The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
Held: To grant an injunction without notice is to grant an exceptional remedy. As to hearsay evidence: ‘ 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 be right to suspend the possession order on terms as to further breaches of the tenancy agreement and nuisance. The ASBO’s were not established to be necessary, and undertakings should be required instead.
Judges:
Lord Justice Brooke Vice-President Of The Court Of Appeal (Civil Division) And Lord Justice Judge And Lord Justice Dyson
Citations:
Times 23-Mar-2005, [2005] EWCA Civ 287
Links:
Statutes:
Housing Act 1996 153A 153C 153D, Anti-Social Behaviour Act 2003, County Courts Act 1984 77(6)(ee)
Jurisdiction:
England and Wales
Citing:
Cited – Regina (M) v Secretary of State for Constitutional Affairs and Lord Chancellor CA 18-Mar-2004
The making of an interim Anti-Social Behaviour Order not on notice was not an infringement of the subject’s human rights, since the order was limited in time and subject to review by the courts. However, ‘The more intrusive the order the more the . .
Cited – Medina Housing Association v Case CA 16-Dec-2002
The claimant had obtained an order for possession against the defendant for her repeated anti-social behaviour. The court granted in addition to the possession order an injunction restraining the defendant from coming near the premises for a further . .
Cited – Masich v Masich CA 1977
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.
Held: There was nothing to justify turning the husband out of his home without hearing his side: ‘Such a course should be . .
Cited – Ansah v Ansah CA 1977
Ormrod LJ: ‘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 . .
Cited – Practice Note (Matrimonial Cause: Injunction) FD 1978
‘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 . .
Cited – G v G (Ouster: Ex parte Application) CA 1990
An ex parte order was made requiring a wife to vacate the family home immediately and was served on her when she was bringing two of the children of the family home from school.
Held: Lord Donaldson MR: there was no reason why the judge could . .
Cited – Thomas A Edison Ltd v Bock 1912
(High Court of Australia) ‘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 . .
Cited – Solon South West Housing Association Limited v Lisa James Eran James CA 20-Dec-2004
Hearsay evidence is available on an application for an ASBO or the trial of a possession action. . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Cited – Cumming v Danson CA 1942
The court considered what amounted to reasonable alternative accomodation.
Held: it was the judge’s duty to take into account all relevant circumstances as they exist at the date of the hearing. There is a fundamental difference in the Rent . .
Cited – Cresswell v Hodgson CA 1951
The landlord sought possession. The tenant had a controlled tenancy. L offered the tenant another house (one he had built) as alternative accommodation. The rent was higher. The landlord was under pressure from his bank and wanted capital to pay off . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Council of City of Manchester v McCann CA 16-Nov-1998
A threat made against a witness is clearly an insult within the Act, and a threat made as a witness returns home after court is also a contempt even though not strictly in the face of the Court.
Section 118 of the 1984 Act now provides an . .
Cited – Kensington and Chelsea Royal London Borough Council v Simmonds CA 15-Jul-1996
A possession order was properly made against a tenant for the misbehaviour of a family member. . .
Cited – West Kent Housing Association Limited v Davies CA 4-Feb-1998
The court should recognise the seriousness of the case where the Housing Association was doing its best to improve the quality of life for those living on a housing estate, when its efforts included obtaining witnesses as to the tenant’s behaviour . .
Cited – Regina v Parkin (Shane Tony) CACD 3-Feb-2004
The defendant had admitted assault with intent to rob, four attempted robberies, and four false imprisonments. He appealed his sentence of four years detention in a Young Offenders Institution to be followed by a two year anti-social behaviour order . .
Cited – Canterbury City Council v Lowe CA 2001
The defendants had made the lives of a neighbour and his daughter (and his mentally ill mother, who sometimes visited them) ‘a completely misery’. The trial judge had received graphic evidence about the very serious nature of the defendants’ . .
See Also – Moat Housing Group South Ltd v Harris and Another CA 17-Dec-2004
The Housing Association had obtained a possession order against the appellant family, who now sought a stay of execution pending their appeal.
Held: The presence of children in the house meant that the balance had to include consideration of . .
Cited by:
Cited – Lawer, Regina (on the Application of) v Restormel Borough Council Admn 12-Oct-2007
The applicant was joint tenant of a council property. She suffered domestic violence, and said she was advised by the local authority to surrender her tenancy on the basis that they would rehouse her. She did so. The authority refused to provide a . .
Lists of cited by and citing cases may be incomplete.
Housing
Updated: 29 June 2022; Ref: scu.223581