APPEAL COURT REF: ..

Re: Claim No: HC-2015-001906

IN THE COURT OF APPEAL

ROYAL COURTS OF JUSTICE

BETWEEN:

LEIGH RAVENSCROFT Appellant

and

CANAL and RIVER TRUST Respondent

APPELLANT SKELETON ARGUMENT

1. The Judgment has summarily dismissed all elements of my claim, these being:

a. The term main navigable channel has the same meaning as understood
in the 1965 Byelaws and as defined in the Transport Act 1968; hence no
registration required under the 1971 Act, for boats outside that channel;

b. Further, and in the alternative, even if registration was required, employing

s.8 of the 1983 Act was a disproportionate measure where specific less
onerous sanctions for the offence were available, and

c. Further, and in the further alternative, regardless of the above, use of

possession under s.8 powers as a lien to extort disputed arrears was an
offence.

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 2. Appeal is made against the findings on all 3 of the above claims, there being
identifiable errors of both fact and law within the judgment.

Main Navigable Channel

3. The primary issue being a matter of statutory construction, it is normal practice

to allow for review of any decision of the lower Court, by the Court of Appeal.
Insofar as it is relevant, Chief Master Marsh had commented pre-trial that in
these circumstances either side would be granted permission to appeal. As a
pure point of law in the public interest, it having been recognised by all that the
primary issue needs determining with unmistakable authority.

4. The judgment fails to apply the required legal approach to private Acts.

5. This case in particular, being a matter of statutory construction of a privately

promoted Act, where differences of opinion have been expressed as to the
meaning of main navigable channel [MNC] even by the promoters of the Act,
it is all the more appropriate that any decision to ignore the relevant rule of
construing ambiguities in such cases should be subjected to review by the
Court of Appeal.

6. In paragraph 31 of her Judgment, the Judge claims: Since the hearing, they
have both indicated that they have no objection to me adopting the approach
outlined by Arden LJ . . . I cannot see that any comment by either side
approving this approach could be sufficient to dispense with the other
applicable approaches, especially in dealing with a private Act. In any event,
the Judges statement omits the directly pertinent fact that I had asked Mr
Moore to respond [by email dated 26 May 2017] saying: while I
wholeheartedly approve the proposed approach, I would not wish such other
still pertinent legal maxims on statutory construction I have cited [as explicitly
detailed in my Skeleton Argument] set aside altogether, without factoring
those also into consideration.

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7. My grounds for appeal therefore include my claim that the purposive
approach was not properly applied, as well as claiming that the maxim
relating to private Acts ought also to have been applied.

8. It is submitted that the judge has failed to make good use of the freedom of
the purposive approach to properly analyse the intentions behind the Act.
Because this is a private Act, it is possible to access the expressly and publicly
stated understanding of the MNC before, and long after, promotion of the Act.

9. It is perverse then, to find no assistance in their use of the term prior to the
Act, in their own drafted secondary legislation; the half century of stated
understanding of the term as used in the 1968 Transport Act; the continued
use of it in ensuing primary Acts up until 1995, and as used in their proposed
new byelaws of 2010.

10. We not only have Parliamentary materials establishing just how nervous the
promoters were regarding impositions upon cherished public rights [concerns
shared by the legal section of the Transport Ministry], but we have extensive
examples and comment from the promoters and their successors, illustrating
exactly what they understood by the term in other contexts, to the present day.

11. It is a significant failure that no assistance has been found in this respect. The
only external guide to proper construction of the statute that has been used
has been the Respondents argument in this case, and the purposive
approach has been used solely to accord justification for an extraordinarily
wide exercise of discretion.

12. The cardinal reason the Judge has dismissed the more restrictive definition of
the disputed term is based on the perceived impracticality of administering the
registration requirement, where uncertainty over boundaries exists.

13. It was wrong, in this respect, for the Judge to dismiss the provision for
certainty by way of approved mapping for further defining the MNC. It is
difficult to see when and why any necessity for Secretary of State approved
maps would ever arise - whether in respect of maintenance or registration
requirements - if the MNC extended from bank to bank.

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14. Paragraph 62 of the Judgment states: Mr Moores construction would make a
nonsense of the control and regulation provisions contained in the 1971 Act
and would render their operation all but impossible . . . It would render the
entire regime of the 1971 Act unworkable.

15. This is simply false to fact. Were it true, the same would apply to the 1965
Byelaw having reference to the main navigable channel, yet no argument over
the meaning in that context arises. The same term in the same context was
used in the draft 2010 byelaws, and the same considerations would apply.

