England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Royal Courts of Justice The Strand LONDON WC2A 2LL
		21st November 2002

MR JUSTICE LLOYD:

1. This is an appeal by the landlord claimant against an order made by His Honour Judge Sich in the Willesden County Court on 19^th February 2002, granting a further suspension of an order for possession originally made in 1997, then on grounds of arrears of rent. The terms of the original suspension were broken at any rate by 2001, if not before, and the tenant thereby became a trespasser, but one whose position might be regularised by a further suspension of the possession order. A warrant for possession was issued in October 2001 and an eviction date was set for November. The tenant applied for a stay of the warrant, or for a further suspension of the order. She was able to remain in possession until that application came on for a full hearing and, before Judge Sich, she succeeded in establishing that the order should be further suspended so that she was able to remain in possession.
2. By that date there were further rent arrears, but the judge held that, although the position in this respect was less than satisfactory, the court would not regard the arrears as sufficient by themselves to justify an immediate order and, to be fair to the landlord, that was its position as well. The major issue arose from allegations that the premises had been used for illegal purposes in respect of drugs. The allegations were proved in this respect and a further single incident was alleged, but not proved.
3. In respect of this, which is the most important aspect of the matter from the landlord's point of view, I will start by reading two paragraphs from the judge's judgment, at paragraph 3 of the transcript:

"I move on then to what has occupied most of the time this afternoon which is in relation to the allegations of nuisance. One must put this in context: Stonebridge Estate, I am afraid, has been notorious for many years and has occupied a considerable amount of my time, both in this court and in the Crown Court for various reasons. We all know that the estate is being redeveloped, renovated at the present time, and a lot of the bad reputation that it used to have is, I hope, slipping away due, in no small part, to the work of the Stonebridge Housing Action Trust.

"It is very important that the Stonebridge Estate should be seen to be taking a very firm line in relation to drugs, and this court will certainly do all that it can to send the message loud and clear that the bad old days, when the Stonebridge Precinct was a 'no go area' I hope are past. So I approach Sergeant Walker's evidence in that regard. Clearly attempts to clean up drugs on the Stonebridge Estate will be met with antipathy from some of the people there, and invasions of people's privacy are never welcome whether they are involved or not. Investigations here have shown that there has been criminal activity of various kinds in the vicinity of this flat."

4. The judge then went on to consider the particular incidents, two of which were admitted. Those were occasions, one in 1998 and one in 1999, when a relative of the defendant smoked a cannabis joint in the defendant's flat and she was aware what was going on. The judge said,

"As the occupier of the premises, her clear duty was to forbid the smoking of cannabis on those premises, quite apart from any responsibility towards her child, one child, as there then was, in relation to that."

5. Three further incidents were denied but were accepted by the judge as having been proved. They were on 3^rd and 5^th November 2000 and on 21^st December 2000 and they involved crack cocaine. In the last of the three occasions there was a raid on the premises and a quantity of crack cocaine was found inside the flat but the defendant was not there on that occasion. On the earlier two occasions persons were arrested very shortly after leaving from the entrance outside the flat, they were in possession of crack cocaine, and the inference – as the judge said – was that they had got the crack cocaine from the flat. The judge does not say it in terms, but I infer that on those occasions in November the defendant was not around either.
6. His conclusion about these incidents is expressed in a paragraph at the top of page 5 of the transcript which I will read.

"What conclusion do I come to in relation to those three incidents? I am by no means satisfied that she is a drug dealer herself, but I think the inevitable inference must be that she allows drug dealing to take place from her premises. I think the associates who, either willingly or under pressure, she allows to use her flat for that purpose. How far she is involved or how far she absents herself from the flat when this is taking place, I am not sure. But my conclusion would be, as I say, not that she is a drug dealer herself, but that she allows people to use her flat for this purpose."

The judge held that all five incidents were serious and that they clearly amounted to nuisance and, therefore, would by themselves have been grounds if necessary for the making of a possession order.

7. He says that he finds only two mitigating factors in relation to these matters. One is that he is not satisfied that the defendant has been dealing herself personally and the other is that he has not found proved anything very recent. The incident that was alleged and not proved, dated from October 2001.
8. He then goes on to ask himself: "Should I make an immediate possession order?" and addresses the overall requirement of reasonableness both on the existing authorities and in the light of Human Rights considerations under Article 8. I think it sensible to read the last two paragraphs of his judgment in which he sets out his essential reasoning.

"The fact that a defendant is a mother of children cannot possibly of itself be a reason for refusing a possession order. The overall circumstances have to be looked at. The aspect that troubles me here is the age of the younger child, who was only four last July. I have had to put that into the balance. I found this a very difficult balance I may say, but having regard to what I have already said about the rent position and such mitigating factors as there are relating to the drugs on the one hand, and on the other hand the clear desirability of showing a firm front so far as drugs are concerned, I have just, and with some reluctance, come to the conclusion that on this occasion it would not be right to make an outright order. I have already said what I want to say about rent arrears in relation to a tolerated trespasser.

