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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> New Charter Housing (North) Ltd v Ashcroft  EWCA Civ 310 (08 March 2004)
Cite as:  EWCA Civ 310
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TAMESIDE COUNTY COURT
(HIS HONOUR JUDGE ARMITAGE QC)
B e f o r e :
LORD JUSTICE LATHAM
LADY JUSTICE ARDEN
|NEW CHARTER HOUSING (NORTH) LIMITED||Claimant/Appellant|
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)
MISS E MORRIS (instructed by Messrs Beevers, Ashton under Lyme 0L6 7LD) appeared on behalf of the Respondent
Crown Copyright ©
"Damon's behaviour has improved recently and there are grounds for confidence that the improvement is permanent, so that there will not be any recurrence of any nuisance behaviour."
"Used and engaged in offensive, threatening and intimidating language and behaviour against other members of the public."
"9. The Claimant initially had 4 witnesses living on the Fairfield estate. However, they have all now left. Two of the witnesses have now also withdrawn from giving evidence. One of them sold her property on the estate and moved elsewhere, whilst the other, who lived next door to the Defendant, abandoned her property and left without telling anyone where she was going. She had told residents that she did not want to be found and was no longer willing to give evidence due to fear of reprisals.
10. I believe these witnesses moved as they could no longer live with the harassment and intimidation carried out by the Defendant's son and/or his friends. Although they are now away from the estate, they are still fearful of reprisals and the possibility that the Defendant and her family may find out where they live.
11. The remaining two witnesses, Dianne and Gary Beckett, were moved off the estate by the Claimant. The Claimant had no option but to do this as the couple were suffering terrible harassment and intimidation. The windows of their house were smashed, their car tyres were slashed and their son bullied and intimidated by friends of Damon Barnes. They became so vulnerable in the property that whilst they remained there, the Claimant installed extra security measures in the form of security doors, a fireproof letterbox, a security light and a surveillance camera. In addition, the Police had to install a homelink alarm in their property so that immediate Police assistance was available to them.
18. As Damon Barnes is now imprisoned in a Young Offenders Institution, the situation is temporarily quiet. However, as our resident witnesses are no longer living on the estate and we believe we no longer have any residents left on the estate who are brave enough to report incidents of nuisance and anti-social behaviour, it is difficult to say how the situation really is.
19. The Defendant's son could be released from the Young Offenders Institution as early as September 2003, to return to live with the Defendant. I have no doubt that he will continue with his behaviour and that the Defendant, in breach of her tenancy terms and conditions, will allow this to take place. She has already allowed her son to breach 2 interim Anti-Social Behaviour Orders.
20. Notwithstanding the Anti-Social Behaviour Orders obtained, Damon Barnes' behaviour has not changed; nor has his mother, our tenant, exercised any greater control over his behaviour and actions.
21. The lives of residents on the Fairfield estate have been made a misery. The Claimant no longer has any witnesses living on this estate. These witnesses had made their homes on this estate and had wanted to remain there as part of the community. However, due to the behaviour of the Defendant's family and/or friends, this was impossible for them. The Defendant has continued to breach her tenancy throughout these proceedings, by causing and/or allowing to be caused, nuisance and annoyance to those living in the locality of her home. I do not believe that this will change."
On 5 August Damon and his friends attempted to damage the fencing of neighbouring property.
On 11 August between 11 pm and 00.30 am Damon and several youths attempted to take the wire fencing of a nearby property.
On 15 August at 7.35am Damon threw stones into a neighbour's garden and at the living room window.
On 23 August Damon and his friends hammered on the neighbour's fence attempting to damage it. He was seen with a bottle at the neighbour's gate and later broken glass was found on the neighbour's path near the gate.
On 24 August, between 00.45 am and 1.20 am, Damon and a group of youths were play fighting on the estate and pushing each other into neighbours' cars. They were attempting to tamper with the locks on a neighbour's car.
On 26 August from 10.30 pm onwards Damon was present when a fire was started near a neighbour's fence.
On 27 August Damon approached two neighbours and said to one of them, "Don't go out alone because I am going to fucking beat you up". This caused the neighbour to be intimidated and frightened.
On 6 November Damon abused Wendy Gorton.
On 8 November he harassed employees of the claimant visiting the estate.
On 26 November he tried to break into an empty property.
