Month: February 2014

Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

                       

Continues from Mr Dickenson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm).

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

Carol Kane takes the witness stand
District Judge Woodburn asked if there were other witnesses? To the defendants Mrs Kane and Mrs Woodley he said that the situation was that a notice was served and the notice had provisions as to who could give evidence.

Mrs Kane approached the witness stand and said, “I swear by Almighty God to tell the truth, the whole truth, and nothing but the truth”. District Judge Woodburn asked her to keep her voice up as it was being recorded. He said she had a soft voice so it may be best to move closer to the microphone. He asked her for her name. Her reply was “Caroline Lynn Kane”. She was asked for her address by District Judge Woodburn, she replied “8 Cranbourne Avenue, Moreton”. District Judge Woodburn asked if she was at the same address as in the lease dated 2008 to which she answered “yes”.

District Judge Woodburn asked her if she’d entered into a lease with the other defendant Mrs Woodley with Wirral Borough Council in relation to just over ten acres of land in Sandbrook Lane dated 29th July 2008? Mrs Kane answered “yes”. District Judge Woodburn asked how long the lease was for? Mrs Kane answered “three years”.

District Judge Woodburn said that that covered the period 1st June 2008 to the 31st May 2011, but what happened after May 2011? Mrs Kane said that she had phoned David Dickenson and told him that they hadn’t heard from Wirral Borough Council for three years and that the lease was up for renewal. She had told him that she’d been told that she’d be “hearing from [Wirral Council] soon” and that from 1998 to 2008 they’d had the same lease so she thought Wirral Council had “forgotten about us again”.

District Judge Woodburn said that that was about May 2011 and asked her when she next heard from Wirral Council? She answered that the next time they heard from Wirral Council was in November 2012. District Judge Woodburn asked her what happened in November 2012? Mrs Kane answered that they received a notice ending the lease but saying that Wirral Council were willing to renew the lease.

District Judge Woodburn asked her what had happened when they had received a notice like this before? Mrs Kane replied that every time (prior to this) the lease was up for renewal that they had got a new one. District Judge Woodburn asked what happened on previous occasions. Mrs Kane replied that the rent had been increased and the legal fees. District Judge Woodburn asked what happened when she received the notice? Mrs Kane said she got in touch with Wirral Council as they wanted to renew. She added that they’d had a lease for forty years and that she signed and sent back the new lease along with proof of their public liability insurance cover. District Judge Woodburn asked who had asked for it? Mrs Kane replied that Wirral Council had said that they needed proof of public liability insurance so she had sent them proof.

District Judge Woodburn asked after the lease came to an end did Wirral Council ask for proof of public liability insurance? Mrs Kane answered yes in a letter she was sent. District Judge Woodburn asked her if Wirral Council asked after May 2011, Mrs Kane answered yes in 2012. District Judge Woodburn asked if she had got the letters with her? Mrs Kane said that the letter said to renew the lease that they were to send proof of the public liability insurance with the signed lease.

District Judge Woodburn asked was this in the period after May 2011 and did she have the documents with her? Mrs Kane said she had got proof of posting of the lease back to Wirral Council and that it said in the papers that were sent by recorded delivery.

District Judge Woodburn asked if she was referring to the letter Wirral Council had written to her with a draft lease? She answered yes. Sarah O’Brien, barrister for Wirral Council said that there was no evidence of that. District Judge Woodburn told Sarah O’Brien to wait. Mrs Kane said that Wirral Council did send a letter with the notice to quit which said that Wirral Council were not averse to renewing the lease and to get in touch with David Dickenson. The terms of the new lease were sent with the letter.

District Judge Woodburn directed people to the notices in the bundle he had. Mrs Kane agreed with District Judge Woodburn. District Judge Woodburn directed people to paragraph 3 that stated “I am not opposed to granting you a new tenancy. You will find my proposals for the new tenancy, which we can discuss, in the Schedule to this notice.” and paragraph 4 which stated “If we cannot agree on all the terms of a new tenancy, either you or I may ask the court to order the grant of a new tenancy and settle the terms on which we agree.” He asked if Mrs Kane could see paragraphs three and four? She answered yes.

District Judge Woodburn pointed out that paragraph four stated that if there wasn’t agreement then either the landlord or tenant could ask the court. Mrs Kane said she had told David Dickenson that they would pay Wirral Council for the lease. District Judge Woodburn asked how she had told David Dickenson this, by telephone? She answered yes.

