Moat Housing Group- South Ltd. v Harris & Anor [2005] EWCA Civ 287

[2005] EWCA Civ 287Case Nos: B2/2004/2666, B2/2005/0038 and 0042
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT AND FARNHAM COUNTY COURT
District Judge Ackner
AND ON APPEAL FROM SOUTHAMPTON COUNTY COURT
His Honour Anthony Thompson QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 March 2005
Before
LORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division)LORD JUSTICE JUDGELORD JUSTICE DYSON
Between
MOAT HOUSING GROUP – SOUTH LIMITEDClaimants/CARL HARRISDefendants/SUSAN COLETTE HARTLESSAppellants
Jan Luba QC & Charles King (instructed by R.J.Hawksley & Co) for Mr Harris on his appeal against District Judge Ackner’s orderJan Luba QC & Cheryl Jones (instructed by South West Law) for Ms Hartless on her appeal against District Judge Ackner’s orderJan Luba QC, Cheryl Jones & Charles King (instructed by South West Law) for First and Second Appellants on the appeal against the deputy judge’s orderAshley Underwood QC & Philip Glen (instructed by Dutton Gregory) for Respondents on all three appealsHearing Hearing dates: 20 January and 23 February 2005
JudgmentINDEXPara Part 1 The evening of 29 th October 2004.1 Part 2 The proceedings in the Court of Appeal 9 Part 3 The application to the district judge: the relevant law 10 Part 4 The application to the district judge: the evidence in support 19 Part 5 The tenancy agreement and the Housing Corporation’s guidance 21 Part 6 The claimants’ policies 24 Part 7 The evidence on 29 th October 26 Part 8 The order of the district judge 57 Part 9 The grounds of appeal against the district judge’s order 60 Part 10 Intrusive “without notice” orders 61 Part 11 Should the district judge have made an ouster order and an exclusion order without notice?Part 12 Should a power of arrest have been attached to the injunction?77 Part 13 Were the extent and the duration of the injunction clearly wrong?84 Part 14 Further comments on the claimants’ actions in this case 88 Part 15 The evidence in the possession proceedings 103 Part 16 The judge’s findings 116 Part 17 New evidence on the appeals 123 Part 18 The grounds of appeal in the main action 130 Part 19 The hearsay point 131 Part 20 The reasonableness and the suspension points 141 Part 21 The judge’s findings of fact 154 Part 22 Other matters to be taken into account 157 Part 23 Should the judge have suspended the possession order?160 Part 24 The ASBOs 164
[1]The second appellant Susan Hartless lives at 49 Midhurst Road, Liphook with her four children, whose ages ranged (on 29th October 2004) between six and fourteen years. The first appellant Carl Harris is the children’s father. He lived with his parents in Hindhead and was estranged from Ms Hartless during the period to which these proceedings relate, but he often visited the family in Liphook. Ms Hartless has occupied her home since May 2001 on an assured tenancy from the claimants, who are registered social landlords (“RSLs”). She and her growing family had lived in Liphook since 1992. We will call her three sons AH, BH and CH, in descending order of age, and her daughter DH.[2]On the evening of Friday 29th October 2004 her eight-year old daughter was looking forward to joining the other Brownies who had been chosen to represent their pack on a float at the village carnival the following day. Her son CH was looking forward to his seventh birthday party the following Monday. She had never received any notice or other warning from her landlords that her behaviour, or the behaviour of Mr Harris or her children, was such that the family might be at risk of being evicted from their home. It was therefore an enormous surprise to her when representatives of her landlords called at her house without prior notice at about 9 pm that evening, accompanied by the police and a television cameraman.[3]The claimants’ representatives brought with them two large bundles of court papers. The five pages which required her most immediate attention contained two court orders. The first, an Injunction Order, contained her name and address in a box on the first page. It was headed “In the Aldershot and Farnham County Court” and purported to have been issued in an action between the claimants and a man we will call Paul D. It bore in bold type the precept “If you do not obey this order you will be guilty of contempt of court and you may be sent to prison”. It continued, confusingly:
“On 29th October 2004 the court considered an application for an injunction The Court ordered that Carl Harris Is forbidden (whether by herself or by instrucing [sic] or encouraging any other (3) person) (1) Having left Midhurst Road, Liphook, from entering or being in any part of the area shown edged in red on the plan attached to this order. (2) From assaulting, threatening, abusing or otherwise causing a nuisance or annoyance to: (a) Any person residing in or occupying housing accommodation in or in the neighbourhood of Midhurst Road, Liphook. (b) Any person carrying out a lawful activity in the neighbourhood of Midhurst Road, Liphook. (3) From contacting any of the following persons: [Six names followed] This order shall remain in force until the 29 April 2005 at 4 pm unless before then it is varied or discharged. The Court will re-consider the application and whether the order should continue at a further hearing at Aldershot and Farnham County Court, 78/82 Victoria Road, Aldershot GU11 1SS on Thursday 04th November 2004 at 14.00 pm. If you do not attend at the time shown the court may make an injunction order in your absence. You are entitled to apply to the court to reconsider the order before that day. And it is ordered that Susan Collette [sic] Hartless shall (4) Leave Midhurst Road, Liphook by 6.00 pm on 29 October 2004. (5) Exercise proper and reasonable parental control over [AH, BH, CH and DH] in order to prevent them from behaving in any of the ways referred to in this order. It is further ordered that (6) A Power of Arrest pursuant to Section 153C of the Housing Act 1996 be attached to paragraphs (1) (2) (3) (4) of this order. (7) The costs of this application reserved THIS ORDER SHALL REMAIN IN FORCE UNTIL THE 29 April 2005 unless before then it is revoked by further order of the court.”
The plan attached to the order embraced a large part of Liphook. The Court ordered that Carl Harris Is forbidden (whether by herself or by instrucing [sic] or encouraging any other (3) person) (a) Any person residing in or occupying housing accommodation in or in the neighbourhood of Midhurst Road, Liphook. (b) Any person carrying out a lawful activity in the neighbourhood of Midhurst Road, Liphook. [Six names followed] And it is ordered that Susan Collette [sic] Hartless shall

It is further ordered that

[4]At the foot of each page there is the information that the court office is open between 10am to 4pm Monday to Friday, and in the line above, in miniscule print, the words “If you do not understand anything in this order you should go to a Solicitor, Legal Advice Centre or a Citizens’ Advice Bureau.”[5]This order was accompanied by another order entitled “Anti-Social Behaviour Injunction: Power of Arrest”. This second order referred to the respondent in the case as Amanda [D]. It purported to replicate the relevant parts of the other order, but it limited the power of arrest to the requirements set out in paragraphs (1) (2) and (3) of that order. This order referred to Susan Collette Harris, and not to Carl Harris. Apart from the misspelling of the words “part” [aprt], “area” [aream], “assaulting” [assulting] and “occupying” [occuping], it contained no particularly noteworthy features.[6]The orders addressed to Mr Harris were in identical terms (with his name in the box) so that the Injunction Order correctly identified him as the person restrained. Orders in the same terms were made against Mr and Mrs D, who have six children.[7]Although these orders were served three hours after the time when Ms Hartless and her four children were required to vacate their home and leave the Liphook neighbourhood, they had nowhere to go. District Judge Ackner, who had made these orders at 12.30 pm that day, did not ask the claimants what arrangements they had made to tell the local housing office that they would have a large homeless family (in fact, if one includes the D family, two large homeless families, including ten children) on their hands later that day. In the circumstances, long after dark on a late October evening, the police were disinclined to see the orders complied with immediately, and the appellants were advised to contact a solicitor.[8]They were lucky enough to contact a solicitor who was willing to drive over from Blackwater at 9.30 pm to advise them. She said, understandably, that when she read through the very large bundle of papers she could not believe that the situation was as it was being presented. It was clear to her that the vast majority of the evidence related to a quite different family. Her two clients were beside themselves with anxiety, and when they explained that there was nowhere that they could take the children, she decided that the matter could not wait until the court opened two and a half days later. She therefore proceeded to obtain an order from a High Court judge, made over the telephone and confirmed by fax by Stanley Burnton J at about 1.30 am on the Saturday morning, which stayed the effect of the ouster and exclusion parts of the orders until the matter could be considered on notice at the county court the following week.

Part 2 The proceedings in the Court of Appeal

[9]The issues in this litigation first came before this court on 16th December 2004 when Brooke LJ granted the appellants permission to appeal from a possession order made against Ms Hartless and an anti-social behaviour order (“ASBO”) made against both the appellants by His Honour Anthony Thompson QC at the Southampton County Court on 3rd December 2004. On 17th December 2004 Brooke and Dyson LJJ stayed the judge’s order pending the appeal hearing, and they also expressed a willingness to hear a leap-frog appeal out of time against District Judge Ackner’s order (although its effect was by now spent) because it appeared to raise issues fit for this court which might be of general application. On 30th December 2004 District Judge Ackner granted permission to appeal and directed that the appeal be heard by this court. She subsequently wrote a helpful letter to the court and to the parties to explain the reason why her orders, although made by her in court at 12.30 pm, were released to the claimants’ representatives more than three hours later: see paras 58-59 below. We heard oral argument on that appeal on 20th January 2005, and then adjourned the hearing of the appeal against the ASBOs and the possession order until 23rd February, when we heard argument on that appeal. We have been greatly assisted by the arguments of counsel on both sides.

Part 3 The application to the district judge: the relevant law

[10]We will start by explaining the proceedings which came before the district judge on 29th October, and we will then analyse the challenges made to her order on the appeal. We will then turn to consider the issues arising in the appeals against the possession order and the ASBOs.[11]On Wednesday 27th October 2004 the claimants’ solicitors filed an application at the Aldershot and Farnham County Court pursuant to sections 153A, 153C and 153D of the Housing Act 1996 (“the 1996 Act”) in a Part 8 claim against Mr and Mrs D, Mr Harris and Ms Hartless. These were new provisions inserted into that Act by section 13 of the Anti-Social Behaviour Act 2003 which had come into effect as recently as 30th June 2004.[12]These new sections replaced similar, but narrower, provisions contained in sections 152 and 153 of the original Act. Those had empowered a local authority, but not an RSL, to seek an anti-social behaviour injunction (“ASBI”) where the behaviour complained of took place in or close to residential premises. They had also enabled a wider group of landlords, including RSLs, to ask that a power of arrest be attached to an injunction restraining certain types of breach of tenancy agreement. One of the weaknesses of the former arrangements was that whereas an RSL could obtain an interim injunction to protect its witnesses in a case like this prior to the trial of a possession action, there was no means of obtaining continuing relief of this kind after the possession order was made: see Medina Housing Association v Case [2002] EWCA Civ 2001, [2003] HLR 37, in which Kay LJ said at para 9:
“Parliament has itself recognised the problems that this situation can cause and has made provision in some circumstances to deal with the problems that arise. Section 152(1) of the Housing Act 1996 permits the grant of an injunction to prohibit antisocial behaviour but only to a local authority, and such an application therefore could not be made by the respondent. Parliament has not seen fit to give any wider statutory power than that which is contained in section 152(1), which would enable the housing authority to take action in circumstances such as this. That is why they have had to seek to rely on the common law and simply to seek an injunction as part of their contractual rights. Those rights extend up to the termination of the contract but no further than that.”
[13]Under the new statutory scheme any “relevant landlord” may apply to either a county court or the High Court for an anti-social behaviour injunction (s 153A), an injunction against unlawful use of premises (s 153B) or an injunction against breach of a tenancy agreement (s 153D). Section 153D injunctions may only be made against a tenant; the other injunctions may be made against anyone. The expression “relevant landlord” includes local authorities, RSLs (such as housing associations), and housing action trusts: see s 153E(4) - (7).[14]In this case we are concerned only with the first and third of these injunctions. The first, an ASBI, may be granted only if: i) the defendant has engaged, is engaging or is threatening to engage in conduct capable of causing nuisance or annoyance which directly or indirectly relates to or affects housing management functions of a relevant landlord (s 153A(1) and (3)); and ii) the conduct in question is capable of causing nuisance or annoyance to a member of a widely stated group of potential victims (people living in accommodation owned or managed by the same landlord, people living in or engaged in lawful activity in the neighbourhood, or people employed in connection with the landlord’s housing management functions) (s 153A(4)).[15]The terms of the ASBI prohibit the defendant from engaging in the conduct described in the first condition (s 153A(6)). The place where the conduct has occurred is irrelevant (s 153A(5)).[16]The third type of injunction (an injunction against breach of a tenancy agreement) may be granted against a tenant if the court is satisfied that there is an actual or anticipated breach of the tenancy agreement where the tenant: i) is engaging or threatening to engage in conduct that is capable of causing nuisance or annoyance to any person, or ii) is allowing, inciting or encouraging any other person to engage or threaten to engage in such conduct (s 153D).[17]Any one of these three categories of injunction may be made for a specified period (of any duration) or may be of indefinite duration (subject to variation or discharge): s 153E(2)(a).[18]If the conduct in question includes the use or threatened use of violence, or if there is a significant risk of harm to any person, the court may: i) add a power of arrest to any provision of the injunction (s 153C(3) and s 153D(4)); ii) provide that the defendant shall not enter, or be in any specified premises, which may include the defendant’s own home (s 153C(2)(a) and s 153D(3)(a)); or iii) provide that the defendant shall not enter, or be in, a specified geographic area (s 153C(2)(b) and s 153D(3)(b)). We will call the provision in (ii) above an “ouster” provision and the provision in (iii) above an “exclusion” provision. In either case, the court must be satisfied that the significant risk of harm arises in relation to a person mentioned in section 153A(4) (for whom see para 14(ii) above).

