Tag: District Judge Woodburn

Cross-examination of Kane & Woodley, parties summarise their case in Wirral Council v Kane and Woodley (Fernbank Farm)

Cross-examination of Kane & Woodley, parties summarise their case in Wirral Council v Kane and Woodley (Fernbank Farm)

Cross-examination of Kane & Woodley, parties summarise their case 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 Mrs Kane faces questions from Sarah O’Brien (barrister) and District Judge Woodburn in Wirral Council v Kane and Woodley (Fernbank Farm).

Mrs Kane is questioned by District Judge Woodburn
Mrs Kane asked why they would pay for a further twelve months of public liability insurance if the lease hadn’t been renewed? District Judge Woodburn said something brief to which Mrs Kane said that Wirral Council had been “ignoring us”. She said that Wirral Council could only get out of renewing a protected lease if they had broken the terms of the lease and referred to a letter from 2012. District Judge Woodburn referred to an agreement. Mrs Kane said yes, that they thought that Wirral Council agreed to renewal.

District Judge Woodburn asked Mrs Kane why she had not done as suggested in paragraph five (which refers to applying to the Court)? Mrs Kane said she had spoken with David Dickenson in April or May and as far as she knew the lease was going through. The first thing she knew it hadn’t was in August when she received an invoice for £700. She rang the number and was told it was for rent because they’d given up the land which was the first thing she knew. Two days after she received details about Wirral Council’s request for a possession order. District Judge Woodburn said that Mrs Kane could return to her seat and swap with Mrs Woodley.

Mrs Woodley takes the witness stand
Mrs Woodley said, “I swear by Almighty God to tell the truth, the whole truth, and nothing but the truth”. District Judge Woodburn asked her name to which she replied “Valerie Patricia Woodley”. He asked her to have a seat and pointed out that she had not made a witness statement. District Judge Woodburn referred Mrs Woodley to a document at page fifteen and asked if it was her handwriting? She answered, “Yeah”. District Judge Woodburn asked her to go over the page to page seventeen and eighteen and asked if that was her handwriting? Mrs Woodley gave the same answer.

District Judge Woodburn asked if it was a statement made in support of the defence? She answered, “Yeah”. He asked her a further question, she answered then he said if she wished to she could have a seat.

Mrs Woodley is cross-examined by Sarah O’Brien
Sarah O’Brien, barrister for Wirral Council asked her to confirm the document was true, which referred to an alleged conversation between David Dickenson and Carol Kane. She said “yes”. Sarah O’Brien said that Mrs Woodley had no knowledge of the conversation as she had not taken part in it. Mrs Woodley explained that she had put that in because her mother was ill. Sarah O’Brien asked another brief question to which Mrs Woodley answered “no”.

Miss O’Brien asked Mrs Woodley if she accepted that she’d received a copy of the eviction notice which intended to end the business tenancy? Mrs Woodley answered “yes”. District Judge Woodburn referred to when she received the notice at page twenty-two in the bundle that it looked like that. He asked her to have a quick read of paragraph five. He referred to having to apply to the court to grant a new tenancy by the date in paragraph two (31st May) and whether she knew this? Mrs Woodley said that when her mum (Mrs Kane) was speaking she’d told her that they didn’t need to because they were in negotiations. District Judge Woodburn asked her if she had anything to add, she replied “no”. He asked her if she agreed with Mrs Kane to which she replied “yes” and if there was anything else she wished to add to which she replied “no”. District Judge Woodburn asked her to watch her step as she left the witness stand and that Mrs Kane and Mrs Woodley were not putting forward witnesses so he wanted both parties to summarise.

Mrs Kane asked if Cllr Ian Lewis (her McKenzie Friend) could summarise for her? District Judge Woodburn said “no”. She asked what about Martin Woodley? District Judge Woodburn said that Mr. Woodley was in the same position and that he thought both defendants could summarise in their own words what the case about. He said that they (the defendants) had done well up to now regarding their views. He said to summarise what the case is ultimately about is the fact that they didn’t apply to the court for a new tenancy, they said they didn’t do so because of what they were told which is their sole contention.

