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 NEWPORT ISLE OF WIGHT COUNTY COURT
(His Honour Judge Thompson QC)

		Royal Courts of Justice Strand London, WC2
		16 December 2002

1. LORD JUSTICE KAY: This is an appeal against an injunction coupled with a power of arrest granted by His Honour Judge Thompson QC sitting in the Newport, Isle of Wight County Court on 17 October 2002. The order forbade the appellant, whether by herself or by instructing or encouraging any other person, to go to Highfield Road, Newport, Isle of Wight or to assault, threaten, abuse or in any other way cause a nuisance or annoyance to persons residing in, visiting or carrying on a lawful activity in the locality of Highfield Road, Newport, it being declared that the locality included Barton Road and Coppins Close only. The injunction was said to remain in force for five years.
2. The granting of the injunction arose out of possession proceedings. The appellant was a tenant of the respondent housing association. On 24 June 2002 the respondent issued possession proceedings against the appellant, seeking to recover possession of the property which had been let under an assured tenancy of the premises 44 Highfield Road in Newport, Isle of Wight. The respondent sought immediate possession and in addition sought an injunction. The basis of the claim for possession related to a provision in the tenancy agreement which, in broad terms, prevented the appellant from behaving in an antisocial fashion towards other tenants of the respondent in the locality. On 16 October 2002 the judge heard the possession proceedings and concluded that the breach of the term of the tenancy was made out.
3. The appellant had not played any part in those proceedings. That was because shortly before the hearing she had withdrawn her defence and was not permitted (although she sought to do so) to reinstate it. However, having heard the evidence, the judge was satisfied that the case was made out and indicated that he was prepared to make the necessary possession order.
4. Before granting the injunction, he indicated a willingness to hear the appellant on that matter. No fresh evidence was called relating to the issues and the judge concluded at the end of the day that there was a continuing risk that, even after she had been compelled to forfeit possession of the premises, the appellant would go on behaving in the same sort of antisocial way towards those who had been her neighbours. In those circumstances, he made the order against which this appeal is brought.
5. The first and primary ground of appeal is that the judge had no power to grant an injunction in such circumstances. The basis of the claim for the injunction was one based upon the tenancy contract. It is argued that once that tenancy contract came to an end there was no power to grant an injunction that extended beyond the time when the tenancy came to an end, because to do so would be to seek to restrain conduct which would not be a breach of the contract.
6. Mr Glen, on behalf of the respondent, argued that there was a power to grant an injunction in such circumstances. His contention was that where there has been a breach of contract the court is obliged to provide an appropriate remedy for that breach of contract. An appropriate remedy in circumstances such as these will be an injunction to restrain conduct of the kind that amounted to the breach of contract leading to possession of the tenancy from continuing once possession has been given up. He argues that the mere fact that the tenancy will come to an end does not prevent the court from providing an appropriate remedy which would benefit other tenants who had been subjected, on the judge's finding, to the problems that led to the making of the possession order.
7. In my judgment this is to misunderstand the purpose of an injunction in such circumstances. An injunction is granted in order to prevent future breaches of contract. The court has no power to grant an injunction which provides rights to a party that are not contractual rights unless a claim in tort can properly be made by that person. It is not suggested, nor could it be suggested, that the respondent would be entitled to an injunction in tort in respect of these matters. Therefore it seems to me that once one reaches the stage where the contract comes to an end (as it would do with the grant of possession) there is no right in the respondent to be protected by the grant of an injunction. The remedy in relation to a breach of contract will include an injunction to protect future breaches. It would extend up to the time when the possession order became effective. But it cannot extend beyond that time. In my judgment there simply was no proper basis at all for the grant of an injunction in these circumstances.
8. One well understands why this experienced judge was concerned, having heard the history that he had, for the wellbeing of other tenants in the locality and he himself expressed misgivings about the course that he was taking. However, at the end of the day no injunction lies at the request of a respondent in respect of these matters. It would in an action for tort quite possibly do so at the request of one of the other tenants, but it does not at the behest of the respondent housing association.
9. Parliament has itself recognised the problems that this situation can cause and has made provision in some circumstances to deal with the problems that arise. Section 152(1) of the Housing Act 1996 permits the grant of an injunction to prohibit antisocial behaviour but only to a local authority, and such an application therefore could not be made by the respondent. Parliament has not seen fit to give any wider statutory power than that which is contained in section 152(1), which would enable the housing authority to take action in circumstances such as this. That is why they have had to seek to rely on the common law and simply to seek an injunction as part of their contractual rights. Those rights extend up to the termination of the contract but no further than that.
10. For these reasons it seems to me that the court is bound to allow the appeal and to set aside the injunction.
11. LORD JUSTICE KEENE: I agree.
ORDER: Appeal allowed. The injunction to be set aside. The claimant respondent to pay the costs of the appeal with various orders for costs to be set off one against the other. The order for costs below remains save that the defendant appellant is entitled to the costs of 17th October from the claimant. The appellant's costs to have a detailed assessment. Permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)