Byrne & Anor v Poplar Housing and Regeneration Community Association Ltd

A first-instance decision on relief from a debarring order may be overturned only for an error of principle or because it falls outside the generous ambit of reasonable judicial discretion. In assessing relief, the court may consider the history of delay and non-compliance, its effect on witnesses, the public resources and court time required for a further hearing, and the fact that the underlying allegations have already been fully tested in related proceedings. Previous findings are not binding where the parties differ and the issues are formally distinct, but they may be highly relevant to the discretionary assessment. Where possession is sought, the court must also address reasonableness and the appropriate form of order. A party who neither asks to give further evidence on those issues nor offers safeguards against repetition of the conduct cannot readily complain that the court decided them on the evidence available.

The appellants, brother and sister, were joint assured tenants of a property transferred to the respondent housing association. The respondent brought possession proceedings under grounds 12 and 14 of Schedule 2 Part II to the Housing Act 1988, relying on alleged anti-social behaviour.

Before the possession claim was determined, the allegations had been examined in magistrates’ court closure-order proceedings and on appeal to the Crown Court. In the possession proceedings, the appellants repeatedly failed to comply with directions requiring disclosure and witness statements. The county court made an order debarring them from defending, refused relief from that order, and made an outright possession order. The appeal concerned whether relief was wrongly refused and whether the possession order was made without a fair opportunity to address reasonableness and the form of order.

1. Appeal dismissed. The discretion whether to grant relief from the debarring order could be overturned only for an error of principle or where the decision was plainly wrong, outside the generous ambit of a proper exercise of discretion. The judge’s errors concerning the first appellant’s disclosure list and the second appellant’s disclosure explanation did not undermine the decision.
2. The repeated failure to serve witness statements, provide requested disclosure and progress the proceedings was a serious and inadequately explained breach. The judge was entitled to consider the lengthy delay, its effect on the respondent’s witnesses, the burden of a further publicly funded trial, and the fact that the allegations had already been fully tried in the Magistrates’ Court and Crown Court. Those prior proceedings were not binding in the possession claim, but the tested credibility findings and the appellants’ acceptance that the respondent would probably succeed on the factual allegations were relevant to the discretionary decision.
3. The court was entitled to refuse relief after considering the human-rights implications. The appellants’ home rights had to be considered alongside the neighbours’ rights and the serious infringement caused by anti-social conduct. The appellants had been excluded from the property, offered no assurance against future anti-social activity, and expressed neither contrition nor apology.
4. The challenge to the possession order failed. Counsel below had not sought permission for further evidence or an adjournment on reasonableness or on whether the order should be outright, suspended or conditional. The judge had witness statements and the Crown Court transcript, and was entitled to make an outright order on that material. No part of the order of 7 April 2011 was set aside.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 832, the appeal from the Central London County Court was dismissed.
• Central London County Court: HHJ Bailey refused relief from the order debarring the appellants from defending and made an outright possession order on 7 April 2011.