The Tony Dunkley fiasco

THE case of CaRT v Tony Dunkley has attracted a lot of interest, as so it should have, given it is a case against a boater with a proven home mooring being required to comply with 'continuous cruising' rules, writes Pam Pickett.

Legal action no doubt intended as a warning shot across the bows (or bank account) of us all that, regardless of the fact that some of us have a home mooring, we will all be treated as continuous cruisers when using our boats away from it.

Abuse and exceed the powers

Basically it is a manifestation of CaRT's determination to abuse and exceed the powers given to its predecessors under the 1995 British Waterways Act with regard to whether boaters, having declared a home mooring must use that home mooring and also continuously cruise when away from it, the 1995 BW Act stipulating only the availability of a mooring where the boat may be lawfully and reasonably kept when not in use, as an alternative to continuous cruising.

As a means to achieve this end they are also abusing and misusing other statutory powers under Section 3, for the definition of a houseboat, and Section 13 of the 1971 BW Act, for the removal and destruction of derelict and/or certificated houseboats and Section 8 of the 1983 BW Act, for the removal of abandoned, derelict or unlicenced boats.

Not using home mooring

However, for those new to the case Tony Dunkley's licence was initially revoked by the Trust on the 3rd of January of this year on the grounds that he was not using his home mooring and was also overstaying on a visitor mooring. This was immediately followed by the serving of Section 8 and 13 removal Notices on Tony's boat. That the mooring in question was then proved not to be a visitor mooring, accompanied by an admission from CaRT that he had been moving away after a maximum of 14 days but returning afterwards, didn't however stop the Trust from pursuing the case, rather the reverse. If we can't get you because you are not contravening anything in any Statute, then we'll get you instead under 'what we wish was laid down' in the 1995 BW Act while choosing to ignore the parts of it that are inconvenient for us.

The long and short of this case is that the Trust refused to believe that Tony Dunkley had a home mooring as his boat was in constant use and he preferred to moor in the Holme Lock area on the Trent instead of travelling back to his home mooring all the time. Although Tony cruised to and from this location and didn't stay more than the 14 days permitted (prior of course to his licence being revoked) the distance he covered was deemed by the Trust to be insufficient to comply with its new un-legislated rules.

Injunction

Tony Dunkley was then served with Claim seeking a Court Declaration that the Trust was entitled to remove his boat from its waters, and an Injunction preventing him from bringing it back. The Claim was issued under CaRT and Shoosmiths solicitors' much favoured and generally used, Part 8 of the Civil Procedure Rules, a County Court process intended for use only when there is unlikely to be any disagreement between the parties, hardly likely when the intention is to deprive someone of their home.

The Court papers were served by the Trusts' solicitors on the last day of the 14 day period allowed by the Court for the named party to object to the use of the Part 8 process and file a Defence, and without the necessary information pack that would advise him of the necessity to file a defence with the Court. Had this omission not been noted and no defence been filed with the court CaRT would have had its Declaration and Injunction for the seizure and removal of Tony Dunkley's boat from its waters 'rubber stamped' by the Court.

A boat that is his home. So in summary, the misuse and misrepresentation of powers under three different Acts of Parliament complemented by the late service of incomplete Court papers which could have resulted in a boater losing his property, and home, without ever having the opportunity to present any kind of defence in Court.

CaRT's case in tatters

Moving on however, following additional, previously un-requested proof of Tony Dunkley's home mooring being received by CaRT and the resulting legal obligation for the Trust to then re-licence his boat, CaRT has been left with its case in tatters, a case that it is now proven should never have been brought. This leaving the Trust with no alternative other than to end the proceedings. It is at this point that the case again becomes interesting as Tony Dunkley for obvious reasons was not happy that CaRT sought purely to withdraw in a way that left them free to re-start proceedings at will, and not required to reimburse him for the costs of defending himself against this unwarranted attack, so he insisted upon the Trust adhering to the discontinuance procedure called for in Part 38 Discontinuance of the Civil Procedure Rules (CPR) for County Courts.