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Posted by: John Brace | 15th February 2014

2 notices,1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm)

2 notices,1 attendance note & confusion over witness statements in Wirral Council v Kane and Woodley (Fernbank Farm)

                      

This continues from Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm).

Estoppel defence
Sarah O’Brien, the barrister acting for Wirral Council said that District Judge Woodburn would have to be satisfied as to whether the possession order was precluded by statute but whether the estoppel defence had merit or not was another matter.

District Judge Woodburn said that the estoppel defence constituted reliance and detriment. Sarah O’Brien said that it comprised of representation, reliance and detriment. She said that what was served on the Claimant [Wirral Council] said how it was put. District Judge Woodburn asked if she could summarise?

Sarah O’Brien said that the alleged representation was “too vague” and that it must be sufficiently clear to be relied upon. District Judge Woodburn referred to there being no reply to the amended defence. Sarah O’Brien replied that it was a legal issue rather than a factual issue, the defendants say it was sufficiently clear, however the Claimant [Wirral Council] will say it was not and that on all three hurdles that the proposed estoppel defence fails. She said that it was a claim for possession, simply an order for possession and Wirral Council would not be making a claim for their costs from the defendants.

Landlord and Tenant Act 1954 c.56
District Judge Woodburn said to the defendants Mrs Kane and Mrs Woodley, that it would take us to a lot of technical arguments, both about the original notices and about anything done. He said that the Landlord and Tenant Act 1954 c.56 was quite strict and if things were not done then rights could be lost. He would have to determine if the notices were served in compliance with the Act, if the notices were not in compliance then certain consequences could flow and he’d have to make a determination as to whether they apply.

Witness statements
The argument in the amended defence about a representation made by someone not to worry was a factual issue. District Judge Woodburn continued by saying that who said when and in what context was required in the witness statements which had to be served on the court and Wirral Council by January. No application had been put forward [to change the time limit] so he had to explain the consequences of not filing in time.

One of the defendants asked a question about a witness statement that Wirral Council had. District Judge Woodburn asked when and the defendant answered before November [2013]. District Judge Woodburn asked if the defendant had a copy? The husband of one of the defendants asked if he could speak? District Judge Woodburn politely told him that he couldn’t speak. The same defendant referred to a date of the 4th December and the amended defence. District Judge Woodburn said he had got that. He asked a further question about the statements.

The defendant answered that is was before 9th January, that she had brought it herself and handed it to the office. District Judge Woodburn asked her what she’d handed in, she replied witness statements and all emails, District Judge Woodburn asked a further question to which she answered that the witness statements were three pages long.

District Judge Woodburn asked her if she kept a copy? The defendant held up a document. District Judge Woodburn referred to a document appended to the acknowledgement of service form with a date of the 21st August 2013. However he said there was nothing around December time.

The defendant said that she had taken the papers out of the envelope as she had been told to just give in the papers as they were not able to accept them in the envelope. The other defendant asked if it was the documents in the plastic container, to which the first defendant said “Is that what you meant your honour?” District Judge Woodburn replied that is was an attendance note.

The attendance note
The defendant said that she had had to resend a paper copy out of the folder to the Birkenhead County Court. District Judge Woodburn asked a question about the attendance note. She replied with the name of a person at Kirwans. The Judge said it may be a privileged document as it referred to a spoken conversation, could contain confidential information therefore it was not widely circulated to anyone, but it was a matter whether the defendants wish to rely on it.

Sarah O’Brien, barrister for Wirral Council said she would caution regarding its confidentiality. The defendant said she had sent it to Wirral Council. District Judge Woodburn asked when? She answered before January [2014]. District Judge Woodburn asked if was by post? She answered that it was hand delivered.

The receipt
District Judge Woodburn asked if it was done by Mr. Lewis and if they had got the receipt? He asked them to show the receipt to Miss O’Brien. Sarah O’Brien said she acknowledged the receipt was dated 4th December 2013 for the amended defence therefore she accepted it was received.

District Judge Woodburn said it was not the amended defence and for Sarah O’Brien to pass the receipt back. He said that quite clearly the document may not be required by the court order and the difficulty was regarding the evidence he had to listen to today was that it didn’t look like a witness statement in support of the amended defence.

Witness statements
One of the defendants said that there had been a witness statement. District Judge Woodburn said there had supposed to have been a witness statement and had the defendant not kept a copy? The defendant said it had gone missing. The Judge repeated his question and she answered that it had gone missing and that she hadn’t got any copies.

District Judge Woodburn said the attendance note was not a witness statement, it was a recording of a conversation. He said a witness statement was a formal document, a “document that set out the story” and that it would give far more detail with regards to the assertion. He referred to the witness statement of Mr. Dickenson which set out the kind of document that they were talking about.

One of the defendants asked a question. District Judge Woodburn replied that he would proceed on the basis that they don’t have the document and one was not served in accordance with the rules. Therefore they couldn’t hear evidence in support of the amended defence in support of the assertion “don’t worry” as the detail wasn’t given to the Court or Wirral Council. He could see it in the amended defence, but there was no detail just an outline which may raise the questions such as by whom it was said which can’t be asked or answered by the information within the witness statements.

Notices
District Judge Woodburn said it left the argument about whether the notices were in compliance with the act and whether the notices were responded to as required. He would deal with the responses before the notices, he asked if Sarah O’Brien was still waiting for some to come back?

Sarah O’Brien, barrister for Wirral Council answered, “I am.”

Continues at Notices, Bill Norman’s letter and David Dickenson takes the stand in Wirral Council v Kane and Woodley (Fernbank Farm).

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