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.

Reneged on the agreement

Although the Trust agreed to this immediately after issuing his new licence, it subsequently reneged on the agreement, and suggested that Tony signed a Consent Order which would leave both the Trust and himself in the situation described above. Tony refused to agree to sign the Consent Order drafted by Shoosmiths, the Trust's solicitors, and the Trust responded by filing an Application Notice in the Court asking for an Order for Discontinuance with 'no order as to costs', a departure from the CPR which can only be ordered by the Court in exceptional circumstances.

CaRT's Application reasoned that by buying a new licence for his boat (when it was due for renewal anyway) Tony had displayed unreasonable conduct and as a result had made their case (Claim) against him 'worthless and academic' and so it could not proceed. This despite the inconvenience and time consuming research Tony Dunkley, a layman without legal training has been subjected to, with the time taken to research the law to enable him to mount an effective defence, well in excess of 200 hours.

Hostility

CaRT's Application Notice asked for the matter to be decided without a hearing, but this was rejected by a Judge and a hearing ordered for 24th November 2014. At the commencement of the Hearing to determine whether CaRT's attempt to avoid the liability for the Defendants' costs as laid down in CPR Part 38 Discontinuance was to succeed, Tony Dunkley, a boater whose life has been so needlessly disrupted by the actions of CaRT was subjected to what appeared to be some hostility from yet another different Judge, the fourth one now since commencement of proceedings, and I had the distinct feeling that it was thought that he was seeking only to take advantage of the situation to make money.

In the reality however, whilst following the time consuming inconvenience he felt recompense was in order, the major reason for his having insisted upon CaRT going down the route of discontinuance was that, should he continued to be hounded following the collapse of CaRT's case, the Trust would need to obtain the permission of the Court before again commencing 'substantially similar' proceedings against him.

Court lost submission

At the outset of the Hearing on the 24th November the Judge announced that Tony's submission to the court was missing, although the court had acknowledged receipt of this in writing. It is hard to believe and begs the question as to why the absence of this necessary submission was noted by the Judge only during, and not before the Hearing? Surely if the case paperwork had been placed before the Judge in advance of the hearing, this should have been noticed earlier?

Now correct me if I'm wrong, but surely it is incumbent upon a judge to assist a Litigant in Person that is after all a layman unable to afford legal representation, something that I certainly did not see happen here. With the Hearing now to be continued on a date to be set, and reserved to the same judge for a three hour Hearing, it seems given the attitude of the judge the Trust may feel quietly confident, not only that costs may not be awarded to Tony Dunkley, but that he could be called upon to pay the costs of this future three hour Hearing. Quite unbelievable!

Considerable sum of money

CaRTs money it seems could yet talk, let us though not forget that the Trust's money to which I refer is obtained from taxpayers, inclusive of those of us that use the waterways, thus is our money required for the upkeep of the navigations. At £200 an hour for the attendance of Shoosmiths solicitor alone, charged out by the day, a considerable sum of money has to date already been misspent for a Trust seeking 'friends' to finance it!

Time I'd have thought for the Trust to take a long hard look at the unworkable and illegal changes it is seeking to make to the effect of the 1995 British Waterways Act that can in the real world only result in further licence paying boaters being unjustifiably and expensively removed from its waters—the cost of the legally unsound enforcement actions it will be pursuing—and to take on board the consequences of those actions in relation to the revenue it so desperately needs! However, at this point an old saying comes to mind here, 'see that pig fly', a saying that had it arisen today could I feel have been coined specifically for our so uncharitable, 'charitable' Trust!

Now it seems we wait to see who 'blinks' first, or should the Hearing go ahead for the court ruling. Best to watch this space?