District Judge Woodburn asked her if she had told him by letter? She replied that there was a handwritten letter regarding Wirral Council’s costs. He asked where it was in the bundle to which Sarah O’Brien, barrister for Wirral Council replied page 35.

District Judge Woodburn asked Mrs Kane if she was referring to the letter dated Wednesday April 17th 2013? She said yes. District Judge Woodburn referred to the letter that stated they had had a bad year and were disagreeing with the terms of the lease, therefore she would be grateful if they could look at the expenses that they had had to pay out regarding the upkeep of the land. He said it didn’t look like the lease had been sent back on the terms offered.

Continues at Mrs Kane faces questions from Sarah O’Brien (barrister) and District Judge Woodburn in Wirral Council v Kane and Woodley (Fernbank Farm).

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Was the eviction notice lawful in Wirral Council v Kane and Woodley (Fernbank Farm)?

Was the eviction notice lawful in Wirral Council v Kane and Woodley (Fernbank Farm)?

Was the eviction notice lawful in Wirral Council v Kane and Woodley (Fernbank Farm)?

                       

There are a lot of references in this case to the eviction notices served on the defendants and the regulations about the notices. These regulations are the The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004.

Schedule 1 of those regulations detail two forms which are relevant to this and the purposes for which they are to be used.

Form number 1 is for “ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).”

Form number 2 is for “ending a tenancy to which Part 2 of the Act applies, where—
(a) the landlord is opposed to the grant of a new tenancy (notice under section 25 of the Act); and
(b) the tenant is not entitled under the 1967 Act to buy the freehold or an extended lease..

Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 states “3. The form with the number shown in column (1) of Schedule 1 to these Regulations is prescribed for use for the purpose shown in the corresponding entry in column (2) of that Schedule.”

In other words, if Wirral Council was opposed to renewing the tenancy when the eviction notices were served on the defendants Mrs Kane and Mrs Woodley, they should’ve used form 2 but instead used form 1, which seems to be a breach of regulation 3 of the The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004. District Judge Woodburn did ask Wirral Council to supply him with a copy of the regulations (The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004) during the trial, but instead was supplied with a copy of the form 1.

Wirral Council used form 1 (a copy of form 1 which is included in the regulations is below).

SCHEDULE 2

PRESCRIBED FORMS

Regulation 2(2)

Form 1

LANDLORD’S NOTICE ENDING A BUSINESS TENANCY WITH PROPOSALS FOR A NEW ONE

Section 25 of the Landlord and Tenant Act 1954

IMPORTANT NOTE FOR THE LANDLORD: If you are willing to grant a new tenancy, complete this form and send it to the tenant. If you wish to oppose the grant of a new tenancy, use form 2 in Schedule 2 to the Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 or, where the tenant may be entitled to acquire the freehold or an extended lease, form 7 in that Schedule, instead of this form.

To: (insert name and address of tenant)
From: (insert name and address of landlord

1. This notice applies to the following property: (insert address or description of property)
2. I am giving you notice under section 25 of the Landlord and Tenant Act 1954 to end your tenancy on insert date.
3. I am not opposed to granting you a new tenancy. You will find my proposals for the new tenancy, which we can discuss, in the Schedule to this notice.
4. If we cannot agree on all the terms of a new tenancy, either you or I may ask the court to order the grant of a new tenancy and settle the terms on which we agree.
5. If you wish to ask the court for a new tenancy you must do so by the date in paragraph 2, unless we agree in writing to a later date and do so before the date in paragraph 2.
6. Please send all correspondence about this notice to:
Name:
Address:
Signed:
Date:

*[Landlord] *[On behalf of the landlord] *[Mortgagee] *[On behalf of the mortgagee]
*(delete if inapplicable)

SCHEDULE

LANDLORD’S PROPOSALS FOR A NEW TENANCY

(attach or insert proposed terms of the new tenancy

IMPORTANT NOTE FOR THE TENANT

This Notice is intended to bring your tenancy to an end. If you want to continue to occupy your property after the date in paragraph 2 you must act quickly. If you are in any doubt about the action that you should take, get advice immediately from a solicitor or a surveyor.

The landlord is prepared to offer you a new tenancy and has set out proposed terms in the Schedule to this notice. You are not bound to accept these terms. They are merely suggestions as a basis for negotiation. In the event of disagreement, ultimately the court would settle the terms of the new tenancy.

It would be wise to seek professional advice before agreeing to accept the landlord’s terms or putting forward your own proposals.

