The following letter was sent by Scudamores solicitors Pinsent Masons as a response to a council letter. Scudamores have made repeated
claims that they are in favour of competition and far from trying to get the council to eradicate all independent punt operators
they would welcome our continuing operation.
However in the following letter their solicitors make numerous incorrect references to "unlawful freelance punt operators" and urge the council not only to stop us using Jesus Green but also to attempt to claim financial damages from independent punt operators! The leader of the council (Cllr Ian Nimmo-Smith), in the meeting on 8th February 2008 indicated that the use of Jesus Green was merely unauthorised, not unlawful.
For the Attention of Mr T Child / Ms A Slinn
6 February 2008
Dear SirsSCUDAMORE'S PUNTING COMPANY LIMITED - STRATEGY & RESOURCES SCRUTINY COMMITTEE MEETING ON 8 FEBRUARY 2008
We refer to your letter dated 28 January 2008. As agents and solicitors for Scudamore's Punting Company Limited we are instructed to make the following representations in advance of the meeting of the city Council's Strategy & Resources Scrutiny Committee Meeting on 8th February 2008.
We again welcome the opportunity to provide constructive comments on the report for the meeting on 8 February as the content of the report would appear substantially consistent with our client's interests and objectives.
Our client makes the following representations ahead of the meeting on 8th February 2008 on the Report:-
- with respect to paragraph 2.2 of the Report, we request that the city council acknowledges that in resewing its right as landowner to give written consent to third parties to use the Jesus Green river frontage it should give its consent only when acting lawfully and after the proposed use of the Jesus Green river frontage has first obtained all the necessary consents, for example, but not limited to, the appropriate planning consents;
- Paragraph 5.7 makes reference to the Review of the River Mooring Policy but we should like to note that the results of the survey conducted by Phil Back Associates must be interpreted with acknowledgement of the limited responses received. We are not entirely satisfied that the results are representative, but at best are indicative of opinion; and
- with respect to the La Mimosa Landing Bays, you will note that we have written to the city Council on a without prejudice basis and that we are awaiting a substantive response.
with respect to the various letters appended to the Report from individuals who have been trading from Jesus Green without the City Council's licence or consent we can make the following general points:-
- The City Council is not the landowner at Quayside and as such it is, as a matter of fact and law, unable to demand payment of rent from our client;
- We consider that enforcement action must take place before licensing of the La Mimosa Landing Bays is permitted in order to bring to an end (as soon as possible) the unlawful use of city Council owned property;
- we consider that the City Council's proposed enforcement action at Jesus Green should take place immediately, not only to assist the city Council's overall strategy to control punt touting within the city, but also to protect its own position with regard to its exposure to personal injury claims from third parties who are injured whilst participating in the unlawful punt operation from Jesus Green. we are concerned that the city Council's own insurance policy may be vitiated by its failure to take prompt and proportionate action to prevent the unlawful use of Jesus Green by the unlawful "Freelance" Punt Operators; and
- Our client remains willing and able to meet with the city Council's Officers concerned with the responsibility of implementing the city Council's proposed punting strategy.
More generally, we note from reading the various written representations from the unlawful "Freelance" Punt Operators that not one disputes the City Council's findings at paragraph 3.12 of the Report that "Freelance punting companies operate from Jesus green without the permission of the Council...". We can therefore make the following comments:-
- The city Council has the right and duty to take lawful and proportionate action in the public interest to remove the public harm caused by the unlawful "Freelance" Punt Operators in question. As the unlawful "Freelance" Punt Operators have at all material times been operating outside the law they cannot reasonably claim to have any legitimate expectations in respect of any lawful actions taken to regulate their unlawful activities. The unlawful "Freelance" Punt Operators have been given written notice of the city Council's concerns regarding their unlawful behaviour and they must also appreciate that the city Council, as landowner as well as the public body having the responsibility of regulating the position, has a duty to consider how the situation can most effectively be addressed using the legal powers available to it. In the circumstances, our client would suggest that the City Council, in order to achieve the proper, lawful and safe conduct of material activities, and to promote and safe guard public order, has the right and duty in the public interest to take such steps as are necessary to prevent the continuing unlawful use of its own land and in particular the land at Jesus Green. Having regard to all the circumstances, speedy and decisive action is therefore required. Consequently, given the history of the matter, the existing notice to the unlawful "Freelance" Punt Operators, their continuing unlawful user and activities, our client considers that to take the requisite action is an entirely proportionate balance of lawful and necessary ends against lawful and necessary means. At this stage to embark upon a formal consultation exercise with those who have placed themselves outside the law would in our client's view be contrary to the public interest and would risk bringing the process and those operating it into disrepute; and
- The city Council is now in possession of details of the names and addresses of some (if not the majority) of the unlawful "Freelance" Punt Operators who have operated (are operating) from the Jesus Green river frontage without the city Council's licence or consent. We are certain that the period of unlawful use of the Jesus Green river frontage could be cross referenced with details of the dates and number of punt licences issued by the Conservators of the River Cam to the unlawful "Freelance" Punt Operators. We therefore invite the city Council in conjunction with taking enforcement action at Jesus Green, to also take action against the unlawful "Freelance" Punt Operators to recover damages for their unlawful use of the city Council's land. With respect to current (and previous) unlawful use of land at Jesus Green we should refer you to the case of A-G vs Blake (2001) with respect to seeking an account of the profits of parties who have made material gain as a consequence of unlawful conduct.
Please confirm whether the city Council is proposing to seek to reclaim revenue unlawfully obtained by the unlawful "Freelance" Punt Operators.
Please ensure that this letter and our letter dated 16 January 2007 are brought to the attention of the city Council's Strategy B Resources Scrutiny Committee Meeting on 8 February 2008. You will also appreciate that there has been extensive correspondence passing between our respective clients and their advisors for the last 15 or so months. Whilst we accept that it would be inappropriate for the city Council to take account of each and every letter that we have sent to you and the city Council with regard to our client's concerns about the control of touting and the unlawful use of Jesus Green we consider that this letter should be read as embodying the substantive content of our previous correspondence.