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 SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)

		Royal Courts of Justice Strand London, WC2
		12th January 2005

1. LORD JUSTICE BROOKE: This is an appeal by the first defendant, Lorraine Root, against the absolute possession order made by Judge Yelton, sitting in the Southend County Court, on 17th September 2004 in respect of the premises which she occupies at 53 Totlands Drive, Clacton-on-Sea.
2. The defendant was given an assured weekly tenancy of these premises by the claimant, the London & Quadrant Housing Trust, her social landlords. The judge, who was familiar with the area, described it as a pleasant house on a small estate of about 20 houses owned by the claimants in a quiet residential neighbourhood.
3. On 2nd March 2004 a notice seeking possession was served, followed almost immediately by the issue of proceedings. In the particulars of claim allegations were made that the claimants were entitled to possession under paragraphs 12 and 14 of Schedule 2 of the Housing Act 1988, which, in short, refer to breach of the terms of the tenancy and nuisance. So far as the proceedings were concerned, the case was initially allocated to the fast track.
4. An incident occurred on 23rd May which gave rise to criminal proceedings against the second defendant, Mr Barnes, who is the partner of the first defendant and the father of her third child. He left the premises, with considerable assistance from the police, on 24th May and has not been back to live there since. He was joined as a party to these proceedings on 3rd June, when Judge Gypps made an order under the Crime and Disorder Act, preventing him from coming within a defined distance of the premises.
5. On 28th June 2004 District Judge Molle vacated a trial which had been fixed for 30th June, which was clearly going to last more than half an hour, and reallocated the case to the multi track. He continued the interim anti-social behaviour order. The matter eventually came before Judge Yelton on 7th September at a substantive hearing. Although the defendants had been advised to secure legal representation, they appeared in person at the hearing.
6. This was a case in which complaints had been made by the landlords for nearly two years before the proceedings were started. Mrs Robson, who was the responsible manager, was the Senior Tenancy Services Officer of the claimants. She exhibited a large number of records of telephone calls to her office from May 2002 onwards complaining about the behaviour of Mr Barnes from people who were clearly frightened, and so frightened they were not willing to identify themselves, although Mrs Robson said that she knew from their voices over the telephone who they were in quite a number of cases. It appears that the reason why proceedings were not commenced earlier was the inability to adduce evidence from very frightened neighbours sufficient to prove the case.
7. In his judgment, Judge Yelton said that in essence the claimants were alleging in the particulars of claim that for the last two years Mr Barnes was carrying on a business of repairing and scrapping cars and premises, that the garden and surrounding areas were littered with general debris, especially car parts, and that Mr Barnes had terrorised the neighbours and also the officials of the Trust by his intimidation and threats. He found the facts established, and on this appeal Mr Latham, who appears for the first defendant, has not sought to challenge the judge's findings that there had been breaches of the tenancy agreement and also substantial acts of nuisance and annoyance.
8. The judge referred to the photographs, and we have them before us. He said that Mrs Robson was a senior employee with a great deal of experience, and that the photographs supported the proposition that Mr Barnes, with Miss Root's consent, was running a business from the premises. He made an express finding that until the first anti-social behaviour order was made on 3rd June, for the whole of the period Mr Barnes was running a car repair and scrap business in and around the house, and that this caused a serious noise and loss of amenity problem to the neighbours. He said that manifold complaints had been made to Mrs Robson. Many of them were anonymous because of the fear of reprisals, and she had witnessed anti-social behaviour herself. But before the interim anti-social behaviour order was made she found herself unable to carry out normal duties on the estate as a whole because of Mr Barnes' behaviour.
9. We have a transcript of Mrs Robson's evidence. She told the judge that she had been a housing officer for 15 years, now specialising in anti-social behaviour, nuisance, harassment and domestic violence cases. She said that it had been awful trying to get any witnesses: it was the worst case she had ever run. Quite a lot of different people had been ringing into the office, and there had been a lot whom she actually recognised, but they refused to give her their name and property address so that she had only been able to class it as an anonymous call. She said it was both men and women ringing in. They varied in age. Mr Barnes' behaviour made it very difficult for her to try and do her job as a tenancy services officer. She said that if she thought Mr Barnes was going to be there, she did not attend the estate.
10. Since the anti-social behaviour order had been made she had been able to go into the estate without any fear, but without it she would not have gone on the estate unaccompanied under any circumstances. She was asked about the state of the premises since Mr Barnes left and she said she did not think there was any vast improvement. She saw the property but she was not allowed to go in because Miss Root refused her access, and she therefore could not manage the property. She could only assume that the interior was not very good.
11. She told the judge there was a huge waiting list for tenancies. She accepted that since the anti-social behaviour order was made the number of cars around the property had gone down and that the problem with cars had not subsisted in the same way since the order was made. She told the judge that she had been afraid to come onto the estate from the very first time she confronted Mr Barnes about his vehicles on 30th May 2002. In relation to that, there is a certain amount of contemporary evidence. There is a letter from Mrs Robson to Miss Root of 10th June, saying that the Trust was still receiving complaints regarding Mr Barnes' behaviour:

