Moat Housing Group- South Ltd. v Harris & Anor, Court of Appeal - Civil Division, March 16, 2005, [2006] QB 606,[2005] 2 FLR 551,[2005] 4 All ER 1051,[2005] HLR 33,[2005] 3 FCR 123,[2005] Fam Law 544,[2005] EWCA Civ 287,[2005] 3 WLR 691 - Case Law - VLEX 52569948

Moat Housing Group- South Ltd. v Harris & Anor, Court of Appeal - Civil Division, March 16, 2005, [2006] QB 606,[2005] 2 FLR 551,[2005] 4 All ER 1051,[2005] HLR 33,[2005] 3 FCR 123,[2005] Fam Law 544,[2005] EWCA Civ 287,[2005] 3 WLR 691

Actores:Moat Housing Group- South Ltd. v Harris & Anor
Fecha de Resolución:March 16, 2005
Emisor:Civil Division
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Neutral Citation Number: [2005] EWCA Civ 287

Case 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

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16 March 2005

Before :

LORD JUSTICE BROOKE

Vice-President of the Court of Appeal (Civil Division)

and

LORD JUSTICE JUDGE

and

LORD JUSTICE DYSON

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Between :

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Jan Luba QC & Charles King (instructed by R.J.Hawksley & Co) for Mr Harris on his appeal against District Judge Ackner's order

Jan Luba QC & Cheryl Jones (instructed by South West Law) for Ms Hartless on her appeal against District Judge Ackner's order

Jan Luba QC, Cheryl Jones & Charles King (instructed by South West Law) for the First and Second Appellants on the appeal against the deputy judge's order

Ashley Underwood QC & Philip Glen (instructed by Dutton Gregory) for the Respondents on all three appeals

Hearing dates: 20 January and 23 February 2005

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INDEX

Lord Justice Brooke: This is the judgment of the court.

Part 1 The evening of 29th October 2004

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.

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...

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