NABO slams CaRT's T&C's

FOLLOWING a poor response from Canal & River Trust (CaRT) regarding its intention to make changes to boat licence terms and conditions (Unnecessarily aggressive), the National Association of Boat Owners (NABO) has again written to the Trust condemning it for attempting to force through changes without consultation, writes Allan Richards.

NABO points out that that this is a customer relations issue as well as a legal issue.

Introductory comments

In the introductory comments to its letter, NABO states:

NABO deplores the manner in which CaRT intends to make these changes, which clearly implies a wilful intent to impose changes without formal consultation. This is done while at the same time describing the changes as ‘not reflecting a significant change of policy'. NABO rejects any assertion that the changes are minor. It notes that CaRT has described the changes as ‘intentions', implying that the Trust has decided what it wants to do, and does not want comments. We are invited to contribute ‘if you have any comments you'd like to share with us'. This is not a way to encourage customers.

CaRT would do well to treat boaters as a potential ‘fan club' rather than a contractual inconvenience. The changes adopt an aggressive tone and their nature suggests to NABO that the contract should be considered as unfair. NABO draws CaRT's attention to Terms and Conditions for other navigation authorities, which are short, simple and NABO notes that it has in the past given constructive advice to British Waterways on wording of its Terms and Conditions, and the current approach is a significant change in the relationship. Many NABO members have expressed the view that NABO should, on this occasion, not assist CaRT; it being better to let CaRT discredit itself. NABO has in the past, following detailed discussion, been pleased to publicly endorse the BW/CaRT Terms and Conditions. This is unlikely to be the case on this occasion.

Without formal consultation

NABO notes that CaRT intends to make changes to the Terms and Conditions, without formal consultation in accordance with the Government's Consultation Principles, which CaRT displays on its website. We note that there is nothing, and has been nothing, on the ‘Consultations' page of the CaRT website in relation to this matter. This is without precedent for the changes that CaRT now intends to make. NABO notes that British Waterway has in the past given evidence to County Court(s) to the effect that its Terms and Conditions have been formally consulted on and were widely accepted. NABO places on record that CaRT has not consulted for this intended change and that NABO formally objects to the new Terms and Conditions.

Even at this late stage, NABO recommends that CaRT launches a formal consultation on the intended changes. Such a consultation should give time for full discussion, which would benefit CaRT, as without this it is unlikely to achieve wide acceptance by boaters, and CaRT would be unable to demonstrate acceptance.

NABO has noted the content of the March 2015 Boaters Update and regards this as superficial and failing to address the complex issues raised by the intended changes.

‘Cruising' unworkable

NABO has noted the exchange of correspondence with CaRT's Head of Legal on the requirements for boats with a home mooring to ‘cruise'. NABO rejects these proposals as disproportionate and unworkable. If CaRT cannot manage the issues of bone fide navigation, it will surely fail to manage the intended ‘requirements' for cruising.

NABO also acknowledges the additional information from CaRT's head of customer relations on 26th March and incorporates some further detail in the following. As a general comment we have found the additional information unhelpful.

‘Ultra Vires'

NABO notes that some of the intended changes include new Terms and Conditions, which it is assumed that CaRT intends to justify under the powers of the 1962 British Waterways Act. Such changes should be demonstrably evidence-based and proportionate. CaRT must achieve widespread support from boaters for these to be effective. NABO sees no attempt to achieve any of these needs and it rejects these changes as ‘need not demonstrated'. The text highlighted here and below is used in detailed comments on sections of the Terms and Conditions given at the end of this response.'

NABO notes that the intended changes include apparent amendments to the terms of the 1995 British Waterways Act. NABO believes that these changes exceed CaRT's powers and are ‘Ultra Vires'. The text highlighted here and below is used in detailed comments on sections of the Terms and Conditions given at the end of this response'.

If CaRT requires amendments to the Act, it should commence consultation on a new Act of Parliament. Otherwise CaRT must be silent on these issues. Primary legislation cannot be overwritten by consultation or imposed contracts.

Relationship

NABO believes that the intended changes represent a significant change in the relationship with boaters. The Terms and Conditions are an important part of this relationship and they should be understood by both parties and be reasonable in the circumstances. Purchase of a licence is a routine retail and discretionary activity, and boaters should not need to go to a solicitor for advice before applying. CaRT may intend clever legal wording to take to County Court cases or to bully users, but it is clear that such Terms and Conditions are unfair and unreasonable. It is not reasonable for CaRT to apply such Terms and Conditions to all boaters because it has failed in the past to effectively manage a very limited number of boater compliance cases.

The text highlighted above and below is used in detailed comments on sections of the Terms and Conditions given at the end of this response. NABO notes that CaRT feels it necessary to describe the intended Terms and Conditions with comments in plain English. This confirms to NABO that the Terms and Conditions are written in legalese language that is intended to hide their intention from boaters. The actual Terms and Conditions should be written in words that users can understand, otherwise it is an unfair contract and self-defeating for CaRT. Should CaRT not chose to follow this advice, then the plain English notes should be included in the content of the Contract, so the intention of the terms are clear and binding to all.

Customer relations disaster

NABO reminds CaRT that its boating customers use the inland waterways because of the relaxed lifestyle and limited rules and regulations. Boaters are generally tolerant of compliance and minor misbehaviour and prefer this to over-regulation. So when a new regulation is intended, CaRT will lose support and goodwill unless the need is clearly demonstrated and any unintended consequences are identified and understood. To have in-house lawyers invent Terms and Conditions without consultation is a customer relations disaster and will not achieve the desired outcome.

Getting boaters to sign for Terms and Conditions, (either in ignorance or under duress) and then achieve compliance are two completely separate things. NABO does not support new Terms and Conditions which are not evidence-based and fully consulted on. The text highlighted here and below is used in detailed comments on sections of the Terms and Conditions given at the end of this response.

NABO notes the unreasonable haste with which CaRT wishes to make changes to boater's contracts without attempting to contact them. It also notes the wish to change the Terms and Conditions with one month's notice. This reflects very badly on CaRT's ability to plan and manage the contractual relationship with the bulk of its paying customers. It is NABO's view that there is no credible legal and financial risk to the Trust that justifies this time-frame. The Terms and Conditions should apply to the applicable period from the date of licence application or renewal. Anything else is unreasonable.

Untested after 20 years

NABO has cautioned BW/CaRT many times in the past, and provided BW/CaRT with our legal advice, that Terms and Conditions should be based on the applicable laws. It is not for CaRT to seek Terms and Conditions that conflict with these laws or create additional requirements that are not covered by these laws. As such, CaRT should add a note at the end of the Terms and Conditions to confirm that: ‘A boater's agreement to these Terms and Conditions does not absolve either party from complying with any relevant law or Act of Parliament governing the canals and rivers administered by the Trust.'

Furthermore if CaRT wishes to interpret laws, then it is for the Trust to take prompt action to have these interpretations tested in the courts. NABO deplores the continuing circumstance in which CaRT's interpretation of the 1995 British Waterways Act of ‘navigation bona fide' remains untested in court after 20 years. It follows that CaRT is ill-advised to attempt further interpretations without and full consultation. CaRT has no prospect of defending new proposals in Court.

Full document

A copy of the full twelve page NABO document which includes comments on specific changes can be found here.