16. The same would also apply to enforcement of the 1968 Act obligation to
maintain the MNC, under s.106. It is nowhere suggested that such High Court
action would be all but impossible, nor that the accepted construction in that
Act would make a nonsense of the enforceability of the obligation.

17. By contrast, the 1976 byelaws which the Judge declared to be of no

assistance, contains no such geographic limitation to the licensing
requirement, thus highlighting the essential difference between the registration
scheme on scheduled rivers, and the licensing scheme on the canals even
though MNCs are applicable to both.

18. This is not a situation existing in the British Waterways legislation alone, but in
all navigation authorities byelaws having application to particular channels
and areas, which may or may not be marked by buoys and lights, but the
boundaries of which are simply designated as lines of sight between
geographic points [illustrated graphically e.g. in the Loch Lomond byelaws].

19. The situation is further clarified by British Waterways in 1990, when they
sought to add a final stretch of river system to the 1971 Scheduled river
waterways. Though not exhibited in this trial, British Waterways gave
undertakings to the Royal Yachting Association in respect of the 1990 Bill, that
the main navigable channel of the river Weaver where it broadened out
considerably [in the area known as the Bottom Flash] would be restricted to a
designated narrow channel across that area, the adjacent waters to be outside
of their jurisdiction.

20. Supplying a map with areas either side hatched black to designate protected
area, they wrote:

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 Notwithstanding anything in the relevant clause or the registration provisions -

(a) the Board hereby confirm that the protected area is not part of the main
navigable channel of the river for the purposes of section 104 or any other
provisions of the Act of 1968 and is not to be treated for the purposes of any
enactment as forming part of any inland waterway belonging to or under the
control of the Board; [my bold]

(b) without prejudice to the generality of the foregoing the Board in particular
shall not apply any registration regime to any part of the protected area.

21. The above illustrates the Boards equation of main navigable channel in the
s.104 obligations of the 1968 Act, with registration requirements of the 1971
Act, and is good answer to the claim that confining registration requirements to
such an unmarked channel within wider parts of rivers would not have been
countenanced. It was NOT, as a matter of cold fact, considered unworkable.

22. It is submitted that this map ought to have been disclosed as evidence
material to the case, because I have had no success in locating a copy. It
comprises conclusive refutation of the Judges position.

23. The same difficulty applies to similar areas on the Trent and other rivers,
where adjacent marinas occupy adjoining waterspace with very wide interface
with the main river [as shown to the Judge on aerial photographs], the
boundaries of which could only be determined by line of sight arbitrary
divisions, which might be marked out by buoys, but which are not; the
perceived difficulty in administration never arising in point of fact.

24. As noted above, the same argument applied by the Judge to supposed
difficulty of enforcement would apply equally to the offence of not maintaining
the main navigable channel of the commercial and cruising waterways, which
s.106 of the Transport Act 1968 enables any member of the public to enforce
via High Court action in the event of non-compliance. The Respondent has
always maintained a clear understanding of the boundaries respecting the
MNC when challenged to dredge to the banks by boater complaints, as
evidenced in the Ombudsman Reports to which the judge was directed.

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25. In paragraph 63 the Judge sees support of her position in the fact that the
position of the main navigable channel may change. In her argument that this
supports her position, the Judge has artificially conflated the terms fairway
and thoroughfare with main navigable channel [despite oral representation
on the distinction], and in doing so has bypassed the reality that the
Respondents own publications to which she refers, designates the channel as
the main navigable channel in contradiction to the argument.

26. It is, moreover, untrue that this channel will change over most of the relevant
rivers; the huge bulk of the rivers will have the position of the main navigable
channel fixed, and without the knowledge of precisely where the boundaries
are, vessels of the maximum size would simply be unable to utilise the
navigation safely. The fact is that they can, because it is known where these
channels are.

27. The situations where the position of the main navigable channel may change,
will arise only in broad tidal rivers in periods of extreme scouring. This was the
case in the material to which the Judge was taken, relative to the river Ouse. It
was necessary unusually in that instance, to establish where the main
navigable channel had or might have shifted, in order that larger vessels could
be informed as to the location, to enable safe navigation. Simple maps were
published [shown in evidence] to show where the channel lay within the river.

28. In the same paragraph, the Judge says: If Mr Moore were right, it would be
necessary to conduct frequent surveys of all inland waterways for which CRT
is responsible in order to obtain up to date details of the position of the
deepest channel and to record the same on a map made to order of the
Secretary of State.

29. What the Judge overlooks is that such surveys ARE regularly conducted over
all such waterways; they have to be, in order to comply with the maintenance
of a main navigable channel as they are obliged under the 1968 Transport Act.

