They then concluded their argument by reiterating the fact that they were of the belief that the trial judge had made an error even though, prima facie, it had been a model exercise of judicial discretion. To end finally, they placed two options before the court if the judge was to find his ruling in their favour: their preferred choice would be for a possession to be made. If not, in accordance with article 8 of the Human Rights Act, the respondents should then plea all matters before the court again in order to establish what should be done.
Respondents’ argument
The respondents maintained that the original judge had made no error in his approach and that the only disagreement between the parties was a matter of the judge’s discretion, which could not be interfered with by an appeal court unless the correct procedure had not been followed when he came to making his decision. It had already been accepted by both parties that the appellant’s case was not sufficient based on her rent arrears alone, but the two sides differed on whether or not the trial judge had effectively considered the drugs issue.
In response to this claim the respondents submitted the following evidence: At the last hearing the judge was not able to satisfy himself that Gabbindon was herself a drug dealer. In addition, he left open the question of whether the dealing occurred with her willing consent or under pressure. It was also unknown for how long the tenant had been away from the property and whether she was fully aware of what had been going on. The barrister for the respondents admitted that there had been evidence of five very serious matters but pointed out his clients had never been charged or convicted. He also highlighted the fact that these matters had taken place ‘some way in the past’ with the most recent being late in 2000 and the warrant for possession made in October 2001. He claimed that the trial judge had taken into account the seriousness of the offences plus the fact that the Stonebridge Estate had attracted notoriety over the years but had been, of late, trying to rebuild it’s image but was still satisfied that a ‘significant period’ had elapsed between the last incident and the warrant. The respondents submitted that the balancing of reasonableness is a matter of discretion, which the District Judge exercised without fault. The case of Raple was referred to with regards to the question of reasonableness. The judge then stated the question being asked by the respondents was whether the occupants would be allowed to continue to live in the property in which they are currently trespassing, taking into account the circumstances. The barrister for the respondents then used the case of Darlington v Sterling to illustrate the point that the consequences on the tenant and others should be taken into account if a possession is made. He then went on to illustrate his point about possible consequences if and order is made or even if it is not with the case of Simmonds. The respondents then concluded their case stating that it was indeed relevant to take into account the level of a tenant’s personal claim as well as Article 8 of the Human Rights Act when considering reasonableness.
Judgement of the court
Justice Lloyd stated that the case he was about to give judgement on was an appeal by the landlord against an order made by District Judge Sitch, which had granted the respondents a suspended possession order. He then continued his judgement by restating the basic points that had arisen during the hearing and subsequently read part of the previous judgement. Mr Justice Lloyd then went on to address the submissions of the two counsels and then stated the three elements that needed to be addressed when making a final possession of a secure tenancy. These were:
- Were the grounds proven?
- Was it reasonable in this case to make an order?
- Should the order be stayed or suspended?
He then went on to state that the judge had been right to suspend the order because even tough it was common ground that a breach of suspension could lead to possession, the tenant may make an application for an extension. The appeal court can only interfere when a wrong principle of law had been applied and only in cases of last resort could a final possession order be made otherwise this would be a disproportionate punishment. Following this, he dealt with the argument put forward by the appellants mainly supported by the case of the City of Bristol v Musa. Justice Lloyd said he believed that this case primarily concerned element (b) and that nothing in that case’s judgements helped later courts in answering the third element, which was the main issue in this case. It did not compel that there was only one possible solution to the problem faced here.
He then went on to conclude that the trial judge had sufficiently considered the drugs issue and even though he did not appear to approach the tenant in this case as a tolerated trespasser already in breach, it was clear that he was fully aware of the consequences/situation. Though the appellants had submitted he had not fully considered the three necessary elements, Justice Lloyd disagreed and stated that he had done this well enough. The appellants also submitted that the age of the youngest child should not have been a decisive factor but again the judge disagreed stating that Article 8 makes this important and therefore not an irrelevant factor. As Judge Sitch had not included any statements regarding s.17 of the Children Act in his judgement, there was no evidence of him having misdirected himself. The appellants had also submitted that on an estate such as the Stonebridge, the ability of SHAT to manage properties if no order is made would be subverted. Justice Lloyd then pointed out that the trial judge had categorically stated that this case should not be used as any form of precedent if a similar case arose.
The trial judge was held to have only referred to relevant factors in his judgement, thus striking the balance of reasonableness and therefore the judge stated he had no other option but to dismiss the appeal and ordered the costs to be paid by the appellants.
Ratio Decidendi
It was clear that the judge had no choice but to come to this decision because as had already been pointed out, he could only interfere with the previous judgement if a legal principle had been misapplied.
There was no particular case quoted by the judge as his basis for making the decision but according to what was laid out in the Rent Acts and the Housing Act 1985, there had been no misapplication of the law as so the appeal had to be dismissed.
Court – layout and procedures
The Royal Courts of Justice was opened in 1882 and consists of the High Court of Justice (divided into the Divisions of Family, Chancery and the Queen’s Bench), and the Court of Appeal. To enter through the main gates at the Strand, you pass under two impressive carved porches fitted with iron gates. These contain amongst them biblical carvings and statues. On first entering the court you can see an immediate contrast of new and old. The stained glass windows, mosaics and numerous statues and paintings appear slightly at odd with the security system, which demands everyone entering the building must be scanned along with their belongings.
