Lowther at Court
We went to Preston Crown Court last week to follow what's been
going on with the Court case involving Lowther Gardens Cafe and the Trustees of Lowther Gardens charity.
We had lots of trouble along the way, and although the conflict was decided outside the court, we have a pen picture of what we saw, and we also bring a summary of the
Because agreement was reached out of court, it might be thought that everything in the Gardens is lovely. We'd quite like that to have been the case, but in practice, but we're not so sure.....
Those who only want to know the Outcome can skip straight to it. For the more curious, we begin with a short
Introduction followed by the story of how we Prepared to go to court, and our experience of Going to to court, the
Timings of which eventually made it clear the case would be settled outside the court itself, with barristers negotiating in the public area between
their consulting rooms.
We then summarise The Outcome of the agreement that was reached, before looking at The issue of costs and finally,
our own Conclusions on this matter.
It's probably not the case for those who are regularly involved with the UK's Court system, but our recent experience of it left us both confused and possessed of an impression
that it consisted of something approaching organised chaos.
Our lingering impression was akin to the experience of visiting a modern GP's surgery - where you often feel that arranging an appointment does not follow the normal
rules of being based on 'mutual convenience', but rather requires you to fit into their system and their timetable, because the whole process designed for the
convenience of professionals rather than those that use, and those that pay for, the service.
PREPARING TO GO TO COURT
Readers will recall we had heard Mr Lince from Lowther Gardens Trust tell the Tourism and Leisure Committee that the court case regarding the tenancy of the Lowther
Pavilion Cafe was being held at Preston on 11, 12 and 13th of this
month. We had made a note to sit in on the case so we could report for our readers.
So about a week or so before Monday 11th, we rang the Court to see what the form was, and whether there was a public gallery.
The court system has its own language and territorial idiosyncrasies, and all the menu options provided on the automated phone switchboard required information we didn't have - ('was it a this court' or 'that court') and suchlike.
Fortunately, our usual stock response to a myriad of unintelligible phone options had been catered for by the designer of the phone system and our refusal to press any
'option number' (and our not speaking) eventually led to what we argue should have been the first option: the presence of a carbon based life-form on the other end of the phone.
He soon worked out which court we needed, (Crown Court, he said) and put us through.
Another very helpful chap in the Crown Court department told us that it was the new building on the Ringway near Preston Bus Station, and we should go to the circular part
of the building which is the main entrance, up the steps through the airport-style security, up some more steps, keeping left, where we would see an enormous TV screen which
displayed all the courts and their programme for the day.
He said there was a public gallery, and folk like us were positively encouraged to turn up to see justice being done. He said we should go straight into the court 10 minutes
before the case was due to start and sit on the long bench on the left which was the public gallery. We could come and go during the hearing so long as we were reasonably quiet
He also said (rather ominously, we thought), that it was pointless him giving us details of the times of the case and so on because they would inevitably change over the
intervening week, so we should ring late on Friday afternoon to get what would be the final details for the following Monday.
It all sounded so easy. Too easy in fact......
The first fly in the ointment was that a couple of days later, we heard the case had been moved to a court in Burnley (for Heaven's sake).
Cue research of train times and accommodation near the court in Burnley. That experience suggested abandoning the whole attempt to visit the court
However, the sun shone again, and the hearing was (just as unexpectedly) switched back to Preston.
We rang late on the Friday to get the detail and this time took the risk of choosing an option from the menu. (It turned out to be the wrong one, but we were soon put
through to the right one).
This time we spoke to a lady whose initial tone suggested she might have had some form of distant DNA link to a mythical fire-breathing entity.
She said, dismissively, it was a civil court case and they were held in private. There's be no public access so we couldn't go.
We explained what we'd been told a week or so earlier and she agreed to make a further check. She did, and with both grace and personal surprise, she
said we were right. It was open for the public to attend. It was in Court 6 and started at 10:30.
GOING TO COURT
We went via the Park and Ride scheme on Portway and arrived at the Court with no problem. The curved main entrance had two doors - left-hand entrance for non-combatants,
right-hand entrance for legal professionals.
Inside you are immediately confronted with an airport style security check. Metals into a tray, then through an archway that bleeps, followed by a crucifixional-style (arms
spread) hand-held scanning experience.
Fortunately we'd checked online before going and were pre-warned about what may not be taken into the court building (including 'long umbrellas') and had minimised the extent
of our usually carried metallic accoutrements.
Next, (as our adviser had said), up the steps to the TV Screen - where the first snag appeared.
Screen after screen gave intimate details of what was on in each court, but Court 6 didn't appear at all.
There were also lecterns ranged round the rotunda. All of these had court details and cases on, but again, there was no lectern for Court 6.
The scene here was like a busy train-station; constant coming and going of legal professionals, their clients, admin folk from the court, and members of the public. And with 10:30
getting nearer all the time - we finally found a Reception Desk.
Sadly, it carried a rather unhelpful notice saying it would not be open until 2pm that day.
Notice boards were scanned to no avail, and the TV screen was re-checked again - as a last option - before an exploratory adventure around the periphery of the rotunda was attempted.
