Byrne & Anor v Poplar Housing and Regeneration Community Association Ltd

This is an appeal against the order of HHJ Bailey in the Central London County Court on 7 April 2011 by which, among other things, he (1) dismissed the appellants’ application to be relieved from the order of the judge made on 22 March 2011 debarring them from defending these possession proceedings; and (2) ordered that the appellant give possession to the respondent of 6 Chilcott Close, Grundy Street, London E14 ("the Property") on the grounds of anti-social behaviour.

The grounds of the appeal are that the judge's decision not to grant relief from sanctions was unjust and disproportionate; and that his decision to decide the possession claim without hearing evidence from the appellants and others on the reasonableness and the type of possession order was unjust and disproportionate.

The appellants, who are brother and sister, became joint assured tenants of the Property on 11 December 2000 having "succeeded" to their uncle's secure tenancy. Their landlord at the time was the London Borough of Tower Hamlets, but, following a stock transfer to the respondent in 2006, the appellants became assured tenants. They signed up to the respondent's terms and conditions of tenancy on 14 August 2006.

The respondent says that anti-social behaviour on the part of the appellants began almost immediately the appellants' tenancy commenced on 11 December 2000. The first incident of anti-social behaviour relied upon was on 13 January 2002. It is alleged that there were many such incidents. In fairness to the appellants, it appears that improper conduct or allegations of improper conduct have not all been one way. In 2005, for example, the appellants brought protection from harassment proceedings against a long leasehold neighbour, Ms Lucy Aboram, which culminated in an indefinite injunction being granted against her.

This case is unusual in that, both before and alongside these possession proceedings, there have been other proceedings brought by the Metropolitan Police Service against the appellants for anti-social behaviour.

On 24 September 2009, following a seven-day hearing in the Thames Magistrates Court at Stratford, with oral evidence from the appellants and other witnesses who were to be witnesses at the trial of the present proceedings, District Judge Comynsmade an anti-social behaviour closure order for a period of three months. The order was made pursuant to section 11B(4) of the Antisocial Behaviour Act 2003, which is as follows :

Very shortly after the making of the closure order these possession proceedings were commenced on 27 October 2009 in reliance on grounds 12 (breach of tenancy) and 14 (nuisance and annoyance) under Schedule 2 Part II to the Housing Act  1988.

The allegations of anti-social behaviour and breach of tenancy relied upon in the closure order proceedings mirror those in the possession claim.

The closure order was extended for a further three months (the maximum period possible) on 14 December 2009 following a further hearing.

The appellants appealed the closure order. That appeal came before HHJ Huskinson and lay justices at the Snaresbrook Crown Court in January 2010. The appeal, which was a rehearing, lasted six court days, with oral evidence. The appeal was dismissed on 26 January 2011. In the course of HHJ Huskinson's lengthy judgment, in which it was found that the appellants' neighbours had been subjected to persistent abuse, the first appellant's evidence was rejected. HHJ Huskinson made the following observations in the course of his judgment:

The appellants appealed by way of case stated but that was dismissed on 15 October 2010. In the course of his judgment Moses LJ said as follows:

The appellants also applied for judicial review, but permission was refused on paper and then at an oral hearing.

As a result of the closure order and the subsequent anti-social behaviour injunction granted in the present proceedings, to which I shall refer in due course, the appellants have not lived at the Property since the closure order was made on 24 September 2009.

As I have said, possession proceedings were issued on 27 October 2009 against the appellants in reliance on grounds 12 and 14 of Schedule 2 Part II of the Housing Act 1988.

The problems complained of by the respondent, of which 158 are itemised in the Particulars of Claim as occurring between 13 January 2002 and 4 September 2009, can be categorised as playing of loud music and banging on walls, taking pictures of neighbours and their children, recording voices, making videos of the next door's children and others, and other harassment (such as the throwing of frozen urine into the garden of number 4), particularly of the Ryan family at No. 4.

