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  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.
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