Witness statements, rules & regulations, possession and estoppel 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
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]?
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.
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