The Editor of this web site has offered to remove the articles that CRT alleges are defamatory, in return for CRT making certain binding undertakings to change the way that it enforces s.17(3)(c)(ii) of the 1995 British Waterways Act. The offer was made because the rights of the estimated 5000 to 10,000 boat dwellers without home moorings are more important than whether the particular articles in question continue to appear on the web site. The web site was set up in 2009 with the purpose of supporting the liveaboard boaters on the K and A to deal with harassment and unlawful enforcement by BW. The ultimate goal is not only to publish information to assist these boat dwellers, but to change the way that BW/CRT enforces the law. To further this aim, the Editor is prepared to take down the articles that CRT objects to in return for a material change of policy that will bring the enforcement of continuous cruising into line with the way Parliament intended it should be enforced. The Editor has also written to CRT refuting the allegations in full. So far, the CRT has not responded. You can read the correspondence below.
1st October 2012
ARTICLES ON KENNET AND AVON BOATING COMMUNITY WEB SITE: FIRST LETTER
This is an open letter.
I am responding to your letter of 21 September 2012.
The purpose of the Kennet and Avon Boating Community Web Site (the “Web Site”) is to support boat dwellers without home moorings in dealing with harassment and unlawful enforcement by British Waterways (“BW”) / Canal & River Trust (“CRT”)
I note that you are alleging that the three articles published on the Web Site that you mention (“the Articles”) contain:
1. References to impropriety on the part of BW and CRT;
2. Allegations of discreditation in conjunction with CRT ‘s directors or their offices;
3. Allegations of misconduct, bullying and harassment in conjunction with CRT ‘s directors or their offices;
4. Allegations of discreditation in conjunction with CRT ‘s senior employees or their positions;
5. Allegations of misconduct, bullying and harassment in conjunction with CRT ‘s senior employees or their positions;
6. The malicious unauthorised mockery of the Trust’s logo;
7. And that you allege that these articles therefore have been composed on a basis calculated to disparage CRT and its directors; and
8. That I therefore withdraw the articles,
9. Publish a correction; and
10. Make an undisclosed donation to CRT by way of amends.
In relation to the above allegations, I rely on evidence including, but not restricted to, the evidence that I have set out below.
In relation to Item 1, I believe that your response to the Freedom of Information request at http://www.whatdotheyknow.com/request/shares_in_drifters_leisure_limit#incoming-305070 clarifies some of the the facts behind the assertion. These facts give rise to a conflict of interest and thus impropriety. Please note that the article in question refers to BW employees and not to CRT employees. I draw your attention to the Civil Service Code and to the British Waterways HR Code of Conduct.
In relation to Item 2, I draw your attention to the transcript of Moore v British Waterways Board [2012] EWHC 182 (Ch) and in particular to the transcripts for 3 November 2011 and 16 February 2012.
In relation to Items 3 and 5 I will lay out the evidence that the articles are based on, should it become necessary for the purposes of disclosure.
In relation to Item 4 this is an extension of Item 1. I also draw your attention to the disciplinary record of Sally Ash.
In relation to Items 1 to 6, 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.
Therefore in relation to Item 7 I refute your allegations.
Therefore it would be inappropriate for me to comply with your demands per Items 8 and 9.
In relation to Item 10, your request that I give an undisclosed charitable donation to CRT to make amends amounts to undue pressure to make a gift to a charity.
I am under no obligation to disclose to you correspondence between the NBTA and the Waterways Ombudsman. Please refer to Articles 19 and 20 of the Rules of the Waterways Ombudsman Scheme.
I note that you have sent a copy of this letter to me by post and that you have therefore obtained the postal address that is held in the records of the CRT Boat Licensing Team. My instructions to you were clear regarding the service of documents in this matter. I stipulated that documents should be served by e-mail only. I draw your attention to s. 52 and s.55 (1) (a) and (b) of the Data Protection Act 1998. I will make a complaint to the Information Commissioner regarding your sharing of data contrary to the Act. I would add that as a Boater Without a Home Mooring, I do not have regular access to a postal address and therefore service of documents by post creates an imbalance of arms to my disadvantage, whether or not that is the intention of CRT.
