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

on the role of judges under the existing legal provisions, and consideration of how, if at all,
the law should be changed.
The Law Commission’s initial discussion paper (2002) considered whether discretion should
be more structured because of criticism that “the outcomes of court process are insufficiently
certain” (para. 12.13). At para. 12.16, the Commission accepted that there is an argument
that the discretionary powers of the court should be more structured, with a list of factors to
be taken into account by judges. Subsequently, in their final report the Law Commission
(2003) noted, at para. 9.83, that there were widely expressed concerns about how judges
exercised their discretion on reasonableness and recommended the introduction of a more
structured discretion.
This study was commissioned by the Department for Constitutional Affairs in January 2004,
in part to inform the Law Commission review process. The outline for the project sought:
“qualitative research to examine the approach of district judges to possession
proceedings with the aim of identifying the key influences on decisions to grant,
suspend, adjourn or refuse possession. The research should also examine the
perceptions of possession proceedings of key stakeholders in the outcomes of
housing litigation such as social landlords, solicitors representing landlords and
tenants, and advice organisations.”
The key questions which the research set out to examine were:
What factors influence the orders which judges make in housing possession cases
and how far do these accord with the perceptions of stakeholders?
How far is there a consistency of approach between district judges?
What criticisms, if any, do key stakeholders have of the way in which judges
exercise discretion in housing possession cases?
Methodology
The primary objective of the study was to conduct qualitative research into the approach of
judges to decision-making in possession cases. In order to understand how judges make
their decisions we have adopted a three-fold approach. First we wished to ground the study
in the reality of the experience of regular court users. Thus we commenced with focus
groups of these users to examine their experiences. Secondly, gathering our own data on
the approach of judges involved observing decision-making and recording the outcomes of
cases (the latter essentially a quantitative technique). However, as illustrated in Chapter 2,
the decision-making process in such cases can be very quick, and given the time pressures
involved judges do not generally give a reasoned judgement as to why they have made a
2