The CRT has rejected the offer to remove the articles on this web site that it alleges are defamatory. In a letter sent earlier this month, CRT also attempted to obtain information about other boaters who might have been invloved with the decision to publish the articles in question. In addition, CRT tried to apply pressure to the editor to provide it with the evidence for some of the statements made in the articles, despite there being no obligation to disclose evidence prior to formal court proceedings. However, CRT has conceded that it will not insist on an undisclosed charitable donation in recompense, after it was pointed out that this amounted to applying undue pressure to make a gift to a charity, which charities are not permitted to do. You can read the correspondence in full below.
30 November 2012
ARTICLES ON KENNET AND AVON BOATING COMMUNTY WEB SITE
WITHOUT PREJUDICE SAVE AS TO COSTS
I am writing in response to your letter of 5th November 2012. I note that you have rejected my offer to remove the articles from http://kanda.boatingcommunity.org.uk (the “Web Site”). My proposal for settlement of 1st October 2012 was entirely genuine. I remain willing to remove the Articles from the Web Site in return for the undertaking by Canal & River Trust (“CRT”) that I proposed. Obviously CRT is at liberty to elect to accept my proposal for settlement as it sees appropriate.
As I have previously stated, I am the Editor of the Web Site and the author of the articles and images that you refer to. The Web Site is not run on a commercial or for profit basis. For all other purposes I am the publisher of the Web Site in that I make the decisions regarding what is published and I perform the electronic publication. I have also previously stated that the purpose of the Web Site is to support boat dwellers without home moorings in dealing with harassment and unlawful enforcement by British Waterways (“BW”) / CRT.
In my second letter of 1st October 2012 I also stated that my ultimate goal is not merely to publish information to assist these boat dwellers, but to change the way that BW and now CRT carries out enforcement of s.17(3)(c)(ii) of the British Waterways Act 1995 (the “95 Act”). I therefore made the offer to remove the articles from the Web Site in my capacity of editor, publisher and author of the Web Site and not in any other capacity. Please note that the correct title of the Web Site is “Kennet and Avon Boating Community”.
I do not agree with your denials regarding harassment and the Equality Act. Indeed, your letter of 5th November proves that CRT is intent on harassing boat dwellers without home moorings in that you appear to seek to threaten and harass other unspecified boat dwellers without home moorings on the Kennet and Avon canal. This demonstrates further pursuit of CRT’s policy of harassment towards the demographic of boat dwellers without home moorings in contravention of the Protection from Harassment Act 1997 and the Equality Act 2010.
I have previously stated that I object to being subjected to undue pressure to make a charitable donation. It is not appropriate for you to make any other assumptions about my willingness or otherwise to make a charitable donation to the Trust.
With regard to the other issues you have raised, including your statement about non-adversarial discussion, I re-iterate that I consider that the Articles constitute “fair comment” in accordance with s.6 of the Defamation Act 1952. Analysis of and comment about the issues covered in the articles is in the public interest and in particular in the interests of boat dwellers without home moorings. Consequently I reiterate that I refute your allegations. The question of “making amends” therefore does not arise.
In addition, I am under no obligation to provide you with evidence save in accordance with CPR Part 31. I have previously stated that I will lay out the evidence that the articles are based on should it become necessary for the purposes of disclosure as per CPR Part 31. Please note that due to my membership of the National Union of Journalists, I am fully aware of my rights in this respect and in particular that I am not obliged to respond to such “fishing trips” for information.
Please note that s. 52 and s.55 (1) (a) and (b) of the Data Protection Act 1998 applies to the sharing of data between different parts of the same organisation and therefore prevents CRT sharing the address for me that is held by the Boat Licensing Team with other departments of CRT. Your possession and use of that address for the service of documents unrelated to Boat Licensing is therefore unlawful. I refer you to the generic Boat Licensing Team Change of Details form which states “please enter the address to which we should send licence communications”.
I therefore still require an assurance in writing that CRT will cease and desist in the pursuit of vexatious litigation; the unlawful sharing of my personal data; the violation of Article 10 ECHR and the violation of the Equality Act 2010.
I do not have an alternative correspondence address. As a boat dweller without a home mooring I am unable to collect mail regularly from the address held by the CRT Boat Licensing Team. Signed-for mail sent to that address is likely to be returned to the sender. Please therefore address all correspondence to me at email@example.com copied to firstname.lastname@example.org and not to any other address.
I am advised to draw your attention to the authority of Derbyshire County Council v Times Newspapers Limited and others  UKHL 6.
I would add that my fees for consultation are £80 per hour. I shall bill CRT for any further time that I am required to spend on this matter at this rate. Should I receive further correspondence from CRT on this matter I shall deem this as acceptance by CRT of agreement to be billed.
