A matter of discretion

Alexander Campbell considers the lessons to be learned from a High Court decision on a social landlord's appeal over the refusal to grant a possession order.

Grounds for possession of an assured tenancy are either mandatory or discretionary. That distinction is, of course, basic and well known. Nevertheless, however well-established that distinction is, it can be easy for landlords and lawyers to lose sight of how much latitude a trial judge really has when confronted with a possession claim relying on a discretionary ground, particularly in the area of anti-social behaviour and nuisance. The recent appeal to the High Court in Curo Places Ltd v Walker [2018] EWHC 2462 (QB) serves as a reminder of the wide scope which a trial judge has when trying a case on a discretionary ground.

Background

On 7 July 2015, Curo Places Limited (“Curo”) granted a six-year fixed term assured tenancy of a property in Bristol to Ms Walker. Problems soon began, however, as one neighbour in particular (a Mr Azami) made complaints about noise nuisance emanating from Ms Walker’s property. In response to that noise nuisance, Curo served a notice of seeking possession some 7 months after the tenancy was first granted. The notice relied on ground 10 (rent arrears) and grounds 12 and 14 (on the basis of nuisance and anti-social behaviour). A possession claim was issued on 7 July 2016, the first anniversary of the tenancy being granted. Ultimately Curo chose not to pursue the rent arrears grounds and proceeded on the basis of the nuisance/ASB alone.

The trial at first instance

Curo’s pleaded case relied on approximately 150 individual allegations of noise nuisance by Ms Walker which included banging on her floor, slamming doors, shouting, swearing, as well as being verbally abusive and using racist language.

Ms Walker admitted being responsible for some noise but denied other noise nuisance. She argued that much of the noise arose due to poor insulation in the building and due to her having two young children who woke early in the morning. She argued that she had several mental health conditions which made her impatient and gave her low tolerance levels for stress.

Curo placed reliance on a conviction which Ms Walker had received in Bath Magistrates’ Court for harassment (having been acquitted of racially or religiously aggravated harassment).

The first instance judge heard sound recordings in evidence. Those recordings (described by the High Court as “underwhelming”) gave the impression that Ms Walker was not directing racially abusive terms towards Mr Azami but rather was simply repeating back to herself racially abusive terms which another person had used towards her. Moreover the judge found that much of the noise nuisance (doors slamming, etc.) was simply everyday sounds which Mr Azami wrongly believed was directed towards him as a campaign of nuisance but which was actually audible because of poor insulation in the building.

The judge found that if a possession order were not made, the noise disturbances would be likely to continue but at a reduced rate. Ultimately he dismissed the possession claim, holding that it was not reasonable to make a possession order because much of the disturbance was the result of poor insulation in the building and because of Ms Walker’s mental health problems.

The appeal

Curo appealed on five grounds:

• That the judge had erred in stating that he was not bound by the criminal conviction of Ms Walker in the Magistrates’ Court.
• That the judge had failed to give adequate consideration to section 9A of the Housing Act 1988 (which required him to consider the effect of the nuisance/annoyance on other persons if it were to continue);
• That the judge should not have found that the nuisance/annoyance could have been dealt with by way of Curo improving the sound insulation (since Ms Walker had not raised an Equality Act reasonable adjustments duty defence, nor could any reasonable adjustment require Curo to alter a physical feature of the building);
• That the judge’s decision not to make a possession order was perverse in light of his finding that the noise disturbances would continue;
• That the judge had erred in considering an Equality Act defence when none had been pleaded.

The appeal was heard in the High Court by Mr Justice Birss. Dismissing the appeal, Birss J decided as follows.

On ground 1, whilst the trial judge was required to take Ms Walker to have committed a criminal offence for which she had been convicted unless she proved the contrary (see section 11(2) of the Civil Evidence Act 1968), the judge had not done otherwise: the judge had simply been stating in his judgment that Ms Walker’s criminal conviction did not compel him to make a possession order notwithstanding his own view of her overall conduct (as is decided law: see North Devon Homes v Batchelor [2008] EWCA Civ 840). Accordingly the trial judge had not erred.

