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

elieved to be a sign that they were taking the proceedings seriously and that they were
prepared to do something to resolve the problem:
“People who bother to turn up, particularly if they’ve got a job and they’ve got to take
time off work to, to come…you, you start off by wanting to assume they’re genuine
and it’s a good start, yes”. (DJ K)
Conversely, if the tenant did not attend, this could be interpreted as a lack of interest:
“If the tenant doesn’t attend…you then take the view, if they aren’t here they’re not
taking it seriously.” (DJ C)
Evidence of tenants’ commitment to face up to their problems was clearly a very influential
factor in determining judges’ approach to possession hearings. For some judges attendance
was perceived as an indicator that the tenant was taking responsibility for the debt and was
making an effort to help themselves. In these circumstances they were predisposed to take
a more favourable approach to the case, as a number of judges explained:
“They’re clearly taking the proceedings seriously and they’re concerned about their
position and they want to do something to resolve the problem. I’m always
reasonably happy to try to help people who are prepared to help themselves.” (DJ I)
“I mean loath though I am to make an outright order, I'm much more sympathetic to
somebody who’s engaged with the procedure and tried to do something about it.”
(DJ Y)
Equally important was the impact of tenants’ failure to attend and/or to produce evidence
that they had tried to resolve the problem prior to the court hearing. In the absence of
tenants’ active involvement in proceedings a number of judges indicated that they would be
more likely to take a hard line:
“The only reason why I would think it was reasonable to turn somebody out is if they
have made no effort whatever to get their housing benefit claim sorted out or
whatever.” (DJ T)
Lack of engagement with the judicial process was seen by some as a mark of disrespect
which made it more likely that an outright possession order would be ordered:
“It’s really their non-attendance that means it’s more likely there’s going to be an
outright order and their non-attendance, their non-completion of the reply form, their
non-co-operation with the housing officer who may have gone to see them, then
there’s more likely to be an outright order because they’re not here to offer anything.”
(DJ S)
The way in which individual judges measured motivation varied but tenants’ demeanour and
attitude to the proceedings were often commented on and could be critical in determining the
type of order made:
59