Recovery of Costs

John Slee made this Freedom of Information request to British Waterways Board

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear British Waterways,
On page 9 of your General Terms and Conditions for Boat Licences: England and Wales in Schedule 2 Mooring Information / Legal Provisions and General Principles (on-line at http://www.britishwaterways.co.uk/media/...), paragraph 4 states:
"BW’s policy for enforcing time limits is to use its powers under S8(5) of the 1983 BW Act that permits it to move boats that are causing an obstruction. An overstaying boat is causing an obstruction at a mooring since it means that the mooring is not available for other boats to use. If we do need to move the boat, you agree to repay our costs."

Please list all cases where you have made claims for costs against a licence holder where a boat was overstaying at a mooring. For each case, please include the type of court, length of overstay, waterway and mooring and whether or not costs were awarded.

Thanking you in anticipation
Yours faithfully,

John Slee
NABO Council member

Information Request,

Dear Mr Slee,

Thank you for your e-mail of 9th January.

I am pleased to inform you that once we have confirmed the extent to which the regulations permit the release of the information which you have requested a response will be sent within a 20 working day timescale of receipt of your request on 9th January 2012.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
In April 2012 the canals and rivers that British Waterways cares for and maintains in England and Wales will become part of a new charity called the Canal & River Trust.
Want to know more? Go to - www. waterscape.com/findoutmore
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

show quoted sections

Information Request,

Dear Mr Slee,

Following receipt of your request I have been in communication with my colleagues in our enforcement team. We are confused by your request and I wonder whether you would be kind enough to clarify something for us.

In the first part of your correspondence you refer to the part of our Licence Terms and Conditions which states that we can "move" (not remove) a boat from a visitor mooring where it is an obstruction - and in these cases we can charge the boater for our costs incurred, i.e. staff time/if we need another boat to tow etc.

However, the actual wording of your request sounds like you wish to know if we have charged people for overstaying on the visitor moorings and taken them to court to recover costs.

Could you please confirm which of these pieces of information you are interested in. It would also be helpful if you could specify the length of time you would like this information to cover (for example the last 12 months, or for 2011 etc.) so that we are able to comply with the Act.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
In April 2012 the canals and rivers that British Waterways cares for and maintains in England and Wales will become part of a new charity called the Canal & River Trust.
Want to know more? Go to - www. waterscape.com/findoutmore
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

show quoted sections

Dear Ms Young,

I am sorry you and your enforcement colleagues are confused by my request. I hope I can clarify it.

For the purposes of this enquiry, I am solely interested in those cases where you have charged a boater for your costs incurred in moving their boat – where you have considered the boat is causing an obstruction on a mooring by overstaying.

Please list all cases in the past 10 years, including:
the length of overstay;
the waterway and mooring;
where a claim was taken to court, the type of court and whether or not costs were awarded;
and whether or not the charge was paid.

Kind regards
John
NABO Council member

Information Request,

Thank you for your e-mail.

I am out of the office with no access to my e-mails today but I will
respond to you after I return on Monday 23rd January.

Kind regards,
Sarina Young

 

Information Request,

Dear Mr Slee,

Thank you for clarifying this for us. I'm sorry, my request for clarification probably sounds quite pedantic; however, the difference is subtle but very distinct.

We will now review the information that we hold relating to your request and a response will be sent as soon as possible but in any case within 20 working days of your clarification.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
In April 2012 the canals and rivers that British Waterways cares for and maintains in England and Wales will become part of a new charity called the Canal & River Trust.
Want to know more? Go to - www. waterscape.com/findoutmore
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

show quoted sections

Information Request,

Dear Mr Slee,

Following the clarification of your request I am pleased to be able to respond to your request:

"I am solely interested in those cases where you have charged a boater for your costs incurred in moving their boat – where you have considered the boat is causing an obstruction on a mooring by overstaying."

I can confirm that British Waterways has not made any charges to boat owners for moving their boats where we believe the boat to be causing an obstruction by overstaying on a mooring since November 2009.

