Accent Peerless Ltd v Kingsdon & Anor [2007] EWCA Civ 1314

[2007] EWCA Civ 1314Case No B5/2007/0092
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ALDERSHOT & FARNHAM COUNTY COURT
BEFORE HHJ MILLIGAN
Case No. 6AF01137
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/12/2007
Before
LORD JUSTICE LATHAMLORD JUSTICE JACOBMR JUSTICE MANN
Between
ACCENT PEERLESS LIMITEDRespondent(1) MRS PATRICIA KINGSDONAppellants(2) MISS KAREN KINGSDONAppellant
MISS G. WARD (instructed by Messrs Lee & Company) for Appellants.MRS. J.L. HODGSON (instructed by Messrs Heald Nickinson) for Respondent.Hearing Hearing date : 29 th November 2007
JudgmentMr Justice Mann :The nature of this appeal
[1]On 29th November 2007 this Court heard argument on this appeal. After argument, the parties were told that the appeal would be dismissed, with reasons to be given later. These judgments contain those reasons.[2]This is an appeal from an order of HH Judge Milligan in the Aldershot and Farnham County Court given on 14th December 2006. In the decision appealed from, the learned judge made an immediate (that is to say not suspended) possession order in favour of the claimant and against the defendants over 82 Middlemoor Road, Frimley, Camberley. The defendants (who are mother and daughter) were tenants of the claimant under an assured weekly periodic tenancy which had commenced on 19th October 1998. The ground for ordering possession was that the judge found there was conduct causing or likely to cause a nuisance or annoyance to adjoining occupiers or others in the locality.[3]Permission to appeal was given by Lloyd LJ at an oral hearing on 18th May. He confined his permission to only two of the points appearing in the grounds of appeal. Putting the matter shortly, the issue arising in this appeal is whether or not the trial judge erred in failing to take into account an alleged abatement in the behaviour complained of, both in his decision to make an order and (so far as it bore on the likelihood of future misconduct) in his declining to make a suspended possession order.

The facts and circumstances of this case

[4]The circumstances of this case are out of the ordinary because of the nature of the nuisance alleged and proved. The principal victims of the nuisance were Mr and Mrs Dixon, who lived next door. The previous occupier of the house the other side, a Mrs Jackson, had also been a victim of similar behaviour, though she had left the property the previous April. The cause of the nuisance has its roots in the mental condition of the defendants. It was not disputed that they both suffer from a mental disability. Before the trial, they were examined by a jointly appointed expert, one Professor Hirsch. He found that they both suffer from post traumatic stress disorder, though at the trial he changed his mind about the daughter and said that she suffered from a different disorder, albeit with the same symptoms. The main symptoms of their disorder were a hypersensitivity to noise, a propensity to exaggerate the effect of noise and other disturbances, agoraphobic tendencies, a tendency to misunderstand and chronic complaining. These conditions led the Kingsdons into doing the acts which were found to have been the nuisance and annoyance in this case. They also led them into a subjective belief that they were entitled to act as they did, and that the facts purportedly underlying various complaints that they made were true even though objectively they were not. While this provided an explanation of what they did which did not import malicious motives, it did make dealing with the case and an assessment of the likelihood of recurrence more difficult. Apart from anything else, their condition meant that they could not attend court to give evidence.[5]The Dixons moved into their property (number 84) in June 2001. Over the following years they conducted a certain amount of DIY activity. This activity was inherently noisy, but it does not ever seem to have been found to have been such as to be an actionable nuisance. However, the defendants were hypersensitive to the noise. As a result, they embarked on a course of conduct which amounted to the nuisance alleged by the Dixons and the claimant, and found by the judge. The nuisance can be summarised as follows. i) Between November 2001 and September 2005 they made 36 complaints to the Environmental Health Department. There were also two complaints to the local authority ombudsman. ii) They made 90 complaints to the Housing Association between September and November 2001. These complaints seem to have been communicated to the Dixons. iii) They made a number of complaints to the police, prompting several visits by the police to the Dixons. The police seem to have concluded that the Dixons were taking all reasonable steps to be considerate neighbours. In the course of these complaints, the defendants made allegations that Mrs Dixon had been in Brookwood Mental Hospital and that they had been evicted from a previous property for dangerous DIY activities and noise harassment. These allegations were false. Over a period of 12 to 18 months the beat officer for the area, who at one point issued a warning under the Harassment Act, received almost daily faxes from the defendants, though they had dropped off dramatically a short while before the trial. iv) The defendants procured the sending of unwanted mail shots and other advertising material by apparently filling in coupons with the victim’s address. The material which thereby arrived on the Dixons’ doormat included advertising for erotic material, an introductory agency, a wigmakers, cosmetic surgery and orthopaedic footwear. The Dixons found this upsetting and depressive. v) What was described as the “last straw” happened in 2005. One of the defendants made an anonymous telephone call to Mr Dixon’s employers saying that he was not off ill because they had seen him working in his garden. At the time Mr Dixon was indeed off work and working in the garden, but it was pursuant to leave which had been agreed with his employer. vi) One of the defendants wrote to the local MP, in Mrs Dixon’s name, about some European food supplement. There were other incidents in a similar vein.[6]Mrs Jackson gave evidence of similar behaviour (principally unfounded complaints) in respect of her period of occupation. In her case she said that the conduct of the defendants was one of the things which caused her to sell her property and leave.[7]Judge Milligan found that the defendants were guilty of the acts of nuisance and annoyance complained of. They were unjustified. He described their effect on the Dixons as follows:
“34. I accept the Dixons’ evidence that they have suffered anxiety and distress at the constant complaints and allegations to third parties about them and to them. Much of what was done to them at the instigation of the defendants, as I find, will have caused, in addition to anxiety and distress, some strong feelings of humiliation. I refer to orthopaedic shoes, wigmakers and erotic material. 35. In company with the Jacksons, there was a vivid and undermining and constant feeling of fear and invasion of their private home and lives. In the case of the Dixons, all this despite their reasonable efforts to be accommodating as to the work needed to their property. ….. 36. ….The Dixons, in my judgment, were in the classic catch 22 situation wishing to enjoy their property as there are entitled to expect, but feeling completely hamstrung that any activity by them may only lead to further harassment by unfounded complaints. The Jacksons, I have observed, felt prisoners in their own home. ….. 56. ….The effect on the Dixons, and all those drawn in by their persistent, and unfounded, or at least unreasonable complaints, is, and has been, severe….. ….. 61. I have accepted that [the Dixons’] health has been affected together with their fundamental right to a peaceful and happy life in their own home.”

