A quick guide to some legal terms used in the last two posts

The last two posts on this blog part 1 can be found here and part 2 here contained some legal terminology that it’s perhaps best to explain here.

possession order A possession order is a court order directing that possession of a property (or piece of land) is given to the owner (usually the claimant).

claimant In a civil case the claimant is the person (or organisation) suing the other party (or parties) who are referred to as the defendants.

defendant In a civil case the defendant is the person/s (or organisation/s) being sued.

defence If a defendant refutes some (or all of the allegations) made by the claimant they can submit a defence. The Civil Procedure Rules (the rules a court and parties to a case follow) has various provisions that relate to defences here.

overriding principles The Civil Procedure Rules contain some “overriding principles”. This is the old way it used to be referred to and in the new version of the Civil Procedure Rules it’s referred to as “overriding objective”. These makes sure the case is dealt with justly and at proportionate cost. For example both parties have to be on an equal footing and the case has to be dealt with by the court that’s proportionate to things like the amount of money involved, the importance of the case, the complexity of the issue, the financial position of each party, ensuring its dealt with fairly and allotting it an appropriate share of the court’s resources. These are set out in detail in part 1 of the Civil Procedure Rules.

statement of truth Many documents filed with the court (and other parties) during the case have to also contain a statement of truth, the list of documents this applies to is set out in part 22 of the Civil Procedure Rules. There’s a form for the statement of truth which is ‘I believe that the facts stated in this witness statement are true.’ for witness statements and ‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’ for other documents. Statements of truth also have to be signed, in the case of a witness statement by the witness making the statement. More detail on statements of truth can be found in practice direction 22.

litigants in person This refers to parties to a case (whether the claimant or defendant) who don’t have legal representation. However they do have “rights of audience”, that is the right to address the court in person.

standard disclosure This relates to part 31.6 of the Civil Procedure Rules detailing which documents have to be disclosed by the parties to a case.

allocation questionnaire Prior to a final hearing, parties used to each fill out a questionnaire answering questions such as how long they expected they needed, whether they were going to rely on expert witnesses, which track the case should be on, whether the pre-action protocols were complied with etc. Allocation questionnaires were abolished as part of legal reforms in April 2013 and replaced with directions questionnaires as well a change in that a court officer now proposes which track the case should be on.

track, small claims, fast track, multi track Each case is allocated to a track. The small claims track deals with things like personal injury claims, tenants seeking an order on their landlords to carry out minor repairs and claims less than £1000 (for example a business suing for an unpaid invoice). The fast track is for larger claims up to the value of £25,000 and can involve expert witnesses. The multi-track is for claims that don’t normally get dealt with as small claims or on the fast track.

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EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 2

Continues from EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 1.

Deputy District Judge Grosscurth said he would include with the witness statements standard disclosure. Wirral Council asked if standard disclosure meant by list with a copy attached? Deputy District Judge Grosscurth asked them to take care with hidden documents.

Cllr Ian Lewis made a point about the missing correspondence. Deputy District Judge Grosscurth said it should still be in the list. Wirral Council said that they should all have a copy.

Deputy District Judge Grosscurth said he wanted to set down how long the final hearing would be, with four witness statements, he suggested three hours. Wirral Council agreed with three hours.

Deputy District Judge Grosscurth started dictating the text of his order, then changed his mind and decided to do it the other way round instead. He said that unless the defendants filed and served a defence, then their existing defence would be struck out and judgement entered for the Claimant (Wirral Council).

Wirral Council sad that they should be entitled to rely on the existing defence. Deputy District Judge Grosscurth said there would be no amended defence unless the defendants filed and served on the Claimant an amended defence by 4pm in twenty-one days? Cllr Ian Lewis agreed with “Yes, Sir.”

Deputy District Judge Grosscurth said if the amended defence was not filed and served by the 12th December then the case would proceed on the basis of the defence already filed and served. For point two in the court order he wanted to move to standard disclosure. He wanted standard disclosure by list with documents attached that were referred to therein filed and served by 4pm on the 12th December.

For point three of his court order he wanted mutual exchange of witness statements by 4pm on a specific date, he pointed out at this point it would have to be well after the 12th December and he’d have to take into account the Christmas period and he suggested the 9th January 2014?

Wirral Council urged the Court to to tighten the timescales a little as the Claimant (Wirral Council) felt it was a relatively straight forward matter that wouldn’t wouldn’t take a great deal of time and could be relatively quick. Wirral Council said regarding the importance of the case it should be dealt with procedurally could the timescales be tightened up?

