Justice Lewis slams 'Guidance'

THE short Canal & River Trust (CaRT) Press release regarding the judicial review of its ‘Guidance for Boaters without home moorings' (Bargees abandon judicial review ) fails to explain why the judicial review was abandoned, writes Allan Richards.

For that, we have to rely on the other party involved, Nick Brown, who has issued his own Press release.

Misleading on costs?

Before considering the case in detail, it would appear that there is a discrepancy regarding costs. CaRT claim that they were awarded significant costs. Nick Brown refutes this saying that CaRT attempted to claim costs of over £100,000 but this was refused by Mr Justice Lewis who ruled that CaRT would have to justify the amount claimed.

Time will tell as to who is correct in this matter. However, it has to be said that in a previous high profile case (BW vs Davies), British Waterways was deliberately misleading in its Press release, claiming that the judgement was binding on other courts when it was not. Indeed, the real outcome of Davies case for boaters was that BW rewrote its previous guidance to reflect the judge's views on the distance that one needed to travel to comply with the law.

....and it is the rewritten guidance that was the subject of the judicial review. Nick Brown challenged if this new guidance was lawful.

The 1995 Act

BW introduced a Bill to parliament in 1990. Amongst many other provisions, the Bill required that all boats should have a home mooring (or other place that a boat could be legally kept when not in use) as a condition of licencing. However, by the time that the bill became the British Waterways Act 1995, having a home mooring was optional. With regard to conditions of issue of a licence for a private craft, Section 17(3)(c) reads:

‘either -

(i) The board are satisfied that a mooring or other place where the vessel can reasonably be kept and may lawfully be left will be available for the vessel, whether on an inland waterway or elsewhere; 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 one place for more than 14 days or such longer period as is reasonable in the circumstances'.

Guidance

In 2004 BW's legal director, Nigel Johnson issued some guidance to help inform boaters as to BW's understanding of the Section 17(3)(c)(ii) of the 1995 British Waterways Act. The document was given the title of ‘Mooring guidance for continuous cruisers'.

The document interpreted ‘bona fide navigation' as a ‘progressive journey' covering a significant part of the system (as opposed to short back and forth shuffles). ‘Place', in the Act was defined as a ‘neighbourhood' rather than a specific mooring position.

In 2008 the guidance was changed primarily because BW now claimed the right to fine those without home moorings for overstaying.

In 2011, following judicial scrutiny in the case of British Waterways Board v Davies, Nigel Johnson completely rewrote the guidance even changing the title to 'Guidance for Boaters without a home Mooring'.

Legal director's statement

In a sworn statement prepared for the judicial review, Mr Johnson was at great pains to point out that National user groups had been fully involved in drawing up the first and third attempts at guidance.

One has to ask why BW felt the need to gain approval from these groups on what BW claims is simply guidance on the law.

One also has to ask why Nigel Johnson resigned, leaving CaRT's employ on 31st December 2013, just six weeks before a judicial review when he had made a sworn statement and would be required to give evidence.

Perhaps it was because much of his statement appeared to be an argument that those without home moorings were depriving the Trust of part of the £130 millions a year it needs to spend maintaining its waterways. It is very difficult to understand how Mr Johnson would convince the court that agreeing with his interpretation of the law (i.e. his guidance) would make up part of the £50m difference between what the Trust spends on maintenance (£80m per year) and what it needs to spend (£130m).

Indeed, would the court have even considered this nonsense?

Action discontinued

Whilst permission for a judicial review was granted by almost the highest member of the judiciary in the land, it became very clear early in proceedings that Mr Justice Lewis (who was presiding) was reluctant to deal with the case.

In his Press statement Nick Brown states 'During the hearing it became apparent that this case could not after all decide on the lawfulness of the Guidance because I am not facing any enforcement action myself. Therefore the case should not continue'.

Mr Justice Lewis explained 'During the course of argument I raised a problem that is that the Courts are reminded of the undesirability of deciding an issue absent a proper factual context... the Court has warned against abstract actions and needs a proper factual matrix to assess cases... In the light of that there is very little purpose to this hearing as it would not resolve anything. CaRT would prefer, as a responsible public body, to have a judgement that would allow it to discharge its duties in the right way but any judgement that I could give would be very little use on the ground'.

Despite its Press release suggesting that it welcomed the case being withdrawn, CaRT actually argued strongly against this.

Perhaps the reason for this was that Mr Justice Lewis was not adverse to providing comment on matters that he was unwilling to pass judgement on!

Bona fide navigation

Justice Lewis suggested what was good for boaters with moorings was also good for those without, saying 'An occasional trip down to the Dog and Duck' might very well be bona fide navigation whether this was from a marina or from a towpath spot'.

This is about as far removed from BW's ‘progressive journey' covering a significant part of the system as you can get. It also contradicts CaRT's latest guidance that still suggests progression of the form A to B to C to D as it is saying A to B to A.

Place

Mr Justice Lewis also suggested that 'place' could be as small as an individual boat length, by stating that the mooring or other 'place' to keep a boat required by s.17(3)(c)(i) has the same meaning as the 'place' used in s.17(3)(c)(ii).

That interpretation makes perfect sense but will not be welcome by many.

Law & guidance

.... and Mr Justice Lewis did not stop at providing definitions of 'bona fide navigation' or 'place'. He went further by saying that:

Section 17 (3) (c) (ii) was unclear and lamented that this had not been addressed by seeking new legislation.

Finally he condemned the guidance out of hand, saying that it took legislation that was already difficult to understand and did not make understanding it easier!

What now?

Will CaRT change its guidance to reflect Mr Justice Lewis's comments on 'place' and 'bona fide navigation?

Will it scrap its guidance as being of no use to boaters in understanding the law?

Will it promote an amendment to that Act to make it clearer?

CaRT do not have to do anything because the court does not require this. However, in the 'Davies' case they did take action based on the comments passed by the judge.

Will they do so this time?