£1800 invoice to Wirral Council for barrister Sarah O’Brien in Fernbank Farm matter (Kane & Woodley)

£1800 invoice to Wirral Council for barrister Sarah O’Brien in Fernbank Farm matter (Kane & Woodley)

£1800 invoice to Wirral Council for barrister Sarah O’Brien in Fernbank Farm matter (Kane & Woodley)


Below is the invoice received for the services of a barrister called Miss Sarah O’Brien of Exchange Chambers to Wirral Council to do with the possession order for Fernbank Farm which was heard at the Birkenhead County Court earlier this year. I requested this as part of the 2013/14 audit.

I have added annotations in green which represent information that Wirral Council either incorrectly blacked out, or should’ve blacked out or information which was blacked out but is known to me from court reporting on the issue.

Detail of redactions 1: “Professional Fees of:”
Reason incorrect: Sarah O’Brien is not an employee of Wirral Council.
Unredacted text: Sarah O’Brien

Details of redaction 2: DX 708630
Reason incorrect: partial redaction as it was meant to redact next line, DX 708630 refers to Wirral Council’s document exchange number.
Unredacted text: DX 708630

Details of redaction 3: Mr Ali Bayatti
Reason correct: Redaction correct as person is Wirral Council employee, however due to earlier court hearing name of solicitor is known. Unredacted to aid in transparency as name said during open court hearing in Birkenhead County Court (2013). Also important to know which solicitor is instructing the barrister.
Unredacted text: Mr Ali Bayatti

Details of redaction 4: AB / H19 / 25650
Reason correct/incorrect: Redaction partially correct as AB refers to Ali Bayatti. However redaction done incompetently by drawing a line in pen through after the other redactions were added as an afterthought by an accountant.
Unredacted text: AB/ H19 / 25650

Reason incorrect: refers to parties’ names in court case.

Details of redaction 6: “Name/info”
Reason incorrect: refers to parties’ names in court case. Unredacted KANE. Rest is unknown.
Unredacted text: KANE

Details of redaction 7: “Init” (three handwritten initials)
Reason correct: Refers to initials of Wirral Council officer.
Unredacted text:

Details of redaction 8: “Certified Correct for payment” (signature)
Reason correct: signature of Wirral Council officer.
Unredacted text:

Details of redaction 9: “To Miss Sarah O’Brien”
Reason incorrect: refers to barrister of Exchange Chambers not Wirral Council officer.
Unredacted text: To Miss Sarah O’Brien

Details of redaction 10: “Sarah Rotheram”
Reason incorrect: Does not refer to Wirral Council employee.
Unredacted text: Sarah Rotherham

Original document is below, followed by the same document with my annotations in green (although it is possible Wirral Council’s legal department have gone too far with the black pen in places).

There is a related Freedom of Information Act request to this of Ian Lewis on the Whatdotheyknow website “Use of barrister in Wirral Borough Council v. Kane and Woodley” which provides a little more detail.

redacted invoice Fernbank Farm court case Carol Kane Eileen Woodley Metropolitan Borough of Wirral
redacted invoice Fernbank Farm court case Carol Kane Eileen Woodley Metropolitan Borough of Wirral
unredacted invoice Carol Kane Eilieen Woodley Metropolitan Borough of Wirral Birkenhead County Court invoice £1800
unredacted invoice Carol Kane Eilieen Woodley Metropolitan Borough of Wirral Birkenhead County Court invoice £1800

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EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

EXCLUSIVE: 1 letter, 4 emails and a note, Wirral Council’s incredible “behind the scenes” responses on Fernbank Farm

“If you make money your God, it will plague you like the devil.”

This is very long and detailed. Today may well be the last time I write about the ins and out of the Fernbank Farm saga (unless more documents surface or something dramatically changes), as I can’t see anything changing in the near future. I hope however that this gives an insight about what happened “behind the scenes” at Wirral Council, as if the tenants were kept in the dark by what seemed to them to be a conspiracy of silence, how can politicians hold officers to account on this topic without knowing the full details?

