Moat Housing Group- South Ltd. v Harris & Anor

An anti-social behaviour injunction made without notice is exceptional. The court must be satisfied that immediate relief is needed to avert a risk of significant harm, and must confine the order to relief that is necessary and proportionate. An immediate ouster from a home and exclusion from a large area require especially compelling justification.

For a possession claim based on nuisance, the statutory matters relating to neighbours must be considered, but they do not displace all relevant circumstances. Those circumstances include the interests of the tenant and children, and a landlord's failure to use promised preventative measures. An ASBO requires identified, serious and persistent anti-social acts and a finding that the order is necessary for protection.

The respondent registered social landlord obtained, without notice, anti-social behaviour injunctions against Ms Hartless, its assured tenant, and Mr Harris. The orders required Ms Hartless and her children to leave their home immediately, excluded the appellants from a substantial part of Liphook, and included powers of arrest.

Following possession proceedings, His Honour Anthony Thompson QC found breaches of Grounds 12 and 14 in Schedule 2 to the Housing Act 1988. He made an immediate possession order and four-year ASBOs against both appellants. The appellants challenged the without-notice injunction, the possession order, and the ASBOs. The central issues were the permissible scope of intrusive without-notice relief, the treatment of hearsay, the reasonableness and suspension of possession, and the necessity of the ASBOs.

1. The appeals were allowed in part. The court declared that the immediate ouster and exclusion provisions in the district judge's without-notice order should not have been made. A court may make a without-notice ASBI only exceptionally. It should ordinarily be guided by the approach in section 45(2)(a) of the Family Law Act 1996: there must be a risk of significant harm if no immediate order is made, and the relief must be no wider than necessary and proportionate. The evidence could justify short-term restraints against violence, nuisance, contact with potential witnesses, and inadequate parental control. It could not justify immediate eviction from the home or exclusion from the area.

2. A power of arrest could properly support the limited without-notice injunction. The court held that, as a matter of discretion, it should be attached only where there had been actual or threatened violence against a person within section 153A(4) of the Housing Act 1996 and there was an immediate risk of significant harm to such a person. Its scope should be confined accordingly.

3. Hearsay evidence was admissible in both the possession proceedings and the ASBO application. Its weight had to be assessed under section 4 of the Civil Evidence Act 1995. Although the trial judge could have addressed the reliability factors more transparently, the direct evidence and findings provided no basis for ordering a retrial.

4. The possession grounds were established and it remained reasonable to make a possession order. However, the trial judge had wrongly failed to consider the interests of Ms Hartless and her children, and the landlord's failure to give warnings or pursue the preventative steps contemplated by its tenancy agreement and housing guidance. The Court of Appeal nevertheless upheld the reasonableness finding because of the seriousness of the proven conduct.

5. The possession order was suspended on conditions directed to future nuisance. The departure of the more serious neighbouring offenders, the absence of further serious incidents, the family circumstances, and the landlord's earlier inaction materially affected that discretionary decision.

6. The ASBOs were set aside. The judge had not identified the proven post-commencement acts or demonstrated the necessary persistent and serious anti-social behaviour by the adult appellants. The court substituted undertakings, or ASBIs to like effect, without time limit while either appellant remained a resident or visitor on the estate.

• Court of Appeal (Civil Division): Allowed the appeals in part in [2005] EWCA Civ 287. It declared the without-notice ouster and exclusion provisions unjustified, suspended the possession order, and set aside the ASBOs.
• Southampton County Court: His Honour Anthony Thompson QC made an immediate possession order against Ms Hartless and four-year ASBOs against both appellants on 3 December 2004.
• Aldershot and Farnham County Court: District Judge Ackner made the without-notice anti-social behaviour injunctions and attached powers of arrest on 29 October 2004.