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

On this basis, 20 interviewees would have granted the order requested, two would have
granted an outright order and two would have adjourned the case. The scenario was then
varied to have the claimant requesting an outright order – eight interviewees would, on this
basis, have granted an outright order on the same facts (six of whom would previously have
granted a suspended possession order).
However, these responses, when supplemented by the interviewees’ reasoning, suggest
that it is not necessarily the request which is important. Many interviewees on both sides
(outright/suspended) regarded this scenario as a borderline case, which could be decided
one way or the other on its own facts. Indeed, none of the observations made by
interviewees suggested that the request by the landlord had any bearing on the outcome.
Other factors, such as the non-attendance of the tenant and the level of arrears assumed
greater significance:
“If they haven’t been substantially reduced, or if they’ve even gone up, I suppose it’s
a possibility. It depends, I think, exactly how much information you’ve got about
them.” (DJ Q)
“[The tenant is] not there and hasn’t made any offer – [the order] brings them to the
surface… And in my view it’s a kindness to them at the end of the day, because they
know where they stand. …Well it actually makes them understand that the house
has to be the first priority and not the children’s Christmas present or whatever it may
be.” (DJ T)
“I would follow the same approach, give it maybe slightly longer than I would
[normally]. But I would make an outright order. I think it’s probably the only way of
hopefully frightening the tenant to at least come, make an application.” (DJ F)
This suggests that the request for a particular order has an effect only to the extent that the
request itself must be considered against the facts. In other words, the request raises the
question, which must be considered in the usual way. When an outright possession order is
requested, for example, it might bring certain factors, such as the appearance of the tenant
at court, to the fore.
Next, the different ways in which our interviewees spoke about this relationship, together
with the different possibilities opened by the nature of the ‘repeat player’ claimant, might
suggest that the correlation between claimants’ requests and the actual outcome might be
distributed unevenly between judges. This was also a suggestion raised by the defendant
representatives in our focus groups. We drew on our observation data to test this
assumption. Although the number of cases observed for each district judge was small, and
could not therefore be subjected to robust testing, the data does offer a hint that there is
45