Deputy District Judge Grosscurth asked Wirral Council what they proposed? Wirral Council answered that they would like the timescales brought forward by a week, with a hearing soon after in the New Year. Cllr Ian Lewis said that to be practical, they wished to stick to the timescale for the first two dates.

Deputy District Judge Grosscurth repeated the timescales of 12th December 2013 and 9th January 2014 with an early listing thereafter. He asked then about the bundle?

Wirral Council said as it was their claim that they would produce a paginated and indexed bundle.

Deputy District Judge Grosscurth repeated and stated that the Claimant would prepare a paginated and indexed bundle in anticipation of the trial of this matter to be filed at court at least seven days before the trial date. He explained to the litigants-in-person that it was a principle that he didn’t want the judge hearing the case to be taken by surprise. A copy bundle would be sent to the defendants and everybody would be served a bundle with numbered pages, served and filed at the court at least seven days before the trial date.

Wirral Council asked about the allocation? Deputy District Judge Grosscurth asked if it was a part 8 claim that had been issued? Wirral Council said they were happy with it being dealt with as a part 8 claim. Deputy District Judge Grosscurth said that would mean it was given an immediate hearing date. He asked what they were looking for?

Wirral Council said in their opinion it was a fast track matter and said they don’t want to proceed with an allocation questionnaire as it would delay with the matter so that could be dispensed with as well.

Cllr Ian Lewis said he had no idea what an allocation questionnaire was. District Judge Grosscurth explained that the options were small claims, multi track or fast track but this was “definitely fast track” as it was not a small claim matter so it would be allocated to the fast track. He said they would be dispensing with the directions questionnaire.

Wirral Council said they would be amalgamated. District Judge Grosscurth said it had been changed in April. Now there was a directions questionnaire and a listing questionnaire and that it would be listed for a final hearing at the next available date after the week to deal with the statements, which was the 16th January 2014. He asked what the estimated length of the final hearing would be?

Wirral Council answered three hours. District Judge Grosscurth said he would change that, as whoever was hearing it on the day needed knowledge of the case. He suggested half an hour of reading time and a two and a half hours for the hearing to split it up.

District Judge Grosscurth asked if there was anything else? Wirral Council said that they “don’t think so” but asked about costs? District Judge Grosscurth said that costs would be sorted out at the end of the day and that there are cost implications which the parties needed to be aware of. He suggested the defendants seek advice from a solicitor or the Citizens Advice Bureau. He made part six of his order about costs in the case and said that the parties knew what they had got to do. Cllr Ian Lewis thanked him, Wirral Council thanked him.

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EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 1

EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm)

I was at Birkenhead County Court for an application hearing in the case of Wirral Borough Council v Kane and Woodley heard in front of Deputy District Judge Grosscurth starting at 3pm.

Kane and Woodley are the defendants in the case where Wirral Council is seeking a possession order for Fernbank Farm. Although the defendants had previously been represented earlier in the case by Kirwans, they were no longer represented by Kirwans and had chosen Cllr Ian Lewis to represent them.

Representing Wirral Council was a man called Ali Noman Bayatti (who is a solicitor working for Wirral Council). I refer to him by the party he was representing (Wirral Council).

In the minutes before the case was heard Wirral Council made an offer to the defendants to agree to a possession order which wouldn’t be implemented for a further eighteen months. However the defendants rejected this offer.

The defendants and Wirral Council went to the Judge’s chambers first for a few minutes. Then the press and some other interested parties (who were not parties to the case but were interested in its outcome) were invited into the Judge’s Chamber.

There were less seats than people so a number of people had to stand. Deputy District Judge Grosscurth started by saying that they were “limited on seats”. Deputy District Judge Grosscurth said he no objections to Cllr Ian Lewis speaking during the case, he asked if the form had been signed? Cllr Ian Lewis said it required the defendants’ signatures. The defendants signed the form. The Deputy District Judge pointed out that Cllr Ian Lewis would speak for both defendants (Kane and Woodley).

Deputy District Judge Grosscurth said that he had a “couple of items to tidy up” which dated back to an order made in September to do with permission to change a defence. Cllr Ian Lewis explained that the defendants had previously been represented by Kirwans but that as costs had spiralled this had led to the defendants dispensing with Kirwans’ services as their legal representative.