I draw your attention again to Article 10 of the European Convention on Human Rights (“ECHR”). The ECHR continues to apply to the statutory functions of CRT which include the management of the waterways. For the avoidance of doubt, in seeking to interfere with my freedom to impart information and ideas regarding the management of the waterways, CRT has violated my Convention rights under Article 10 ECHR.
In addition I have already warned you that your action in making a false allegation of defamation against me amounts to harassment and CRT has continued to harass me by pursuing this false allegation. I will accordingly make a complaint to the Police in line with Section 2 of the Protection from Harassment Act 1997. Obviously in my defence I will confirm the nature of the vexatious litigation and that this fails the Wednesbury Reasonableness test in turn giving rise to an occurrence of misfeasance in public office.
Given that CRT did not know the identity of the Editor of the Web Site when it made this false allegation, CRT’s action amounts to further pursuit of its policy of harassment towards the demographic of boat dwellers without home moorings. This gives rise to a violation of the Equality Act 2010.
Finally I note that CRT made this false allegation shortly after Robin Evans refused to withdraw derogatory statements about boaters without home moorings following a complaint made to CRT. I observe that CRT, in refusing to cease and desist from using the terms “continuous moorer(s)” and “CM(s)”, while at the same time interfering with my Article 10 rights, is abusing its power as a body exercising public functions.
Given the apparent pursuit of vexatious litigation by CRT, the unlawful sharing of my personal data, the violation of Article 10 ECHR and the violation of the Equality Act 2010, I now require CRT to give me an assurance in writing that it will cease and desist in these violations.
I reserve my rights in all respects.
ARTICLES ON KENNET AND AVON BOATING COMMUNITY WEB SITE: SECOND LETTER
Without Prejudice Save as to Costs.
This offer to settle does not imply any admission of liability.
The purpose of the Kennet and Avon Boating Community Web Site (the “Web Site”) is to support boat dwellers without home moorings in dealing with harassment and unlawful enforcement by British Waterways (“BW”) / Canal & River Trust (“CRT”). Therefore 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”).
To further this aim I am prepared to remove the articles in question from the Web Site in return for CRT making certain undertakings (the “Undertakings”) that are binding in perpetuity on:
(1) the CRT (2) the Waterways Infrastructure Trust (3) any successor bodies that may replace CRT or that may inherit the statutory functions that CRT inherited from BW (4) any navigation authority whose functions and property are transferred to the CRT, the Waterways Infrastructure Trust or any successor bodies in the future.
I lay out the wording of the Undertakings in Schedule 1 below.
The Undertaking shall be be formalised and sworn as appropriate by CRT.
I reserve my rights in all respects.
SCHEDULE 1
DETAILS OF UNDERTAKING
DEFINITIONS
In this document the following definitions are used:
the “2011 Guidance” means “Guidance for Boaters Without a Home Mooring” October 2011
the “2012 Guidance” means “Guidance for Boaters Without a Home Mooring” July 2012
“95 Act” means the British Waterways Act 1995
“BW” means “British Waterways
“CRT” means “Canal & River Trust”
the “Minutes” means the Minutes of Evidence of the House of Commons Select Committee on the British Waterways Bill, 1993-1994.
the “New Guidance” means a new guidance (not yet drafted) bearing materially the terms outlined in this document
1.1 CRT makes the undertakings laid out in this document as follows:
1.2 These undertakings are binding on
(1) CRT
(2) the Waterways Infrastructure Trust
(3) any successor bodies that may replace CRT or that may inherit the statutory functions that CRT inherited from BW; and
(4) any navigation authority whose functions and property are transferred to CRT, the Waterways Infrastructure Trust or any successor bodies in the future.
(collectively the “Undertakers”)
2.1 The Undertakers shall rescind the 2011 Guidance and the 2012 Guidance
2.2 The Undertakers shall cease and desist from setting any further movement requirements for boats licensed under s.17(3)(c)(ii) of the 95 Act
3. The Undertakers shall issue the New Guidance. The New Guidance shall reflect the Will of Parliament as recorded in the Minutes. The wording of the New Guidance is set out in Section 12 of this document.