Part 4 The application to the district judge: the evidence in support

[19]Applications for these injunctions may be made on notice or, if the court considers it just and convenient, without notice: s 153E(4) and (5). The claimants elected to proceed without notice, and they sought an injunction order in the following terms:
“That the Defendant Paul [D], Amanda [D], Carl Harris and Susan Collette Hartless be forbidden (whether by himself or by instructing or encouraging any other person) (1) Having left Midhurst Road, Liphook, from entering or being in any part of the area shown edged in red on the plan attached to this application; (2) From assaulting, threatening, abusing or otherwise causing a nuisance or annoyance to (a) Any person residing in or occupying housing accommodation on or in the neighbourhood of Midhurst Road, Liphook; (b) Any person carrying out a lawful activity in the neighbourhood of Midhurst Road, Liphook. (3) From contacting any of [the] seven persons who made witness statements in support of the application. And that the Defendant …. In the case of the Third and Fourth Defendants Exercise proper and reasonable parental control over [AH, BH, CH and DH] in order to prevent them from behaving in any of the ways listed [above] And that A power of arrest be attached to the order; The Defendants pay the costs of the application.” (1) Having left Midhurst Road, Liphook, from entering or being in any part of the area shown edged in red on the plan attached to this application; (2) From assaulting, threatening, abusing or otherwise causing a nuisance or annoyance to (a) Any person residing in or occupying housing accommodation on or in the neighbourhood of Midhurst Road, Liphook; (b) Any person carrying out a lawful activity in the neighbourhood of Midhurst Road, Liphook. (3) From contacting any of [the] seven persons who made witness statements in support of the application. Exercise proper and reasonable parental control over [AH, BH, CH and DH] in order to prevent them from behaving in any of the ways listed [above] The Defendants pay the costs of the application.”
[20]The application was supported by witness statements made by Mr Angus Macdonald, a housing management consultant from a Manchester-based firm who was retained by the claimants in connection with this case, and by six of the residents of the Winnipeg Close and Midhurst Road housing estate, Liphook (“the estate”). These witness statements set out the following history.

Part 5 The tenancy agreement and the Housing Corporation’s guidance

[21]The estate is a mixed residential development erected by the claimants and two other housing associations about four years ago. Mr and Mrs D took a tenancy of 47 Midhurst Road in March 2001, and Ms Hartless took a weekly assured tenancy of 49 Midhurst Road in May 2001. In each case they were the first occupants of their home. Ms Hartless moved in with her four children AH (born in September 1990), BH (born in January 1995), DH (born in September 1996) and CH (born in November 1997).[22]Ms Hartless’s tenancy agreement contained the following terms, so far as is relevant:
“12(6) Nuisance and harassment You, your family, children and visitors must not:- (i) do anything (on the property, on the estate, in the housing office, or in the locality it is in), which may cause a nuisance to or may annoy your neighbours or other residents or other people in the estate or neighbourhood. (ii) harass or abuse anyone in the property, estate or neighbourhood, or allow anyone living with you or visitors to do these things. 22. Ending the Tenancy …. By us (e) We can end your tenancy by getting a Court Order for possession under one of the “grounds” (or “reasons”) shown in Schedule Two of the Housing Act 1988. We will only use the grounds summarised in Appendix Two of this agreement to obtain an order for possession and will only attempt to obtain a possession order for your home once all other reasonable steps have been exhausted. (f) If we decide to end your tenancy we must write to you first to tell you why. 26. General …. (d) This Association is subject to any guidance on housing practice issued by the Housing Corporation with the approval of the Secretary of State. Appendix Two Grounds for Possession under the Housing Act 1988, Schedule 2 …. (4) You have broken or failed to perform any of the conditions of this tenancy (Ground 12); (5) You or anyone living with you or anyone who visits your home: i) Cause a nuisance to, or annoy any person residing, visiting or otherwise engaged in a lawful activity in the locality of your home…. (Ground 14)” (i) do anything (on the property, on the estate, in the housing office, or in the locality it is in), which may cause a nuisance to or may annoy your neighbours or other residents or other people in the estate or neighbourhood. (ii) harass or abuse anyone in the property, estate or neighbourhood, or allow anyone living with you or visitors to do these things. By us Appendix Two Grounds for Possession under the Housing Act 1988, Schedule 2 i) Cause a nuisance to, or annoy any person residing, visiting or otherwise engaged in a lawful activity in the locality of your home…. (Ground 14)”

Grounds for Possession under the Housing Act 1988, Schedule 2

[23]So far as Clause 26(d) was concerned, in July 2004 the Housing Corporation published its regulatory circular 07/04 in performance of its statutory duty to issue housing management guidance pursuant to section 36 of the 1996 Act. This circular, which was sent to all RSLs, was entitled “Tenancy Management,Eligibility and Evictions”. It set out, among other things, the corporation’s expectations of housing associations when they were working to prevent or respond to breaches of tenancy. It contained the following material advice:
“1.2 Associations should act to support and sustain, rather than terminate, a tenancy. Housing Associations are often under pressure from tenants and communities to evict those accused of antisocial behaviour (ASB). Nevertheless, associations should pursue alternative interventions, retaining eviction as a last resort. … 3.2.1 Section 12 of the Anti-Social Behaviour Act 2003 places a statutory duty on housing associations to publish policies and procedures for tackling antisocial behaviour. These should show a commitment to using the full range of tools now available to tackle ASB. Eviction should be considered only when other interventions have failed to protect the wider community.”

Part 6 The claimants’ policies

[24]In the autumn of 2004 the claimant housing association, which is a member of a group that owns about 13,000 houses in south-east England, was in the process of drafting new policies for combating anti-social behaviour. A “Statement of Policy” contains under the heading “Prevention of anti-social behaviour” the following statements of intent:
“Early intervention a) Moat will work with partner agencies to ensure early intervention in all cases of anti-social behaviour; b) Moat will use a range of early intervention strategies to identify, tackle and resolve problems of anti-social behaviour, including referrals to mediation, challenges to alleged perpetrators, the use of acceptable behaviour contracts and formal warnings.”
[25]The claimants’ “Statement of procedures for tackling anti-social behaviour and harassment” contained a ten-point answer to the question “What will Moat do to tackle anti-social behaviour?” This filled out the statements of intent to which we have just referred. At the very end of the list appears this statement:
“We will take legal action in serious cases to obtain injunctions, anti-social behaviour orders, demotion orders and possession orders as appropriate.”

