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Post by NigelMoore on Nov 4, 2017 0:35:13 GMT
Care to share the reason Leigh and his camera wielding pals were at that location and ' just happened to stumble upon' this innocent, inexperienced 'chugger' ? As said, it was covered more comprehensively many months ago; I do NOT care to search back through all the postings in order to find it for you. In brief, Leigh and his mates were at Nottingham County Court in order to make a scene about the local Council’s court action to prevent exposure of a number of allegedly paedophile officers. The clip you have lighted upon was a small extract from the very much longer one concerning that, and related concerns over court collusion; it had been included as a bit of light relief as much as anything, from the even more unsavoury issues the group had found most offensive. The CaRT chuggers just happened to be camped directly outside the County Court while the main story was being enacted.
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Post by NigelMoore on Nov 4, 2017 0:18:55 GMT
Just so that the essential issues are not lost sight of in all this ‘history’, there are 3 cardinal points arising from the case.
Insofar as the primary case was the statutory interpretation of the phrase ‘main navigable channel’, then that affects us all. If consistency of interpretation is to be applied across the legislation as I believe it must be, then a proper and distinct court finding [which Asplin J refused to make] would be of inestimable value whichever way it fell – bank to bank, or the more limited maintenance obligation defined in the 1968 Act.
If it was confirmed that for both the 1968 and the 1971 Acts the meaning of the identical phrase was identical, then on one interpretation we would have affirmation of what BW/CaRT have maintained for half a century - to wit that their obligation refers only to a channel sufficient to allow passage of boats using it in the 9 months prior to December 1967. The corollary to that would be that boats moored outside of the area CaRT acknowledged responsibility for maintaining to a depth sufficient for such vessels, would be free of the registration regime of the 1971 Act.
On the bank to bank interpretation, we would have to acknowledge that any boat moored on or using the mainstream of the affected rivers must needs be registered, but we could also hold CaRT to account for maintaining ALL the canals and rivers to the requisite depth from bank to bank, and be enabled to sue them in the High Court for an Order holding them to that statutory obligation – perhaps, if justice and precedent examples were followed, holding the CEO and his immediate officers personally responsible under the Order, and subject to gaol on failure to comply.
Then there is the issue of proportionality, which affects us all – not merely boaters, but all those who follow things affecting the canal system and the rivers under CaRT jurisdiction. If boat seizures are the sole means of enforcing licence payments, then the hundreds of these that take place are legitimate. But, if this is found to be disproportionate and that the specific legislative avenues must be pursued instead, then not only will the spectre of a bullying big brother be disposed of, the financial effectiveness of enforcing licensing and registration will be vastly improved.
Almost parallel/overlapping with that, is the question of whether possession of boats seized under s.8 can be used to extort the claimed licence arrears. If it cannot, then the rationale for seizing boats whose ownership is known becomes suspect indeed.
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Post by NigelMoore on Nov 3, 2017 23:51:28 GMT
Why be sorry? [other than I know you mean to be as polite as is consistent with frankness]. That said, I did not see the clip you base your comment on as being legitimate grounds for such an assessment. I thought the encounter there was fairly amiable on Leigh’s part; it was the man behind the camera who conveys a different approach. Perhaps by now I am too close to the situation; it makes not a jot of difference to the issues involved as they affect other boaters however. Oh please...Lets cut the patronising approach! 🙄 it's blatantly obvious on the video Leigh has gone out to find a 'lower level' CRT employee to voice his opinion to and get his bullyboy pals to intimidate the poor girl to boilster his internet persona! I say as I see...you? Hand on heart honestly? The background to this particular encounter has been publicised before, and you are in fact wrong, Leigh and his mates were at that location for entirely different reasons, and merely happened across the chuggers, taking advantage of an opportunity to make their point. However I am disinterested in supporting the video interviewing technique, so have no intention of defending Leigh from this angle; I am, as I said, interested solely with the essential issues – and if that comes across as patronising I regret it, but not being able to see why it should be interpreted that way, can see no remedy.
