England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNET COUNTY COURT
(His Honour Judge John Adams)

		Royal Courts of Justice Strand London WC2 Friday, 18th May 2001

Friday, 18th May 2001

1. LORD JUSTICE JONATHAN PARKER: Before the court is a renewed application by the defendant in the action, Mr Derek Lincoln, for permission to appeal against a possession order made on 24th January 2001 by His Honour Judge John Adams, sitting in the Barnet County Court, in respect of a residential property at 10 Gunter Grove, Burnt Oak, Edgware (I will refer to it as "The Property"). Mr Lincoln was the tenant of the Property. I refused permission to appeal on the papers on 23rd April of this year. The claimant in the action is the freehold owner of the Property, the London Borough of Barnet (I will call it "Barnet"). Barnet claims possession of the Property on ground 2 in Schedule 2 to the Housing Act 1985. In substance it alleges that Mr Lincoln has been guilty of conduct causing or likely to cause nuisance or annoyance to his neighbours.
2. The Property was let to Mr Lincoln in 1992. Clause 9 of the Tenancy Agreement provides, under the heading "Nuisance":

"You, the tenant, must not:

(1) Cause or allow a nuisance or annoyance to neighbours or other occupiers. This includes harassment on the grounds of colour, race, ethnic or national origin, nationality or religion belief;

(2) Use the property for illegal or immoral purposes."

3. The tenancy is a secure tenancy to which section 84 of the Housing Act 1985 applies. Section 84(1) of that Act provides as follows:

"The court shall not make an order for possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2."

4. Ground 2 in Part 1 of Schedule 2 to that Act provides that the court may order possession on the ground that:

"The tenant, or a person residing in or visiting the dwelling house has been guilty of conduct causing or likely to cause nuisance to a person residing, visiting or otherwise engaged in lawful activity in the locality."

5. Section 84(2) of the Act provides:

"The court shall not make an order for possession on the grounds set out in Part 1 of that Schedule ... unless it considers it reasonable to make the order."

6. Accordingly, three questions arose for determination by the judge in the instant case. (1) Are grounds for possession made out? (2) If so, is it reasonable to make an order for possession? (3) If it is reasonable to make an order for possession, should the order be suspended or immediate? (See West Kent Housing Association against Davis [1998] 31 HLR 415, at page 418 per Robert Walker LJ.)
7. As the judge in the instant case stated in his judgment:

"There is no doubt that the defendant and Ms Maureen Lofting" [that is his friend] "have subjected the immediate neighbours to an appalling catalogue of bad behaviour from the time when the defendant first moved into the [Property] until June [2000] when an application for an injunction was made by [Barnet]."

8. Mr Ian Ridd, appearing for Mr Lincoln, in his helpful written submissions concedes, as he is bound to do in my judgment, that the conduct upon which Barnet relies in support of its case for a possession order was antisocial, unpleasant, disruptive and usually took place while Mr Lincoln was drunk. He accepts therefore that the grounds for an order for possession are made out in the instant case. He does however point out that there are no allegations of actual physical assault or the causing of criminal damage.
9. In substance, Mr Ridd's challenge to the judge's order is directed at the third of the three questions to which I referred a moment ago. He submits that there has been a sustained improvement in Mr Lincoln's behaviour since he gave an undertaking to the court on the return date of Barnet's application for an injunction in July 2000, and that that improvement is real and likely to continue. He further points to evidence suggesting that Mr Lincoln has reduced his consumption of alcohol to nil. Mr Ridd submits that Mr Lincoln is in a position to exercise proper self-control in the future, and that that extends not only to himself but also to Ms Lofting. On that basis, Mr Ridd submits that the judge should not have concluded that it was reasonable to make an immediate order for possession against Mr Lincoln, but rather that he should have suspended the order. Mr Ridd accepts, of course, that this was a matter for the exercise of the judge's discretion, but he submits in his helpful oral submissions supplementing his written argument that the exercise of the judge's discretion was flawed in two respects. In the first place he submits that the judge paid too much attention to past events and not enough to the situation as it was at the date when he heard the case and as to the evidence as to the future. Secondly, a related point, Mr Ridd submits that in carrying out the necessary balancing exercise between, on the one hand, the interests of the neighbours in enjoying their homes peacefully and without interference or disruption against the effect of an immediate possession order, the judge paid insufficient regard to the potentially disastrous consequence of an immediate possession order on Mr Lincoln at this stage in his life. He is, I am told, 52 years of age. Mr Ridd further submits that the judge made an unrealistic assessment as to what might occur in the future, and that he assumed too high a degree of detriment to the neighbours were a suspended possession order to be made.
10. Mr Ridd very properly put before me a letter received from Barnet recently -- the letter is dated 17th May 2001 -- to which is attached a schedule purporting to set out details of various incidents of nuisance and harassment which allegedly occurred on 1st April 2001. I have before me, of course, no evidence as such about those matters. Mr Ridd tells me that his client denies them, and in the circumstances I propose to pay no regard to that letter or to the schedule attached to it.
11. Mr Ridd points out that the incidents of antisocial behaviour have diminished and that relatively few such incidents have taken place since Mr Lincoln gave the undertaking to which I referred earlier, in June last year. Mr Ridd also points out that Mr Lincoln, in December last year, for the first time sought professional assistance in relation to his alcohol problem. He tells me that Mr Lincoln himself feels that that assistance has had a salutary effect upon him, and that appears to be confirmed by those who provide such assistance. Mr Ridd submits that the judge attached insufficient weight to the very real prospect that Mr Lincoln would be able to free himself from his alcohol problem. He stresses that, as matters stand, Mr Lincoln is continuing with weekly appointments with those who provide assistance with his difficulties, that he is making good progress and that he is not at the moment drinking any alcohol at all. He submits that Mr Lincoln can be trusted to behave himself in the future and, should he be unable to do so, it would be open to the court to lift the suspension and render the possession order immediate.
12. I have to say straight away that so far as the present application is concerned there is no substance whatever in those submissions. The judge, in what I would respectfully regard as an exemplary judgment, conducted a careful and thorough review of all the circumstances and all the material before him (including material from which he was able to make an assessment as to the likely course of events in the future) before he concluded that he should make an immediate order for possession. In particular he paid full regard to the likely consequences of the order, namely that Mr Lincoln would be rendered homeless, and that he would in all probability be regarded as having made himself intentionally homeless thereby depriving himself of the right to be rehoused by the local authority.
13. Turning to the third of the three questions which I identified earlier and to which the judge referred in his judgment, namely the question whether the possession order should be immediate or suspended, the judge directed himself in the terms of a passage in the judgment of Lord Green in Cumming v Dansen [1942] All ER 653, where Lord Green said this:

