Allegations in eviction court case started by Wirral Council were struck out by Judge

Allegations in eviction court case started by Wirral Council were struck out by Judge

Allegations in eviction court case started by Wirral Council were struck out by Judge

                                              

Those with long memories might remember reading a story on this blog a month ago headlined Why did residents endure 11 years of antisocial behaviour from the neighbour from “hell” before Wirral Council took legal action to try to have a tenant evicted? which detailed a legal case where Wirral Council (acting on behalf of Leasowe Community Homes) had tried to have a former Leasowe Community Homes tenant called Danielle New evicted.

Sadly not all the court orders were sent to me. I emailed the Birkenhead County Court on the 13th July (using the email address on their letter) pointing out that a court order dated 9th October 2013 had not been included, only to receive an automated reply stating “The recipient’s e-mail address was not found in the recipient’s e-mail system.”

I tracked down the correct e-mail address, resent the email, but pointed out the incorrect e-mail on the letter. Birkenhead County Court have written to me in a letter received today apologising for the incorrect email address and have pointed out that both the email address and fax number for Birkenhead County Court have recently changed.

The letter also included a copy of the court order dated 9th October 2013 which is below. Interestingly this court order shows that District Judge Peake struck out the schedule of allegations filed by letter dated 26th September 2013 as it didn’t comply with the court’s directive of the 12th September 2013 that it should be reduced to no more than 12 individual allegations. Unusually this was a court order made without a hearing and without service on the other party.

Birkenhead County Court order Leasowe Community Homes v Danielle New 9th October 2013
Birkenhead County Court order Leasowe Community Homes v Danielle New 9th October 2013

The invoice below shows that the allegations in a letter dated 26th September 2013 struck out by the Judge were sent on the instructions of a solicitor working at Wirral Council to Paul Burns of Exchange Chambers.

Wirral Council invoice Paul Burns Exchange Chambers 22nd November 2013 Page 1 of 2 £4210 115
Wirral Council invoice Paul Burns Exchange Chambers 22nd November 2013 Page 1 of 2 £4210 115

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EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?

                     

This continues from yesterday’s blog post EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013. As with the documents published yesterday, the thumbnails should link to higher resolution versions of each image. The text in each document is copied below each thumbnail.

Contents

The Acknowledgement of Service Form (Part 8 Claim)

Acknowledgement of Service Form Page 1

The only boxes filled out on page 1 are “In the BIRKENHEAD COUNTY COURT” and “Claim No 3BI05210”.

Acknowledgement of Service Form Page 2

Claim No 3BI05210

A box is ticked in Section D “I object to the Claimant issuing under this procedure”. Under “My reasons for objecting are” the following is handwritten “WE HAVE NEVER GAVE UP OR SAID WE WOULDN’T RENEW OUR LEASE. WE HAVE BEEN WAITING FOR MR DICKINSON, TO GET BACK TO US. AS FAR AS WE ARE AWARE WE WERE WAITING FOR HIS REPLYS INVOLVING OUR LEASE AND TO THIS DAY HAVE STILL HAD NO REPLY FROM MR DICKINSON, AND WE ARE COMPLETELY SHOCKED BY THESE LETTERS.”

In Section F “Full name of the defendant filing this acknowledgement” is handwritten “VALERIE PATRICIA WOODLEY”.

In Section G “I am duly authorised by the defendant to sign this statement” is crossed out and underneath “*(I believe)(The defendant believes) that the facts stated on this form are true.” is the signature of Valerie P Woodley.

In a box for the date 17th August 2013 is entered.

The home address, postcode and phone number of the defendant are redacted before being published.

Defence Form

Defence Form

Claim No 3BI05210

In the box “I dispute the the claimant’s claim because:-” is written “As we are aware we are still waiting for Mr Dickinson to reply so we could, renew our lease.”

In the Statement of Truth “The defendant(s) believe(s))” is crossed out but it is unsigned. The defendant’s date of birth is redacted. The defendant’s full name is given as “VALERIE PATRICIA WOODLEY”. The defendant’s home address, postcode and telephone number are redacted.

