Briefing on using Injunctions

Transcription

1 Briefing on using Injunctions Contents Pros and cons of using injunctions 2 Injunctions for breach of the terms of the tenancy 3 Injunctions for anti-social behaviour or unlawful use of premises 3 Injunctions using local authority powers 4 Injunctions against children 4 Obtaining an injunction 5 Court hearing 6 Exclusion Orders and Power of Arrest 7 Breach of an injunction 8 Knowledge test 9 Page 1

2 Pros and cons of using injunctions Introduction Local authorities or social landlords can apply for injunctions, depending on the circumstances, against tenants or non-tenants. Injunctions are most often used to deal with serious incidents, protect victims or witnesses from actual or threatened violence and exclude perpetrators from an area. Injunctions can either be 'final' (part of the decision of the court after all the issues have been heard at trial) or 'interim' (made at an early point in the case before all matters have been heard). Most injunctions are interim, providing an immediate remedy. Advantages of injunctions The advantages of injunctions are: They can be used when urgent action is required (they can be obtained within 48 hours). Even for less serious cases, applications for an injunction can usually be heard within two weeks. There is no statutory requirement for consultation with other organisations. In exceptional circumstances injunctions can be granted without giving any prior notice of the legal proceedings to the perpetrator. Unlike Anti-social behaviour orders, injunctions can be used where the victim is a family member. Disadvantages of injunctions The main disadvantage is that, in legal terms, they can only order the perpetrator to stop doing something. For example they may be used to stop someone making a noise or preventing officers from inspecting a property. Injunctions are not normally available against a perpetrator under 18 years old. Technical point! It is quite rare for an injunction to proceed to final trial because if the interim injunction has been breached then the landlord will usually seek possession, and the possession order will overtake the injunction proceedings. Page 2

3 Injunctions for breach of the terms of the tenancy When a tenant has broken the terms of the tenancy agreement, this can be used as a 'cause of action' for the landlord to stop that behaviour by means of a court injunction. To break the terms of the tenancy agreement a tenant must do something that is specifically prohibited, for example, making excessive noise, harassing other residents or keeping animals. If the tenancy agreement makes the tenant responsible for the actions of those residing in or visiting the tenant's property, it may be possible to get an injunction against the tenant based on the behaviour of those people. Injunctions for anti-social behaviour or unlawful use of premises Introduction 'Anti-social behaviour injunctions' can be used against both tenants and non-tenants who cause (or threaten to cause) nuisance or annoyance to tenants or others in the neighbourhood. The injunction may control behaviour towards a particular individual, to particular groups of people (e.g. staff of an organisation, residents in a particular street) or the general public. Types of behaviour The behaviour complained about must directly or indirectly relate to, or affect, your organisation's housing management functions. The conduct must be causing nuisance or annoyance to someone: with a right (of whatever description) to live in or occupy your organisation's housing or other housing in the neighbourhood (meaning "the whole of the housing accommodation owned or managed by a relevant landlord in the neighbourhood and any common areas used in connection with the accommodation"); or who is engaged in lawful activity in or in the neighbourhood of the organisation's housing; or who is employed in connection with the landlord's housing management functions. Page 3

4 Injunctions against unlawful use of premises can be applied for even if the tenants or others have not yet been convicted of unlawful activities on the premises, such drug dealing, prostitution or handling stolen goods. Technical point! There must be some connection between the conduct complained of and the management of a landlord's accommodation. Injunctions using local authority powers Local authorities have the power under section 222 of the Local Government Act 1972 to take legal proceedings for 'the promotion or protection of the interests of the inhabitants of their area'. They can use injunctions to prevent public nuisances, for example drug dealers who are trading on a housing estate. It is possible to go to court for a 'section 222 injunction' against non-tenants even if the anti-social behaviour complained of is also a crime. Local authorities have the power to apply for an injunction against a non-tenant who fails to respond to a noise abatement notice made under the Environmental Protection Act 1990, particularly when criminal proceedings may take some time to be heard. Technical point! In general if the behaviour can be dealt with by an Anti-social behaviour order it is wrong to use a section 222 injunction instead. Injunctions against children The courts will not normally grant injunctions against anyone under the age of 18. The order would be useless since the means of enforcement available against adults - fines, sequestration of assets or imprisonment - cannot be used against children and young people in almost all cases. Page 4

5 The exception to this is where the authority can provide evidence to the court about the income of a young person (for example, those aged 16 or 17 who are employed) and that there is a realistic possibility of enforcing any breach of the injunction by means of a fine. Tip! If the tenancy agreement includes a term indicating that parents must ensure their children are not a nuisance then it may be possible to obtain an injunction against the parents for breach of the tenancy agreement. Obtaining an injunction Documentation To apply for an injunction you will need to provide the court with the following documents: 1. Statement of Claim: sets out the legal grounds for the injunction ( the cause of action') and the factual case against the defendant. 2. Sworn witness statements: set out the factual evidence that backs up the stated case. These are not affidavits, which must be sworn before a solicitor or commissioner for oaths. 3. Terms of the injunction: set out the draft terms, making them sufficiently clear so the defendant knows exactly what he or she would have to do and spelling out the behaviour complained about. The terms of an interim injunction should be proportionate as a means of avoiding the harm that is feared. Notice to the defendant Normally, once the papers are lodged with the court where the defendant lives or the behaviour occurred, the court sets a date for the hearing, which gives time for the defendant to be served with copies. You should usually give the defendant 2 clear days' notice of an application for an injunction. The exception to this is very urgent cases (for example, involving violence) where the application is made without notice being given to the defendant. This is an exceptional remedy. It should be used only in very serious circumstances, for example, where there is a significant risk that the defendant will cause harm to people if the injunction is not made. Page 5

