Change of marina t&c re brokerage

lustyd said:
makes sense but is a risk of course.
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I think I explained that it was, the risk is in the person who hears the case, the basis for bringing it is sound in law. So in embarking on such a course one would need to be committed and have either the backing or wherewithal to take it to appeal.
 
If it's anything like the berth agreements I've seen the fine print is voluminous, so my lines would be hiding in plain sight; you make a valid point, not something to risk if there are no alternative moorings.
 
The basic law is that an unfair term in a contract between a business and a consumer is unenforceable. In England and Wales that now stems from the Consumer Rights Act 2015 which has consolidated and clarified the position in favour of the consumer. (Not sure if Fr Hackett’s case would have been before that?)

It is for the court to determine the fairness or otherwise of particular contract terms and binding precedents are only established by decisions of the Court of Appeal or the UK Supreme Court. I’m not aware of such a precedent on this specific point.

All of which leaves the consumer with the choice of deleting the clause and risking the marina declining to accept your boat or leaving the wording and challenging the point if you want to sell through a different broker.

I was at Berthon for years and was well aware of their contract terms. But they were the obvious broker to use for the boat that I eventually sold through them, so the point didn’t arise for me.
 
benjenbav said:
The basic law is that an unfair term in a contract between a business and a consumer is unenforceable. In England and Wales that now stems from the Consumer Rights Act 2015 which has consolidated and clarified the position in favour of the consumer. (Not sure if Fr Hackett’s case would have been before that?)

It is for the court to determine the fairness or otherwise of particular contract terms and binding precedents are only established by decisions of the Court of Appeal or the UK Supreme Court. I’m not aware of such a precedent on this specific point.

All of which leaves the consumer with the choice of deleting the clause and risking the marina declining to accept your boat or leaving the wording and challenging the point if you want to sell through a different broker.

I was at Berthon for years and was well aware of their contract terms. But they were the obvious broker to use for the boat that I eventually sold through them, so the point didn’t arise for me.
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A small postscript to the above: the world is littered with contracts the proponents of which know contain unfair and unenforceable terms, but they don’t change them bcs most people fall in line and they can settle with those that don’t to avoid setting a precedent.
 
stuartwineberg said:
Our marina chain has just told us it is delighted it is forcing berth holders to use them as sole sale brokers unless you are selling privately. I am not selling but is this legal?
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I wonder if by leaving the EU we have lost some protections around competition, where the consumer was at liberty to use any broker they want. If this has now been lost, then perhaps it is enforceable. I am reminded of new car sales where warranty required an authorised garage to do the servicing. That was kiboshed and anyone could do the servicing providing approved parts and procedures were followed, which then maintained warranty.

Of course it could just be a way of the marina trying to increase its revenue from all potential sources in response to inflation et cetera.
 
RunAgroundHard said:
I wonder if by leaving the EU we have lost some protections around competition, where the consumer was at liberty to use any broker they want. If this has now been lost, then perhaps it is enforceable. I am reminded of new car sales where warranty required an authorised garage to do the servicing. That was kiboshed and anyone could do the servicing providing approved parts and procedures were followed, which then maintained warranty.

Of course it could just be a way of the marina trying to increase its revenue from all potential sources in response to inflation et cetera.
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No change since leaving the EU and such clauses are common in many similar situations such as caravan parks (although not liked and much campaigning to change the law!). Not very often used by marinas in respect of brokerage because few actually own their own brokers, granting concessions to third parties to operate on their sites - in many cases multiple concessions such as Hamble Point which finds it easier too collect rent from others than try and make money out of brokerage. So nothing has been "lost" in a legal sense.
 
benjenbav said:
The basic law is that an unfair term in a contract between a business and a consumer is unenforceable. In England and Wales that now stems from the Consumer Rights Act 2015 which has consolidated and clarified the position in favour of the consumer. (Not sure if Fr Hackett’s case would have been before that?)

It is for the court to determine the fairness or otherwise of particular contract terms and binding precedents are only established by decisions of the Court of Appeal or the UK Supreme Court. I’m not aware of such a precedent on this specific point.

All of which leaves the consumer with the choice of deleting the clause and risking the marina declining to accept your boat or leaving the wording and challenging the point if you want to sell through a different broker.

I was at Berthon for years and was well aware of their contract terms. But they were the obvious broker to use for the boat that I eventually sold through them, so the point didn’t arise for me.
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Yes it was a couple of years before, not sure I like the idea of the court determining what is fair though I prefer the notion of the court applying the law as it stands although perhaps most would as you say supposedly favour the consumer. I don't know if it is still the same but in the past the first route to appeal a SCC decision was open if there had been an incorrect application of the law and was obviously the route to creating president depending on how far it went.
 
RunAgroundHard said:
I wonder if by leaving the EU we have lost some protections around competition, where the consumer was at liberty to use any broker they want. If this has now been lost, then perhaps it is enforceable. I am reminded of new car sales where warranty required an authorised garage to do the servicing. That was kiboshed and anyone could do the servicing providing approved parts and procedures were followed, which then maintained warranty.

Of course it could just be a way of the marina trying to increase its revenue from all potential sources in response to inflation et cetera.
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The restriction used by some marinas to either levy a charge on a sale or to restrict brokerage to themselves has been in place for decades and stems from the days when marinas were boatyards and brokerage and brokers were few and far between and the yard actually did do a service in representing the owner / seller but that has changed and they do not now generally offer any service unless asked and then of course it would be chargeable. Nothing whatsoever to do with the EU or Brexit.
 
Fr J Hackett said:
Yes it was a couple of years before, not sure I like the idea of the court determining what is fair though I prefer the notion of the court applying the law as it stands although perhaps most would as you say supposedly favour the consumer. I don't know if it is still the same but in the past the first route to appeal a SCC decision was open if there had been an incorrect application of the law and was obviously the route to creating president depending on how far it went.
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Without getting too deep into jurisprudence, in the English legal system courts interpret what the law is, but this is generally subject to appeal - until you get to the top of the tree.

