Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement

Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement

Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement

                                

Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for Employment Tribunal case 2400718/16)
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for Employment Tribunal case 2400718/16)

This is a report of a very small part of an Employment Tribunal hearing I attended (the judgement). By this point the matter had already been heard over 9 days and this was day 10 of 10. Brief details are below.

Venue: Tribunal Room 2, Third Floor, Liverpool Civil and Family Court Hearing Centre, 35 Vernon Street, Liverpool, Merseyside, L2 2BX

Case reference: 2400718/16

Appellant: Mrs A. Mountney

Respondent: Wirral Metropolitan Borough Council

Employment Judge: Judge Robinson

Tribunal Members:
Mr AG Barker
Mrs JE Williams

Clerk: Lynne Quilty

Date: 10.2.2017

Time: 3.18 pm


Continue reading “Employment Tribunal (Alison Mountney v Wirral Council) Day 10 of 10: Judgement”

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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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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