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Injunctions under 1996 Act

(Note that the provisions relating to injuntions under the Housing Act 1996 were substantially amended by the Anti-social Behaviour Act 2003

This page deals with the following matters:
  • "Housing related conduct".
  • The wording of the order.
  • Without notice injunctions under the 1996 Act.

Housing-related conduct

Swindon v Redpath
[2009] EWCA Civ 943

Summary

This case considered the meaning of "housing-related conduct" for the purposes of s153A (1) of the Housing Act 1996.

Facts

D had been a secure tenant of C. C had evicted him on the basis of nuisance; he had carried on a campaign of harassment against his neighbours. After his eviction there were no instances of nuisance for around a year. However, he then returned to the area and further anti-social behaviour ensued and an ASBI was granted against him. The issue was whether there was sufficient nexus between D, the area and his behaviour to bring him within s153A(1); particularly as he was no longer a tenant of C.

Decision

"Housing-related" conduct under the section means conduct "directly or indirectly relating to or affecting the housing management functions of a relevant landlord". The court held: (1) that a broad interpretation should be given to this phrase; (2) that s153A indicates that it is a part of the housing management functions to preserve the peace in the neighbourhood; and (3) that the individuals conduct should be taken as a whole and not piecemeal. Having regard to those factors Rix LJ (at para 55) therefore considered that the Council’s housing management functions:
    ".. easily embrace its sense of responsibility to its continuing tenants and also to owner-occupiers in Warneage Green for the conduct of its former tenant, Mr Redpath, who has pursued his vendetta against his former neighbours irrespective of the loss of his tenancy."

Wording of the order

Manchester City Council v Lee
[2003] EWCA Civ 1256.

In this case (decided under the 1996 Act before the amendments made by the Anti-social Behaviour Act 2003) Mummery LJ considered the wording of the order that should be made:
    "Careful consideration needs to be given by the court in each case to the scope of the injunction which is justified by the evidence. In the exercise of its discretion the court must ensure that the injunction granted is framed in terms appropriate and proportionate to the facts of the case. Thus, if the judge finds that there is a risk of significant harm to a particular person or persons it would usually be appropriate for the injunction to identify that person or those persons, so that the respondent knows the circumstances in which he might be in breach of the injunction, and liable for contempt of court if he caused a nuisance or annoyance to them in the future.

    In order to justify granting a wider injunction against the respondent, restraining him from causing a nuisance or annoyance to, "a person of a similar description," it would normally be necessary for the judge to make a finding that there had been use or threats of violence to persons of a similar description, and that there was a risk of significant harm to persons of a similar description if an injunction was not granted in respect of them." (Paragraphs 38 and 39).
And Chadwick LJ at para 54:
    "It cannot be sensible or a proper exercise of the statutory power to grant an injunction in terms which are not readily understandable by those whose conduct they are intended to restrain. Further, an injunction which leaves doubt as to what can and cannot be done is not a proper basis for committal proceedings."

Without notice injunctions under the 1996 Act

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

In a lengthy judgment the CA has given detailed guidance in relation to ASBIs, including the following paragraphs:
    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.

    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) ... (a case which is also cited in the section on ex parte injunctions in Spry, The Principles of Equitable Remedies (5th Edn, 1997)..):
      "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.
    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.

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