The first document I below is a letter dated 14th March 2014. The context to this letter is that after the fast track trial, the husband of one of the two defendants made a complaint to Wirral Council. This letter is the reply. I’ve not included the Wirral Council logo on the letter, Malcolm Flanagan’s signature or the www.wirral.gov.uk that appears at the foot of each page.

The letter refers to the letter sent in July 2012 to the tenants with the eviction notice (and which forms part of the eviction notice) as the “wrong letter”.

(Wirral Council logo)

Transformation and Resources Department
Joe Blott,
Strategic Director

PO Box No 2,
Treasury Building
Cleveland Street
CH41 6BU

date 14 March 2014

to Mr M Woodley

your ref
my ref Farm3/MJF/DM
service Transformation and Resources – Business Processes
tel 0151 666 3260 Please ask for Malcolm Flanagan
email malcolmflanagan@wirral.gov.uk

Dear Mr Woodley,

Fernbank Farm complaint

I refer to your complaint of 18 February 2014, regarding the above matter as well as the pack of information including memory stick that you submitted to me on 24th February.

I have been asked to review your complaint under the authority’s complaints process. I have looked at the matters you raise in how the authority acted in these proceedings. I have reviewed your comments as well as the information available to me and spoken to the officers concerned and set out below my views of the complaint.

As far back as 2000 the land in question had been allocated as a potential housing development site/primary residential as identified within the Council’s Unitary Development Plan. The restriction of developing such green field land which had been in place for some time was abolished nationally in May 2012. This then opened up the possibility of the property to development and realising a very significant capital receipt once it had been agreed by the authority. This national change was put before Cabinet on 27 September 2012 and the development restraint was effectively withdrawn on 15 October 2012 at Council.

The authority’s budget process identifying the stark financial position of the authority came to the fore in the September period under the direction of the Interim Director of Finance. It was at this point that wholesale reviews of authority expenditure, income and assets were undertaken. At the Council meeting in October this detailed the severe financial challenge the authority and that it must take drastic action to balance its budget.

It is then as the scale of the budget issue crystallised this property’s standing as a sizeable and realisable asset increased significantly in importance. It is my view that it was this budget process that changed the authority’s position on this property and it was not its original position.

I am satisfied that, despite what the later actions or inactions may make this look like, in May 2012 there was I believe an intention on the part of the authority to negotiate a new lease with the current tenants. I believe this is shown from the early contacts between the tenants and the authority.

I do not believe the authority intentionally used the wrong letter in July 2012. It is clear though that by some time no later than November 2012 the authority had chosen not to respond to enquiries in recognition of how the authority preferred to see the situation develop. I accept the tenants did write and phone but the authority did not respond and I do not think the authority denies this. At the hearing the authority’s officers said this is what they did and why they did it. The Judge at the hearing described this as “staying silent” and it is seemingly something a landlord can legally chose to do, as the tenant still has an available remedy to apply to the court to protect their own position.

I can though understand your concern on this stance and that the tenants were given no clear signal that this was the authority’s developing position. Again I appreciate your view on this non engagement and how you judge whether this is an appropriate way of transacting business as a public body.

In your complaint you asked who authorised the change in position in effect to “stay silent” and were they entitled to do that. My understanding is that officers in Asset Management have within their job description to act in a commercial manner and to effect the best position for the Council. In my interview with David Armstrong he made it clear that while the decision had predated him given the scale of the budget issue he could foresee no other alternative that he could have taken if it had been his service area at the time.

You have also commented that Mr Armstrong was unaware of the legal action. I have spoken with him and having looked at the timing of contacts no other action than the letter of August 13 was being referred to by you. He is clear that when speaking to you he thought from the information you gave that something else had been done without him being aware. This was not the case and it was the August 2013 being referred to.

Reviewing all these matter, I believe that it was a proper and legal position that the authority was entitled to take in recognition of its budget situation. In its formal role as Landlord, it acted within its rights, in a way to best manage its interest which was to re-acquire the property and realise the best possible receipt for use as capital in the future.

I fully realise you will view that differently. The stance taken by the authority was a formal and legal position but I realise how that translates in human terms on the impact it has on the longstanding tenants and the associations members.

