Tag: Fernbank Farm

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).

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

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

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

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

             

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

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

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

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

                      

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

Estoppel defence
Sarah O’Brien, the barrister acting for Wirral Council said that District Judge Woodburn would have to be satisfied as to whether the possession order was precluded by statute but whether the estoppel defence had merit or not was another matter.

District Judge Woodburn said that the estoppel defence constituted reliance and detriment. Sarah O’Brien said that it comprised of representation, reliance and detriment. She said that what was served on the Claimant [Wirral Council] said how it was put. District Judge Woodburn asked if she could summarise?

Sarah O’Brien said that the alleged representation was “too vague” and that it must be sufficiently clear to be relied upon. District Judge Woodburn referred to there being no reply to the amended defence. Sarah O’Brien replied that it was a legal issue rather than a factual issue, the defendants say it was sufficiently clear, however the Claimant [Wirral Council] will say it was not and that on all three hurdles that the proposed estoppel defence fails. She said that it was a claim for possession, simply an order for possession and Wirral Council would not be making a claim for their costs from the defendants.

Landlord and Tenant Act 1954 c.56
District Judge Woodburn said to the defendants Mrs Kane and Mrs Woodley, that it would take us to a lot of technical arguments, both about the original notices and about anything done. He said that the Landlord and Tenant Act 1954 c.56 was quite strict and if things were not done then rights could be lost. He would have to determine if the notices were served in compliance with the Act, if the notices were not in compliance then certain consequences could flow and he’d have to make a determination as to whether they apply.

Witness statements
The argument in the amended defence about a representation made by someone not to worry was a factual issue. District Judge Woodburn continued by saying that who said when and in what context was required in the witness statements which had to be served on the court and Wirral Council by January. No application had been put forward [to change the time limit] so he had to explain the consequences of not filing in time.

One of the defendants asked a question about a witness statement that Wirral Council had. District Judge Woodburn asked when and the defendant answered before November [2013]. District Judge Woodburn asked if the defendant had a copy? The husband of one of the defendants asked if he could speak? District Judge Woodburn politely told him that he couldn’t speak. The same defendant referred to a date of the 4th December and the amended defence. District Judge Woodburn said he had got that. He asked a further question about the statements.

The defendant answered that is was before 9th January, that she had brought it herself and handed it to the office. District Judge Woodburn asked her what she’d handed in, she replied witness statements and all emails, District Judge Woodburn asked a further question to which she answered that the witness statements were three pages long.

District Judge Woodburn asked her if she kept a copy? The defendant held up a document. District Judge Woodburn referred to a document appended to the acknowledgement of service form with a date of the 21st August 2013. However he said there was nothing around December time.

The defendant said that she had taken the papers out of the envelope as she had been told to just give in the papers as they were not able to accept them in the envelope. The other defendant asked if it was the documents in the plastic container, to which the first defendant said “Is that what you meant your honour?” District Judge Woodburn replied that is was an attendance note.

The attendance note
The defendant said that she had had to resend a paper copy out of the folder to the Birkenhead County Court. District Judge Woodburn asked a question about the attendance note. She replied with the name of a person at Kirwans. The Judge said it may be a privileged document as it referred to a spoken conversation, could contain confidential information therefore it was not widely circulated to anyone, but it was a matter whether the defendants wish to rely on it.

Sarah O’Brien, barrister for Wirral Council said she would caution regarding its confidentiality. The defendant said she had sent it to Wirral Council. District Judge Woodburn asked when? She answered before January [2014]. District Judge Woodburn asked if was by post? She answered that it was hand delivered.

The receipt
District Judge Woodburn asked if it was done by Mr. Lewis and if they had got the receipt? He asked them to show the receipt to Miss O’Brien. Sarah O’Brien said she acknowledged the receipt was dated 4th December 2013 for the amended defence therefore she accepted it was received.

District Judge Woodburn said it was not the amended defence and for Sarah O’Brien to pass the receipt back. He said that quite clearly the document may not be required by the court order and the difficulty was regarding the evidence he had to listen to today was that it didn’t look like a witness statement in support of the amended defence.

Witness statements
One of the defendants said that there had been a witness statement. District Judge Woodburn said there had supposed to have been a witness statement and had the defendant not kept a copy? The defendant said it had gone missing. The Judge repeated his question and she answered that it had gone missing and that she hadn’t got any copies.

District Judge Woodburn said the attendance note was not a witness statement, it was a recording of a conversation. He said a witness statement was a formal document, a “document that set out the story” and that it would give far more detail with regards to the assertion. He referred to the witness statement of Mr. Dickenson which set out the kind of document that they were talking about.

One of the defendants asked a question. District Judge Woodburn replied that he would proceed on the basis that they don’t have the document and one was not served in accordance with the rules. Therefore they couldn’t hear evidence in support of the amended defence in support of the assertion “don’t worry” as the detail wasn’t given to the Court or Wirral Council. He could see it in the amended defence, but there was no detail just an outline which may raise the questions such as by whom it was said which can’t be asked or answered by the information within the witness statements.

Notices
District Judge Woodburn said it left the argument about whether the notices were in compliance with the act and whether the notices were responded to as required. He would deal with the responses before the notices, he asked if Sarah O’Brien was still waiting for some to come back?

Sarah O’Brien, barrister for Wirral Council answered, “I am.”

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

If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.

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).

