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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Norwich City Council v Famuyiwa [2004] EWCA Civ 1770 (21 December 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1770.html Cite as: [2004] EWCA Civ 1770 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(MR RECORDER GORDON)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE JACOB
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NORWICH CITY COUNCIL | Claimant/Appellant | |
-v- | ||
OLUTOKUNBO FAMUYIWA | Defendant/Respondent |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR JAN LUBA QC (instructed by Messrs Andrews Solicitors, London SE15 4RZ) appeared on behalf of the Respondents
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Crown Copyright ©
Lord Justice Chadwick:
The underlying facts
These proceedings
The Housing Act 1985
"Ground 1
Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.
Ground 2
The tenant or a person residing in or visiting the dwelling-house
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an arrestable offence committed in, or in the locality of the dwelling-house."
"(2) On the making of an order for possession of such a dwelling house on any of those grounds, or at any time before the execution of the order, the court may
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession
for such period or periods as the court thinks fit.
(3) On such an adjournment, stay, suspension or postponement the court
(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent and payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
(b) may impose such other conditions as it thinks fit.
(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession."
"Where, as here, the landlord relies on grounds in Part II of Schedule 2 [of the 1988 Act], the court has potentially three issues, although a determination of one issue in favour of the tenant may make further issues academic: first to decide whether grounds for possession are made out, which is an issue of fact; secondly, to decide whether it is reasonable to make an order for possession, which involves the exercise of judicial discretion, but with a substantial element of judgment as to whether or not the making of the order is reasonable; and thirdly, to decide whether to postpone the date for possession or to stay or suspend execution, which involves a further exercise of judicial discretion."
The judge's approach to the question under section 84(2)(a) of the Act
"That leads to the next stage of the reasoning which is have the facts been established to make out a breach of the tenancy and a basis subject to reasonableness for possession under the Housing Act. In my view they have. . . . [I]t seems to me . . . that there is a breach of the tenancy agreement and a clear breach, I hasten to add, over a relatively consistent period of time essentially consisting, and this is the real nuisance of confrontational and aggressive behaviour, making life very difficult for those in the immediate vicinity."
Although the judge expresses his conclusion in the context of a finding of breach of the tenancy agreement (ground 1 in schedule 2 to the 1985 Act), there can be no doubt that he must have been satisfied, also, that ground 2 (conduct causing a nuisance or annoyance to persons residing in the locality) had been made out. The corresponding grounds under the 1988 Act which were found to have been established in the West Kent Housing Association case are grounds 12 and 14 in schedule 2 to that Act.
"I turn to the all important question of whether it is reasonable to make a Possession Order. This seems to me to hinge upon the answer or answers to some questions of group dynamics. Given that this lady lived, on the face of it, without trouble for over a decade and even with part of the gang of three, Mr Lee for several years, given that she had, on the face of the evidence before me, undoubtedly been the victim of racial harassment [from a former tenant of flat 28] in and up to the year 1999, the question is why has she suddenly or relatively suddenly in that context, if I may use these words, gone over the top and suddenly become confrontational, aggressive and abusive. . . ."
He rejected the suggestion that the change in Miss Famuyiwa's behaviour could be attributed to racial harassment in 1999; and continued:
"It seems to me more probable than not that the cause of the difficulties lay in the relationship, the increasingly fraught relationship between this defendant and those three tenants [Mr Lee, Mr Nicholls and Mr Ellingsen]. On the other hand I do not think that those three tenants have a conspiracy to evict her from the block of flats . . . I think the trouble is that there is a very depressing tendency for groups and outsiders to engage in a relationship which the outsider will nearly always perceive as being exclusionary and cruel and I think here that there is enough evidence before me . . . to lead me to the inference that the catalyst for the rapid deterioration in the defendant's behaviour has been the relationship with the three tenants and I do not place all the blame for that on the defendant. It seems to me that one must come to a balancing exercise in determining what is reasonable and although [counsel] put it to me in terms of stages, I do not think it is illegitimate to look at the third stage as well as the second stage, in other words, is there any alternative to making an outright Possession Order, making no Possession Order and dismissing the proceedings. Can one make a Suspended Order?"
But it seems to me a Suspended Order would be absolutely pointless in a case such as the present. If, as the logic of my findings suggest, there is an unfortunate deteriorating tendency in the relationship between the defendant and the three other tenants a Suspended Order is a recipe for disaster. It will be taken advantage of even if unconsciously taken advantage of and will be back to Court and nothing will be solved at all. "
He dismissed the option of adjourning the case, under the power conferred by section 85(1) of the 1985 Act, on the grounds that that would be "unhelpful". There were, he thought, only two possibilities:
"One is one makes an outright order for possession, the other is one dismisses the possession action even though I have found a number of allegations to have been established."
"Is it fair, just and reasonable, to take away the home of somebody who has lived in a property for over ten years without any fault in circumstances where her behaviour, as I find it to have been, has coincided and been in part caused by the appearance of a group of tenants, even if those group of tenants themselves have not deliberately sought to conspire against her? On the one hand one has the gut feeling as I have that to make an outright order for possession is simply unfair on the defendant as [her counsel] submitted very simply. On the other hand [counsel for the landlord] pointed out, in my view completely correctly, that Mr Bowhill and Mr Watts and Mr Ali, and I should add, Mr Lee, Mr Nicholls and Mr Ellingson, all have legitimate interests in not being treated the way I find they have been treated. It is wholly unacceptable, whatever the defendant feels, to behave in the way she has over a consistent period of time. The Council has its responsibilities to those tenants and if those tenants' lives are being made miserable and unhappy that, in my view, would form the basis for possession. I have to balance those two factors in what is a most difficult case. It seems to me that the crunch factor for me, at least is:
a. The long history of occupation without problems by this defendant,
b. The fact that if you took away Mr Lee, Mr Ellingson and Mr Nicholls from the allegations you have a situation in which not only could this defendant live with the other tenants but, in fact, has proved herself able to do in the past.