The court in which the hearing took place was quite small compared with other courtrooms seen in places like the Old Bailey. Its walls were lined with shelves of books and microphones dangled from the ceiling in front of the judge, counsel and the witness box. Court 18 (in which the case was heard) was set out so that as you entered the room you could see the dais (Bench) where the judge sat and above him, the Royal Coat of Arms symbolising his authority. The counsel and witness were sat in rows opposite him. There was no jury box, but this was quite normal as jury trials of civil actions are rare.
This appeal was not robed so the judge and barristers did not have to wear their traditional attire of a gown and a wig. Instead, they all wore suits. Whenever the judge entered the courtroom, all those present were commanded to rise and did not sit until he did. The atmosphere was not tense but far from relaxed. The arguments of the parties were put to the judge in a conversational form although an air of deference towards him remained at all times.
Lay and Legal People
The legal personnel involved in this case included the judge who as a High Court Judge must have had a ten-year High Court qualification or must have been a circuit judge for at least two years. There was a barrister representing each of the parties who were responsible for bringing the relevant law to the attention of the judge to decide on.
Lay people involved in the procedure included the clerk of the court known as the judge’s Associate. She was responsible for the court documents and was the one who announced the judge and carried his papers. A shorthand writer did not appear until the judgement was delivered.
Conclusion
This case resulted in the respondents being granted permission to remain in possession of the property, which was evidently a great relief for them and after the judge, had left the courtroom they started dancing. The appellants were clearly displeased and it was clear to see why – the tenant was in breach of a suspension order but was still given a right over a property that could prove more profitable if SHAT could re-let it to somebody else. In addition, as they had lost the case, they were ordered to pay the costs of the respondent, which will not be small in addition to what they already lost at the County Court.
In my opinion the right thing had been done, if only for the respondents’ family though I do not feel that justice had been done as they had clearly broken the law on several occasions and were not punished.
Bibliography
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Eddey and Derbyshire on the English Legal System, 7th edn
- The Royal Courts of Justice – An Introduction for Visitors
- Lawtel – Online database
- LexisNexis – Online database
Appendix
- The first two involved the smoking of marijuana on her property by a relative in 1997 and
1998 and three even more serious occasions where cocaine was found in the vicinity of the property leading to two arrests outside in November 2000. The property was also raided in December of 2000. These last three incidents were denied by the respondents and it was found that she was away from the property at these times.
- R (on the application of W) v Lambeth London Borough Council [2002] 2 All ER 901
‘Held – In cases where a family with dependent children was not entitled to help from the local housing authority, s 17 of the 1989 Act gave the local social services authority a power to assist the family with the provision of accommodation, but the exercise of that power was a matter of discretion for the authority, and the latter could, if it saw fit, reserve it to extreme cases. Such a conclusion was not precluded by the previous Court of Appeal decision since that decision had been made per incuriam.’
- Children Act 1989, ch. 41, s.17
Provision of services for children in need, their families and others
- Children Act 1989, ch. 41, s.20
Provision of accommodation for children: general
-
Sheffield City Council v Hopkins [2001] EWCA Civ 1023 Lord Woolf CJ said that ‘…the discretion of the court…under the Rent Acts is not limited to circumstances connected with the case which is relied on for seeking possession.’
- Housing Act 1985, ch. 68, sch. 2, Pt. I (Eng)
The tenant or a person residing in or visiting the dwelling-house—
- has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
- has been convicted of—
- using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an arrestable offence committed in or in the locality of, the dwelling-house
-
Gallagher v Castle Vale Action Trust Limited The act ‘…does not in its terms exclude the possibility of an appeal on the question of reasonableness. What are not appealable, by virtue of it, are the judge’s findings on the primary facts relevant to that judgement.’
- Human Rights Act 1998 Article 8 – Right to respect for private and family life (qualified)
-
Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- Unable to locate this case. Also unsure of spelling. This was also a rents arrears issue and it was stated here concerning reasonableness that as matters irrelevant to the proceedings should not be taken into account, those pertaining to the case should not be omitted.
- Darlington Borough Council v Sterling 29 HLR 309
From the judgement by Mummery LJ ‘ (2) The Court shall not make an order for possession –
- on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,
- on the grounds set out in Part II of that Schedule (grounds 9to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,
- on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect; and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant.’
- Royal Borough of Kensington and Chelsea v Simmonds 29 HLR 507
From the judgement by Simon Brown LJ ‘…the judge took into account: (a) the fact that, since proceedings had been issued in January 1995, things had ‘by and large improved’; (b) ‘all the background to this case’, and (c) the possible consequences respectively of making and of not making an order for possession…In my judgement there is nothing in any of the grounds presented to this court and, for my part, I waould unhesitatingly dismiss this appeal.’
- Issues raised in the initial judgement reiterated by Lloyd J
He highlighted the fact that Judge Sitch had commented on the particular issues facing the Housing Action Trust concerning the Stonebridge Estate. In addition, he talked of the trial judge’s appreciation for the seriousness of the matter as well as his inconclusive report on the involvement in the drug dealing that had occurred. The fact that she had not been personally dealing in drugs added to the fact that the events had not been recent were the main two mitigating factors for the respondents. He also went over the section of the original judgement where the question of reasonableness had been approached and considered Article 8 of the Human rights Act. The trial judge had accepted that the fact Gabbindon was a single mother could not be enough to suspend or stay the warrant but even with the issue of drugs, he had to consider the age of the children in question. This led him to ‘reluctantly conclude’ that it would not be correct in this case to make an order although any further evidence would mean immediate possession.
A v Lambeth London Borough Council [2001] 3 FCR 673
Gallagher v Castle Vale Action Trust Limited [2002] EWCA Civ 944
Unable to locate this case. The spelling of Musa may be incorrect.