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

“No, I’d adjourn it. And if they don’t like it, they can appeal. It’s as simple as that…”
(DJ N)
One final way of avoiding the effects of Ground 8 was suggested by one judge, based on
district judges still having administrative responsibility for bailiffs:
“There’s also the other device of directing any warrant that might lie on the file…we
can give administrative directions to the bailiffs not…to execute warrants. So that’s
the device.” (DJ A)
It was not clear whether this was used in practice or effective.
Conclusions
In enacting Ground 8 no doubt parliament thought that it was legislating for what appeared a
straight forward circumstance in which landlords would be entitled to possession.
Nonetheless as the judges all seem aware this is, perhaps surprisingly, a contested area of
law. Many judges referred to there being different views of the law and to a decision from
the Court of Appeal being awaited. Whether the fact that the decision has now been made,
will affect their responses we will have to wait and see. While there was an almost universal
feeling that the use of Ground 8 by housing associations was inappropriate, this did not
necessarily lead to strategies to circumvent the law. After all “the law is the law”.
For some, however, their view of the use of Ground 8 was such that they were prepared to
use strategies to avoid make an outright possession order. Some were prepared to take this
further than others. There were those who would only adjourn on procedural grounds (i.e.
finding fault in the paper work), while others simply asserted the right to adjourn, and
effectively were willing to “dare” the landlord to appeal. A willingness by district judges to
“ignore” the law is not unique to this study. Baldwin (1997, p. 72) noted both a willingness to
investigate consumer credit cases very carefully where it was felt that the lender had been
“conned” morally if not legally, and in one case a refusal to apply the law:
“After the hearing, the district judge confided to the author that, although the relevant
law was clear, he had refused to allow an unscrupulous plaintiff to ‘get away with it’
and exploit the ignorance of the defendant who had foolishly signed the contract.”
The Ground 8 cases are slightly different in that the moral impropriety on the part of the
landlord is less clear, but what is noticeable is the extent of resistance to the use of Ground
8 by housing associations. Given this, it is perhaps surprising given the attitudes of district
judges that the issue has not come before the Court of Appeal sooner, and it is noticeable
that the recent decision involved an appeal by tenants and not the landlord housing
associations.
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