English & legal system

At the Royal Courts of Justice on the 21 November 2002 was the case of Stonebridge Housing Action Trust v Gabbindon & anr. It was heard in the Chancery Division of the High Court by Mr Justice Lloyd. It was an appeal against an order to suspend an existing warrant for possession in Willesden County Court by District Judge Sitch. Summary of facts The case involved a tenant of the Stonebridge Housing Action Trust (SHAT went into arrears in 1997, which led to a suspension order being given under the condition that she would make the repayments needed in weekly instalments.

Following this, there had been five proven incidents with one further alleged against the respondents. 1 A warrant for possession was issued in October 2001 because of the continued arrears, the tenant now being in the position of a tolerated trespasser. This led to the hearing by Judge Sitch in February 2002 in which the respondents' application to remain on the property was successful on the condition that there were to be no more incidents of misconduct on Gabbindon's part and that rent owed be repaid in instalments.

Appellant's argument It was submitted by the appellants that the respondents should not have been granted further permission to remain in the property. She was already a tolerated trespasser in breach of a suspension order and therefore at mercy (reference made to Rent Act 1977). The five drugs related matters could not have been correctly taken into account by the previous judge in the opinion of the appellants because if he had done so, he would have seen that these factors alone would have been sufficient grounds for possession.

Instead, they claimed he allowed the fact that Gabbindon had two small children (one merely a matter of months old) to cause him to suspend the possession order. This they submitted made him at fault on a point of law. The case W v Lambeth2 was produced by the appellants who used it to show that the Court of Appeal had made their decision per incuriam (i. e. in error, because some relevant precedent or statute was not correctly considered by the court). In A v Lambeth3 the Chadwick LJ had incorrectly concluded that there was no power under s. 17 of the Children Act 19894 for the housing authority to accommodate a family.

The appellants in this case stated that the trial judge had been wrong in considering whether there was or was not a duty on the housing authority to provide suitable alternative accommodation before he had decided whether or not to make an order. They also said that this did not matter anyway as there was already an existing duty under s. 205 of the Act. The correct procedure after deciding the grounds had been proven would have been to decide whether it would be reasonable to make an order before deciding to stay or suspend it for any reason.

The appellants the brought to the attention of the court the case of Sheffield v Hopkins6 in support of their argument that all matters leading up to the date of the hearing can be looked at, even if they have nothing to do with the original claim. The case of Castle v Gallagher7 was then mentioned, with the appellants advising the judge to read through certain highlighted points made by Blackburne LJ and Sedley LJ. Lord Justice Blackburne stated the grounds under which possession may be obtained as set out in the 1985 Housing Act8.

They submitted that the grounds had been fully met via the conduct of the respondents and their associates and so in the interests of the public, SHAT would be better served re-letting the property. The appellants then brought forth the argument that an appeal judge could only interfere on a point of law in such a case as this. Sedley LJ then made a statement regarding section 77(6) of the County Courts Act 19849. The barrister for the appellants then went on to say that the breach in question in this case was very serious and it would be unreasonable to make an order in very exceptional cases.

A lesser remedy would be disproportionate to the offence and the decision made at the first instance should have been to uphold the warrant for possession, as there was no other suitable alternative. They then concluded their argument by reiterating the fact that they were of the belief that the trial judge had made an error even though, prima facie, it had been a model exercise of judicial discretion. To end finally, they placed two options before the court if the judge was to find his ruling in their favour: their preferred choice would be for a possession to be made.

If not, in accordance with article 8 of the Human Rights Act10, the respondents should then plea all matters before the court again in order to establish what should be done. Respondents' argument The respondents maintained that the original judge had made no error in his approach and that the only disagreement between the parties was a matter of the judge's discretion, which could not be interfered with by an appeal court unless the correct procedure had not been followed when he came to making his decision.

It had already been accepted by both parties that the appellant's case was not sufficient based on her rent arrears alone, but the two sides differed on whether or not the trial judge had effectively considered the drugs issue. In response to this claim the respondents submitted the following evidence: At the last hearing the judge was not able to satisfy himself that Gabbindon was herself a drug dealer. In addition, he left open the question of whether the dealing occurred with her willing consent or under pressure.

It was also unknown for how long the tenant had been away from the property and whether she was fully aware of what had been going on. The barrister for the respondents admitted that there had been evidence of five very serious matters but pointed out his clients had never been charged or convicted. He also highlighted the fact that these matters had taken place 'some way in the past' with the most recent being late in 2000 and the warrant for possession made in October 2001.

He claimed that the trial judge had taken into account the seriousness of the offences plus the fact that the Stonebridge Estate had attracted notoriety over the years but had been, of late, trying to rebuild it's image but was still satisfied that a 'significant period' had elapsed between the last incident and the warrant. The respondents submitted that the balancing of reasonableness is a matter of discretion, which the District Judge exercised without fault. The case of Raple11 was referred to with regards to the question of reasonableness.

The judge then stated the question being asked by the respondents was whether the occupants would be allowed to continue to live in the property in which they are currently trespassing, taking into account the circumstances. The barrister for the respondents then used the case of Darlington v Sterling12 to illustrate the point that the consequences on the tenant and others should be taken into account if a possession is made. He then went on to illustrate his point about possible consequences if and order is made or even if it is not with the case of Simmonds13.

