The exercise of judicial discretion in rent arrears cases - Sheffield ...

Others were, however, prepared to go further. One simply suggested that Ground 8 cases
were put to the end of the list:
“The old way of looking at it was not to hear any evidence and adjourn it, but the
recent dicta of the Court of Appeal suggest that that’s wrong... So I suppose the way
I would now deal with it is…by putting the claimant out to the end of the day and
suggesting that…I might not reach him. I don’t know. There’s always going to be a
way.” (DJ B)
This sort of approach was designed to put pressure on landlords not to insist on using
Ground 8. Some judges clearly sought to persuade landlords either to reach an alternative
agreement with the tenant or to not rely on Ground 8, but rather to proceed on the
discretionary Grounds 10 and 11. This could be combined with very close scrutiny of the
documents:
“I tend to say to the housing officer... ‘Which ground are you proceeding on?’
meaning only Grounds Ten and Eleven…and we’ll have to look at the papers very
closely to see that everything is in order, which it never is. Often the agreement’s
undated, it’s not stamped, and they tend to say ‘Ten and Eleven.’” (DJ P)
Most commonly reference was made to using adjournments. For most there was an
awareness that any adjournment must be granted prior to any evidence being heard
(although as has already been noted there was some dispute as to the legality of this).
Some were aware that adjourning was something that they perhaps were not entitled to do
legally.
“I attempt not to hear it on the first occasion if I possibly can think of any excuse for
adjourning it, to give the tenant a chance to try and bring the arrears down. I know
what the law says, and I know I shouldn’t.” (DJ O)
This general use of adjournments was also illustrated in the responses to Scenario 4. The
fact that there was a potential housing benefit claim led a majority of the judges (15/26) to
state that they would adjourn the case. For some the fact that there was a potential
backdated housing benefit claim was important:
“Well, you’d hope that the duty representative who knows these things leaps to his
feet straight away before the housing officer can utter a word and says, ‘This is an
application for an adjournment.’ It’s more difficult if they’re not represented, of
course, because you often don’t know until you’ve got into it that that is what it is,
although obviously you can see from the papers it’s a Ground Eight. I think we’d all
try to adjourn it...if there is a reasonable prospect that there’s going to be some
backdated housing benefit. Assuming the application’s made right at the beginning,
before you’ve heard any evidence, I think we would try to ask penetrating questions
to have evidence that the claim for backdating has been made, that there’s a
reasonable prospect of it being granted.” (DJ Q)
An extremely robust attitude was expressed by some judges to the fact that they may not
have power to make an order:
92