Disclosure in without-notice injunctions

A recent County Court case offers a reminder of the importance of being thorough and objective while discharging the duty of disclosure in without-notice injunctions, writes John Murray.

The case of Southern Housing Group Ltd v Stephen Berry concerned an application for a without-notice anti-social behaviour injunction, submitted by Southern Housing Group Ltd on behalf of their tenants, against Mr Stephen Berry. The background to this application was typical of an ASB injunction application: a dispute between Mr Berry and his neighbours had led to allegations both ways. Southern Housing Group then became aware of these events and decided to take action against Mr Berry. An injunction was granted with a power of arrest attached.

Throughout these events, there was evidence that both Mr Berry and his neighbour were suffering from mental health difficulties, and that these had worsened due to the dispute. There were a number of facts relating to this of which Southern Housing Group were aware, but failed to disclose to the Court during the without notice hearing. Key matters that were not disclosed were:

• A medical report stating that Mr Berry had a long history of illness and was diagnosed with major depressive disorder. That report specifically stated that a recent deterioration in Mr Berry’s health was “directly linked to ongoing altercations with his immediate neighbours, which have left to Mr Berry struggling with a persistent sense of threat.”
• Counter-allegations by Mr Berry concerned nuisance and, in respect of one complainant, threats to kill. The claimant knew that these complaints had been passed to the police and knew that the police were investigating.

As a result, concerns whether the association had satisfied its duty of full and frank disclosure were raised, and a new hearing before Martynski DDJ (‘the Judge’) was issued to consider this.

In his judgment, it is important to note that the Judge references some mitigating factors on behalf of Southern Housing Group in respect of both matters. Regarding the medical report, there was evidence that Southern Housing Group had considered the implications of this and made a reasonable decision to continue with the application. Regarding the counter- allegations, there was evidence that Southern Housing Group had attempted to contact the police, but been unable to do so through no fault of their own. In short, this information was not disregarded, merely not disclosed.

The Judge highlighted a broad list of considerations, which should be taken to be indicative of what is likely to be relevant in a without-notice matter:

• An applicant has a duty to make full and accurate disclosure of all material facts.
• Any argument must be presented in an even-handed manner, drawing attention to evidence/arguments that it can reasonably anticipate the absent party would make.
• The Judge must have confidence in the thoroughness/objectivity of the applicant’s case.
• An applicant must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences.
• Material facts are those which it is material for the Judge to know in dealing with the applications as made. The duty requires an application to make the court aware of the issues likely to arise.
• Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. The primary question is if in the circumstances its effect was such as to materially mislead the Court.

On the facts, the Judge held that the undisclosed matters were highly relevant, due to their direct relationship with the events at hand, and that the court should have been alerted to them. It was highlighted that a reliance in the Housing Officer’s accompanying witness statement on Mr Berry’s alleged threats to the complainants, and the subsequent “serious detrimental effect” that this had on their mental health, made plain that the omitted disclosure should have been seen as relevant.

As a result, the Court discharged the previously granted injunction and made a costs order in favour of Mr Berry.

In doing so, the Judge also noted that this case did not seem to be of the urgency for which a without-notice application was necessary, and it could have been dealt with on-notice. If this had been the approach taken, it is likely the injunction would not have been overturned.

This is a stark reminder to housing associations that disclosure is a duty to the court, and should always be treated as such. The mere fact that consideration was given to facts, even if decided to be irrelevant, or not to prejudice the merits of a claim, was irrelevant. These should still be disclosed – or the outcome may mirror the above.

If, then, a without notice injunction is made, full and frank disclosure will likely require registered providers to make plain any mental health difficulties (or any ailments in the same vein) suffered by the defendant. As a general rule, if the facts would be relevant for the complainant, then they are likely to be relevant for the defendant, too.

However, housing associations may wish to consider whether the situation truly requires a without-notice injunction, as doing so unnecessarily could open an unwanted avenue of challenge from the defendant, in certain circumstances.

John Murray is a partner and head of the Social Housing Group at Ward Hadaway.