Amended Defence

Amended Defence Letter

The Court Manager
Birkenhead County Court
76 Hamilton Street
Birkenhead
Merseyside
CH41 5EN

Dear Sirs

RE: Claim Number 3BI05210, WBC v Carol Eileen Kane

Please find enclosed the Defendant’s Amended Defence in triplicate.

We can confirm that we have served the Claimant with a copy of the same.

Yours faithfully,

(signature of Valerie Woodley and Carol E Kane)

Carol Eileen Kane

There is a stamp of “BIRKENHEAD COUNTY COURT COUNTER 04 DEC 2013 A/C 21283 £ _____ Section ______”

Amended Defence Page 1 of 3

IN THE BIRKENHEAD COUNTY COURT

Claim No: 3BI05210
BETWEEN:
Wirral Borough Council
Claimant
-v-
Carol Eileen Kane
Defendant
____________________
AMENDED DEFENCE
____________________

Amended Defence Page 2 of 3

Document is stamped BIRKENHEAD COUNTY COURT COUNTER 04 DEC 2013 A/C 21283 £ ______ Section _______ .

IN THE BIRKENHEAD COUNTY COURT

Claim no. 3BI05210

BETWEEN:

Wirral Borough Council

Claimant

-v-

Carol Eileen Kane

Defendant

__________________________

AMENDED DEFENCE

__________________________

1. The contents of the Particular of Claim is neither admitted nor denied and the Claimant is put to strict proof in regards to the statements contained therein

2. The Claimant did make known to the Defendant that discussions were on going in relation to renewal of her lease, both explicitly and implicitly, insofar as an employee, servant or agent of the Claimant, told the Defendant ‘not to worry’ and thereafter failed to communicate intention of possession.

3. The Defendant relied upon the representations of the Claimant ‘not to worry,’ insofar as the Defendant continued peaceable enjoyment of the land which was invested in utilising the Defendant’s financial resources..

1

Amended Defence Page 3 of 3

4. The Claimant has reneged on previous representations and failed to communicate its instructions to the Defendant adequately if at all.

DATED this the 03rd day of December 2013.

STATEMENT OF TRUTH

I believe/ that the facts contained within the Amended Defence are true.

(Signed) (signature of Valerie Woodley) (signature of Carol E Kane)

(Dated) 4th December 2013

Claimant

To: the District Judge

And To: the Defendant

2

Court Order (29th November 2013)

Court Order (29th November 2013)

General Form of Judgement or Order

In the
BIRKENHEAD
COUNTY COURT
Claim Number 3BI05210
Date 29 November 2013
WIRRAL BOROUGH COUNCIL 1st Claimant
Ref
CAROL EILEEN KANE 1st Defendant
Ref
VALERIE PATRICIA WOODLEY 2nd Defendant
Ref

Before Deputy District Judge Grosscurth sitting at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN.

Upon the Court’s own motion

IT IS ORDERED THAT:-

1. The Claimant shall include in the indexed bundle pursuant to paragraph 4 of the order of 21st November 2013 a chronology setting out all relevant dates relating to the granting of the lease, notices given and dates by when action persuant thereto should have occurred.

This order has been made by the court of its own initiative under CPR 3.3. Any party affected by this order may apply to have it set aside, varied, or stayed within 7 days of the date on which the order is served on that party.

Dated 28 November 2013

_______________________________________________________________________________________________________

The court office at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN is open between 10:00 am and 2:00 pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 0151 666 5800. Fax: 0151 666 5873

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

Possession Order (February 2014)

Possession Order (February 2014)

General Form of Judgement or Order>

In the
BIRKENHEAD
COUNTY COURT
Claim Number 3BI05210
Date 17 February 2014
WIRRAL BOROUGH COUNCIL 1st Claimant
Ref
CAROL EILEEN KANE 1st Defendant
Ref
VALERIE PATRICIA WOODLEY 2nd Defendant
Ref

Before District Judge Woodburn sitting at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN.

Upon hearing Counsel for the Claimant

IT IS ORDERED THAT:-

1) The Defendant’s shall by 4.00pm on the 13th February 2015 deiliver up possession of land situate at Sandbrook Lane, Moreton, Wirral.