Part 7 The evidence on 29th October

[26]There was no evidence of any kind in the seven witness statements placed before the district judge (or otherwise) that the claimants (or anyone acting on their behalf) had made any complaint to Ms Hartless about her behaviour or the behaviour of any of her children between 1st May 2001 (the beginning of the tenancy) and 27th October 2004 (the date when the “without notice” application was filed), or had ever warned her that she was in breach of her tenancy agreement or that if the breach(es) continued, possession proceedings might ensue.[27]Most of the claimants’ complaints centred round the behaviour of Mr and Mrs D and their children. Although orders similar to those described in paras 3 – 6 above were made against Mr and Mrs D, they vacated their house on Saturday 30th October, surrendered their tenancy shortly before the trial of the possession proceedings a month later, and gave undertakings to the court that they would refrain for two years from the activities specified in the four-year ASBOs later made against the present appellants. The Ds are not involved in these appeals. Nevertheless their conduct, and the conduct of their children, plays a very important part in the history.[28]There was some early trouble in June 2001. At that time the builders had not cleared their building materials off the estate, and there was an unpleasant incident on 16th June when the D children were seen jumping on a car and smashing it with bricks. A man we will call Mr B, who lives in Winnipeg Close, took photographs of the scene for evidential purposes. In due course he was surrounded, and his film was taken out of his camera. Mr D then hit Mr B on the base of the skull. Unhappily the police arrested Mr Harris by mistake and detained him in the police station for a few hours until Mr B told them they had arrested the wrong person. There were a number of complaints to the claimants about the behaviour of the D family at this time, some of them coming from a family we will call K. On 4th July 2001 the claimants sent Mr and Mrs D a warning letter about their behaviour. This was the only warning letter which the claimants had written to either the Ds or to the appellants at any time before they instituted “without notice” proceedings more than three years later.[29]A note by the claimants’ then housing manager, Ms McDougall, who visited the estate on 25th June, shows that the Ds felt that they were being targeted because they were a gipsy family. They complained that the Ks’ children had called their children “pikeys”. Reference was also made by the Ds to the presence of an alleged paedophile on the estate. Mr D commented that there were no play areas on the estate, just car parks. He felt that all the children were bored. One resident told the housing manager that three women, including Mrs D and Ms Hartless, had threatened to beat up a woman who had just taken a tenancy on the estate because they believed her husband to be a pervert. Apparently the police had intervened and told them that the man in question had been acquitted. There had been no further problems since then.[30]On 24th July 2001 Ms McDougall wrote a polite letter to the Ds to the effect that everything seemed to have calmed down. She accepted that living conditions had been stressful on the site, and that some of the building materials were still there, and she hoped that everyone would be patient and try to be nice to each other. She said she wanted the scheme to be a success, but she understood that local people were calling the estate “Beirut”, which was very disappointing.[31]On 13th September 2001 Ms McDougall made another file note, this time about the Ks’ complaints concerning the conduct of the D family. Apparently Mrs D had threatened to shoot the Ks’ dog when it was chasing a cat, and Ms Hartless’s son had been scared that the dog was going for him. While Ms McDougall was speaking on the telephone to Mr K, Mr Harris visited the Ks’ home to discuss the incident. She could hear what was being said, and she thought Mr Harris was being quite reasonable. It was clear to her that the Ks wished to leave the area because they were frightened by the Ds.[32]During this flurry of activity in 2001, the claimants advised residents to keep harassment diary sheets if they were worried about anti-social behaviour on the estate. No such diary sheets were produced to the court containing any complaints about the behaviour of the Harris children until three or four months before the injunction application was filed.[33]Of the six residents who made witness statements, a woman we will call MW made no reference to the Harris family at all. Her health had suffered because of the activities of the D family. A woman we will call Mrs W, who lived at 23 Midhurst Road for three years, moved to 41 Midhurst Road, much closer to the D and Harris families, in November 2003. Her main complaints, which were vociferous, centred around the conduct of the D family. Letters written in 2002 and 2003 showed the anxiety she was expressing to her landlords about them at that time.[34]According to her evidence, it was only more recently that AH (who became 14 in September 2004) and CH (who was six years old in 2004) had caused problems. She had seen CH punch and kick other children three or four times, and join in with a D boy (“TD”) (then aged ten) in general bullying activity and threatening stances. She had also seen AH being abusive.[35]There was then a small amount of trouble between 20th and 24th September 2004. Her daughters told her that AH and another Harris boy had abused them when they walked past the Harris house, and that Ms Hartless had done nothing to stop them. On the evening she was told this, there was a nuisance at 8 pm caused by her door being knocked on four different occasions: on the fourth occasion CH and one of his brothers were seen running away. When Mrs W came out, she saw young AH by his front door shouting and swearing at her daughter’s friend John and saying that he would get him the following day. When Mrs W told him to leave John alone, AH shouted and swore at her, too.[36]On the following day Mrs W’s car was scratched along its passenger side. Mrs W said that a neighbour told her partner that he saw TD and CH by the car, although he did not know who had actually scratched it. On 24th September the boy John, who lived next door to Mrs W, was threatened in her presence by another D boy (“PD”) and AH. When Mrs W intervened, and PD walked away, AH told John he would be dead the following day at school.[37]On one occasion (unspecified) Mrs W said she saw Ms Hartless egging on a gang of children to call Mrs W’s daughter names and doing nothing to stop her bullying them. In the written material Mrs W produced, her “neighbour witness statement” was directed entirely at the Ds; her “nuisance household statement” was directed mainly at TD, but it also referred to recent activities by PD and AH; and her diary entries made only one reference to AH (an occasion when he was throwing water at her children with TD).[38]A woman we will call SK, who came to live in Mrs W’s former home at 23 Midhurst Road, was largely concerned with the conduct of the D family. She said that her children were particularly frightened of PD and another of his brothers (“CD”), although they were frightened of AH as well. It was only recently that she had become concerned about the Harris children as well. She said her children had complained on many occasions about being bullied, threatened or hit by AH and CH, but she was only able to be specific about a single incident in early October 2004, when her son complained that AH had thrown a football hard at his head. She said that other children on the estate would join in making trouble, but they were led by the Harris and D families. She would say the Ds were the worst, but it was a joint effort with the Harrises.[39]Another woman, whom we will call ZP, who had lived for a year with her five children at 43 Midhurst Road, had many complaints to make about the D family. She said that the D children and their parents all used foul language and the children threw stones. She said that CH was also abusive. Her predecessor had told her she had had problems with the Harris family, but she said that although they were a big problem, the Ds were by far the worst.[40]She said she phoned the claimants twice at Easter time in 2004 about stone throwing and foul language by the D and Harris children. She had seen TD and CH throw stones on at least 20 occasions: they did this when her children were playing in the garden. She added that she would not speak to the Harrises because Ms Hartless was totally unapproachable. She said she had heard from a reliable source on the estate that Ms Hartless had made death threats to that person, but did not give any other details.[41]Mr B’s long statement is notable, first, for the lack of any detail between the incidents in June 2001 and July 2004, and secondly for his comment that he did not until recently consider the Harris family to be as troublesome as the D family. He referred to recent events, and then made a general statement about the Ds’ conduct. He said that he had seen acts of vandalism on about 70 occasions, and that the Harris children were often involved with the anti-social behaviour, but the Ds regularly took the lead.[42]Paragraphs 6-18 of his statement are directed towards describing specific incidents between June and October 2004. The names of the Harris children feature very seldom in Mrs B’s written records which were placed before the court. The Bs had clearly had some unhappy experiences during the summer holiday, when in the absence of a playground on the estate the D boys, sometimes accompanied by AH, played football close to their house. Mr B complained that footballs were deliberately kicked against the walls and windows of their house on repeated occasions, with the D and Harris children celebrating whenever a window was hit. In paragraphs 7-15 Mr B mentions nine separate incidents of which he makes complaint. The D children were involved in all of them, AH in only two (which were both connected with footballs).[43]In paragraph 16, Mr B said:
“I am aware that Susan Harris has physically assaulted two women on the estate. I understand that she becomes punchy when other women interact with her husband.”
He gave no further details at all to support these allegations. Paragraph 17 reverts to general, unspecific complaints about the D and Harris children generally, and includes matters Mr B has been told by others.[44]Paragraph 18 refers to a very unpleasant incident at 2.30 am on Sunday 17th October 2004 when Mr Harris had had too much to drink at a neighbour’s house and was on his way home. In the course of an abusive rant directed at Mr B, who was standing outside his front door, Mr Harris showed himself still resentful of Mr B’s involvement in the incident three years earlier when he had wrongly been locked up by the police (see para 28 above). He also accused Mr B of being a “paedo” and a “nonce” because of his practice of taking photographs of children on the estate. During the course of this abuse Mr Harris threatened that he intended to “get” Mr B one way or another, and to “bury” him. He in fact offered no violence on this occasion, and after 5-10 minutes he went away. Ms Hartless had been watching him and egging him on. As soon as they left, Mr B called the police. We fully understand why he said: “To say that I found this incident upsetting and frightening is an understatement”.[45]Mr B said that the following day his wife told him that MW had told her that Ms Hartless had been spreading stories to the effect that he was some sort of sexual deviant who was always taking pictures of the children who lived locally. Mr B said that he was very upset about this. He was also angry because both the police and Mr Butt (who had succeeded Ms McDougall as housing manager) had advised him to obtain photographic evidence as the best form of evidence in situations in which neighbours or their children were causing a constant nuisance. He then attested to his belief that the two appellants were deliberately slandering him in order to attempt to turn other people living locally against him and his family, and to cause distress.[46]After starting his statement by saying that it was only recently that he had found the Harris family troublesome, and deposing to a number of incidents which were nearly all exclusively concerned with complaints against the Ds, he ended it by making no distinction between the two families at all. He said that he believed that these two families between them had been a significant factor in four or more families moving away from the estate – he mentioned three names in this context – and that he was aware that more families were wanting to move because of the “littering, vandalism, noise and other anti-social behaviour” which were giving the estate an unsavoury reputation.[47]Mrs B made a short statement confirming her husband’s statement. She added that the Harris family and the D family were very close friends, and the Harris children were often seen causing problems with the Ds.[48]This, then, was the direct evidence contained in witness statements signed by residents (some of it hearsay, or double hearsay, or ultimately derived from unidentified sources and much of it unspecific) which was before the district judge. Indirect evidence was contained in Mr Macdonald’s four page witness statement and in some of the documents he attached to it.[49]It is an unhappy feature of Mr Macdonald’s witness statement that he referred to “the Defendants” throughout (except at the end of his fourth paragraph: see para 50 below). He also made powerful statements of the utmost generality without identifying the source of his inevitably second hand or third hand evidence. He made at least one error of fact.[50]Thus in paragraph 2 he asserted that Mr Harris lived at Ms Hartless’s house (whereas in fact he lived in Hindhead with his parents: see para 1 above). In paragraph 3 he said that the claimants had been receiving complaints about the conduct of “the defendants” since the start of their tenancies, and that these complaints had become far more serious in nature and in frequency, without giving the court any opportunity to understand how many of them related to anyone outside the D family. He then stated that due to the nature of the complaints, and in particular the very serious threats of violence, the claimants had felt it necessary to commence these proceedings without notice. He said they feared witness intimidation if the defendants and their families were given notice, without making it clear whether he relied on any evidence other than that specifically adduced elsewhere in the witness statements. In paragraph 4 Mr Macdonald referred to “numerous incidents” involving “the defendants” and their children, including complaints about visitors to their premises, but he then attached a documentary exhibit which was almost entirely concerned with complaints against the D family. He then stated, in the most general terms:
“Although [Mr and Mrs D] have a longer history of anti-social behaviour, the severity of behaviour of the Third and Fourth Defendants’ household has increased more recently to a level which is extreme.”
[51]The next three paragraphs of his statement were also pitched at a level of generality to which it was quite impossible for any individual defendant to respond. We have already mentioned (in para 30 above) the way in which Ms McDougall had been concerned about the estate being described like Beirut in the summer of 2001, when building materials were still dumped on the estate even though it had been opened for residents to live there. Mr Macdonald said in paragraph 5 that “this behaviour [namely the behaviour attributed to ‘members of the defendants’ household and their visitors’, and in particular ‘the defendants’ children’] has not only had a devastating effect on the quality of life for residents: it is resulting in the area having a bad reputation, being described as like living in Beirut” without making clear the source of this information.[52]Except where Mr Macdonald repeated evidence which had been given by other witnesses, the remainder of his witness statement continued at the same level of unspecified generality, except in paragraph 8 where he deposed to evidence given to him by a number of unidentified witnesses.[53]The first consisted of a draft unsigned statement, subsequently withdrawn, from a resident on the estate who was fed up with the abusive language and vandalism from both the D and Harris families. Like other witnesses, this witness attributed the bad behaviour of two of the Harris boys largely to conduct since the summer of 2004, when CH (aged six) was described as the worst of the two. Complaint was also made, in general terms, of the two appellants laughing when their children did damage, such as throwing soil over cars in the car park.[54]This witness also spoke of a threat Mr Harris had made two or three years ago when he was upset about something he thought had been said about one of his children. He/she confirmed an incident in late September 2004 which was attested to by Mrs W (see para 36 above), and added that Ms Hartless shouted “Go on, get your cameras out for your neighbourhood watch” or words to that effect. Mention was also made of a family who were said to have left the estate in early 2003 because they had had a lot of trouble with the Ds and the Harrises, and an occasion six months before that when Mr Harris was said to have threatened to hit an elderly lady in that family.[55]The second was a former tenant of a different housing association who claimed that he had moved because of problems on the estate. He identified “the defendants” as amongst those responsible. Next, Mr Macdonald referred to two text messages he had received from someone who begged him to evict “these two families” who were “venom” and “can’t stay here they are driving everyone away”. Finally he said that on 20th October he received a telephone call from a former resident of the estate who had described the Harris family as extremely violent and said that Mr Harris had threatened to shoot her.[56]Mr Macdonald exhibited two of the claimants’ file notes, one (undated) written in late August 2004, and the other dated 21st September 2004. These were concerned only with the D family: visits by the police’s child protection unit in August were mentioned. He then attached a copy of a “neighbour witness statement” completed in September by another resident of Winnipeg Close. This was largely directed at the misbehaviour of the D family, although this witness also mentioned two of the Harris boys in connection with one incident. She said that problems mainly occurred at weekends and during the school holidays. Finally, he attached a file attendance note of a conversation he had had with the representative of a different housing association, who told him that she repeatedly received requests for rehousing from the tenants on this estate. She referred to a gang of older children in the car park who were identified as the trouble-makers, but made no specific mention of the Harris family.

Part 8 The order of the district judge

[57]This, then, was the evidence which was before the district judge. It was the only case in her list that Friday, and she gave judgment at about 12 noon. She had read all the papers in the case overnight, apart from Mr Macdonald’s statement, which reached her on the morning of the hearing. She was clearly influenced by the terms in which Mr Macdonald expressed himself because she said:
“The details set out by Mr Macdonald catalogue very serious complaints about the behaviour of the two families, both adults and children, involving damage to property of other residents on the estate, assaults upon other occupants and residents of the estate, threats of violence and intimidation against other occupants and residents, including both adults and children. The catalogue of incidents set out, not only by Mr Macdonald but also by the other witnesses who have had the courage to provide the statements that they have done, are truly appalling.”
She went on to say that the two families had made the lives of other residents on the estate a complete misery. She referred to MW’s health being seriously affected, and said it was a truly intolerable situation.[58]She was satisfied that all the relevant statutory criteria had been fulfilled, so that she had power to grant the orders that were sought. She made no distinction anywhere in her judgment between the conduct of the D family and the conduct of the Harris family. Although she had no evidence of any kind in front of her about the welfare or the mental or physical health of the Harris children, and there was no evidence that there had been any contact at all between the claimants and the local social services authority, the local housing authority, the children’s schools, or any local welfare agency, she felt compelled to make an ouster and exclusion order with immediate effect. Furthermore, she does not appear to have considered how the appellants could have organised the removal of all the property, food and clothing they needed for themselves and their four children, when served with such a peremptory order. She has told the court that the orders were ready to be drawn up at about 12.30 pm, when her own involvement in the case concluded. She had anticipated that they would be completed by the court office and given to the claimants’ solicitors before 2 pm, with service on the defendants (who lived less than 45 minutes from the court) occurring promptly thereafter.[59]In the event, each of the four orders and powers of arrest had to be prepared manually and separately. Despite the importance of this new legislation, the court’s computer system was of very little value to the staff drawing up the orders. Two members of the court’s staff were therefore diverted from their other duties and engaged full-time between 12.30 pm and 3.40 pm in preparing the orders and copying the extensive documentation that had to accompany them. The orders were then handed over to the claimants’ solicitors. The district judge has told this court that she was not told by court staff about any of these problems, or that the claimants were contemplating serving the orders (which included ouster and exclusion components) after office hours that evening.

