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Canal and River Trust Sign


Laurie Booth

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2 minutes ago, Alan de Enfield said:

When renewing my licence by telephone, as we got to the 'end' I was asked if I agreed to accept all of the T&Cs.

I responded by asking if the call was being recorded and was told 'yes it is', I then asked the question 'should I not accept the T&C's, what happens ?' to be told that 'C&RT would refuse to issue my licence, and I would be on C&Rs waters unlicensed, did I wish to be connected to someone in the legal team to have it explained to me'.

Knowing that whatever was said the T&Cs are unenforceable I 'agreed' to them - I wonder how long the tapes are stored ?

 

What tapes?

Do you not think digital recording was used and the recordings willl persist for as long as we have electricity?

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12 minutes ago, Horace42 said:

It seems I can refuse to accept the T&C's - therefore fail to get a licence and take my boat out without one. If I get picked up and taken to court by CRT I will be found guilty of using an unlicensed boat - and easy to prove an offence because the facts speak for themselves. No room for clever arguments about the reasons for improper refusal to issue a license. You haven't got one - that's it!

Alternatively I agree to accept the T&C's, use my boat, but ignore the imposition of rules that should not be there, and leave CRT to make an issue of it. That's what I would do.

In my business life I came across hundreds of contracts that contained clauses that in reality could not be enforced by the courts if they were in conflict with the law on those points. If they can't be enforced you just enter the contract and ignore them when the time comes.

As is likely to be the case with CRT - if you feel strongly about the issue,

 

If your licence is cancelled because CaRT consider it a contract, you wont have the option of just ignoring it, you will have to fund litigation to get it back, which will involve proving the correct interpretation of the 1962 transport act sect 43, in the time that takes you will have to stay off CaRT waterways, and most marinas connected to them,  its got to be better that the risk of having your licence contract cancelled is not there in the first place, and the statutory right to a due process for revocation of a licence that protect you are the only option for CaRT. Keeping on agreeing without protest to the T&C's is only giving CaRT the go ahead to continue down this route.

In one case it took 106 days to get a licence back after it was " cancelled for administrative purposes". That was without even going to court. The ombudsman found no fault with that. 

 

 

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1 hour ago, Horace42 said:

It seems I can refuse to accept the T&C's - therefore fail to get a licence and take my boat out without one. If I get picked up and taken to court by CRT I will be found guilty of using an unlicensed boat - and easy to prove an offence because the facts speak for themselves. No room for clever arguments about the reasons for improper refusal to issue a license. You haven't got one - that's it!

Alternatively I agree to accept the T&C's, use my boat, but ignore the imposition of rules that should not be there, and leave CRT to make an issue of it. That's what I would do.

In my business life I came across hundreds of contracts that contained clauses that in reality could not be enforced by the courts if they were in conflict with the law on those points. If they can't be enforced you just enter the contract and ignore them when the time comes.

As is likely to be the case with CRT - if you feel strongly about the issue,

 

That is certainly my approach. Nobody in CaRT could be in any doubt as to my views on the subject, and I always ticked whatever box was considered mandatory in order to get what I wanted.

In situations like this where a party illegally demands agreement to a supposed contract, the agreement is void and unenforceable whether it was ostensibly a contract or not.

Even CaRT’s legal department would hesitate, I imagine, bringing a case for breach of contract against a licensed boat.

When they revoke or refuse a licence solely on the basis of refusal to agree to the T&C’s is when things can be put in motion. It is unfortunate that the last time they hauled a boater into court in s.8 proceedings on that basis, the boater was determined on a course of action that overlooked any of the required procedures, and set aside all advice on the most pragmatic way to proceed.

Mr Pierret had much of interest to say, albeit often in archaic and obscure terminology, sometimes redolent of European legal language rather than British.

As pertinent though, he validly claimed that while CaRT confirmed on numerous occasions that his Application conformed to the s.17 requirements, they refused the licence for want of agreement to the T&C’s, a demand he correctly identified as unlawful.

Not having even filed a Defence [though he sent in an “affidavit” which the judge never got to see], he didn’t stand a chance, even though he had some time to present his arguments to the court.

According to an eye-witness at the hearing: “The judge said that the boater should have signed the T&Cs under duress, and then make a complaint. Then in 3 months take it to a JR.

Good judicial advice, supposing one wanted to make an issue out of it from the start.

56 minutes ago, Muddy Ditch Rich said:

 Keeping on agreeing without protest to the T&C's is only giving CaRT the go ahead to continue down this route.

A valid point.

I took the opportunity to address this issue within the Ravenscroft proceedings, but it could only be done in response to one of the stated reasons for their action that CaRT presented in pleadings, and I doubt it will have any bearing on next month's decision.

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The only reason to make efforts to convince boaters that the licence is a civil contract is so that CaRT, a public body in respect of licencing, can acheive things that it is not lawfully permitted to do, things that have not been considered under any due process to be fair and justified for the management of public property.