Mrs Kane summarises
Mrs Kane said that in forty years they’d never had a penny off Wirral Council. She continued by saying that many years ago when Wirral Council told them that they were moving them to a different place that Wirral Council had changed their minds and said they would not build on that site so they’d decided to stay. She said that they’d made new fences at a cost of thousands of pounds and repaired them after a storm. Mrs Kane said that she had been asking Wirral Council to be lenient about the cost of renewing the lease but they’d been stopped from renewing only because they were guilty of believing and trusting what Wirral Council were saying.

Mrs Woodley summarises
District Judge Woodburn asked if Mrs Woodley had anything to say? Mrs Woodley said that she agreed with her mother. She said that when they contacted Cllr Ian Lewis that he had confirmed that they must have taken the decision not to renew the lease. District Judge Woodburn referred to the evidence of David Dickenson with regards to his instructions. Mrs Woodley said that it was not from the Council. District Judge Woodburn said “that may be the case”. Mrs Woodley said that their “only crime was to trust” and that Wirral Council made it “impossible to renew the lease” and had done “everything possible to stop” them.

Sarah O’Brien (barrister for Wirral Council) summarises
District Judge Woodburn asked Sarah O’Brien to summarise Wirral Council’s case. Sarah O’Brien said that what the solicitor had provided was the prescribed form from the HMCS [Her Majesty’s Courts Service] website and that it was a standard form.

Ed – although she’s just repeating what she’s been told, the HMCS website doesn’t actually have this on it. The prescribed forms are part of the legislation and are on this website Schedule 2 of SI 2004/1005 (The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004), a site that has UK laws on it run by the National Archives.

District Judge Woodburn said “yes, thanks”. Sarah O’Brien said that she would be very brief. Sarah O’Brien said the tenancy was properly terminated in accordance with the Act and that the only defence raised was estoppel. District Judge Woodburn said that the evidence of the two parties was different as to whether there was a binding agreement which would mean an application to the court was not required.

Sarah O’Brien referred to evidence that contradicted that assertion, as the defendant had sent a letter proposing alternative terms. She said that the defendants say that the communication with David Dickenson was highly relevant and important but that it didn’t appear in their defences which is not to say it didn’t take place. District Judge Woodburn asked someone to please not interrupt her.

Sarah O’Brien referred to pages thirty-seven and thirty-eight which referred to chasing a response. She said that if she had received an assurance regarding the terms agreed, then there was no need to be chasing a response. Miss O’Brien said that the evidence did not support the assertion that new terms were agreed.

The second point Miss O’Brien made was a further suggestion that David Dickenson had told Mrs Kane categorically that she did not need to apply to the Court. If this had been said they why didn’t it form part of the defence rather than vague assertions such as being told “not to worry”? Miss O’Brien said that the only reason was that it was not said. She continued by saying that the assertion made that David Dickenson told her “not to worry” needed a clear context and the representation was too vague for it to be reasonable that it could be relied upon.

Miss O’Brien said that the notices were received and read and it was not a question that they were prevented or couldn’t make an application to the court and that was why the lease was not protected. She said that whether Wirral Council agreed to the terms or there was estoppel were facts, therefore Wirral Council should be entitled to a possession order.

District Judge Woodburn said he was going to take a break to consider, then he would invited people back and give judgement on the factual issues. He thought it was best for everyone to have a break. He would let the usher and clerk know when he was ready. The court usher would then ask people to come back in.

Continues at District Judge Woodburn grants Wirral Council possession order: pony club given a year to leave Fernbank Farm.

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

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

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

                        

Continues from Mrs Kane takes the witness 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

Mrs Kane on the witness stand
Mrs Kane continued by saying that after her letter, she spoke to David Dickenson and told him she was going to hospital and that she wanted it all sorted before that.

Mrs Kane is cross-examined by Sarah O’Brien
District Judge Woodburn gave Sarah O’Brien (barrister for Wirral Council) an opportunity to cross-examine Mrs Kane. Sarah O’Brien asked Mrs Kane if she had said that she rang David Dickenson in May 2013 as Mrs Kane was concerned she had not heard from him? Mrs Kane replied “yes”.

Sarah O’Brien said something I couldn’t hear to which Mrs Kane replied that she’d been told that she’d hear from them [Wirral Council] about the new lease but she didn’t hear until 2012.

Wirral Council’s barrister asked Mrs Kane when she received the eviction notice had she read it? Mrs Kane answered yes. To clarify whether she was answering yes to receiving the notice or having read it District Judge Woodburn asked her if she’d read the eviction notice to which she answered that she had read the notice yes.