Notes

The sections mentioned below are sections of the Landlord and Tenant Act 1954, as amended, (most recently by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003).

Ending of tenancy and grant of a new tenancy

This notice is intended to bring your tenancy to an end on the date given in paragraph 2. Section 25 contains rules about the date that the landlord can put in that paragraph.

However, your landlord is prepared to offer you a new tenancy and has set out proposals for it in the Schedule to this notice (section 25(8)). You are not obliged to accept these proposals and may put forward your own.

If you and your landlord are unable to agree terms either one of you may apply to the court. You may not apply to the court if your landlord has already done so (section 24(2A)). If you wish to apply to the court you must do so by the date in paragraph 2 of this notice, unless you and your landlord have agreed in writing to extend the deadline (sections 29A and 29B).

The court will settle the rent and other terms of the new tenancy or those on which you and your landlord cannot agree (sections 34 and 35). If you apply to the court your tenancy will continue after the date shown in paragraph 2 of this notice while your application is being considered (section 24).

If you are in any doubt about what action you should take, get advice immediately from a solicitor or surveyor.

Negotiating a new tenancy

Most tenancies are renewed by negotiation. You and your landlord may agree in writing to extend the deadline for making an application to the court while negotiations continue. Either you or your landlord can ask the court to fix the rent you have to pay while the tenancy continues (section 24A to 24D).

You may only stay in the property after the date in paragraph 2 (or if we have agreed in writing to a later date, that date), if by then you or the landlord has asked the court to order the grant of a new tenancy.

If you do try to agree a new tenancy with your landlord remember

  • that your present tenancy will not continue after the date in paragraph 2 of this notice without the agreement in writing mentioned above, unless you have applied to the court or your landlord has done so, and
  • that you will lose your right to apply to the court once the deadline in paragraph 2 of this notice has passed, unless there is a written agreement extending the deadline.

Validity of this notice

The landlord who has given this notice may not be the landlord to whom you pay your rent (sections 44 and 67). This does not necessarily mean that the notice is invalid.

If you have any doubts about whether this notice is invalid, get advice immediately from a solicitor or a surveyor.

Further information

An explanation of the main points to consider when reviewing or ending a business tenancy, “Renewing and Ending Business Leases: A Guide for Tenants and Landlords”, can be found at www.odpm.gov.uk . Printed copies of the explanation, but not of this form, are available from 1st June 2004 from Free Literature, PO Box 236, Wetherby, West Yorkshire, LS23 7NB (0870 1226 236).

At this point I will quote from my blog about not only the hearing recently, but the one in November 2013.

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

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

“Where are the regulations?
Sarah O’Brien, counsel for Wirral Council asked what the issues were likely to be? District Judge Woodburn asked her if she had a copy of the regulations relating to s.25 of the Landlord and Tenant Act 1954 c.56?

Sarah O’Brien asked the Judge for the validity of his request? He said that Wirral Council were asserting compliance in their claim. Sarah O’Brien said something and the Judge replied that Wirral Council still had to prove their claim. Sarah O’Brien, counsel for Wirral Council said that there was “never any assertion that the notices were invalid or not served”. District Judge Woodburn said it was for Wirral Council to prove the notices were valid.

Sarah O’Brien, counsel for Wirral Council said that “if it is an issue we can get a copy”. District Judge Woodburn said that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Sarah O’Brien, counsel for Wirral Council said she would ask her solicitor to get a copy. District Judge Woodburn said that subject to that she could start.”

This is a quote from EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm).

“One of the two defendants said that they had not received any correspondence from Wirral Council since July 2012 except for something last August. Deputy District Judge Grosscurth said that he would include in Mr. Dickinson’s statement as it was relevant. He said any documentation has “got to be disclosed” and under the rules of disclosure they had to disclose everything whether it was in favour of their case or not.”

So was using the wrong eviction notice when a law (Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004) states you have to use the correct one isn’t this something Wirral Council should have made the court & defendants aware of? District Judge Woodburn stated that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Was this asserted in Wirral Council’s witness statement or in their claim? If so who signed the statement of truth to this assertion?

Was there confusion as to whether District Judge Woodburn asked for a copy of the regulations or the notice (my notes clearly state he asked for a copy of the regulations)? A blank notice (form 1) was supplied by Sarah O’Brien to District Judge Woodburn but as far as I know not the regulations. Whoever went away from Wirral Council to get it spent a very long time (a few hours) before they returned with (as far as I can ascertain) just a blank notice. Did they read regulation 3 and realise that if they supplied a copy of regulation 3 to District Judge Woodburn he would be likely to rule that Wirral Council served the wrong eviction notice (in breach of regulation 3) on the defendants as that form (form 1) was to be used when the landlord was willing to renew the tenancy whereas Wirral Council should’ve used form 2?

