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

These quantitative findings reflect the qualitative experience of observation. The
researchers remarked on the difference made by the district judge to the atmosphere and
proceedings in the court room. This too was the experience of focus group participants. For
example, one district judge at London court was regarded as being “quite aggressive
towards landlords”. If there was any problem with the paperwork, (e.g. where the claimant
had forgotten to delete one of the options on the court forms, or was unsure who had served
the notice), this judge would simply refuse to hear the case and ask the claimant how they
wanted to progress. In particular, this judge was concerned to ensure that the claimants had
done everything they could to contact the defendants.
Qualitative interviews were conducted with three of the district judges and one deputy district
judge observed in this court. These also demonstrated that differences existed in the
practice between the judges. There were clear differences between them on questions of
procedure and substance. For example, three interviewees preferred oral evidence,
whereas one preferred it in writing. One district judge made clear that he had a sliding scale
of the evidence required depending on the order requested, whereas the others varied on
whether they consciously had a mental checklist of the evidence they required to see. In
addition the degree of attention given to the defendant’s behaviour was different. When
asked whether the defendant’s behaviour in court affected the outcome, a range of
responses was given from these interviewees:
“I do very much try to take into account that people do get nervous, that it is a huge
issue for them, it’s their home and they can’t be...there isn’t much that’s
more…worrying than losing your home. And to try and understand and remember
that some people…become aggressive, some people become quiet, some people
laugh when they’re under stress, and I try to factor that in.” (DJ E)
“I think with the demeanour and attitude of the tenant and what they say and the
impression you form of them does actually have quite a bearing, yes. I can’t pretend
otherwise.” (DJ J)
As regards the substance, it was noticeable that, although there was conformity in their
answers to a number of the scenarios included in the interview, some did elicit different
responses. For example, in answering the variant to question 1 (see Appendix 2) where the
tenant’s arrears were £495, two interviewees would have granted an outright order, and two
would have granted a suspended possession order:
“As long as I’m satisfied that they’d done everything they can and that by adjourning
it there’s nothing else they can do.” (DJ E)
“I would probably still make an outright order, but bearing in mind that presumably
this is a case where there is still going to be discretion to suspend the warrant, so
that's sort of a fall-back. You can make an outright order, hoping that if he has got
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