This appeal

[8]All that having been established, the question which arises in this appeal is whether the overall facts justify the making of a possession order at all, and if it did whether that order should have been suspended or not. The defendants, represented by Miss Ward, maintained that it was not reasonable to make a possession order given the largely historic nature of the acts of nuisance and annoyance, and alternatively in the light of that history, and in the light of the evidence of Professor Hirsch as to the likelihood of repetition, a suspended and not a forthwith order should have been made.

The making of a possession order

[9]The legal foundation for these submissions lies in sections 7 and 9(a) of the Housing Act 1988. Section 7(1) provides that a court shall not make an order for possession of a property let on an assured tenancy except on one or more of the grounds set out in schedule 2. Ground 14 of Part II of schedule 2 reads:
“The tenant or person residing in or visiting the dwelling house: (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality….”
Section 7(4) provides that if the court is satisfied that any of the grounds in Part II are established, then it may make an order for possession if it considers it reasonable to do so. Section 9(a) sets out some matters which the court must take into account in considering the reasonableness of making an order, including in particular the following:
“(a) The effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought; (b) any continuing effect the nuisance or annoyance is likely to have on such persons; (c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.”
It seems to me that that provision sets out matters which the court would in any event have been likely to have taken into account even in the absence of that provision, but the provision contains a clear statutory requirement. It is trite law that the court must take into account all other relevant circumstances. The likelihood of continuation is obviously significant. The greater the likelihood of continuation, the more reasonable a possession order is likely to be.[10]The defendants contend that the trial judge did not take proper account of the pre-trial abatement which it was said had occurred in this case. It does indeed appear that, numerically speaking, the matters complained of had tended to be concentrated in the first half of the period of the Dixons’ occupation of the property rather than the second half, though the second half was not devoid of trouble. As the judge recorded, 32 of the 36 complaints to the Environmental Health Department occurred more than four years before the hearing. There was one complaint in 2003, there were none in 2004 and three in 2005. There were none in 2006. The complaints made to the claimants about the Dixons’ noise were 90 and were made between September and November 2001. On only two occasions after December 2003 did complaints to the police cause any contact to be made by the police with the Dixons. There were more recent activities, and in particular the contact with Mr Dixon’s employer at the end of 2005, but it is said that the emphasis was on the earlier period. All these matters were clearly set out in the judgment below.[11]Miss Ward said that the judge erred in failing to take this properly into account. It went to the question of whether or not it was reasonable to make the possession order, as well as to the likelihood of further occurrence.[12]It is plain from the judgment that the judge asked himself the right question, namely whether it was reasonable to make a possession order. He indicates expressly that he was doing that in paragraph 40 of his judgment. In this context he noted his duties as follows:
“Here I must look at all the circumstances; the interests of all concerned, including the effect on the Dixons if the situation goes on; and upon all the other agencies that have been involved in these proceedings. I must concern myself with the defendants’ Article 8 rights, their vulnerability, and the effect upon them of making them homeless and therefore at the mercy of what may be made available in the way of alternative, perhaps temporary, accommodation…. 41. I have been referred to Lambeth London Council v Howard…. In considering whether it is reasonable to make an order for possession, the duty of the judge is to take into account all relevant circumstances that exist at the date of hearing in a broad, commonsense way, giving weight, as he thinks right, to the various factors in the situation…”
[13]The judge then went on to consider some of the psychiatric evidence. He noted that the conduct of the defendants was the result of their mental illness, and equally noted the effect on the Dixons. In various paragraphs he noted that the problem would be likely to go on and at paragraph 56 observed:
“like Professor Hirsch, I see no prospect of any real change or improvement in what has become an untenable position sadly for all concerned.”
Then at paragraph 57 he reaches his conclusion:
“57. Balancing these various factors in mind, including the concern expressed for the effect of poor temporary accommodation, but bearing in mind that there is no certainty on this score, nor should I seek to predict the outcome of any homelessness application that the defendants might make if an eviction order is made herein, I am satisfied, having looked at all these matters, that it would be reasonable to make the order sought.”
