|
Post by NigelMoore on Jan 6, 2017 20:29:13 GMT
He is the wrong person to pursue this. Certainly at this stage. I would not wish to see an important issue like this placed in the hands of someone so ill-prepared, so lacking in understanding of the essential issues, and so resistant to advice.
There simply is not the time available for him to be properly prepared within the relevant time limits. Then too, the advice I gave to you applies to him in spades, and yet I doubt his views will be modified by today's experience. I could be wrong, but it would not be right to encourage him to fight at this stage. It is not the end of the world and he had the chance to listen and act differently after all. If he is keen enough, there will always be another opportunity, if he wished for some masochistic reason [or for pride] to make an issue out of this at a later stage in his boating career.
|
|
|
Post by TonyDunkley on Jan 6, 2017 20:31:44 GMT
News just in over today's case in London. It went exactly as expected - judge said he should have signed the T&C's under duress, and then brought a Judicial Review. Having filed no Defence, there was nothing to appeal from a decision that, having no licence he must leave the waterways within 14 days, and pay the costs in the action. Allegedly, the judge had not even seen or read the boater's "affidavit" - which if true was probably as well. He doesnt have to go anywhere, he just has to put a licence application in , I would have given it to CRT in the court room to really make them look stupid. They have just gone to court and only acheived to get the cost of their own action awarded to them. They might as well sue themselves for the cost of suing themselves. I really do hope he can be persuaded to do this, . . . a fresh Licence application agreeing [under duress] to the T&C's will put C&RT in a quandary from which they can only emerge either by unlawfully refusing the 'prior written consent' which will be specified in the Order, or by issuing a Licence and making the legal action against this boater look even more vindictive, wasteful and stupid than it already does.
|
|
|
Post by NigelMoore on Jan 6, 2017 20:45:50 GMT
I hope he i s notso persuaded Tony. He is not the right person to pursue this and has neither the background nor education nor understanding nor amenability to assistance to deal with this properly - nor, supposing he had the right qualities, does he have time to acquire the necessary.
There are thousands of opportunities for an appropriate someone to properly prepare very far in advance of provoking the necessary response in order to get judicial determination on this this point. From the sound of it, jenlyn is gearing up to the job.
|
|
|
Post by tadworth on Jan 6, 2017 21:02:57 GMT
He doesnt have to go anywhere, he just has to put a licence application in , I would have given it to CRT in the court room to really make them look stupid. They have just gone to court and only acheived to get the cost of their own action awarded to them. They might as well sue themselves for the cost of suing themselves. I really do hope he can be persuaded to do this, . . . a fresh Licence application agreeing [under duress] to the T&C's will put C&RT in a quandary from which they can only emerge either by unlawfully refusing the 'prior written consent' which will be specified in the Order, or by issuing a Licence and making the legal action against this boater look even more vindictive, wasteful and stupid than it already does. They may repeat what they tried with me, he will get the licence but then it wil be "cancelled", then "revoked" then "witheld" under spurious issues, passed around different EO's so that everyone can claim no responsibility, it took 126 days to actually get the damn licence off them in my case.
|
|
|
Post by TonyDunkley on Jan 6, 2017 21:18:31 GMT
I hope he i s notso persuaded Tony. He is not the right person to pursue this and has neither the background nor education nor understanding nor amenability to assistance to deal with this properly - nor, supposing he had the right qualities, does he have time to acquire the necessary. There are thousands of opportunities for an appropriate someone to properly prepare very far in advance of provoking the necessary response in order to get judicial determination on this this point. From the sound of it, jenlyn is gearing up to the job. I understand what you're saying Nigel, but surely there is an opportunity here to put C&RT on the spot without any judicial involvement at all, . . . they've set themselves up to be shot at and as it needs nothing more than a fresh Licence application to do so, it seems a terrible shame not to oblige them.
|
|
|
Post by NigelMoore on Jan 6, 2017 22:34:05 GMT
I understand what you're saying Nigel, but surely there is an opportunity here to put C&RT on the spot without any judicial involvement at all, . . . they've set themselves up to be shot at and as it needs nothing more than a fresh Licence application to do so, it seems a terrible shame not to oblige them. They have already put themselves on the spot with the witness statement, although the skeleton argument does nothing but trot out the standardised boiler-plate spiel that has no connection with any reasons for the lack of licence. Anybody can do what you want at any time; CaRT will absolutely oblige them, so it is not that a one-off opportunity has been passed over. I just believe that we can mock what we have, and ensure that BEFORE anybody else tries this on, they will have all the resources needed before even starting in on them.