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Post by NigelMoore on Nov 3, 2017 23:23:07 GMT
After seeing this YouTube video of Leigh in action I really struggle to find sympathy for 'his ' cause Nigel... Ultimately, he comes across as an arrogant, bully boy with only one agenda..to boost his internet persona / ego After watching 'him' in action, i can't have any sympathy for his pedantic cause & ultimately hope he gets his just deserts!!..... Sorry! Why be sorry? [other than I know you mean to be as polite as is consistent with frankness]. The issues as they concern me, however, are to do with the mis-management of the national asset and the abuse of the powers granted, over the users of it. It is inevitable, perhaps, that the ‘stroppiest’ of people will fall foul of CaRT ‘management’ [but I explicitly disown membership of any such cadre; they came after me, and continue to hold me as a target, for reasons having nought to do with any imagined infraction, nor through being faced with anything other than - perhaps icy at times - politeness]. That said, I did not see the clip you base your comment on as being legitimate grounds for such an assessment. I thought the encounter there was fairly amiable on Leigh’s part; it was the man behind the camera who conveys a different approach. Perhaps by now I am too close to the situation; it makes not a jot of difference to the issues involved as they affect other boaters however. It remains incontrovertible that as a direct result of Leigh's case, CaRT have had to acknowledge that they cannot use s.8 powers to force payment of any licence or certificate arrears; they must apply the more proportionate legal avenues granted to them. That will hopefully have some influence over future decisions as to whether or not they choose to act in the most draconian manner available to them, or to be more pragmatic in keeping within the law themselves.
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Post by NigelMoore on Nov 3, 2017 21:17:30 GMT
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Post by NigelMoore on Nov 3, 2017 21:03:03 GMT
Leigh had his long delayed appeal hearing on Wednesday - this was about the original costs awards against him, arising from the fact that he discontinued the Injunction proceedings his previous litigation friend had advised they should take out, to prevent CaRT disposing of his boat after 6 weeks, which is what she gathered from discussions they could do, if Leigh did not cough up what they said he owed.
Although we had made no application for it, I was granted right of audience to address the Court on Leigh’s behalf, which does seem rather extraordinary. I was dismayed that Leigh turned up this time in blatantly casual gear, saying he had done with playing the game their way, and he did not believe it would make any difference if they had decided against him before the hearing even began! The Lord Justices did not make any comment on it, and had in fact adjourned start of the hearing until his arrival, because only I was there at the scheduled time, having to explain that Leigh had been texting me for hours over being stationary on the A1! All in all, they were uncommonly forebearing and understanding.
Even the initial start was delayed, because Shoosmiths’ solicitor advocate was feeding her new baby when due to enter the court. I think the clerks were more upset over all this than the judges let on [ “she’s not intending to bring the baby into court is she?”]
The appeal was allowed, but dismissed. There were 2 problems – first was that the injunction application had made no mention of the ‘6 week then dispose of it’ idea, and so even though that was exactly what CaRT were publishing as the Enforcement Manager’s opinion even 9 months after the seizure of Leigh’s boat, it could not be proved that they had specifically told that to Ms Thomas. the judges said they were not there to adjudicate on disputed facts for which no evidence was produced.
As to the improper use of the boat’s possession to lever payment of the alleged arrears additionally to the removal and storage costs, that was more interesting. I had the chance to take them through the emails demanding this, plus the website history proclaiming their ability to do this [until the wording was removed following a boater quizzing them over it, following publication of CaRT’s Defence admitting this to be wrong].
I may be wrong, but I had the distinct impression that the judges were slightly incredulous that Judge Asplin had been taken to this material and still found against Leigh on the issue, yet because that was her finding, and it was in separate proceedings, they could not see any way to contradict it. So though I tend to think they would have found in his favour otherwise, the existing Asplin J judgment precluded that. She has since been ‘promoted’ by the way, and was in the courtroom next door to us, sitting now as a Lady Justice of Appeal.
It became even more interesting when considering costs of that hearing. I had no knowledge let alone expertise on how to argue over costs liabilities, but one of the judges pointed out a stand we could take given that CaRT had prepared no costs schedule. Eventually, they decided they could not dismiss CaRT’s costs, but these would have to be agreed, and if not, then they would have to be subject to detailed court assessment at CaRT’s cost. That could cost as much or more than the costs themselves I suspect, so it remains to be seen whether they decide to prove amenable to reason.
Meanwhile, while we were in the RCJ, Leigh lodged his application for permission to use fresh material in his main case appeal, which had not been before the judge – notably the newly produced map of the upper Weaver, with the pre-agreed main navigable channel marked out.
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Post by NigelMoore on Oct 31, 2017 11:16:16 GMT
I see that their understanding of what constitutes the 'main navigable channel' remains constant. P.20 of the private moorings T&C's.