*The above is just my opinion. If anyone wishes to rely on the points made here, I suggest they seek legal advice before doing so. However it does raise a lot of unanswered questions and serious issues about Wirral Council’s conduct during this case. The overriding objective in the Civil Procedure Rules states at 1.1(2) “Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing;” and 1.3 “The parties are required to help the court to further the overriding objective.” If a Wirral Council employee (or a solicitor acting for them) at that trial was aware (or suspected) that the eviction notices were in breach of regulation 3, whoever it was didn’t tell Sarah O’Brien, District Judge Woodburn or the defendants (probably because if they’d done so Wirral Council may have lost their case for a possession order and if District Judge Woodburn found that the eviction notice was invalid because it was the wrong one (in breach of regulation 3) it’s likely he wouldn’t have granted the possession order). Section 52 of the Civil Procedure Rules deals with appeals, however permission to appeal would have to first be requested from either the Birkenhead County Court or the civil division of the Court of Appeal within 21 days of the date of the decision (which is a deadline of the 6th March 2014) and permission to appeal served on the Claimant (Wirral Council) within 7 days after having been served on the court.

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Mr Dickenson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

Mr Dickenson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

Mr Dickinson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm)

             

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

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

David Dickenson (Wirral Council’s witness)
One of the defendants asked David Dickenson when Wirral Council voted to change their policy? David Dickenson said he didn’t know as it was a “planning matter”. However he stated that it was October time when it came into force. District Judge Woodburn asked David Dickenson which year he was referring to, he replied “October 2012”.

A defendant asked why David Dickenson had tried to deceive and who gave him authority to do so? David Dickenson replied that he had been instructed by the Asset Manager. District Judge Woodburn said to David Dickenson that he thought he was a manager. David Dickenson replied that he worked in asset management as a surveyor. District Judge Woodburn asked if Tony Simpson had agreed to the notice? David Dickenson answered yes but also with the legal department.

Only following orders
A defendant asked why the lease was terminated before the policy was changed? David Dickenson replied that that was what he was instructed to do. District Judge Woodburn pointed out that he [Mr. Dickenson] had already gone through that and that David Dickenson had been instructed to do so by Tony Simpson.

The defendant said that if councillors hadn’t agreed the change in policy David Dickenson wasn’t authorised to do so. David Dickenson just replied that that wasn’t a landlord/tenant issue. District Judge Woodburn said to David Dickenson “let me decide”. The defendant said that the emails about the change back it up with details.

Stopped from paying the rent
She said going to not paying the rent, there were letters about how to stop Fernbank Farm paying the rent, they were told they could stay but the account number was changed so that Wirral Council would not accept the rent. The rent had been paid on the first of each month but their payments were returned.

David Dickenson replied that he had not changed anything to do with it, but when the lease ended on the 31st May Wirral Council were not accepting any payment so the Finance Department closed the account. The defendant said she had got copies of emails and knew councillors had not changed the policy when the lease was terminated. District Judge Woodburn said that she was straying into different areas. He said there was a change of policy, however the notice was sent out before the change. He asked that her questions to the witness were ones that the witness could reasonably respond to.

Wirral Council ignore a terminally ill woman
The defendant said that emails were sent to the court, but when the bundle (prepared by Wirral Council) came back that the emails were all removed from the bundle. She said that not accepting rent after the 31st May was to try to stop them from renewing the lease. District Judge Woodburn asked if she had any more questions? She asked David Dickenson why he had gone out of his way not to renew a protected lease? He answered that she knew the answers why he didn’t return her calls and referred to the change of policy. The defendant said that that was before the lease ran out which was only on the 31st May. She said to the witness David Dickenson, “Did I not speak to you and say I was going to hospital for radium treatment regarding a tumour?”

Wirral Council’s witness describes defendant with cancer as being “unwell”
David Dickenson replied that he didn’t know the details, but he knew she was unwell. The defendant said she had wanted the lease sorted out before her treatment and didn’t David Dickenson say he’d “see to it”? David Dickenson denied that he’d said that.

