Thursday, 28 June 2018

Sour Dough
“That will be two hundred and forty … British pennies” says Kaz with a big smile as he hands over the late  He always pauses halfway to court outrage that the price is in pounds not pence, and the occasional newcomer sometimes falls for it, but the truth is that the customers at Pause Cafe, the small shop that Kaz has been running in Streatham Station for 13 years have mostly heard the joke before. Nevertheless, Kaz’s smile is so infectious and his parting admonition that they have a lovely day so sincere that most of them leave with a smile on their face.

However Kaz is a worried man and has had trouble sleeping recently. His landlords Govia Thameslink are trying to take the lease back, which is bad news for Kaz and the 5 people who are employed by the business, both full and part time.

Frankly this seems a shame. When he started the business the concession had been empty for some time and the station was a drab place. He quickly became popular with local customers, and continuously over the years tried to come up with little changes and improvements. There was the time that potted plants appeared outside to brighten the pavement, then wooden benches appeared so that commuters, waiting to get on Thameslink’s overcrowded and often cancelled trains can catch a few minutes to, well, pause. In the hurly burly of London life, a small oasis of calm at the beginning of a busy day is invaluable, and no doubt has improved the lives of thousands of people over the years in a small way. It certainly has mine.

But it seems that Kaz’s fall from grace, the reason that Pause may have to close is a humble sandwich.

To explain we have to go back in time to 2005 when Pause first opened its doors. Commercial leases are not my field so I may have misunderstood some of what has happened, but the broad sweep is this.

At the time that Pause started Southern owned the station, but for some unknown reason was collecting no rents. A few years later Govia Thameslink took over and awoke to the commercial possibilities. There was a period of dialogue between Kaz and the landlord which included a claim for some 16,000 that Southern could have charged, and a barrister who buys his coffee went as far as to advise him that he might have no legal liability for those sums, but Kaz wanted to make things right and agreed to pay. By 2012 the sums had been cleared.

Thameslink initially offered Kaz what is known as a Tenancy at Will, apparently a contractual arrangement that offered little legal protection if the landlord served notice, which was intended to be a temporary arrangement until something more long term could be agreed. In 2010, having finally reached agreement over the Southern rent, the landlord’s lawyers sent Kaz a 5 year lease which had a statutory option for renewal. Kaz signed it and sent it back, and assumed that the lease had been granted.

The landlords, for whatever reason, failed to sign the lease that had been returned and to send Kaz a further copy.  Nevertheless, they were happy enough to continue to receive rent as if the lease had been signed by both parties. A bit of unjust enrichment there?

That created a tricky legal situation. On the one hand it opened up an argument that was later brought, that the lease had never come into existence, and that Kaz had continued to rent under a Tenancy at Will, which could be brought to an end at little or no notice, for little or no reason, and with little or no right of redress by the tenant.

On the other, the law recognises that it is unfair in many cases for one party to a potential contract to behave as though an agreement is in existence, and then plead a legal technicality some time later where the other party has been acting honourably and, for example, paid rent. This is a doctrine known as Equity, where the tenant is granted the same rights as if a legally binding document had been signed by both parties.

Certainly in 2015 Kaz thought he had a lease because he sent a legal notice known as a s26 Notice to the landlords who are given 2 months to object. I have no idea of the ins and outs of this procedure but since Kaz received no objection a layman might reasonably have assumed that the landlord had agreed.

As I have said this isn’t my field and the law seems fiendishly obscure but I believe I have managed to condense the flavour of what was later to be the parties respective legal positions.

And so to the sandwich, which was not so humble as it turns out.

In 2017 Kaz had the idea of diversifying his range to sell high quality sourdough bread and handmade sandwiches from an artisanal local bakery. For a few weeks in the summer of 2017 as part of the promotion staff from the bakery would share the counter and taught staff how to make the sandwiches. The sandwiches were yummy, there was a vegetarian and meat option each day. They included the Parmesan sandwich.

And this is where the farce begins.