|
|
|
Post by NigelMoore on Jan 6, 2017 23:06:59 GMT
From the Witness Statement of Anthony Smith: -
11. On 7 March 2016 the Defendant emailed the Trust’s Customer Services team to obtain a customer ID in order to licence the Boat. On the following day this was provided to him by email. On 23 March 2016 the Defendant sent a further email to Customer Services whereby he referred to his email of 29 February 2016 (at paragraph 9 above). The Defendant confirmed that he had obtained a BSC for the Boat and was now in compliance with section 17 of the British Waterways Act 1995 (“s17”). On the 24 March 2016 Customer Services responded to the Defendant’s email confirming that they had updated the Trust’s records, and that in order to issue a licence the Trust needed confirmation that the Defendant accepted the terms and conditions of a Trust boat licence (“the T&Cs”) and details of his insurance policy details. The Defendant responded providing his insurance policy details. The Defendant requested the T&Cs and the law relating to them. On 29 January 2016 Customer Services provided the Defendant with the T&Cs and confirmed that the Defendant was required to confirm acceptance of these, after which he could proceed to licence the Boat. A copy of this email correspondence is exhibited in reverse order at pages 20 to 22 of Exhibit “AS1”. A copy of the T&Cs is at pages 71 to 93 of Exhibit “AS1”.
12. On 31 March 2016 the Defendant emailed Customer Services thanking them for the T&Cs. He stated that he did not understand the law regarding the contract and in particular s43(3) [of the Transport Act 1962] relating to services and facilities offered by the Trust. The Defendant stated that he had complied with the s.17 criteria but is now being asked to comply with further conditions. The Defendant requested the point of law and fact regarding the T&Cs as to obtain a licence for the Boat. The Defendant also requested a list of all the services and facilities offered by the Trust. A copy of this email is exhibited at page 24 of Exhibit “AS1”.
13. On 5 April 2015 [sic] I sent an email to the Defendant. The email confirmed that I was the enforcement officer for the area in which the boat was moored. The email highlighted that acceptance of the T&Cs was mandatory to licensing the Boat and that if the Defendant was not happy with anything in the T&Cs and chose not to accept them then the Boat would remain unlicensed and enforcement action would continue. A copy of this email is exhibited at page 25 of Exhibit “AS1”.
The history then begins to get interesting . . .
|
|
|
Post by NigelMoore on Jan 8, 2017 21:33:01 GMT
Well, it's better than the other effort, but it's still a bit of C&RT dreamed up nonsense rather than something carrying any weight in law. S.3(1) of the 1971 BW Act excludes any self-propelled vessel capable of being steered and controlled from being a 'houseboat', . . . something which C&RT find convenient to ignore when selecting boats to be evicted from their waters. I cant see that on my copy. It only says its not any craft used for bona fide navigation ? Of crucial importance to anyone who does not live aboard permanently, is the Parliamentary Undertaking given by BW in 1993, when desirous of increasing clauses relating to s.13: - So even if the boat is left for indefinite periods of time unused, it must, unless already defined as a houseboat and certificated as such, be treated as the pleasure boat it is, and subject at most to s.8 rather than s.13. Most important of all, is that the houseboat definition cannot be used as the cover-all classification to avoid the geographic limitations to the river registration requirements, just because it is not being navigated at the time.
|
|
|
Post by NigelMoore on Jan 17, 2017 14:11:29 GMT
Duplicating for TB benefit my most recent post on CWDF: -
The most absurd aspect is the inconsistency CaRT display when dealing with the conditioning issue. Boaters clamour for clarity and definitive guidelines to be incorporated into the T&C’s, and CaRT reply [accurately] that they cannot do so because of the limitations of the 1995 Act – and at the same time, assert their right to unilaterally impose conditions outwith that Act.
If they CAN impose whatever T&C’s they see fit, notwithstanding the 1995 Act, then they can – and the excuse falls away; if they CANNOT impose whatever T&C’s they see fit, because of the limitations imposed by the 1995 Act, then they cannot – and that applies across the board respecting the T&C’s.
Again, repeating myself, there is a difference between pre-conditions for issue of the licence and conditions of use of the licensed boat; breach of valid byelaw conditions of use does not entitle revocation of the licence but punishment under the applicable law [which they have never pursued].
They are certainly empowered to impose further conditions on use of the waterways by licensed boats; they need only ask for Parliament’s blessing on new byelaws to that effect.
