Norwich City Council v Famuyiwa [2004] EWCA Civ 1770

Case No B2/2004/2054[2004] EWCA Civ 1770
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(MR RECORDER GORDON)
Venue Royal Courts of JusticeDate Tuesday, 21st December 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE CHADWICK
LORD JUSTICE JACOB
Between
NORWICH CITY COUNCILAppellant-v-
Between
OLUTOKUNBO FAMUYIWARespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR RUSSELL STONE (instructed by Norwich City Council, Norwich NR2 1WB) appeared for AppellantMR JAN LUBA QC (instructed by Messrs Andrews Solicitors, London SE15 4RZ) appeared for Respondents
J U D G M E N T
[1]This is an appeal from an order made on 10 September 2004 by Mr Recorder Gordon QC, sitting as a deputy Judge in the Norwich County Court, in possession proceedings brought by Norwich City Council against Miss Titilayo Famuyiwa. Miss Famuyiwa is a secure tenant of a flat known as 26 Clifton Close. Clifton Close is part of the Council’s housing stock.[2]The Council’s claim for possession was brought on the grounds that the tenant’s conduct was causing nuisance or annoyance to, and constituted harassment of, her neighbours. The Council relied on grounds 1 and 2 in schedule 2 to the Housing Act 1985. The judge found those grounds to be made out on the evidence. But he reached the conclusion that it would not be reasonable to make an order for possession. Accordingly he dismissed the claim; as he was required to by section 84(2)(a) of the Housing Act 1985. But he went on to grant an injunction restraining the tenant from insulting, abusing, threatening or harassing any person in Clifton Close or its locality. He refused the Council’s application for permission to appeal.[3]When granting permission to appeal, on 15 November 2004, Lord Justice Potter directed that it be heard with expedition. He expressed the view that the facts set out by the judge in his judgment disclosed a “very difficult state of affairs continuing in a volatile situation”. The appeal raises questions in relation to the approach to the exercise of the powers conferred by sections 84 and 85 of the Housing Act 1985. In particular, it raises the question whether it is right in principle to refuse an order for possession on the grounds that such an order, suspended on conditions, would provide no basis, in practice, for the control of the tenant’s anti-social behaviour. And, as I have said, the judge refused the order for possession in circumstances in which he thought, nevertheless, it was appropriate to seek to control that behaviour by injunction. The underlying facts[4]Clifton Close is a local authority housing development comprising six blocks of flats – each of three storeys - on four sides of a central open area. Each block contains six flats; two on each floor, served by a communal entrance and stairway. Miss Famuyiwa’s flat, No 26 Clifton Close, is a two bedroom flat on the ground floor of one of the blocks on the north side of the square. The other flats in that block are numbered 28 to 36 (even numbers only). Immediately to the west of that block, and abutting it, there is a block containing flats 25 to 35 (odd numbers only). Immediately to the east of Miss Famuyiwa’s block, and on the east side of the square, there is a block containing flats 14 to 24 (again, even numbers only). Miss Famuyiwa’s immediate neighbours include the tenants of flats 25, 34 and 36 (respectively, Mr James Lee, Mr Wayne Nicholls and Mr Peter Ellingsen), and the tenants of flats 22, 28 and 30 (respectively, Mr Roger Watts, Mr Alan Mohammad Ali and Mr Timothy Bowhill).[5]No 26 Clifton Close was let to Miss Famuyiwa by a tenancy agreement said to commence on 14 January 1991. Miss Famuyiwa contends that she went into occupation shortly before that date, in December 1990, but nothing turns on that. The current rent is (or was at the time these proceedings were commenced) £46.62 per week. There is no suggestion that Miss Famuyiwa has failed to comply with her tenancy obligations in respect of rent.[6]The tenancy agreement has incorporated, since 6 April 1992, the Council’s standard conditions of tenancy. Those conditions include, at clause 3(1)(a), a covenant by the tenant not to commit, whether in the dwelling or in the communal areas or in the neighbourhood of the dwelling or communal areas “any acts which cause a nuisance, annoyance or disturbance to any person or any acts of harassment (whether racial, sexual or otherwise) of any person.” For the purposes of that clause, harassment is defined to include violence or threats of violence towards any person, abusive or insulting words or behaviour, damage or threats of damage to property belonging to any person (including damage to any part of a person’s home), writing threatening, abusive or insulting graffiti, and any act or omission calculated to interfere with the peace or comfort of any other person or to inconvenience such a person.