 

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1 hour ago, Muddy Ditch Rich said:

The only reason to make efforts to convince boaters that the licence is a civil contract is so that CaRT, a public body in respect of licencing, can acheive things that it is not lawfully permitted to do, things that have not been considered under any due process to be fair and justified for the management of public property.

 

 

The thing is though, most boaters are perfectly happy with the T&Cs they are instructed to accept, seeing the sense in all boaters being bound by them. 

It's only the rump of boaters known as the Awkward Squad who will always want to make an issue out of the T&Cs whatever they might say, and I suspect they don't have the support of the majority of boaters on CRT waters. 

I certainly don't find the T&Cs restricting me in any way I find objectionable.

 

 

Edit to add a worm.

Edited by Mike the Boilerman
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3 hours ago, Mike the Boilerman said:

I certainly don't find the T&Cs restricting me in any way I find objectionable.

That will be true for most. Personally, though, I take great exception to the demand that I exempt them from the statutory restrictions on boarding boats for their convenience, and to the demand that I agree to fund their costs of removing a boat if it is considered in their way despite court findings that the statutes do not permit that.

edit to add: I have taken them to court for boarding my boats without notice, contrary to statute, and would do so again in a heartbeat - regardless of any alleged agreement to their doing so.

additional edit - I do not regard myself as belonging to any "awkward squad" either, though all too aware that is how it is sometimes seen.

Edited by NigelMoore
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1 hour ago, Muddy Ditch Rich said:

Can you really argue that being compelled to agree to an unlawfull contract, while being lied to by the other party is not objectionable ?

 

If it were to happen, probably yes. 

IS it actually possible to enforce an "illegal contract" in a court of law? I suspect not.

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12 minutes ago, Mike the Boilerman said:

IS it actually possible to enforce an "illegal contract" in a court of law? I suspect not.

You are correct MtB, it is absolutely NOT possible to enforce an illegal contract. However, in situations such as described, any legal issue CaRT would pursue, as noted by others, would be the simple failure to have a licence - withdrawn or refused because the "contract" was not agreed to or complied with. That is what happened to Mr Pierret.

As with all s.8 cases brought by CaRT, if you believe you have a case, you must first object to having it dealt with under Part 8 procedures, and ideally then file a counter-claim. I have little faith in Judicial Reviews, albeit that exists as an option as the Pierret judge observed.

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If you were or intended to be a liveaboard boater I wonder if it could argued that agreement to the terms and conditions of the license was made under duress since disagreement would result in denial of said license.

 

Edited by BGA
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20 minutes ago, BGA said:

If you were or intended to be a liveaboard boater I wonder if it could argued that agreement to the terms and conditions of the license was made under duress since disagreement would result in denial of said license.

 

That applies whether or not you were a live-aboard or recreational user. Did you mean to suggest that the HRA might be engaged more in live-aboard cases?

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1 hour ago, Muddy Ditch Rich said:

I would imagine trying to explain to the court why you agreed to the contract without protest in the first place wont help your case. It would be embarrassing at least to have to put forward a defence in which you agreed to sign away your own statutory rights.

There are many situations where one is given no choice in agreement to a supposed 'contract' - as in buying a bus or rail ticket for example, the very act of which [according to the fine print] allegedly binds you to agreed terms. In law, however, such alleged agreement, being involuntary, is of no effect. In CaRT's case, you have merely done what you have had to do in order to obtain what you have no option but to obtain, and the fact that CaRT allege this binds you to a unilaterally drafted 'contract' is utterly ineffectual. It is not, in my opinion - as discussed elsewhere - possible to sign away statutory rights.

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11 hours ago, NigelMoore said:

There are many situations where one is given no choice in agreement to a supposed 'contract' - as in buying a bus or rail ticket for example, the very act of which [according to the fine print] allegedly binds you to agreed terms. In law, however, such alleged agreement, being involuntary, is of no effect. In CaRT's case, you have merely done what you have had to do in order to obtain what you have no option but to obtain, and the fact that CaRT allege this binds you to a unilaterally drafted 'contract' is utterly ineffectual. It is not, in my opinion - as discussed elsewhere - possible to sign away statutory rights.

I agree Its not possible to actually sign away statutory rights, but enforcing them is a different matter, and could take months, even years, my point is that it is better that the licence as a contract claim is put a stop to before someone finds out their licence has been "cancelled". 

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All this talk of court action is bad news always even if the court finds in favour of CRT its money wasted that should go to the infrastructure, the National Trust doesn't find itself going to court as often as CRT and their portfolio must be similar in size.

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8 hours ago, BGA said:

All this talk of court action is bad news always even if the court finds in favour of CRT its money wasted that should go to the infrastructure, the National Trust doesn't find itself going to court as often as CRT and their portfolio must be similar in size.

Interesting you would think that.

