Byrne and Anr v Poplar Housing and Regeneration Community Association Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lady Justice Black,Sir Robin Jacob |
| Judgment Date | 16 March 2012 |
| Neutral Citation | [2012] EWCA Civ 832 |
| Docket Number | Case No: B5/2011/1165 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2012 |
[2012] EWCA Civ 832
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE EDWARD BAILEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Etherton
Lady Justice Black
and
Sir Robin Jacob
Case No: B5/2011/1165
Mr Michael Paget (instructed by Dowse and Co Solicitors) appeared on behalf of the Appellant.
Mr Andy Lane (instructed by Batchelors Solicitors) appeared on behalf of the Respondent.
This is an appeal against the order of HHJ Bailey in the Central London County Court on 7 April 2011 by which, among other things, he (1) dismissed the appellants' application to be relieved from the order of the judge made on 22 March 2011 debarring them from defending these possession proceedings; and (2) ordered that the appellant give possession to the respondent of 6 Chilcott Close, Grundy Street, London E14 ("the Property") on the grounds of anti-social behaviour.
The grounds of the appeal are that the judge's decision not to grant relief from sanctions was unjust and disproportionate; and that his decision to decide the possession claim without hearing evidence from the appellants and others on the reasonableness and the type of possession order was unjust and disproportionate.
Background
The appellants, who are brother and sister, became joint assured tenants of the Property on 11 December 2000 having "succeeded" to their uncle's secure tenancy. Their landlord at the time was the London Borough of Tower Hamlets, but, following a stock transfer to the respondent in 2006, the appellants became assured tenants. They signed up to the respondent's terms and conditions of tenancy on 14 August 2006.
The respondent says that anti-social behaviour on the part of the appellants began almost immediately the appellants' tenancy commenced on 11 December 2000. The first incident of anti-social behaviour relied upon was on 13 January 2002. It is alleged that there were many such incidents. In fairness to the appellants, it appears that improper conduct or allegations of improper conduct have not all been one way. In 2005, for example, the appellants brought protection from harassment proceedings against a long leasehold neighbour, Ms Lucy Aboram, which culminated in an indefinite injunction being granted against her.
This case is unusual in that, both before and alongside these possession proceedings, there have been other proceedings brought by the Metropolitan Police Service against the appellants for anti-social behaviour.
On 24 September 2009, following a seven-day hearing in the Thames Magistrates Court at Stratford, with oral evidence from the appellants and other witnesses who were to be witnesses at the trial of the present proceedings, District Judge Comyns made an anti-social behaviour closure order for a period of three months. The order was made pursuant to section 11B(4) of the Antisocial Behaviour Act 2003, which is as follows :
"(4) The magistrates court may make a Part 1A closure order if and only if it is satisfied that each of the following paragraphs applies –
a) a person has engaged in anti-social behaviour on the premises in respect of which the Part 1A closure notice was issued;
b) the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public;
c) the making of the order is necessary to prevent the occurrence of such disorder or nuisance for the period specified in the order."
Very shortly after the making of the closure order these possession proceedings were commenced on 27 October 2009 in reliance on grounds 12 (breach of tenancy) and 14 (nuisance and annoyance) under Schedule 2 Part II to the Housing Act 1988.
The allegations of anti-social behaviour and breach of tenancy relied upon in the closure order proceedings mirror those in the possession claim.
The closure order was extended for a further three months (the maximum period possible) on 14 December 2009 following a further hearing.
The appellants appealed the closure order. That appeal came before HHJ Huskinson and lay justices at the Snaresbrook Crown Court in January 2010. The appeal, which was a rehearing, lasted six court days, with oral evidence. The appeal was dismissed on 26 January 2011. In the course of HHJ Huskinson's lengthy judgment, in which it was found that the appellants' neighbours had been subjected to persistent abuse, the first appellant's evidence was rejected. HHJ Huskinson made the following observations in the course of his judgment:
"We find both Miss Ryan and Miss Aboram to be credible and honest witnesses. We note that in contradistinction to that Miss Byrne has denied that at any stage she has done anything wrong. We do not believe her.