P20. The Trust does not warrant that there will always be adequate depth of water at the Mooring Site and is not responsible for maintaining the waterway wall or bank in sufficient condition to provide safe access to the boat moored alongside it. Where statutory maintenance obligations apply to a waterway they apply to the main navigable channel only.
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Post by NigelMoore on Oct 29, 2017 16:59:56 GMT
Mistake? links back to this page for me.
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Post by NigelMoore on Oct 28, 2017 12:58:29 GMT
Genuine question- Does the obligation to maintain a navigable channel include the ability to moor on that channel? - by which I mean can CRT maintain the waterway so a boat can pass but ignore the ability to moor and still (technically) meet it's obligations, it sounds like that is what is happening in some areas. It may be a grey area. My interpretation would be that CaRT only have to maintain a channel of a size derived from the tabled dimensions quoted in the Fraenkel Report, from point A to point B, though it would be imperative to have access to the bank at those points [such as lock landings for example]. I see no imperative to provide moorings access to the towpath inbetween those points. Obviously it would be desirable, but not enforceable. It would equally be essential for the owners of offside moorings [whether CaRT owned or private], and other canal based industries, to ensure access to their facilities, but I do not see that as a statutory obligation under the 1968 Act; it would be a matter for the bankside owners themselves. That is, in fact, exactly what BW told the managers of the Weydock moorings in Brentford; BW would dredge on request, so long as they were paid for it. The context of the 1968 Act must be appreciated; in my view Government were concerned that the obligations were minimised to that required to enable commercial and cruising waterways to function with least impact upon the public purse. A scant few years later they were even considering options for removing the waterways from BW altogether, and analysing the financial impact of various options including abandonment altogether. If the Ravenscroft judgment was to stand unappealed, then despite its view that MNC could bear different meanings in different statutes, it ought to provide a basis for strong argument that the bank to bank theory should apply equally to both cases. Then too, supposing that a pleasure boat failed to move out of the MNC to give way to a commercial boat, not because the owner wanted to flout the byelaw, but because they physically simply could not - how could any ethical prosecution ensue? Although the byelaws preceded the 1968 Act, one might think that there was an implied responsibility to maintain on commercial waterways at least, a secondary navigable channel either side of the main one, even if not extending so far as the banks.
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Post by NigelMoore on Oct 28, 2017 11:53:49 GMT
The 14 day moorings on canals are deteriorating. Mr parry stated in November 2014 that the trust would not be maintaining 14 day moorings in the future. Only 48hr and other short term moorings would be maintained to a level where mooring would be guaranteed. (Though even those seem to be suffering now). I have noted that your "argument" is now changing shape and direction again. The problem with the deal struck between the government and crt, is that crt now have cart blance to let the maintenance of the system decline as they see fit. There is no onus on crt to keep the maintenance to any standard, which in my view is a very dangerous thing. They now seem to only do any work when it is broke rather than preventative maintenance. I can't remember if it was 15% or 20% that the maintenance was set to decline year on year for the first 15years, it's a very scary thought to think we are only 5years in to the planed decline of the system. Of course this doesn't mean the visual tarting up of the environs, ie litter picking, new signs every where and of course the new race tracks for cyclists that are getting laid every where From the House of Lords ‘Merits Committee’ hearing on 24 April 2012 – www.parliament.uk/documents/lords-committees/merits-statutory-instruments/Correct-Transcript-of-Merits-Committee-(British-Waterways-Board)-24-April-2012.pdf Richard Benyon MP [Waterways Minister of the time]: “ What we have managed to predict is that there will be a continuing [maintenance] problem for a few years, but the situation will then improve at a point in time not many years off – is that in 2020, Robin? Robin Evans: The condition of the assets deteriorates a bit and then levels off but is stable.” [page 11] I read that as recognition that the system will deteriorate until 2020 according to their calculations, and then remain at that level of decline. As to what can be done about it, although in practical terms CaRT have the get-out clause of impecuniosity, it remains possible for any member of the public to take High Court action against them, to procure an Order demanding that their still-existing statutory obligation to maintain a minimum main navigable channel is carried out.