4. The Undertakers shall abandon any further interpretation of s.17(3)(c)(ii) of the 95 Act
5. Noting that
(a) there are no enforcement powers in the legislation to collect excess mooring fees, extended stay charges or penalty charges; and
(b) and that, as confirmed in the Minutes, mooring time limits in all cases except those covered by s.17(3)(c)(ii) of the 95 Act remain advisory in nature
the Undertakers shall abandon any further attempt to collect the following:
(1) excess mooring fees
(2) overstay charges
(3) penalty fees
(4) extended stay charges
(5) any other devices to collect fees or financial penalties for staying longer than a mooring time limit
(6) any charge or penalty not specifically defined in legislation
(7) any charge or penalty that materially meets the description of Items (1)-(6) above
6. Noting that s.17(3)(c)(ii) of the 95 Act already permits mooring whilst engaging in bona fide navigation, the Undertakers shall abandon any further attempt to create
(1) roving mooring permits
(2) transient mooring permits
(3) community mooring permits
(4) any other device whereby boaters without home moorings are charged a fee to cruise and/or moor within a limited geographical area
(5) any device that materially meets the description of Items (1)-(4) above
7. The Undertakers shall maintain a single boat licence fee that costs the same regardless of whether a boat is licensed under s.17(3)(c)(i) or s.17(3)(c)(ii) of the 95 Act
8. The Undertakers shall not seek any new primary legislation, secondary legislation, Regulatory Reform Order or other powers that dilute or repeal the effect of s.17(3)(c)(ii) of the 95 Act
9. Noting that the Minutes record that Parliament scrutinised and rejected proposals for BW to assume the following powers, the Undertakers shall abandon any draft byelaws and not seek new byelaws or primary or secondary legislation in the future that
(1) penalises boat owners for not complying with mooring time limits
(2) penalises boat owners for not complying with no-mooring zones
(3) penalises boat owners for not complying with for failing to obey the instructions of a CRT officer regarding the mooring of boats
10. The Undertakers shall abandon
(1) local mooring strategies
(2) any attempts to introduce local variations or interpretations of s.17(3)(c)(ii) of the 95 Act including local definitions of “place”
11. The Undertakers shall amend the General terms and Conditions for Boat Licences to reflect Items 4 to 12 of this Undertaking.
12. Wording of New Guidance
Guidance on the Intention of Parliament regarding s.17 (3) (c) (ii) of the 1995 British Waterways Act
If a boat is licensed on a under s.17 (3) (c) (ii) of the 1995 British Waterways Act (the “95 Act”) it must move on a regular basis. This Guidance[1] seeks to explain in day to day terms the nature of the compulsory movement that must take place. This Guidance is explanatory but is not legally binding.
There are four key legal[2] requirements:-
the boat must genuinely be used for navigation on average, predominantly throughout the period of the licence.
it is the responsibility of the boater to satisfy CRT that the above requirements are met in order for a licence to be granted or renewed
first licence grant is “taken on trust” and the licence will be granted provided that the vessel insurance and the boat safety certificate are both in force and valid and the correct fee is paid
subsequent licence grants include a consideration of the boater’s track record in compliance with s.17 (3) (c) (ii).
12.1 Bona Fide Navigation
The law[2] requires that the boat “will be used bona fide for navigation throughout the period of [the licence]”. The definition of this phrase is specific to the 95 Act and definitions from other sources are not appropriate.
“Bona fide” is Latin for “with good faith” and is used by lawyers to mean “sincerely” or “genuinely”. The test in the 95 Act for whether a boat is being genuinely used for navigation is whether or not the boat has remained in the same Place for more than 14 continuous days.
“Navigation” in this context means a transit on water with the assumption that the master of the vessel is on responsibility for its safety. No further interpretation is derived (or is necessary) from the 95 Act.
