BW slammed over 'precedent' statement

Published: Wednesday, 04 May 2011

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A SENIOR barrister has confirmed that the statement by British Waterways concerning the Kennet & Avon Canal mooring case is wrong both factually and in law as county court judgements do not create a precedent.

Following non-resolution via British Waterways internal complaints procedure, a complaint has been made to the Waterways Ombudsman concerning a press statement made on 31st May concerning the British Waterways v Davies case, writes Alan Richards.

Press statement

The press statement starts 'British Waterways welcomes today's (31/3/11) Judgement made in Bristol County Court in which His Honour Deputy Judge O'Malley said he favoured British Waterways' interpretation of Section 17 of the British Waterways Act 1995 (relating to continuous cruising). In doing so, the Learned Judge found that the Defendant, Mr Davies (who lives on his boat), had not complied with the requirements of the 1995 Act and that British Waterways was justified in bringing the legal proceedings against him'.

Footnote

However, it was the statement's footnote to editors that has given cause for complaint as it has been reproduced in several publications including narrowboatworld. It reads 'The decision of the Learned Judge in the case of British Waterways v Davies will be binding on lower courts (and District Judges) and persuasive on Circuit Judges throughout England and Wales'.

The complainant has taken legal advice from two experts including a senior barrister who suggests that the statement in question is wrong both factually and in law as county court judgements do not create a precedent.

Legal precedent

Indeed, it seems that expert advice is not really needed to determine that British Waterways' statement is grossly misleading. One legal advice website states: 'The County Court is bound by all decisions of the higher courts, but its own decisions never create precedents'.

You can't make it much clearer than that!

Unjust and unfair

The complainant argues that making such a misleading statement about the law is both unjust and unfair and could have very serious consequences for any boat owners not having home moorings who believe that the judgement creates a legal precedent.

In particular, it could discourage them from exercising their right to defend themselves against Section 8 action or against a threat of having their licence revoked which in turn may result in them losing their home.