Solon South West Housing Association Ltd. v James & Anor

Hearsay evidence is admissible in civil possession proceedings involving anti-social behaviour. Its use is compatible with a fair hearing where the court evaluates its weight carefully, accounts for the absence of cross-examination and considers the evidence as a whole.

Whether to suspend a possession order is principally a forward-looking assessment. Relevant matters include any recent improvement, the prospect of future compliance, the tenant’s recognition of past wrongdoing, the interests and fears of neighbours, and the practical difficulty of proving further breaches. A court may conclude that severe past conduct and a continuing denial of responsibility make an outright order necessary and proportionate despite some improvement.

The respondent housing association obtained an outright possession order against its tenants following rent arrears, breaches of tenancy and sustained nuisance or annoyance. Some breaches were admitted, but the tenants disputed the extent of the anti-social behaviour and argued that any possession order should be suspended.

The District Judge accepted direct evidence of violence, abuse, racial harassment, property damage and failure to control the tenants’ children. He treated hearsay complaints from fearful neighbours as corroborative of the pattern established by the direct evidence. He found that only an outright order would protect the neighbourhood.

The tenants appealed from Bristol County Court. They challenged the admission and weight of hearsay evidence under the Civil Evidence Act 1995 and article 6 of the European Convention on Human Rights. They also contended that the judge had overlooked an improvement in behaviour and had wrongly refused suspension.

1. Appeal dismissed. The District Judge had been entitled to admit and rely upon the hearsay evidence. These were civil proceedings, and article 6 created no general objection to the use of hearsay. The decisive question was whether the judge’s treatment of that evidence and the weight assigned to it made the proceedings unfair.
2. Section 4 of the Civil Evidence Act 1995 made the availability of the original maker relevant to weight rather than admissibility. In practical terms, an application to exclude evidence and an invitation to give it no weight could produce the same result. The judge therefore had to decide what weight, if any, the hearsay deserved.
3. The judge had approached that task fairly. He accounted for the absence of cross-examination, confined his material substantially to statements from identified witnesses or anonymous witnesses shown to fear reprisals, and used the direct evidence as his primary foundation. The hearsay was contemporaneous, cumulative and consistent with the pattern independently established by witnesses whom the judge found credible. Identified makers could have been required to attend under rule 33.4 of the Civil Procedure Rules 1998, but no such application had been made.
4. The refusal to suspend the possession order was a permissible exercise of discretion. Suspension is concerned principally with the future. A court should consider improvement in behaviour and the likelihood of compliance, but must also consider neighbours’ interests and fears and the practical difficulty of proving another breach. An appellate court intervenes only where the judge considered an irrelevant matter, omitted a relevant matter or reached a plainly wrong decision.
5. The District Judge had not overlooked the partial improvement after notice was served. He was entitled implicitly to find that it provided no reliable assurance for the future. The severity and duration of the conduct, evidence of continuing problems, the tenants’ failure to control their children, and their persistent denial of responsibility demonstrated no real prospect of compliance. An outright possession order was necessary and proportionate.

Carnwath LJ and Peter Gibson LJ agreed with Mance LJ. The stay on execution of the warrant for possession was lifted, and the appeal was dismissed with costs.

1. Court of Appeal (Civil Division): The tenants’ appeal was dismissed. The court upheld the outright possession order and lifted the stay on execution of the warrant.
2. Bristol County Court: District Judge Bird made an outright possession order on 4 June 2004, embodied in an order dated 12 July 2004, and refused to suspend it.