diy possessions: surviving pinnock

1. DIY Possessions:Surviving Pinnock District Judge Andrew Thomas Bromley County Court

2. 18 January 2010 Ms L Plover, 10a, Hawk Hill, Featherleigh, Roostershire FFX4 9AT Subject: Your Tenancy 10a, Hawk Hill, Featherleigh As your arrears are over 8 weeks it is the Association�s policy to issue you a notice seeking possession which is enclosed with this letter. Please contact me urgently to discuss your arrears. If they cannot be cleared within 3 months, the Association will normally issue court proceedings to obtain a possession order to protect our position. If you keep up any payments under any agreement, we will not usually enforce it. Yours sincerely, Denise Crane Housing Officer Enclosure (1)

3. Is Pinnock going to make much difference in practice? Situations where Pinnock may arise The Pinnock test Has a Pinnock defence been raised? Summary Hearing Possible Directions Final Hearings Orders

4. Is Pinnock going to make much difference in practice? At present the vast majority of social landlord possession cases are based on discretionary grounds Mandatory situations where Pinnock might be raised are relatively infrequent, (although proposed flexible tenancies will change this)

5. Pinnock cases Local authority tenants Introductory Demoted Insecure Family intervention NTQ by one joint tenant (LB Hammersmith v Monks)

6. Pinnock cases Registered Social landlords Assured Shortholds - s21 Notice Ground 8 Demoted Family intervention NTQ by one joint tenant (LB Hammersmith v Monks)

7. Pinnock cases Reason for ending tenancy likely to be one of the following issues :- Rent arrears Anti Social behaviour Adverse homelessness decision Redevelopment

8. Pinnock cases Probably anti social behaviour cases more likely to have complex factual issues And they are more likely to involve vulnerable defendants

9. The Pinnock test Proportionality (Art 8) Unreasonableness (Wendesbury) Reasonableness (s84 HA 1985,s7 HA1988) Is there much difference in practice?

10. Pinnock cases Supreme Court in Pinnock set the bar very high for the occupier and stated that As a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned Therefore, if the occupier does not raise it, the Court normally will not do so.

11. Has a Pinnock defence been raised? However, in practice, occupiers who attend will see the housing adviser, or will make comments to the effect that the decision is not fair If occupier does not attend, and the papers raise suggestions that the occupier may lack capacity, the Court may have to enquire further Therefore, it may be prudent for the Claimant to include material dealing with the proportionality of its decision in its evidence

12. Summary Hearing Any article 8 defence should initially be considered summarily by the County Court Judge Can the Judge decide the matter at the initial Hearing? WHY NOT ? CPR 55.8(1)(a) provides that it can The matter is to be dealt with summarily, if possible (Pinnock) Judges are deciding on reasonableness at the initial hearing in most cases involving social landlords

13. Summary Hearing If there is sufficient evidence before the Court, it likely that the Court will be able to decide many cases at the first hearing What is sufficient evidence?

14. Summary Hearing Keep records Refer in the particulars of claim to the steps taken Include details in the witness statement in support of the claim and exhibit copies of letters, minutes of meetings etc Update the evidence at the hearing

15. Summary Hearing HHJ Madge�s suggestion � (a)�� public bodies should write to occupants without full security of tenure explaining why they currently intend to seek possession and requiring them within a specified time (say 14 days) to notify the landlord in writing of any personal circumstances or other matters which they wish to be taken into account.� In many cases such a letter could accompany any notice to quit and so would not necessarily delay the issue of proceedings; (b)�� public bodies should consider any representations received, and, if they decide to proceed with a claim for possession, give brief written reasons for doing so; and �(c)�� claimants should attach a copy of their initial letter, any response from the occupant and the reasons for proceeding with the eviction to the claim form.� Such a procedure would not only ensure that adequate reasons are given (the absence of reason was the main reason for finding a breach of Article 8 in Connors).� It would also make it easier for courts to determine whether any wider, more flexible administrative law challenge is seriously arguable.��

16. Summary Hearing The Court of Appeal has ruled that evidence can be dealt with robustly. It is a matter for the court's discretion whether to act on the basis of informal material. �It must be open to [judges] to act without evidence, especially where � the mortgagor is present in court and available to be questioned, and no objection to the reception of informal material is made by the mortgagee�: Cheltenham & Gloucester Building Society v Grant (1994) 26 HLR 703 It is for the judge to assess the weight of the evidence (Cheltenham & Gloucester Building Society v Grant (1994) 26 HLR 703).

17. Directions Cases where the issues not decided at the initial hearing will require directions Again, these may be robust

18. Possible Directions The Claim is allocated to the Fast Track. The Defendant shall file and serve a Defence by 4pm on (2 weeks) The Claimant may by (4 weeks) file and serve a reply to the Defence Both parties shall, by 4pm on (4 weeks), serve on each other the witness statements of themselves and of all witnesses on whom they intend to rely

19. Possible Directions Both parties shall attach to one of those statements a disclosure statement together with copies of all documents required to be disclosed on standard disclosure Any request to inspect the original of a copy document shall be complied with by 4pm on(6 weeks)

20. Possible Directions Both parties shall, by 4pm on (8 weeks), serve on each other any further witness statements of themselves and of all witnesses on whom they intend to rely to deal with matters arising from the witness statements previously served and any documents disclosed No party may rely on or adduce a disclosure statement the evidence of any witness whose statement has not been served in accordance with this Order without further permission from the court

21. Possible Directions Witness statements must: Start with the name of the case and the claim number; State the full name and address of the witness; Set out the witness's evidence clearly in numbered paragraphs on numbered pages; End with this paragraph: 'I believe that the facts stated in this witness statement are true.' (or words to that effect); and be signed by the witness and dated Pre-trial check lists are dispensed with. The Claim shall be listed for trial at 10:00 am on the first open date after (8 weeks) with a time estimate of one day.

22. Final Hearings Likely to be tightly timetabled In cases with multiple incidents Try �sample� allegations which if found for one side or the other are likely to be decisive

23. Orders Even if successful , the order the court may make may fall far short of a dismissal of the claim Article 8 ECHR may justify granting an extended period for possession, suspending any possession order or refusing an order altogether