…
We believe that the complaints made by Miss Byrne are in the large part invented and we do not believe them.
…
So far as concerns Peter Byrne's evidence, on his evidence he was bed bound and so unable to see what was going on elsewhere in the flat. However, we make it clear that we accept the evidence of the noises coming from the flat and therefore we do not accept Mr Byrne's denial of the noises coming from the flat.
…
It follows that we find that the evidence given against the Byrnes by Miss Aboram and Miss Ryan to be true and in particular the complaints which we have rehearsed at some length of the nature of the events occurring at No 6 as described by Miss Ryan to be true."
The appellants appealed by way of case stated but that was dismissed on 15 October 2010. In the course of his judgment Moses LJ said as follows:
"12 The reasons for its order are set out in its very full ruling given by HHJ Huskinson. That ruling reveals the extent of the nuisance and oppressive and harassing conduct of which these two appellants were guilty. It is unnecessary, since those findings of fact are not and could not be challenged in these proceedings, to detail them at any length. The next door neighbours had been subjected to persistent abuse; harassment; recordings of their own voices being made and then replayed loudly; noise such as the hammering of a hammer from next door, disturbance three or four times a night, both from voices, abuse, and loud music was played; the playing of obscene words and songs; and throwing excrement, both human and animal, over the wall. During the course of the hearing the appellant's cohabitant, Miss Byrne, gave evidence denying that any of the allegations were true. Her evidence was rejected as being false.
…
14. I repeat there has been no challenge to the findings of fact. In particular, it is not suggested that the facts were not of sufficient gravity to justify the making of a Closure Order, whether the matter is considered under section 11B(4) or in considering justification and proportionality under Article 8 ECHR. It must never be forgotten that where it is alleged that the making of such an order breaches Article 8 in a way that cannot be justified under Article 8.2 there may well be other rights of other citizens under Article 8 engaged. In the present case it is obvious on the undisputed facts, as they have now been found by the Crown Court, that there was a serious infringement, or would have been a serious infringement, of the neighbour's Article 8 rights had not the state, through the local authority or the police, taken steps to abate that conduct."
The appellants also applied for judicial review, but permission was refused on paper and then at an oral hearing.
As a result of the closure order and the subsequent anti-social behaviour injunction granted in the present proceedings, to which I shall refer in due course, the appellants have not lived at the Property since the closure order was made on 24 September 2009.
The proceedings
As I have said, possession proceedings were issued on 27 October 2009 against the appellants in reliance on grounds 12 and 14 of Schedule 2 Part II of the Housing Act 1988.
The problems complained of by the respondent, of which 158 are itemised in the Particulars of Claim as occurring between 13 January 2002 and 4 September 2009, can be categorised as playing of loud music and banging on walls, taking pictures of neighbours and their children, recording voices, making videos of the next door's children and others, and other harassment (such as the throwing of frozen urine into the garden of number 4), particularly of the Ryan family at No. 4.
On 15 January 2010 a defence was served on behalf of the first appellant. It includes allegations of abuse against the appellants by their neighbours, particularly those at Nos. 4 and 7 Chilcott Close.
On 19 January 2010 directions were given in the issuing court, the Bow County Court. The directions included an order of the second appellant to file and serve a fully particularised defence by 2 February 2010, that there be disclosure by exchange of copy documents of any tape videos, with a disclosure statement by 4 pm on 16 February 2010, and that all witness statements of fact be simultaneously exchanged by 4pm on 30 March 2010. An order was made at the same time transferring the proceedings to the trial centre of the Central London County Court.
In view of the impending expiry of the closure order, on 10 March 2010 there was an application by the respondent in these proceedings for an anti-social behaviour injunction. The application was considered without oral evidence, and an injunction and exclusion order were granted on 19 March 2010 by District Judge...
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