[14]It is true that in the preceding paragraphs he does not in terms deal with what might be gleaned from the pattern of the disruptive behaviour, and therefore what is described as the abatement. However, he cannot have been blind to that in this context, because he himself notes the defendants’ submission that the bulk of the complaints to the Environmental Health Department arose from a period more than four years previously – see paragraph 5 of his judgment where he sets out the facts on the point. His judgment is also clear on the timescale of the bulk of the relevant complaints. In considering the reasonableness point and the psychiatric evidence, he gives careful consideration to the extent to which the Kingsdons are capable of modifying their behaviour and the extent to which they would be likely to re-offend. It is implicit that he is doing that because of submissions that the pattern of behaviour raises that as a possibility. He notes Professor Hirsch’s evidence on this point as follows:
“49. He says they would be capable of living together in the community, but re-housing is needed away from exposure to excessive noise. They will have learnt from some of their experiences, for instance, the sending of the coupons and the phone complaints. They can control their behaviour to a degree, but their feelings about the situation will not change. They are unlikely to give up their campaign. Absent successful treatment, they will be the same wherever they are living. He saw them as relatively helpless, with little support.”
[15]I have already read parts of paragraph 56. It is plain from those extracts and from the manner in which the judge deals with this point that he took the view that the mental condition of the Kingsdons was such that something else would be likely to happen even if there was no precise repetition of what had gone on before. In forming this assessment, whilst he did not in terms refer to the alleged abatement, he must have formed the view that it did not betoken a reversal of their behaviour sufficient to undo the damage that it had already done, or which meant that re-offending was less likely. This was a view which was manifestly open to him on the evidence.[16]All that seems to me to be clear enough, but if there were any doubt about it it becomes apparent from the next part of his judgment that the judge did indeed have the fact of abatement in mind. At paragraph 67 he turns to the question of whether the order should be suspended and says:
“67. Should such an order be suspended? There has been some abatement, but as I have said the effect on the Dixons is constant. The very uncertainty, the very restriction, is the constant feature. 68. As I have indicated, there is uncertainty to say the least that any treatment proposed would result in the defendants being able to tolerate living where they are now. I accept the evidence that they would not accept it. I therefore see no case for suspending or postponing the operation of the order on that basis. I accept Dr Coulter’s evidence that the defendants will not engage in this treatment for its very nature. I bear in mind that the outcome, if they did, is at least uncertain. Absent any real prospect of that nature, and given my findings, the grounds under ground 14 are made out, that it is reasonable to make an order, and that by doing so these defendants will not be discriminated against under the Disability Discrimination Act. I see no basis but that such an order should be forthwith [sic]. I would normally be considering a 28 day period, which might be considered usual, but I will hear from counsel as to that. I bear in mind that Christmas intervenes.”
[17]Those paragraphs make it clear that the judge had abatement in mind, but considered that that did nothing to mitigate the effect on the Dixons. That goes directly to the question of the reasonableness of making the order as well as to whether an order should be suspended (as he himself found in paragraph 68). The judge plainly did not consider that any abatement meant that the conduct should be treated as having ceased. That is the significance of his reference to treatment - the Kingsdons would not allow themselves to undergo treatment, without treatment they would still subjectively find their own position intolerable, and (implicitly) as long as they find that to be the case there was a risk of recurrence of their behaviour.[18]Accordingly it is clear that the trial judge considered the pattern of behaviour and the alleged abatement when considering whether to make a possession order. His judgment cannot be impeached on the ground that he did not.[19]So far as his actual decision on the point is concerned, a decision on that question falls into the category of decisions with which this court will not interfere absent a manifest error of principle, a failure to take a relevant consideration into account or the taking into account of an irrelevant consideration. This particular question, arising in this particular area of the law, is one in respect of which the decision of the trial judge is entitled to particular respect. In this case the judge heard evidence over three days. He heard from a significant number of witnesses – police officers, a representative of the claimants, the Dixons, Mrs Jackson, Professor Hirsch and the Kingsdons’ GP. The mental illness of the defendants posed a particular problem, and HHJ Milligan was plainly, and rightly, troubled by it. His judgment pays particular and detailed attention to the evidence of the doctors. The interests, attitudes and propensities of the defendants were plainly very much in his mind. It is obvious that the historical pattern of their activities must also have been well in his mind on the question of reasonableness, even if he did not specifically refer to it in that part of his judgment. No error of principle can be detected, and all relevant factors were carefully considered.[20]Accordingly, this basis of the appeal fails.