The respondents then concluded their case stating that it was indeed relevant to take into account the level of a tenant's personal claim as well as Article 8 of the Human Rights Act when considering reasonableness. Judgement of the court Justice Lloyd stated that the case he was about to give judgement on was an appeal by the landlord against an order made by District Judge Sitch, which had granted the respondents a suspended possession order. He then continued his judgement by restating the basic points that had arisen during the hearing and subsequently read part of the previous judgement14.

Mr Justice Lloyd then went on to address the submissions of the two counsels and then stated the three elements that needed to be addressed when making a final possession of a secure tenancy. These were: a) Were the grounds proven? b) Was it reasonable in this case to make an order? c) Should the order be stayed or suspended? He then went on to state that the judge had been right to suspend the order because even tough it was common ground that a breach of suspension could lead to possession, the tenant may make an application for an extension.

The appeal court can only interfere when a wrong principle of law had been applied and only in cases of last resort could a final possession order be made otherwise this would be a disproportionate punishment. Following this, he dealt with the argument put forward by the appellants mainly supported by the case of the City of Bristol v Musa15. Justice Lloyd said he believed that this case primarily concerned element (b) and that nothing in that case's judgements helped later courts in answering the third element, which was the main issue in this case.

It did not compel that there was only one possible solution to the problem faced here. He then went on to conclude that the trial judge had sufficiently considered the drugs issue and even though he did not appear to approach the tenant in this case as a tolerated trespasser already in breach, it was clear that he was fully aware of the consequences/situation. Though the appellants had submitted he had not fully considered the three necessary elements, Justice Lloyd disagreed and stated that he had done this well enough.

The appellants also submitted that the age of the youngest child should not have been a decisive factor but again the judge disagreed stating that Article 8 makes this important and therefore not an irrelevant factor. As Judge Sitch had not included any statements regarding s. 17 of the Children Act in his judgement, there was no evidence of him having misdirected himself. The appellants had also submitted that on an estate such as the Stonebridge, the ability of SHAT to manage properties if no order is made would be subverted.

Justice Lloyd then pointed out that the trial judge had categorically stated that this case should not be used as any form of precedent if a similar case arose. The trial judge was held to have only referred to relevant factors in his judgement, thus striking the balance of reasonableness and therefore the judge stated he had no other option but to dismiss the appeal and ordered the costs to be paid by the appellants. Ratio Decidendi It was clear that the judge had no choice but to come to this decision because as had already been pointed out, he could only interfere with the previous judgement if a legal principle had been misapplied.

There was no particular case quoted by the judge as his basis for making the decision but according to what was laid out in the Rent Acts and the Housing Act 1985, there had been no misapplication of the law as so the appeal had to be dismissed. Court - layout and procedures The Royal Courts of Justice was opened in 1882 and consists of the High Court of Justice (divided into the Divisions of Family, Chancery and the Queen's Bench), and the Court of Appeal. To enter through the main gates at the Strand, you pass under two impressive carved porches fitted with iron gates.

These contain amongst them biblical carvings and statues. On first entering the court you can see an immediate contrast of new and old. The stained glass windows, mosaics and numerous statues and paintings appear slightly at odd with the security system, which demands everyone entering the building must be scanned along with their belongings. The court in which the hearing took place was quite small compared with other courtrooms seen in places like the Old Bailey. Its walls were lined with shelves of books and microphones dangled from the ceiling in front of the judge, counsel and the witness box.

Court 18 (in which the case was heard) was set out so that as you entered the room you could see the dais (Bench) where the judge sat and above him, the Royal Coat of Arms symbolising his authority. The counsel and witness were sat in rows opposite him. There was no jury box, but this was quite normal as jury trials of civil actions are rare. This appeal was not robed so the judge and barristers did not have to wear their traditional attire of a gown and a wig. Instead, they all wore suits. Whenever the judge entered the courtroom, all those present were commanded to rise and did not sit until he did.

The atmosphere was not tense but far from relaxed. The arguments of the parties were put to the judge in a conversational form although an air of deference towards him remained at all times. Lay and Legal People The legal personnel involved in this case included the judge who as a High Court Judge must have had a ten-year High Court qualification or must have been a circuit judge for at least two years. There was a barrister representing each of the parties who were responsible for bringing the relevant law to the attention of the judge to decide on.

Lay people involved in the procedure included the clerk of the court known as the judge's Associate. She was responsible for the court documents and was the one who announced the judge and carried his papers. A shorthand writer did not appear until the judgement was delivered. Conclusion This case resulted in the respondents being granted permission to remain in possession of the property, which was evidently a great relief for them and after the judge, had left the courtroom they started dancing.

The appellants were clearly displeased and it was clear to see why - the tenant was in breach of a suspension order but was still given a right over a property that could prove more profitable if SHAT could re-let it to somebody else. In addition, as they had lost the case, they were ordered to pay the costs of the respondent, which will not be small in addition to what they already lost at the County Court. In my opinion the right thing had been done, if only for the respondents' family though I do not feel that justice had been done as they had clearly broken the law on several occasions and were not punished.


* Eddey and Derbyshire on the English Legal System, 7th edn

* The Royal Courts of Justice - An Introduction for Visitors

* Lawtel - Online database

* LexisNexis - Online database