Deputy District Judge Grosscurth asked if they intended to submit an amended defence? Cllr Ian Lewis said that their intention was to engage a different solicitor to do so or do it themselves. Deputy District Judge Grosscurth pointed out that they were supposed to file by the 21st August and that it would look like an extension.

Wirral Council said that there had been an application for a further extension to the date for the provision of a defence. Deputy District Judge Grosscurth said he had not seen it. He referred to an order of a different judge and the fact that it should have been filed no later than the 14th October which had now expired. He said that the application to further extend the date for the provision of a defence referred to by Wirral Council was not in the case file.

Wirral Council said, “I might be mistaken” and gave their agreement as long as it didn’t delay things too much. Wirral Council referred to the overriding principles in the Civil Procedure Rules and said that the case needed to move ahead.

Deputy District Judge Grosscurth said he would not alter the draft, but that since the 1st April that the time limits had been tightened up. He pointed out that everybody was deemed to know the law and the rules that guide all cases. He referred to a recent Court of Appeal case and said that the needs of litigants-in-person can be accommodated but that the Court couldn’t rewrite the rule book. He asked if Wirral Council had any further objections. Wirral Council answered “No”.

Deputy District Judge Grosscurth said that he would agree to extending the time for filing an amended defence. His next point was that he gathered the three people present (apart from the press, parties to the case and Cllr Ian Lewis) were users of the stable land but not technically parties to the hearing, just observers. He said to them to appreciate that they had “nothing to do with this matter” as the Council had made an application for possession of the land and it was up to them how they dealt with “your issues”.

Deputy District Judge Grosscurth said that he looking for an “early trial” and asked how long they expected it to take? Wirral Council replied that they had filed a witness statement of a David Dickenson, but that they might add a supplementary statement. Deputy District Judge Grosscurth asked how many witness statements the defendants would be submitting? Cllr Ian Lewis answered, “Three, Sir.”

Deputy District Judge Grosscurth pointed out that the Civil Procedure Rules were on the internet and that the defendants and Cllr Lewis could search for them in Google. He pointed that that the Civil Procedure Rules stated the form that witness statements should take and they needed to also include a statement of truth and that they would have to “look into that”. He asked how much time they would need to get prepared and serve their witness statements?

One of the two defendants asked if they could use the ones prepared by Kirwans? Cllr Ian Lewis answered (to Deputy District Judge Grosscurth’s question) three weeks. Deputy District Judge Grosscurth said that he couldn’t see there being many documents. Wirral Council answered that he didn’t think there were any relevant documents to be disclosed apart from the witness statements.

Deputy District Judge Grosscurth said he they should include in the witness statements anything they wish to rely on. If there was extra information brought up at the final hearing then it would either be ignored or the case would be adjourned (with costs awarded to Wirral Council if the case was deferred because of the defendants). He said he was ever conscious with litigants in person that there were no outstanding issues and that the person hearing the case would “not be ambushed”. Deputy District Judge Grosscurth asked for any documents to be included in the witness statements. He asked if there were any points to be raised?

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. Dickenson’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.

Wirral Council asked for standard disclosure.

Continues at EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 2.

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Cllr Simon Mountney: “Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money”

Continuing from yesterday about last week’s Audit and Risk Management Committee meeting, Cllr Simon Mountney’s further comments start at 24:22 in this video clip and continue in the clip below.

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Cllr Mountney said, “Chair, thank you. Chair your comments about fraud are interesting because I don’t know of one councillor that would not support an employee who followed the procedures, made the decision but got it wrong. I think that’s what happens I hear every day of the week that’s important.

Perhaps they need training, perhaps they need guidance, whatever they need but not one councillor I don’t think has called for that person to be sacked, or fired or disciplined as they have with other council employees in the past and that’s the difference.

Steve you had an analogy about people given legal advice that you found yourself up against all this legal advice. That was probably because you’d done something wrong.”

Cllr Steve Foulkes said “I got divorced.”

Cllr Simon Mountney continued, “Whatever the case may be, it’s difficult to prove a wrong. You can get away with something, you can prove an innocent but you can’t prove a wrongdoing err the main reason you can’t frame people because now people find out about it down the line.

No one’s calling for employees to be dragged out and flogged publicly for making mistakes. That’s not what we’re asking for. Importantly as if you like a director of this company being a councillor, I want to learn the lessons that need to be learnt so that we can improve it.