30. This is explained in the WUSIG documentation to which the Judge refers. This
explains in detail just what is currently done and seen to be necessary in
identifying the location and dimensions of the navigational channels within
both canals and rivers.

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31. That documentation further notes that for most of the network, surveys need
only be carried out every 8 years. The majority of the work is carried out
under an ongoing national contract with Land and Water Group Ltd.

32. Surveys to determine a changed position will be rarely needed, but when that
happens, such surveys ARE carried out by sheer necessity as evidenced by
the very Notices that the Judge was taken to, in illustrating the fact.

33. Exhibited for the judge were the Waterscape Restriction Notices re: River
Ouse first, Boothferry swing bridge from February to May 2011

All river traffic should use the main navigable channel of the swung section.
No other channels should be used.

24 hour restriction notice but does not affect the main channel . . . All river
traffic should use the main navigable channel under the swung span. No other
channels should be used.

Encapsulated scaffolding will be erected on the north and south bridge piers
to the main navigable channel. The scaffolding will extend beyond the piers
into the channel reducing the overall navigable channel by 2.0m. The
navigation lights are to be temporarily moved to mark the channel during the
works . . . no other channel should be used.

34. For the same river, Selby Town Swing Bridge

. . . scaffolding below the fixed section of the bridge will prevent river traffic
from using this section. Only the channel below the swung section will remain
open to river traffic . . . All river traffic should use the main navigable channel
under the swung span. No other channels should be used.

35. Also exhibited was the April 2015 CaRT publication warning of hazards on this
same river: The main navigable channel between Boothferry Bridge and
Howdendyke Island changes position. The plan overleaf indicates the
navigable channel at this location. This was what she picked up on, as an
example, however, of the impracticality of having such plans drawn up!

36. As to the impracticality of marker buoys and the like indicating the channel [not
really needed most of the time], the same publication notes:

Navigation lights are in place at various locations on the river banks and on
fixed structures including wharves and bridges where they mark the navigable
channel.

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37. The earlier 2013 Notice on restrictions had warned The hydrographic survey
along this section has been planned to confirm the position and depth of
the main navigable channel. The survey will be undertaken by a 10m survey
vessel Little Shuva.

38. Confronted with evidence that surveys ARE regularly carried out over all
canals and rivers; that they WERE carried out on sections where the MNC
could have shifted; that plans showing the new channel WERE subsequently
published, and that marking that channel where necessary HAD been carried
out, it seems somewhat perverse to use that information to the opposite effect
of demonstrating the impracticality of such work.

39. In the same paragraph 63 the Judge claims that the maps and comment
produced reference main navigable channel under a Freedom of Information
request takes the matter no further forward, yet the comments by British
Waterways demonstrated a clear recognition of the fact that delineating an
area from bank to bank was NOT the same as delineating a main navigable
channel within that. It was powerful evidence that the promoters of the 1971
Act continued to recognise the distinct difference.

40. In paragraph 64 the Judge claims that it cannot have been Parliaments
intention to create strict liability offences the parameters of which are
uncertain. This is a reprise of the comments in paragraph 62, as noted above,
and as noted there, the difficulty is one of perception only, not one that has
been demonstrated in reality, and the position is little if any different in the
interpretation including all the river bank to bank, but excluding wider areas
used as private marinas; tributaries and truncated parts of the natural river.

41. Once again, if more certainty was required, the provision allowing for maps is
one covering just such need; a provision which cannot be readily understood
as needed for anything other than more precise determination of dredging
requirements, or the registration scheme application.

42. As noted above, the existing byelaw relating to a main navigable channel has
been admitted to refer to a central, deeper channel; creates a strict liability
offence in exactly the same circumstances, and has never been challenged as
being manifestly NOT Parliaments intention. As noted before, most navigation

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 authority byelaws create such offences within areas of water without
necessarily marking them out with buoys. If this argument applied to negate
the plan meaning of main navigable channel in this instance, it would have to
be taken to deny it in all other such instances.

43. It is submitted that there is nothing of substance in the assertion, later in the
same paragraph, that a wider construction is consistent with a very wide
definition of pleasure boat in the 1971 Act. As argued in court, the definition
is made as widely as possible; it applied to ALL the relevant river waterways
some of which are far smaller than the Trent in its main sections, and all of
such boats can be and are navigated in deep water anyway.

44. There may be confusion on my part respecting paragraph 65, where it claims:
If Mr Moores construction were correct, a pleasure boat certificate would only
be required if a vessel were kept or let for hire in the thoroughfare of the
river in question. The legislation demands that all boats kept, let for hire or
used, shall be subject to registration if in the main navigable channel, not just
boats kept or let for hire therein.