On 15 January 2010 a defence was served on behalf of the first appellant. It includes allegations of abuse against the appellants by their neighbours, particularly those at Nos. 4 and 7 Chilcott Close.

On 19 January 2010 directions were given in the issuing court, the Bow County Court. The directions included an order of the second appellant to file and serve a fully particularised defence by 2 February 2010, that there be disclosure by exchange of copy documents of any tape videos, with a disclosure statement by 4 pm on 16 February 2010, and that all witness statements of fact be simultaneously exchanged by 4pm on 30 March 2010. An order was made at the same time transferring the proceedings to the trial centre of the Central London County Court.

In view of the impending expiry of the closure order, on 10 March 2010 there was an application by the respondent in these proceedings for an anti-social behaviour injunction. The application was considered without oral evidence ,and an injunction and exclusion order were granted on 19 March 2010 by District Judge Jackson pursuant to section 153C of the Housing Act 1996. They were in due course extended until the final determination of the possession claim or further order of the court.

On 9 March 2010 HHJ Mitchell vacated the trial, which had been listed for 14-16 June 2010. The reasons for vacating it were that the appellants were not ready for trial and that they had had difficulty with their public funding certificate. A further trial was listed for 28 September 2010.

The second appellant's defence was served, some six weeks, late on 18 March 2010.

On 19 March 2010 District Judge Jackson gave directions for the filing and service of evidence, the respondent to do so by 9 April 2010 and the appellants to do so by 30 April 2010.

The first appellant gave disclosure by list on 15 April 2010. It included reference to photographs and 27 DVDs. The latter included CCTV footage and audio recordings. There was no indication on the list as to how much of the DVDs would be relied upon by the appellants.

On 7 June 2010 a letter was sent by the respondent's solicitor to the appellants’ solicitors saying that they were in a position to serve the respondent's evidence and asking whether the appellants’ solicitors were in a position to exchange statements. Edwards Duthie was acting for the first appellant and Kaim Dodner were acting for the second appellant. There was no acknowledgement of that letter by the time the respondents’ solicitors served a further letter on Edwards Duthie on 8 September 2010. In that letter the respondent’s solicitors enclosed notice of the trial date and said that they looked forward to receiving confirmation as to when the appellants' solicitors would be in a position to exchange witness statements. They also asked for details as to what CCTV footage the appellants would be seeking to rely on at the trial.

The trial was fixed for 28 September 2010 and was then adjourned by consent. This was because there was an outstanding appeal from the decision of HHJ Huskinson and the magistrates dismissing the anti-social behaviour closure order appeal.

It appears that Edwards Duthie had ceased to act for the first appellant in June 2010 because of the absence of instructions and they had come off the record. The partner dealing with the matter for the second appellant at Kaim Todner, Mr Chris Cuddihee, had left that firm in the summer and joined Conroys in Exeter, taking the second appellant's files with him. Kaim Todner still remained on the record, however, until public funding was transferred to Conroys in February 2011. The intention was that Conroys would act for both appellants, as indeed they now do.

On 17 December 2010 the respondent’s solicitors wrote to Conroys and Kaim Todner asking them when they would be in a position to provide them with disclosure and details of the DVD evidence they would be relying on at the trial, and when they would be in a position to exchange witness statements.

On 11 January 2011 the appellant’s solicitors wrote to Conroys again, asking for exchange of witness evidence within seven days and a disclosure schedule of all the video evidence and documents on which the appellants intended to rely.

There was no response, and on 10 February 2011 the respondent applied for an order debarring the appellants from further defending the allegations in the Particulars of Claim and giving evidence as to the facts alleged in them.

The proceedings were listed for trial on 28 February 2011. The appellants and their solicitors attended on that day but no judge could be found. The defendants did not in any event attend. The appellants say that was because the second appellant could not come on that day because he was suffering from vomiting. It appears that the first appellant did not attend because she could not arrange for anyone to care for the second appellant.

