Building a case to issue ASBIs

Tony Davies explains why proper preparation of the evidence for anti-social behaviour injunctions is vital

Hearsay evidence in applications for anti-social behaviour injunctions will generally be admissible, but the court will determine what weight will be attached to it. Therefore, in preparing the case, practitioners need to consider the position of each of the prospective witnesses who could give direct evidence, rather than deciding, for instance, that all of the allegations should come in as hearsay as part of a housing officer's evidence.


Solicitors should also consider the terms of section 4 of the Civil Evidence Act 1995. This lists the specific factors that will be relevant when the court decides what weight to attach to that hearsay evidence, for example:

Whether it would have been reasonable and practicable to have produced the maker of the original statement. If not, it is best to provide evidence to this effect.

Whether the original statement was made contemporaneously with the occurrence or existence of the matters stated. If it was, provide evidence to this effect.

Whether the evidence involves multiple hearsay. Consider whether the evidence can be reduced to primary hearsay if direct evidence from the maker of the statement is not possible.

Whether any person involved has any motive to conceal or misrepresent matters.

Whether the original statement was an edited account, or was made in collaboration with another, or for a particular purpose. This is a reminder to prepare and present hearsay evidence in an untarnished way and to avoid any argument that the hearsay evidence or the way that it is worded has been influenced by someone else. Openness and fairness also requires that the context in which a hearsay statement was made should be disclosed, if it may influence the weight to be attached to it, even if that will have a negative effect.

Whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Under rule 33.2 of the Civil Procedure Rules 1998 (CPR), the inclusion of hearsay evidence in a witness statement provides adequate notice of a party's intention to rely on hearsay evidence at trial. However, the party intending to rely on the hearsay statement must, when he serves the witness statement, inform the other parties that the witness is not being called to give oral evidence and give the reason why the witness will not be called. The latter is a requirement of the rules - proper observance will avoid the risk of the other party objecting at trial.




Preparing for trial


If directions are made in connection with a contested application for an anti-social behaviour injunction, these will often include a direction for a Scott Schedule listing the individual allegations. Even if no such direction has been made, it is helpful to the trial judge to include a schedule in the trial bundle, as an addendum to the case summary, listing each of the allegations, with columns for the parties' contentions on each of those allegations, a cross-reference to the paragraph in the particulars of claim, a cross-reference to each page of the witness evidence in support, and a column for the judge's use.


Even where an application is not actively opposed by a defendant but where a claimant still needs to prove its claim, a similar schedule, but omitting the defendant's response, is still of value. And even if there is no specific direction for a trial bundle (read CPR rule 30.5), the claimant must provide one not more than seven days and not less than three days before the start of the trial. 'Three days' means three clear working days (CPR rule 2.8(4)).




Drafting orders


Whenever attending a hearing at which you are going to ask a judge to make an interim or final injunction, you should always produce a draft of the order that you are seeking. The practice direction to CPR part 25 (interim injunctions) provides in paragraph 2.4: 'Whenever possible a draft of the order sought should be filed with the application notice and a disk containing the draft should also be available to the court in a format compatible with the word processing software used by the court.'


In wording draft orders, consider what the court is likely to order. On an application without notice 'the order must not be wider than is necessary and proportionate as a means of avoiding the apprehended harm'.


When drafting, consider whether there should be a mixture of the general and the specific - so that individuals who have been threatened and/or at risk of intimidation are specifically mentioned. Avoid using technical or legal words that a defendant may not understand, and avoid complicated phraseology. It is of vital importance that a defendant who is served with an order knows clearly what he is expected to do or not to do.


The Court of Appeal in Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287 underlined the importance of court staff adequately proof-reading orders before they are sealed and handed out. There were numerous errors in the order for service in that case. It is also important to emphasise the need for the claimant's representatives to proof-read orders that are prepared by the court and to check that orders are correctly drawn before they attempt to serve them on a defendant.


To reduce the risk of errors creeping in and to make the best use of everyone's resources:

Avoid producing a hand-written draft.

Produce an electronic copy. Check with the court whether it can deal with drafts on disc or by way of e-mail attachment.

Avoid using an amended draft or one with hand-written elements as the engrossment for sealing.

If the order made does not follow the draft exactly and you have not produced an electronic copy, offer to have the order engrossed at your office for sealing. Timing may often be critical - but this should not result in inaccurate orders, or orders that are difficult to read or understand, being served on the person who is required to obey them.

Anti-social behaviour injunctions are an essential part of the armoury available to social landlords in dealing with unacceptable behaviour on the part of their tenants. If used properly, they can provide an effective way of transforming the quality of life for other tenants and residents in an area as well as safeguarding employees of the tenant. Proper preparation and proper presentation of the evidence will increase the prospect of a fair and worthwhile outcome.


District Judge Tony Davies sits at Birmingham Civil Justice Centre