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

Chapter 9: Conclusions
Where the law gives judges a wide-ranging discretion as in housing possession cases, it is
inevitable that there will be issues as to how consistently such discretion is exercised. As
illustrated in Chapter 6, housing possession cases involve judges making decisions about a
key aspect of people’s lives and judgements about their ability and willingness to pay rent in
the future which are necessarily to a certain extent speculative. In these circumstances,
unless rigid criteria are set out which leave no room for individual decision-making, there will
inevitably be differences in the way judges approach cases.
A summary of the findings
This research showed that there were different patterns of decisions both between courts
and between individual judges in courts. Various possible explanations for the variations
between courts were explored:
differences between courts in levels of arrears;
the familiarity which claimants have with their local district judge, leading to a tailoring
of orders sought which they know the judge is likely to grant;
the prevalence of housing benefit problems;
attendance by the defendant at court;
the availability of housing advice for defendants, both in the community and at court.
It is not possible to show the different weight these factors have, but all are likely to play a
part in the differences observed. These factors may lead to the development of a particular
court culture, possibly also affected by procedural factors, such as pressures on listing and
the use of pro formas developed by each court.
There was also considerable variation between individual judges’ decisions. The qualitative
data from interviews with district judges sought to examine whether any of the following
factors could explain these differences:
length of experience;
type of legal practice before appointment;
attitudes to training and updating.
No clear patterns emerged, however.
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