The judge made the following order on 22 March 2011 on the application for the debarring order:

As the judge in due course noted in his judgment on 7 April 2011, that order proceeded on a manifestly incorrect basis in that it failed to reflect that both appellants had by that stage served defences and the first appellant had served a disclosure list.

By the time the matter came before HHJ Bailey on 7 April 2011 the second appellant had served a short statement that, in view of his disability and a power of attorney in favour of the first appellant, he did not have custody of any relevant documents and that the first appellant had done everything to do with the tenancy and the proceedings. The application to set aside the debarring order was supported by a witness statement by Mr Cuddihee.

Counsel for the appellants, Mr Sean Kelly, contended before the judge that, since the court in these proceedings was not bound by the findings of the magistrates or of the Crown Court on appeal, it was only right that the court should give the appellants a further opportunity to get their tackle in order and be permitted to defend these proceedings. Mr Kelly envisaged a six- to eight-day trial and requested another 14 days in which to file witness statements. He suggested that the order might be made subject to an "unless" provision. Mr Kelly provided no excuse for the failure to comply with the original court directions and to respond to the respondent's solicitors letters of September, October and December 2010 and January 2011 calling for witness statements, or for the failure to comply with the judge's own order of 22 March 2011.

In his judgment on 7 April 2011, the judge said the following at paragraphs 21 and 22:

The judge then addressed the position in relation to each of the matters specified in CPR 3.9(1).

In relation to (a) the judge observed that the interests of the administration of justice must have regard not only to matters arising within the proceedings themselves but within the context of litigation as a whole at the Central London County Court. That is a court which, as he indicated, is sorely pressed. He said that the appellants wanted seven days worth of time and that they wanted the public to fund, as he described it, the further rehearsal of evidence which had already, at very considerable public expense, been covered in two previous hearings.

In relation to (b) he accepted that the application for relief was made reasonably promptly after his order of 22 March 2011.

As to (c) he observed that no reason had been given for failing to provide witness statements or disclosure statements or to give full disclosure notwithstanding that the matters were already ventilated in the Magistrates’ Court. He noted that a witness statement had been made by the first appellant in opposition to the application for an interim injunction, but said that, in view of its exiguous contents, it “hardly suffices for a proper defence of these proceedings". That seems to have been common ground.

As to (d), he said there was no good explanation for the failure.

As to (e),he said that, in addition to the failure to exchange witness statements, the appellants were also in serious breach of their obligations to make disclosure.

As to (f), he said that he could not tell whether the failure was the responsibility of the appellants or their solicitors or both.

As to (g), he said that three trials had been listed and vacated, two of them at the appellants' behest. He said that there was presently no trial date which would be lost if he granted the relief.

As to (h), he said that the appellants’ serial failures to progress this matter had impacted quite considerably on the respondent's witnesses. He said that it was in the nature of anti-social behaviour cases that there is a very great burden on witnesses. He noted the appellants had made allegations against the respondent's witnesses and that there must be a considerable strain on them not knowing whether they would have to give evidence and be cross-examined for a third time. He further noted that, as a result of the exclusion order made by the court and extended without opposition to the trial, the Property had been empty at a time when there was a huge pressure on social housing. He said it was a matter of concern that any property was left empty.

As to (i), he said that the effect of granting relief would be to enable the appellants to have a trial and to put the respondent’s witnesses through the hoops for a third time. He repeated that the appellants themselves, because of the exclusion order, were not living at the Property and that there were, therefore, as he put it, no immediate housing consequences of a possession order.

Weighing up all those factors the judge said, paragraph 38, that he was:

Having referred to London Borough of Southwark v Onayomake [2007] EWCA Civ 1426 he gave as his reasons for refusing the applications as follows :

Having refused the application to set aside the debarring order, the judge proceeded immediately to deal with the claim for possession. Having heard further submissions from counsel, he concluded that it was a case in which, in all the circumstances, it would be inappropriate to make a suspended possession order, and so he made an outright possession order. He said at paragraph 48 of his judgment that he had had in mind the provisions of Article 8 of the European Convention on Human Rights.