45. The assertion in the latter part of that paragraph is contrary to fact where it
states: Furthermore, it seems to me that it is not normal to assume that a
pleasure boat will be kept in such a thoroughfare at all.

46. Contradicting that, the very first materials presented to the Judge in court were
aerial photographs that she makes mention of paragraph 13, describing them
as: A stretch of the river Trent showing a pontoon stretching out some
distance almost to a dotted line imposed down the centre of the river; an aerial
view of a stretch of the River Thames showing boats moored in the centre of
the river in the lee of an island, also in the centre of the river.

47. As explained to the judge, whether such moorings are permissible/desirable

will depend very much on the circumstances in each case, wherein the
available width of river will be most pertinent. In tidal waters particularly,
mooring in the centre, or to pontoons reaching near the centre, will often be
the only practical moorings for boats that cannot be safely grounded at low
tide. This was photographically illustrated in the evidence presented at the
beginning of the hearing.

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48. The photographs of boats moored in the centre of the Thames are in the
middle of the main navigable channel as identified by the Environment Agency
in, for example, their recent update dated 23 June 2017: For your safety, we
have marked all known shallow areas in the main navigable channel (the
middle third of the river, also known as the fairway) with red and green
buoys. This having been established practice for many decades, the Judges
observation is misconceived. It was noted in pleadings, particularly, that prior
to 2010 all boat simply kept within the main navigable channel of the Thames
were not required to be registered, which need only arose if they were used.
The point being that this regime was harder to police that the 1971 scheme,
which embraced such boats even if never used.

49. It follows that the rationale put forward is directly contrary to the evidence
before the Judge at the very beginning of the hearing.

50. It is notable that the Judges reference in paragraph 66 to the Fraenkel Report,
entirely omits the contrary views of the promoters of the 1071 Act, as to the
meaning of main navigable channel.

51. Fraenkel thought that the term should embrace the whole of the structures of
the mainline including towpaths etc, in opposition to the views of British
Waterways dating [as quoted] from 1973, where they claimed that the
maintenance duties under the Transport Act 1968 do not extend beyond the
main navigable channel and therefore do not include the towing path. The
contrary views of British Waterways were always subsequently consistent with
this quoted view, which as later noted, was understood as a channel within the
banks of the navigations described.

52. Also overlooked, which is of significance in the construing of private Acts, is

the acknowledgement on all sides, that there was a degree of ambiguity over
how extensive a main navigable channel must be, to fulfil the conditions of
the 1968 Transport Act obligation.

53. It is notable that the Fraenkel Report [commissioned by government], though

dating from the mid-1970s, referred back to a pre-1871 Act survey carried out
by British Waterways themselves between February and June 1970, which is
of direct pertinence to the Boards understanding when drafting the 1970 Bill
which became the Act under scrutiny in this case.

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54. The Fraenkel Report records in 10.9.1 we think it necessary in concluding
this chapter to comment on the standards used by the Board in making their
1970 Survey. The necessity arises from the fact that some kind of comparison
will inevitably be made between the results of that survey and the conclusions
that we present in this Report. It will be found that there are differences.

55. Having decried to some extent the use of general terms, giving no specific
guidance, the Report notes at 10.9.6: Only with reference to dredging were
more precise criteria laid down. Here it was provided that dredging on Cruising
waterways should allow for continued movement of commercial craft where
they existed. In other cases a dredged depth of 4-0 (1.22m) or a
requirement to pass craft which passed in the relevant period defined by the
Transport Act 1968 (whichever is the greater) and over a channel width
equal to twice the beam of the craft normally using that waterway should
be allowed for to cover movement of pleasure craft. [my bold] That
understanding of the width of channel comprising the main navigable channel
they were obligated to maintain, is what had to have informed their use of the
term while drafting their Bill later that same year, that passed as the 1971 Act.

56. I do not follow the argument in paragraph 68 for dismissing prior legislative
use of the same term. Judicial commentary in case law on the subject of
navigable channels was cited in my Skeleton Argument in pages 14 to 17,
while examples of both prior and subsequent legislative use was provided in
pages 17 to 18. The purposive approach would seem to strongly emphasise
the usefulness of such material.

57. If the Respondents argument for a different interpretation in the 1971 Act - as
approved by the Judge - is held to apply, this would be the sole example
anywhere in comparative legislation and relevant case law where the phrase
is to be so interpreted. Some more compelling reason needs to be presented
for imposing a unique meaning within this Act, differing from the meaning
carried in every other national and international legislation cited.

58. The reasoning in paragraph 68 as to the maintenance obligation under the

1968 Act in any event, does not paint an accurate picture of how I [and British
Waterways /CaRT] have understood it. The clear aim of the Act was to ensure
the maintaining of a main navigable channel within specified waterways,
permitting continued use by such boats as used them prior to December 1967.