Miss O’Brien said that Mrs Kane had told David Dickenson she wanted to renew the lease on the Council’s terms, however that she was only prepared to renew on new terms. Mrs Kane explained she had asked him if he could help with the expenses as previously the legal fees had been reduced from £500 to £300. The only other term that she wanted changed was a rent increase of 2.5% and David Dickenson had told her he would make a site visit to discuss it.

Sarah O’Brien said that the letter sent sets out Mrs Kane’s terms which were not the same terms that were put forward by Wirral Council. Mrs Kane said that she wanted to renew the lease and had spoken to David Dickenson and told him that if he couldn’t do anything then to send the papers back to her. She had told David Dickenson that she wanted negotiations on the lease finished by the end of May and referred to an email from David Dickenson that stated that Mrs Kane had until May 31st.

The barrister for Wirral Council said that there was no reference in the defence to terms being agreed. Mrs Kane had that a “lot has gone missing”. Sarah O’Brien said it was a fact that terms (for the new lease) were suggested. District Judge Woodburn said that it was an important point if it’s said that Wirral Council accepted the terms of the new lease.

Mrs Kane referred to a telephone call. Sarah O’Brien asked her when the telephone call was? She answered towards the end of April. Mrs Kane said that she had been trying to get in touch with David Dickenson but all her called were being ignored. There had been no response to her letters and since 2012 David Dickenson had ignored her phone calls.

She had said that she had spoken with David Dickenson on the phone twice, but at all other times she had been told her was on site visits, in a meeting, that he would get back to her or that his father had died. Mrs Kane understood David Dickenson was a busy man but he was not answering her.

Sarah O’Brien said that she (Mrs Kane) didn’t get an answer to her letter to David Dickenson. She referred to page thirty-eight in the bundle and a reference to a phone call of 23rd May where it stated that Mrs Kane was awaiting a response (to her letter). Mrs Kane said that David Dickenson was ignoring her phone calls. Sarah O’Brien said that she didn’t contact David Dickenson as there was no reference in the earlier document.

Mrs Kane referred to emails which said to answer Mrs Kane’s phone calls and that this was in Wirral Council’s emails. Sarah O’Brien said that it was clear from the record of the phone call that at that point Mrs Kane hadn’t had a response (from David Dickenson). Mrs Kane said she had rung Mr. Dickenson and told him that they were willing to pay but if he can’t do it to send it back and that Mr. Dickenson knew that, she hadn’t been able to get in touch with Mr. Dickenson since. In 2012 she was told that Mr. Dickenson was at a funeral and that Peter Jones could take over.

Sarah O’Brien referred to the document containing the original defence and the point where Mrs Kane said that David Dickenson said “not to worry”. Mrs Kane said that at the beginning of May she couldn’t get in touch with David Dickenson and that he’d had the “shock of his life” when he answered the phone to her. She had asked him to send her an email if he could not do anything and to send the forms back, the public liability insurance receipt and the cheques. Mr. Dickenson had told her “not to worry” because he’d do it.

The barrister for Wirral Council asked her if in the same conversation that David Dickenson says he accepted the terms, to which Mrs Kane answered “yep”. Sarah O’Brien said that conversation was at the beginning of May and referred to something that referred to Mrs Kane phoning and saying she had had no response to her letter. Mrs Kane referred to an email that showed that David Dickenson knew about the deadline of the 31st May. Sarah O’Brien said she had no further questions for Mrs Kane.

District Judge Woodburn asks Mrs Kane questions
District Judge Woodburn referred to page eighteen and the eviction notice. He directed Mrs Kane to paragraph four 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 paragraph 5 which stated “If you wish to ask the court for a new tenancy you must do so by the date in paragraph 2” which was the 31st May 2013.

Mrs Kane said that she had spoken with Mr. Dickenson at the beginning of May to tell him and asked him about it and she’d asked Mrs Carman. When she’d asked Mrs Carman who was taking over Mrs Carman had answered Peter Jones. Mrs Kane said that she’d been told by Mr. Dickenson that if they were negotiating a new lease that she didn’t need to apply to the court. District Judge Woodburn said that Wirral Council hadn’t agreed anything and that there was no evidence of any agreement by Wirral Council.

Continues at Cross-examination of Kane & Woodley, parties summarise their case in Wirral Council v Kane and Woodley (Fernbank Farm).

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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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