This is only a preliminary contribution. I’m in the Mexican Huautla area, internet coverage is patchy and I’ve not had a chance to discuss the situation with the other members of the Crow group from which Stuart, regrettably, has resigned.
But this is an email I sent out some days ago to the BCA council and the group before going on an underground camp:
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Hello from a very remote Mexican village, which does have satellite internet.
The WG response to the BCA representations is attached. I believe some of you may not have seen it.
I want to make a few points here.
1. For the very first time, the WG is now engaging properly on the substance of the issue - should/does Crow apply to caving. Their response is disappointing. But it does give reasons why they disagree with us. Our job now is to decide: can we challenge them to the point where we would stand a decent chance of winning a further JR?
2. As Richard Buxton states in the appended letter, such a JR would not be clouded by procedural diversions. It would be focused solely on the central issue. To have got to this point, given that the WG spent two years trying to bog us down with exactly such diversions, is an achievement and an opportunity. We can get this thing resolve now, one way or the other.
3. I understand certain individuals have suggested that the fact that the WG is taking this line demonstrates that we should not have settled the original case last year, but fought it out in court. I remind you that we did so after receiving advice from leading counsel that had we done so, there was a strong likelihood that the case would not have even got to the substantive issue at all, and that we would thus have eliminated any chance of recouping any costs. Our QC put our prospects at around 30%. Not great odds. If we had refused the settlement we would have shut down any possibility of the opportunity we do now have of a new case focused on the matter we have always wanted resolved in court.
4. The question therefore is: how far can we undermine the WG response? As some of you know, I am away caving. Tomorrow I start a six day underground camp. But I can chip in when I’m on the surface. I ask those with the requisite knowledge to begin considering what facts and arguments we could now deploy. This is our chance. We should seize it.
David Rose
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I followed this with a further note:
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There is a further point. Stuart and I had a lengthy discussion about the decision to accept the settlement. Much of this is preserved as emails. He reluctantly accepted that because of the restricted way in which the JR process works, we really had no choice.
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This is the reality. We were boxed in by the highly technical nature of the JR a process, and by the obstructive way the WG fought the case for the best part of two years.
However, we now are at a position where we can fight a further case unclouded by any of the procedural issues that bogged the first one down. It would be a straight fight, too, in which we would ask the court two questions: does Crow apply to caving or not? And given that the WG advisory group has already recommended that the Act should be extended to cover horse riders and cyclists, are we being unfairly discriminated against?
Meanwhile, we are still anticipating a substantial costs refund from the first case, so we should be able to begin this from a position of strength.
The WG has, for the first time, set out a bunch of reasons to justify its position. Some are, to me, patently absurd, such as the claims that no one knows exactly where cave entrances are, and that caves are not mapped, so that establishing which caves would come under Crow access provisions would be disproportionately expensive, requiring a vast surveying operation.
We don’t have much time to file a new case: three months from the WG issuing its decision on 1 April (a symbolic date).
The job now is to determine how far their reasons can be exploded, and therefore how good our chances would be.
I have to say I am disappointed by Stuart’s suggestion that we somehow “capitulated” in accepting the first settlement offer, and that the case was abandoned when we had a prospect of winning. In fact, as he should be aware, our QC was very clear that there was a strong likelihood we wouldn’t even be able to get the court to consider the substantive argument over the meaning of the law if we’d rejected the deal, and would have spent several very expensive days in court for no conceivable benefit.