Justice Lewis slams 'Guidance' - Action discontinued
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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Despite its Press release suggesting that it welcomed the case being withdrawn, CaRT actually argued strongly against this.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?