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

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

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

                     

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

Contents

The Acknowledgement of Service Form (Part 8 Claim)

Acknowledgement of Service Form Page 1

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

Acknowledgement of Service Form Page 2

Claim No 3BI05210

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

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

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

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

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

Defence Form

Defence Form

Claim No 3BI05210

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

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

Amended Defence

Amended Defence Letter

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

Dear Sirs

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

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

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

Yours faithfully,

(signature of Valerie Woodley and Carol E Kane)

Carol Eileen Kane

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

Amended Defence Page 1 of 3

IN THE BIRKENHEAD COUNTY COURT

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

Amended Defence Page 2 of 3

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

IN THE BIRKENHEAD COUNTY COURT

Claim no. 3BI05210

BETWEEN:

Wirral Borough Council

Claimant

-v-

Carol Eileen Kane

Defendant

__________________________

AMENDED DEFENCE

__________________________

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

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

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

1

Amended Defence Page 3 of 3

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

DATED this the 03rd day of December 2013.

STATEMENT OF TRUTH

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

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

(Dated) 4th December 2013

Claimant

To: the District Judge

And To: the Defendant

2

Court Order (29th November 2013)

Court Order (29th November 2013)

General Form of Judgement or Order

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

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

Upon the Court’s own motion

IT IS ORDERED THAT:-

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

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

Dated 28 November 2013

_______________________________________________________________________________________________________

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

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

Possession Order (February 2014)

Possession Order (February 2014)

General Form of Judgement or Order>

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

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

Upon hearing Counsel for the Claimant

IT IS ORDERED THAT:-

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

2) No order as to costs

Dated 13 February 2014

_______________________________________________________________________________________________________

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

N24 General Form of Judgement or Order

Produced by: N Swann

CJR065

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

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

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

            

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

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

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

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

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

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

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

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

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

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

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

Where are the regulations?
Sarah O’Brien, counsel for Wirral Council asked what the issues were likely to be? District Judge Woodburn asked her if she had a copy of the regulations relating to s.25 of the Landlord and Tenant Act 1954 c.56?

Sarah O’Brien asked the Judge for the validity of his request? He said that Wirral Council were asserting compliance in their claim. Sarah O’Brien said something and the Judge replied that Wirral Council still had to prove their claim. Sarah O’Brien, counsel for Wirral Council said that there was “never any assertion that the notices were invalid or not served”. District Judge Woodburn said it was for Wirral Council to prove the notices were valid.

Sarah O’Brien, counsel for Wirral Council said that “if it is an issue we can get a copy”. District Judge Woodburn said that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Sarah O’Brien, counsel for Wirral Council said she would ask her solicitor to get a copy. District Judge Woodburn said that subject to that she could start.

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

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

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

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

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

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

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

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

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

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