2) No order as to costs

Dated 13 February 2014

_______________________________________________________________________________________________________

The court office at Birkenhead County Court, 76 Hamilton Street, Birkenhead, Merseyside, CH41 5EN is open between 10:00 am and 2:00 pm Monday to Friday. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 0151 666 5800. Fax: 0151 666 5873

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

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EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013

EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013

EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013

                          

Contents

Why am I redacting parts of court documents before publishing them?

Before I start with a blog post about how Wirral Council’s claim for a possession order for the land known as Fernbank Farm in Sandbrook Lane I am going to explain why I have redacted certain details from these documents before publishing them as well as the arguments for and against disclosing them without redactions. The general principles behind this I wrote about yesterday in Getting information about Fernbank Farm is made unusually difficult; what are they trying to hide?.

Attached to the particulars of claim is a map showing the land this case is about edged in red (although on the black and white photocopy I have it’s edged in black). Unfortunately the map is crown copyright and although Wirral Council have a licence to publish it I don’t, therefore the map and compass are blacked out from that document. I will however provide a description of where the land is and a link to a map. The title on the map lists it as being at Sandbrook Lane, Upton. Most people would regard it as being in Moreton, not Upton as it’s North of the M53 Junction 2 spur and the particulars of claim refer to it as being in Moreton.

To the documents that started the claim (the N5 form, particulars of claim and map) I have made two other redactions. The claim form itself has the home addresses of both defendants. However the request for a possession order does not relate to either of their home addresses, but to Fernbank Farm in Sandbrook Lane. During the fast track trial in February 2014 both defendants gave evidence from the witness stand and stated their home address in open court (at a public hearing) in front of about fifty people.

Personally I have no problem with my home address being in the public domain, as when you stand in an election it becomes public knowledge. My attitudes on privacy are therefore probably different to most of the population! Neither of the defendants are “public figures” and in my view therefore are entitled to a certain degree of privacy with such information. The case has nothing to do with their home addresses as it is to do purely with them being signatories to a lease with Wirral Council for Fernbank Farm.

Arguments in favour of disclosure of the defendant’s home addresses would be that these details have been given in open court and it would allow those reading this to contact them directly. However both have Facebook profiles, which can be used if people wish to contact them directly. If either Mrs Kane or Mrs Woodley are reading this and are happy with their home address/es being published my contact details are here.

Search engines cannot properly index or read scanned images, therefore the text of what is in these documents is included below it. As usual with images I post on this blog, a thumbnail is used and you can click on the thumbnail for a higher resolution image.

Return to Contents

N5 Claim Form for possession of property – How Wirral Council started its claim for a possession order for Fernbank Farm

This is a link to the current (2014) blank version of the N5 claim form (for possession of property) which has minor changes to the 2013 version used by Wirral Council in their claim.

Wirral Council v Kane & Woodley N5 Claim form for possession of property page 1 of 2 redacted thumbnail

Claim Form for possession of property

In the
BIRKENHEAD COUNTY COURT
Claim No. 3BI05210

Claimant
(name(s) and address(es))
WIRRAL METROPOLITAN BOROUGH COUNCIL
TOWN HALL
BRIGHTON STREET
WALLASEY
WIRRAL
CH44 8ED

Defendant(s)
(name(s) and address(es))
1) CAROL EILEEN KANE 2) VALERIE PATRICIA WOODLEY
(address redacted) (address redacted)
The claimant is claiming possession of:

land at Sandbrook Lane, Moreton, Wirral shown as the land edged in red on the attached plan.

which (includes) (does not include) residential property. Full particulars of the claim are attached.
(The Claimant is also making a claim for money).

This claim will be heard on: 20 at am/pm at

At the hearing

  • The Court will consider whether or not you must leave the property and, if so, when.
  • It will take into account information the Claimant provides and any you provide.

What you should do

  • Get help and advice immediately from a solicitor or an advice agency.
  • Help yourself and the court by filling in the defence form and coming to the hearing to make sure the court knows all the facts.

