Interim without-notice injunctions

In recent years, registered social landlords (RSLs) have been provided with numerous powers to deal with tenants who are guilty of anti-social behaviour. The recent case of Moat Housing Group South Ltd v Harris [2005] EWCA Civ 287 (see [2005] Gazette, 21 April, 31) is a salutary reminder to landlords of the limits on those powers and the need to take great care in the preparation for interim without-notice injunctions.


Ms Hartless was the assured tenant of a house on the claimant RSL's estate. She lived there with four children. The children's father (Mr Harris) did not live with her but was a frequent visitor. The RSL received numerous complaints of serious anti-social behaviour by children on the estate. However, the majority of the complaints related to the children of other tenants on the estate (Mr and Mrs D).


The RSL obtained without-notice anti-social behaviour injunctions against both families under section 153A of the Housing Act 1996. The orders contained terms requiring Ms Hartless and Mr and Mrs D to leave their respective homes immediately and not return to a defined area around the estate; not to cause a nuisance or annoyance to any person in the neighbourhood of the estate; not to contact the witnesses who had provided the statements which supported the application; and to exercise proper and reasonable parental control over their respective children. A power of arrest was attached to all the terms of the orders.


The witness statements in support were from six neighbours and a housing consultant, who had assisted in making the application. The majority of the evidence related to the conduct of the D family.


However, the Court of Appeal noted that some of the statements were confusing in that they failed to distinguish between the two families and merely referred generally to the behaviour of 'the defendants'.


Before the application, the RSL had sent no prior warning letters to Ms Hartless. The first time that she knew of any complaint about her children's behaviour was when the order was served at 9pm on a Friday by the RSL, who attended with the police. With the assistance of a solicitor, she obtained an emergency order over the weekend so that she could remain in her home. However, Mr and Mrs D did not contest the injunctions and left the estate never to return.


Subsequently, the RSL brought possession proceedings against Ms Hartless. The judge granted an outright order for possession and anti-social behaviour orders (ASBOs) under the Crime and Disorder Act 1998 against Mr Harris and Ms Hartless for a period of four years.


The Court of Appeal gave detailed guidance concerning the making of interim anti-social behaviour injunctions without notice. The court should always consider that to make an order without notice is to depart from the normal rules as to due process and warrants the existence of exceptional circumstances. One such exceptional circumstance is that there is a risk of significant harm to some person or persons if the order is not made immediately, and the order must not be wider than is necessary and proportionate as a means of avoiding the apprehended harm.


On the facts of the case, the parts of the order that protected the witnesses and restrained the defendants from committing anti-social acts were appropriate. In contrast, it was neither necessary nor proportionate to the harm sought to be avoided to make an order requiring Ms Hartless to leave her home.


The court also held that a power of arrest should only be attached to a term of an anti-social behaviour injunction made without notice if the court is satisfied that the defendant has used, or threatened, violence against some person or persons of a description mentioned in section 153A(4) of the 1996 Act (for example, neighbours), and that there is a risk of significant harm to one or more of those persons if the power of arrest is not attached. It was appropriate to attach a power arrest to the terms that protected the witnesses and restrained the defendants' behaviour.


Although the court accepted that there is a power to make an order without notice excluding a person from his home under the 1996 Act, it emphasised that the court must be satisfied that there is a risk of significant harm to some person or persons if such an order is not made immediately, and that it is necessary and proportionate to make such a drastic order as a means of avoiding the apprehended harm.


Great care must be taken before making such an order as its effects may be difficult to reverse so that it may, in practice, take effect as a final order. When making such an order, the court should generally require that it be served at a reasonable time of day, for example, between 9am and 4.30pm on a weekday.


The Court of Appeal was highly critical of both the form of the witness statements relied on and the wording of the orders, which were confusing and contained numerous typographical errors. It emphasised that considerable care must be taken when drafting witness statements in support of a without-notice injunction. The conflation of the evidence against the two families had led the district judge to fail to distinguish between the evidence against Mr Harris, Ms Hartless and their children and that of the more serious misconduct of Mr and Mrs D and their family.


The Court of Appeal was also highly critical of the fact that the RSL had given no prior warning to Ms Hartless about her behaviour and that of her children. Where the behaviour of a tenant's children is at the root of trouble on a housing estate, a social landlord should be alert to intervene creatively at an early stage to avoid eviction, and should be slow to short-circuit its normal procedures in nuisance cases by proceeding straight to service of a notice seeking possession or an eviction without prior warning to the tenant.


In respect of the possession proceedings, the Court of Appeal considered the fact that the majority of the evidence against Ms Hartless's family was hearsay. It was emphasised that a party adducing hearsay evidence should state in direct evidence why it was not reasonable and practicable to produce the original maker of the statement.


If a statement involves multiple hearsay, as far as is practicable, the live witness should identify the route by which the original statement came to his attention. The court also advised that in giving judgments, judges should expressly remind themselves that in assessing the weight to be given to hearsay evidence, they are taking into account the criteria set out in section 4(2) of the Civil Evidence Act 1995.


In considering whether it was reasonable to make an order, the judge had correctly referred to section 9A of the Housing Act 1988, which requires the court to consider the effect, and likely continuing effect, which the nuisance or annoyance or its repetition has on persons other than the person against whom the order is sought. However, he had not taken into account the interests of Ms Hartless and her children, or the RSL's failure to warn Ms Hartless about her behaviour before resorting to eviction. But given the seriousness of the anti-social behaviour, the Court of Appeal held that it was reasonable to make a possession order.


However, the court suspended the possession order. In particular, it had regard to the improvement of the situation on the estate following the departure of the D family and the failure of the RSL to give any warnings to Ms Hartless before the injunctions were served. It also took into account evidence that Mr Harris had now moved in to live with Ms Hartless and, therefore, could instill in the children a degree of discipline. It was also relevant that the children had good school reports, none of the family had been in serious trouble with the police and a number of witnesses had given favourable character references for Ms Hartless.


Finally, in relation to granting an ASBO, the court emphasised that a court should consider that: the test for making an order is one of necessity to protect the public from further anti-social acts by the respondent; the terms of the order must be precise and capable of being understood by the respondent; the findings of fact giving rise to the making of the order must be recorded; the order must be explained to the respondent; and the exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced.


On the facts of the case, there was no evidence of persistent and serious anti-social behaviour on the part of the defendants. Accordingly, the ASBOs were set aside and replaced with undertakings to be given by the defendants to the court.


By Andrew Dymond, barrister, Arden Chambers, London