Tag: Sarah O’Brien

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

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

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

                    

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

Continues from Mrs Kane faces questions from Sarah O’Brien (barrister) and District Judge Woodburn in Wirral Council v Kane and Woodley (Fernbank Farm).

Mrs Kane is questioned by District Judge Woodburn
Mrs Kane asked why they would pay for a further twelve months of public liability insurance if the lease hadn’t been renewed? District Judge Woodburn said something brief to which Mrs Kane said that Wirral Council had been “ignoring us”. She said that Wirral Council could only get out of renewing a protected lease if they had broken the terms of the lease and referred to a letter from 2012. District Judge Woodburn referred to an agreement. Mrs Kane said yes, that they thought that Wirral Council agreed to renewal.

District Judge Woodburn asked Mrs Kane why she had not done as suggested in paragraph five (which refers to applying to the Court)? Mrs Kane said she had spoken with David Dickenson in April or May and as far as she knew the lease was going through. The first thing she knew it hadn’t was in August when she received an invoice for £700. She rang the number and was told it was for rent because they’d given up the land which was the first thing she knew. Two days after she received details about Wirral Council’s request for a possession order. District Judge Woodburn said that Mrs Kane could return to her seat and swap with Mrs Woodley.

Mrs Woodley takes the witness stand
Mrs Woodley said, “I swear by Almighty God to tell the truth, the whole truth, and nothing but the truth”. District Judge Woodburn asked her name to which she replied “Valerie Patricia Woodley”. He asked her to have a seat and pointed out that she had not made a witness statement. District Judge Woodburn referred Mrs Woodley to a document at page fifteen and asked if it was her handwriting? She answered, “Yeah”. District Judge Woodburn asked her to go over the page to page seventeen and eighteen and asked if that was her handwriting? Mrs Woodley gave the same answer.

District Judge Woodburn asked if it was a statement made in support of the defence? She answered, “Yeah”. He asked her a further question, she answered then he said if she wished to she could have a seat.

Mrs Woodley is cross-examined by Sarah O’Brien
Sarah O’Brien, barrister for Wirral Council asked her to confirm the document was true, which referred to an alleged conversation between David Dickenson and Carol Kane. She said “yes”. Sarah O’Brien said that Mrs Woodley had no knowledge of the conversation as she had not taken part in it. Mrs Woodley explained that she had put that in because her mother was ill. Sarah O’Brien asked another brief question to which Mrs Woodley answered “no”.

Miss O’Brien asked Mrs Woodley if she accepted that she’d received a copy of the eviction notice which intended to end the business tenancy? Mrs Woodley answered “yes”. District Judge Woodburn referred to when she received the notice at page twenty-two in the bundle that it looked like that. He asked her to have a quick read of paragraph five. He referred to having to apply to the court to grant a new tenancy by the date in paragraph two (31st May) and whether she knew this? Mrs Woodley said that when her mum (Mrs Kane) was speaking she’d told her that they didn’t need to because they were in negotiations. District Judge Woodburn asked her if she had anything to add, she replied “no”. He asked her if she agreed with Mrs Kane to which she replied “yes” and if there was anything else she wished to add to which she replied “no”. District Judge Woodburn asked her to watch her step as she left the witness stand and that Mrs Kane and Mrs Woodley were not putting forward witnesses so he wanted both parties to summarise.

Mrs Kane asked if Cllr Ian Lewis (her McKenzie Friend) could summarise for her? District Judge Woodburn said “no”. She asked what about Martin Woodley? District Judge Woodburn said that Mr. Woodley was in the same position and that he thought both defendants could summarise in their own words what the case about. He said that they (the defendants) had done well up to now regarding their views. He said to summarise what the case is ultimately about is the fact that they didn’t apply to the court for a new tenancy, they said they didn’t do so because of what they were told which is their sole contention.

Mrs Kane summarises
Mrs Kane said that in forty years they’d never had a penny off Wirral Council. She continued by saying that many years ago when Wirral Council told them that they were moving them to a different place that Wirral Council had changed their minds and said they would not build on that site so they’d decided to stay. She said that they’d made new fences at a cost of thousands of pounds and repaired them after a storm. Mrs Kane said that she had been asking Wirral Council to be lenient about the cost of renewing the lease but they’d been stopped from renewing only because they were guilty of believing and trusting what Wirral Council were saying.