On 27 November he persistently banged on a neighbour's fence.
On 28 November he kicked the shutters of an empty property an rode round and round the estate on a motor scooter.
On 6 December he let off fireworks irresponsibly and abused neighbours.
On 7 December he, with others, again let off fireworks irresponsibly and harassed a neighbour.
On 18 December he hid in bushes below the window of a neighbour.
On 27 January Damon congregated with others, one of whom threw a large lump of mud at a neighbour's window.
On 13 March, the Interim Anti-social Behaviour Order was made against him.
On 15 March he associated with others who were riding trail bikes around the estate, thereby breaching the Interim Order.
On 16 March he was with one or two other youths when one of them threw a piece of wood at a neighbour's gas vent. He was later seen pointing out the houses of the Becketts, and others who were witnesses against him, to a friend.
On 5 June he was arrested for breach of the Interim Anti-social Behaviour Order in respect of the Public Order Act offences previously mentioned.
"Miss Ashcroft then said she admitted her son, Damon Barnes, was no angel, but if he and she were 'thrown out' --
(a) she would not go quietly.
(b) (words to the effect that) 'Damon's friends would be upset, and would really sort out the neighbours who had given evidence.' She did not make these comments or threats in a flippant manner but in a matter-of-fact tone."
"The tenant or a person residing in or visiting the dwellinghouse --
(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...."
The judge said that, upon the evidence before him, he found there to be "the clearest possible case made out under ground 14". However, because ground 14 is contained in Part II of Schedule 2 ("Grounds on which a Court may order possession"), rather than under Part I ("Grounds on which a court must order possession"), the judge then rightly proceeded to ask himself whether, in all the circumstances of the case, it was reasonable for him to grant an order for possession. He decided that it was. However, he went on to decide that, in all the circumstances, the order would be suspended for 12 months.
"I do not believe that she does not understand her obligation to control, so far as she can, the antisocial activity of her children. The interim antisocial behaviour order, the order itself, the circumstances leading to its breach and the detention of Damon Barnes all occurred after the claimants started this action for possession against her. The mere threat of those possession proceedings appears not to have caused her to seek to modify Damon's behaviour."
The judge was of course correct to hold that the fact that the misconduct constituting the nuisance was not that of the defendant herself but that of an unruly child, was no barrier to the making of a possession order. Ground 14 applies to any person residing on the premises.
"The essential submission in this regard is that, nevertheless, before any possession order could ever properly be made pursuant to this ground, the plaintiffs would have had to prove some particular degree of personal fault on the tenant's own individual part. In the case of nuisance and annoyance occasioned by an ill-disciplined and uncontrollable child in the age bracket of, say, 12 to 15 years (as in this case) namely, a case concerning a child too old to control but too young to put out of the house, that may well be impossible. The parents of such a child, submits [counsel for the tenant], cannot in the result be dispossessed under this legislation.
I would firmly reject this argument. To my mind, it finds no support in the authorities or in common sense or in justice. Still less is there any warrant for it in the language of ground 2, itself a provision which was amended in 1968 to its present form.
As to the justice of the position, it must be remembered that not only are the interests of the tenant and her family here at stake; so too are the interests of their neighbours. It would in my judgment be quite intolerable if they were to be held necessarily deprived of all possibility of relief in these cases, merely because some ineffectual tenant next door was incapable of controlling his or her household."
"16. ....But she has an obligation to ensure that her family does not cause a nuisance to her neighbours, and it seems to me likely that if she set her mind to it, with her partner's assistance, she could do more to curb Damon's excesses than she has done.
17. It seems to me in the context of this legislation, which is designed to provide for the regulation of neighbours' conduct in relation to each other, that it is reasonable on the basis of the allegations which are admitted and which I have reviewed briefly to make an order for possession.... However, that is not the end of the matter, because the court is also required in these circumstances to go on to consider whether it is reasonable to suspend the making of that order, and that, I suspect, is the real debate between the parties in this case ultimately."
"(2) The Order for Possession be suspended for twelve months from 19 August 2003 on condition that there be no breach of Clause 9 of the tenancy agreement or any conduct falling within Ground 14 to Schedule 2 of the Housing Act 1988."