    Defendant’s name and address for service
    CAROL EILEEN KANE
    (address redacted)

    Court fee £175.00
    Solicitor’s costs £
    Total amount £
    Issue date 08 AUG 2013

    N5 Claim form for possession of property (08.05) HCMS
    Document has the Birkenhead County Court seal and is also stamped Date of Service 12 AUG 2013 Solicitors to Serve

    Wirral Council v Kane & Woodley N5 Claim form for possession of property page 2 of 2 thumbnail

    Claim No.                       

    Grounds for possession
    The claim for possession is made on the following ground (s):

    rent arrears
    other breach of tenancy
    forfeiture of the lease
    mortgage arrears
    other breach of the mortgage
    tresspass
    (tick) other (please specify) expiry of tenancy

    Anti-social behaviour

    The claimant is alleging
    actual or threatened anti-social behaviour
    actual or threatened use of the property for unlawful purposes

    Is the claimant claiming demotion of tenancy? Yes (tick next to No) No
    Is the claimant claiming an order suspending the right to buy? Yes (tick next to No) No
    See full details in the attached particulars of claim.
    Does, or will, the claim raise any issues under the Human Rights Act 1998? Yes (tick next to No) No

    Statement of Truth
    *(I believe)(The Claimant believes) that the facts stated in this claim form are true.
    * I am duly authorised by the claimant to sign this statement.

    signed (Surjit Tour’s signature) date 5th August 2013
    *(Claimant)(Litigation friend (where the claimant is a child or a patient)(Claimant’s solicitor)
    *delete as appropriate
    Full name SURJIT TOUR
    Name of claimant’s solicitor’s firm WIRRAL METROPOLITAN BOROUGH COUNCIL
    position or office held Head of Legal & Democratic Services
                             (if signing on behalf of firm or company)

    Claimant’s or claimant’s solicitor’s address to which documents or payments should be sent if different from overleaf. Postcode

    if applicable

    Ref no. AB/26560
    fax no. 01942 691 8482
    DX no. DX 708630 Seacombe
    e-mail alibayatti@wirral.gov.uk
    Tel. no. 0151 691 8137

     

    Return to Contents

    Particulars of Claim

    Wirral Council v Kane & Woodley Particulars of Claim page 1 of 3 thumbnail

    IN THE BIRKENHEAD COUNTY COURT         Claim No.
    BETWEEN:-

    WIRRAL METROPOLITAN BOROUGH COUNCIL

    Claimant

    -and-

    CAROL EILEEN KANE (1)

    First Defendant

    -and-

    VALERIE PATRICIA WOODLEY (2)

    Second Defendant

    =======================================================================================================

    PARTICULARS OF CLAIM

    =======================================================================================================

    1. The Claimant is the owner of approximately 10.12 acres of land situated at and described as land at Sandbroook Lane, Moreton, Wirral, Merseyside and shown edged in red on the plan attached.

    2. On 29 July 2008 the Claimant entered into a lease of the land with the First and Second Defendants who are trustees of the Upton Park Pony Owner’s Association. Upon expiry of the fixed term the lease converted into a monthly periodic tenancy in July 2011. The expressed rent payable for the lease was £4200 per year payable in equal monthly instalments.

    3. On 13th July 2012 the First and Second Defendants were served with a notice in the prescribed form persuant to section 25 of the Landlord and Tenant Act

    Wirral Council v Kane & Woodley Particulars of Claim page 2 of 3 thumbnail

    1954 the effect of which notifies them as Tenants of the intention to bring the tenancy to an end on 31st May 2013 but that the Council had no objection in the meantime to creating a new lease on certain terms.

    4. The terms specified within the notice indicated that a new lease could be agreed if the rent was increased to £4500 per year and a payment of £500 for legal fees.

    5. The First Defendant acknowledged receipt of the notice on 17th July 2012. She sent a letter to the Council in April 2013 to explain that the Association had been enduring a difficult period with increased costs due to, amongst other things, flooding and repairs/maintenance. She also rang the Council in and around April 2013 on three or four occasions expressing the same. She requested that the rent remain at £4200 per year and that the legal fee be waved on the basis that the lease would be in terms similar to the then existing lease.

