Boyd v Incommunities Ltd

Anonymous hearsay is not inadmissible in civil possession proceedings merely because its maker is not identified or available for cross-examination. Its weight must be assessed by reference to all relevant circumstances under the Civil Evidence Act 1995, including the reasons for non-production, multiple hearsay, possible motives, collaboration, contemporaneity and any attempt to impede proper evaluation.

A court may rely on such evidence where anonymity is reasonably explained by fear and the evidence is materially supported by other evidence. A judge need not recite every statutory factor if the judgment shows that the substance of the reliability assessment was undertaken.

A social housing landlord obtained a suspended possession order against a tenant of an assured tenancy. The order was based on rent arrears and findings of anti-social behaviour under Grounds 10, 12 and 14 of Schedule 2 to the Housing Act 1988. The anti-social behaviour findings relied partly on three anonymous witness statements.

The Bradford County Court accepted the evidence and imposed tenancy-compliance and rent-payment conditions. The tenant appealed, contending that reliance on anonymous hearsay was unfair under Article 6 of the European Convention on Human Rights and that the findings should be set aside. The central issue was whether the evidence was admissible and, if so, whether it had been given proper weight.

1. Appeal dismissed. The finding of anti-social behaviour and the suspended possession order were upheld.
2. Hearsay evidence is admissible in civil proceedings under section 1 of the Civil Evidence Act 1995. Although the maker of a statement relied on for the truth of its contents will ordinarily be identified, the established practice in possession proceedings permits anonymous hearsay. Anonymity does not create a rule of inadmissibility.
3. The decisive question is weight. Section 4 requires the court to consider all circumstances bearing on reliability, including the practicability of producing the maker, contemporaneity, multiple hearsay, motives to misrepresent, editing or collaboration, and any attempt to prevent proper evaluation. The authorities, including Moat Housing Group South Limited v Harris and Hartless [2006] QB 606, Solon South West Housing Association Limited v James [2004] EWCA Civ 1847 and Welsh v Stokes [2007] EWCA Civ 796, supported that approach.
4. The Recorder had identified the direct evidence, considered the witnesses’ fear, the tenant’s convictions for violence and intimidation, the fact that the witnesses came from different households, the absence of an apparent motive to lie and the corroborative effect of the tenant’s own admissions and the investigator’s evidence. The absence of contemporary complaints was reasonably explained by fear. His failure expressly to list each section 4(2) factor did not invalidate the assessment because its substance had been addressed.
5. The court also confirmed, applying Sheffield City Council v Hopkins [2001] EWCA Civ 1023, that conditions relating to rent arrears and other appropriate conditions could be imposed on a suspended possession order without formal proof of conduct warranting the condition, provided there was sufficient prima facie material.

1. Court of Appeal (Civil Division): appeal dismissed. The court upheld the Recorder’s findings and the suspended possession order.
2. Bradford County Court: Mr Recorder Salter made a suspended possession order based on rent arrears and anti-social behaviour under Grounds 10, 12 and 14 of the Housing Act 1988.