The appeal has been very well argued by Mr Michael Paget, counsel for the appellants. He submits that the judge made errors of fact and principle. He submits that the judge was wrong to say that there had been no disclosure lists and that a disclosure statement of the second appellant was really an abuse of the court. The first appellant had produced a full and proper list and the second appellant's statement was entirely proper. Mr Paget said that the judge was wrong to criticise the absence of witness statements because his debarring order had been ambiguous and could be interpreted as merely requiring the witness statement in support of the application to set aside the debarring order.

Mr Paget said that the judge had placed far too much weight on the pressures on the Central London County Court and on his assumption as to the length of the trial. The former, he submitted, were of minimal relevance when compared with the prospect to the appellants of losing their home that they had occupied for 30 years. As to the length of the trial, that would be determined at the listing appointment which had been fixed for 19 April 2011.

Mr Paget said that the judge had failed to identify a good explanation or at any event an explanation for the delay in dealing with the witness statements and the disclosure requests in the fact that Mr Cuddihee had moved to Conroys and there had been a delay in the transfer of public funding from the former solicitors. Furthermore, he submitted, it was entirely reasonable for there to be no action on any substantive matter in the proceedings on the part of the appellants until they had set aside the debarring order. In that connection Mr Paget referred to and relied upon some observations of Tuckey LJ in the Onayomake case at paragraph 18.

Mr Paget submitted it was irrelevant, and the judge was wrong to take into account, that there had been previous hearings in relation to anti-social conduct. Those were criminal proceedings by a prosecutor, who was different to the respondent. The trial in the civil proceedings had to take place because the evidence in the criminal proceedings would not be binding in these civil proceedings. That is why, he submitted, it was also irrelevant that the witnesses of the respondent had already been cross-examined twice. There had been no application to strike out the proceedings.

He submitted that it was also irrelevant that the appellants had been excluded from the occupation of the Property since the time of the closure order.

Mr Paget then further submitted that, in any event, it was wrong for the judge not to admit further evidence or grant an adjournment for further evidence on the issue of the reasonableness of making the order for possession and as to the type of order, namely whether it should be suspended or otherwise subject to conditions or it should be outright. He pointed out that the questions of reasonableness in making the order and the type of order which should be made were quite separate from the question of whether the facts of anti-social behaviour could be established, that is to say whether the factual basis for grounds 12 and 14 could be sustained.

Mr Paget submitted that, overall, the judge's refusal to set aside the debarring order was disproportionate. Any further disclosure or witness statements could have been supplied within 14 days and could have been made the subject of an “unless” order, and no trial date moreover had been fixed. Instead, the effect of the debarring order was to deprive the appellants permanently of their home in which they had lived for 30 years, which was adapted and suitable for the first appellant and his disability and in which they were both very happy.

It is trite law, and accepted by Mr Paget, that the judge's discretion in the present case whether or not to grant relief from the debarring order can only be successfully overturned on appeal in this court if it can be shown that the judge's decision was wrong in principle or plainly wrong, that is to say outside the generous ambit of a proper exercise of judicial discretion.

Notwithstanding everything that Mr Paget has so eloquently said, I can see no basis for saying that the judge's exercise of discretion was based on any error of principle or plainly wrong.

The judge was strictly wrong in saying that there had been no disclosure by list in the case of the first appellant, and he was also wrong in taking the view that he did of the disclosure and explanation of the second appellant.