So far as the specific question of imposing conditions on the issue of licences, people conveniently forget that the whole rationale of asking Parliament to approve setting of conditions for issuing licences was because ( a ) No such conditions could be imposed on the issue of pleasure boat certificates on PRN’s, and ( b ) the extent of powers under s.43 to do so elsewhere, were disputable.
So this far down the line, CaRT assert the indisputable right to condition ALL relevant consents whether on all inland waterways or rivers only, on the basis of s.43 – in direct contradiction of the legal argument presented to Parliament for s.17 of the 1995 Act.
Even if, for the sake of argument, it was accepted that s.43 could have empowered them to set whatever T&C’s they saw fit as a mandatory condition for possession of a licence or certificate, then that was annulled under the terms of the 1995 Act, which mandated that they may not refuse or revoke such consents for so long as the relevant 3 Statutory conditions are met.
Another point that people tend to miss altogether when referring to the need to “satisfy the Board”, is that when the Board attempt to set down requirements for their satisfaction based upon their own extended interpretation of the statutory condition, the legal rule that must be applied by judges respecting any disputed interpretation of ambiguous clauses in private legislation [that could be legitimately interpreted in different ways], is that they MUST uphold that interpretation that benefits the public against the Act’s promoter. That puts a slightly different complexion on any dispute [not that the courts have displayed adherence to this rule in recent years].
The reality is that it is all a storm in a teacup so far as the majority of cases are concerned; the perceived need for micro-managing movement patterns is an imposition on CaRT’s resources to no benefit either to them or their customers; it is only the specific instances of boater abuse of facilities to the detriment of other boaters that must be addressed – and it was those situations only that the “CC” clause was designed to protect against.
|
|
|
Post by NigelMoore on Jan 17, 2017 14:33:37 GMT
Duplicating another posting, itself from some time ago, it is important to see and read s.43 of the 1962 Act in its historical perspective. Doing so one can understand why it is wrong to read it as conferring new powers to charge and condition services and facilities: -
NO new powers to charge [ i.e. powers to charge for things not previously allowed] were conferred by s.43 of the 1962 Transport Act. The canal companies were ALWAYS entitled to charge for the services and facilities they supplied – that was the very raison d’etre of their existence; it was just that what they were entitled to charge for and how those charges were determined, was limited by the terms of their enabling Acts. The ‘problem’ [exacerbated when the various companies were amalgamated under the one body - the British Transport Commission], was that the limitations on levels and methods of determining allowable charges, plus the limitations on the conditions imposable for use of those, were varied and complex, leading to obvious difficulties in managing the restricted income streams, which in many cases were set at no-longer profitable levels.
Under the British Transport Commission Act 1947 the BTC were entitled to rationalise to some extent the multiplex system of charges, which was accomplished under The British Transport Commission (Inland Waterways) Charges Scheme 1958. This provided that:
PART II CHARGES
s.4 The Commission may in the case of any inland waterway of the Commission make such charges as may be reasonable – [my bold]
(1) for the use thereof by any ship or boat; (2) for the provision by them of towage thereon; (3) for the provision of port facilities at or in connection with any dock thereon; and (4) for the use of any services or facilities provided by them at any dock thereon being services or facilities connected with such port facilities; Provided – ( a ) that nothing in this paragraph shall apply to any charges made by the Commission for the carriage of merchandise or passenger, and ( b ) that nothing in sub-paragraph (1) of this paragraph shall apply to the use of – (i) that part of the |Grand Union Canal which is below Gauging Lock No. 100 at Brentford by barges, or other vessels which do not proceed above that Lock; or (ii) that part of the River Lee Navigation which is below Old Ford Locks, including the backwaters thereof but not including the Limehouse Cut.
s.5 Any question as to the reasonableness of any charge made by the Commission under paragraph 4 of this Scheme shall be determined on the application either of the Commission or of the person liable to the charge by the Transport Tribunal to the exclusion of any other Court.
PART III TERMS AND CONDITIONS
6. The Commission may make the use of any of the services and facilities to which this Scheme relates subject to such reasonable terms and conditions (not being provisions as to the amounts of any charges) as the Commission may from time to time determine. 7. Any questions as to the reasonableness of any term or condition imposed or sought to be imposed by the Commission under paragraph 6 of this Scheme shall be determined by the Transport Tribunal.
The effect of the above can be readily understood. The specific fixed levels of allowable charges for many of the services and facilities were replaced by such levels of charge as would be reasonable [testable by the Tribunal]; this did not, however apply to charges relating to cargoes or passengers, which remained at the levels set by the enabling Acts.