Part 9 The grounds of appeal against the district judge’s order

[60]On their appeals against her order Mr Harris and Ms Hartless have raised five separate issues: i) That the application for an injunction should not have been made or granted without notice; ii) That a power of arrest should not have been attached to the injunction; iii) That the extent and the duration of the injunction were clearly wrong; iv) That the injunction should not have required Ms Hartless to leave her home; v) That the injunction should not have excluded either of them from the area of Liphook delineated on the attached plan. It will be convenient to deal with items (i), (iv) and (v) together.

Part 10 Intrusive “without notice” orders

[61]In R(M) v Secretary of State for Constitutional Affairs [2004] EWCA Civ 312, [2004] 1 WLR 2298 this court was concerned with the validity of interim orders made without notice by a district judge pursuant to section 1D of the Crime and Disorder Act 1998. That section does not sanction mandatory relief of the type with which we are concerned on these appeals, and the general guidance given by Kennedy LJ in para 39 of the judgment of the court must be read in that context. His second guideline point, however, was expressed in these terms:
“(2) The more intrusive the order the more the court will require proof that it is necessary that it should be made, and made in the particular form sought, but there is nothing intrinsically objectionable about the power to grant an interim ASBO without notice.”
[62]It is hard to envisage a more intrusive “without notice” order than one which requires a mother and her four young children to vacate their home immediately. It is clearly necessary to restate certain principles governing the grant of “without notice” injunctions, and particularly those of an “intrusive” nature, that will be very familiar to family law practitioners.[63]As a matter of principle no order should be made in civil or family proceedings without notice to the other side unless there is a very good reason for departing from the general rule that notice must be given. Needless to say, the more intrusive the order, the stronger must be the reasons for the departure. It is one thing to restrain a defendant from what would in any event be anti-social behaviour for a short time until a hearing can be arranged at which both sides can be heard. It is quite another thing to make a “without notice” order directing defendants to leave their home immediately and banning them from re-entering a large part of the area where they live.[64]In the 1970s judges exercising family law jurisdiction were sometimes prone to forget these principles. In Ansah v Ansah [1977] 138 Fam 138, 142, Ormrod LJ, sitting with two other judges with immense experience of Chancery practice (Stamp LJ and Sir John Pennycuick), restated the ground rules very clearly:
“Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately.”
[65]He went on to say (at p 143) that such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation:
“but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days’ notice to the other side… Circumstances, of course, may arise when prior notice cannot be given to the side; for example, cases where … a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fairly satisfied that such protection is necessary.”
[66]Six months later, in Masich v Masich (1977) Family Law 245, when he was again sitting with Stamp LJ, Ormrod LJ returned to this topic in a case in which a husband was served at 3.30 pm with an ex parte order requiring him to vacate the matrimonial home at 6 pm the same day. He said that there was nothing to justify turning the husband out of his home without hearing his side:
“Such a course should be taken only in exceptional circumstances. Applications by a spouse requiring the other spouse to leave the matrimonial home must be made on notice to the other side, and should never be ex parte. It was desirable that both parties should be present at the hearing.”
He told solicitors that such applications were an abuse of the process of the court, and that solicitors who sought such applications in the future might find themselves liable for the costs.[67]In 1978, despite these judicial pronouncements, a practice note had to be issued on this subject: see Practice Note (Matrimonial Cause: Injunction) [1978] 1 WLR 925, which begins:
“The President is greatly concerned by the increasing number of applications being made ex parte in the Royal Courts of Justice for injunctions, which could and should have been made (if at all) on two clear days’ notice to the other side, as required by the rules. An ex parte application should not be made, or granted, unless there is real immediate danger of serious injury or irreparable damage.”
[68]This court had to return to the topic in G v G (Ouster: Ex parte Application) [1990] Family Law 254, where an ex parte order requiring a wife to vacate the family home immediately was served on her when she was bringing two of the children of the family home from school. Lord Donaldson MR said (at p 255) that there was no reason why the judge could not have made a non-molestation order in the widest terms which could have been served on the wife at the same time as the inter partes application for an ouster injunction. Butler-Sloss LJ, concurring, said that she did not consider that the affidavit evidence showed a situation sufficiently grave to come within “immediate danger of serious injury or irreparable damage”.[69]In a family law context, the relevant principles were then condensed and codified in section 45 of the Family Law Act 1996, which is concerned with issues similar to those that arise when a court is considering whether to make some form of ASBI without notice. This legislation followed the thoughtful discussion of the topic at paras 5.5 to 5.10 of the Law Commission’s report Domestic Violence and Occupation of the Family Home (1992) Law Com No 207.

(a) :

“(2) In determining whether to exercise its powers [to make an occupation order or a non-molestation order without notice] the court shall have regard to all the circumstances including – (a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately.” (a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately.”
[70]The language of the Civil Procedure Rules, which covers a much wider spectrum of “without notice” relief, is expressed differently. Thus by para 3 of the Practice Direction to CPR Part 23, an application may be made without serving an application notice only:
“(1) where there is exceptional urgency, (2) where the overriding objective is best furthered by doing so, ….” (The other four cases are irrelevant in the present context.) CPR 25.3 (1) provides that: “(1) The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.”
Section 153E(4) of the Housing Act 1996 also uses deceptively bland language (culled from section 37(1) of the Supreme Court Act 1981):
“If the court thinks it just and convenient it may grant or vary an injunction without the respondent having been given such notice as is otherwise required by rules of court.”
[71]It needs to be clearly understood, however, that to grant an injunction without notice is to grant an exceptional remedy. There is a useful discussion of the topic in Zuckerman’s Civil Procedure (2003), paras 9.133 - 9.136, although the author for understandable reasons does not concern himself with the kind of issues relating to personal safety which are of most concern in a family law or ASBI context. He says, correctly, at para 9.133, that:
“Notice of an application for an interim injunction must be given to the respondent as a matter of elementary justice.”
He goes on to cite a passage in the judgment of the High Court of Australia in Thomas A Edison Ltd v Bock (1912) 15 CLR 679, 681 (a case which is also cited in the section on ex parte injunctions in Spry, The Principles of Equitable Remedies (5th Edn, 1997) at p 511):
“There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard on defence.”
[72]It would in our judgment be best if judges in the county courts, when deciding whether to exercise their discretion to make an ASBI without notice, followed the guidance given in section 45(2)(a) of the Family Law Act 1996. They should bear in mind:(1) that to make an order without notice is to depart from the normal rules as to due process and warrants the existence of exceptional circumstances;(2) that one such exceptional circumstance is that there is a risk of significant harm to some person or persons attributable to conduct of the defendant if the order is not made immediately;(3) that the order must not be wider than is necessary and proportionate as a means of avoiding the apprehended harm. Part 11 Should the district judge have made an ouster order and an exclusion order without notice?[73]So far as the facts of the present case are concerned, if one puts on one side Mr Macdonald’s generalised statements about the “defendants” collectively or the allegation by an anonymous witness that the “Harris family” were extremely violent, the evidence of violence or threats of violence on the part of Mr Harris and Ms Hartless can be set out quite shortly. The paragraph references in the following sub-paragraphs relate to the numbered paragraphs in this judgment. Ms Hartless(i) In 2001 she and two other women threatened to beat up a woman because they thought her husband was a sexual pervert: there was no further trouble after the police told them that the man had been acquitted (para 29);(ii) ZP had been told by a reliable source on the estate that Ms Hartless had made death threats to that person on some unspecified occasion (para 40);(iii) Mr B was aware that Ms Hartless had physically assaulted two women on the estate, and he understood that she became punchy when other women interacted with Mr Harris (para 43);(iv) On 17th October 2004 Ms Hartless was egging Mr Harris on when he was abusing and threatening Mr B at his garden gate (para 44). Mr Harris i) He threatened an anonymous witness two or three years ago when he was upset by something he thought had been said about one of his children (para 54); (ii) The same anonymous witness said that Mr Harris threatened to hit an elderly lady about two years ago (para 54). (iii) An anonymous former resident on the estate told Mr Macdonald that Mr Harris had threatened to shoot her (para 55). (iv) On 17th October 2004 Mr Harris, when under the influence of drink, threatened Mr B that he would get him and bury him because he believed that Mr B had been taking photographs of his children for improper reasons. Mr B was so frightened that he summoned the police as soon as Mr Harris moved on (para 44).[74]The only other evidence of anti-social behaviour against Mr Harris and Ms Hartless was as follows: i) An anonymous witness said that Ms Hartless and Mr Harris laughed when they saw their children throwing dirt over people’s cars in the car park (para 53). ii) In September 2004 Ms Hartless did nothing to stop two of her sons abusing Mrs W’s daughters (para 35). Mrs W said that on another occasion Ms Hartless egged her children on when they called her daughter names and did not stop them bullying her (para 37). iii) ZP found Ms Hartless totally unapproachable (para 40). iv) Mr B said that on 18th October 2004 his wife told him that MW told her that Ms Hartless had been spreading stories to the effect that Mr B was some kind of sexual deviant who was always taking pictures of the children who lived locally (para 45).[75]If we apply the principles set out in para 72 above to the facts of the present case, it would have been properly within the scope of the district judge’s discretion to have made an order of a non-molestation type restraining Mr Harris and/or Ms Hartless from contacting any witness in respect of whom she was satisfied that there were reasonable grounds for fearing that the witness in question might suffer significant harm before the application could be heard on notice if such an order was not made. All the named witnesses except MW (for whom see para 33 above) might have been candidates for such protection. It would also have been permissible to make an order on a “without notice” basis prohibiting them from causing nuisance or annoyance along the lines of para (2) of the district judge’s order (see para 3 above), and directing them to exercise proper and reasonable parental control over AH and CH.[76]To make an ouster order or an exclusion order without notice, on the other hand, was neither necessary nor proportionate to the harm sought to be avoided. In our judgment those elements of the district judge’s order should never have been included. Since the order is now discharged it will be sufficient to make a declaration to this effect.

Part 12 Should a power of arrest have been attached to the injunction?