Mrs Woodley summarises
District Judge Woodburn asked if Mrs Woodley had anything to say? Mrs Woodley said that she agreed with her mother. She said that when they contacted Cllr Ian Lewis that he had confirmed that they must have taken the decision not to renew the lease. District Judge Woodburn referred to the evidence of David Dickenson with regards to his instructions. Mrs Woodley said that it was not from the Council. District Judge Woodburn said “that may be the case”. Mrs Woodley said that their “only crime was to trust” and that Wirral Council made it “impossible to renew the lease” and had done “everything possible to stop” them.

Sarah O’Brien (barrister for Wirral Council) summarises
District Judge Woodburn asked Sarah O’Brien to summarise Wirral Council’s case. Sarah O’Brien said that what the solicitor had provided was the prescribed form from the HMCS [Her Majesty’s Courts Service] website and that it was a standard form.

Ed – although she’s just repeating what she’s been told, the HMCS website doesn’t actually have this on it. The prescribed forms are part of the legislation and are on this website Schedule 2 of SI 2004/1005 (The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004), a site that has UK laws on it run by the National Archives.

District Judge Woodburn said “yes, thanks”. Sarah O’Brien said that she would be very brief. Sarah O’Brien said the tenancy was properly terminated in accordance with the Act and that the only defence raised was estoppel. District Judge Woodburn said that the evidence of the two parties was different as to whether there was a binding agreement which would mean an application to the court was not required.

Sarah O’Brien referred to evidence that contradicted that assertion, as the defendant had sent a letter proposing alternative terms. She said that the defendants say that the communication with David Dickenson was highly relevant and important but that it didn’t appear in their defences which is not to say it didn’t take place. District Judge Woodburn asked someone to please not interrupt her.

Sarah O’Brien referred to pages thirty-seven and thirty-eight which referred to chasing a response. She said that if she had received an assurance regarding the terms agreed, then there was no need to be chasing a response. Miss O’Brien said that the evidence did not support the assertion that new terms were agreed.

The second point Miss O’Brien made was a further suggestion that David Dickenson had told Mrs Kane categorically that she did not need to apply to the Court. If this had been said they why didn’t it form part of the defence rather than vague assertions such as being told “not to worry”? Miss O’Brien said that the only reason was that it was not said. She continued by saying that the assertion made that David Dickenson told her “not to worry” needed a clear context and the representation was too vague for it to be reasonable that it could be relied upon.

Miss O’Brien said that the notices were received and read and it was not a question that they were prevented or couldn’t make an application to the court and that was why the lease was not protected. She said that whether Wirral Council agreed to the terms or there was estoppel were facts, therefore Wirral Council should be entitled to a possession order.

District Judge Woodburn said he was going to take a break to consider, then he would invited people back and give judgement on the factual issues. He thought it was best for everyone to have a break. He would let the usher and clerk know when he was ready. The court usher would then ask people to come back in.

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

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Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

Mrs Kane takes the witness stand in Wirral Council v Kane and Woodley (Fernbank Farm)

                       

Continues from Mr Dickenson 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

Carol Kane takes the witness stand
District Judge Woodburn asked if there were other witnesses? To the defendants Mrs Kane and Mrs Woodley he said that the situation was that a notice was served and the notice had provisions as to who could give evidence.

Mrs Kane approached 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 asked her to keep her voice up as it was being recorded. He said she had a soft voice so it may be best to move closer to the microphone. He asked her for her name. Her reply was “Caroline Lynn Kane”. She was asked for her address by District Judge Woodburn, she replied “8 Cranbourne Avenue, Moreton”. District Judge Woodburn asked if she was at the same address as in the lease dated 2008 to which she answered “yes”.

District Judge Woodburn asked her if she’d entered into a lease with the other defendant Mrs Woodley with Wirral Borough Council in relation to just over ten acres of land in Sandbrook Lane dated 29th July 2008? Mrs Kane answered “yes”. District Judge Woodburn asked how long the lease was for? Mrs Kane answered “three years”.