"It is still being alleged that he is continually repairing cars on the estate and is persistently abusive to residents in Totland Drive.

I will advise you again that if your partner is running a business from the Trust's property you are breaching the terms and conditions of your tenancy. If it is proven that he is verbally abusing residents and/or threatening them, this is a very serious matter. This behaviour will not be tolerated by the Trust, and whilst I appreciate it is not you causing this nuisance and annoyance to the neighbours, Mr Barnes is a member of your household, so ultimately his behaviour will affect your tenancy.

I visited the estate last week, and your partner very obviously came out of the property thumping a hammer into the palm of his hand. I feel sure that this was for my benefit, and was intended by him to intimidate me. The Trust cannot allow this intimidation to continue towards the staff or towards the residents.

If you wish to discuss the contents of this letter please contact me as a matter of urgency [and she gave her telephone number]".

12. Among the record of telephone calls, of which there are a large number in the papers, there is included a note on 13th June, which was only three days after that letter was written, where Mrs Robson records:

"I have had 3 anonymous calls today from the residents of Totlands Drive all advising of the same. They advised that Mr Barnes was fucking and blinding in the street today because someone had grassed him up to the housing. He was shouting that if he found out who it was they would die.

The residents sounded really worried and the second caller was a man who said he really feared for his family's safety.

Mr Barnes was smacking his fists into his cars because he was in such a temper. He said 'when I find out who has done this they need to be looking over their shoulders'. The lady caller said they should not have to live in fear all the time.

I tried desperately hard to get these people on board to keep diaries. No-one would do this because they are so scared. The man caller said even if they were to keep diaries they would have to attend court, and in his words he said 'we wouldn't still be here for the hearing, Mr Barnes would see to that'."

