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

Most of the district judges felt that they were ruled by the court administrators on the
question of listing. Although in some courts there was evidence of discussions between
judges and the court manager leading to changes in listing practices, one judge was clear
that there was limited room for manoeuvre:
“Each court manager has to put in a return as to how efficient they have been…in
complying with this listing requirement, so there’s no mercy. And it’s just a question
of resources, quite honestly.” (DJ I)
In the interviews, judges were asked about the impact of the changes in the Civil Procedure
Rules, and whether this had any effect on the outcomes of possession cases. One district
judge summarised the current procedure as “all very much a matter of the case being judgeled”
(DJ B). However, these changes seemed to be less significant than the changes in
landlord practice which have led to most claimants not being legally represented. When
neither party is legally represented, it becomes more important for the judge to pick up any
points of law and to ensure that all the requirements for possession have been met.
Standardised recording forms. It might be thought that pro forma records could provide
an aid to consistency; however, we found that these forms were not standard for every
county court. All the courts we visited had their own ‘tick box’ form used by district judges to
record evidence and details of the hearing and the order made, in each case. In London and
Northern 1, these pro formas were identical. When completed, they provide a useful record
of the hearing: which parties attended; whether they were represented and by whom; any
order made, and on what grounds. The forms also acted as a prompt to the district judge to
obtain salient facts such as the date of the tenancy agreement, the date notice was served,
the amount of the arrears, and the rent level, both gross and net (of housing benefit) before
the making of the order. In West Country court a variant was used, possibly an earlier
version of the one already described. It included fewer details for a suspended possession
order, no details of possession orders made on mandatory grounds, and fewer facts: just the
weekly rent and the amount of the arrears.
The pro forma used in Northern 2 is very different from those used in the other three courts.
As well as providing for a record of the parties and their representatives, the form allows the
district judge to tick the sentence: “Defendant has been at court and agreed to order”. This
of course records information given to the court by the claimant, rather than any evidence
given by the defendant, implying that although the tenant had attended the court building,
s/he had left before the actual hearing following a meeting with the claimant landlord. There
is no tick box on the Northern 2 court pro forma for recording details of the tenancy
agreement or notice served, although there is space to note current rent and whether this is
30