Regrettably whilst appreciating your concerns on the authority’s manner of getting to the position it favoured, I cannot uphold your complaint that it was wrong of the authority to do this. I accept that the “non action” did not alert the tenants to the change in the Landlords intention as it was not something they anticipated from the authority.

Whilst I cannot uphold your complaint for the above reasons, I do appreciate the strength of feeling it has caused in so many people affected by this.

At the recent hearing the Judge gave the authority the right to take back the property I believe, in six months from the date of the decision. I am aware that Mr. Armstrong, Assistant Chief Executive, at the hearing indicated the offer of occupancy by the group for a longer period of 12 months. I believe this shows as the senior officer Mr Armstrong is keen to try to offer support for the club and not just act as quickly as the law allowed.

I have spoken to Mr. Armstrong and he is keen to mitigate the loss of the land to the group. He has also indicated to me his intention is to have the officer’s look at alternative sites for the group and to hopefully agree a suitable way forward over the next few weeks. I have had no reason to doubt the authority’s intention to support this process, while realising a very considerable asset, to help as much as reasonably possible those affected by its decision.

I do realise you will be disappointed by the outcome of my review in not supporting your complaint. However I remain clear that whilst all was done by the authority in a legal manner I appreciate how the change to a more commercial operation in handling this situation has been seen by those affected.

I have to advise you that my review is undertaken at Stage 1 of the authority’s complaints process. If you are dissatisfied with my review you do have the right to request a further review, which can be requested by writing back to me and it would be reviewed by another officer.

Yours sincerely,

(Malcolm Flanagan’s signature)
Malcolm Flanagan
Head of Business Processes

Below are some emails and a note that show what was happening “behind the scenes” at Wirral Council.
From: Dickenson, David
Sent: 23 January 2013 10:54
To: Voas, Sandy
Subject: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Sandy

As discussed Upton Pony Owners lease land at Sandbrook Lane Moreton and the section 25 notice has been served to terminate the lease on 31st May 2013. The trustees are Mrs Kane and Mrs Woodley. Please can no further invoices be raised or any rent accepted after 31st May 2013. The tenants are not aware yet but the Council may be looking at the future of this land.



David Dickenson MRICS
Asset Management Surveyor
Asset Management Section
Wirral Council
Cheshire Lines Building
Canning Street
From: Coathup, Cheryl
Sent: 20 May 2013 12:07
To: Dickenson, David
Subject: Telephone Message – Mrs Kane
Follow Up Flag: Follow up
Flag Status: Red

Can you please phone Mrs Kane – 678 XXXX, she is awaiting a response from a letter she sent in 3 weeks ago.

Cheryl Coathup

(Technical Assistant)
Department of Law, HR and Asset Management
Asset Management Section
Tel: 0151 666 3878
Fax: 0151 606 2090
email: cherylcoathup@wirral.gov.uk

From: Jones, Debbie A.
Sent: 20 May 2013 15:48
To: Dickenson, David
Cc: Voas, Sandy
Subject: RE: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Dave

Sorry we don’t have the facility to stop payments coming in at all. All we can do is refund straight away if we receive a payment in.
From: Dickenson, David
Sent: 20 May 2013 15:38
To: Jones, Debbie A.
Cc: Voas, Sandy
Subject: FW: Upton Pony Owners Lease, Sandbrook Lane, Moreton

Hi Debbie

After 31st May although no new invoices will be sent out, can the account be changed so no rent can be paid onto old invoices as this would also be classed as them paying the rent by a court.



From: Jones, Debbie A.
Sent: 13 August 2013 14:23
To: Dickenson, David; Simpson, Tony
Cc: Voas, Sandy; Chan, Kit C.; Bayatti, Ali N.
Subject: Upton Pony Owners Association

Hi Dave

I refer to another £350.00 standing order payment received against the above mentioned customer 4206583 dated 1st August 2013. Even after the customer number had been made inactive on the AR system, it appears any money being received quoting a valid customer will still appear on their account.