The power to set terms and conditions for the applicable services and facilities [which meant this was inapplicable to the carriage of goods or passengers] was likewise expanded to make these such as might be reasonable, rather than as fixed by the enabling Acts.
So although the 1958 Charges Scheme [under Part V of the Transport Act 1947] went some considerable way towards rationalising and increasing the levels of charges for much of the waterways operation, it did not apply to all elements of their operation, and the tolls for carriage of goods etc - excluded from the Scheme - were amongst the most varied, complex and restricted of the allowable charges.
It was this situation that the relevant section of the 1962 Act [Part II Transport Charges and Facilities] was introduced to remedy.
As always, it is necessary to read the whole of the section from the beginning in order to realise the effect of it in the proper context.
As amended post the 2012 Transfer Order, Section 43 commences by enacting that - sub-section 1
( a ) all charges schemes under Part V of the Transport Act 1947, shall cease to have effect, and ( b ) no local enactment passed or made with respect to any particular undertaking so far as it limits the discretion of the persons carrying on that undertaking as to the charges to be made by them – [my bold] (i) for the carriage of passengers or goods, (ii) for the use of . . . any inland waterway by any ship or boat, (iii) for services and facilities connected with the carriage of passengers or goods, or with the use of . . . any inland waterway by any ship or boat, or (iv) for services and facilities in or connected with a harbour,
(whether by specifying, or providing for specifying, the charges to be made, or fixing, or providing for fixing, maximum charges, or otherwise) shall apply to the charges of the British Waterways Board or the Canal and River Trust." [my bold]
So the entire section is clearly intended: NOT to allow new avenues of chargeable services or facilities, but in abolishing the 1958 Charges Scheme, to remove the still existing limitations on the levels of charges for the carriage of goods and passengers etc, and to remove the limitation on the Board’s discretion for ALL the chargeable services [i.e. the requirement to be reasonable].
Sub-section 2 - clarifies that the above provisions were NOT intended to set BW/CaRT free from any limitation on WHAT they could charge for. [If any further clarity on this was needed, one need only take the example of the much later Statutory Instrument that was needed in order to allow BW to sell treated water additionally to their previous ability to simply sell water.] There is NOTHING in the section that gives powers to charge for that which they previously had no powers to charge for; the sub-section expressly states that this section is NOT intended to be read that way.
Sub-section 3 - the oft elliptically quoted section – further clarifies that for all the allowable charges BW/CaRT were entitled to make, not only were all fixed limitations on levels of charge abolished – to include [as the BTC Scheme did not] those relating to the carriage of goods or passengers – but also the general requirement to be reasonable! From that day on, the levels of charge, and the setting of terms and conditions for ALL of their then chargeable services and facilities, could now be made as the Board saw fit.
|
|
|
Post by naughtyfox on Jan 17, 2017 15:28:44 GMT
Have read the above. Two thoughts:
1. Have CRT ever offered you or Tony Dunkley a position in their legal department? It seems you would be fair, and save CRT a pile of money. Shoosmiths might get upset about this though, by having their workload reduced.
2. Have you thought about gathering all this info and putting it in a guide for (eg.) boaters? If nothing else, all of the comments on Canalworld and Thunderboat (and anywhere else?) could be collated and arranged in some sensible sequence, so that anyone 'in trouble' could go straight to the section that concerns them in the hope it will act as a base/template for their legal defence? It's all too valuable to be just left scattered here & there on the discussion forums.
Certainly an unique time in Britain's canals history, all this. Also, it is no wonder that courts and judges can 'get it wrong' as this is a specific and complicated subject. Despite my dislike of big organisations wielding their power wrongly, I also believe that no matter how hard CRT would try to bend over backwards to please everyone (if they were so inclined) they would keep being subject to abuse by the 'piss takers' ('the vermin of society') and those who want to keep testing them to their limits; I do believe they should retain the right to rap the naughty ones on the knuckles (so to say), also believing they could certainly be less beligerant. Politicians and bankers set examples in Society, why (in their eyes) should other bodies such as train companies, privatised utilities (gas, electric, telecom) and CRT be angels of unblemished reputations, when they'd be unlikely to get much praise, and asset-stripping and huge bonuses all round are an easier route to a Range Rover and that deckchair in the Caribbean? Can CRT be 'blamed' when so many other organisations and individuals are getting away with it with no fear of punishment?
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jan 17, 2017 15:46:19 GMT
Have CRT ever offered you or Tony Dunkley a position in their legal department? You mean like if you can't beat them, join them?
|
|
|
Post by naughtyfox on Jan 17, 2017 15:57:20 GMT
I meant to sail the ship in a better direction.