[77]The availability of a power of arrest in support of an ASBI is expressly provided for in ss 153C(3) and 153D(4) (see para 18(i) above) if the conduct in question includes the use or threatened use of violence or if there is a significant risk of harm to any person. No particular guidance is given in the statute to judges deciding whether to attach a power of arrest to an ASBI made without notice once the statutory criteria are fulfilled. Section 154(1), for instance, which provides such guidance as there is, prescribes that:
“(1) In determining whether to exercise its power under section 153C(3) or section 153D(4) to attach a power of arrest to an injunction which it intends to grant on an ex-parte application, the …county court shall have regard to all the circumstances including – (a) whether it is likely that the applicant will be deterred or prevented from seeking the exercise of the power if the power is not exercised immediately, and (b) whether there is reason to believe that the respondent is aware of the proceedings for the injunction but is deliberately evading service and that the applicant or any person of a description mentioned in section 153A(4) (as the case may be) will be seriously prejudiced if the decision as to whether to exercise the power were delayed until substituted service is effected.”
Except for the words “shall have regard to all the circumstances” this guidance is irrelevant in the present case. (a) whether it is likely that the applicant will be deterred or prevented from seeking the exercise of the power if the power is not exercised immediately, and (b) whether there is reason to believe that the respondent is aware of the proceedings for the injunction but is deliberately evading service and that the applicant or any person of a description mentioned in section 153A(4) (as the case may be) will be seriously prejudiced if the decision as to whether to exercise the power were delayed until substituted service is effected.”[78]The history of powers of arrest, and the Law Commission’s recommendations for their continued use, are set out in paras 5.11 to 5.14 of its 1992 report. Para 5.14 states:
“We do however see a case for differentiating between powers of arrest granted after an inter partes hearing and those granted ex parte. It must be appropriate to take a more stringent approach to the latter, as the court is being asked to grant a power of arrest against someone who has not yet had an opportunity of stating his case. We therefore recommend that in the case of ex parte orders, the court should not be under any obligation to attach a power of arrest but should be able to do so in cases where there has been actual or threatened violence, provided that it is also satisfied that there is a risk of significant harm to the applicant or a child if the power is not attached immediately. In all cases, the particular breach which will give rise to the operation of power of arrest should be clearly specified.”
[79]In due course s 47(3) of the Family Law Act 1996 was enacted in relation to ex parte occupation orders or non-molestation orders in these terms:
“…[I]n such a case the court may attach a power of arrest to one or more provisions of the order if it appears to it – (a) that the respondent has used or threatened violence against the applicant or a relevant child; and (b) that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately.” (a) that the respondent has used or threatened violence against the applicant or a relevant child; and (b) that there is a risk of significant harm to the applicant or child, attributable to conduct of the respondent, if the power of arrest is not attached to those provisions immediately.”
[80]It is noticeable that in ss 153C(1) and 153D(2) of the Housing Act 1996 Parliament decided that a power of arrest might be granted if one or other of these criteria (suitably modified in the different context) were satisfied, as opposed to a requirement that both be satisfied. But in the case of a “without notice” attachment of a power of arrest, we can see no reason why, when exercising its discretion, the court should not guide itself by principles similar to those contained in section 47(3) for the reasons given by the Law Commission. In other words, a court should only attach a power of arrest to one or more of the provisions contained in an order made without notice if it is satisfied:(a) that the defendant has used or threatened violence against some person or persons of a description mentioned in section 153A(4) (for whom see para 14(ii) above); and(b) that there is a risk of significant harm to one or more of those persons, attributable to conduct of the defendant, if the power of arrest is not attached to those provisions immediately.[81]The reason why we have used the conjunctive “and” in this context is that it is in our judgment inconceivable that a court would grant an ASBI without notice unless there was both violence (or a threat of violence) in the past and a risk of significant harm to one of the relevant persons during the short period between the time of service of the order and the time of the court hearing on notice.[82]District Judge Ackner, when justifying the grant of a power of arrest, said that she was satisfied that this was appropriate:
“having regard to all the circumstances which have been set out in the statements before me and that this matter comes within section 154 of the Housing Act 1996.”
As we have already observed, section 154(1) gives no guidance at all in relation to adding powers of arrest to “without notice” injunctions apart from the prescription that a county court should have regard to all the circumstances.[83]In our judgment, once she had properly decided that this was a case in which an ASBI was justified on a without notice basis for protecting some named person or persons from harm or for restraining acts of nuisance on the estate during the short period before the hearing on notice the following Thursday, she was properly entitled to attach a power of arrest to that part of her order.

Part 13 Were the extent and the duration of the injunction clearly wrong?

[84]We have already concluded that the extent of the injunction was much too wide, and that it ought to have been restricted to what was judged necessary to protect prospective witnesses from acts of violence or threats of violence, and to restrain acts of nuisance. Any question of the appropriateness of an ouster order or an exclusion order should have been reserved to the hearing on notice that was to take place the following week.[85]As to the length of the injunction, it was directed to remain in force for six months unless it was varied or discharged before that time. The district judge did not address this issue at all in her oral judgment, so that we do not know what she had in mind. It is well known, however, that many judges now take the view that a “without notice” restraining injunction should be made in this type of case for an initial period of (say) six months, provided that they know that a full hearing on notice is shortly to take place at which their initial order may be varied or discharged. This practice has the merit, at a time when the arrangements for drawing up county court orders are not as good as they used to be, of ensuring that the court’s protection will remain in place if there is any risk of delay in drawing up the replacement order. It also saves the time and expense involved in drawing up a new order if it is merely a mirror image of one already in place.[86]So long as the “without notice” order is of a non-intrusive type (such as a typical non-molestation or non-nuisance order) and the “on notice” hearing takes place timeously, we can see no harm in this practice. On the present occasion, therefore there would have been nothing objectionable in the district judge making on a “without notice” basis an injunction of the type set out in paragraphs (2), (3) and (5) of her order (see para 3 above) for an initial period of six months, while at the same time fixing the “on notice” hearing in six days’ time.[87]For these reasons we would make a declaration on the appeals against the district judge’s order to the effect that paragraphs (1) and (4) should not have been included in the order, and that the power of arrest should only have been attached to that part of her order which protected people from violence. We would add that orders of this importance must be carefully proof-read by responsible court staff before they are issued so that they do not include the misspellings and other infelicities that are so obvious in the orders made against Ms Hartless (see paras 3 and 5 above), and that we hope that we never see again an order that was drawn up so ineptly, with the mandatory ouster order appearing after, and not before, the exclusion order. Fortunately, we were not obliged to consider in committal proceedings whether an order made in that extraordinary form was enforceable as a matter of law.

Part 14 Further comments on the claimants’ actions in this case

[88]We have considered the merits of these appeals on the basis of the evidence that was before the district judge. Before we pass to the other appeal, however, we believe that it will be of value if we were to summarise the effect of the oral evidence Mr Macdonald gave to the deputy judge at the trial that took place a month later. Mr Macdonald told the judge that he had been employed by his consultancy firm for three months: he had previously been head of housing for the Medina Housing Association on the Isle of Wight. He said he had considerable experience in housing law generally, and in the law relating to local authorities and resident social landlords in particular. He liked to describe himself as an anti-social behaviour adviser.[89]His firm offered its services to local authorities and housing associations. It provided training services and conducted general organisational reviews for its clients in order to improve their services for people suffering from anti-social behaviour. He said that he and his firm’s other consultants (all of whom came from local authorities or housing associations) also dealt with specific cases on their clients’ books as part of the training process for the clients’ staff.[90]He said that their aim was to prevent legal action from becoming necessary. His clients’ estate at Liphook had given rise to concern because they were troubled about the length of time over which anti-social behaviour had been going on. They had to balance their interest in protecting the residents on the estate by taking decisive action against the fact that they had not given the Ds or the appellants any prior warning about their conduct.[91]He said he welcomed the 2003 Act because an ASBI was now available to exclude someone from their home. ASBIs or ASBOs were also available to protect residents who came forward to give evidence even after a possession order was made. He said that he would go for an ex parte injunction in any serious case where actual violence had taken place or been threatened.[92]The Moat Group had previously retained one of his colleagues to advise them on an 18-stage procedure for dealing with anti-social behaviour, including the documentation they would need. After the initial report a case history and action plan should be developed, followed by an interview with the perpetrator. Then, if the misbehaviour continued, there would be an iterative process of reviews, action plans and appropriate action and warnings leading as a final resort to court action. He accepted that in the present case they had moved directly to what he called a “strong injunction”. This action was taken to make sure that the witnesses felt safe, since they had been suffering quite severely. He said that although his firm recommended a detailed procedure, various steps in the procedure could be “jumped”, depending on how serious the situation was.[93]He was aware that the guidance from the Housing Corporation (see para 23 above) made it clear that eviction was to be a last resort, and that this was also a requirement of his clients’ tenancy agreement (see para 22 above). He said, however, that this principle had to be balanced against the need to protect witnesses, and that in some cases the last resort entailed taking out injunctions against people without notice. He said that the correct approach to dealing with anti-social behaviour involved supporting witnesses. In the present case, because the allegations were so serious, from the witnesses’ point of view it was consistent and correct to take the action the claimants took on 29th October to protect them and give them a break after the length of time they had suffered.[94]He accepted that there was a difficulty about this case because Ms Hartless and Mr Harris had had no warnings and no letters of any kind. He said that his clients’ record-keeping was poor, and that they were improving the way they dealt with their records. He thought that most housing associations had not kept good records in the past, and had not been willing to take decisive action, and as a result “there are loads of people out there who have been suffering”. On the present occasion they had to deal with the situation as it was, and the case was all about witnesses who had spent too much time suffering.[95]He said that he had started working for the claimants on 20th September 2004, when he understood that he was to be concerned only with the problem over the Ds. However, the first witness he interviewed said that the appellants’ family constituted a significant problem as well, and their names cropped up in many of the statements he had taken. He said that he did not involve a solicitor when he took statements. He would start by contacting the people who had complained about anti-social behaviour. He would ask them about “incident specifics”, or how this behaviour had affected them generally. If witnesses mentioned other possible complainants, he would see them, too. He was approached by one witness in the estate car park. He accepted that when he had approached local representatives of Sainsbury’s to inquire if they had any complaints about either family, the man he saw felt that he was trying to push him into giving evidence which was not there.[96]He said that this was a small estate of about 40 houses, and that the 11 people who had complained about the Harris family did not necessarily know each other particularly well. On every estate, he said, there will be allegations and rumours and problems of one kind or another, but he thought the witnesses were genuine in this case. He had not spoken to any of the people who subsequently wrote letters in support of the Harris family.[97]He said that they had encountered difficulties in obtaining information from the police and from the local authority, whose community safety representative was on leave. He said that the police had a “standby position” for the children, who would not necessarily go into care. He was not asked what he meant by this expression. He accepted that there were a number of agencies they could have contacted before starting court proceedings, and that they could have looked at the possibility of an anti-social behaviour contract or offered the family diversionary activities. They had decided, however, that the witnesses needed a break. They had therefore applied for an immediate injunction.[98]He had suggested to his clients on 29th October that they should ask the police to attend when the injunction was served. Ms Brotherwood, the new housing manager, and he had arrived in the Liphook area at 5 pm, and served the injunction at 9 pm. Although a police inspector and a police sergeant had accompanied them into the house there were also about 12 other police officers dotted round the area. This had been the police’s idea. He had been surprised to find a TV cameraman on the scene: he did not know how he had come to be there. The incident was shown on regional television on the Saturday morning and there was coverage of it in a national newspaper on the Sunday.[99]He said that he did not know that the youngest Harris boy was due to have his birthday on the Monday. He said that nobody wished to see children distressed, and it was a balancing act. If landlords always sat on the fence, anti-social behaviour would not be stopped.[100]Mr Macdonald spoke of going for a “strong injunction”. Nothing in this judgment should be taken as meaning that the court has no power to make an ouster order (associated with an exclusion order) without notice if the facts are sufficiently serious to warrant such a draconian order. If the court is satisfied that there is a risk of significant harm to some person or persons attributable to the defendant’s conduct if such an order is not made immediately, and that it is necessary and proportionate to make such a drastic order as a means of avoiding the apprehended harm, then the order may lawfully be made. Very great care is needed, however. The experience of the D family, for instance, shows that the effect of an order like this may be very difficult to reverse, so that it may in practice take effect as a final order. In any event, the judge making such an order should generally be scrupulous to prescribe that the order may only be served at a reasonable time of the day (for example, between 9 am and 4.30 pm on a weekday). Paragraph 25 of the model search order contained in Appendix 5 to the Admiralty and Commercial Courts Guide (see the 2004 White Book, Vol 2, p 246) provides a helpful precedent for the language to be used.[101]In future, much more care should be exercised in drafting witness statements in support of “without notice” relief. The witness statements in the present case were seriously deficient. Many hearsay statements were so lacking in specifics in a number of respects that it would not have been easy for the appellants to respond to them properly. Mr Macdonald’s own statement resembled more closely the opening speech for the prosecution in a criminal trial at which the defendants were represented than a statement of the evidence against each individual defendant on which a judge could decide whether to grant relief on an inevitably rushed occasion when they were not there to defend themselves. The D family presented a far more serious history of anti-social behaviour than the appellants’ family, but in the event the evidence against the two families was all mixed up. This led the district judge to fail to differentiate between them at all when she came to give judgment.[102]The Housing Corporation’s guidance takes on a special importance where the behaviour of a tenant’s children is at the root of much of the trouble on an estate. For a child, to become part of an “intentionally homeless” family, with the bleak prospect of being allotted sub-standard accommodation with his/her parents or being taken into care, is such a serious prospect that every RSL should be alert to intervene creatively at a far earlier stage than occurred in the present case, in order to do everything possible to avert recourse to eviction. ECHR jurisprudence, indeed, makes it clear that the right to respect for a home has inherent in it the principle that procedural fairness will be observed before the home is taken away (see, for example, Connors v United Kingdom(Application no. 66746/01) 27 May 2004, [2004] HLR 52 at para 83), so that an RSL should be slow to short-circuit its normal procedures in nuisance cases by proceeding straight to a notice seeking possession (“NSP”) or an eviction without prior notice.