I have again refunded the money back to the Associations bank account but this time have asked for another customer number to be set up with the clients address details and merged the old customer number 4206583 with the new one, therefore making 4206583 invalid so hopefully as the Association quote their customer number when paying by BACS/Standing Order the AR system will now not recognise it as a valid number and place it in our unidentified payments were we will be able to refund straight away without the money hitting their account.

Can you please confirm and send me a copy of the letter that you have sent to the above requesting that they now cancel the standing order payment.


(Debbie Jones signature)
(Wirral Council logo) WIRRAL BOROUGH COUNCIL
Accounts Receivables
Debbie Jones
Accounts Receivable Income Officer
Revenues Services/ Business Processes

20th May 2013

After 31st May 2013 Pony owners will have lost the right to renew if they do not apply to court but Sundry debtors must not charge or accept any rent.
Spoke to Tony after getting first message and again, ignore phone call as any commercial firm would do.

Tony has spoken to David Armstrong about situation.

Spoke to Peter Rowlands after 31st May need to apply to court to get them off, after 6 months get protection again. Peter will need to check with Anne Quirk. V important that Council accepts no rent.

Emailed and spoke to Debbie Finance cannot stop any rent payments being received either by tenant using customer number old invoice number of name. Debbie checked with IT.
* Peter Rowlands is Wirral Council’s officer contact for property that they are auctioning off through Pugh Auctions. Therefore it is clear that Wirral Council’s intention was to get a possession order for Fernbank Farm, evict the tenants and sell the property off to the highest bidder. Obviously before then a Cabinet Member would have to decide to declare it “surplus to requirements” which is something that can’t be decided while the tenants are still there.

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District Judge Woodburn grants Wirral Council Possession Order: Pony Club given a year to leave Fernbank Farm

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

District Judge Woodburn grants Wirral Council Possession Order: Pony Club given a year to leave Fernbank Farm


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

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

In the Birkenhead County Court in Wirral Borough Council versus Kane & Woodley (case 3BI05210) after a two-hour hearing people were invited back into Court Room 1 to hear District Judge Woodburn’s judgement.

He asked people to “please have a seat” and said was now going to deliver his judgement, asking everyone to remain silent until the end when he would invite representations from the parties to the case.

District Judge Woodburn said that it was a claim by Wirral Metropolitan Borough Council to recover possession of land. The defendants were trustees of Upton Park Pony Owners Association and tenants of the said association had occupied the land for many years. A formal lease to the land had been formalised with the association on the 29th July 2008. This lease had been from the 1st June 2008 to the 31st May 2011. The rent had been £4,200 a year paid monthly on the first of each month. The lease enabled the defendants to use it for grazing and a paddock for gymkhanas. In his mind there was little doubt that this was a business use and leased for that purpose.

The method of termination had been the Landlord and Tenant Act 1954 c. 56. When the fixed term had ended nothing had happened. The 1954 Act detailed steps in protecting the position of the tenants in terms of expired leases until a notice to terminate a statutory tenancy. The landlord had been the first to act and the notice dated 13th July 2012 was each on each of the defendants, which was a notice to terminate the statutory tenancy.

Each notice had followed the prescribed form, which was a strict form determined by regulations made by the 1954 Act. The notice to each defendant stated that the tenancy would come to an end on the 31st May 2013, this notice was dated 13th July 2012, therefore there was in excess of ten months notice given to terminate the tenancy.

He had heard and read the evidence of David Dickenson that the notices were properly served. The notices were both in the same form so he would refer to just one notice. Paragraphs two, three, four and five of the notice were given to end the tenancy. Wirral Council was not opposing a new tenancy as of July 2012 which was set out in a schedule to the notice referred to later. Paragraphs four and five were quite clear that if you can’t agree than either you or the landlord could ask the court to grant an order for a new tenancy and that if you wished to do so you must do so by the date in paragraph two.

This date was the 31st May 2013 and it must be done by this date unless there was agreement in writing to a later date before the date in paragraph two. There was no document in writing agreement to extend the date. Schedule two set out the proposed terms, £4,500 a year as opposed to £4,250 plus legal fees of £500. All other terms were as per the old lease.

