The Tony Dunkley fiasco - Reneged on the agreement

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?