Part 15 The evidence in the possession proceedings

[103]We turn now to the appeals against the possession order and the ASBOs. On 3rd November 2004 the claimants served a NSP on Ms Hartless, alleging 19 different examples of nuisance or breach of clause 12(b) of her tenancy agreement. On 4th November District Judge James conducted a case management conference. Possession proceedings had now been commenced and he directed a timetable leading up to a five-day trial starting on 29th November. He left in place that part of the ASBIs that had not been discharged by Stanley Burnton J, and joined Mr Harris as a party to the possession proceedings because the claimants were seeking an ASBO against both Ms Hartless (their tenant) and Mr Harris.[104]In due course the claimants served four further witness statements. Witness statements by Ms Hartless, Mr Harris and their solicitor Mrs Hawksley were served on behalf of the defendants, and there were also letters written by a number of people who knew the defendants, six of whom gave evidence on the third day of the trial. In the event the most damaging “live” evidence was given by Mr B (see paras 41-46 above) and Mr R, who lived with his partner KL at 53 Midhurst Road and gave the evidence which led to the judge’s findings as to a violent incident involving Ms Hartless on the night of 16th- 17th October. The only other “live” witnesses from the estate who gave evidence were MW (see para 33 above), who said that of the people causing trouble in her area, the Ds were by far and away the worst to her personally; SK (see para 38 above) who added little to her written evidence apart from saying that she did not know either of the appellants at all; and Mrs W (see para 33 above) who said the Harris family were much less problematic than the Ds, so far as she was concerned, and that AH and CH were the only two Harris children she complained about. She, too, did not know the appellants: she had only ever spoken to Ms Hartless twice.[105]On the first day of the trial the judge heard evidence from Mr Macdonald (see paras 49 – 56 and 88 – 98 above) and Ms Brotherwood, who had become the claimants’ housing manager for the estate as recently as 11th October 2004.[106]Ms Brotherwood’s evidence was along these lines. She had visited the estate on 8th November (when the NSP and the possession proceedings had already been served). During her visit she went to see four people who had been identified by earlier witnesses as possibly having something to say about the defendants (who at that time included the Ds). She said that none of these witnesses were willing to attend court, mainly for fear of reprisals, and they all wished to remain anonymous.[107]Witness A spoke of an occasion (wholly unspecified) when Ms Hartless had sent her a mobile text message threatening to kill her. She told Ms Brotherwood that Ms Hartless was a very violent person and had threatened to get her partner to break her partner’s knees if they spoke up. It was not clear whether this was single, double or triple hearsay, or when the threats had been made. This witness said that she could not stand living in the area any more because of the “trouble this family had caused”. It never became clear whether she was referring to the Harrises or the Ds, although it could be implied that she was referring to the Harrises.[108]Witness B made a statement which she subsequently withdrew (on her partner’s advice) due to fear of reprisals. She said that people feared Ms Hartless, because she could be a bully if she was allowed to be. Her statement, however, centred largely on damage caused by all four defendants’ children. She said that she was sometimes embarrassed to live on the estate because of the damage and mess they had caused. She had seen “them” pulling down fences. She spoke of an incident (unspecified) when Mr Harris and Ms Hartless had been abusive and threatening, and she said that she knew that a family on the estate had been forced out due to threatening behaviour by the four defendants: again, no details were given.[109]Witness C had approached Ms Brotherwood when she was talking to another resident on the estate. Again, this evidence centred on the children’s behaviour. He had seen many incidents of violence from “both of the D and Harris children” against other children on the estate. It was not clear which of the ten children were involved, or when. This witness, however, spoke of an incident in mid-October when “children of the families” were standing on a shed roof and catapulting stones into neighbours’ gardens. He did not want to make a statement because he was afraid of reprisals. He had applied for a transfer to another area.[110]Witness D said he was unable to attend court due to ill health. He had moved onto the estate in August 2004. AH hit his son at school one day and was excluded from school as a result. A little later (about three weeks after they had moved in), their son told them that AH had told him to hit one of Mrs W’s daughters, and when he refused AH said he would “get him” next day at school. Two days later, when AH was seen waiting outside school with six other boys, their son’s teacher gave him a lift home for fear that the threat would be carried out. No further trouble, however, had been reported.[111]Witness E was not willing to come forward because he worked away from home for much of the time, and he feared for his wife and young children if he gave evidence. He had lived on the estate for a number of years, and had witnessed “both the D and Harris children” carrying out a lot of damage to the area. He said he had witnessed too many incidents to recall. Ms Brotherwood said she was shown a video of CH smashing a wall with a claw hammer in April 2002 (when he would have been four years old), and that Mr Harris had walked by and patted his son on the head whilst this was taking place. It was not clear whether this was shown on the video, and although the defendants’ counsel expressed interest in seeing this video on the first day of the trial, it was never produced in court. Witness E told Ms Brotherwood that he thought that the witnesses who had come forward were “very brave because I know how violent the families are”. No details were given of the reasons why he said this about Mr Harris and Ms Hartless.[112]When Ms Brotherwood visited the estate, the D family had been gone for ten days (they left on Saturday 30th October, never to return) and the appellants had had the shock of the ASBI being served on them (although they were not now required to leave the area). Ms Brotherwood said that residents had approached her and told her that the quality of life had already drastically improved, and that their children were now able to play safely without fear of bullying.[113]Ms Brotherwood told the judge that in complying with the appellants’ disclosure request she had personally inspected every single file relating to the claimants’ tenants on the estate to see if there were any records of incidents involving Mr Harris or Ms Hartless or any complaints against them. In the event, although there were a number of file notes and letter relating to the D family, there was nothing at all in any of the claimants’ files to the discredit of the appellants or their children other than the 2001 matter we have mentioned in para 29 above and some of the neighbour witness statements and diary incident sheets dating from July 2004 onwards.[114]This is an appropriate place at which to add that neither of the appellants have a criminal record, and that when the police were asked for evidence of complaints against either of them, all that was produced (apart from notes about the night of 16th-17th October) was one complaint by Ms Hartless against Mr Harris and one complaint of verbal abuse and threats made against Mr Harris in August 2002 by a resident who left the estate in 2003. The school reports for the four children were also in the papers before the judge. They painted a generally favourable picture. There was no evidence before the court of any concern about the children from any voluntary or statutory agency.[115]Mr Macdonald had made a second witness statement on 4th November. This related to the service of the court papers on the appellants on 29th October. He said that when he served the papers on Ms Hartless and explained the nature of the order that had been made, she told him “I know who has done this”. A little later she repeated this statement and added “He has taken pictures of my kids. I am going to fucking kill him.” She then repeated the second sentence in a particularly menacing tone of voice. As Mr Macdonald was leaving the property, AH came downstairs and strutted around saying “I am going to do him.” As he went upstairs he said “I am going to fucking shoot him.” Mr Macdonald could hear shouting and screaming from the property when he was on his way to serve the Ds in the house next door.

Part 16 The judge’s findings

[116]On the basis of all this evidence and other written evidence whose effect we need not summarise, the judge found that the Harris children were out of control. He accepted the evidence that they had been spitting, kicking footballs against cars and houses, threatening and bullying other children, and abusive to adults and children alike on the estate. Mr Luba QC, who appeared for the appellants, correctly observed that nearly all the evidence of anti-social behaviour on the children’s part related to the evidence of the eldest boy AH and the youngest boy CH (in contrast to their sister and their brother BH). But he did not seek to challenge the correctness of these findings about the children’s behaviour in any other respect, or to contend that they did not constitute grounds for possession under Grounds 12 and 14. For an adult tenant’s responsibility to keep her children under control, see Kensington & Chelsea RLBC v Simmonds (1996) 29 HLR 507, 511.[117]So far as Mr Harris and Ms Hartless were concerned, the judge held that each had behaved badly on the night of 16th-17th October, when they had both clearly had too much to drink. He found that at about 1 am that night a girl was being kicked on the ground by a lot of other girls in the car park on the estate. The victim had then got up, and as she was walking towards the car park exit Ms Hartless came running out of the house where a party was going on. She knocked the girl down again, and then hit her twice. Her two younger children watched what was going on, and the boy, CH, was jumping up and down in pleasure. The judge considered that Ms Hartless displayed a particular and excessive degree of violence in relation to this incident, when she was obviously in drink.[118]The incident involving Mr Harris at Mr B’s garden gate (see para 44 above) took place about 90 minutes later. Mr Harris admitted that he had said things he should not have said, and was very sorry. He said he was drunk at the time. The judge said that he had no doubt that Mr Harris had threatened and intimidated Mr B with no possible justification. Mr Harris had borne a grudge for three years or more against Mr B for having been wrongly arrested and detained by the police, although this was not Mr B’s fault, and that he had been “somewhat drunken” when he had confronted Mr B that night in a very aggressive and abusive manner.[119]The judge was also adversely influenced by Ms Hartless’s conduct when the court order was served (see para 115 above). He said it was understandable that she had felt a great deal of shock and anxiety, but he thought that it was indicative that when she was aroused or shocked she became menacing and threatened violence. He did not find her a satisfactory witness, and he thought her vilification of Mr B was instructive. The judge criticised her for her belief that Mr B’s practice of taking photographs of children on the estate marked him out as a paedophile, and for instructing her counsel to challenge him about this at the trial. He found that she had a tendency to use violent and aggressive language, and he did not think she was being sincere when she had apologised to Mr B at the trial. He accepted that she could be a very good friend and had shown a great deal of kindness to some of the people who testified on her behalf, but he said that this friendship could swiftly swing to aggression if she felt that she was being wronged, as had occurred on two occasions in the past about which evidence had been given.[120]He also accepted that Mr Harris had made a great contribution to the local football team. He concluded by saying that both defendants had many qualities but their good works could not excuse their bad behaviour or in some way wipe the slate clean.[121]The judge had structured his judgment by starting his survey of the evidence by saying that the largest number of complaints concerned the children – he named AH and CH in this context – and he then went on to quote verbatim and at length from the witness statements he had received. He did not do very much by way of summarising the effect of the oral evidence he received from the claimants’ witnesses at the trial, and when he turned from his recitation of the evidence to “drawing the threads together” he did not make very many specific findings other than those we have already described.[122]He found that there was clear evidence of breaches of Clause 12(b) of the tenancy agreement, and that the complaints under Grounds 12 and 14 were made out. He went on to find that it was reasonable to make a possession order, and that it should not be suspended. He also held that the grounds for making an ASBO against both Mr Harris and Ms Hartless were satisfied. He said that such an order was necessary to protect the residents and visitors to the estate for a period of four years. We will refer to his reasons when we consider the different challenges to his judgment on these appeals.

