District Judges and Possession Proceedings
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00370.x |
| Author | Emma Hitchings,Dave Cowan,Judy Nixon,Sarah Blandy,Caroline Hunter |
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 4, DECEMBER 2006
ISSN: 0263-323X, pp. 547±71
District Judges and Possession Proceedings
Dave Cowan,* Sarah Blandy,** Emma Hitchings,*
Caroline Hunter,*** and Judy Nixon***
In this article, we draw on data obtained in interviews with District
Judges about the factors which they say influence the exercise of their
discretion in possession proceedings. Analysing the data set enabled us
to create three ideal types of judicial decision-making which we have
labelled `liberal', `patrician', and `formalist'. We discuss the differ-
ences between each ideal type across five different variables: the
District Judge role; approach; view of occupiers; the problem; beha-
viour of occupiers. Our data demonstrate a set of reasons to explain
different approaches and outcomes between different District Judges
(as well as the perhaps unlikely identification of a `maverick' or
`idiosyncratic' style of judging). We conclude by suggesting on the
basis of our data that, despite calls to structure or remove the
discretion from District Judges, any such changes are unlikely to have
much effect.
In conveying the complexity of property law, we academics often tend to
underplay its social complexity, its everyday life. By focusing on decisions
made by higher courts to illustrate the complexity of the law, we make
547
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*School of Law, University of Bristol, Bristol BS8 1RJ, England
d.s.cowan@bris.ac.uk E.Hitchings@bristol.ac.uk
** School of Law, University of Leeds, Leeds LS2 9JT, England
s.blandy@leeds.ac.uk
*** Centre for Social Inclusion, Sheffield Hallam University, Howard Street,
Sheffield S1 1WB, England
c.m.hunter@shu.ac.uk j.nixon@shu.ac.uk
This article is based on research funded by the Department for Constitutional Affairs. We
are grateful to them for their support. The views expressed in this article should not be
taken to be the views of the Department. We are also grateful to Richard Moorhead,
Helen Carr, Richard Young, and Judith Masson and to the JLS anonymous reviewers for
comments on an earlier draft.
assumptions about the `radiating effects' of the law.
1
Some socio-legal
scholars have, however, challenged such assumptions (for example, by
focusing on the bottom-up nature of grievances as well as the insight that
processes of adjudication construct disputes).
2
This article concerns lower-
level adjudication ± County Court adjudication by District Judges ± which
has often escaped the attention of both doctrinal and socio-legal analysis. As
regards the former, the reasons are probably either their comparative
`silence' (judgments, such that they are, are rarely reported) or their low
level; as regards socio-legal analysis, at least in England (where our research
took place), the reason may well be that District Judges are a `hard-to-reach'
group to research
3
and the work they do is often rendered invisible due to a
perception that it is mundane, commonplace, and dull. That is not to say, of
course, that they are an unresearched group (far from it, in fact).
4
In this article, we seek to convey some appreciation of the social com-
plexity of District Judge decision-making. We do this through an analysis of
26 interviews we conducted with District Judges broadly concerning the
influences on their decision-making in possession proceedings. Our analy-
tical method is through the construction of a typology of styles of judging
employed in rent arrears possession proceedings. The typology provides a
method of simplifying complexity, organizing our understandings, and
building an account of the everyday reality of decision-making. In so doing,
it provides a way into, or a way of understanding, our data.
Within the typology, three `ideal types' representing different judicial
styles and behaviours are based on the practices and approaches found in our
study. It is important to note that these ideal types do not represent any
548
1 See, further, M. Galanter, `The radiating effect of courts' in Empirical Theories About
Courts, eds. K. Boyum and L. Mather (1983).
2M.Cain and K. Kulcsar, `Thinking disputes: An essay on the origins of the dispute
industry' (1981±82) 16 Law and Society Rev. 375; A. Sarat, `The ``new formalism''in
disputing and dispute processing' (1988) 21 Law and Society Rev. 695.
3 They are `hard-to-reach' in the sense that there are a range of gatekeepers determining
access arrangements, including the Department for Constitutional Affairs (DCA) and
the individual courts. Researchers negotiate a `Privileged Access Agreement' through
the DCA with the courts they intend to research (provided that those courts agree).
Equally, given the Data Protection Act 1998, there have been concerns over access to
court records (see A. Barlow, `New ethical challenges for socio-legal researchers:
SLSA one-day conference' (2004) 44 Socio-Legal Newsletter 7, 8).
4 See J. Baldwin, Small Claims in the County Courts in England and Wales; The
Bargain Basement of Civil Justice (1997); R. Moorhead and M. Sefton, Litigants in
Person: Unrepresented Litigants in First Instance Proceedings (2005); J. Plotnikoff
and R. Woolfson, Evaluation of Appellate Work in the High Court and the County
Courts (2005); J. Baldwin, Lay and Judicial Perspectives on the Expansion of the
Small Claims Regime (2002); S. Blandy, C. Hunter, D. Lister, L. Naylor, and J.
Nixon, Housing Possession Cases in the County Courts: Perceptions and Experiences
of Black and Minority Ethnic Defendants (2002); J. Nixon, Y. Smith, B. Wishart, and
C. Hunter, Housing Cases in the County Courts (1996). The DCA's research
programme has done much to remedy the previous knowledge deficit.
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