Now, what we’re not doing is that process. An employee of this Council has just been paid tens of thousands of pounds for something that was done to them. Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money. How can we therefore learn the lessons? We’re not. So page after page after page has been written here to say we did wrong and we’re improving. No we’re not, because we’re not learning the lessons which have been learnt clearly from all these issues because we’re still doing it!

Please somebody tell me that the level of rigour, robustness and due diligence was in force against the payment of that large amount of money recently to a Council employee as is being applied to the Martin Morton issue, because I tell you that is impossible, impossible!? Two years that process has been gone one, two years! He’s been dragged through every last ditch, the man is at the edge and hang on, I haven’t finished, I’ve not said anything that’s wrong.

He’s been dragged through every ditch, he is at the end and yet we can find a large amount of money to pay for an individual in this Council within what appears to be, appears to be weeks. Now that same level of robustness and diligence cannot have been applied to that case as indeed applies to Martin Morton and therefore your comments about I want everyone to be treated the same is not happening in this Council! All these lessons which we’re supposed to have learnt, not one! Thank you.”

Cllr Jim Crabtree (Chair): “Surjit would like to come in.”

Surjit Tour, head of Legal and Member Services said, “I would advise it’s not appropriate for Members to discuss or go into detail about any particular case and I appreciate what Cllr Mountney has said.

What I would say however, I agree with Mr. Morton, he has legal advice, he has a legal adviser and matters are being dealt with through his solicitors.”

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Cllr Simon Mountney “There are major issues happening in this Council that are still being covered up”

Last Thursday as part of the consultation into the future of the Improvement Board, Wirral Council’s Audit and Risk Management Committee met. Whereas all councillors voted in favour of the motion on the report on Wirral Council’s response to critical reports 2010/2013, Cllr Simon Mountney voted against the earlier motion about the Improvement Board Review, this motion contained the phrase “it is clear that Wirral is now an outward looking Authority – open to constructive criticism and willing to address problems when they occur”.

I thought (for those who weren’t at the meeting) it would be interesting to report Cllr Simon Mountney’s comments here as from his comments it’s clear that not all Wirral councillors agree on the way forward. His comments start at 8:56 in the video below.

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Cllr Simon Mountney said, “OK, politically are we ready, perhaps we are today Chair, are we ready post the elections should things change this year or the year after, I’m not sure and I don’t think we’re politically savvy or grown up enough yet to ensure that if that and when that change comes that we are politically grown up enough to make sure that that is the case.

I think there are elements of the Council that perhaps don’t want that to change and whether we are politically grown up enough or savvy enough to make sure that that happens, I’ll reflect on the answer to that.

Strategically are we grown up enough? No, I don’t think we are. This report is historic but clearly it’s about things that have happened, all true. The first point here that says it was the Council that was perceived as having a silo culture and a lack of corporate and strategic thinking.

You know when the Chief Exec sits in front of us and says the last two budgets have been fire fighting budgets because we’ve got other things to think about that demonstrates to me that we haven’t been planning operations strategically, we’ve had too many other things to think about and all we’ve been doing is fire fighting.

So, yes moving forward, we might develop and grow, but historically this document doesn’t reflect what’s happened and I’ll pick one area, FOI requests.

The number of FOI requests that this Council receive, I believe gives a really good indication of how open and transparent and therefore you could use the argument, I would, as to whether good means a Council we are.

There are still major issues that I know of and I’m working very hard to get the evidence and as soon as I do I’ll bring it to you. There are major issues happening in this Council that are still being covered up and you know it’s wrong and I don’t understand why as a Council we persist with that type of attitude and ethos.

This Council is only ashamed of the ethos changes and the culture changes that as yet I see no evidence that that has changed. I’m aware of three or four incidents that should appear in this final second report but don’t and they don’t as yet, because they will, they don’t as yet because they’ve been covered up, they’ve been kept from me!

Now why that is I don’t know, but I will find out and I’ll let people know but based on that alone, this report doesn’t reflect the Council that I currently see.

Yes we are some way down the road, yes we are improving, yes there is improvement and yes there are policies in place and politicians in place that are making a difference but there is some and there is the ethos and culture that persists from where we came from and until that changes I’m afraid this report doesn’t quite reflect the Council that I see.”

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A quick guide to some legal terms used in the last two posts

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EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) Part 2

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EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm)

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Cllr Simon Mountney: “Now I don’t know, I’ve asked, no one will tell me what the issue was that caused that employee to be paid that large amount of money”

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Cllr Simon Mountney “There are major issues happening in this Council that are still being covered up”

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