Part 17 New evidence on the appeals

[123]The Appellants applied for permission to adduce new evidence on the appeal. The parties were content that we should decide this application on the basis of their written submissions. The trial had been arranged in a great hurry. Mrs Hawksley, who is a sole practitioner, was willing to act for the defendants at legal aid rates, although Mr Harris did not qualify for legal aid and she was not a legal aid practitioner. Only three clear weeks lay between the case management conference on 4th November and the start of the trial on 29th November, and she was busy with the affairs of other clients in the first week: her clients were away in Liverpool in the second week. This led, effectively, to one week being available for trial preparation. The trial transcript shows how the judge adjourned the trial on the first morning so that he and the parties’ counsel could read the documents that were still flowing in. In these circumstances we would not be disposed to apply the Ladd v Marshall guidelines too stringently.[124]We were therefore willing to read all three of the new statements on the basis that they could stand alongside the other written statements that were not tested in cross-examination. There had been a good deal of rather elusive evidence to the effect that the conduct of “the defendants” (an expression which included the D family) had driven other residents off the estate. One of the people named has now signed a statement to the effect that the conduct of the Harris family had nothing to do with his departure, which was caused by “various problems with the estate”.[125]Next, there is a much fuller statement from a woman who had furnished a brief statement at the trial to the effect that she had been involved with a friend in the fight in the estate’s car park, and that nobody else had been involved. In her second statement, made on 7th December 2004, she gave a much fuller account of what had happened. She described how she and her friends, who were all drunk, had assaulted the victim who did not deserve the kicking she had received. She said that Ms Hartless had come out “some way into the fight”, but she knew that she was not one of the attackers. Since the claimants’ witnesses had never suggested Ms Hartless was one of the original attackers we do not consider that this evidence takes things very much further.[126]Finally, the appellants wished to rely on a witness statement from the husband of a witness we will call JB who did not in the event attend the trial. On the first day of the trial MW told the judge that she had seen this witness the previous Friday when she was all set to attend court, and when she did not see her in court on the Monday morning she had rung her up. JB had then told her that her husband would not allow her to come to court because he had received a phone call to the effect that if she testified against Ms Hartless it would be the last thing she would do for a long time. The judge also received evidence to the effect that JB’s husband had left a message at the claimants’ office on the Friday in which he said that his wife would be retracting her statement and not going to court on Monday because she was suffering from depression.[127]In his judgment the judge set out substantial parts of JB’s evidence and the effect of MW’s evidence. As we have said, he did not conclude his judgment with very many specific findings about Ms Hartless’s behaviour in the past. JB’s evidence was mainly directed towards the behaviour of the Harris children – she, too, had had trouble with footballs – but she did give evidence of one incident to Ms Hartless’s discredit in the summer of 2003. She added that Mr Harris had shouted and sworn at her husband on the same occasion and pushed him a couple of times.[128]In a witness statement dated 7th December JB’s husband confirmed the telephone call he had made to the claimants. He had felt that because of her depression it was not in his wife’s best interests to put herself through the hearing. He said that nobody had threatened them, and he had received no warnings that either he or his wife should not give evidence. As far as he was concerned, they had simply chosen not to get involved.[129]It would be quite impossible to arrive at the truth of this chain of events without receiving oral evidence from JB and her husband. There would be little advantage in taking this course, however, because they have clearly decided that they do not now wish to give any evidence about events that happened in the past. It remains the case that JB did say what is recorded in her draft witness statement to a representative of the claimants when the action was being prepared for trial. It is therefore admissible as hearsay evidence notwithstanding her alleged wish to “withdraw” it and her non-appearance at the trial. The judge appears to have treated all the hearsay evidence as background evidence, and we do not consider that this new statement by JB’s husband, unless tested in cross-examination, would have affected the outcome one way or another.

Part 18 The grounds of appeal in the main action

[130]On the substantive appeals against the possession order and the ASBOs, Mr Luba advanced four main grounds of challenge: i) That the judge erred in his admission and treatment of extensive hearsay evidence, and that in the light of this error the justice of the case required a retrial on the best available evidence (“the hearsay point”); ii) That the judge could not properly have been satisfied, on the material before him, that it was reasonable to make an order for possession (“the reasonableness point”); iii) That the judge was wrong to make an outright rather than a suspended order (“the suspension point”); iv) That the judge could not properly have been satisfied, on the material before him, that it was reasonable to make an ASBO against each of the appellants, alternatively that the ASBOs made were excessive in duration and extent (“the ASBO points”). We will consider each of these grounds in turn.

Part 19 The hearsay point

[131]It is now well established that hearsay evidence is available on an application for an ASBO or the trial of a possession action: for this rule in relation to ASBOs see R (McCann) v Manchester Crown Court [2002] UKHL 39 at [35] -[36], [2003] 1 AC 787 and Solon South West Housing Association Ltd v James [2004] EWCA Civ 1847 at [14] - [41].[132]The admission of hearsay evidence in civil proceedings is governed by sections 1-7 of the Civil Evidence Act 1995 and CPR 33.1 - 33.5. Section 4 (1) of the Act, in particular, provides that:
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard may be had, in particular, to the following- (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.” (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
[133]CPR 33.2(1) provides that the inclusion of hearsay evidence in a witness statement provides adequate notice of a party’s intention to rely on hearsay evidence at the trial. CPR 33.2(2) provides that where the hearsay evidence is contained in a witness statement of a person who is not being called to give oral evidence, the party intending to rely on the hearsay statement must, when he serves the witness statement, “(a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why a witness will not be called.”[134]The claimants relied on a large amount of hearsay evidence at the trial, and their “live” witnesses also gave hearsay evidence of which appropriate notice had been given. The reasons why the makers of the original statements did not attend trial varied greatly. ZP, for instance, did not attend on the second day of the trial because she was said to have child care difficulties. KL did not attend because she was 22 weeks pregnant and had almost lost her child the previous week: her doctors had told her to rest and not to have any stress. A number of anonymous witnesses told either Mr Macdonald or Ms Brotherwood that they did not wish to identify themselves for fear of reprisals (without, in many cases, being at all specific about the reason for their fear); by implication, this was the reason why it was not reasonable or practicable for them to attend court.[135]The willingness of a civil court to admit hearsay evidence carries with it inherent dangers in a case like this. As Mr Macdonald said, rumours abound in a small housing estate, and it is much more difficult for a judge to assess the truth of what he is being told if the original maker of the statement does not attend court to be cross-examined on his/her evidence. The emphasis placed by section 4(2)(b) of the 1995 Act on contemporaneity merely goes to highlight the importance of a landlord giving a tenant contemporary notice of any complaints that are made against his/her behaviour, so that the tenant is not faced in court with serious complaints made by anonymous or absent witnesses about matters that took place, if at all, many months previously.[136]This large volume of hearsay evidence presented the judge with an unusually difficult problem. It might have been better if he had started his judgment with an analysis of the direct oral evidence he received, and made more transparently clear his approach to the evidence of the absent named witnesses and anonymous witnesses, particularly as it was the hearsay evidence that contained most of the evidence which discredited Ms Hartless and Mr Harris personally, as opposed to their children.[137]The judge started his recital of the evidence of the anonymous witnesses by directing himself (at para 12) that “obviously their evidence, such as it is, carries less weight”. He did not repeat this direction when he moved on to recite the evidence of JB, ZP and KL: he stated (at para 18), however, that Mr R, whom he found to be an honest and reliable witness (see para 19), had corroborated what KL had said. When the judge came to draw the threads together (at para 44) he said that there was a great deal of hearsay evidence, but that it was supported by live evidence from those who came and did give evidence.[138]It is clear from paras 44-51 of his judgment that in making findings adverse to Mr Harrris and Ms Hartless the judge was particularly influenced by the direct evidence of Mr B and Mr R, by Mr Macdonald’s description of Ms Hartless’s reaction when the court orders were served, and by the adverse impression he had formed of Ms Hartless when she gave evidence.[139]We have considered carefully the detailed points which Mr Luba made about the evidence of particular witnesses in his skeleton arguments. We accept that there is some force in his complaint that there is no evidence that Ms Brotherwood invited the five anonymous witnesses to confirm the accuracy of what she was ascribing to them, and that this evidence was gathered after the NSP had been served, and after the possession proceedings had been commenced, by someone who could not be described as an independent third party. About other matters, such as the absence of a medical report on KL or the inadequacy of the reason for ZP’s absence (given that the trial date had been known for nearly four weeks), the time for making complaint was at the trial itself, when no such complaint appears to have been made.[140]While nobody would wish to return to the days before the Civil Evidence Act 1995 came into force, when efforts to admit hearsay evidence were beset by complicated procedural rules, the experience of this case should provide a salutary warning for the future that more attention should be paid by claimants in this type of case to the need to state by convincing direct evidence why it was not reasonable and practicable to produce the original maker of the statement as a witness. If the statement involves multiple hearsay, the route by which the original statement came to the attention of the person attesting to it should be identified as far as practicable. It would also be desirable for judges to remind themselves in their judgments that they are taking into account the section 4(2) criteria (for which see para 132 above) so far as they are relevant. However, although the judge’s attention to details of this kind was sparse, we do not consider that we ought to conclude that this very experienced judge failed to apply the appropriate principles when considering what weight, if any, to attach to hearsay evidence. There are, in our judgment, no reasonable grounds for setting aside his judgment and ordering a retrial because of the hearsay point.

Part 20 The reasonableness and the suspension points

[141]Mr Luba accepted that there was sufficient evidence to justify the judge’s conclusion that the conduct of some, at least, of the Harris children constituted a nuisance to others, such as to found a ground for making a possession order (for the responsibility of Ms Hartless for her children’s behaviour see para 116 above). He argued strongly, however, that the judge was wrong to consider it reasonable to make a possession order in all the circumstances of the case. claimant[142]The judge’s approach to this issue ran along the following lines. After holding that the claimants’ complaints under Grounds 12 and 14 of Schedule 2 of the Housing Act 1988 were made out, he then went on to consider the issue of “reasonableness”. It is well known that section 7(4) of that Act empowers a court to make an order for possession if it considers it reasonable to do so, once it has held that either of these grounds is established. It is equally well known that this language confers a very wide discretion on the county court. Somervell LJ said in Cresswell v Hodgson [1951] 2 KB 92, 95, when construing earlier statutory language to the same effect, that Parliament had given the judge in the county court a very wide discretion, and that this court should not say anything that restricted the circumstances he should take into consideration. In the same case Denning LJ said (at p 97) that he thought that the word “reasonable” meant “reasonable having regard to the interests of the parties concerned and also reasonable having regard to the interests of the public”. In the earlier case of Cumming v Danson [1942] 2 All ER 653 Lord Greene MR said at p 655:
“In considering reasonableness…it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account.”
[143]One of these matters, in cases where the relevant breach of the tenancy agreement arises from acts of nuisance or annoyance to neighbours, has always been the effect of the tenant’s behaviour on those on whom his/her anti-social behaviour has impinged. Strong judicial statements to this effect can be seen in the recent judgments of this court in Kensington & Chelsea RLBC v Simmonds (1996) 29 HLR 507, 511 and West Kent Housing Association Ltd v Davies (1998) 31 HLR 415, 425. When Parliament, by section 16(2) of the Anti-Social Behaviour Act 2003, inserted a new section 9A into the Housing Act 1988, it was therefore not doing much more than codifying existing law with a greater emphasis on the matters referred to in that section. Section 9A(2), which applies if the court is considering whether it is reasonable to make an order for possession on ground 14, provides that:
“(2) The court must consider in particular - (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 any such persons; (c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated. ” (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 any such persons; (c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated. ”
[144]This section clearly owes its origin to a concern on Parliament’s part that judges were not paying sufficient attention to these particular matters when deciding whether or not it was reasonable to make a possession order.[145]The judge went straight to section 9A(2). He said he was satisfied that the conduct in question had caused a great deal of distress and harassment, that its continuation was likely to have a deleterious effect on the well-being of residents on the estate, that it was likely that the nuisance and annoyance would continue, and that this would have a serious effect on the residents, their health and well-being.[146]He then turned to consider “reasonableness” and “suspension”. He said that he had received from Ms Hartless a willingness to promise not to repeat her conduct or to allow her children to repeat their conduct, but he was not satisfied that she would do anything different in future. He thought that any improvement in her conduct would be short-lived, and that the matter would soon be back before the court for breaches of the undertakings, always assuming that witnesses would not be too intimidated to come forward. He therefore considered that it was necessary (sic) to make a possession order.[147]He then went on to consider whether he should exercise his discretion to suspend the order. In this context he said that helpful guidance as to the way in which the question should be approached was given by this court in Canterbury City Council v Lowe (2001) 33 HLR 53.[148]That was a case in which the defendants had made the lives of a very close neighbour and his 11-year-old daughter (and his mentally ill mother, who sometimes visited them) “a completely misery” (see para 9). The trial judge had received graphic evidence about the very serious nature of the defendants’ behaviour (see paras 10-13), and when this court decided that an immediate, not a suspended, possession order was appropriate, both Kay and Waller LJJ expressed great concern about the difficulty of proving a breach of the order on the facts of that case.[149]In the present case the judge, after citing extracts from their judgments, said that there were five or six witnesses who had preferred to remain anonymous, and other witnesses who, although named, had been reluctant to come to court. He said that Mr B and the other witnesses had had the courage to come forward on this occasion, but it was questionable if they would have the courage to do so again if the order was suspended and a breach had to be proved.[150]The judge also took into account a dictum of Robert Walker LJ in West Kent Housing Association v Davies (1999) 31 HLR 415, 425 about the need for the court to recognise the seriousness of a case in which a Housing Association was doing its best to improve the quality of life for those living on the estate, when its efforts included obtaining witnesses who were prepared to give evidence despite the possibility of intimidation.[151]The judge did not, however, take any other matters into account when he held that it would be a wrong exercise of his discretion if he were to suspend the order. He therefore made an immediate order for possession.[152]So far as the reasonableness point is concerned, s 77(6)(ee) of the County Courts Act 1984 forbids this court from entertaining an appeal on any question of fact in a case of this type. If, however, there is no evidence to support a finding of fact which a judge took into account when he considered it reasonable to make an order for possession, that raises a question of law which this court is entitled to entertain.[153]Mr Luba’s challenge was founded on three quite separate grounds: i) That some of the judge’s findings of fact were wrong and contrary to the evidence before him; ii) That although the judge correctly took into account the matters set out in s 9A (see para 143 above) he failed to take into account the interests of Ms Hartless or her young children in retaining their home; iii) That the judge failed to take any account of the fact that by failing to give Ms Hartless any prior warnings or take any steps to support and sustain her in her tenancy, or to explore other options for resolving the situation on the estate that fell short of evicting this family, the claimants were in breach of their own guidelines and their duty under Ms Hartless’s tenancy agreement (see clauses 22(e) and 26(d) in para 22 above).