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks:

Who’s who, “plebgate” and DDJ Grosscurth’s court order in Wirral Council v Kane and Woodley (Fernbank Farm)

Who’s who, “plebgate” and DDJ Grosscurth’s court order in Wirral Council v Kane and Woodley (Fernbank Farm)

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

Yesterday’s blog post headlined District Judge Woodburn grants Wirral Council possession order: pony club given a year to leave Fernbank Farm dealt with the end of the trial when District Judge Woodburn gave his judgement.

This blog post deals with the trial from the beginning. Before it started here’s a brief description of the scene in Court Room 1 of the Birkenhead County Court.

On the usually empty seats for the public (despite the court usher referring to Court Room 1 as “small” it’s not as cramped as the judge’s chambers were for the previous hearing) were about a dozen supporters of Fernbank Farm who had come to hear the trial and a small number of Wirral Council employees as well as myself and my wife.

Sitting on the right at the front were the two defendants Mrs Carol Eileen Kane and Mrs Valerie Patricia Woodley (Mrs Kane is the mother of Mrs Woodley), their McKenzie Friend Cllr Ian Lewis and Mrs Woodley’s husband Mr Woodley.

On the left waiting for the District Judge to enter was Sarah O’Brien, the junior barrister who was representing Wirral Council. There’s a picture of her on her Chamber’s website.

“All rise for Judge Woodburn”
The court usher asked those present to rise for District Judge Woodburn, people stood up and District Judge Woodburn arrived through a door to the back and right of the room and said “Have a seat”, to which Wirral Council’s barrister Sarah O’Brien replied to District Judge Woodburn with a polite but deferential “Morning Sir”.

“Let’s see who we’ve got”
District Judge Woodburn said “Let’s see who we’ve got” giving those present an opportunity to identify themselves to him. The two defendants Carol Eileen Kane and Valerie Patricia Woodley both gave their full names. Mr Woodley asked if he could speak on behalf of his wife Mrs Woodley. District Judge Woodburn said that Mr. Woodley was not a party to the case and that usually only parties to the case and their advocates sat on the front row. He understood Mr. Woodley was there to support his wife, but asked him to sit on the row behind. Mr Woodley got up and moved to the row behind the defendants.

Cllr Ian Lewis identified himself as a local councillor. District Judge Woodburn asked if he was acting as a McKenzie friend? Cllr Lewis replied that he was for both Mrs Kane and Mrs Woodley. District Judge Woodburn said that Cllr Lewis could whisper to the defendants, but he was not an advocate and that he [District Judge Woodburn] would direct questions to either Mrs Kane or Mrs Woodley.

District Judge Woodburn asked Sarah O’Brien if she was counsel for Wirral Borough Council. She replied “yes”. District Judge Woodburn said he was going to address everyone and said “I understand the emotions around this particular action” and that there had been one lease or another for forty years. He asked everyone to be patient, listen and not interrupt. If questions were asked he asked that people not speak across others. He wanted to ensure all parties had their say on the relevant points as it was important to determine the issues. District Judge Woodburn pointed out that proceedings were being recorded if one party wished to obtain a transcript from that recording they could subject to a payment.

No recording and switch your phone off
He pointed out that no one else was permitted to record by means of an electronic device, members of the public were entitled to report what they heard, but there was no permission for electronic recording or photography. If anybody left the court room and returned, they may be asked to produce
their mobile phones before being allowed back in. He asked everyone to check their mobile phones were switched off, not just to silent but switched off and then said “Let’s make a start.”

Landlord and Tenant Act 1954 c.56
To Sarah O’Brien he said that he had read the bundle of documents but that they seemed “back to front”. Sarah O’Brien replied that she had noticed that, but that it was a relatively small bundle. District Judge Woodburn said they they were heading to highly technical areas involving the Landlord and Tenant Act 1954 c. 56, he asked if the defendants had sought legal advice regarding the notices? The defendants replied that they had had a solicitor. District Judge Woodburn asked if they had sought legal advice on the notices before May 2013. The defendants answered “No”.

Deputy District Judge Grosscurth’s Order
Sarah O’Brien said that the position was that the defendants had not filed witness statements which should’ve been done by the 9th January (this refers to a court order made at the hearing in November 2013 in this case). She said the defendant’s only defence was estoppel arguments which required necessary evidence and that the burden of proof for these was on the defendants. Sarah O’Brien further said that there had been no application for relief from sanctions and therefore since the decision in Mitchell (I presume she is referring to [2013] EWCA Civ 1537 which was a decision in a libel case known as “plebgate”) she was inviting District Judge Woodburn to proceed on Wirral Council’s evidence.

District Judge Woodburn asked her which page number the order about the witness statements was? Sarah O’Brien replied that it was on page five and over the page on page six. District Judge Woodburn said it was on page six, paragraph three at the bottom right. He asked if Mrs Woodley could see it and then for Cllr Ian Lewis to assist the defendants. District Judge Woodburn again pointed out that it was at the bottom right of page six and asked if the defendants had the same bundle followed by “let’s make sure we’ve got the same bundle” followed by “don’t take the documents out of the ring binder”.

He referred to page six, paragraph three referring to the court order about mutual exchange of witness statement by 4pm on the 9th January 2014 made by Deputy District Judge Grosscurth on the 29th November 2013 when both defendants and their McKenzie friend were present.

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

If you click on any of these buttons below, you’ll be doing me a favour by sharing this article with other people. Thanks: