Judge warns of £25k costs risk as Northampton Market Square food van dispute moves towards trial

Earlier this year, West Northamptonshire Council told Fryin’ Brian and Ciro’s Place food vans they had to leave their pitches at Northampton Market Square.

Ciro's Place and Fryin' Brian were initially told to vacate by 8pm on April 24 after WNC terminated their trading arrangements. However, they both continued to trade.

In a letter sent to the traders in April, the council said: "Changes are required to the standards, mix and overall quality of trading operating on the square as part of an ongoing place shaping and market improvement programme."

The council says the traders were operating under a tenancy at will – an arrangement it says allowed it to bring their occupation to an end at short notice.

However, during the hearing today in Northamptonshire County Court, the judge said there were still questions about whether that was the correct legal position.

District Judge Glassbrook said: “Bearing in mind the third defendant's defence (Fryin’ Brian), it didn't seem to me that the (WNC) position was completely clear-cut. There was a tenancy. The defendant says they didn't sign the tenancy at will. If it wasn't signed, it begs the question of how its terms were incorporated into any agreement. If you've got payment of rent over many years, especially where you've got a successor tenant (rather than the original one), there is again a question as to whether that arrangement amounts to a tenancy at will, as opposed to a periodic tenancy.”

In simple terms, the judge said the court would need to look at whether the traders had actually agreed to the tenancy arrangement relied upon by the council, or whether the long history of trading and paying rent could mean a different type of tenancy existed.

The judge also considered whether the Landlord and Tenant Act 1954 could apply.

He said there was an argument that the law protecting some business tenants may be relevant because of how long the businesses had occupied their pitches. Fryin Brian has been on the Market since 1987, with its current owners taking over in 2019.

The judge stressed he was not making a final decision at Thursday’s hearing and said those issues would need to be considered after both sides had provided evidence.

The hearing also heard that Ciro’s Place had now left Northampton Market Square after vacating its pitch on Monday.

The move leaves Fryin’ Brian as the only trader continuing to fight the council’s legal action.

Joao Frade, who operates Ciro’s Place, told the court he did not want to continue with the case.

He said: “I would like not to go to court.”

He added: “It took me time to move the van and I'd like my charges to be waived.”

District Judge Glassbrook said that, as the council accepted Ciro’s Place had given up occupation, any dispute over costs should be discussed directly with West Northamptonshire Council.

Speaking to the Chron earlier this week, Joao said: “I’m tired of not achieving anything with the council. They won’t negotiate with me. So I’ve decided to give up. I was never going to get to stay in the market. I didn’t see the point any more.”

The judge said the case was most likely suitable for a one-day fast-track trial.

He warned both sides that the losing party would normally have to pay the winning side’s legal costs.

The judge said a one-day fast-track trial can typically involve costs of around £25,000, while a three-day trial on the intermediate track (typically three days) can cost around £100,000.

He said: “The costs often lead into thousands of pounds. I'm not trying to put you off, I'm just trying to make you aware.”

The judge encouraged Fryin’ Brian to seek legal advice before the trial.

The court set a timetable for both sides to exchange documents within six weeks and provide witness statements within 10 weeks, with a trial potentially taking place in 14 weeks.

Following the hearing, Councillor Julie Davenport criticised West Northamptonshire Council's decision to continue legal action.

She said: "I remain deeply shocked that the council continues to pursue legal action to evict the food vans from Northampton Market Square. The council repeatedly states that it wants to support local businesses, yet it is difficult to reconcile that commitment with the way these long-established independent traders have been treated.

"In my view, these court proceedings represent an unnecessary and avoidable use of taxpayers' money.

"Fryin’ Brian has traded from the Market Square since 1987, serving the community for almost four decades. Despite this, the council expected both traders to vacate their pitches within just four days following its sudden assertion that they were occupying under a tenancy at will.”

Fryin Brian has said it will fight the case and are seeking legal representation.

West Northamptonshire Council has previously said it would not comment on the case while it was going through the court process.