I reserve my rights in all respects.
5 November 2012
DEFAMATORY ARTICLES POSTED ON
http://kanda.boatingcommunity.org.uk (“the Website”)
I write with reference to both your ‘open’ letter and “without prejudice save as to costs” letter, both dated 1 October 2012.
Firstly, I would be grateful if you could clarify your capacity when writing these letters. In your first email dated 4 September 2012 you stated that you are the editor of the Website, author of the articles and images referred to in my letter dated 21 August 2012 (“the Articles”) and a publisher of the Website in that you make the decisions regarding what is published and perform the electronic publication. However, the sender’s address, signature and the opening paragraph of your ‘open’ letter of 1 October 2012 seem to suggest that you are writing as a representative of Kennet and Avon Boating Community and a publisher of its website. Please can you confirm your position and what (if any) role did Kennet and Avon Boating Community play in making a decision to publish the Articles?
Turning now to the substance of your open letter, I note that the majority of the issues you raise have been previously dealt with in my letter dated 21 September 2012. However, in order to further clarify the legal position, I will re-visit some of these points below.
The request that you cease publicly displaying the Articles on the Website or elsewhere, publish the specific text by way of an apology and make an undisclosed charitable donation was simply a suggestion of a reasonable way of making amends as envisaged by Section 2 of the Defamation Act 1996. It is difficult to see why you construe such an attempt, made in the spirit of section 2 of the Defamation Act 1996 and with the intention of saving both parties time and costs, as being unreasonable. In any event, if you feel so strongly against making a charitable donation, we are prepared to settle the dispute on the basis of removal of the Articles and the publication of the correction only.
Your allegation that your personal data were unlawfully shared is denied. I can confirm that the Canal & River Trust holds the address at the top of my letter to you dated 21 September 2012 as your address given to it for correspondence with you. If that address is no longer the appropriate address for corresponding with you or for service of documents on you, please provide me with an alternative correspondence address.
Your statement that that letter was posted as well as emailed to you is untrue. The letter was only emailed to email@example.com and to firstname.lastname@example.org as requested by your first email of 4 September 2012. Further, and contrary to the statement in your ‘open’ letter of 1 October 2012, your previous correspondence does not stipulate that the documents should be served by e-mail only as you allege. However, save where service of documents is prescribed by the Civil Procedure Rules, I am more than happy to continue to correspond with you by email.
Your allegations of harassment and of interfering with your freedoms under Article 10 of theEuropean Convention on Human Rights were addressed fully in my letter of 21 September 2012. I will only comment that if exchange of letters pre-litigation amounts to harassment, the Police would be obliged to investigate every civil dispute that ever arises. Clearly, this is not the case and it follows that my letters to you setting out Canal & River Trust’s legal position cannot amount to harassment. Similarly, there has been no breach of the Equality Act 2010 on the part of the Canal & River Trust.
Our letters have been quite specific – we want the withdrawal of the Articles and we have suggested a reasonable way by which the person responsible for those Articles might make
amends (in accordance with section 2 of the Defamation Act 1996). Please explain how you can construe letters seeking to resolve a dispute which centres on defamatory statements as actions in breach of the Equality Act 2010.
As far as the Articles are concerned, we strongly reject your statement that our defamation
allegation is “false”. The Canal & River Trust maintains that those Articles contain defamatory statements. We have asked you to provide further evidence (which you claim you have in your possession) to justify these defamatory comments. You have refused to provide such evidence. As a result, we have no reason to review our original opinion and consequently our position remains unchanged.
I now turn to your letter of 1 October 2012 marked “without prejudice save as to costs”. I reiterate that legally privileged correspondence is intended to be used exclusively in genuine settlement negotiations. We do not consider the contents of your “without prejudice” letter are a genuine attempt to settle this matter. What you propose in that letter is completely unacceptable to the Canal & River Trust, our Council, our Trustees and indeed to the great majority of boat licence holders. You will be well aware that this is the case in light of your numerous previous dealings with the Canal & River Trust.
I should expand on the comment I made to you in my letter of 21 September 2012 that the Trust is open to frank, constructive and non-adversarial discussion on boating matters, and this is precisely what we have with the Residential Boat Owners Association, the National Association of Boat Owners, the Inland Waterways Association, the Association of Waterway Cruising Clubs, the Royal Yachting Association and British Marine Federation. However, defamation is not a legitimate basis for raising a complaint and we question whether this approach has advanced your case in any way.
To summarise, I do not consider that your recent correspondence has taken this matter any
further. I suggest you take further legal advice and reconsider the proposal we have made in
accordance with section 2 of the Defamation Act 1996.