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59. The obligation to conduct works to forward that aim will necessarily extend
beyond the simple dredging of a specified channel; it will require maintenance
of all supporting structures, bridges, feeder channels, pumping stations, locks
etc, etc. The end result of all such works is, nonetheless, the maintenance of a
main navigation channel within the existing channels, for the specified sizes of
boats.

60. The aim of the Act was to limit the maintenance burden so far as possible
while maintaining that minimum standard. If the entire channel was meant to
be kept suitable for the specified traffic, then the maintenance obligation need
never have been couched in the terms it was, dependent upon use by a
particular size of vessel over a particular limited period of time rather than to
the standards the navigation was originally designed for.

61. In the context of construing the meaning of an ambiguous term within a private
Act, the denial in paragraph 69 that the Boards recent confirmation - that the
term has been interpreted inconsistently depending upon what benefits them
most takes the matter any further forward is, it is respectfully submitted, a
failure to appreciate and apply the time-sanctioned approach to construction of
such legislation. The public acknowledgement of alternate views by the same
authority that promoted the 1971 Act is alone sufficient to demonstrate how it
should be construed.

62. From paragraph 70, the references to minimum operational channel to which
the Judge was taken, was illustrative as explained in the hearing of the
bare minimum interpretation of main navigable channel as a fairway to be
kept always clear. It could reasonably be expected that main navigable
channel should be greater than that, as explicated by the various alternative
formulae presented as possibilities in the Fraenkel Report, and as illustrated
by the comparative tables in the WUSIG Excel spreadsheet that was
exhibited.

63. Nonetheless, as was pointed out to the Judge, something close to that
absolute minimum has been adopted as the maintenance obligation standard
for almost a half century without demur from anyone, including government.

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64. It remains open for the Respondent to ask for approved maps delineating
wider, or even bank to bank channels, should they wish to be responsible for
maintaining such channels suitable for the specified craft of the 1968 Act.

65. Altogether overlooked, despite glancing reference in paragraph 56 to the fact

that most of the scheduled rivers were listed as company controlled
navigations prior to nationalisation, was the effect of that. Discussed at length
at trial, the point was made that the part natural/part artificial navigations for
which the previous Statutory authorities had had responsibility, were already
confined to a single channel of the river plus the artificial lock cuts and artificial
navigation branches.

66. Natural tributaries then, and truncated sections of the natural river were
already excluded from the relevant area, so that the suggestion that such
adjacent waters only, fell outside the main navigable channel, cannot hold
up; what Fraenkel and the Respondent seek to describe as the main
navigable channel, was already described as [in the immediate instance] the
River Trent Navigation, and it is the main navigable channel of that already
singled out channel that is to be considered as a river waterway for the
purposes of the pleasure boat registration scheme of the 1971 Act.

67. It should be remembered that this being a private Act promoted by British
Waterways, the stated intention [most clearly expressed in the promotion of
s.30 of the 1990 Bill] that must be factored in is that of the promoters, whose
wording has been accepted by Parliament after appropriate scrutiny.

68. Fifty years of asserting an interpretation of main navigable channel that

restricts their maintenance liability under the 1968 Transport Act - and shortly
thereafter promoting their own Act in identical terms - is powerful evidence of
the meaning they intended it to have.

69. In sum, both proper application of the purposive approach, and the necessary
application of the approach to ambiguity in private Acts, separately and
together, would result in the correct construction of the meaning of main
navigable channel as applied to the registration scheme of the 1971 Act, as I
have contended for.

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Proportionality

70. The whole dismissal of the claim over proportionality hinges upon a failure to
understand the nature and purpose of the statutory sanction against the
alleged offence of failure to be registered. This is so both in respect of the
proper aim of the sanctions, and the comparative extent of their intrusion on
the persons rights.

71. The Judgment correctly identifies in paragraph 84, the relevant considerations
that must be applied. She also correctly classifies the purpose of s.8 powers
being NOT for recovery of licence fees [or certificate fees], but to keep the
waterways safe and accessible for all craft which use it and properly to
regulate that use for all. What she totally fails to do, however, is to understand
the role of the sanctions provided in the 1971 Act, aimed at achieving just this
regulatory goal.

72. There is something perverse in using my own argument [that s.8 cannot be
used for fee recovery] against me, in considering this issue. The Judge
considers, in all her discussion of the alternate sanctions, that these provide
ONLY for recovery of fees, and hence are not comparable. She is wrong.

