that CaRT will fight tooth and nail and drag it out as expensively as possible – not to discourage action, necessarily, but to ensure that the ramifications are fully thought through and balanced against the end result desired.

 

Invariably also, I point to the obvious that most boaters will resent such action rather than support it. Then too, someone has sneered at “armchair lawyers” on this thread – but there is the reality that there is a qualitative difference between pure theoretical research, and the practical court experience of facing up to QC’s and judges in the real life arena.

 

If the only point is to make a point, then there is minimal value to proceeding down that path. Best to leave court action for when you are genuinely backed into a corner.

[NigelMoore]

Note - I am not arguing the moral or legal rightness of this, just trying to act Devil's advocate to Nigel...

 

That is what I look for.

[Richard10002]

 

I do know different, yes. Failure to possess a current boat licence on the canals is a breach of the byelaws thus a criminal offence that CaRT can prosecute in the Magistrates Court, exactly as the EA does with those who fail to register their boats.

 

 

 

OK... If CaRT go down the criminal route in the Magistrates Court, the boater gets fined a thousand quid or so, which he may, or may not, pay. As far as I can tell, this doesn't force him to sign the T & Cs, although it might encourage him. However, given that he seems to have been quite resolute in his intentions to date, one might guess that he would still fail to sign, and allow the furore of rules, regulations, and the law, to pursue him to an inevitable end - presumably at additional cost to CaRT at each step?

 

Again, I would suggest that, in this instant, CaRT may have considered the options, and decided that Sec 8 is the most sensible way to deal with this boater, both to resolve the issue with him in what could be the most cost effective way, and to discourage others from not signing the T & Cs.

 

For the boater to let things get this far, (even to the point prior to CaRT being in a position to need to make a choice of which particular legal route to follow), is ridiculous. As you have already said, (I think), the guy is on a loser whichever route is followed, and should have just signed on the dotted line in the first place.

[Arthur Marshall]

There's two things going on in this thread, which is muddying the water a bit. One is the academic qquestion originally raised and one is about the actual case mentioned which is really a side issue as we don't know what it is. But the interesting question is the academic one, and maybe we should concentrate on that as Nigel has suggested and leave the other for another thread.

Edited January 2, 2017 by Arthur Marshall

[Phil.]

I would think the main reason CRT are avoiding the criminal route in the magistrates court is because the issue of using a boat without a license may focus on why the boat owner does not have one. If CRT have refused to issue one, or withdrawn one, and have acted outside their powers in doing so, then the criminal case will fail. Whereas the civil route, does not seem to concern itself with the reasoning why a license is not held. For these reasons CRT would likely win most civil actions, unless their action is spiked by an injunction seeking a review, but lose most, if not all criminal cases.

[NigelMoore]

I had not thought of that angle - it does make for a good explanation. I wonder if it is the case that they have thought that through?

[Graham Davis]

I would think the main reason CRT are avoiding the criminal route in the magistrates court is because the issue of using a boat without a license may focus on why the boat owner does not have one. If CRT have refused to issue one, or withdrawn one, and have acted outside their powers in doing so, then the criminal case will fail. Whereas the civil route, does not seem to concern itself with the reasoning why a license is not held. For these reasons CRT would likely win most civil actions, unless their action is spiked by an injunction seeking a review, but lose most, if not all criminal cases.

 

Only if the Magistrates are made aware of it.

If the accused does not attend Court then there would be no one to do that.

Result = accused found guilty

[Thorfast]

My licence needs renewing at the end of the month so after reading this thread I thought I would look at the licence application form.

When you sign the application form you accept the terms and conditions ( there is no tick box to accept or refuse)

If this person has not signed the form because he does not agree with the terms and conditions then he has not made an application therefore he has not licenced his boat. Perhaps it is not CART that have refused his licence but he who has refused to licence his boat.

Surely in these conditions CART are following the proper course of action.

Have I got this wrong? Is it as simple as this?

[NigelMoore]

 

Only if the Magistrates are made aware of it.

If the accused does not attend Court then there would be no one to do that.

Result = accused found guilty

 

That applies equally to any form of court action of course.

 

Of the 38 successful Part 8 civil cases listed by CaRT on their website, 27 followed hearings not attended by the Defendants.

 

Out of 10 attended by boaters representing themselves, only Geoff Mayers achieved a 21 day stay on execution to allow for obtaining a licence, with no order for costs and a prior such Order classified unenforceable. The similar result for Andy Wingfield at his first trial, is unaccountably left off from the list, and even the latter more successful hearing has been overlooked.

 

The only listed Order that reveals the use of Counsel representing a boater, resulted in settling of the matter by way of consent, giving 3 months to either leave or get a licence. It was probably the participation of the Defendant’s barrister that led to the clarification in parenthesis that CaRT’s “prior written consent” was to be understood as a valid boat licence. No costs to be enforced without means testing.

 

Every one of these actions proceeded on the Part 8 procedure with supposedly agreed facts accompanying the standardised Shoosmiths presentation, and everyone of them proceeded on the facts alone at time of Claim - i.e.that the boat was not licensed when it should have been; reasons for that being immaterial.

[NigelMoore]

Have I got this wrong? Is it as simple as this?

 

I will give the details only after the hearing takes place [if it does]. And i will do it under a new topic heading specific to the point of the role of T&C's.

[Graham Davis]

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

[NigelMoore]

Naturally I cannot speak for him Graham, but the point was well made that [supposing the Defendant did attend of course] in such proceedings the Defendant would have to be given the chance to present a defence to an articulated claim as to why an offence had been committed, whereas the Part 8 procedure in civil cases usually avoids that necessity; it is far more at the discretion of the judge in the County Courts.