Judge criticises housing association over anti-social behaviour injunction bid, awards £27,500 damages for anti-discrimination counterclaim

A judge has strongly criticised Rosebery Housing Association on its mishandling of a case where it sought an injunction against residents for anti-social behaviour.

In Rosebery Housing Association Ltd v Williams & Anor [2021] EW Misc 22 (CC) His Honour Judge Luba QC said at the County Court at Central London that Rosebery “failed to come anywhere near establishing” that its response to the events complained about was proportionate and that its pursuit of the case had been “extraordinary” and “a forensic disaster”.

The application concerned Cara Williams and her mother Elaine Williams, although the latter gave undertakings to settle her case.

Rosebery sought an injunction under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014.

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Both women advanced a counterclaim based on alleged breaches by Rosebery of the anti-discrimination provisions in the Equality Act 2010, for which HHJ Luba awarded them damages of £27,500.

The voluminous complexity of evidence was such that Judge Luba complained and said this must not be repeated.

He said he was sent a two-volume trial bundle exceeding 1,500 pages, a further supplementary bundle, and a joint bundle of authorities and materials of more than 350 pages.

The court required the latter to be reduced to 25 items but this still exceeded 200 pages.

Judge Luba said: “Undaunted by the glut of material already put before the Court, counsels’ closing submissions referred to yet further material not in either bundle. This must not be repeated in any future county court trial in this class of case.”

The court heard the Williamses lived on Parkview Way, a residential street in Epsom and Ewell in which Cara Williams is a shared owner of a house with Rosebery.

Complaints about neighbour disputes had persisted for some years and in January 2020, Rosebery wrote to Cara Williams setting out complaints and giving her “one last opportunity” to avoid legal action.

However incidents continued that Rosebery said amounted to nuisance or harassment of other residents by her or her mother.

When the case first came to the county court in Kingston such a mass of material was presented that DJ Armstrong required Rosebery to reduce it to six sample cases of anti-social behaviour.

These included verbal abuse of neighbours by Cara Williams, use of crude and abusive language to them, derogatory comments about a neighbour’s disabled son and that she played loud music.

Judge Luba found only the last incident complained of had any validity.

He said: “I regret that I could not have confidence in the accounts of either of the residents called by Rosebery.

“Each had, to some extent at least, either exaggerated their evidence or embellished it. I accept…that each of them was under great stress, but nevertheless I was given the firm impression that each had lost any sense of perspective and was determined to (in my own words) ‘bring Cara down’.”

He found neighbour Denise Bassett misrepresented an incident between Cara Williams and neighbours and could be heard on a recording of it “saying loudly ‘“her (Cara’s) case is going to Court on 25th October and I can’t wait’”.

Another neighbour called by Rosebery, Natalie Siveter “gave a partisan and inaccurate account in the face of incontrovertible evidence”.

The judge rejected a proposal from counsel that he should take account of the mass of material originally submitted and “grant broad injunctive relief ranging well beyond noise nuisance”.

He said: “I reject that submission. The directions of DJ Armstrong clearly limited the particulars of claim to six allegations which might, if proven, be said to be mere examples or illustrations of a class of activity or behaviour on Cara’s part.”

The judge said his finding of noise nuisance by Cara Williams was “essentially as a response to the unrestrained (by the authorities) nuisance of another resident, it is at the lower, if not lowest, rung of noise nuisance allegations likely to be established on any application for an anti-social behaviour injunction”.

Anyone reading his judgment would, HHJ Luba said, “find it extraordinary that this claim has been pressed to trial in this way by a responsible social landlord.

“The claim has been a forensic disaster for Rosebery and for the residents in whose interests it thought it was proceeding.”

He went on: “Both the residents who attended to give evidence and those who did not will be astonished to read how Rosebery have pressed this case.”

The six examples had nothing substantive to do with the neighbours’ complaints, which in fact turned on Ms Williams’ counter claim.

Turning to this, HHJ Luba said Cara Williams had obsessive compulsive disorder that manifested itself among other ways in continual filming of the road and neighbours.

Professor David Veale, a consultant psychiatrist, said her compulsive filming was “the only thing that keeps her safe…she does not feel safe with her neighbours and this just increases her videoing”.

She stored these on a mass of hard drives but Prof Veale did not believe that she had “any intention of filming others maliciously or for perverse reasons”.

Experts told the court her behaviour appeared “mad” and “anti-social” and Prof Veale said he “would not be surprised if this had led to conflict with her neighbours”.

HHJ Luba said he had to decide if Rosebery treated Cara unfavourably “because of something arising in consequence of her disability".

Medical evidence showed her obsessive videoing and photographing were public manifestations of the disability and the judge said he could not accept Rosebery’s suggestion that its action only concerned non-OCD related anti-social behaviour such as verbal abuse, noise and targeted filming of others.

“I cannot accept that submission because the facts do not support it,” he said.

“It was Rosebery that first canvassed an injunction as an attempt to stop the filming. It was the filming (and more recently the counter-filming on all sides of alleged instances of anti-social behaviour) that was the real gravamen of the breakdown of relationships between some residents and Cara. It is the filming that is at the heart and centre of the schedule of allegations and the complaints made to Rosebery.”

That left Rosebery to show that its actions were ‘proportionate’ but HHJ Luba said, Rosebery “failed to come anywhere near establishing that its response to what developed in Parkview Way as a consequence of Cara’s disability was ‘proportionate’.”

He added: “Even at its simplest level, the issue was mis-managed. Rosebery has a policy for handling anti-social behaviour complaints. It contains specific arrangements for recording, transmitting and acting upon complaints.

"If any attention was paid to it at all by the Rosebery staff, as complaints began to come in, it was simply not operated as intended.”

The judge elaborated: “If ever there was a case in which the social housing provider needed to acknowledge, become familiar with and then discharge the public sector equality duty with vigour it was this one.

“From a very early stage it should have been obvious to Rosebery that Cara’s condition, particularly if untreated and worsening, would need to be accommodated with reason and understanding by her neighbours and that it would itself need specialist expertise to address a situation with which its own staff had little or no experience.”

Working with neighbours to resolve the problems was “a delicate and difficult task for which Rosebery was not equipped and for which it failed to equip itself”.

He concluded: “ What has been even more extraordinary is the pursuit by Rosebery of the claim right down to trial.

“That is in the face of compelling medical advice, commissioned for Cara but shared with Rosebery, that an injunction was more likely to give rise to further anxiety, and inflame the situation on the ground, rather than to bring any relief.  

“Instead of diverting attention to the real, effective, remedy of ensuring that Cara received the help, support and treatment she needed, it pressed on with the claim in a manner consistent with its solicitors’ early indication that it did not want to engage in the resolution of the dispute ‘by correspondence’ but rather by litigation.”

The claim of unlawful disability discrimination therefore succeeded, he ruled, awarding damages of £27,500.

Mark Smulian

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