On the other hand, it is undeniable that there was a lamentable failure by the appellants to comply with the order of the court as to the service of witness statements. They ought to have supplied those and were requested to do so before Mr Cuddihee went to Conroys. Mr Cuddihee gave no explanation, or really any cogent explanation, in his witness statement in support of the application to set aside the debarring order for the failure to provide witness statements or the further disclosure details that had been persistently requested by the respondent. He certainly did not say that those matters were not dealt with because he thought that the judge's order of 22 March only required a witness statement in support of the application to set aside as opposed to all the witness statements on which the appellants intended to rely at any trial. In my judgment, no one could sensibly read the debarring order in that way. Nor did Mr Cuddihee say in terms that the delay was due to his moving firms. Furthermore, the fact is that Mr Cuddihee took with him the second appellant's files and there is no indication that there were any others that were necessary in order to deal with the matters outstanding for both the first and the second appellants.

The judge was, in my judgment, perfectly entitled and right to take into account the long delay in bringing this matter to trial and the effect of the delay on the witnesses for the respondent, and also the impact on them of having to wait to give evidence again, having already given evidence on two previous occasions.

The previous criminal proceedings were also relevant, in my judgment, for another reason. This was not a case, as the judge noted, in which the respondent's allegations and the appellants’ contentions had gone untried. They had been fully tried and the credibility of the witnesses on both sides had been tested in the lengthy proceedings both in the Magistrates’ Court and in the Crown Court. Indeed Mr Paget accepted, that the probability was that, in those circumstances, the respondent would succeed on the factual allegations supporting grounds 12 and 14.

The judge, stepping back from everything, having taken everything into account including matters of human rights, was entitled to come to the view that he did in relation to the refusal to set aside the debarring order that he had made.

So far as concerns the appellant's criticisms of the judge's treatment of the issue of reasonableness and whether or not an outright or suspended or otherwise conditional order for possession should be made, Mr Paget's difficulty is that counsel for the appellants before the judge, who (I should emphasise) was not Mr Paget, never asked the judge that the appellants be allowed to give evidence on those aspects or for an adjournment in order for them to put in further evidence on those matters. Indeed, it appears that their counsel did not address the issue of reasonableness separately at all, but seems to have assumed that it followed from the refusal to set aside the barring order that it would be reasonable to make a possession order. The judge had before him witness statements of the appellants' witnesses and also the very full transcript of the lengthy judgment of HHJ Huskinson in the Crown Court. Moreover, there was no offer on the part of the appellants of anything to ensure that anti-social activity would not happen in the future. There was no contrition expressed on their behalf or apology, and their case remained at all times that the events complained of had never taken place or, at any event, if they had taken place, they were not the responsibility of the appellants.

For all those reasons I can see no basis for setting aside any part of the order of the judge of 7 April 2011 and I would therefore dismiss this appeal.

I agree.

I also agree. I would particularly like to refer to the reasoned judgment in this court in the case of Fred Perry Holdings Limited v Brands Plaza Trading Limited [2012] EWCA Civ 224. That too was a case where a party had failed to comply with a number of court orders and was in the end debarred from defending. The facts were rather different from this case, but in the leading judgment of Lewison LJ he said this, paragraph 14:

That is a test that has to be applied to this appeal and, although one could take a different emphasis of the different points dealt with by the judge, save for his error about the list of documents, which in the end turned out not to be material because the substance was that there had been no compliance with repeated requests for “What are you really relying upon in the material we’ve disclosed?”, the judge's exercise of discretion seems to me to be well within what he was entitled to consider. No error of principle was shown.

In Fred Perry Lewison LJ went on as follows :

“15.

In his report on costs in civil litigation Jackson LJ discussed case management decisions in one section of his report. He said in paragraph 6.5 of the relevant section that:

‘...courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.’”

Lewison LJ went on, paragraph 16:

“In paragraph 7.2 of the same section he put forward the view that he regarded it as vital that the Court of Appeal supports first instance judges who make robust but fair case management decisions. I agree with both those points.”

Perhaps not surprisingly Jackson LJ in the same case agreed.

This is a real case where if this court did not support robust but fair case management decision of the judge below we would be failing in our duty. I have no doubt whatever that this appeal should be dismissed.