[7]The evidence of the Council’s Anti-Social Behaviour and Tenancy Enforcement Officer, Mrs Corinne Morley, included information from the Council’s file which suggested that there had been difficulties between Miss Famuyiwa and a former tenant of flat 28 (which is immediately above her flat) from about 1998. But Mrs Morley had not taken up her post until May 2000; and the judge did not admit what he regarded as indirect or hearsay evidence from the file. He took the view that, on the evidence which he had held to be admissible, the problems between Miss Famuyiwa and her neighbours did not arise until “sometime late in 2001”. Until then, as the judge held on the evidence which he had held admissible, “there was no suggestion that [Miss Famuyiwa] was other than a model tenant” who had “lived at the premises for well over a decade with no incidents”. The judge thought that the problems that had arisen – and which he described as “now fairly intractable” – could be said to have begun following the arrival of Mr Ellingsen (the tenant of flat 36 –on the ground floor of Miss Famuyiwa’s block and immediately opposite her flat) in June 2001 and Mr Nicholls (the tenant of flat 34 – immediately above Mr Ellingsen’s flat). He described Mr Ellingsen, Mr Nichols and Mr Lee (the tenant of flat 35 – on the ground floor of the neighbouring block) as “the gang of friends” or “the gang of three”. These proceedings[8]These proceedings were commenced on 31 July 2003 by the issue of a claim form in the Norwich County Court. That followed service of a notice under section 83 of the Housing Act 1985 on 14 April 2003. The schedule to the claim form contained particulars of 78 separate incidents in which it was said that Miss Famuyiwa had behaved in an unreasonably confrontational way towards her neighbours and on which the Council relied as establishing a course of conduct which amounted to “an unwarranted interference with the peace and comfort of [other residents (past and present) of Clifton Close] and their visitors, causing nuisance and annoyance to them and amounting to harassment”. Those incidents spanned the period June 2000 to July 2003; and included 61 incidents said to have occurred after the end of 2001. A further schedule, alleging 10 incidents said to have occurred since the issue of proceedings was served on or about 25 May 2004.[9]Miss Famuyiwa’s response was to deny that she had been in breach of the tenancy agreement or that she had been guilty of conduct causing or likely to cause a nuisance or annoyance to others in the locality of her flat. She set out, in a schedule to her defence, the reasons why she said that the allegations of anti-social behaviour made against her by her neighbours were unfounded and untrue. In paragraph 6 of that schedule she asserted that she had been the victim of harassment and anti-social behaviour on the part of Mr Nicholls, Mr Ellingsen, Mr Lee and a Mr Darren Wilson. She alleged that complaints had been made by those individuals in an attempt to ostracize her from the community and secure her eviction from Council property. She counterclaimed for damages in respect of the Council’s alleged failure to keep the structure and exterior of her property in good repair. The Housing Act 1985[10]Section 84(1) of the Housing Act 1985 requires that a court shall not make an order for possession of a dwelling house let on a secure tenancy except on one or more of the grounds set out in schedule 2 to the Act. Section 84(2)(a) requires that the court shall not make an order for possession on the grounds set out in Part I of that schedule (grounds 1 to 8) unless it considers it reasonable to make the order. Grounds 1 and 2 in Part I of schedule 2 are in these terms:
“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.”
Ground 2 (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.”

Ground 2

[11]Section 85(1) of the 1985 Act provides that, where proceedings are brought for possession of a dwelling house let under a secure tenancy on any of the grounds set out (inter alia) in Part I of schedule 2 to the Act (being cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit. Sub-sections (2), (3) and (4) of section 85 are in these terms: “(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.” (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.[12]In West Kent Housing Association Limited v Davies (1998) 31 H.L.R 415 Lord Justice Robert Walker, with whose judgment Lord Bingham of Cornhill, Chief Justice, agreed, described the approach of the court in proceedings brought (under the corresponding provisions of the Housing Act 1988) for the possession of a dwelling house let under an assured tenancy. He said this (ibid, 418):
“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.”