13. The judge made a finding that Mr Barnes had acted in an anti-social way in a variety of different regards, including harassment, intimidation, swearing and threats of violence. He made no finding in relation to an incident involving the son of the next door neighbour. He did not hear any evidence about that, and criminal proceedings were at the time pending. He went on to say that Mr Barnes' behaviour was behaviour of an extremely serious, indeed intimidatory, nature which made the life of the neighbours and of the Trust's officers intolerable.
14. The judge then went on to consider whether it was reasonable to make a possession order. He said he had some sympathy for Miss Root. She had three children and was a somewhat passive lady, and on the evidence she had herself been the subject of violence from Mr Barnes. But he said that all factors must be considered, especially, by virtue of section 9A of the 1988 Act, the effect that the nuisance in question had had on other persons and the prospects for the future. Although to some extent Miss Root was thereby being penalised for Mr Barnes' behaviour, he had no doubt it was reasonable to make an order for possession, and indeed it would be unreasonable not to do so.
15. The judge then went on to consider whether or not to make a suspended order. He asked himself: should the possession order be final or suspended on terms? He said the court had to balance the needs of Miss Root and her children against the very considerable hardships to which the neighbours had been exposed. He had no doubt that a 28 day final order should be made. However sympathetic he might be to Miss Root, the neighbours and the claimant's employees had suffered enough. There was a long waiting list of those who wanted this desirable house and would look after it, and no doubt integrate with the rest of the community.
16. Mr Latham, in his admirable submissions on behalf of Miss Root, contends that the judge was wrong in his approach to the matter: the judge ought to have considered first whether the anti-social behaviour order provided appropriate protection and then gone on to consider whether, given the presence of the anti-social behaviour order, he should nevertheless refuse to suspend the possession order for reasons which he ought to have set out. What happened in the judgment was that the judge dealt with those two issues the other way round. He decided not to suspend the order, and he then went on to consider the terms of the anti-social behaviour order and decided that it was necessary to continue it (although Mr Barnes would have no business to be in the Totlands Drive area once the possession order had been made) in order that the position might be safeguarded pending the execution of the order, in order that Mr Barnes did not return to the area to exact revenge on the neighbours, and in order that he was not re-housed within the vicinity. But he did take the course of reducing the area of the order (it was originally a wide area and he could not attend his doctor's surgery or his bank). So the judge, intending this order in effect to protect the position until the possession order was executed and then to ensure Mr Barnes did not go back to exact revenge on the neighbours, redrew the area to a much smaller area around Totlands Drive.
17. Once the notice of appeal had been filed, Auld LJ granted a stay on the order which was about to be executed pending the hearing of this appeal. Although the first defendant put in evidence for the purpose, I think, of obtaining an extension of time and a stay of the proceedings, that evidence is irrelevant to what we have to decide today. Miss Haggerty, on behalf of the claimants, sought to put in further evidence about later events from the next door neighbour, but in all the circumstances it appeared to me that it was inappropriate to allow this further evidence to be put in. We have to consider, on the evidence before the judge, whether he was wrong to refuse to suspend the order. If he was wrong to refuse to suspend the order, then there would have to be a further hearing in which the up-to-date position could be heard on evidence from either side.
18. There is another matter to which I should refer in relation to the hearing. The next door neighbours did attend court under witness summons. They were not willing to attend voluntarily, although I think they had made written statements. The judge decided that the appropriate way to hear the case was to hear Mrs Robson's evidence first, give the defendants a chance to question her and then hear their evidence and determine whether he could decide the case without requiring the neighbours, who were, he was told, in considerable fear, to go into the witness box themselves. In those circumstances, although Miss Haggerty expressed concern that important and relevant evidence might be shut out, the judge in the end heard the evidence on the basis of the photographs, of Mrs Robson's evidence and of the evidence given by the defendants.
19. On this appeal, Mr Latham concentrates solely on the question whether the judge was wrong to refuse to suspend the order. He submits that the making of the anti-social behaviour order changed the position radically. All the problems of having this frightening man living on the estate and frightening the neighbours were banished by the anti-social behaviour order. If the anti-social behaviour order had not been drawn up sufficiently tightly, then it would always be open to the claimants to apply for a variation of it, but he submitted that the judge should not have considered, in essence, the complaint about all the bad behaviour for the two and a half years before Mr Barnes left the premises, and not then considered carefully whether, with Mr Barnes out of the house and out of the area, it might not be reasonable in justice to suspend the possession order in order to give Miss Root a chance of behaving herself, complying with the tenancy agreement in future, and keeping a roof over her head and the heads of the three children.
20. To analyse these arguments, one has to look a little bit more carefully at the evidence in relation to Miss Root herself, who was of course the tenant who had responsibility under the tenancy agreement. She not only was obliged by the usual condition not to cause members of her household to cause a nuisance or annoyance or behave in a violent or threatening manner: she was also obliged to allow the Trust's employees or contractors acting on behalf of the Trust access at all reasonable hours of the daytime to inspect the condition of the premises and to keep the garden cultivated and tidy where she had the sole use of it. There were standard provisions in relation to the interior of the premises.
21. The correspondence exhibited to Mrs Robson's statement shows letter after letter written to Miss Root warning her of the position, warning that her tenancy might be at risk, and telling her that she needed to straighten things out if she was not to be at risk of losing the tenancy. There was a letter as early as 13th May 2002, when she was warned that she was jeopardising her tenancy. I have already referred to the letter of 10th June. There were further letters of 10th July, 9th August, 26th September, 21st November 2002, and then on 7th May 2003, a year before the proceedings about Judge Yelton, Mrs Robson wrote to Miss Root saying that the allegations regarding nuisance, harassment, car repairs and property condition were still continuing. She had recently visited the site again and advised her that the condition of the front garden was totally unacceptable: the whole area was covered in rubbish and there was a huge oil drum with oil all over the driveway and garden area. Miss Root accepted that when she got these letters from Mrs Robson she never said that what was being said was not true. She said that there must have been something that overtook her mind. In essence, she was in a state of denial about the seriousness of Mr Barnes' behaviour. She supported him in his allegations against Mrs Robson and the suggestion that Mrs Robson was telling lies and, even after Mr Barnes had left, she was still preventing Mrs Robson from having access to the premises so that she could inspect the interior of the premises.
22. Mr Latham complains that the complaint of breach of the tenancy agreement in relation to the garden was very much at the end of the list of complaints both on the notice seeking possession and on the particulars of claim, but it is noteworthy that in Mrs Robson's long witness statement, which was filed on 24th March (so that Miss Root would have had plenty of time to put the matter right by the time of the hearing in September), Mrs Robson said at paragraph 47:

"... the condition of the front and rear garden of the premises is appalling. As regards the front garden, the majority of the cause of its appalling state is directly attributable to the car repair/renovation/car stripping business that Jay Barnes is operating from the front garden. The remaining part being the huge amount of junk and toys. The premises sticks out like a sore thumb from all the other properties in Totlands Drive as all the other residents abide by the conditions of their tenancy agreements and keep their front gardens cultivated and tidy. To say that the front garden of the premises is an eyesore is to say the least. The condition of the back garden is clearly demonstrated in the photographs..."

It is clear from the transcript that the judge attached considerable importance to the photographs, not only photographs taken at the outset in January 2004 but also photographs which were taken later, first in June 2004 and then in August 2004. Miss Root accepted at the hearing that these photographs provided an accurate representation of what was there at the time.

23. On 2nd September, just before the hearing, a further letter was written by the solicitors for the claimants to Miss Root referring to a property inspection which had been due to take place on 24th August. They complained that, in breach of the terms of her tenancy agreement, she had failed to permit access to the premises to the solicitor and to the claimants' surveyor, Mr Portfleet. There had been no answer to repeated knocking on the front entrance door of the premises. However, from what was observed from and heard during the course of that attendance, the writer and Mr Portfleet were satisfied that persons were present in the premises at that time. Although this was not alleged as part of the particulars of claim, Miss Root's behaviour and attitude to her landlords at a time after Mr Barnes had left was certainly a matter which the judge could take into account in deciding whether to suspend the order.
24. In that letter the solicitors said what is evidenced in the photographs which were taken, namely that the front and rear gardens were found to be still in an appalling condition, littered with motor vehicle parts and tyres amongst the other accumulated rubbish which had been in situ for a considerable period. It was also said that because there was a pungent aroma emitting from the premises, this caused the claimants to have grave concerns as to the condition of the interior of the premises. The solicitor said that the claimants would rely on the matters set out in that letter for the purposes of persuading the court that it was reasonable to make an outright eviction order against her.
25. If follows that the defendant had ample notice of the kind of matters which were going to be complained about at the hearing, matters which related to the period after Mr Barnes had left.
26. Another matter of which the judge heard a little bit of evidence at the hearing related to Mr Barnes' practice of coming up as close as he could to the house on the boundary of what was the original map attached to the first anti-social behaviour order so that Miss Root could bring their child to see him. He said, when questioned about this in evidence, that he sat at the roundabout and waited for her. His partner had to walk the child out a mile radius and he stood there just inside the barrier. He said that everybody was lying about the matters which had been put down in writing, on which the judge in the event did not hear direct evidence, but which did give rise to a concern which was put to him at the trial that this was not the case of a clear, clean break with Mr Barnes going off to live in some other part of the country or some far away part of the same town. It was a case in which he wished to continue to be close to his child, for understandable reasons, and notwithstanding the havoc that the judge found that he had caused in this neighbourhood, he was coming on a daily basis to the edge of the neighbourhood and in that sense being a potential threat.
27. The claimants submit that on the evidence the judge was entitled to make an outright order. There might have been matters which he could have spelt out in his order, but they would have been apparent from the transcript of the evidence given in this short case, and the judge gave his judgment very soon after he had finished the hearing. This court is not, in a case of this kind, over-demanding of judges to make long judgments, dotting every i and crossing every t, if they think it is a clear case, and the judge, in this case, did consider that it was a clear case. He said at paragraph 16 of his judgment: "I have no doubt in this case that a 28 day final order should be made". He balanced the effect on Miss Root if she had to go with the children against the effect on the neighbours, who he considered had suffered enough. What was before the judge was evidence of the continual denial of the first defendant, which continued in her evidence in the case, of the matters which the judge found to be true.