The making of an immediate possession order

[21]The second principal point arising in this appeal is whether or not the making of an immediate or outright possession order was or could be proportionate. The main submission made to us on this was that the order was not proportionate. When thus phrased, it does not clearly raise a basis of appeal. Again, a decision of a trial judge on this is entitled to the respect which this court gives to such decisions, and can only be challenged on the grounds identified above. In order to succeed on this point, the appellants must show an error of the nature to which I have referred.[22]Judge Milligan explicitly addressed the relevant question in paragraphs 67 and 68 of his judgment. I have already set them out above. Miss Ward sought to impeach his decision by relying on certain evidence given by Professor Hirsch that the behaviour that had previously been complained of would be unlikely to be repeated. She also relied again on the fact that most of the objectionable behaviour occurred some time before the possession proceedings and that there had been no further objectionable conduct after the telephone call to Mr Dixon’s employer. The major complaints had, she said, abated. She complained that at this point too the judge did not take into account the abatement that he had found to have existed. She says that the judge also failed to weigh the uncertainty as to what would happen in the future against the seriousness of making an outright possession order and did not sufficiently address the likelihood of continuation of the unreasonable conduct.[23]I am afraid that I find these criticisms of the judge’s judgment to be completely unfounded. The answer to them has already been given above. As I have already pointed out, it is apparent from the second sentence of paragraph 67 itself that the judge had in mind there had been some abatement. It is obvious that the likelihood of a future recurrence is an important (though not necessarily determinative) factor in deciding whether to make an outright as opposed to a suspended order, but it is equally clear that, on a fair reading of the judgment, the judge had that in mind. That is the thrust of paragraph 68. It is couched in terms of the possibility of successful treatment. The evidence about this (which this Court has read) was all geared to the notion of successful treatment which would enable the Kingsdons to live next door to the Dixons without over-reacting to the Dixons’ behaviour. The judge found that the Kingsdons would not accept treatment. That finding seems to be inevitable on the evidence that he received. He had also noted earlier in his judgment that, while the Dixons had been prepared to indulge in a mediation process, the Kingsdons had not. In finding that the Kingsdons would not accept treatment, the judge was in essence finding that their attitude and therefore the likelihood of offending conduct, had not changed. He was therefore plainly not satisfied that there would be no recurrence of the incidents, or some different version of them. That was a decision he was perfectly entitled, if not obliged, to reach on the evidence. In this context the extract from paragraphs 49 and 56 set out above are particularly significant. Accordingly, it is neither right nor fair to say that the judge did not take into account the prospects of abatement on this question.[24]It follows, therefore, that in my view, this ground of appeal also fails.

Conclusion

[25]The consequence of this is that, in my view, this appeal should fail. I would dismiss it. Lord Justice Jacob[26]I agree Lord Justice Latham[27]I also agree.