District Judge Woodburn said that that covered the period 1st June 2008 to the 31st May 2011, but what happened after May 2011? Mrs Kane said that she had phoned David Dickenson and told him that they hadn’t heard from Wirral Borough Council for three years and that the lease was up for renewal. She had told him that she’d been told that she’d be “hearing from [Wirral Council] soon” and that from 1998 to 2008 they’d had the same lease so she thought Wirral Council had “forgotten about us again”.

District Judge Woodburn said that that was about May 2011 and asked her when she next heard from Wirral Council? She answered that the next time they heard from Wirral Council was in November 2012. District Judge Woodburn asked her what happened in November 2012? Mrs Kane answered that they received a notice ending the lease but saying that Wirral Council were willing to renew the lease.

District Judge Woodburn asked her what had happened when they had received a notice like this before? Mrs Kane replied that every time (prior to this) the lease was up for renewal that they had got a new one. District Judge Woodburn asked what happened on previous occasions. Mrs Kane replied that the rent had been increased and the legal fees. District Judge Woodburn asked what happened when she received the notice? Mrs Kane said she got in touch with Wirral Council as they wanted to renew. She added that they’d had a lease for forty years and that she signed and sent back the new lease along with proof of their public liability insurance cover. District Judge Woodburn asked who had asked for it? Mrs Kane replied that Wirral Council had said that they needed proof of public liability insurance so she had sent them proof.

District Judge Woodburn asked after the lease came to an end did Wirral Council ask for proof of public liability insurance? Mrs Kane answered yes in a letter she was sent. District Judge Woodburn asked her if Wirral Council asked after May 2011, Mrs Kane answered yes in 2012. District Judge Woodburn asked if she had got the letters with her? Mrs Kane said that the letter said to renew the lease that they were to send proof of the public liability insurance with the signed lease.

District Judge Woodburn asked was this in the period after May 2011 and did she have the documents with her? Mrs Kane said she had got proof of posting of the lease back to Wirral Council and that it said in the papers that were sent by recorded delivery.

District Judge Woodburn asked if she was referring to the letter Wirral Council had written to her with a draft lease? She answered yes. Sarah O’Brien, barrister for Wirral Council said that there was no evidence of that. District Judge Woodburn told Sarah O’Brien to wait. Mrs Kane said that Wirral Council did send a letter with the notice to quit which said that Wirral Council were not averse to renewing the lease and to get in touch with David Dickenson. The terms of the new lease were sent with the letter.

District Judge Woodburn directed people to the notices in the bundle he had. Mrs Kane agreed with District Judge Woodburn. District Judge Woodburn directed people to paragraph 3 that stated “I am not opposed to granting you a new tenancy. You will find my proposals for the new tenancy, which we can discuss, in the Schedule to this notice.” and paragraph 4 which stated “If we cannot agree on all the terms of a new tenancy, either you or I may ask the court to order the grant of a new tenancy and settle the terms on which we agree.” He asked if Mrs Kane could see paragraphs three and four? She answered yes.

District Judge Woodburn pointed out that paragraph four stated that if there wasn’t agreement then either the landlord or tenant could ask the court. Mrs Kane said she had told David Dickenson that they would pay Wirral Council for the lease. District Judge Woodburn asked how she had told David Dickenson this, by telephone? She answered yes.

District Judge Woodburn asked her if she had told him by letter? She replied that there was a handwritten letter regarding Wirral Council’s costs. He asked where it was in the bundle to which Sarah O’Brien, barrister for Wirral Council replied page 35.

District Judge Woodburn asked Mrs Kane if she was referring to the letter dated Wednesday April 17th 2013? She said yes. District Judge Woodburn referred to the letter that stated they had had a bad year and were disagreeing with the terms of the lease, therefore she would be grateful if they could look at the expenses that they had had to pay out regarding the upkeep of the land. He said it didn’t look like the lease had been sent back on the terms offered.

Continues at Mrs Kane faces questions from Sarah O’Brien (barrister) and District Judge Woodburn in Wirral Council v Kane and Woodley (Fernbank Farm).

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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).

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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).

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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).

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