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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1314
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT & FARNHAM COUNTY COURT
BEFORE HHJ MILLIGAN
Case No. 6AF01137
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE JACOB
MR JUSTICE MANN
| ACCENT PEERLESS LIMITED
(FORMERLY SURREY HEATH HOUSING ASSOCIATION LIMITED)
|- and -
|(1) MRS PATRICIA KINGSDON
(2) MISS KAREN KINGSDON
MRS. J.L. HODGSON (instructed by Messrs Heald Nickinson) for the Respondent.
Hearing date : 29th November 2007
Crown Copyright ©
Mr Justice Mann :
The nature of this appeal
The facts and circumstances of this case
i) Between November 2001 and September 2005 they made 36 complaints to the Environmental Health Department. There were also two complaints to the local authority ombudsman.
ii) They made 90 complaints to the Housing Association between September and November 2001. These complaints seem to have been communicated to the Dixons.
iii) They made a number of complaints to the police, prompting several visits by the police to the Dixons. The police seem to have concluded that the Dixons were taking all reasonable steps to be considerate neighbours. In the course of these complaints, the defendants made allegations that Mrs Dixon had been in Brookwood Mental Hospital and that they had been evicted from a previous property for dangerous DIY activities and noise harassment. These allegations were false. Over a period of 12 to 18 months the beat officer for the area, who at one point issued a warning under the Harassment Act, received almost daily faxes from the defendants, though they had dropped off dramatically a short while before the trial.
iv) The defendants procured the sending of unwanted mail shots and other advertising material by apparently filling in coupons with the victim's address. The material which thereby arrived on the Dixons' doormat included advertising for erotic material, an introductory agency, a wigmakers, cosmetic surgery and orthopaedic footwear. The Dixons found this upsetting and depressive.
v) What was described as the "last straw" happened in 2005. One of the defendants made an anonymous telephone call to Mr Dixon's employers saying that he was not off ill because they had seen him working in his garden. At the time Mr Dixon was indeed off work and working in the garden, but it was pursuant to leave which had been agreed with his employer.
vi) One of the defendants wrote to the local MP, in Mrs Dixon's name, about some European food supplement.
There were other incidents in a similar vein.
"34. I accept the Dixons' evidence that they have suffered anxiety and distress at the constant complaints and allegations to third parties about them and to them. Much of what was done to them at the instigation of the defendants, as I find, will have caused, in addition to anxiety and distress, some strong feelings of humiliation. I refer to orthopaedic shoes, wigmakers and erotic material.
35. In company with the Jacksons, there was a vivid and undermining and constant feeling of fear and invasion of their private home and lives. In the case of the Dixons, all this despite their reasonable efforts to be accommodating as to the work needed to their property.
36. ….The Dixons, in my judgment, were in the classic catch 22 situation wishing to enjoy their property as there are entitled to expect, but feeling completely hamstrung that any activity by them may only lead to further harassment by unfounded complaints. The Jacksons, I have observed, felt prisoners in their own home.
56. ….The effect on the Dixons, and all those drawn in by their persistent, and unfounded, or at least unreasonable complaints, is, and has been, severe…..
61. I have accepted that [the Dixons'] health has been affected together with their fundamental right to a peaceful and happy life in their own home."
The making of a possession order
"The tenant or 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…."
Section 7(4) provides that if the court is satisfied that any of the grounds in Part II are established, then it may make an order for possession if it considers it reasonable to do so. Section 9(a) sets out some matters which the court must take into account in considering the reasonableness of making an order, including in particular the following:
"(a) The effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
(b) any continuing effect the nuisance or annoyance is likely to have on such persons;
(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated."
It seems to me that that provision sets out matters which the court would in any event have been likely to have taken into account even in the absence of that provision, but the provision contains a clear statutory requirement. It is trite law that the court must take into account all other relevant circumstances. The likelihood of continuation is obviously significant. The greater the likelihood of continuation, the more reasonable a possession order is likely to be.
"Here I must look at all the circumstances; the interests of all concerned, including the effect on the Dixons if the situation goes on; and upon all the other agencies that have been involved in these proceedings. I must concern myself with the defendants' Article 8 rights, their vulnerability, and the effect upon them of making them homeless and therefore at the mercy of what may be made available in the way of alternative, perhaps temporary, accommodation….
41. I have been referred to Lambeth London Council v Howard…. In considering whether it is reasonable to make an order for possession, the duty of the judge is to take into account all relevant circumstances that exist at the date of hearing in a broad, commonsense way, giving weight, as he thinks right, to the various factors in the situation…"
"like Professor Hirsch, I see no prospect of any real change or improvement in what has become an untenable position sadly for all concerned."
Then at paragraph 57 he reaches his conclusion:
"57. Balancing these various factors in mind, including the concern expressed for the effect of poor temporary accommodation, but bearing in mind that there is no certainty on this score, nor should I seek to predict the outcome of any homelessness application that the defendants might make if an eviction order is made herein, I am satisfied, having looked at all these matters, that it would be reasonable to make the order sought."
"49. He says they would be capable of living together in the community, but re-housing is needed away from exposure to excessive noise. They will have learnt from some of their experiences, for instance, the sending of the coupons and the phone complaints. They can control their behaviour to a degree, but their feelings about the situation will not change. They are unlikely to give up their campaign. Absent successful treatment, they will be the same wherever they are living. He saw them as relatively helpless, with little support."
"67. Should such an order be suspended? There has been some abatement, but as I have said the effect on the Dixons is constant. The very uncertainty, the very restriction, is the constant feature.
68. As I have indicated, there is uncertainty to say the least that any treatment proposed would result in the defendants being able to tolerate living where they are now. I accept the evidence that they would not accept it. I therefore see no case for suspending or postponing the operation of the order on that basis. I accept Dr Coulter's evidence that the defendants will not engage in this treatment for its very nature. I bear in mind that the outcome, if they did, is at least uncertain. Absent any real prospect of that nature, and given my findings, the grounds under ground 14 are made out, that it is reasonable to make an order, and that by doing so these defendants will not be discriminated against under the Disability Discrimination Act. I see no basis but that such an order should be forthwith [sic]. I would normally be considering a 28 day period, which might be considered usual, but I will hear from counsel as to that. I bear in mind that Christmas intervenes."
The making of an immediate possession order
Lord Justice Jacob
Lord Justice Latham