The manager at Streatham station became worried that the pop up bakers need to have id cards and emailed Govia Thameslink with his concerns, and the landlord then pounced to the conclusion that Kaz had been subletting to the bakers, a breach of the Tenancy at Will.

Whether there was a breach seem questionable. The cash for the sandwiches went through Kaz’s till, and Kaz paid the bakers for the products he had purchased from them. To say that the bakers had taken over part of the shop seems odd as they were standing side by side with Kaz at the counter. At no time when I saw them did I form the impression that Kaz was not in charge, and there was little evidence that the bakers had exclusive possession of part of the concession, which is physically very small.  I assume these facts would have been relevant.

In August 2017 while Kaz was on holiday the landlords wrote terminating what they said was a Tenancy at Will and within a month changed the locks. Staff turned up for work to find that the business had been closed.

Kaz had to fly back from Nigeria and apply for an emergency injunction to get back into the shop to get legal paperwork and was successful, even though he had no lawyer, and a week later, having considered this and the force of Kaz’s argument the judge renewed the injunction.

Kaz had done very well at this stage. He had had a friend who knew enough about the law to tell him which forms to use and appeared at the second hearing and spoke as what is known as a McKenzie friend, which is a lay person who the Court can sometimes accept to be present to help a party and occasionally even to speak to the judge directly. Essentially however he had no lawyer at this stage, and perhaps in recognition of this the judge told him to get a proper lawyer.

This is where matters had become unstuck. The profits from Pause every year are typically below that average salary for the area, and the solicitors Kaz approached either were not interested or asked for a fortune Kaz did not possess. This was especially so because the takings of Pause had been affected while the business was closed.

At another hearing in January 2018 the Judge ordered that Kaz filed papers further particularising his case by the 24th, and he missed the deadline but by the second week of February had found solicitors who applied to the Court for more time, eventually filing all the required paperwork in time for the Court hearing on 16 April 2018.

The papers filed by Kaz’s lawyers seemed well prepared, but unfortunately Kaz was never allowed to use them. The Judge decided not to grant the request for late filing, and all at once the case was dismissed, Pause would have to close and Kaz was ordered to pay almost 15,000 for Govia Thameslink’s legal fees.

Kaz’s lawyers have filed a well  prepared appeal but because he has run out of money he is once again without legal assistance. He hopes to raise enough by crowdfunding to keep Pause open. Once the link has been set up I will attach it here.  At the moment he is trying to raise 1,000 to cover urgent preparation and a possible speedy hearing. Lawyers with expertise in this area who are prepared to donate time are also requested to get in touch.

One of the issues the next Judge will have to consider is whether it is in the public interest in granting leave to appeal. I would suggest that it is considerably in the public interest, and this is why.
The various schemes that have delivered railway passengers a service have undergone a bewildering number of permutations since British Rail was privatised by Maggie. It seems that over the years it has not been possible to open a newspaper without seeing higher train fares, government contracts with private companies collapsing, union disputes and recently a flood of delays and cancellations. Hundreds of thousands of commuters have been affected driving many to the point of distraction.

The fate of Pause and many other businesses on railway premises, those operating out of railway arches owned by Newtork Rail such as the death of Brixton Budget Carpets and Popup Bikes in Manchester will feel acutely the cold wind of change. The loss of community hubs will weaken us all.

As Kas  has said “Back home we take corruption for granted. I had hoped in the UK things were different and that British justice which is famous internationally would help me. But in the end it turn out that if you don’t have money you can’t get justice. I just want to keep on serving my customers to make Streatham station a good and happy place.”

Last week Kaz took a petition of over 1,600 signatures to the Thameslink CEO. He has yet to receive an appointment.

Back in the real world I hope that Govia Thameslink will consider what it seeks to achieve. Does it wish to disengage all its customers, who frankly are in rebellion, or does the company want to sit back, chill in, and think about what it wants.

Does Thames Govia wish to evict its tenant for daring to sell a sourdough parmesan sandwich , or does it want to keep collecting its sour dough , its bitter cash, reluctantly collected from miserable commuters.

Pause for thought.