"I will say in relation to the drugs that I do regard it as a clear duty on the part of this defendant, not only to use her best endeavours but to ensure that no such activity takes place from her accommodation. If there is any further evidence of such activity then the result would be inevitable. As I say, the decisive factor here has been the age of the younger child. I think that an immediate possession order at this stage would cause undue hardship, but I wish to leave the defendant in no doubt whatsoever as to what is going to happen if there are any further incidents."

After discussion following his judgment he ended up making a new possession order suspended on payment of current rent plus a certain amount each week of the arrears.

9. Counsel before me, whose submissions were clear, economical and to the point, agreed that there are three elements which are necessary to be addressed when the court is considering the making of a final order for possession on a discretionary ground in relation to a secure tenancy such as that which existed in the present case, at any rate before the original possession order: (a) are relevant grounds for possession proved? (b) If so, is it reasonable to make a possession order? (c) If so, should the court exercise its wide discretion under Section 85 of the Housing Act 1985 to suspend the order or to stay execution?
10. Here, points (a) and (b) arose and were satisfied in 1997 so far as making a possession order was concerned, and on addressing point (c) the court clearly came to the conclusion –as it would I dare say almost invariably in the case of rent arrears alone – that the right order was to suspend the order.
11. It is common ground that if someone who is the subject of a suspended order for possession in circumstances of this kind commits a breach of that order, the secure tenancy then comes to an end. It is also common ground that someone in that position may apply for a stay or a further suspension, and that on any such application the court may consider circumstances that have arisen whether before or since the making of the original order. Findings of primary fact relevant to reasonableness in the county court, cannot be challenged on appeal and an appellate court can only interfere if a wrong principle is applied. It is also accepted on behalf of the landlord, by Mr McGuire, that a final order should only be made as a matter of last resort in a clear case, otherwise the remedy is disproportionate to the problem and a breach of Article 8 is likely to be incurred.
12. Mr McGuire relies particularly on one authority which is City of Bristol-v-Mousah (1998) 30 HLR 32. That was a case in which possession was sought against a secure tenant and where among the principal facts relied on were incidents to do with the use of the premises for dealing in crack cocaine. The City of Bristol had let premises to the defendant in November 1993, but by March 1994 they had had complaints of nuisance and noise from the premises and they served a notice to quit. In April police officers entered the premises under a warrant because the premises were suspected of being used for the supply of Class A drugs. This was found to be the case. Six persons were arrested for using cocaine. A further warrant was issued in June 1994, the premises were again entered. A significant quantity of crack cocaine was found and another six persons were arrested. In August 1994 the premises were again entered, crack cocaine was found, and two persons were arrested. In the meantime the landlords served notice seeking possession of the premises and by the end of 1994 they started proceedings on the grounds both of rent arrears and of nuisance.
13. The judge at trial held that although grounds for possession had been made out it was not reasonable to make an order. Counsel for the landlord submitted to the Court of Appeal that the proper approach in a case of this kind, where there has been proved to have been a serious criminal offence being committed at these premises by the tenant in permitting them to be used for the sale of dangerous drugs, is that only in exceptional cases could it be said that it was not reasonable to make an order. He submitted that the trial judge took account of matters that were irrelevant.
14. Lord Judge Beldam, giving the first judgment in the Court of Appeal, accepted this submission. He says,

"I am satisfied that this court is in a position to review a decision of the assistant recorder to substitute his own decision and exercise its own discretion in replace of the recorder's discretion. I consider that Mr Arden's approach to this question is correct. Where there is such a serious breach of condition of the tenancy it is only in exceptional cases that it could be said that it was not reasonable to make the order.

"The public interest, in my view, is best served by making it abundantly clear to those who have the advantage of public housing benefit, that if they commit serious offences in the premises, in breach of condition, save in exceptional cases, an order for possession will be made. The order will assist the housing authority who, under Section 21 of the Act, have the duty to manage the housing stock and have the obligation to manage regulated control allocation of their houses for the benefit of the public, in my view the public interest would best be served by the appellant being able, in a case such as this, to re-let the premises to someone who will not use them for dealing in crack cocaine."

Lord Justice Otton said much the same at page 41,

"Of more significance is the fact that the judge found as a fact that the respondent had persistently permitted the premises in question to be used for the purpose of supplying of a Class A drug, namely crack cocaine. In reaching that strong finding he undoubtedly correctly applied a high standard of proof. This was a serious criminal offence and a serious matter. In my judgment it can only be in exceptional cases or circumstances that it would be reasonable for an order for possession not to be made when a serious criminal offence is being persistently committed as was undoubtedly the fact in this case."

Lord Justice Thorpe agreed with both judgments.

