Unfortunately, as you well know, it was not as simple as that. The judicial review was primarily raised due to the fact that you, as the representative of caving in Wales, had been excluded from the Access Reform Advisory Group. The secondary point, the grounds for exclusion given, were that CRoW did not apply to caving. Despite lengthy and expensive legal action undertaken on your behalf the primary point continued to prevent the secondary point ever getting in front of a judge. After 80k down, and a lot of diligent work by Dave Rose and the team, all the legal advice was to taken the settlement on offer. You didn't agree with it, you made a big fuss, but pretty much everyone else connected with the case knew it was the only realistic course to take.
The Dartmoor case is a positive sign but it doesn't in itself mean that the caving CRoW case would be won, even in front of the same panel. The BCA group you walked away from are still working on it.
Thank you for this succinct and accurate post, Badlad. For reasons best known to himself, Stuart France continues to criticise the BCA's handling of the judicial review in which he was deeply involved, and which arose from his own exclusion from the Welsh government's Access Reform Advisory Group. For the record: as the case unfolded over a period of almost two years, I kept Stuart and the other members of the BCA CROW working group fully informed on every development at every stage, as I did the BCA executive. I also made regular reports to the BCA Council. When the unequivocal advice came from our very impressive and able QC (as he then was) that for technical, legal reasons we had little choice but to settle the case rather than throw more good money after bad, I immediately sent both his email and one from myself that tried to explain the position in lay terms to all the above. No one challenged that advice, unwelcome as it was. Had we ignored the advice and ploughed ahead, the strong likelihood was that we would have achieved nothing other than a significant increase in what was already an eye-watering legal bill.
Some months later we were were further advised that if we wanted to launch a second JR after the Welsh government had rejected the submissions we made under the settlement's terms, we would likely lose, because the government was arguing that accepting that CROW did apply to caving would have required significant expenditure that would, in its view, be better deployed elsewhere.
I suppose some might find it in some way glorious to fight court battles that end in expensive losses, but the BCA took the view that given we had already spent £80k, this really would have been a Quixotic, pointless mission.
All this was done and dusted by the spring of 2021. I was rather surprised when, the following year, Stuart told a BCA council meeting that I had kept everyone in the dark about the decision to settle the case. I was away caving in a remote village in Mexico at the time, so was unable to defend myself. The email evidence demonstrates beyond any doubt that in fact, as stated above, I kept the working group and exec in the loop at every stage.
My sister, Dinah Rose KC, wrote the legal opinion that underpinned the BCA's decision to go for a JR when the opportunity arose some years later. We had a chat last week about the Dartmoor Court of Appeal ruling. It is, she thinks helpful that the court has issued a judgment that supports the notion that open air recreation can include spending nights inside a tent. However, it concerns a different act of parliament and wouldn't be binding on any future court that might consider caving and CROW. To state that the government position is therefore in "ruins" is, therefore, an exaggeration. For the time being, as discussed at a working group meeting with the BCA chair last week, attempting to persuade individuals who may be part of the next UK government of the merits of our position looks like the best way to make progress.