The time limit of 14 continuous days specified in the 95 Act is used as an indicator (rather than a hard-and-fast threshold). To moor in one location for longer than 14 continuous days can suggest to CRT that the bona fides of the navigation are questionable. To moor in one location for more than 28 continuous days would very clearly be not bona fide.
Therefore, subject to stops of permitted duration, those using a boat licensed under s.17 (3) (c) (ii) must genuinely be moving, and not stopping in any one Place for more than 14 continuous days. The length of each journey and the direction of travel are not relevant.
Short trips involving “bridge hopping” and shuttling backwards and forwards along a smaller part of the network meet the legal requirement for navigation throughout the period of the licence provided that the journey takes the boater to a different “Place” each time 14 continuous days elapses.[2]There are some places on the network where time limits are specified for mooring (“Visitor moorings” and other particularly popular locations). It is important to note that these designations are advisory and all boaters (not just Continuous Cruisers) are asked to respect these designations to assist in sharing fairly the use of these types of moorings.
12.2 “Place”
The law requires that stops during such cruising should not be in any one place for more than 14 continuous days.
What constitutes a “Place” will vary from area to area. A “Place” is not simply a particular mooring site but is a town, village or hamlet, a suburb or district within a town or city or a specific uninhabited area that is geographically distinct form another uninhabited area. A sensible and pragmatic judgement needs to be made.
The 95 Act does not require any specific distance to be travelled to reach a new “Place” provided that the journey is to a different “Place”. Exact precision is not required – or expected.
To remain in the same “place” for more than 14 continuous days is not permitted. However all that is required is passage from one “Place” to another after 14 continuous days.
12.3 Stays of Longer than 14 Continuous Days
The law says that a boater may stay in a “Place” for a period longer than 14 continuous days if it is reasonable to do so. There are two circumstances in which a boater may do so as follows:
12.3.1 Extended Stay by Preference
The length of continuous stay is averaged in retrospect over the licence period. If this average shows that the length of stay is 14 days or less then the boat is being used bona fide for navigation. This includes stays of longer than 14 days provided only that the licence period average remains 14 days or less.
However the longer the stay the more likely it will be that the boater is identified as not using the boat bona fide for navigation. If a stay lasts 28 continuous days this means that the navigation may be interpreted as no longer bona fide.
12.3.2 Extended Stay by Extenuating Circumstances
It is reasonable to stay in one “Place” for longer than 14 continuous days are where further movement is prevented by causes outside the reasonable control of the boater or are otherwise extenuating.
Examples include (but are not limited to)
mechanical breakdown preventing cruising until repairs are complete
navigation stoppage
being iced in
not being iced in but the navigation otherwise iced
other weather conditions
navigation conditions
family emergency or illness
other medical condition or circumstance.
fuel scarcity or emissions control
“Mechanical breakdown” must be such that the Master of the boat considers it unwise to navigate. For example if the propeller is damaged the master may consider it unsafe to navigate.
“Navigation Stoppage” refers to CRT or third-party engineering works. For example if a lock gate needs out-of schedule replacement it is reasonable to remain in the same “Place” until the stoppage is complete.
”Ice-breaking” refers to navigating when the canal is iced but passage can be achieved. Where other boats are moored ice-breaking is strongly discouraged as it endangers the hulls of the moored boats.
“Weather Conditions” refers to adverse weather conditions such that navigation (including operating locks), in the opinion of the Master, would be dangerous. For example if it is sub-zero and the locks are iced, it would be dangerous to attempt to navigate unless the Master was experienced in such navigation.
“Navigation Conditions” refers for example to water flow on a canalised river. For example if a canalised river is in flood navigation is strongly discouraged and may invalidate the vessel’s insurance (although this has not been tested in court) unless the Master has competence to do so.
“Family emergency” involves some type of family crisis. For example having to take a child to hospital.
“Illness” involves any medical condition (affecting the master of the boat or an operational crew member if the Master is not willing to single-hand in the circumstances) in which the Master believes that navigation would be unsafe in the circumstances. For example if it is sub zero and the Master or an essential member of crew has pneumonia it would be life-threatening to navigate.