73. Paragraph 87 summarises her view: It also seems to me that although there
are other measures which can be adopted to recover arrears of licence fees,
the power in section 8 is not directed to that end and therefore, those powers,
being powers to prosecute and to recover arrears as a debt are not directly
comparable or relevant . . . Therefore, the question of whether there is a less
intrusive measure which could have been used without unacceptably
compromising the objective does not arise.

74. The 1971 Act, in providing the authority with a remedy for the offence of
having no registration, expressly aims at the enforcement of obtaining
registration. This is emphasised by the continuing daily fine following
conviction, until such time as registration has been obtained [with all that that
entails]. By contrast with civil action under s.5 of the 1983 Act, s.5 of the 1971
Act is not an action purely to recover arrears as a debt.

Page 14 of 22
75. Section 5(2) provides: Any person who contravenes sub-section (1) of this
section shall, for each offence, be liable to a fine not exceeding twenty pounds
and a daily fine of two pounds. This was amended under s.7(a) of the
British Waterways Act 1975 to . . . fifty pounds and five pounds
respectively.

76. Recovery of any arrears of the relevant charges appears under a completely
different section of the 1971 Act [s.7(2)] which provides that the Board may
recover the same either as a debt in any court of competent jurisdiction or, if
such charge or part of a charge does not exceed twenty pounds, summarily as
a civil debt . . .

77. The British Waterways Act 1983 specifically provided for recovery of sums due
under section 5, and emphasises the difference between actions for recovery
of debt and prosecution for the offence of failure to have registration, in
providing, s.5(3) -

A court before which a person is convicted of an offence under any of the

specified enactments [including s.5 of the 1971 Act] arising from or involving
any failure to pay a charge may, in addition to dealing with him in any
other way, order him to pay to the Board any sum which the Board are
empowered to recover under this section.

78. Following passage of the British Waterways Act 1995, it is a mandatory pre-
condition for issue of pleasure boat certificates that the boat has obtained a
boat safety certificate, as well as having appropriate third-party insurance.
Action against a boater for the offence of failing to register therefore,
necessarily involves, on pain of the daily fine until remedied, exactly the
obtaining of such pre-requisites for registration, such that the safe and proper
management of the waterways for all users is directly addressed.

79. It necessarily follows therefore, that the appropriate sanction achieves the
proper management aim identified, where the removal under s.8 does not and
cannot as was expanded upon in more detail within my pleadings, which the
judgment has ignored. It follows that removal under s.8 is only appropriate for
unregistered boats in circumstances where the prosecution process has failed
to achieve the objective.

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80. As noted in my pleadings, the relative costs of prosecutions and removals are
heavily weighted against removals, such that the management objective of
efficient use of resources also mandates against the more costly response.

81. In that respect, it is denied that the finding of the Judge in paragraph 88 that
while prosecution was not less intrusive, recovery of a debt would have
been is correct.

82. As detailed in pleadings, the financial burden upon a guilty boater in a case of
removal and storage is exponentially higher than the costs attendant upon
conviction of the offence - and action for arrears and/or the offence have still
to be faced if the Respondent pursues its fiduciary duties.

83. It is also perverse that the judgment in this respect takes no account of the
Respondents pleadings that the penalties under prosecutions are derisory
and consequently not worth pursuing [which does, of course, likewise ignore
the enforcement of registration and continued income].

84. It is not mentioned in the Judges conclusions, but the prior reference to the
argument that prosecutions cannot be made where the identity of the owner is
unknown needs refuting; it is irrelevant in my case where they had my name
and address, and anyway, they in common with other navigation authorities
successfully take action against unknown parties responsible for boats under
enforcement.

85. There is something strange about a Judgment that constantly relies upon my
own stated premise that s.8 is not intended to enable lien on debt to rebut
my claim that in using s.8 to enforce payments [as was their published policy
prior to my bringing this case] but not registration, the Respondent has not
only acted against their statutory obligation, but has acted disproportionately in
having recourse to a power that could never accomplish any of their relevant
stated objectives.

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Possession as lien on debt

86. This is the element of the Judgment I least understand. The Judge appears to
have replaced my claim that s.8 possession cannot be used as a lien on debt,
with the sole consideration of whether or not breach of the law in that respect
constituted a technical distress, and whether inadvertent or not.

87. Without prejudice to my claim that distress was indeed levied, and that there
was nothing inadvertent about it, it is simply wrong to deny me the declaration
that I sought, especially in circumstances where it has been admitted.

88. It is beyond denial that an offence was committed by the refusal to return my
boat directly contrary to the imperative within s.8 of the 1983 Act unless
sums beyond the removal and storage costs were paid.

89. If nothing else, regardless of whether harm ensued [which I reject], the offence
of acting contrary to statute exists, as identified in my initial pleadings under
the term Contempt of the Sovereign.

