More results...

Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Filter by Categories
Assured Shorthold tenancy
Benefits and care
Housing Conditions
Housing law - All
Introductory and Demoted tenancies
Leasehold and shared ownership
Licences and occupiers
Mortgage possession
Regulation and planning
Trusts and Estoppel
Unlawful eviction and harassment

ASBO in absentia

By J

M v Burnley, Pendle & Rossendale Magistrates’ Court [2009] EWHC 2874 (Admin) (on Lawtel only)

The claimant were two brothers, aged 13 and 14. They were subject to ASBOs which prohibited them from engaging in certain anti-social behaviour in the borough of Pendle. With seven months of the ASBO still to run the family moved to another area and the police (who appear to have obtained the original ASBO) applied to vary the geographic scope of the order.

The brothers instructed a solicitor who appears to have attended the first hearing of the variation application on their behalf. The application was opposed and a trial date set for December 2008.

When the trial came on, neither of the brothers attended, but their solicitor attended on their behalf. One of the brothers was at school (having been taken to school that morning by a taxi arranged by the local education authority) and the other was unable to attend because his mother was indisposed.

The Magistrates’ had to decide whether or not to proceed in the absence of the brothers. They concluded that they should do so. They proceeded to hear the evidence and varied the ASBO in the manner sought by the police.

The brothers applied – successfully – for judicial review of the variation. Langstaff J held that there had been a breach of the audi alteram partem principle (the right to be heard). The reasons for non-attendance were genuine and not designed to frustrate the process of the court and, in those circumstances the Magistrates’ should have adjourned the matter for a short time. It would be a rare case where it was appropriate to proceed in the absence of one party where that party was not intentionally absent.

The variation was accordingly quashed.

I’m not entirely with Langstaff J on this one (which will no doubt cause his Lordship considerable distress). Not only were the brothers represented by their solicitor (albeit he did not have full instructions) but it does not appear that any application to adjourn was made. In those circumstances, I’m not entirely surprised that the Magistrates’ decided to proceed. The rights of the community and the inconvenience to the witnesses must, contrary to the view of Langstaff J, be a relevant consideration (see, by analogy, West Kent Housing Association v Davies (1999) 31 HLR 415, where Robert Walker LJ explains the importance of appreciating the difficulty that a claimant can have in marshal ling evidence and witnesses in ASB cases).

Posted in: ASB | Housing law - All
J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


  1. Marcin

    Any word on whether the Magistrates will be appealing?

    In any case, I think that this one will not be followed. I find it difficult to imagine what benefit the boys could have derived from being personally present, unless it were to give evidence on their own behalves.

  2. J

    No. Neither the Mags nor the police were represented in the High Ct, so it is very unlikely either would appeal. In any event, the ASBOs have lapsed through passage of time

  3. JS

    I always think reliance on the West Kent case shows desperation. Those dicta sit very uneasily in a post HRA world.Many witnesses who allege they are too afraid to attend court are afraid of cross examination rather than intimidation.

    Langstaff J’s decision strikes me as utterly right .

    • J

      I think you’re running two points together there. I entirely agree that many landlords (and judges) are far too willing to accept that people are too afraid to come to court / give their name in witness statements etc and many landlords seem to have this misguided belief that just saying “X is scared” is enough to permit anonymous hearsay evidence into evidence.

      However, that isn’t to say – as I’m sure you’d agree – that there are not some truly unpleasant (and scary) people that landlords have to take action against. A quick flick through the reported cases should be enough to bring that home. In those circumstances, it does seem to me that West Kent v Davies is plainly relevant.

  4. JS

    Not at all and I have acted for some of them !

    My point is that West Kent -v-Davies is sometimes used to argue that you should deprive someone of their home against whom other factors suggest a PPO is appropriate simply because it may be a burden to get witnesses back to court .

    Adopting Sedley LJ’s approach in SCC–v Shaw I struggle to see how alone that can justify an outright order in Art 8 terms .

    • J

      “Not at all and I have acted for some of them !”

      I’m glad you said it. I was wondering how cheeky I could be…



Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.