“Other Medical Condition or Circumstance” refers to any medical or physical condition in which navigation would be reckless. For example someone who has just suffered a stroke should not be navigating; equally nor should someone with a broken limb.
“Fuel Scarcity or Emissions Control” refers to the fuel consequences of navigation. For example if fuel is being rationed then navigation may not be practical or may indeed prohibited. There are also climate-change related reasons to curb emissions (particularly in relation to transport) that imply reduced patterns of navigation.
All of these circumstances must be evaluated by the Master of the vessel and it is the Master’s sole judgement that decides the outcome. The Master is on responsibility for safety of the crew and himself, other masters and crew, members of the public, the vessel, and other vessels (in that order). The Master’s judgement is final (although it can obviously be challenged before a tribunal) and in particular must be respected by CRT personnel.
Extenuating circumstances should be made known as soon as is practicable to local CRTstaff with a statement of intention of a longer stay at a specific location. If for navigational reasons and the circumstances of the extenuating circumstance permit, it may be appropriate for CRT to request a move to a safer location. The circumstances will be reviewed regularly by BW. The Master of the vessel will be expected to take reasonable steps (where possible and appropriate) to remedy the cause of the longer stay.
Where difficulties persist and the boater is unable to continue navigating, CRT reserves the right to require the boat to be moved away from popular temporary or visitor moorings until the navigation can recommence.
12.4 Boaters’ Responsibility
The law requires the boater to satisfy CRT that the requirements of s.17(3)(c)(ii) of the 95 Act are met and not the other way around.
This is best done by keeping a cruising log, though this is not a compulsory requirement. If however, CRT has a clear impression that there has been limited movement insufficient to meet the legal requirements, it can ask for more information to be satisfied in accordance with the law. Failure or inability to provide that information may result in further action being taken[3], but only after fair warning and the engagement by the boater of the Complaints Procedure[4].
12.5 Examples
To clarify the requirements we have created some illustrative examples of what is and what is not permitted. These examples assume a 1-year licence.
Example
Scenario
Acceptable?
A
Boater stays in place A for 14 days. After 14 days moves to place B, a trip of 1 hour. After a further 14 days moves back to place A. Repeats this for the year
Yes. Although the trips are short, the navigation is bona fide because the mooring is obviously within the benchmark time
B
Boater stays in place A for 14 days. After 14 days moves to place B, a trip of 1 hour. After a further 14 days moves back to place A. Repeats this on and off throughout the year; but on 3 occasions stays for 28 days instead of 14
No. Although illustration A is ok, staying for longer periods is not ok because this continues throughout the year
C
Boater stays in place A for 14 days. After 14 days moves to place B, a trip of 1 hour. After a further 14 days moves back to place A. Repeats this on and off for 6 months; but on 3 occasions stays for 16 days instead of 14; after 6 months makes a journey around the canal system for 6 months
Yes. Although illustration B is not ok, when averaged over the year it is obvious that the predominant time has been spent navigating.
D
Boater stays in place A for 14 days. After 14 days moves to place C, a trip of 14 days obviously stopping overnight on the way. After a further 14 days moves to another location again travelling for 14 days stopping on the way; repeats this for 11 months. After 11 months goes to a quiet (uncongested) spot where the children can play in the adjacent fields and stays for three weeks.
Yes. Although staying for a longer stay exceeds the benchmark time, when averaged over the year it is obvious that the predominant time has been spent navigating. It is important to note that the prolonged stay must not cause difficulty to other boaters.
E
Boater stays in place A for 14 days. After 14 days moves 2 bridges away, a trip of 5 minutes. After a further 14 days moves back to place A. Repeats this for the year
No. A 5 minute trip cannot reasonably be a different place even in an urban area
F
Boater stays in place A (a rural village) for 14 days. After 14 days moves a short distance to the neighbouring village, a trip of 30 minutes. After a further 14 days moves back to place A. Repeats this for the year
Yes. Although the trip is short, the duration of the trip is not relevant. The boater has moved to the next village: a different place
However please note that these examples are not exhaustive and each case must be considered on its own facts.