The question that arose was what the defendants did in response. It was left principally to Mrs Kane and he had heard the evidence of Mrs Kane. He was satisfied that Mrs Kane had made contact and tried to reach terms and that he was satisfied of an intent to seek reduction in the rent and costs sought in the schedule. District Judge Woodburn was satisfied that this was the intent on behalf of the association to secure a new lease.

He was satisfied by the evidence of Mrs Kane and Mrs Woodley that they had each received and read the notices and understood the notices. From the evidence there were two issues, the argument lawyers refer to as estoppel, which means a representation made and relied upon that results in a detriment arising and the second issue was whether formal agreement with David Dickenson with regards to a new lease.

There was a technical issue regarding arguments, but no witness statement with regard to estoppel or agreement presented. The Claimant had cross-examined and sought to elicit when she could have renewed the lease. District Judge Woodburn said that the matters before him as to estoppel originate from the fact there must have been a representation on behalf of the Claimant, representation from David Dickenson (Asset Surveyor) on behalf of Wirral Council.

David Dickenson’s evidence to District Judge Woodburn had been that in about October 2012 he had received instructions from his line manager not to agree terms to a new lease with the trustees of the association, which ran contrary to the terms of the notice sent in July specifically paragraph three which stated that Wirral Council were not opposed to granting a new tenancy. David Dickenson had said the policy and changed and he had clear instructions not to agree the tenants a new lease.

District Judge Woodburn could find no evidence that these instructions were communicated to the defendants due to the manner in the way David Dickenson effectively avoided communication with Mrs Kane. By April 2013 there had been a number of phone calls to Wirral Council by Mrs Kane to speak with David Dickenson. Apparently she caught up with David Dickenson by April as there is a letter dated 17th April “Dear Mr Dickenson, As requested a letter re the new lease”, the letter sets out Mrs Kane’s position as to the local authority’s proposals with regards to schedule two of the notice. It set out expenses incurred over the previous year, her feelings that the £500 legal costs were not warranted and that she would be grateful if he could look at the expenses of upkeep.

The letter stated that she would like to renew the lease for a rent of £4,250 which was the rent set out in the lease that had expired at May 2011, not on the terms set out in the notice. The letter sought to object to terms put by the Council but there appeared to have been no response to the letter.

Page 37 referred to a note of the telephone call of Mrs Kane to Wirral Council chasing the letter and wanting a response and referred to the letter of 17th April as being sent two weeks ago. There was a further phone call by Mrs Kane wanting a response on the 20th May 2013 as the tenancy was to end on the 31st May 2013. As to whether any reliance at all can be placed on this at all, it seemed to District Judge Woodburn that from the letter dated 17th April it repeated a request for a response which suggested to him that Mrs Kane had received no response at all and there was no binding agreement between the parties.

Evidence of Mrs Kane suggested that she was frustrated by the excuses over why Wirral Council did not respond, however we now know that David Dickenson was under instructions not to engage in discussion and was therefore keeping out of the way. The letter of the 17th April did not propose accepting the terms in the schedule to the notice by the landlord.

Overall on factual issues, no terms were agreed between Wirral Metropolitan Borough Council and Kane & Woodley on behalf of the Association. On balance there were no facts that a binding agreement was reached. The fact that she was chasing a response corroborates the evidence that Wirral Council would see if they would take up the option to apply to the court, if not then Wirral Council would secure a windfall.

If the defendants had applied the likelihood is that the court would have been obliged to give them a new tenancy on the terms agreed or those found appropriate and reasonable by the court. No representation was made by David Dickenson that might of swayed or dissuaded Mrs Kane or Mrs Woodley. No representation was made on which the defendants might place any reasonable reliance.

If “don’t worry” was used, it did not prevent this as the letter of the 17th April shows that they were not of like minds with regards to the lease. The date of 31st May came and went. This was fatal. If no application had been made to the court by this date the defendants lose the right to continue their occupancy which is what the notice said and meant. Any reading of the notice would tell you what you should do and there is agreement it was read. By the middle of May no agreement had been reached.

The business tenancy ended on the 31st May and District Judge Woodburn was satisfied by the evidence that no other tenancy formal or otherwise was created therefore was compelled to grant an order for possession of the land to the local authority principally on the basis of the inaction of Mrs Kane and Mrs Woodley.