    6. The notice gave the tenants an opportunity to agree a new lease on the proposed terms. In the event that the parties were unable to agree the terms of a new lease the notice specified that the tenants could either make an application to Court by 31st May 2013 or do so after that date only where there is agreement in writing from the Claimant to extend the deadline.

    Wirral Council v Kane & Woodley Particulars of Claim page 3 of 3 thumbnail

    7. No application has been made by either party nor has there been an agreement in writing or at all by the Claimant to extend the deadline for an agreement to be reached or an application to be made.

    8. There is a warning on the face of the notice saying that tenants will lose their right to apply to the Court if an application is not made on or before the 31st May 2013. As a result the tenancy has been terminated in accordance with the law and the Claimant is therefore entitled to possession.

    Return to Contents

    The map attached to the Particulars of Claim

    Wirral Council v Kane & Woodley map attached to Particulars of Claim redacted thumbnail

    title
    Land at
    Sandbrook Lane
    Upton

    scale 1:2500
    date 8/7/2013
    map ref. 39SE

    © Crown Copyright. All Rights Reserved. Published 2010. Licence number 100019803.
    Tel: 0151 666 3884 Fax: 0151 606 2090
    Asset Management Section, Universal and Infrastructure Services, Cheshire Lines Building, Canning Street, Birkenhead, CH41 1ND

    The map is Crown Copyright but if you follow this link the land in question is the land North of Fernbank Lane (which is found next to the M53 Junction 2 spur), West of Manor Drive, South of the houses on Croft Drive and East of the houses in Ravenstone Close and The Park House.

    Return to Contents

    Continues at EXCLUSIVE: What was the defence used in Wirral Council’s court case to evict the Fernbank Farm tenants?.

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Getting information about Fernbank Farm is made unusually difficult; what are they trying to hide?

Getting information about Fernbank Farm is made unusually difficult; what are they trying to hide?

Getting information about Fernbank Farm is made unusually difficult; what are they trying to hide?

                      

I went to Birkenhead County Court today to get copies of documents to do with Wirral Council’s request for a possession order in the Fernbank Farm case. What I had requested was a copy of the two judgements (the first one arising from the application hearing on the 21st November 2013 and the second one from the fast track trial from February this year). I also had requested the “statement of case” and was told by letter that copies of these documents would come to £10.

When I paid the £10 I was given a copy of court orders dated 17th February 2014 (the possession order) and a court order I wasn’t aware of (that had been made without a hearing) on the 29th November 2013. I queried whether this was the one I’d asked for as the date was incorrect, but the member of staff insisted it was the right one (even though it wasn’t). I was also given a copy of the original particulars of claim (which had been attached to the claim form). This came to six pages in total.

I queried with the member of staff at the counter as to why the original claim form hadn’t been included, as the letter I had got in reply from the Court stated that a District Judge had agreed that I was entitled to a copy of the court orders and the statement of case (which I am entitled to under Civil Procedure Rule 5.4C). She insisted that the “statement of case” was just the particulars of claim and that I wasn’t entitled to any more documents beyond that which I had already received. I asked her to check the definition in the Civil Procedure Rules but she refused to do so.

I was going to the University of Liverpool library anyway, so while I was there I looked up what “statement of case” actually means. It’s defined in Part 2.3 of the Civil Procedure Rules as
“statement of case –

(a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence; and

(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1;”

So I printed off a copy of this and returned to the Birkenhead County Court querying why statement of case had been interpreted as meaning just the particulars of claim (especially as the statement of truth for the particulars of claim was on the claim form). I also pointed out that the court order of the 29th November 2013 requested the Claimant (Wirral Council) to “include a chronology setting out all relevant dates relating to the granting of the lease, notices given and dates by when action pursuant thereto should have occurred”. I asked why a blank defence form had been included in the earlier six pages, but not the defence, reply to the defence or the information supplied in response to this court order?