90. For the Judiciary to ignore the committing of offences by a national authority is
to send entirely the wrong message to the public about both the administration
of justice and the accountability of authorities. They will be emboldened to
continue actions that are acknowledged wrongs, secure in the knowledge that
these will go unpunished and notwithstanding their pleadings in this case,
this will continue to inform their decision making as regards control of the
waterways; the only worthwhile mechanism being seen as that of the most
draconian method at their disposal.

91. As to evidence of damage, there are two points to be made. First is that when
asked at the commencement of the hearing why no evidence of quantified loss
was produced, Mr Moore explained that I had not wished to pad out already
extensive material, with that which could be produced in the event of a finding
that use of possession under s.8 could not be used to leverage payment of
disputed arrears of fees.

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92. Second is that regardless of loss, the offence was indeed committed, and it is
no defence to say [paragraph 104] that recovery of fees could have been
successfully pursued through the legal avenues available. That such specific
avenues of recovery are provided for, emphasises the illegality of self-help.

93. The denial that distress [paragraph 96] was levied given the definition in the
4th Edition of Words and Phrases Legally Defined overlooks the element
where a chattel is held as a pledge regardless of whether it was legally
taken into possession in the first place. The 1983 Act mandates return upon
payment of removal and storage costs only as admitted such that
demands for any sum over and above those sums falls into that category.

94. The whole topic appears to have been coloured by an obfuscation of what
actually happened. As an example, it is extraordinary that the false evidence
given by Mr Garner as to the content of a Shoosmiths email to me - wherein
they were supposed to have denied any intention of the Respondent to hold
the vessel as a lien on debt was admitted in cross examination, and yet the
Judges description of that cross examination [paragraph 28] not only makes
no reference to the admitted falsehood, it gives an impression that the
statement was what Mr Garner maintained in that giving of evidence. That is a
gross distortion of the truth as evidenced by the transcripts.

95. The relevant portion of the cross examination went as follows:

Q Mr Garner, I'm just going to touch on issues that you've said, rather
than use of languages and licences versus certificates, and all the rest of it,
just accepting that that's a sort of convenience rather than anything else.
But there's something in your para. 41. You're referring to an email from
Shoosmiths. You say:

"On 141h April 2015 Shoosmiths confirmed that they were taking
instructions from their client and would revert to the claimant as soon as
they were in a position to do so. It was not the Trust's intention to hold the
boat as a lien over licence fee debts."

A Yes.

Q Can you go to the evidence that you've provided, the witness

statement, exhibits, so that's in tab I and it's p.59.

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 MRS JUSTICE ASPLIN: I think that is in bundle G2.

A Oh, is it? Apologies.

MR MOORE: (To the witness) Bundle B2 tab 1 59. This is the email that
you're talking about, and the 141h April email from Lucy Groves - she is the
bottom one in the middle of the page. I'd just like you to point out where
it says there that it was not the Trust's intention to hold the boat as a
lien over licence fee debts. [my bold]

A No, it doesn't.

Q So that statement is not true.

96. A similar distortion of the facts had appeared in paragraph 19, where it is
claimed: It is not disputed that during heated scenes at the Marina, at which
the police were present, Mr Ravenscrofts father offered to pay any arrears
of licence fees and that Mr Garner quoted a ball park figure of 8 - 9,000 odd
which was inclusive of removal and haulage charges together with arrears of
licence fees.

97. This is simply wrong. The video had demonstrated that the offer was made,
yet that was disputed by the Respondent, as seen in the Points Challenged
by CRT attached to her judgment as appendices: 35. Not accepted Mr
Ravenscrofts father made an offer to pay.

98. In paragraph 98 the Judgment claims: there was no offer purely to pay the
storage and removal charges despite the fact that the correspondence reveals
that Mr Ravenscroft was aware of the distinction. That too, is absolutely false
to fact. Mr Moore directly addressed this claim by the Respondent, in closing
submissions. From the transcript of proceedings:

Im making reference to this because I thought I understood Mr Stoner to say

that there wasnt any offer to pay the sum of removal and storage costs, but
on p.54 Mr Ravenscroft sends to Lucy Grey of Shoosmiths this is as Ms
Thomas is no longer acting on my behalf and he says: As weve been
asking for details of this for some weeks now [about the details of bank
transfers, etc.] I do not expect to be billed for any extra weeks of storage and
will arrange to transfer the quoted sum of 6,630 when I know where to

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 send it. And the 6,630 is what he understood to be the removal and storage
costs only, and its following that, of course, the very next day, where the
response comes back and says: Oh, yes, I note. Thank you for your email. In
fact, well return it on 12,676.

