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

Decision-making axis
Examination of the diverse influences illustrates the complex ways in which interactions
depend in part on judges’ personal interpretations and values, which in turn informs the
assessment of the credibility of evidence presented. The very complexity of the network of
influences defies a simple explanation in which different factors could be ranked in terms of
importance. It is however, possible to conceptualise the decision-making process in terms of
a number of interrelated axes which represent a continuum of approaches.
The continuum of approaches is characterised by on the one hand by legalism, a reliance on
the framework of contract law and recognition of the role of the judiciary in debt
management. In contrast the opposite end of the spectrum is characterised by pragmatism,
a concern with social welfare issues and the primacy of the home. Where individuals place
themselves within these continuums is informed by both macro and micro factors including
personal attitudes and beliefs which in turn may be influenced by the amount of knowledge,
experience and training received.
Narrowing of discretion
Another characteristic of decision-making which is given a very wide discretion is the need
for the decision-maker to narrow this. We see this in the use of rules-of-thumb in both
relation to levels of arrears (see Chapter 7) and also to the use of warrants for possession
(see Chapter 8).
The narrowing of discretion is also evident in the development of a relationship with
claimants. While it is evident that judges do not simply slavishly follow the request of
landlords, Chapter 6 illustrates how an out-of-the-ordinary request can be a trigger for a
closer look than would normally be the case.
Conclusions
What this suggests is that there can be no “easy” way to achieving consistency between
judges. Even where factors are consistently taken into account, this will not necessarily lead
to the same outcome. The weight and effect of a particular factor will depend on how the
judge approaches cases more generally and where s/he sits on the different axes we have
identified. Chart 14, below seeks to represent the complexity of the decision-making process
and to describe some of the specific categories of individual and structural factors that
influence outcomes in possession hearings.
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