15. There were other factors in that case. The judge had been influenced by his view of evidence relating to the mental state of the tenant and also as to what the Court of Appeal regarded as 'illegitimate speculation' as to whether the tenant would be re-housed if he was to be made the subject of an order for possession. The Court of Appeal considered that on both those matters the judge went the wrong way of taking them into account, and more fundamentally, as they say in the passage that I have quoted, that essentially it would be difficult to envisage circumstances in which premises had been used so seriously for criminal offences of this kind and that it would not be reasonable to make an order for possession.
16. In express terms, the judgments in that case are concerned only with question (b) out of the three points that I have mentioned earlier. There is no express or other reference to the question of whether a possession order were made, it should be, or might properly be, suspended. Mr McGuire submits that it is clear from the passage that I last read from Lord Justice Beldam about the landlord being able to re-let the premises, that the Court of Appeal were assuming that the order for possession would be immediately effective, and thereby implicitly they are saying not only that in such a case it would be reasonable to make an order for possession, but also that in such a case it would not be appropriate to suspend it or stay it.
17. I dare say that that is the basis on which the Court of Appeal proceeded, and I dare say that that was the correct view on the facts of that case and on the way that it was argued by Mr Arden for the landlord and Mr Morgan for the defendant. But it is right to say that there is nothing in that case, in terms of the judgment, which helps later courts in any express way in answering the third question: 'whether it would be appropriate to stay or suspend the order in circumstances of that kind'.
18. In the present case the judge clearly did regard the conduct relating to drugs as being serious and he very much had regard to the problems that had existed and still existed on the Stonebridge Estate. Mr McGuire's submission amounts in effect saying that in a case where these breaches had built up, no judge could properly grant the tenant a further right to occupy the premises notwithstanding the breaches. There are sentences in the judge's judgment which suggest that the judge was not approaching this as an application for a stay, by a tolerated trespasser already in breach of the terms of the tenancy and the terms of the original possession order and, therefore, had mercy. But it is clear from two passages on page one, and a passage at the top of page three, of the transcript of the judgment, that he did realise exactly what the position was and that when he refers to making an immediate order for possession, what he is thinking of is the substantive effect of refusing the tenant's application for a stay or a further suspension.
19. Mr McGuire submits that he failed to give proper weight to the financial breaches, but it is clear from his judgment that he did consider them, that he assessed them in a way to which no exception could be taken, and that he brings them into account and in his final reasoning at the end of the judgment neither by themselves or necessary combination of the breaches to the arrears of rent compelled to refuse a stay or a suspension. Mr McGuire submits that the judge was wrong to take into account the position of the child, then 7 months old (now about a year) which he says that he found to be the decisive factor. But it seems to me clear that, especially having regard to Article 8, the consequences for the tenant of eviction are relevant circumstances, and the consequences for her family are all part of that in relation to her young dependent children.
20. What conclusion those matters should lead to is another question, but I cannot accept that by having regard to this fact, the judge brought into the account an irrelevant factor to which he should not have had any regard. There had, I am told, been some discussion during argument of the position as regards the younger child, and the question of the local authority's duty or power to house a child with the family under the Children Act. That does not feature in any way in the judgment and I cannot hold that the judge misdirected himself by taking account of the existence on the premises of the child, even if there had been debate during argument which proceeded on a basis which subsequent authority has shown to be wrong.
21. The main point of Mr McGuire's submissions is that on an estate of this kind with the problems that it has had, or still has, if the landlord cannot get possession of the premises which are proved to have been used for dealings in crack cocaine, its ability to manage its property will be seriously subverted and that that cannot be an appropriate approach for the court. As to that, the present case is no precedent for any other. As is made plain by the judge in his judgment, the tenant is very much on sufferance; a single further incident would put her occupation entirely at risk, as the judge said. No other tenant would be able to rely on being able to resist an application for a possession order, and for an immediate possession order, or in succeeding in support of an application for a stay or further suspension, on the analogy with the present case.
22. But the judge had regard to those factors and, as it seems to me, albeit that the observations of the Court of Appeal in City of Bristol-v-Mousah are cogent, they do not by themselves compel the conclusion that when the court is addressing question (c), of the three I have referred to, it can come to only one possible answer in a case where incidents of this kind – which are to some extent comparable with those that were issues in the Mousah case – have been proved. Plainly the judge regarded this case as far from easy and hesitated before acceding to the tenant's application. But he did do so and he did so after referring to all the factors that had been suggested to him as being relevant and to no factors that it seems to me should be regarded as irrelevant. I do not accept that the drug incidents were conclusive factors which required him to reject the tenant's application whatever might be the other relevant circumstances.
23. Accordingly, I am unable to find any misdirection or irrelevant principle in his judgment and I, therefore, have no basis for holding that his decision was one which was not open to him on the facts. I, therefore, dismiss the appeal.