The member of staff said that they [the staff] disagreed with my interpretation of “statement of case” and that they would have to ask a District Judge which was impossible to do at that time as the Judge or Judges were on a lunch break. We waited for about an hour until she went to find a Judge (who unsurprisingly agreed with what the previous Judge had told the person who wrote the letter) and when she came back she had to provide me with the documents that she had earlier that day insisted I wasn’t entitled to which were the original claim form, the defendant’s amended defence (submitted in triplicate so she charged me for three copies), an acknowledgement of service form, blank defence form and another copy of the same particulars of claim (but this time including a map).

As this now came to twenty-five pages (instead of the original six), she insisted on charging an extra £7.50. This was despite the fact that she had given me a copy (again) of the particulars of claim (a further three pages). She insisted the second copy was an amended particulars of claim (it wasn’t, it was identical), the only difference being that she had now included a page of a map of Fernbank Farm. She also provided the amended defence in triplicate (which was three pages so therefore giving me it in triplicate meant an extra six pages). I quibbled over being charged extra for pages I had already been supplied with, but in the end I just paid the £7.50 as I can claim this back from the Birkenhead County Court in the next 6 months (as well as the original £10) using an EX160 form.

What was most telling was that I was told by the member of staff who reluctantly gave me what I paid for that I wasn’t to publish these documents on my blog! This was from the member of staff who didn’t know what “statement of case” meant!

Contempt of Court does apply to civil proceedings, however as detailed in s.2(3) of the Contempt of Court Act 1981, this only applies when proceedings are “active”. Schedule 1 details that for civil cases (see sections 12-13), proceedings are “active when arrangements for the hearing are made until the proceedings are disposed of, discontinued or withdrawn”. Arrangements of the hearing of the proceedings is defined as “in the case of any proceedings, when a date for a trial or hearing is fixed”. The trial in this case was held on the 13th February 2014. The possession order given on the 17th February 2014 in Wirral Council’s favour disposed of the matter, therefore at that point proceedings were no longer active.

Even if proceedings were active (as they were prior to the 17th February 2014), there is a caveat in s.5 of the Contempt of Court Act 1981 when it comes to “discussion of public affairs”. Section 5 states “A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”

There are no reporting restrictions in effect with regards to these proceedings and I am not subject to a court order preventing publication of these documents from the Birkenhead County Court. I therefore think that once again this member of staff has “got it wrong”. The Birkenhead County Court is subject to s. 6 of the Human Rights Act 1998 as it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”. This includes article 10 which states:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Therefore for the reasons above (that proceedings aren’t active and even if they were that what I’m going to publish falls under discussion of public affairs) and National Union of Journalist’s Code of Conduct rule 1 which states “At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed” I will be writing tomorrow have written at EXCLUSIVE: How Wirral Council’s court case to evict the Fernbank Farm tenants began on the 8th August 2013 about information I have found out from reading these documents.

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

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

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

            

This continues from Who’s who, “plebgate” and DDJ Grosscurth’s court order 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

Witness statements
District Judge Woodburn said that the defendants had not prepared witness statements or given them to the Court or Wirral Council. One of the defendants said they had sent a bundle to the Town Hall containing the amended defence and what they’d been told to send.

District Judge Woodburn said they had been told last November that they were to exchange witness statements by the 9th January 2014. One of the two defendants said that they had put in witness statements after November. The District Judge asked if she had a copy if the defendants were to rely on it as it was not in the bundle? The defendant again repeated that she did submit witness statements.

Once again the Judge asked for a copy and the date of the witness statement. One of the defendants answered 21st August 2013. He asked when it was sent to the Town Hall? She answered that it must have been before 21st August 2013.

Sarah O’Brien, counsel for Wirral Council said the defendant was referring to the original defence at page fourteen in the bundle, however this had been amended by the new defence. District Judge Woodburn asked if the document she was referring to was the document at page fifteen? She replied it was. He asked if that was the one sent to the Town Hall in August? She said it was and also the amended defence.

District Judge Woodburn asked the defendants about the witness statement whether it was the only witness statement submitted? One of the defendants answered “yes”. The Judge said that one witness statement had been submitted before the date on the order. Sarah O’Brien counsel for Wirral Council said that she thought it was a defence not a witness statement.