99. The Judge also overlooks the damning evidence of the email sent by me to
Shoosmiths saying: I do not accept, with respect to the disputed licence
arrears, that your client has any right to hold the boat as a lien over that debt,
which is something which I believe you, as a solicitor, have to be well aware of
and which you have failed to advise your client of, as is your duty.

100. Quoting their response, Mr Moore made the point: So yet again theyre
noting what he said as to what he is legally obliged to pay and that what
theyre demanding on top of that is wrong, and the solicitors having conferred
with CaRT they are still making that demand. So his position is that it is
absolutely clear that there was nothing inadvertent about it.

101. It seems significant that the years of published policy over using s.8 to
collect arrears has received no attention, and this is dismissed with only a
throw away mention in paragraph 103 I also note the policy which appeared
on the CRT website until recently.

102. More than anything else [together with the exhibited historical evidence
that they followed through on this policy in cases before mine], this public
declaration of many years standing demonstrated that what they have done is
institutional policy and it ought to have received greater acknowledgement
that the website wording was only altered when someone else pointed out that
it contradicted their admissions in this case.

103. Rejection of the application of the 2007 Tribunals, Courts and

Enforcement Act, on the basis that no mention of relevant waterways
legislation is made within Schedule 13 of that Act, is incomprehensible.

104. As none of the relevant waterways legislation provides as argued by

me and accepted by the Judge for use of possession of goods as lien on
debt, then there could never be any reason to amend it in Schedule 13.

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 105. It necessarily follows that use of possession of goods to enforce
payment of arrears outwith the specified parameters of the 2007 Act, is
contrary to that Act. Whether they came by possession of goods in the first
place by legal means or not is irrelevant; it is the withholding of goods when
the law demanded return that engages the forbidden action.

106. Rejection of any offence under the 1977 Torts (Interference with
Goods) Act because the vessel was returned before these proceedings were
commenced, is likewise misplaced. The vessel was only returned upon my
paying under protest the disputed sums, having put them on notice that that
demand as a condition for return, on top of what I had said I would pay for the
removal and storage costs, was unlawful.

107. Returning the boat having successfully extorted the disputed sums as a
price of return, cannot mitigate the offence, let alone make it disappear, or
somehow turn a fait accompli into a legal act.

108. It is a fact pertinent to both the proportionality and lien on debt issues,
that in the parallel proceedings due to be heard later this year, Shoosmiths
filed a skeleton argument wherein they state: On 27 January 2015, the Trust
removed the Boat from the Property pursuant to its statutory powers and
arranged storage of the Boat pending payment of the sums owing to the
Trust by the Appellant, which included the cost of removal and storage of the
boat.

109. Either this demonstrates that the residual feeling that they can flout the
law in this regard is too deep rooted to be readily noticed and corrected, or it
must be regarded as a candid confession of what was done and why, contrary
to all impressions received by the Judge.

Costs

110. In view of the persuasive arguments above as to the Judgment on all or

any of the 3 identified issues, it is only right that costs in the case should await
final determination.

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 111. Even if the balance of issues in the case was found against me, I
submit that an order to pay all costs of the Respondent is disproportionate. It
is inequitable in any event, for my costs in the hearing over my application for
representation to be denied, and for me to even be ordered to pay the costs of
the Respondents failed opposition to that application.

112. It was disingenuous to note that this was not an Order she would
necessarily have made, but that she could do nothing about it.

113. The Judge had in the first place prior to allowing the trial to commence,
expressly urged the parties to attempt resolution in the time out that she gave.
While I was willing to treat, the Respondent could see no way to do so, and
emphasised their wish to have a binding ruling on the matter.

114. Given the oft-stated desire of the Respondent to agree with pursuit of
the main issue through the High Court, despite my willingness from the outset
to rest satisfied with an Order as to Distress and to come away costs free, it
was inconsistent for the Judge not to exercise her discretion in ordering that
the Respondent should bear their own costs of arguing for something they
desired a binding Judgment on, for application to other pending cases.

115. It is submitted that use of costs in such cases to so severely discourage

any legitimate challenge to the extent of the authoritys powers especially
where, as in this case, abusive extension of them is incontrovertible and
admitted is contrary to the aims of the administration of justice.

Summary

116. It is submitted that for any and/or all of the above points, the Judges
findings are unsafe, being founded on misapprehension of the facts, and a
failure to apply essential maxims of construction as apply to private Acts.

Leigh Ravenscroft

c/- The Croft, Moor Lane, East Stoke, Newark, NG23 5QD

Email: midlandlogs@hotmail.com 8 August 2017

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