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Jan 17, 2017 15:59:43 GMT
Politicians and bankers set examples in Society, why (in their eyes) should other bodies such as train companies, privatised utilities (gas, electric, telecom) and CRT be angels of unblemished reputations, I've had several disputes with the type of companies you mention; Electric - took it to the Ombudsman - won, bill was cancelled and compensation was paid to me. Telecoms - threatened and nearly took to to the Ombudsman - company settled with me, apologised and paid compensation. Insurance - opening offer 5k, took it to Lloyds Ombudsman and lost, kept fighting and just before I took it to the Insurance Ombudsman I accepted an offer for 55k (I would have settled for 30k!). I don't believe I'm a piss taker and neither does any one I know in real life (most think I'm a soft touch). As has been said before, if CRT had a proper complaints procedure and an Independent Ombudsman with clout most issues would be resolved without the need for the courts.
|
|
|
Post by NigelMoore on Jan 17, 2017 16:09:56 GMT
For greater clarity of the situation, my latest on CWDF -
I do not believe it is arguable that the 1962 Act could ever apply to the issue of boat licences.
It is a curious thing, but it appears that it took BW about 12 years or more to come to that realisation, although they resolutely maintained otherwise – as they do to this day.
I suspect that it was only following the success of the 1971 Act that they belatedly came to understand that the legal arguments produced to justify the need for that Act applied equally to the rest of the waterways system up until after 1968, and that no amending legislation addressing that situation had been passed. They had continued with the practical, consensual pleasure boat licensing scheme that the BTC had used, following precedent examples from at least some of the original canal companies, without ever considering the lack of statutory provisions to cover this as a mandatory scheme.
Contrary to the evidence of Mr Grimes, the present licensing system is not consensual, as it had been prior to 1976, but a mandatory statutory requirement, made possible by the relevant extension of byelaw making powers in s.5 of the BW Act 1975. The chronological sequence of the Acts would seem to make this explanation irresistible.
It is the terms of that section that provide for the imposing of conditions for bringing boats onto the system, and for keeping and using them thereon, not the 1962 Act. The preamble to the 1975 Act para.(3) noted that “It is expedient that further powers should be conferred on the Board and that further provision should be made as in this Act provided for the control and regulation by the Board of the inland waterways owned or managed by them:” acknowledging para.(5) “The purposes of this Act cannot be effected without the authority of Parliament:”
The provisions of s(3) imposed a requirement for boats on river waterways ONLY, to display either a certificate or licence. There was NO provision for this anywhere other than on river waterways.
Section (5) of the Act extended the byelaw making powers of 1954, which from that point on “shall be construed to have effect as if the power thereby conferred to make byelaws for regulating the use of the canal included the express power to make byelaws for excluding any vessel from the canal, prohibiting the use by any vessel of the canal or prohibiting the use of the canal except in compliance with any such conditions as the Board may prescribe . . .”
BW rushed in the byelaws they had already drafted parallel with this Act, the same year, adding the requirement for boats on canals to display a licence, which had not been included in s(3) – because, it seems obvious - the licences themselves had not yet been made mandatory other than in their application to the 1971 Act as an alternative to certificates.
In their rush, they forgot to make the possession of boat licences mandatory on canals inthe first place, which meant the 1975 Byelaws were otiose and ridiculous. They were accordingly swiftly abolished, and the existing revised byelaws were introduced the following year [1976] to make possession of a boat licence mandatory on the canals, AND to make the display of them mandatory.
They could have made such other conditions as they might prescribe under the same s(5) power, but BW’s choice, however, was to seek imposition of licence conditions – once their 1976 Byelaws were passed – authorised under primary legislation rather than uder the byelaws they had been newly empowered to make.
Hence, in the 1983 Act, a whole section made conformity to boat building standards a pre-requisite for holding a licence. That section was abolished in the 1995 Act, which applied a replacement mandatory boat standards condition of licences, and added the two other mandatory conditions.
If - as was acknowledged in the 1975 preamble - these powers to impose conditions on any boat before they could use the canals, could not, in 1975, have been effected without the authority of Parliament, then no authority of Parliament had existed previously to effect the imposition of such conditions; the prior Act of 1962 cannot possibly then have been construed as CaRT currently argue for.
Not only did BW recognise that byelaw making powers needed extending to accomplish this, they saw it as preferable even with such powers, to obtain primary legislation for these conditions.
|
|