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By S S
28/07/2021

Not so full and frank disclosure

Southern Housing Group Ltd v Stephen Berry (County Court at Clerkenwell and Shoreditch, 25 February 2021) Deputy District Judge Martynski (Transcript here)

The facts of the case followed an all too familiar format. There was a neighbour dispute between Mr Berry and two of his neighbours. Serious allegations were being made on both sides. Complaints had been made to Southern Housing Group Ltd and to the police. The police were investigating both Mr Berry and his neighbours in relation to threatening behaviour. There was evidence that both Mr Berry and his neighbour had mental health difficulties, which were being seriously exacerbated by the ongoing dispute.

The Housing Association, Southern Housing Group Ltd, decided that Mr Berry was the problem. They applied for an injunction on a without-notice basis. The application was supported by a witness statement of a housing officer. The injunction was granted in Mr Berry’s absence and a power of arrest attached.

At the return date for the injunction, the issue of whether the housing association had failed to make full and frank disclosure at the without notice hearing was raised. Directions were made to a hearing to consider this issue and what, if anything, the court should do if there had been such a failure.

The matters that the housing association were aware of at the without notice hearing, but did not disclose to the judge, were:

· Mr Berry had a long history of mental-health issues. A medical report which the housing association had received stated that his mental health had deteriorated as a result of the ongoing altercations with his immediate neighbours, which had left Mr Berry struggling with a persistent sense of threat.

· Mr Berry had been making counter-allegations against his neighbours. These were serious, including a complaint about a threat to kill. The complaints had been passed on to the police and were being investigated.

Martynski DDJ set out the requirements of the duty to make full and frank disclosure, as enumerated in Tugushev v Orlov [2019] EWHC 2031. In summary:

· The duty of an applicant for a without-notice injunction is to make full and accurate disclosure of all material facts.
· The court must be able to rely on the party who appears alone to present the argument in a way not just designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments that it can reasonably anticipate the absent party would wish to make.
· Full disclosure must be linked with fair presentation. The judge must have confidence in the thoroughness and objectivity of the applicant’s case.
· An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences.
· Material facts are those which it is material for the judge to know in dealing with the applications as made. The duty requires an application to make the court aware of the issues likely to arise.
· Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn. The primary question is whether in all the circumstances its effect was such as to mislead the court in any material effect.

Applying this to the case at hand, the Martynski DDJ found a failure to make full and frank disclosure:

15. … it seems to me in general and in my experience over the years of dealing with these cases, the fact that the first defendant had been suffering from mental-health issues up until at least very recently had a relationship to problems that he was having with his neighbours is pretty relevant if in the knowledge of the claimant. That becomes, to me, more significant, because, of course, what we are also not told on that first application is that he is making counter-allegations against those who accused him, he was having problems with those and the police were involved in the allegations that he was making… I do not think this is a case of overwhelming the court with detail; I think these are matters that in any sense in a case like this are highly relevant, facts that the court should be alerted to on a without-notice application…

17. Further, I think there is something in the points that have been added. Whilst it is obvious on the face of the papers presented to the judge that the first defendant had been resident for over 20 years (and that is obvious because it gives the start date of the tenancy), that I do not see anywhere brought into general consideration in balancing this out. For my part, dealing with any kind of housing case, I would always take a look at when the tenancy began, how long that tenant has been maintaining their tenancy. I then look at… if it is a nuisance case, when the nuisance started. All of these things are little pointers and relevant.

Martynski DDJ went on to quote from the housing officer’s witness statement, criticising it as appearing to present “a highly partisan point of view, not the balanced approach that is required in a case like this, obviously within reasonable bounds.”

Martynski DDJ concluded that this was poor practice on the housing association’s part, and could not be classed as “innocent”. The interim injunction was discharged:

23. … one effect of this injunction may well be to increase [Mr Berry’s] sense of injustice in this matter, which I think it some extent is procedurally well founded… I am also concerned now that I know about the various cross-allegations that there might be a sense of betterment and encouragement on the part of the other protagonists if I continue with an injunction against one party where there cross-allegations of this kind. There is potentially a problem to be caused to the claimant in discharging the injunction but … [this is] not one of my main considerations, and so, on balance and with some hesitation, I have decided to discharge that injunction…

Martynski DDJ further observed that he did not consider this to have been an appropriate case for a without notice application in the first place, given there was no pressing urgency.

21. … This had been rumbling on for some time, clearly to-ing and fro-ing, and this is an application that could have been made on notice.

The case is a timely reminder for housing associations that without notice applications for anti-social behaviour injunctions should only be made where truly necessary. And if they are made, full and frank disclosure will generally require housing associations to highlight to the court, if relevant, any counter-allegations, the Defendant’s mental health difficulties (or other disability), the duration of the Defendant’s tenancy, and when any complaints of nuisance first arose. It is not appropriate for a housing officer’s witness statement to be a rhetorical document arguing for the imposition of an order, without there being appropriate balance. The consequences for the housing association in failing to discharge their duties to the court in this case were stark: the injunction was discharged and they were ordered to pay the Defendant’s costs.

This is also a timely reminder for those who represent tenants. It may be common practice for anti-social behaviour injunctions to be made at without notice hearings on the basis of partial information, but in the right case, it is worth challenging this.

Mr Berry was represented by Alice Irving  of Doughty Street Chambers and instructed by GT Stewart Solicitors.

 

 

SS is a barrister practising in housing, discrimination and related public law.

2 Comments

  1. Archie Maddan

    I had a similar experience last year representing a HA tenant in an ASB injunction matter. We had to make explicit disclosure requests and fight attempts to make huge redactions (on the basis of confidentiality of the neighbouring complainant!!) before we got sight of the relevant files, which disclosed a fairly lengthy history of cross allegations. Housing Associations and their tame lawyers are playing with fire on these issues, as the Post Office are discovering in a different context. Disclosure, especially in without notice injunctions, is a duty not a tool to be employed to spin your own case. Who were the lawyers for the HA in this case by the way?

    Reply
  2. Sarah Steinhardt

    It’s not just disclosure. It is absolutely routine to go without notice, and absolutely routine to seek power of arrest. I don’t think I have had hardly a single case where those things did not happen. And I have NEVER been provided with a note of the hearing in accordance with the duty on representatives to provide a note ‘as soon as practicable’ – see e.g. Interoute Telecommunications v Fashion Gossip. Judges condone an approach whereby it is enough for a housing officer to give a witness statement saying they have received complaints without identifying from whom, and to then simply ask for the injunction.

    Reply

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