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Post by NigelMoore on Oct 28, 2017 9:03:30 GMT
I cannot help wondering whether that means CaRT are complying with their statutory obligation repecting maintenance of a main navigable channel there? Is there a missing smiley?! I don’t know; I am wary of using simplistic emoticons that might not convey to others what I think they should. Although I was having a gentle inward smile when I wrote that, I was simultaneously exploring a serious thought – if MNC truly does mean what CaRT believe it does respecting [only] the maintenance obligation of the 1968 Act, then being able to travel up a section as you describe, even though unable to reach the sides, means that the statutory obligation has been met. Concomitant with that would be an answer in rebuttal of the Asplin judgment that applying the same meaning to the 1971 Act would render the statute an unworkable nonsense: a boat on a long-term bankside mooring can be considered out of the MNC and readily recognised as being so [while, in instances of centre river moorings where width allows [or on pontoons extending to deeper water], moored boats could be as easily recognised as still needing registration]. Examples such as were considered by the Waterways Ombudsman illustrate the situation – many long-term moored boats are often sitting on or in an undredged and silted up riverbed. BW’s response that they were not obliged to dredge under such bankside boats would be a valid one. Boats on the Brent tend to end up in that situation, and have sometimes had to do quite a bit of work of their own to enable them to move off when they eventually wished to. Sometimes only the higher tides made that possible at all. Navigating boats, on the other hand, can [rather obviously] only do so along a channel deep and wide enough for them to so do, so that any boat on the move could be considered as utilising the MNC and subject to registration. That could only be applied to boats of the maximum dimension provided for in the definition of course; commercial ‘river waterways’ would present a different scenario, but on cruising ‘river waterways’ those vessels able to utilise the water space outside of the MNC would usually be covered by either BCU membership or cheapish ‘portable unpowered craft’ certificates anyway. The point, if valid, would mean that any narrowboat or cruiser engaged in navigation could automatically be deemed in need of registration, and the supposed difficulty/impossibility of identifying a need for enforcement very largely disappears.
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Post by NigelMoore on Oct 28, 2017 2:17:54 GMT
The soho loop is easy to navigate. If you stay reasonably in the middle and don’t want to be right at the edge. I cannot help wondering whether that means CaRT are complying with their statutory obligation repecting maintenance of a main navigable channel there?
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Post by NigelMoore on Oct 25, 2017 16:03:41 GMT
Forwarded to me by Leigh just now, an email from the Court of Appeal respecting next week's hearing [if CaRT prove unwilling to settle beforehand] -
"Dear Sirs, The Lords Justice give permission for Mr Moore to act as Mr Ravenscroft’s McKenzie Friend at the hearing of the appeal. The Lords Justice will consider the separate question of whether the McKenzie Friend can have a right of audience, as opposed to merely assisting as a McKenzie Friend, at the outset of the hearing."
Bit extraordinary, as a right of audience was not actually asked for; the judges are being extra considerate to Leigh in this case. Whether that bodes good or ill is impossible to say.
I still wish he had managed to get a pro-bono professional for this, because it is way out my field, but we will do the best we can. The question at stake is whether Leigh and his MF at the time only took out the Injunction because they were under the impression that CaRT would dispose of the boat after 6 weeks; whether they left giving assurances as to that until the last minute, and whether they had, as admitted, used possession of the boat to lever the alleged arrears of fees from him. We can establish that fairly convincingly, so the Lords Justice then have to decide if that suffices to overturn the standard presumption that a discontinuer should pay the Defendant's costs.
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Post by NigelMoore on Oct 25, 2017 10:22:40 GMT
And, of course, the court could still refuse permission to use it! Shoosmiths helpfully sent us a copy of some pages from the 'Practice Directions' explaining the grounds on which material not before the first instance judge may be accepted or refused.
Shoosmiths believe that it would not be permitted, in part because it could have been discovered through 'due diligence' before the trial hearing. My post #333 in the canalworld forum topic was quoted as evidence that I had gone to the Parliamentary archives to search for this, though how that [futile] search establishes anything about our ability to have the evidence for the trial I do not know - that was 3 months after the trial, and post judgment as I recall.
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Post by NigelMoore on Oct 25, 2017 2:09:20 GMT
Leigh asked Shoosmiths some weeks ago, what it would cost for him to drop both appeals and walk away from all this, but has not, to my knowledge, received an answer. Accordingly the November first hearing is still on.
Of considerable interest for the main appeal is the annotated map from the 1993 Undertaking respecting the extent of the 'main navigable channel' of the river Weaver, which was added to the scheduled river waterways of the 1971 Act by s.30 of the 1995 Act. Shoosmiths recently sent this to me upon request, and I will post shortly. It will cost another £528 for Leigh to lodge an Application for permission to add this 'fresh evidence' to his main appeal.
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