Solicitors must consider when an application for an exclusion order without notice is justified, says District Judge Adam Taylor

There are frequent calls for decisive action to deal with anti-social behaviour. That is what was attempted in Moat Housing Group South Ltd v Harris & another [2005] EWCA Civ 287. When it reached the Court of Appeal, the judges did not like what they saw.


The claimant was the registered social landlord of a recently-built estate in Hampshire. The defendants and appellants, Carl Harris and Susan Hartless, were former cohabitants. Ms Hartless lived in one of the claimant's houses with her and Mr Harris' four children, aged between six and 14. Residents on the estate (affectionately referred to by some as 'Beirut') blamed the defendants, their children and another family, referred to only as 'Mr and Mrs D and their children' for acts of anti-social behaviour.


Most of the complaints concerned the D family, but lately the defendants and their children had become involved. The claimant's witnesses alleged that two of the defendants' children had bullied other children on the estate and that, on one occasion, Ms Hartless had egged them on. Mr Harris and Ms Hartless were also said to have made various threats to residents. The claimant applied without notice for anti-social behaviour injunctions under sections 153A to E of the Housing Act 1996, as amended.


The act allows a 'relevant landlord' (including local authorities, registered social landlords and housing action trusts) to obtain an injunction against a defendant who (among other things) has engaged in conduct capable of causing nuisance or annoyance to people in the neighbourhood. If the conduct includes the use of threat of violence, or there is a significant risk of harm, the court may attach a power of arrest and exclude the defendant from his home (an ouster order) and from a specified area (an exclusion order). The court may make an order without notice if it would be 'just and convenient'.


The district judge in Moat Housing decided that the statutory criteria had been fulfilled and that the defendants' 'truly appalling' behaviour justified an ouster and exclusion order with a power of arrest.


The orders were made at about 12.30pm and were to take effect at 6pm the same day. Unfortunately, the necessary forms were not available on the court's computer system; the staff had to draw up the orders by hand; the results were full of misprints and the order intended for Ms Hartless named Mr Harris instead.


What happened next is described by Lord Justice Brooke: 'On the evening of Friday 29 October, 2004, [Ms Hartless'] eight-year-old daughter was looking forward to joining the other Brownies who had been chosen to represent their pack on a float at the village carnival the following day. Her son, CH, was looking forward to his seventh birthday party the following Monday. She had never received any notice or other warning from her landlords that her behaviour, or the behaviour of Mr Harris or her children, was such that the family might be at risk of being evicted from their home. It was therefore an enormous surprise to her when representatives of her landlords called at her house without prior notice at about 9pm that evening, accompanied by the police and a television cameraman.'


The police balked at evicting a single mother and four children in the dark of an October evening and suggested instead that Ms Hartless telephone a solicitor. The solicitor (unnamed in the report), much to her credit, attended at 9.30pm and obtained an order by telephone from the High Court staying the effect of the ouster and exclusion orders.


The appeal gave the court the opportunity to restate a principle of 'elementary justice'. The appeal court ruled: '...no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given'. Perhaps the clearest statement of this principle was made by Lord Justice Ormrod in Ansah v Ansah [1977] Fam 138, 142: 'Orders made ex parte [the old phrase for 'without notice'] are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party... Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately... Even in such cases, the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare...'


To this warning, the appeal court in Moat Housing adds another: 'The more intrusive the order, the more the court will require proof that it is necessary that it should be made...' In other words, even in those cases in which a without-notice order is necessary, its extent should be proportionate to the mischief that it is designed to prevent.


In an extreme case, the court may make an ouster and exclusion order without notice - see paragraph 100 of the judgment - but the facts of Moat Housing did not justify such a course. A judge considering such a Draconian order should generally prescribe that it may only be served at a reasonable time of the day. The model search order set out in the Admiralty and Commercial Courts Guide offers guidance. The judge emphasised that in future, much more care needed to be exercised in drafting witness statements in support of 'without notice' relief. Those in Moat Housing were excessively generalised.


Finally, orders of this importance must be carefully proof-read by responsible court staff.


Lord Justice Brooke observed that on the facts of Moat Housing it would have been proper to have made an order restraining the defendants from contacting witnesses, prohibiting them from causing nuisance or annoyance, and directing them to exercise reasonable parental control over their children. It would have been proper to attach a power of arrest to such an injunction.


Clients often urge their solicitors to obtain an immediate remedy. After Moat Housing, solicitors must consider carefully whether an application without notice can be justified, consider how far a without-notice order needs to go, and be sure that there is adequate evidence to support what is always an exceptional course.


District Judge Adam Taylor sits at Horsham County Court