Dragged like a donkey

CRT have finally backed down in their latest high profile case against a long time liveaboard.

Some may be aware, or can catch up on t’net, of CRT’s attempts to get court sanction for 1. Validating the legality of, removing a license and issuing a Section 8 for breach of terms of their conditions and 2. trying to enforce a doctrine that says a boater with a home mooring must also follow the same rules as a boater without a home mooring.
This is stated in the Kennet and Avon Plan.

Tony Dunkley, a boater on the Trent with a home mooring had his licence removed for boating in an area remote though accessible from his home mooring.

Held by most to be illegal. CRT’s attempt to get this through court by breathtaking subterfuge failed and a coherent and powerful defence was filed.

CRT have reissued his license and accepted his home mooring – finally – something never in dispute. They are trying to stop court proceedings but once again not properly.

Nigel Moore writing on Canalworld forum said

Last Tuesday [September 2nd] CaRT issued the new Rivers Only Certificate for which Tony had applied back in July, having received a copy of an email from the landowner, confirming that he was happy with Tony’s use of his land for a mooring. Lack of this was not, of course, the reason they had originally given for being dissatisfied, and is a well overdue complete about-turn on the issue.

However, contrary to rumour, they have not discontinued the court action. Having promised to file a “Notice of Discontinuance” once the new ‘licence’ was issued, they are now reneging on that agreement. What they are trying to insist on is that Tony sign another Consent Order, ending the proceedings by mutual agreement.

It may well be that most cannot see what difference this makes. For anyone facing the same situation – the Discontinuance, if served after a Defence has been filed, means that the Claimant needs to seek permission of the court if they want to bring any future action against you based on broadly similar grounds. That ensures that they can’t just stop and start proceedings with a sword of Damocles hanging over you ever after. Either they proceed on the facts and arguments the first time around, or they leave you alone thereafter.

It is presumed, in other words, that if they left it to after they had read the Defence, then logic dictates that they saw themselves in a losing situation, whereas if they had come to an agreement beforehand, then that merely showed amicable settlement without prejudice to the strength of their case.

This complete turn-around [only after having read Tony’s Defence], however purely face-saving an exercise, is nonetheless a welcome indication that new blood within the legal department has been taking a long hard look at the issues and arguments. Instead of riding with the recommendations of Mr Parry and Shoosmiths, someone appears to have belatedly realised on reading through the Defence, that maybe the old ways of railroading hapless boaters simply as a means of establishing some sanction for their application of new rules, has the potential to backfire on them badly.

Johnson would never have allowed it to happen – he was all gung-ho for battle, secure in the knowledge that courts would invariably agree with him, that BW were the best interpreters of their own legislation – but that confidence is now misplaced, cases having finally made it to and through the High Courts instead of the County Courts, with alarming results. Someone with new pragmatism along with the requisite nous, has managed to persuade Mr Parry of the dangers of his preferred approach, so perhaps there is hope yet for CaRT resources to be applied only to legitimate and necessary enforcement actions.

Any new appointee as Welfare Officer should take careful note of the ramifications of this sorry case. I said in the previous thread [respecting the Mayers case]: “most reprehensible of all, is when the authority has sectioned a boater on the basis of non-compliance with their interpretation, and subsequently drop all requests for determination of that interpretation”.

At least in this instance – presumably because they saw themselves ending up with more than egg on their faces – they are trying to withdraw altogether [even though attempting to do so on a basis that would allow them to instantly renew proceedings]. However cynical this might be, it is preferable to the former situation where they would have proceeded regardless.

I venture to suggest that the public airing of the issues on this Forum could well have played a part in the more general exposure leading to greater public awareness, both of processes and arguments, making the new blood within the relevant departments more conscious that the old ways are no longer so assured of success.

In short, better education for all can result in resources being properly directed where truly needed.

It would be good to think that matters will improve yet further, and that even the litigiously minded Mr Parry will recognise that less arrogant assumption of pre-eminent authority, coupled with greater attention to the genuinely applicable methods of control, will ensure better management of the system for the benefit of all, in a far less confrontational and more practically effective manner.

Regrettably, in this instance as with mine and others, no apology is forthcoming, let alone any recompense for the months &/or years of harassment, and CaRT will still be putting their spin-doctors on the job to justify this debacle. I just wish that they could sit down to discuss what the positive approaches to management could be, by way of turning around the situation in future – any efforts at which, if genuine, would absolutely have to begin with at least the admission that they have been doing it wrong thus far.

The desperate effort to insist on Tony agreeing to end the proceedings by mutual consent would suggest that they are a still a long way from that yet. It could still end up in court; the original Directions hearing had been scheduled for last Monday 1st, but Tony had agreed [subject to the agreement that they issue the Notice of Discontinuance once a new licence had been issued] to a Consent Order for adjournment in that instance, to give CaRT time to receive the new information for which they had asked [although they had had the landlord’s details months ago]; issue the ‘licence’, and discontinue the proceedings.

The court accepted that Consent Order, and have re-scheduled the hearing for October. It is now down to CaRT to abide by their agreement to discontinue the proceedings, or to choose continued litigation after all.

….and, to date, no apology from CRT.

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