[13]In the present case, as I have said, the judge held that the grounds on which the Council relied had been made out. It will be necessary to return to the findings of fact which he made later in this judgment; but it is sufficient to note, at this point, the conclusion which he expressed at paragraph 17 of his judgment:
“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.[14]The judge went on to consider whether it was reasonable to make an order for possession. At paragraph 18 of his judgment he said this:
“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?”
[15]It was at that stage – that is to say, before reaching the third stage of the statutory progression – that the judge rejected the possibility of a postponed or suspended order. He said this: 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.”
[16]The judge chose not to make an outright order for possession. His reasons appear from the following passage of his judgment:
“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.” 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.”
[17]There was, of course, no suggestion that Mr Lee, Mr Ellingsen or Mr Nicholls could be “taken away from the allegations – whatever the judge had in mind when using that expression. Their continued presence as tenants and neighbours was a feature which had to be addressed and accommodated. The judge expressed the hope that “by leaving the defendant there and showing that her case has been listened to with some care, and that she had had the chance to put all her points” she would come to appreciate that she had behaved in what he described as a “disproportionate” way; and that “everyone will come to their senses and attempt to break the deadlock”. The injunction[18]It is, perhaps, surprising, therefore, that after dismissing the Council’s application for possession on the grounds that she should not be “put under the Sword of Damocles of a Possession Order”, the judge went on to put her under the alternative peril of imprisonment for contempt of court. He allowed a post-judgment application on behalf of the Council for permission to amend the claim so as to seek an order restraining Miss Famuyiwa from insulting, abusing, threatening or harrassing (including photographing people without their permission) any person in Clifton Close or its locality; and he granted an injunction in those terms (save that he restricted the locality to within 50 metres of any part of Clifton Close). He did so because, as he explained, the conduct in respect of which Miss Famuyiwa was to be restrained by injunction “corresponds more or less exactly to the type of conduct that I have indicated in my judgment”. He imposed that restraint for a period of two years or further order in the meantime. It is clear that the judge must have been satisfied that – absent restraint – there was a real risk that Miss Famuyiwa would continue to behave in the way that (despite her denials) he had found her to have behaved over the preceding two to three years. Indeed, as he said, in the course of explaining why he thought it right to permit a post-judgment amendment to the claim, “an injunction would be designed to protect the legitimate interests of the other tenants in the property which legitimate interests I have identified in the judgment”. Miss Famuyiwa does not appeal from the injunction. This appeal[19]It is, of course, essential to keep in mind that, in deciding whether or not it was reasonable to make an order for possession in this case, the judge was exercising a discretion entrusted to him under section 84(2)(a) of the Housing Act 1985. As Lord Justice Robert Walker put it in the West Kent Housing Association case (ibid, 423):
“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”.[20]The question for this Court in Raeuchle was whether the judge had been right to refuse to suspend a possession order in circumstances where there were arrears of rent in the amount of £511.10 in respect of the demised premises; but where(i) the tenant was found to be a trespasser in respect of adjacent property,(ii) the judge had assessed damages for trespass in the sum of £3,200 and(iii) the tenant had been ordered to pay the landlord’s costs of earlier proceedings, amounting to £1,500 or thereabouts. The tenancy of the demised premises was a statutory tenancy under the Rent Act 1977. The tenant invited the judge to suspend any order for possession which he might think fit to make on payment of current rent and £10 per week off the arrears. The judge held that it was not appropriate to make a suspended order for possession because, at that rate which the tenant was able to pay, it would take almost ten years to discharge all the monies due from her; and, having regard to the history of the relationship between the parties, that period was unacceptably long. This Court held that the judge had been wrong to take the damages for trespass and the costs of the earlier proceedings into account in deciding whether or not to make a suspended order. The arrears of rent, if taken alone, could be paid off within one year.[21]The facts in Raeuchle have little or no similarity to those in the present case. But, in the course of my judgment (ibid, paragraphs 15 and 16), I said this:
“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.”