We discovered a sign saying 'Waiting area for Court 6' beyond some close glass doors - but it had no-one in it.
A chap in shirtsleeves (a good sign that he might be a 'local' we thought) was asked if this was the way to Court 6. He said no, we should go up to the first floor.
We did, but another expedition around the Rotunda at first floor level revealed no existence of Court 6. However, there was another flight of stairs, so up we went.
We found a cafeteria and a series of courts numerically descending from 10. We followed the numbers round the rotunda in the hope it would lead to Court 6.
We saw the entrances to Court 10, 9, 8 and 7, but no 6. At Court 7, the building ended with a room housing what seemed to be security staff, so we asked again. No-one had
even heard of Court 6.
Retracing our steps to the floor below we found a black-gowned Angel of Mercy who took pity on us and asked if she could help.
Whatever they were paying her, it isn't enough.
She said she worked there, but she didn't know where Court 6 was.
(By now, readers will understand and forgive us if we say that in our mind, Court 6 was beginning to share the status of 'Platform nine and threequarters' in the Harry
However she whipped out her phone and rang a friend elsewhere in the building. There was a brief exchange before she took us back to where the chap in the white shirt had sent
us away from ten minutes earlier. This time we were ushered through the doors into the 'Court 6 Waiting Area' and directed us to an office just out of sight of the doors. A lady
in there sent us to an Inner Sanctum to see an Usher.
Following her instructions, we entered the Usher's office and waiting room which had 'Consultation Rooms' down either side.
We knew we were in the right place now, because we recognised faces in some of the ante rooms - the parties to the conflict were consulting their legal advisers.
for the Usher to (hopefully) return to his desk at the far end of the room, we checked the notice boards and found there were three cases in Court 6, all scheduled to start at 10:30am.
The Usher eventually appeared, and we asked if we were in the right place to go into Court 6.
We were, and, having been asked to take a seat, we waited for the promised 'Clerk to the Court' who would deal with us shortly. It wasn't long before a black gowned lady flew
in, flapped round like an albatross and was preparing to leave when the Usher kindly drew us to her attention for the Lowther Trust case.
Hardly pausing in her flight to the exit, looking over her shoulder she called out, 'Oh that won't start until 11:30 or maybe 12 o'clock. Some of them have gone for a coffee.
Faced with an hour and half wait, we decided to do the same, and went to the cafeteria where, shortly afterwards, we were joined by another member of the public we knew who
had also come to witness the Lowther cafe, and
we whiled away the time in idle chatter.
The case should have started at 10:30 but we had been told to try again at 11:30, which we did.
TIME FOR THE CASE
We went back down to the Court 6 Waiting Area and settled on some seats that had their backs to the 'Lowther Trust' consulting room and were facing the 'Lowther Cafe'
We had seen that the warring factions were still ensconced in their respective consulting rooms, but from time to time - perhaps like the Bosnian peace process - emissaries could be seen crossing the no-man's land in
which we sat, en route to knock on the door of the 'other side' with a message or clarification or decision.
Evidently, the court case was being delayed because negotiations were taking place to establish whether an 11th hour settlement could be reached between the parties.
Noon came and went.
Eventually, the Barristers (at least we think they were the Barristers) replaced the lesser mortals and began negotiating a series of matters face-to-face in the middle of the central open space
'no-mans-land' waiting area where we were sitting. These negotiations were interspersed with repeated visits to 'their' side - (presumably to check
acceptability or not)
That was rather convenient for us because, as well as seeing the body language, we could sometimes lip-read and overhear snippets of what was being said.
The Barrister for Lowther Trust looked to us as though he was not altogether having a good day. There seemed to be quite a lot of frowning and his countenance was one of intense
and tight focus,
whereas the lady Barrister for the Cafe bounced out of her consulting room light of step, and was mostly possessed of a beaming (if, we thought, slightly mischievous-looking) smile for much
of the time.
It probably helped our impression of her that her agile deportment and easy, confident manner was topped with a swathe of gleaming hair looking as though it had its genetic roots deep
in Celtic origins.
As time went by, it became more and more clear that there wasn't going to be a court case, and that some sort of deal would be reached.
By mid afternoon it was all over, having taken more than 6 hours to negotiate.
But agreement had been reached, and we saw clear smiles on the part of the folk from the Cafe delegation as they came out of their Consulting Room.
We didn't actually see
the looks on the faces of the folk from Lowther Trust who were behind where we were sitting, but they did not seem to linger to shake hands or whatever, so we guess the
settlement isn't going to improve the relationship much going forward.
We understand it's a fairly complicated outcome, much of which we believe hinged on a recent legal case in the UK Supreme Court.
We think that case was known as 'S Franses Ltd'
and involved a similar situation to that prevailing at Lowther Gardens. (For as long as it exists,
readers can follow this link to download the press report of that case which we suspect swung the
argument toward the Cafe's favour more than had previously been expected).
The actual decision is something called 'Tomlin Order' which is a form of consent order from the Court that sets out what the parties have agreed to.
In this case, they've agreed to a new cafe lease for 15 years from 2015.
And, following a relatively early rent review, the rent is to be further reviewed every three years.