Summary
Boats licensed under s.17 (3) (c) (ii) of the 95 Act must on average over the period of the licence be engaged in bona fide navigation
The test for bona fide navigation is whether or not the boat stays at one “Place” for no longer than 14 continuous days or a longer period if it is reasonable to do so.
Reasonable reasons for staying longer than 14 continuous days at any one “Place” include (a) because the average time spent navigating allows for it (up to 28 continuous days) or (b) because of extenuating circumstances
“Place” is undefined but relates to the geography of the location – it is for the boater to use their own judgement in determining what is one “place” and what is the next “place”. It is the boater’s responsibility to satisfy CRT that they are complying with s.17(3)(c)(ii) of the 95 Act.
12.6 Notes
[1] This Guidance does not have the force of law but seeks to interpret the law as set out in s.17 British Waterways Act 1995 and the Will of Parliament in the preparation of the Act. As the Act is a “Private Act” paragraph 1497 of Halsbury’s Rules for Judges applies. These Guidelines have been updated and refined in the light of evolving legal analysis.
[2] Section 17(3)(c) British Waterways Act 1995 states that “… BW may refuse a licence (“relevant consent”) unless (i) BW is satisfied the relevant vessel has a home mooring or: “(ii) the applicant for the relevant consent satisfies the Board that the vessel to which the application relates will be used bona fide for navigation throughout the period for which the consent is valid without remaining continuously in any one place for more than 14 days or such longer period as is reasonable in the circumstances.”
[3] Enforcement of the legal requirements will be based on observations by CRT. If initial observations indicate insufficient movement to meet the legal requirements, the boater(s) will be advised why the observed movement is considered insufficient and be asked thereafter to keep adequate evidence of future movements. Failure then to meet the movement requirements, or to provide evidence of sufficient movement when requested by CRT, can be treated as a failure to comply with s.17 of the 1995 Act. Once legal process has been concluded the boat licence may then be terminated (or renewal refused) using its powers. under s.8 (2) of the 1983 British Waterways Act. Unlicensed boats must be removed from CRT waters, failing which CRT has power to remove them at the owner’s expense.
[4] Any boater has the right to make complaint to CRT about any action (or any other issue) using the Complaints Procedure. CRT has an obligation to provide information about the Complaints Procedure, provide access to the Procedure and provide transparency of its operation. A complaint should be made in writing to CRT specifying that it is a “Level 1 complaint and to reviewed by the BW Complaints Procedure”. On the completion of Level 1, if the boater remains aggrieved then they should request escalation to Level 2 of the Complaints Procedure for review by a director. Continued dissatisfaction on the conclusion of Level 2 is addressed by the boater making complaint to the Waterways Ombudsman. BW is obliged to provide details to the boater of how to do this, in the response to a Level 2 complaint. If a boater pursues a complaint to the Waterways Ombudsman, CRT can only take action under s. 8 (2) of the 1983 British Waterways Act once the Waterways Ombudsman has adjudicated the complaint in favour of CRT. If the vessel is the boater’s home then BW must make a claim through the court in order to use its powers under s.8 (2). The boater is obviously then provided with an opportunity to state their case and defend themselves in particular by relying on Art 8 ECHR (right to respect for home).
21 September 2012
DEFAMATORY ARTICLES POSTED ON http://kanda.boatingcommunity.org.uk
Thank you for your response to my email 4 September 2012. I note that you are an author, editor and publisher of the articles referred to in my letter of 21 August 2012 and that any
correspondence relating to this matter should be addressed to you and copied to XXXXX.
In light of your explanation I refer to your email of 28 August 2012, in which you asked for
clarification on what statements Canal & River Trust (“the Trust”) considers defamatory and
unsubstantiated.There are several statements contained within the three articles which the Trust considers defamatory. By way of example I refer to the following:
In the article headed “CRT Head of Boating runs hire boat company” – the second line alleges that the Trust’s Boating Department adopts “policy of harassment and bullying of boaters without home moorings”. The penultimate paragraph subsequently alleges that it is/was the British Waterways’ methodology to harass a specific minority group of boaters. There is no such policy or methodology in place. Furthermore, there is no justification for you drawing such a conclusion and then publishing it as if this was a fact.