Part 21 The judge’s findings of fact

[154]Mr Luba set out seven complaints in para 55 of his skeleton argument. We consider that there is some force in his complaint that the judge should not have said, as he did, that the Harris children were out of control without making it clear which children he had in mind. DH, Ms Hartless's daughter, attracted virtually no attention at all from any complainant. Her excellent school report, which was with the court’s papers, described her as co-operative and friendly, and someone who followed school rules and social codes. Although there was an occasional mention of her second brother BH in some of the hearsay evidence, it certainly could not have justified a finding that he was out of control. He, too, had a good school report:
“a very pleasant and co-operative pupil who has made satisfactory progress this year.”
It was the behaviour of her other two brothers to whom the judge’s criticisms should have been properly confined.[155]We do not consider that there is anything in Mr Luba’s second, third and fourth points which warrant mention or which take matters any further. On his sixth point, the judge was entitled, if he saw fit, to place weight on Mr Macdonald’s description of Ms Hartless’s conduct on 29th October. Although Mrs Hawksley’s witness statement contained hearsay evidence (at para 45) to the effect that the policeman who attended that evening did not believe that any of her threats were serious ones given the circumstances in which they were said, counsel for the defendants acquiesced in the judge restricting her oral evidence to one quite different issue and did not draw the judge’s attention to this evidence. Mr Luba’s seventh complaint, namely that the judge dismissed the evidence (both hearsay and live) of the defendants’ witnesses belongs more naturally to his second ground of complaint.[156]Mr Luba’s first point is that the judge was wrong to find that Mr Harris had pursued a “vendetta” against Mr B. This, in our judgment, was not a wholly suitable word to use, given that the two men had never set eyes on one another until the very unpleasant incident in the early morning of 17th October 2004 (see para 44 above). However, although there was evidence before the court (not drawn to the judge’s attention) that there were recent worries that a paedophile was active in the neighbourhood (so that the children could not play on a nearby field without an adult in attendance), and there was no evidence that anyone had ever told the appellants – as opposed to the Ds – that the police and the claimants’ former housing manager had encouraged Mr B to take photographs of children on the estate when they were behaving in an anti-social way, the judge was entitled to be critical of the way in which Mr Harris and Ms Hartless had behaved towards Mr B, and of the unreasonableness of Mr Harris’s lingering grievance, three years after the event, that it was somehow or other Mr B’s fault that he had been locked up by the police.

Part 22 Other matters to be taken into account

[157]It is correct that the judge failed to take into account the interests of Ms Hartless and her children when deciding whether it was reasonable to make a possession order. Although section 9A uses the words “in particular”, this does not mean that the court is not bound to take account of all relevant considerations, and the interests of this family, and in particular the two relatively blameless members of it (who had a right to respect for their home under ECHR law), certainly warranted some attention (but see para 159 below).[158]It is also correct that the judge failed to take into account the fact that the claimants had given Ms Hartless no prior warning of any kind, and that on the face of it their conduct towards her was in breach of clauses 22(e) and 26(f) of her tenancy agreement in that they had not taken all other reasonable steps before seeking an order for possession, they did not use the full range of tools to tackle her anti-social behaviour and that of Mr Harris and two of her children, and they did not resort to eviction as a last resort.[159]Because of the judge’s failure in these respects, it is open to us to revisit the issue of reasonableness. In view of the strong way in which he expressed his findings, we do not consider that the interests of Ms Hartless or her children could properly outweigh the seriousness of the conduct exposed in the judgment so as to make it not reasonable to make the order. Although we have experienced more difficulty over the fact that the claimants did not take their own obligations and promises seriously enough in the past, the fact that the Housing Corporation guidance was not issued until July 2004, and the family’s conduct, as found by the judge, was so serious, have led us to conclude that we should not disturb the judge’s finding that it was reasonable to make an order for possession in this case.

Part 23 Should the judge have suspended the possession order?

[160]This leaves, at this stage of the case, the issue whether the judge was wrong in failing to suspend the order. On this issue we should mention that there were four minor incidents, none of them involving violence or threats of violence, between 30th October and the time of the trial which were drawn to the judge’s attention as indications that the appellants were putting pressure on witnesses or, in one case, one of Mrs W’s children. On the other hand, there is a further very important new matter to which the judge paid no attention at all, and this is the fact that the D family, who by almost common assent behaved considerably worse than the Harris family, have now left the estate, never to return. We have already mentioned how Ms Brotherwood had found that spirits had lifted on the estate following their departure (see para 112 above).[161]Another important consideration, now that we are considering this issue afresh, is that the Harris family have had the shock of the events of the night of 29th October and the imminence of eviction on 17th December to mull over, no further untoward incidents were brought to the attention of the court on either of the days when we heard these appeals, and, perhaps quite importantly, we were told that Mr Harris is now living with Ms Hartless where he ought to be able, if he is so inclined, to instil in his oldest and youngest sons a degree of discipline which seems to have been sadly lacking when they did not have a father living permanently in their home.[162]In the exercise of our discretion, we consider that we are entitled to take into account the children’s good school reports, the absence of any criminal records or any serious record of police involvement with this family, and the favourable testimonies that were given by people who for the most part did not live on the estate, and in particular that of Mr Marshall who clearly impressed the judge. We are also entitled to take into account the very unusual feature in this case that if the behaviour of these appellants in the past was as bad as some of the anonymous witnesses said it was, either they made no complaint to their landlords or their landlords made no complaint to the appellants, so that their eventual behaviour in seeking an immediate possession order starkly contrasted with their previous laissez-faire approach: for relevant ECHR considerations, see para 102 above.[163]For all these reasons, in our judgment it would be right to suspend the possession order on the terms that there are no further breaches of clause 12(b) of the tenancy agreement and that nobody living at 49 Midhurst Road or visiting that house causes a nuisance to, or annoys, any person residing, visiting, or otherwise engaged in a lawful activity in the locality of the estate. We will hear counsel on the precise terms of the suspension.

Part 24 The ASBOs

[164]This leaves only the issue of the ASBOs. We can say at once that the judge was wrong to direct that the ASBOs should be of four years’ duration, in contrast to the length of the undertakings given to the court by the D family, whose behaviour was much worse, which were for only two years. The fact that these appellants resisted the making of any orders against them, and the judge disbelieved some of the evidence they gave, is not a good reason for this major discrepancy. The claimants did not seek a four-year ASBO, and the judge gave no reasons why he considered that four years were appropriate. This leaves open, however, the question whether it was appropriate to make an ASBO at all, or whether some appropriately tailored ASBI, which could be policed by the county court, would not have been a more appropriate order, particularly now that we are suspending the possession order.[165]The statutory criteria that must be fulfilled before an ASBO can be made are set out in s 1(1)(a) of the Crime and Disorder Act 1998, as amended, namely: a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and b) that such an order is necessary to protect relevant persons from further anti-social acts by him. The commencement date for the provisions of s 1B, whereby ASBOS may be made in a county court, was 2nd December 2002.[166]The judge dealt with this aspect of the matter very quickly. He said that the considerations here were similar to those with which he had been concerned previously in his judgment, although the burden of proof was different. He said that he was satisfied to the criminal standard that both appellants had acted in a manner that was likely to cause and had caused harassment, alarm and distress to other residents on the estate, and that a four-year ASBO was necessary to protect the residents and visitors to the estate.[167]In fact this issue deserved rather closer attention than the judge accorded to it. We will leave on one side, however, because we did not hear full argument on it, the important question whether a failure to control one’s children from being a nuisance, although it may constitute a breach of a tenancy agreement, is an “act” of the type referred to in s 1(1)(a) of the 1998 Act.[168]In R v P (Shane Tony) [2004] EWCA Crim 287 at [33], 2 Cr App R (S) 63, Henriques J, giving the judgment of a court which included Lord Woolf CJ, said:
“34. In our judgment the following principles clearly emerge: (1) The test for making an order is one of necessity to protect the public from further anti-social acts by the offender. (2) The terms of the order must be precise and capable of being understood by the offender. (3) The findings of fact giving rise to the making of the order must be recorded. (4) The order must be explained to the offender. (5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced.” (1) The test for making an order is one of necessity to protect the public from further anti-social acts by the offender. (2) The terms of the order must be precise and capable of being understood by the offender. (3) The findings of fact giving rise to the making of the order must be recorded. (4) The order must be explained to the offender. (5) The exact terms of the order must be pronounced in open court and the written order must accurately reflect the order as pronounced.”
[169]Although that judgment related to an order made in the Crown Court under section 1C of the 1998 Act, in contrast to the present case, which relates to an order made in a county court under section 1B, the governing principles must be the same. In particular, in the event of any breach of the order, the breach court must be able to understand the facts on which the original order was made without having to incur the heavy expense of commissioning a transcript of the judgment in the county court.[170]This discipline would have been particularly valuable in the present case because the judge would have had to identify, to the criminal standard of proof, which of the hearsay allegations, whether anonymous or not, he found proved so as to constitute acts of either appellant committed after 2nd December 2002. The agreed chronology shows that a number of the complaints against these appellants antedated December 2002.[171]Mr Luba made powerful submissions in support of his contention that ASBOs were inappropriate on the facts of this case, and that some form of undertaking as to future conduct, backed by a penal notice (as in the Ds’ case) was all that the situation required in the case of each appellant. In particular, the judge never identified the conduct on the part of Mr Harris which warranted the making of an ASBO against him, and there was not the evidence of “persistent and serious anti-social behaviour” on the part of the two adults (as opposed to two of their children) which is required before it can be held to be necessary to make an ASBO: see R (McCann) v Manchester Crown Court [2002] UKHL 787 at [25], [2003] 1 AC 787. The judge’s most serious explicit findings against either of them stemmed from the very unpleasant events of a single night.[172]For these reasons, we would set aside the ASBOs and substitute undertakings (or ASBIs to like effect) without limit of time which should serve to control the conduct of Mr Harris and Ms Hartless and their control over their children while either of them is still a resident in or a visitor to the estate. We will hear counsel as to the text of the undertakings or ASBIs.[173]For all these reasons we allow these appeals to the extent set out in this judgment.

Cited in 30 later judgments

and 21 more of the most senior