[2005] EWCA Civ 287; [2006] QB 606; [2005] 3 WLR 691; [2005] 4 All ER 1051; [2005] HLR 33; (2005) Times 23 March
Grant of an injunction without notice an ‘exceptional remedy’; guidance on grant of injunctions; approach to hearsay evidence; ASBOs
From May 2001 Ms Hartless rented a house from the claimant housing association on an assured tenancy. She lived there with her four children, who in October 2004 were aged between six and 14. She was estranged from Mr Harris, the children’s father, but he visited frequently. On 29 October 2004, without any prior notice or other warning, Moat obtained without notice anti-social behaviour injunctions (ASBIs) under Housing Act 1996 ss153A–E (as amended) from District Judge Ackner. The orders provided that Ms Hartless should leave the house by 6.00 pm that day, should not enter part of the village where she lived and should exercise proper and reasonable parental control over the children to prevent them from behaving in an anti-social manner. A power of arrest (Housing Act 1996 s153C) was attached. Similar orders were made against Mr Harris and two of Ms Hartless’s neighbours. (The neighbours subsequently vacated their house and took no part in the proceedings.) Most of the evidence before the district judge related to the neighbours. There was some evidence that Ms Hartless and Mr Harris had made threats against other people living on the estate. There was also evidence that two of the children had been involved in some incidents with the neighbours’ children. The claimant’s representatives, accompanied by police and a television cameraman, called at the house at about 9 pm that evening to serve the orders. The police declined to enforce the order and Ms Hartless obtained a stay from Stanley Burnton J at 1.30 am that night. HH Anthony Thompson QC (sitting as a deputy circuit judge) made ASBOs against both defendants on 3 December 2004. An outright possession order was also made. On 16 December 2004, Brooke LJ granted permission to appeal and a stay.
Brooke LJ gave the judgment of the court on the substantive appeals:
1)The grant of an injunction without notice is an exceptional remedy:
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 … 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.
After reviewing family law authorities on ouster injunctions, Brooke LJ said that when deciding whether to exercise their discretion to make ASBIs without notice, judges should follow the guidance given in Family Law Act 1996 s45(2)(a).
2)On the evidence, it would properly have been within the scope of the district judge’s discretion to have made without notice non-molestation type orders restraining Mr Harris and/or Ms Hartless from contacting any witnesses; prohibiting them from causing nuisance or annoyance; and directing them to exercise proper and reasonable parental control over two of their children. However, it was neither necessary nor proportionate to make the ouster and exclusion orders. Those elements of the district judge’s order ‘should never have been included’.
3)It is ‘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’.
4)The district judge was properly entitled to attach a power of arrest to the order protecting named persons from harm or for restraining acts of nuisance prior to the on notice hearing the following Thursday.
5)There is nothing wrong in a without notice order being for a duration of six months, provided that it is of a non-intrusive type (such as a typical non-molestation or non-nuisance order) and the on notice hearing takes place timeously.
6)Although courts have power to make ouster orders and/or exclusion orders without notice if the facts are sufficiently serious to warrant such a draconian order, very great care is needed. Furthermore, judges making such orders 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).
7)It is now well established that hearsay evidence is available on an application for an ASBO or the trial of a possession action, but ‘the willingness of a civil court to admit hearsay evidence carries with it inherent dangers in a case like this’. Rumours abound in small housing estates, and it is much more difficult for judges to assess the truth of what they are being told if the original makers of statements do not attend court to be cross-examined on their evidence. In this case, the 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. More attention should be paid by claimants to the need to state, by convincing direct evidence, why it was not reasonable and practicable to produce the original makers of statements as witnesses. If statements involve 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. However, there were no reasonable grounds for setting aside the possession order and ordering a retrial because of the hearsay point;
8)Although it was reasonable for the judge to make a possession order, having regard to the children’s good school reports, the absence of any criminal records or any serious record of police involvement with this family, and favourable testimonies that were given about the defendants, the Court of Appeal concluded that it would be right to suspend the possession order on the terms that there are no further breaches of the tenancy agreement.
9)In relation to the ASBOs, the court expressed no view on ‘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’ Crime and Disorder Act 1998 s1(1)(a).
10)ASBOs were inappropriate on the facts of the case, and some form of undertaking as to future conduct, backed by a penal notice was all that the situation required. In particular, the judge never identified the conduct on the part of Mr Harris which warranted the making of an ASBO against him. There was not the evidence of ‘persistent and serious anti-social behaviour’ on the part of Ms Hartless or Mr Harris which justified an ASBO. The judge’s most serious explicit findings against either of them stemmed from the very unpleasant events of a single night. The ASBOs were accordingly set aside.
See now: Anti-social Behaviour, Crime and Policing Act 2014