Information on these charges before November 2009 was not held centrally but locally, at each waterway, in addition to this there were no standard methods of recording or storing and such charges; therefore the cost of locating, retrieving and extracting all such information will far exceed the appropriate limit provided for under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. Where the cost of compliance exceeds the appropriate limit (£450) BW is relieved of its obligation to comply with the request (s.12(1) Freedom of Information Act 2000).

If we haven’t reasonably met your expectations in relation to a request for information or you believe we may not have acted in accordance with the above legislation you should write in the first instance to Kelly Radley Head of Customer Relations, 64 Clarendon Road, Watford, Herts WD17 1DA outlining your concerns and asking for a review to be undertaken. Your correspondence will be acknowledged and a review of your case will be undertaken by one of British Waterways’ directors.

Should you remain unsatisfied by the response you receive you are able to contact the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF www.ico.gov.uk/Global/contact_us.aspx.

Kind regards,

Sarina Young
Customer Service Co-Ordinator
British Waterways  |  The Kiln  |  Mather Road  |  Newark  |  NG24 1FB  | Tel:  01636 675740 | Mob:  07785 295 274 | Fax:  01636 705584 |
In April 2012 the canals and rivers that British Waterways cares for and maintains in England and Wales will become part of a new charity called the Canal & River Trust.
Want to know more? Go to - www. waterscape.com/findoutmore
Follow the BW Customer Service team on Twitter at http://twitter.com/BWCustServ 

show quoted sections

Dear Sarina,

Thank you for your reply which is very helpful.

Yours sincerely,

John Slee

Andrew Denny left an annotation ()

John, what was your point in asking the question? Surely it's a 'We reserve the right' sort of question that's always put in legal documents, but one doesn't necessarily expect it to be used.

P Smith left an annotation ()

BW states in its licence conditions that it can recover costs if it moves a boat under s.8(5) of the 1983 British Waterways Act.

However, BW does not have the power to recover costs incurred in moving boats under s.8(5). It only has the power to recover costs when it removes boats under s.8(2) of the 1983 Act; this is the provision to remove sunk, stranded, abandoned boats or boats moored without lawful authority.

Therefore the licence condition that states BW may recover costs of moving boats under s.8(5) is unlawful.

Nigel Moore left an annotation ()

It is unfortunate that you amended your original question to limit it to cases post 2002, although the answer would have been the same – that they couldn’t give you details of anything prior to 2009

The answer purports to “confirm that British Waterways has not made any charges to boat owners for moving their boats where we believe the boat to be causing an obstruction by overstaying on a mooring since November 2009.”

That may or may not be true, but they certainly have ready access to at least one pre-November 2009 case, when they attempted [in 2001] to enforce against a boater for such charges on two counts in the Birmingham County Court. The Court ruled against them, stating that they were not entitled under the relevant statute to do so.

The case was Taylor v British Waterways Board, Case No: BM013306, heard on Tuesday 24 April 2001.

An intial 4 day overstay charge on a 24 hour mooring had been made, and paid. The boater continued to stay on the mooring, remained despite being warned off, and was eventually simply moved away as an obstruction. It isn’t recorded in the judgment what period he had stayed at the mooring beyond the initial 4 days for which he had paid the fine. He was warned against returning within 14 days, but did so anyway within 4 days. The boat was once again moved away as an obstruction, after another unspecified period.

The judgment does not specify the waterways or mooring, beyond the fact that it was billed as a 24 hour visitor mooring.

The judgment on costs I do not have, but Mr Taylor was awarded £200.000 in damages for the separate but allied claim he had made for breach of contract.

The moving charges for the two occasions were not paid, because the judge ruled that BW could not legally sustain their claim to make them; it was contrary to statute and therefore ultra vires. They were entitled to move the boat on both occasions as an obstruction under s.8(5) powers, but that only removal under s.8(2) could incur legitimate recoverable costs.

On the supposition that this was the only case and that they simply “overlooked” it, there are still questions unanswered from your request which I cannot supply. Knowing of at least this overlooked case, you could now ask what the specific lengths of time of each overstay were; what the waterway and mooring was, and to whom costs in the case were awarded, if any.