In a survey by AINA a few years ago the following were the results :

KM of water way under their control :

BW 3000+

Nat Trust 32

 

Number of boats registered on their waters :

BW 30,000

Nat Trust 1217

 

Number of moorings provided by the authority :

BW 4342

Nat Trust325

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9 hours ago, BGA said:

All this talk of court action is bad news always even if the court finds in favour of CRT its money wasted that should go to the infrastructure, the National Trust doesn't find itself going to court as often as CRT and their portfolio must be similar in size.

But the National Trust doesn't have people trying to live in its properties (as far as I know). :D

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13 hours ago, BGA said:

All this talk of court action is bad news always even if the court finds in favour of CRT its money wasted that should go to the infrastructure, the National Trust doesn't find itself going to court as often as CRT and their portfolio must be similar in size.

As far as I know the NT doesn't have a certain proportion of the public scrutinising its every move and jumping up and down screaming "they can't do that"!   They just seem to accept it is an organisation doing its best to look after what is under its control.

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1 hour ago, Jerra said:

.. . . . . . . . . .    They just seem to accept it is an organisation doing its best to look after what is under its control.

Unlike what is at last gradually beginning to dawn on the boating public, . . . . that the powers that be within the C&RT are hell bent on changing our waterways out of all recognition and ignoring the obligations placed upon it under the Articles of Association - ie., top of the list of "Objects and Powers"

                                          1) to preserve, protect, operate and manage Inland Waterways for public benefit:

                                              2.1.1 for navigation;

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On 6/28/2017 at 22:12, NigelMoore said:

That will be true for most. Personally, though, I take great exception to the demand that I exempt them from the statutory restrictions on boarding boats for their convenience, and to the demand that I agree to fund their costs of removing a boat if it is considered in their way despite court findings that the statutes do not permit that.

edit to add: I have taken them to court for boarding my boats without notice, contrary to statute, and would do so again in a heartbeat - regardless of any alleged agreement to their doing so.

additional edit - I do not regard myself as belonging to any "awkward squad" either, though all too aware that is how it is sometimes seen.

There is a world of difference between those who are 'awkward' because they really want something that is outside the scope of what is permitted and, on the other hand, those who use every part of the law, albeit in ways not hitherto considered, in order to achieve what they want legally. I would not normally consider the term 'awkward squad' as applied to the latter although I suspect that if I was in CaRT's position I might be tempted when faced with the latter! In any event, I have sympathy with one and not the other, even if sometimes some people have reason to see CaRT's action and interpretation as being redolent of the non-'awkward squad'!

In some ways this is inevitable in a context where the legal framework is really no longer fit for today's purposes.

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On 02/07/2017 at 09:52, cuthound said:

But the National Trust doesn't have people trying to live in its properties (as far as I know). :D

They have arounf 2000 tenants on their land and in their properties. 

They have their fair share of court cases, unhappy tenants, and bad news stories. Only April this year they were in the media for removing the word "easter" from an easter egg hunt event in case they offended anyone. 

Edited by Muddy Ditch Rich
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32 minutes ago, Muddy Ditch Rich said:

 

They have arounf 2000 tenants on their land and in their properties. 

They have their fair share of court cases, unhappy tenants, and bad news stories. Only April this year they were in the media for removing the word "easter" from an easter egg hunt event in case they offended anyone. 

A bit like CRT they can't "do right for doing wrong" (assuming you understand the saying it may be a local one).

One thing NT has going for it is it has members which have a little control through the AGM, unlike CRT.

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53 minutes ago, Muddy Ditch Rich said:

 

They have arounf 2000 tenants on their land and in their properties. 

They have their fair share of court cases, unhappy tenants, and bad news stories. Only April this year they were in the media for removing the word "easter" from an easter egg hunt event in case they offended anyone. 

The easter egg thing was largely nonsense

https://www.google.co.uk/amp/s/amp.theguardian.com/lifeandstyle/2017/apr/04/cadburys-and-national-trust-imply-easter-egg-row-is-exaggerated

More a sponsor wanting a bigger billing rather than a removal of the word easter

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On 26/06/2017 at 01:55, NigelMoore said:

Mind you, the primary reason given to Leigh's Judge by Mr Stoner for CaRT's failure to enforce byelaws, is that as a benign Charity, they want to avoid criminalising their clients. There's nice now.

The same tactics used against people who wouldn't or couldn't pay the poll tax - why send them to prison and create martyrs, when you can ruin them financially, and for a lesser burden of proof.

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11 hours ago, Chertsey said:

The same tactics used against people who wouldn't or couldn't pay the poll tax - why send them to prison and create martyrs, when you can ruin them financially, and for a lesser burden of proof.

CaRT can't afford to enforce the current byelaws.

Given that, some time in the past there must have been a decision taken regarding how to deal with boaters doing the kind of thing the byelaws are intended to manage.  IMO the interesting questions are:

  1. What options did they have?
  2. From a Game Theory perspective, which of those was the most effective overall, given their objectives?

The real mistake must pre-date CaRT. 

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