The defendant said that in negotiations on the previous lease that Wirral Council wanted a 2.5% rise and £300 in legal fees to Wirral Council. She had written a letter detailing how the defendants had covered the costs of repairs caused by storm damage and the letter was asking if there was any way to reduce the legal fees. She said that the letter also stated if Wirral Council couldn’t do anything then it requested that they send it back to her. David Dickenson just stated that he hadn’t said to her not to apply (to the court). District Judge Woodburn asked if she had more questions?

The missing email
The defendant referred to an email from Mrs Carmen to David Dickenson. She said that this email referred to the defendant wanting a record of the decision not to renew the lease. David Dickenson referred to the bundle. The defendant said there was some documents that were missing that were incriminating. District Judge Woodburn said that she may be missing the point of the hearing.

He asked a question to David Dickenson to which he answered no. District Judge Woodburn thanked David Dickenson. Before he left District Judge Woodburn referred to the change of policy in October 2012 and queried as to whether this changed the terms of the notice that had gone out as the notice said that Wirral Council wouldn’t oppose renewing the lease?

Squaring the circle
David Dickenson replied that it was to do with planning policy and again referred to his line manager. District Judge Woodburn asked if his instructions weren’t contrary to the terms of the notice? David Dickenson agreed that his instructions were contrary to the notice. District Judge Woodburn asked him how he squared the circle and dealt with the lease renewal?

Mr. Dickenson said that if it went past the 31st May and the defendants had not applied to the court or agreed a lease then Wirral Council had more options for the land. District Judge Woodburn asked what happened after October? David Dickenson replied that “plans changed”. District Judge Woodburn asked if the position was to serve the notices and see if an application was made?

David Dickenson said that in November he had made enquiries and again referred to his manager. District Judge Woodburn asked how that would be put into effect if the defendants had applied for a new lease? Mr Dickenson said that if the defendants had applied to the court, Wirral Council would have had to do nothing, but that there had been no discussions on that matter.

David Dickenson was told to keep his mouth shut so that Wirral Council would get a “windfall”
District Judge Woodburn referred to the policy from October 2012. David Dickenson replied to his comment. District Judge Woodburn asked if David Dickenson had been told not to engage in discussions with the defendants between November 2012 and May 2013? David Dickenson replied yes and that he was told not to agree to new terms. District Judge Woodburn asked if he was told not to engage in discussions? David Dickenson replied yes, but that he had to answer the phone. District Judge Woodburn said that if nothing happened by May 2013 then Wirral Council would get a windfall?

David Dickenson replied a potential windfall as no decision had been made what to do. District Judge Woodburn said that the policy changed and David Dickenson received instructions, therefore there would’ve been a windfall. He thanked David Dickenson.

Continues at Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm).

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

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

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

             

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

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

The notices
District Judge Woodburn asked people to go to page twenty-two in the bundle and either page eighteen or twenty-two with the page numbering being in the bottom right hand corner. Sarah O’Brien, barrister for Wirral Council pointed out that it was in the second section. District Judge Woodburn asked one of the two defendants to read the top line. She replied “landlord notice”. He asked the two defendants if they had both received a notice? One of the defendants replied “no just myself”. District Judge Woodburn said he’d have to hear evidence over who received the notice.

Sarah O’Brien, barrister for Wirral Council said that recorded delivery receipts for the notices were in the bundle. District Judge Woodburn said it would still have to be proven. He asked how long they would be waiting for the notice? Sarah O’Brien, barrister for Wirral Council said that she’d ask her solicitor to pop outside and find out. District Judge Woodburn said there was no point starting before they had all the evidence. He said that Carol Kane said that she had received a copy and asked her if she’d read it?

Bill Norman’s letter
Carol Kane confirmed that she’d read it and said that the same day she had also received a letter from the Town Hall from Bill Norman, Head of Law which asked her to enter into negotiating fresh terms. District Judge Woodburn asked a further question to which Carol Kane replied with no and added that she started negotiating with David Dickenson. District Judge Woodburn said he would come back to that evidence. He referred to evidence of the delay of David Dickenson and that it was now 11.20 am, he didn’t know how long Wirral Council’s enquiries would be.

David Dickenson from Dickinson's Real Deal
Wirral Council’s witness wasn’t David Dickinson from Dickinson’s Real Deal and not once used phrases like “cheap as chips” but instead was an asset management surveyor working for Wirral Council

David Dickenson
Sarah O’Brien, barrister for Wirral Council referred to the legal validity of the note. She said that David Dickenson was there and that she’d sent someone else out. District Judge Woodburn said “let’s hear from David Dickenson”. David Dickenson went to the witness stand and said, “I swear by Almighty God to tell the truth, the whole truth, and nothing but the truth.”