It seems to me that, in those circumstances, to make an outright Possession Order would be the wrong side of the balance. It seems to me that there is a huge risk that the defendant runs unless she can get a grip on her behaviour, on her confrontationalism, but it also seems to me that to put her under the Sword of Damocles of a Possession Order, losing the right to buy, or actually just taking her home away from her, would be unjust in the circumstances of this case and on all the evidence."
The injunction
This appeal
"The Court of Appeal is naturally reluctant to interfere with the judgment and discretion of a trial judge as to what is reasonable in this context, but it is plain that the court can and must do so if the trial judge misdirects himself or fails to take into account matters that are relevant on this point . . . . It is, of course, commonplace that the Court of Appeal will not interfere merely because of a feeling that it would have exercised its discretion in a different way."
There are observations of mine to the same effect in Rauechle v Laimond Properties Ltd (2001) 33 H.L.R 10, at paragraphs 22 and 23. I commented, there, that it was of particular importance to recognise and apply the well-established principles which limit and define the circumstances in which an appellate court properly can and should interfere with the exercise of discretion by a judge to whom that discretion has been entrusted by statute "in an area in which county court judges are exercising this jurisdiction on a day-to-day basis".
"15. I turn, therefore, to the question whether the judge ought to have exercised the power to suspend the possession order conferred on him by section 100(2) of the Rent Act 1977. The judge began his consideration of that question at page 23 of his judgment. He said this: 'I come to the most difficult part of the case which concerns whether I make an order for possession or whether I suspend it'.
16. That formulation of the question is, perhaps, open to the criticism that it elides two distinct matters: the first requirement was for the judge to ask whether it was reasonable to make an order for possession at all (see section 98(1)); if it were reasonable to make a possession order at all, he was then required to ask himself whether, if so, that order should be stayed or suspended under the powers conferred by section 100(2). It was, of course, relevant, when considering whether it was reasonable to make a possession order at all, to have the power to suspend well in mind."
"Under section 100(2) of the [1977] Act the judge, either on making the order or alter after the order has been made but before it has been executed, may suspend the possession order on conditions. In the present case the judge considered as one and the same issue whether it was reasonable for him to make the order for possession (the section 98(1) point) and also whether it would be reasonable to suspend the order for possession (the section 100(2) point)."
He returned to that issue at paragraph 35 of his judgment:
"I agree . . . that. . . this Court is entitled to look again at the issue whether the order should be suspended, both in relation to the reasonableness requirement of section 98(1) and in relation to the question whether under section 100(2) there should be a suspension. I think the Court should consider the relative positions of the landlord and the tenant, first, if an order for immediate possession were to be made, and second, if a suspended order on conditions were to be made. Their respective positions should be compared in order to see how the possible orders that might be made will effect them."
Should an order for possession be made?
"The Housing Association has, it seems, been doing its best to improve the quality of life for those living on this estate. To take a matter like this to court calls for considerable effort and determination on the part of a socially responsible landlord, in marshalling a case, and in obtaining witnesses who are prepared to give evidence despite the possibility of intimidation. It cannot to my mind be right that the court should not recognise the seriousness of a case of this sort. . . ."
It is a striking feature of this case that in refusing to make an order for possession under section 84(2)(a) of the 1985 Act - the judge thought it appropriate to leave a situation which he himself described as "wholly unacceptable" without judicial remedy. It was not until after he had given judgment in the possession proceedings that he was asked to, or did, consider restraining the tenant's future conduct by injunction.
"The question, amongst others, that I have to decide, is whether, and in respect of which allegations, if any, this defendant has moved beyond an acceptable level of expressiveness to an unacceptable level of aggression. The evidence concerns essentially three types of alleged aggression being, first of all, kicking and/or slamming doors both of her premises and those of other neighbours to their annoyance and discomfort. Secondly, using abusive language and thirdly, using actual violence or threats of violence. . . ."
The judge did not make a finding of actual violence or threats of violence. He thought that the evidence of that and, in particular, the evidence from the "gang of three" was exaggerated. But, plainly, he found that Miss Famuyiwa had used abusive language; and he found that the allegations of kicking and slamming doors had been made out. As he put it, in a passage which I have already set out:
". . . there is a clear breach of the tenancy agreement and a clear breach, I hasten to add, over a relatively consistent period of time essentially consisting, and this is the real nuisance of confrontational and aggressive behaviour, making life very difficult for those in the immediate vicinity."
" . . . Mr Bowhill says that he has had his door battered, been abused and shouted at, received a stream of complaint letters, his friends have been verbally abused, the defendant never speaks to anyone calmly, she is confrontational, aggressive, loud, she gets close to you, never listens to the point of view of other people, she has called him racist when he has asked her to be quiet and most importantly, from the point of view of Mr Bowhill, his young son Isaac, aged six, visits him two or three nights a week. Sometimes they play outside at the block of flats and he is, and I fully accept this evidence, on edge about being approached by the defendant."
Conclusion
ORDER: Appeal allowed; order for possession; the date for possession postponed until after the county court has determined whether terms should be imposed and, if so, what terms, and further postponed in accordance with any order that that court may make in the light of that determination; the respondent to pay the council's costs both here and below, to be assessed if not agreed; there be detailed assessment of the respondent's Community Legal Services funding certificate; it is directed that the costs order can be set-off (if appropriate) against any costs or damages that may be awarded to the respondent in the event that the respondent's disrepair proceedings are successful; a direction that the case be remitted to a Circuit Judge of the County Court; permission to appeal to the House of Lords refused.