Ask many people what the main civil measure is to control unruly tenants or their family members or visitors and they may well say the anti-social behaviour order. Yet in the six years since this process was introduced by the Crime and Disorder Act 1998, there have only been a little over 1,000 ASBOs.
They attract publicity of course, not least when the restriction on the defendant is worthy of tabloid comment, such as preventing the defendant from saying the word 'grass' or talking through letter boxes (as happened recently), but by far the most common procedures used by social landlords to deal with nuisance behaviour are the possession action and injunction (Sections 153A-E, Housing Act 1996).
The social and political climate over the past 10 years and the greater use of hearsay evidence in possession and injunction claims has made it increasingly difficult to defend tenants faced with these claims. This is especially the case since the Housing Act 1996 amendments to the nuisance ground for possession in the Housing Act 1985 (secure tenants) and Housing Act 1988 (assured tenants).
However, there are tactics that can be employed in some cases to achieve a positive result for the tenant client. Indeed, my impression is that the tide is turning somewhat, with courts requiring a 'better prepared' case by the landlord if they wish to succeed.
There are going to be cases where it is apparent (if not necessarily admitted) that there is compelling evidence of serious nuisance behaviour that has shown no signs of abating and where, as far as this can ever be said in the court process, a possession order is inevitable. The recent Court of Appeal authority of New Charter Housing (North) Ltd v Ashcroft (2004) HLR 36 Q 599 paras 30-32 confirmed there is no point suspending an order if the inevitable outcome is a breach.
Any factor that is relevant as to whether there will be future breaches must be relevant to the question of suspension. I had to advise in a recent case that there was no defence to nuisance possession claim where not only were the allegations (of mostly noise disturbance) largely admitted but the tenant clients had also failed to modify their behaviour & there was also no reason to think that this situation would change in the foreseeable future.
More normally, however, the case is more equivocal and, in my experience, is best handled robustly but with a degree of common sense. By that I mean that:
• the landlord should be asked to disclose evidence for each and every allegation and why they say it caused a nuisance or annoyance to others.
• the tenant client should not be denying things when it is clear that they happened, or be simply putting the landlord to proof on everything, when the reality is that an admission is the correct response (remembering that the Legal Services Commission's funding code guidance does not advise against legal representation public funding where a defence can still be raised as to reasonableness). To do otherwise would be to give the whole of the tenant client's evidence a lack of credibility when it becomes clear at trial that certain allegations are indeed proved. If this happens, the judge may be less minded to give tenants the 'benefit of the doubt' on other matters and upon considering the eventual order.
Lord Justice Hale made it plain in Lambeth LBC v Howard (2001) 33 HLR 636 @ 647 (43) that continued denials of any previous wrongdoing are highly relevant to the question of whether to grant an outright order.
Earlier this year I was representing an assured tenant in a nuisance possession claim brought by a registered social landlord. After a three-day trial the court found the 13 or so specific allegations relied upon by he landlord largely unproven, save for one, which had taken place 15 months previously. Despite the landlord's claim being supported by live evidence from two neighbours and a police officer (and only the tenant herself attending court to give evidence in support of her case), the judge dismissed the claim because this one incident had occurred a significant period before the trial.
The judge accepted the submission that those allegations raised in the landlord's statements but not included in the particulars of claim should not be considered when deciding if the ground for possession had been proved. She also agreed that as all but one of these 'extra' allegations pre-dated the issue of proceedings then those were not to be considered when deciding if it was reasonable to make a possession order (if the ground had been proved).
The tenant client did not seek to portray herself as 'perfect', admitting certain indiscretions (largely as a result of provocation from the landlord's main neighbour witness). It was, therefore, much easier to portray her evidence as being honest and realistic when considered against the evidence relied on by her landlord, much of which did not come up to proof because the neighbour witnesses in particular had exaggerated even on their case the alleged degree of culpability on the tenant's part.
Not every case, as I have indicated above, is one that can be credibly opposed in such an absolute fashion. There are occasions where possession is inevitable or, more usually, the question of an order suspended on terms comes to the fore. I am instinctively cautious about accepting an offer of a suspended possession order or suggesting it as part of any part 36 offer. This is not only because in cases where 'false' allegations are a feature of the case they likely to continue, with the result that a full hearing will eventually take place in any event as the landlord seeks to issue a warrant. There is also the question of the tenant client becoming a tolerated trespasser where there is a breach of any suspended terms.
In my experience (both at the Bar and before that as an advice worker in the voluntary sector and local authority councillor) it is all too easy to treat nuisance possession claims as an exercise in getting the landlord to prove their case. Yet a greater willingness to adopt a more proactive approach and do much of the running in a case can produce positive results, even in what on first flush seem the most difficult of cases. It also enables the tenant client s lawyer to give proper and tactically astute advice to their client and allows them to pursue the most appropriate option.
This article was originally published in Independent Lawyer Issue 28 May 2005.