"18. The claimants urge that I should make an immediate order and not suspend it. They argue that there is no indication here that Ruth Ashcroft has in the past or will in the future act by herself or others to curb Damon's misconduct. There is no real evidence, pending his release from custody, that the threat of an antisocial behaviour order had the desired effect on Damon so far as his conduct was concerned. There is, therefore, the claimants argue, no prospect of improvement in his behaviour and no prospect of relief from Damon's misconduct once he is free in the community again. They also say that it has been difficult enough to mount his case against Damon and his mother, having regard to the fear engendered in potential witnesses in this sort of case, and that the prospects of proving breaches if they occurred may well be quite small. Mr Derbyshire did not quite articulate this argument, but I suspect that it underlies what he was saying -- namely, that if witnesses believe that they have been let down on this occasion, why would they risk their property to try to enforce the matter on a future occasion? Those are worries which I do not dismiss lightly.
19. Mine nonetheless is a task which requires the balancing of rights and the balancing of obligations, and the way I see it is this. Whilst I am not enormously optimistic about Damon's conduct once he is released from custody, it does seem to me that there is here an opportunity to allow Ruth Ashcroft if she wishes to demonstrate that with or without the help of her partner and with or without the help of her other children, who are also going to be affected by this, she can and will curb Damon's conduct, if he is minded to misbehave when he is released from custody. It is for that reason -- although she has not expressed a desire or intention to do it -- and for that reason only that I take the view that it would be reasonable to suspend the order in this case, making it absolutely clear as I do that if there is a further breach of the tenancy or conduct falling within Ground 14 of the schedule to the Housing Act in the future, certainly if the matter comes before me, unless there are extraordinary mitigating circumstances or facts which tend against this result, I would have no hesitation but to order the eviction of the defendant."
"The duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing .... in a broad common sense way .... giving weight as he thinks right to the various factors in the situation."[per Lord Green MR in Cumming v Danson  All ER 653 at 655].
"The Court of Appeal will not interfere with an exercise of the judge's decision to suspend an order unless satisfied that the judge has taken into account some matter which he should not have taken into account or has left out of account something which he should have taken into account, or that for some other reason the decision is plainly wrong." (see Raeuchle v Laimond Properties Limited  33 HLR 10; and Greenwich London Borough Council v Grogan  33 HLR 12 both decisions of this court.)
"(a) The defendant did not offer any particulars as to how she would moderate Damon's behaviour. There was no suggestion that he would live elsewhere on his release from prison. She showed no remorse for what he had done.
(b) Damon's unacceptable behaviour continued long after the proceedings were served upon the defendant.
(c) The ASBO imposed on Damon appears to have had no effect whatsoever. He received a 6-month Detention and Training Order in respect of offences committed within three months of the Interim Order.
(b) The conduct listed at paragraph 5 [ie that set out at paragraphs 8 and 9 was serious, prolonged and criminal. It made the lives of local residents a misery, to the extent that three families have left the estate.
(e) The Claimant may struggle to prove any breach of the terms of the suspended order. Those witnesses who were willing to give evidence have now left the estate. The evidence supports the contention that witnesses will be harassed and that the Defendant will not seek to prevent such harassment."
It is factors (a) and (e) which Mr Darbyshire has particularly emphasised.
"There is no point suspending an order if the inevitable outcome is a breach. Any factor which is relevant as to whether there will be future breaches must, in my judgment, be relevant to the question of suspension. This would include the fact that following an injunction things had considerably improved or that a person is likely to observe an injunction if one was granted at the same time."
Kay LJ went on to say at paragraph 29:
"The concern I have in this matter is that the assistant recorder gave specific reasons for suspending the order, namely the existence of the injunction, its effect since it was made and the second respondent's expression that he hoped common sense would prevail. If those are capable of being good grounds for suspending, then any other view could only be imposed if the decision was plainly wrong."
"My only doubt is as to whether or not the order should be suspended. If the judge had come to the conclusion that the order should not be suspended, I would not for my part have thought it right to interfere with that exercise of his discretion. However, in view of the family circumstances of Mr and Mrs Davies (which are on any view difficult), and the real prospect (from what we were told in the course of this hearing) that they have now learned their lesson and realised that antisocial behaviour will not be tolerated, I have, with some hesitation, come to the conclusion that the right course would be to suspend the possession order under section 9(2) of the Act."