District Judge Woodburn thanked him and asked for his full name. He replied “David John Dickenson” and that he was an “asset management surveyor”. District Judge Woodburn asked who he was employed by to which he responded “Wirral Council”.

Sarah O’Brien, barrister for Wirral Council referred to a section in the bundle, District Judge Woodburn asked her for the page number. She replied page twenty-five and that the next page was the witness statement. She asked David Dickenson if he had signed the four page witness statement and whether it was true. To both questions he answered “Yes”. Sarah O’Brien said she had no additional questions.

District Judge Woodburn said that Mrs Kane and Mrs Woodley now had an opportunity to put any questions to David Dickenson about the notice or what Mr. Dickinson did in relation to the notice. He said that the defendant didn’t have to stand up to do so.

Mrs Kane asked Mr. Dickinson if he was aware of the letter from Bill Norman? David Dickenson replied with a question of wasn’t the letter sent with the notice? Carol Kane answered no and pointed out that she had asked him a question. David Dickenson again responded with a question and asked Carol Kane what it referred to? Carol Kane said the letter was sent by recorded delivery and asked her to make contact with a view to negotiating final terms. She asked David Dickenson, “Did I not do this?”

David Dickenson said that he had spoken about the notice with her, however the position had changed as he’d been instructed not to agree a new lease. Carol Kane asked him to confirm that she had spoken with him twice since 2011 to which he answered “yep”. Carol Kane said she had made at least eighteen phone calls to him trying to negotiate a new lease. She referred to what was happening before 31st May.

David Dickenson replied that he’d been instructed by his manager and he was not disputing Carol Kane’s version of events. He said that they “never agreed anything”. Carol Jane asked a question about the lease? David Dickenson replied originally in 2008. Carol Kane said that in 2011 she had not heard from Wirral Council for three years about renewing the lease, however she had been told that someone would “be in touch shortly” about renewing the lease. She asked why Bill Norman had sent her that letter?

Mr. Dickenson said the letter was sent with the section 25 notice and that she was referring to a letter from Wirral Council’s legal department. District Judge Woodburn asked what page number it was? Carol Kane said it was “in that bundle”, District Judge Woodburn instructed Carol Kane to show the letter to Sarah O’Brien. District Judge Woodburn asked if the letter was in the bundle. Sarah O’Brien said that she didn’t believe it was. Carol Kane said that a lot of papers were missing, but the missing papers had been hand delivered to the Town Hall.

District Judge Woodburn asked Carol Kane what she was saying in relation to the letter. Carol Kane answered that the letter basically says that Wirral Council want to renew the lease. District Judge Woodburn said something to David Dickenson. Carol Kane asked David Dickenson why did he ignore her? He replied when the interim housing policy changed he was instructed not to agree a new lease.

Carol Kane referred to letters she had receive from Wirral Council twelve years ago. David Dickenson replied that the letters were not from him. She again referred to the letter from twelve years ago. Mrs Kane asked David Dickenson why he had ignored her phone calls up to the end of April. She said that she had had to go into hospital and wanted it finished before the 31st May, she had emailed him about the 31st May. David Dickenson replied briefly to her.

Mrs Kane said that David Dickenson had told her “not to worry” as she had had to go into hospital for radium treatment. David Dickenson repeated that no further lease had been agreed. Carol Kane said that the lease had been signed and witnessed along with a copy of public liability insurance for £410 and all this had been sent to Wirral Council. She said that she had asked for David Dickenson eighteen or nineteen times and had spoken to a Mrs Carman who had told her that papers were missing. She asked a further question to David Dickenson about renewal of the lease.

David Dickenson replied “no lease was sent out”. Carol Kane said that it was in the bundle. David Dickenson replied that this was the lease from 2008. District Judge Woodburn asked if it was from 2008? Carol Kane replied that it had been the same lease for forty years and that since the start of the original lease a hedge had grown to eighteen feet high. District Judge Woodburn said she could return to her questions to David Dickenson before he gave an opportunity for Mrs Woodley to ask questions.

Carol Kane asked David Dickenson why he didn’t answer her phone calls? He answered that he had been told not to renew the lease. She asked why he had been ignoring her since the October before? David Dickenson referred to the interim planning policy and that he had been instructed to by his manager Tony Simpson.

Continues at Mr Dickinson only following orders & describes cancer patient as “unwell” in Wirral Council v Kane and Woodley (Fernbank Farm).

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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)

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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