This means that, for a case that starts in the High Court and is appealed to the Court of Appeal and then further to the Supreme Court, it’s quite possible that at least four people, each of them with the brains of an archbishop, could be found to have got the law wrong: if, say, a single High Court judge makes a decision that is appealed, that appeal is heard by three CA judges who all agree with the original decision, but it is further appealed and the Supreme Court overturns all of that which came before.

Imho, it works pretty well.

As to the procedure for pursuing a claim of this nature: that was never my sack of spuds, and I can’t comment.
 
benjenbav said:
Without getting too deep into jurisprudence, in the English legal system courts interpret what the law is, but this is generally subject to appeal - until you get to the top of the tree.

This means that, for a case that starts in the High Court and is appealed to the Court of Appeal and then further to the Supreme Court, it’s quite possible that at least four people, each of them with the brains of an archbishop, could be found to have got the law wrong: if, say, a single High Court judge makes a decision that is appealed, that appeal is heard by three CA judges who all agree with the original decision, but it is further appealed and the Supreme Court overturns all of that which came before.

Imho, it works pretty well.

As to the procedure for pursuing a claim of this nature: that was never my sack of spuds, and I can’t comment.
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I have no problem with that it was just that I read your post as the SCC could actually decide perhaps on a whim of whoever was presiding whether a contract was fair or not and there was now no legal definition as to what constitutes an unfair contract. I hope I have got that wrong.
 
Fr J Hackett said:
I have no problem with that it was just that I read your post as the SCC could actually decide perhaps on a whim of whoever was presiding whether a contract was fair or not and there was now no legal definition as to what constitutes an unfair contract. I hope I have got that wrong.
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It’s possible - if, as I think is correct, there is no Supreme Court or Court of Appeal decision on the ‘captive brokerage’ point - that a court of first instance could either hold that the wording was fair or not fair.

Your experience was that the marina operator tried to bully you into quiescence but when you pushed back they didn’t fancy hearing what the court might think about it. But, until the higher courts actually hear a case on the precise issue no-one can guarantee what a lower court will do.
 
benjenbav said:
It’s possible - if, as I think is correct, there is no Supreme Court or Court of Appeal decision on the ‘captive brokerage’ point - that a court of first instance could either hold that the wording was fair or not fair.

Your experience was that the marina operator tried to bully you into quiescence but when you pushed back they didn’t fancy hearing what the court might think about it. But, until the higher courts actually hear a case on the precise issue no-one can guarantee what a lower court will do.
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If I understand you correctly then the change in 2015 is a retrograde step as before that point unfair contract had clear criteria and was well defined. So as in my case which I and a barrister that worked in contract law believed met the laid down criteria of an unfair contract, had the SCC ruled against me I could have appealed on the grounds ( which were the only grounds for appealing an SCC judgement) that the SCC had interpreted the law incorrectly. Of course the first court of appeal would have to have agreed that but nonetheless there was a route to appeal. If that has been removed then indeed it is a bad change.
 
Fr J Hackett said:
If I understand you correctly then the change in 2015 is a retrograde step as before that point unfair contract had clear criteria and was well defined. So as in my case which I and a barrister that worked in contract law believed met the laid down criteria of an unfair contract, had the SCC ruled against me I could have appealed on the grounds ( which were the only grounds for appealing an SCC judgement) that the SCC had interpreted the law incorrectly. Of course the first court of appeal would have to have agreed that but nonetheless there was a route to appeal. If that has been removed then indeed it is a bad change.
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I think I’ve misled you slightly! The law pre-CRA 2015 was not that different. Unfairness in b2c contracts has long been the determinant of unenforceability of same.

CRA is prefaced with the introductory remark that it is “an Act to amend the law relating to the rights of consumers and protection of their interests…” It does add some new measures but also clarifies and consolidates in one place much of what came before. It does refer to fairness but, in detail, deals with unfairness

Where I have not been as clear as I should is in saying that English statutes introduce concepts into relationships such as, for example, that of fairness into b2c contracts. What they don’t do is give an exhaustive list of examples of when a contract is fair or not fair.

Precedents or proven examples are only established by such cases being decided by the higher courts.

If I was a running a marina I could, say, write a contract saying everybody has to give me £100 and a day out on their boat for my birthday every year. Assuming that folk want to park their boats in my (otherwise very desirable) marina, I expect plenty would sign up to this. Imho it’s manifestly unfair and I wouldn’t fancy my chances of persuading a court that it was fair. But it wouldn’t be possible to be 100% certain that a court would call it unfair unless there was a precedent already on exactly that wording.

A real-life example, albeit b2b reached the courts a few years back concerning a common-ish presumption in rent reviews. The Court of Appeal heard four cases together all with slightly different wordings and ruled one (it might’ve been two) to be enforceable and the others unenforceable. In my line of work at the time there was then a great deal of scurrying about to check existing leases to see if they had the enforceable wording or, indeed, whether the point was addressed at all and many future reviews were argued on the basis that that’s enforceable bcs the CA said so, or the opposite.

I think that’s me done on talking about law. Who knew I’d got so much to say. :)
 
I got caught in a catch 22 situation a few years ago. I made an offer, subject to survey, on a boat in the water through a private advert in YM. Straightforward I thought but the marina's brokerage had a block booking for the hoist so I couldn't get a survey unless I paid their extortionate fee.
 
Perhaps someone has taken them down the small claims route as I did with Shotley and the realised that they would lose. I am surprised the various trade bodies haven't signaled this to their members. None of the large marina groups now do this.
 
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