Moat Housing Group-South Ltd v Harris and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BROOKE,LORD JUSTICE DYSON,Lord Justice Dyson,Lord Justice Brooke
Judgment Date16 March 2005
Neutral Citation[2005] EWCA Civ 287,[2004] EWCA Civ 1852
Date16 March 2005
Docket NumberB2/04/2666,Case Nos: B2/2004/2666, B2/2005/0038 and 0042

[2004] EWCA Civ 1852





Royal Courts of Justice


London, WC2


Lord Justice Brooke

(Vice President of the Court of Appeal, Civil Division)

Lord Justice Dyson


Moat Housing Group-South Limited
1. Carl Harris
2. Susan Colette Hartless

MS CHERYL JONES (instructed by Messrs R J Hawksley & Co, Blackwater, GU17 0LL) appeared on behalf of the Appellants

MR PHILIP GLEN (instructed by Messrs Dutton Gregory, Dorset, BH1 2HF) appeared on behalf of the Respondents


On 3 December 2004 in the Southampton County Court His Honour Anthony Thompson QC, sitting as a circuit judge in that court, made a possession order against the two defendants. It was to come into effect immediately (as opposed to being suspended) on or before 4 pm on 17 December 2004 (today). He also made anti-social behaviour orders against the two defendants, which also come into force today at 4 pm. In so far as the orders exclude them from entering an area shown red on a plan attached to the order, which is where the fourth defendant lives, and from acting in a number of different ways anywhere in England and Wales for a 4-year period, the order was framed in such a way in that, although there was liberty to apply to the court for the order to be varied or discharged, the order might not be discharged within two years unless both parties consented.


Yesterday I granted the defendants permission to appeal against that order. I hope that this court will be able to entertain the appeal in the last week of January when we will be able to consider, in particular, due process considerations in relation to such relief as was granted in this case, without any prior complaint of any kind, before these proceedings started at the end of October.


The fourth defendant lives in the property, which was the subject of a possession order, with her four children. They range down to the age of 6. They are all children of the third defendant who stays at the property from time to time, although he mainly lives elsewhere with his parents. The estate is one of 40 properties shared between Housing Associations. There was a background of problems on the estate, principally caused by the family who were the first and second defendants to these proceedings. They agreed to submit to a possession order and to anti-social behaviour orders shortly before the trial of this action. It was common ground, so far as the witnesses are concerned, that the behaviour of that family was much more serious than the behaviour of the defendants and their children.


On 29 October 2004, on a Friday evening at 9 pm, an injunction was served without prior notice requiring the family to move out of the area immediately. It was accompanied by police officers who had the power of arrest under the order.


At 3am on the Saturday morning Stanley Burnton J, as the duty High Court judge, granted a partial stay of the effect of that order, so that the family were not required to move out of the area immediately. On 3 November 2004 notice seeking possession was served and this claim was started on 4 November 2004. What was left of the injunction was continued until trial and a trial date was fixed for 29 November 2004.


There was a three-day trial before the judge. He concluded on the evidence that it was reasonable to make an immediate order for possession, with particular reference to grounds 12 and 14 of schedule 2 of the Housing Act, there being serious breaches of the tenancy agreement, and also of a clause of the agreement requiring the tenant or visitors visiting the property not to cause nuisance.


At the hearing of the appeal issues will be raised as to the extent to which a judge can rely on hearsay anonymous evidence, not only in support of an anti-social behaviour order, but also in support of a possession order. The court will have to look carefully at the reasons given by the judge, the findings he made, and the process of thought by which he considered it reasonable to make a possession order affecting a family of four young children when there had been apparently no prior discussions between the landlords, the social services and the education authorities and no prior complaint of any kind, although the tenancy had commenced in May 2001.


That is for the future. We have to determine whether to stay the effect of the order pending the hearing of the appeal. Miss Jones, who has appeared for the appellants, has helpfully reminded us of the approach set out by Clarke LJ in his judgment in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065. In summary, the court must ask the questions. If a stay is refused, what are the risks of an appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? If a stay is refused and the appeal succeeds and the judgment is enforced in the meantime, what are the risks to the appellant? She suggests that in the light of the substantial interference with the appellants' freedom of movement and their rights to respect for family life, one must also bear in mind the rights of the children of the family. Miss Jones submits that it will be relevant to consider, first, if a stay is not granted and the appeal succeeds, will the interference with the appellants' rights be justified? Or, if a stay is granted and the appeal fails, what will be the effect on the other tenants who gave evidence against the appellants in the intervening period.


Mr Glen, who appears for the landlords and who appeared in these proceedings from the start and obtained the original order on 29 October 2004, has drawn our attention to the fact that there were minor complaints about the behaviour of the defendants, and at least one of their children, after the time that the injunction was served and when it was still in force from 29 October 2004 onwards. We have to bear in mind that one of the reasons which compelled the judge to make an immediate possession order was his lack of confidence that the fourth defendant in particular would be able to behave herself and be able to control her children in such a way that there would be any point in making a suspended possession order.


Mr Glen argues that his client would have a strong case on the appeal, particularly in the light of the fact that this experienced judge heard the witnesses, some of whom were identified and some of whom did give evidence and were cross-examined at the trial. He submits that we should not grant a stay, first because the judge's findings of fact disclose what he described as an appalling history of anti-social behaviour on the part of the appellants and their children and, unless and until those findings were overturned, the presumption must be that the other residents in the locality should be given the fullest attention.


Secondly, he refers to the minor complaints after the injunction was granted. He suggests that if the appellants were permitted to remain on the estate in close proximity to what he calls "their victims", he submits that there is a heightened risk of further problems over the forthcoming festive season and enforcement would be more difficult over that time.


Thirdly, he suggests that enforcement of the order can have no conceivable impact on the appellants' ability to prosecute the appeal. The appeal will not be a paper exercise. If successful the appellants will be able to return, in response to his clients' undertaking not to relet the property pending the outcome of the appeal.


We now have a date pencilled in for the hearing of the appeal. It is, in my judgment, essential that parties use their best endeavours to make sure that the appeal is containable within a single day. It would be a source of great concern if the appeal had to be delayed beyond the end of January, because there are obviously great worries on all sides in relation to this matter.


On the one hand one has Mr Glen's strong arguments based on the judge's findings and the worries of a number of the residents about the behaviour of this family. On the other hand, one has the risk to the family, and particularly to the younger children of the family, if the full force of the judge's order comes into effect at 4 pm tonight. We were told that, although they have been able to continue at their present school which is just outside the exclusion area, it is envisaged that they would live in a nearby town. They have no car and, at the moment, there is a big question mark about the provision that would be made for education of another kind for the children if they finished up in bed and breakfast accommodation in a nearby town tonight.


During the course of the hearing we canvassed the powers of the courts to police any stay. Although we did not hear full argument, it is likely that the anti-social behaviour order itself have to be policed through the Magistrates' Courts rather than being akin to an injunction which could be controlled fast by a duty Circuit Judge. On the other hand, were we to grant a stay, the effect of the stay would certainly be on terms that, if there was further ground for complaint on grounds which were more than fanciful, it would always be possible for the landlords to apply to this court to remove the stay. Judges in this court are available in vacation periods to remove the stay. The effect of the removal of the stay would be that the family would have...

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