Landlords seeking possession order – Tenant consenting to order suspended upon terms – Breach of term of order – District judge making possession order – Whether consent order barred under County Court Rules Ord 37 , r 6.1 – Jursidiction of district judge – Whether district judge having sufficient material to make order
On August 28 1989 the defendant became a secure tenant of 307 Summerwood Road, Isleworth, Middlesex, a flat on one of the plaintiff’s large housing estates, Ivybridge Estate. Her four sons were responsible for many incidents of nuisance and annoyance on the estate. The plaintiffs issued proceedings in December 1993 claiming possession, rent arrears amounting to £700 and injunctive relief to restrain further such offensive activity. In December 1996 the parties, having discussed a compromise, agreed the terms of a consent order. The consent order, made on January 23 1997, provided for possession of the premises in 28 days suspended on certain terms, including that the defendant “abide by the terms of her tenancy agreement”. That agreement provided, inter alia, that “you will be held responsible for the behaviour of any other person living at, or visiting, the property”.
Following the making of the order the plaintiffs received further complaints against the defendant’s sons of serious incidents of nuisance. Having written to the defendant’s solicitors on February 21 1997 alleging a breach of the suspended order, on March 17 1997 the plaintiffs requested the court to issue a warrant for possession. The hearing took place before the district judge, who asked whether the defendant was in court and when told not, asked to be and was assured by the defendant’s solicitor that the defendant understood the implications of the order and was aware of the severe consequences which would follow from any breach of it. The district judge signed the order. Neither party’s solicitor realised at any stage that there was a legal obligation on the district judge to satisfy herself that the proposed order for possession was one that she could properly make under section 84 of the Housing Act 1985.
The defendant appealed to the judge, who set aside both the suspended possession order of January 23 1997 and the warrant for possession issued in late March 1997. The plaintiffs appealed contending that the district judge had had sufficient material before her to enable her to reach the view that it was “reasonable to make the order”. It was also submitted that a consent order for possession made in respect of secure residential premises fell within CCR Ord 37 r 6.1, which provided that: “Any party affected by a judgment or final order of the district judge may, except where he has consented to the terms thereof, appeal from the judgment or order to the judge”.
Held The appeal was dismissed.
1. The respondent had not consented to the terms of the district judge’s order within the meaning of CCR Ord 37 r 6.1. The particular character of a so called consent order for possession made in respect of secure residential premises took it outside the appeal bar which Ord 37 r 6 would otherwise present: Wandsworth Borough Council v Fadayomi [1987] 1 WLR 1473 and R v Newcastle-upon-Tyne County Court, ex parte Thompson (1988) 20 HLR 430 distinguished.
2. Proper statutory grounds existed for making the possession order and it would have been reasonable to have made that order in January 1997. However, the district judge had not satisfied herself, by making the necessary inquiry, of the reasonableness of an order on the nuisance and annoyance ground. Although the court would be ready to imply all relevant admissions whenever “consent” orders were placed before it (see Bruce v Worthing Borough Council (1993) 26 HLR 223 per Russell LJ) on the facts, the district judge had not had the material upon which to make an order for possession on that ground under section 84 of the 1985 Act (or, had it been applicable, under section 98 of the Rent Act 1977).
Geoffrey Stephenson (instructed by the solicitor to Hounslow London Borough Council) appeared for the appellants; Stephen Reeder (instructed by Keppe Shaw, of Twickenham) appeared for the respondent.