However, the usual statutory Security of Tenure Provisions in Part 2 of the Landlord and Tenant and Act 1954 (which have been employed by the Lowther Cafe lessee to contest
the non-renewal of the lease on this occasion) are excluded from the new lease by mutual agreement.
But from what we can see, that will (or may) only kick in if the Trust can get a scheme of redevelopment for the Pavilion together and support it with £1,500,000 of funds.
(That's £1,500,000 for the whole scheme, not just for the cafe).
Proof of that funding depends on written confirmation from the bankers of Lowther Gardens Trust, and requires that no less than £1,500,000 in funding (which can include
benefits in kind assessed at their equivalent market value) for the redevelopment of the Pavilion is available or has been expended for the redevelopment, and the Charity can,
in due course spend those funds for that purpose.
It's not clear to us whether the redevelopment as described (if it goes ahead) involves the much vaunted plan to extend the Pavilion, or whether it is simply an
internal refurbishment that would not extend the building.
But in practice, we understand new terms will see the Cafe set to remain in place for at least the next two years, after which it's continuing operation in the Pavilion will depend on:
- The Trustees producing evidence they have the estimated £1.5 million in the bank to fund the redevelopment of the Pavilion, and perhaps
- The Trustees being able to convince the Charity Commission that they should be allowed to override the present prohibition on extensions or additional buildings in Lowther
Gardens (as is currently set out in the valid version of the Trust's Governing Document).
We're still looking into the matter of the invalid version of the Governing Document and we expect to have more to say on that in future.
The prohibition on increasing the scale of buildings (in what was provided as a public open space with no significant buildings within it at all - and was self-evidently intended to remain
so)) currently still exists, both in the Trust's Governing Document, and as an enforceable Covenant in the deeds of land on which properties have been built around Lowther Gardens.
It might be, of course, that the Charity Commission could eventually be persuaded to revisit the wording of the Trust's Governing document. But even if that happens, the prohibition
will still remain actionable by anyone owning property nearby who also enjoys the benefit of the Covenant that seeks to provide peace, quiet and only non-controversial
activities in the tranquillity of the Lowther Gardens.
All of that being the case, it doesn't feel to us that the present cafe operation is going to disappear anytime soon.
WHAT ABOUT THE COSTS?
Readers will know that much of our dissatisfaction in this conflict is directed toward the Trustees who appear to have embarked on actions giving rise to a legal case without the certainty of being
able to fund it.
They applied this situation (and other pressures) to Fylde Council - which resulted in the Council deciding to fund up to £175,000 of the Trust's likely legal costs if the
Trust did not win the case and costs were awarded against them.
Irresponsible decision-taking of that magnitude could have resulted in a cost equivalent to everyone in Fylde having to pay more than £2 on their Council Tax bill just to
cover the legal costs of this case. And in our
view, that justifies those who were responsible for taking the decision not being responsible for other decisions in the future.
We don't know what (if any) arrangements have been made so far as funding the actual legal and other costs of the case. We imagine each party will have to pay what they
have spent on their own costs so far.
That's not going to be insubstantial for either party - especially as we heard there was a lot of additional and unexpected preparatory work done to establish the likely
operating costs etc for each party to operate the Cafe.
That alone might have lifted the total costs over the £175,000 anyway. We would not be surprised to find it has cost anywhere up to £100k for
each party to prepare their own case.
As yet, it's not clear whether Fylde will meet the Trust's costs from the taxes we have paid (or will pay), or whether the Trust's own funds will have to bear the part that
is attributable to the Trust.
The key determinant here will likely hinge on the interpretation of the Resolution the Council passed - the key part of which said
"To approve an un-funded revenue budget increase in the subsidy payment to Lowther Charitable Trust for 2018/19 to a sum of £175k in order to provide the potential resource
required in defending the legal proceedings served upon the charity, on the conditions that:....."
We can see some councillors arguing that, as the case did not actually get into court, (because it was resolved by mutual agreement in advance), then the resolution does not kick-in, and
taxpayers should not be asked to fund the Trust's expenditure in pursuit of its own decisions.
We can see scope for argument of that matter toward budget setting time for Fylde Council.
Those of our readers who tell us of their predilection for Lowther Cafe as it is now, will no doubt be pleased to know it's likely to be there for at least another two years,
and it could be a good while longer than that.
It's also the case that this is not the end of the matter. The issue of the invalid Governing Document is still hanging - suspended in mid air - so to speak, and it casts
a shadow into the future.
Furthermore, the matter of securing changes to the valid version of the Governing Document will be a matter of interest for our readers, as will whether or not taxpayers
will be required to meet some or all of the Trust's costs.
And as Fylde Council has previously decided, the state in which they suddenly found themselves in this matter has caused them to review their relationship with the appointed
We hear that as well as Cllr Roger Small attending meetings of the Trustees, Fylde's officers are now also present, so hopefully, Fylde is not likely to be caught
napping again, and there is talk of future revisions to the arrangements between the Council and the Trust.
So whilst this is the end of the beginning, it's not yet the beginning of the end of this story.
Dated: 18 November 2019