In the article “BW had shares in hire boat company”– the first sentence reads “Further evidence of the improper relationship between BW and hire boat companies has come to light”, however, references to the Companies House records which follow do not contain anything ‘improper’ and merely re-iterate the contents of the public records, which have been available at the Companies House for several years.
The first paragraph thereafter states that “It is contrary to the Civil Service Code of Conduct for civil servants to behave like this; according to the code, they should conduct themselves in an impartial way and not favour any one group over another. This is part of their contract of employment, and contravention of it is therefore a disciplinary offence”. The Trust’s employees are not civil servants. In any event, the Trust has had no reason to commence disciplinary proceedings against any employees within the Boating Department relating to impartiality of their conduct or favouring one group of boaters.
The third article is headed “Discredited CRT Legal Director and Head of Boating booted and
shrunk”. Despite the article headline, the article itself does not substantiate anything that would ‘discredit’ the Trust’s Legal Director and/or Head of Boating.
Without prejudice to the non-exhaustive list of statements set out above, the Trust considers the tone of the articles and the pervading, although unsubstantiated, suggestions of impropriety and misconduct to be targeted to disparage and therefore defame the Trust.
In the same email you have noted that you are not represented but that you have legal assistance in place. It is therefore surprising that you interpret simple enquiries about the appropriate addressee of this correspondence and the address for service of documents as harassment under Section 2 of the Protection from Harassment Act 1997. The enquiries contained in my email of 4 September 2012 were legitimate enquiries that were reasonable in the circumstances and there is no reason why a reasonable person in possession of that email would consider its contents as harassment. For the avoidance of any doubt, it is denied that the enquiries contained in my email to info@boatingcommunity.org.uk dated 4 September 2012 amount to harassment.
Also in the e-mail of 4th September, you refer to some material or evidence of the Trust’s alleged maladministration that you or National Bargee Travellers Association (“NABTA”) sent to the Waterways Ombudsman. Regrettably, I am not entirely certain I understand your reference. There is a complaints procedure that has to be exhausted before complaints can proceed to the Waterways Ombudsman and you are fully aware of this procedure. It further appears that none of your or NABTA’s recent complaints is directly connected to the defamatory statements or the articles containing those statements. Please, therefore identify the evidence that you refer to as having been passed to the Waterways Ombudsman.
I now refer to your second email of 4 September 2012, at the outset of which you use the words “Without Prejudice Save As To Costs” indicating legal privilege and used exclusively in genuine settlement negotiations. Your email, however, includes no settlement proposals and therefore does not benefit from legal privilege. It will therefore be treated as part of open correspondence.
In that email you allege that Canal & River Trust “has violated your Convention rights under Article 10 ECHR”. Under the Article 10 European Convention of Human Rights (“ECHR”) you are entitled to the freedom of lawful expression. Conversely, defamation is a tort and therefore an unlawful actfalling foul of what is protected by Article 10 EHCR. Hence, regardless of what does or does not fall within the functions transferred to Canal & River Trust, the exercise of freedom of expression does not excuse statements that are defamatory.
The Trust has no objections to open and frank discussion with a very wide range of different individuals and groups who have an interest in the waterways. The publication of defamatory material is not however a legitimate way to resolve a dispute or ensure an open dialogue. In light of the allegations contained within your second e-mail of the 4th September (which are legally unsound for the reasons I have stated), I can only assume that you did not intend to enter into any meaningful dialogue with the Trust aiming to resolve this dispute. If, however, you do, as the reference to legal privilege suggests, wish to enter into settlement negotiations, please feel free to put forward any reasonable proposals you may have (with or without the reference to the Trust’s proposal in my letter dated 21 August 2012) for the Trust’s consideration.
Tags: Canal and River Trust, continuous cruising, Letters to BW and others, libel, liveaboards, mooring policy, Section 17, Waterways Act 1995