"It is, in my opinion, perfectly clear that the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I would venture to call a broad common-sense way, as a man of the world, and come to his conclusions giving such weight as he thinks right to the various factors in the situation."

14. Having set out that passage, the judge continued as follows:

"In my judgment, the same approach should be applied to deciding whether it would be right to suspend a possession order. Looking at matter in a broad, common-sense way the position is that the Defendant will revert to his bad behaviour if he does not succeed in fully overcoming alcoholism. He has only very belatedly sought help, notwithstanding the fact that he has said in the past that he would get help, and he has known about these proceedings for over six months. It is uncertain whether he will succeed in getting off the drink for good, because that is what it would need. A suspended possession order, even with an injunction, will not, in my view, provide the neighbours with adequate protection. In the period since last June he has committed breaches of his undertakings and there is a high risk that he would breach the injunction if he continues to drink.

There is no signs of any acknowledgement on the part of Ms. Maureen Lofting of the need for any amendment in her behaviour. Since the injunction proceedings last June she has spent very little time at No. 10" [that is a reference to the Property) "and in consequence the neighbours have not suffered nuisance, abuse and harassment from her in that period. The Defendant said in evidence that he does not like being on his own; it follows that he will want to be with Ms. Maureen Lofting. Again, applying broad common-sense, there is a significant likelihood that, if a suspended possession order were made, she would return to the scene at Gunter Grove. She is a troublemaker in her own right, and in addition the volatile relationship between her and the Defendant is likely to lead to rows, shouting and noise."

15. The judge then went on to consider the consequences of an immediate possession order, and the possibility of Mr Lincoln being able to overcome his drink problems. The judge then continued as follows:

"I agree with Mr. Brunning" [that is counsel for Barnet] "that the likelihood is that if an immediate possession order is made, Ms. Maureen Lofting will allow the Defendant to stay with her in the short term. The Defendant said during the course of cross-examination that not only was he determined to do all that it takes to overcome the drink problem, but Ms. Maureen Lofting was also similarly determined. If he is able to overcome his drink problems, then there is a reasonable prospect that, although he has to live on State benefits and housing benefit, that he would be able to obtain accommodation in the private sector. In spite of what is said in the Motivate letter" [that being evidence to which the judge had referred earlier in his judgment] "the Defendant said during cross-examination when it was put to him, that if an immediate order was made, he would still try to do everything his power to overcome the drink problem. I very much hope that he will succeed in doing that.

Having considered the matter very carefully, both during the course of the case and overnight, I have come to the conclusion that the balance comes down in favour of granting an immediate possession order. Ms. Maureen Lofting cannot be trusted to behave properly. Whether the Defendant would behave properly would depend on his success in overcoming his alcohol problems, but even if he were able to overcome them fully, there would still be the likelihood of Ms. Maureen Lofting being at Gunter Grove for part of the time with the attendant risk to the neighbours that she would either be aggressive towards them on her own account, or that they would be seriously disturbed by rows between the two of them

As I said, this a difficult balancing exercise. In the end I have come to the conclusion that, even if a possession order would cause the Defendant to have no roof over his head, nevertheless the balance comes down in favour of the neighbours. The Defendant and Ms. Maureen Lofting have made life a misery for the neighbours over a very long period. The neighbours have suffered long enough, and now they are entitled to have that suffering brought to an end for good so that they can enjoy peace in their own homes."

16. In my judgment there is no basis upon which the way in which the judge carried out the balancing exercise in relation to this question can be challenged in this court. The judge's reasoning and his conclusion are, in my respectful judgment, unassailable. Despite, therefore, Mr Ridd's very helpful submissions, both on paper and orally, I adhere to the view which I expressed when refusing permission on the papers, namely that there are no grounds on which this court could interfere with the judge's exercise of his discretion in declining to suspend the possession order, and that accordingly the proposed appeal has no real prospect of success.
17. Accordingly I refuse permission to appeal.
Order: Application dismissed. Detailed assessment of the defendant's costs.