District Judge Woodburn said it was a pity but a salutary lesson to members of the public doing good work in the community that trustees had obligations that were real and had far reaching consequences. The notice was clear and had given the defendants the opportunity to apply to the Birkenhead County Court if agreement was not reached or the landlord just kept on avoiding them. The opportunity was not taken up, which is why the tenancy was lost. He asked for representations on the order.

Sarah O’Brien (the barrister acting for Wirral Council) said that they were relaxed, but referred to s.89 of the Housing Act 1980 and referred to forty-eight days being only in cases of exceptional circumstances.

District Judge Woodburn disagreed with her and said that s.89 of the Housing Act 1980 applied to only residential tenancies.

Sarah O’Brien acting for Wirral Council said that s.89 of the Housing Act 1980 referred to possession of land and was content with whatever District Judge Woodburn saw fit.

District Judge Woodburn pointed out there were ten horses on the land. Mrs Kane referred to the difficulty of finding stables. District Judge Woodburn said that alternative arrangements were going to have to be made. He said a reasonable period to find alternative arrangements for the ten horses was six months. If in that time there were still difficulties, the Court must be told what the difficulties are. He felt that six months was reasonable considered the number of owners and the historical use of the site.

Mrs Kane pointed out that the association had sixteen hundred members. District Judge Woodburn said that the association was not affected and that they had a right to keep horses. Mrs Kane referred to the Pony Club. District Judge Woodburn said he understood the history of the Association. It was however left to the local authority as to whether they would agree to an extension of times or any other tenancy.

Sarah O’Brien acting for Wirral Council said that she had received instructions that they had no objections to twelve months. District Judge Woodburn said he was grateful for that. Mrs Kane referred to the letter to relocate them sent twelve to fourteen years ago which referred to relocated them and building new stables.

District Judge Woodburn said, “What can I do? I can’t make an order”. Mrs Kane said it was hard to find stables on the Wirral. District Judge Woodburn said he appreciated the position the defendants were in and was grateful that the local authority had extended it to twelve months. He said that he hoped that Wirral Council could listen and give consideration to members of the association, who were members of the community and council tax payers, whether any alternative arrangements for the association could be found. However he had to deal with the structures of law and that was the pity.

District Judge Woodburn said he had a description that the defendants by 4pm on the 13th February 2015 shall deliver possession of the land situated at Sandbrook Lane, Moreton and asked if there was to be an order for costs?

Sarah O’Brien (the barrister acting for Wirral Council) said Wirral Council were not requesting an order for costs.

District Judge Woodburn said “OK”. He told Mrs Kane and Mrs Woodley that they would get a copy of his Order through the post. District Judge Woodburn said that he hoped notwithstanding the Order that there might be some accommodation to the members of the Association, he couldn’t influence it but he could make an observation. He wished Mrs Kane, Mrs Woodley and the association the very best.

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Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial

Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial

Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm) returns to Birkenhead County Court for Trial


The court case involving Wirral Council seeking a possession order for Fernbank Farm is listed for a fast track trial at Birkenhead County Court on the 13th February 2014 starting at 10 am in front of District Judge Woodburn.

The previous hearing in this case (Wirral Borough Council -v- Kane & Woodley case number 3BI05210) was reported as an exclusive by this blog in two parts. These are the links to the previous detailed blog posts on part 1 of the November hearing in Wirral Borough Council v Kane & Woodley and part 2 of the November hearing in Wirral Borough Council v Kane & Woodley.

To recap what happened at the previous hearing, Wirral Council was keen that the case moved ahead and as the defendants had run out of money to pay for legal representation, Cllr Ian Lewis offered to represent them both. The defendants were asked to file witness statements. As the case is now listed for trial and at that hearing the Deputy District Judge told the defendants that if they didn’t file witness statements that judgement would be entered in favour of Wirral Council, they must have done so.

The case is proceeding on the basis of it being a part 8 claim. The trial is expected to last two and half hours, with half an hour set aside for District Judge Woodburn to read through the case. At the end of the trial the issue of costs will be decided.

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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