On ground 2, section 9A of the Housing Act 1988 required the trial judge to take into account the effect that the nuisance or annoyance, if repeated, would be likely to have on persons affected. However, Birss J held that the trial judge had distinguished between the disturbances caused to the neighbours and the concept of nuisance/annoyance: the judge had found that most of the disturbances were caused by the reasonable activities of daily life exacerbated by poor sound insulation; the judge had found that those disturbances were likely to continue (absent, for example, Curo taking steps to improve the sound insulation in the building). The noise caused by Ms Walker reasonably going about her daily life did not amount to nuisance/annoyance. Thus, in finding that the disturbance might continue, the judge had not acted in breach of section 9A in the way that he arguably might have done if he had declined to make a possession order notwithstanding a finding that Ms Walker would continue acts of nuisance/annoyance into the future.

On ground 3, Birss J found that the trial judge had not held that Curo should have altered the structure of the building in order to improve the sound insulation in the building; rather the trial judge had simply taken into account, as he had been entitled to do, the fact that the disturbance caused to the neighbours had been exacerbated by the poor sound insulation in the building.

On ground 4, Birss J held that the trial judge, for the reasons addressed under grounds of appeal 1 to 3, had not acted perversely in dismissing the possession claim.

On ground 5, Birss J held that Curo had not been taken by surprise by the Equality Argument raised by Ms Walker and it had been fully argued before the trial judge.

In all the circumstances, the appeal was dismissed.

Lessons from the appeal judgment

It is not unusual for landlords to approach possession claims on the assumption that their worst case scenario is a suspended possession order rather than an outright one. Particularly in cases of anti-social behaviour, it can be easy to lose sight of the possibility that the trial judge might find that it is not reasonable to make a possession order at all. The appeal judgment of Birss J contains a number of important lessons for landlords bringing possession claims as well as for tenants responding to them.

Firstly, where a landlord seeks to rely on a criminal conviction, they should remember that section 11 of the Civil Evidence Act 1968 is not the end of the story: where a landlord is relying on multiple allegations of anti-social behaviour, they will need to be able to prove to the County Court exactly which of the allegations were concerned by the criminal proceedings and therefore which matters the County Court can take to be proven by virtue of section 11. Else the County Court may find itself, as in the Curo v Walker case, with only a vague indication that the tenant was convicted of something without it being clear precisely what conduct had actually been committed.

Secondly, the Curo v Walker judgment is a reminder of the value of understatement in litigation. At trial, Curo had warned the judge to expect a “rather shocking” sound recording of Ms Walker’s abusive language. In the event the recording was described by the appeal judge as “underwhelming” and, far from proving Curo’s case, it in fact assisted Ms Walker’s case by demonstrating the poor sound insulation in the building and demonstrating how the insulting words were spaced out in time and did not sound as if they were being directed at the aggrieved neighbour. A landlord in a possession claim should always ensure that visual and audio evidence does in fact show what it is said to show and should not risk overstating its gravity. A trial judge who is underwhelmed by the evidence is far less likely to find it reasonable to make a possession order.

Thirdly, the judgment is a reminder that, when relying on section 9A of the Housing Act 1988, courts (and therefore landlords bringing the claim) will need to distinguish between, on the one hand, disturbances which might be likely to continue into the future and, on the other hand, disturbances which actually amount to acts of nuisance/annoyance by the tenant and which are likely to continue. The fact that a neighbour is annoyed by certain conduct of the tenant does not mean that it necessarily amounts to nuisance/annoyance for the purposes of ground 14 of Schedule 2 of the Housing Act 1988.

Finally, the judgment is an indicator of the willingness of the courts to allow Equality Act points to be argued even when not formally pleaded. If a tenant has raised in their defence the fact that they have a disability, the landlord might be expected to respond to that point with the issue of disability discrimination in mind irrespective of the fact that an Equality Act defence has not formally been pleaded. Nevertheless it is, of course, always in a tenant’s interest to plead an Equality Act defence properly so that there is no scope for a technical point to be taken at trial about the fact that it was not pleaded.

Anti-social behaviour can be a blight on the lives of many tenants. Where a landlord brings possession proceedings to evict the tenant responsible, the Curo v Walker judgment is a reminder of some simple yet important steps which landlords should take in order to persuade the court to make a possession order. The court’s discretion when it comes to discretionary grounds of possession is a wide one and landlords should never assume that the making of some form of possession order is a foregone conclusion. Given the limited scope for appealing a judgment which turned on an exercise of the trial judge’s discretion, landlords may only have one shot at getting a possession order and will therefore need to ensure that they present their case as thoroughly and persuasively as possible; if there are important gaps in the case, the tenant may expect the court to exercise its discretion in their favour.

Alexander Campbell is a barrister at Field Court Chambers.