28. From the evidence there was a total breakdown in the relationships between the first defendant and her landlords. As I have said, she did not reply to any of their letters, and she was continuing to bar them from entering the premises (as they were entitled to do under the tenancy agreement) shortly before the hearing. She was insisting that what the neighbours were complaining about was untrue. This would inevitably affect their relationships if she was allowed to continue to live there. The judge heard very clear evidence that the neighbours were terrified. He heard Mrs Robson's evidence that this was the most difficult case she had experienced in her long years of experience. He would have been entitled to consider that if there had been any question of suspension, there would have been the same worries about frightened witnesses if there were further trouble. There was the continuing hovering presence of Mr Barnes, and, despite the numerous letters which had been written to Miss Root, the exterior of the property continued to be appalling at the date of the hearing, three months after Mr Barnes had left.
29. In one of the cases to which we were referred (Lambeth Borough Council v Howard 93 HLR 626), Sedley LJ referred to the shadow of the past and said that there may be a stage when things have reached a point where what had been done could not be undone. Although Judge Yelton could have spelt out his reasons in more detail, it is, in my judgment, clear that he directed himself correctly as a matter of law as to the matters he should take into account and he referred expressly to section 9A of the Housing Act 1988.
30. In my judgment, this is a case in which it would not be open to this court to say that this very experienced judge had been wrong in forming the view that it was inappropriate to suspend the possession order. This was a very bad case, and although Mr Latham is correct in his submissions that it was Mr Barnes who caused the case to be so very bad and that to some extent Miss Root would have been influenced by his character - and indeed the judge found that she had been subjected to violence - there is a limit to which the courts can be willing to tolerate behaviour of this kind out of the kindness of their hearts to a woman and three children when their neighbours have suffered as much as they have on this occasion, and when right up to the very week before the hearing Miss Root was still refusing to allow the landlords in, as they were fully entitled to enter, to inspect the inside of the premises. In my judgment, impressive though Mr Latham's arguments were on behalf of his client, this is a case in which it would be quite wrong for this court to interfere and I would therefore dismiss this appeal.
31. LORD JUSTICE LONGMORE: On 30th June 2004, two months before the hearing in this case, section 9A of the Housing Act 1988 came into force by virtue of section 16(2) of the Anti-social Behaviour Act 2003. That section provides that it is to apply if the court is considering whether it is reasonable to make an order for possession on ground 2 set out in Part 1 of Schedule 2 of the Housing Act 1988, and in subsection (2) says this:

"The court must consider, in particular -

(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated."

That is a positive requirement on the part of Parliament that the effect of any nuisance or annoyance on third persons must be taken into account by judges when they decide whether a possession order should or should not be made. Judge Yelton at Southend County Court in this case was well aware of this section. He did take it into account in paragraph 14 of his judgment and decided that a possession order was necessary and that it should not be suspended. My Lord has set out the evidence which justified that order, and I agree that it would not be right for us to interfere.

32. Mr Latham, instructed by Shelter Legal Services, has submitted that the judge did not take into account the fact that he was to continue an anti-social behaviour order already made against the second defendant, albeit on varied terms. In my judgment, the judge did have that fact in mind but nevertheless decided not to suspend the order.
33. Miss Haggerty submitted that the judge's order was justifiable in any event on the basis that what had happened was too serious not to make an immediate order, and she relied for that purpose on London Borough of Lambeth v Howard where, as Sedley LJ said, "the shadow of the past was too heavy". For my part, I would be minded to accept that submission, but, as I have said, Mr Latham's attack on the judgment fails for the reasons which my Lord has given and I agree that this appeal should be dismissed.

Order: Appeal dismissed with costs on standard terms against a legally aided party. Legal aid assessment of the appellant's costs. Stay lifted.