[22]Sir Richard Scott, Vice-Chancellor, agreed with that analysis. At paragraph 30 of his judgment (ibid) he explained that:
“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.”
[23]It is clear, therefore, that in considering whether it is reasonable to make a possession order – as the court is required to do under section 84(2)(a) of the 1985 Act – it is relevant to have in mind that, if a possession order is made, the date of possession can be postponed, or the execution of the order stayed or suspended, on such conditions as the court thinks fit – under the powers conferred by section 85(2) and (3). Further, it is relevant to have in mind that if the order for possession is made and postponed, or execution stayed or suspended, on conditions the order may subsequently be discharged or rescinded if the conditions are complied with – under the power conferred by section 85(4) of the 1985 Act.[24]It follows, therefore, that the judge was right to ask himself – at what he described as the second stage - whether this was a case in which, if a possession order was made, it could be postponed or suspended at the third stage. But the answer to that question was obvious – section 85(2) and (3) provided the power to postpone the date for possession on such conditions as the court might think fit. The judge, without considering either(i) to what date possession might be postponed or(ii) what conditions might be imposed if the date for possession were postponed, decided that “a Suspended Order would be absolutely pointless”. He thought that a suspended order would be “a recipe for disaster”. The only reason which he gave for that view was that “the unfortunate deteriorating tendency in the relationship between the defendant and the three other tenants” would lead to a situation in which a suspended order would be “taken advantage of even if unconsciously”, so that the matter “will be back to Court and nothing will be solved at all”. It was that reasoning that led him to the conclusion that, in deciding – at the second stage – whether it was reasonable to make a possession order, he should rule out the possibility that – at the third stage – the court could postpone the date for possession and impose conditions. He was later to be persuaded to grant an injunction; which, of course, would itself lead to the matter coming back to the court if Miss Famuyiwa did not mend her ways.[25]In my view the judge was wrong – when deciding (at the second stage) whether it was reasonable to make a possession order - to rule out the possibility that (at the third stage) the court could meet the circumstances of this case by postponing the date for possession and imposing conditions. He was wrong to assume, without examining the terms upon which an order for possession might be postponed or suspended, that a suspended order would be “absolutely pointless” and “a recipe for disaster”. He overlooked the possibility that, by postponing the date for possession upon appropriate conditions, the situation could be controlled by the court; and he overlooked the possibility that, by imposing the condition that the date for possession should be postponed until after a further application to the court by the Council, following continuing failure by Miss Famuyiwa to “get a grip on her behaviour, on her confrontationalism” (as the judge put it), the court could ensure that the tenancy was not brought to an end, without further consideration of the circumstances, by some isolated incident arising from her loss of control in response to provocation (conscious or unconscious) by the “gang of three”.[26]It follows that I am satisfied that, in exercising his discretion at the second stage – that is to say, when deciding whether this was a case in which it would or would not be reasonable to make a possession order – the judge erred in principle. He failed to give proper consideration to the terms of the order for postponement of possession that could be made at the third stage. In those circumstances this Court has the power and the duty to exercise its own discretion in the matter – see the observations of Lord Justice Robert Walker in West Kent Housing Association (supra, 425), my observations in Raeuchle (supra, paragraph 25) and the approach of this Court in Canterbury City Council v Lowe (2001) 33 H.L.R 53, at paragraphs 33 and 42. Should an order for possession be made?[27]On the basis that the judge’s exercise of discretion under section 84(2)(a) of the 1985 Act was flawed, this Court must interfere by setting aside his order. It could remit the matter to the County Court for consideration by another judge; or it could decide for itself whether it would be reasonable to make an order for possession in the circumstances disclosed by the judgment below. In my view we should take the latter course; but, if we decide to make an order for possession, we should postpone the date for possession and remit to the County Court, for further consideration, the question what terms which should be imposed under section 85(3) of the Act.[28]The judge found this “an extremely difficult and sensitive case”. It is right to say, at the outset – as he did – that the Council have been faced with a difficult problem to which they have responded in “a most responsible way”. The judge paid tribute to the professionalism of Mrs Morley, the Council’s Anti-Social Behaviour and Tenancy Enforcement Officer. That, as it seems to me, is of significance. In West Kent Housing Association (supra, 425) Lord Justice Robert Walker pointed out the effect, both on the neighbours and other tenants and on the socially responsible landlord, of the message that is given if serious breaches of a tenant’s covenant not to commit nuisance and annoyance are established and the court, having become involved in the matter, makes no order. As he put it, in a passage to which this Court has adopted in two subsequent appeals, Newcastle City Council v Morrison (2000) 32 H.L.R 891, 898-9, and Canterbury City Council v Lowe (supra, at paragraph 40):
“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.[29]The judge described Miss Famuyiwa as “articulate and intelligent”. He noted that she described herself as an artist and “expressive”. That meant, she had said, that “she expresses herself sometimes in forceful terms over matters that she feels strongly about”. He summarised the first of the questions before him in the following passage:
“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.”