District Judge Woodburn said that it comprises a document appended which was a two page manuscript by one of the defendants, was it the only document the defence was relying on? The defendant who has written it answered and the Judge said that if it was not in the bundle or the witness statement then the defendants would be deprived of the right to rely on it. One of the defendants referred to emails that had been sent to the court.

Civil Procedure Rules
The Judge referred to the bundle received in February 2014. He said (to the defendants) that as far as either of you night want to prepare facts not contained in the document submitted in August, that they were not to present other facts not in the witness statements and that they were prevented from doing so. He said that they were subject to the court’s rules (he held up a thick copy of the Civil Procedure Rules) and referred to them as the “rules we are all governed by”.

He said it didn’t matter whether parties were represented or not, that Civil Procedure Rule 32.10 (Consequence of failure to serve witness statement or summary) meant if if the court made an order for witness statements by a date and witness statements were not given by that date that that party would not be able to rely on that witness evidence at the trial and that they could only rely on evidence served before January of this year.

One of the defendants said that the bundle from Wirral Council had papers missing from it. District Judge Woodburn said that he would “see how we go” and whether it related to issues of fact, but that he had to deal with technical issues and issues of law. He said that the “facts may not play a big part” and referred to Wirral Council’s witness statement.

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.

Wirral Council’s claim
Sarah O’Brien, counsel for Wirral Council said that the claim was for a possession order in Sandbrook Lane. There had been a fixed term lease between Wirral Council and the tenants from July 2008 for three years which had expired in July 2011. The rent had been due monthly under a monthly periodic tenancy.

In July 2012 a s.25 notice had been served on the defendants and proof of receipt was in the bundle which ended the tenancy on the 21st May 2013. She said that the notices were clear that the defendants must apply to the court if agreement was not reached, if they didn’t make such an application before 21st May 2013 then the defendants would lose that right. Although it was contested by the defendants, no new terms had been agreed as the defendants had been seeking the original rent. The defendants had not applied before 21st May or indeed at all. Subject to the validity of the notice, if it had been valid the tenancy had expired on the 21st May 2013 subject only to the issues raised in the defence. Therefore Wirral Council had a claim in law to be entitled to possession.

Sections, notices and possession
District Judge Woodburn asked under what section? Sarah O’Brien, counsel for Wirral Council said the time limits in s. 29 of Landlord and Tenant Act 1954 c.56 referred to either the tenant or the landlord. She continued by saying that under this section that once the tenancy had expired, the tenants had no right to make an application and if the tenants had no right to make an application for a new tenancy, then the tenants were in occupation of the land pursuing an expired tenancy. The claim for a possession order was because the defendants had no tenancy.

District Judge Woodburn asked what triggered the claim, what section? Sarah O’Brien, counsel for Wirral Council said the notice.

District Judge Woodburn said that he could see that it was a periodic tenancy brought to an end by the notice. He could see the statutory provision where there was opposition to granting a new tenancy but where did it state that that an application could be made for possession when it was agreed to renew [the tenancy]?

Estoppel
Sarah O’Brien, counsel for Wirral Council said it was common law versus statute. The statute dealt with termination of the tenancy. Once it was terminated she didn’t think that that arose in the statutory scheme. Moving to the defendant’s defence, it was a defence effectively of estoppel by representation, specifically that one of the defendants was told “not to worry” and thereafter a failure to communicate the intention to seek possession.

District Judge Woodburn said that if a s.25 notice was served and there was no application then that was the end of it if proved. Sarah O’Brien, counsel for Wirral Council said it seemed right that the court had no jurisdiction to order a new tenancy, only if Wirral Council’s claim was debarred by some sort of estoppel.

District Judge Woodburn said that the renewal of business tenancies was a creature of statute, but that he didn’t see how it fits. Sarah O’Brien, counsel for Wirral Council said that she would have to satisfy him in seeking the possession order. She referred to the witness statement but considered the termination of the tenancy to be the end of the matter. District Judge Woodburn said he had jurisdiction to hear the estoppel defence.

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

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