Tag: Fernbank Farm

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.

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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

     

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    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.

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    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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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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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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