[30]There was ample material upon which the judge could reach that conclusion. That material included the evidence of neighbours – Mr Ali, Mr Bowhill and Mr Watts - who were not members of the “gang of three”. The judge found Mr Bowhill, in particular, to be “a most impressive witness”. He described his evidence as “very convincing”. It is pertinent, therefore, to set out that evidence, in the judge’s words:
“ . . . 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.”
[31]With respect to the judge, I have to say that I find this a reasonably clear case for a possession order under section 84(2)(a) of the 1985 Act. Miss Famuyiwa is in possession under a tenancy agreement which includes a term that she does not commit acts which cause nuisance, annoyance or disturbance to any person, or acts which constitute harassment, whether racial or otherwise, of any person. It is plain, on the judge’s findings, that she has been in persistent breach of that term over the past two to three years; and that she does not recognise that her behaviour is unacceptable and intolerable. As the judge pointed out, it is wholly unacceptable for Miss Famuyiwa to behave in the way that she has, consistently over a substantial period of time. The Council’s tenants have a legitimate interest in not being treated in the way that she has been treating them. The judge put it in these words: “The Council has its responsibilities to those tenants and if those tenants’ lives are being made miserable and unhappy that, in my judgment, would form a basis for possession”.[32]In my view, this is a case in which the court must take steps to bring this state of affairs to an end. I do not think that an injunction is the appropriate response. Failure by Miss Famuyiwa “to get a grip on her behaviour, her confrontation” would lead to allegations of breach of the injunction, to committal proceedings and, perhaps, to imprisonment. It is said that, in committal proceedings she would have the protection of a higher standard of proof; the Council would have to establish the alleged breach “beyond reasonable doubt”. But why, it may be asked, should the court impose that burden on a landlord who is seeking only to enforce the terms under which it let premises to its tenant. Parliament has set the standard; the landlord must establish, to the civil standard of proof, that the tenant is in breach. The court must be satisfied that it is reasonable to order possession. In deciding whether to make an order for possession, with such serious consequences for the tenant, the court look for cogent evidence of breach; but it should not refuse to act without proof to the standard required in a criminal case.[33]Parliament clearly had in mind that, in cases of this nature, the court should seek to balance the legitimate interests of the landlord, and of the tenant’s neighbours, in securing compliance with the terms of the tenancy agreement against the interests of the tenant in remaining in his or her home; and should do so by the use of the powers conferred by section 85(2) and (3) of the 1985 Act. That is what should be done in this case. As I have said, I would make a possession order under section 84(2)(a) of the Act; but would postpone the date for possession; and would remit to the County Court the question what terms should be imposed. The objective must be to find a solution, through the imposition of appropriate terms, which will enable the tenant to continue in her home while giving proper effect to the interests of the Council and her neighbours. But, if she is unable to comply with the terms which the court thinks it right to impose, then there may be no alternative to allowing the order for possession to take effect. Conclusion[34]I would allow this appeal to the extent indicated.

LORD JUSTICE JACOB: I agree.

[36]I would only add this. The judge was clearly influenced by the consideration that if a possession order were made the tenant would lose her right to buy. He overlooked the fact that it is possible for the possession order to be discharged or rescinded under section 85(4). But if a suspended order was made her right to buy will also go into suspension. If she behaved she would in due course be able to get the possession order removed and proceed with her right to buy. I too would allow the appeal.

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. (Order does not form part of approved judgment)