6 When a 'without notice order' is made the court must allow the defendant the opportunity to make representations regarding the injunction at another hearing. If the defendant does not wish to contest the order there will be no need for any further hearing. Technical point! A without notice' injunction is also known as an ex parte' injunction. Court hearing Presenting evidence The hearing takes place on the basis of the written evidence that the court has, and it is therefore vital that this is well presented. If possible you should include direct evidence of the behaviour that is being complained about, although sworn statements that are based only on hearsay are often sufficient to obtain an interim injunction. It is not necessary to prove the entire case to obtain an interim injunction. You must prove that 'there is a serious issue to be tried' and the 'balance of convenience' lies in granting the injunction. When you apply for an interim injunction to enforce compliance with the tenancy agreement, the balance of convenience' almost always lies in granting the injunction. Giving undertakings It is quite common that when faced with an injunction application a defendant will give an undertaking to the court, e.g. to comply with the tenancy terms. An undertaking has the same effect as the court making the injunction, although a power of arrest cannot be attached to an undertaking. When an interim injunction is sought it is usual for the applicant landlord to have to give an undertaking that they will pay damages if the case is lost by the landlord. When a local authority is acting in a law enforcement' capacity (for example, seeking an anti-social behaviour injunction), there is no requirement for an undertaking about damages to be made. Remember! There are 2 types of undertakings that can be given one by the defendant and one by the landlord. Page 6

7 Exclusion Orders and Power of Arrest An injunction can be made more powerful when the court adds an Exclusion Order or the Power of Arrest. Exclusion Order An Exclusion Order can be attached to an anti-social behaviour injunction to prevent the defendant from entering a particular area. The order might be given where the conduct includes the use of violence or threats of violence; or there is a significant risk of harm, ill-treatment or abuse of one of the people that the injunction seeks to protect. An Exclusion Order can also be attached to an injunction sought by a local authority or social landlord for breach of tenancy where the tenant has caused nuisance and annoyance, provided the authority or landlord can show there is actual or threatened violence or a significant risk of harm. Power of Arrest Normally no action can be taken to enforce an injunction until after it has been breached and the case returns to court. However a Power of Arrest' can be attached to an injunction with the result that the police can arrest the perpetrator if they have reasonable cause to suspect the perpetrator is in breach of the injunction or otherwise in contempt of court. A Power of Arrest can be attached by the court to: an anti-social behaviour injunction or an injunction for breach of tenancy where the tenant has caused nuisance and annoyance, provided the authority or landlord can show there is actual or threatened violence or a significant risk of harm. Tip! It is very unusual for the court to use an Exclusion Order to exclude people from their own home. Page 7

8 Breach of an injunction The method for seeking punishment for breach of an injunction is for the local authority or social landlord to apply for committal proceedings against the defendant (i.e. that the court should order the detention of the person in prison for a period). The defendant must be personally served with the documents for the committal proceedings, including a notice that states how the injunction has been broken. The court must be satisfied 'beyond reasonable doubt' (i.e. the criminal court standard of proof) that the defendant has breached the terms of the injunction. If the breach is proved to this standard, the defendant can be fined or imprisoned for up to two years. The most likely outcome of a first single breach is a term of imprisonment that is suspended. Page 8

9 Knowledge test 1. Which of the following statements about injunctions are true? (pick one) a) Injunctions can never be granted without giving prior notice of the legal proceedings to the perpetrator. b) Injunctions cannot be used where the victim is a family member. c) Injunctions can only order the perpetrator to stop doing something. d) Injunctions require consultation with other local organisations. e) Injunctions cannot be obtained against a perpetrator under 18 years old. f) Injunctions cannot be obtained against non-tenants. 2. What is an exclusion order? (pick one) a) An element of an injunction which prohibits the defendant from entering a particular area. b) A requirement on the defendant to vacate their property. c) An order which allows the prosecution to temporarily withhold the terms of the injunction. d) The opposite of a without notice ( ex parte ) application. e) An application for an interim order. 3. How much notice should you usually give a defendant before applying for an injunction? (pick one) a) 2 days b) 3 days c) 7 days d) 9 days e) 14 days f) 21 days g) 28 days Page 9

10 4. What must be shown to obtain an interim injunction? (pick one) a) That there is a serious issue to be tried and, beyond reasonable doubt, the defendant committed the anti-social behaviour. b) That there is a serious issue to be tried and, on the balance of probability, the defendant committed the anti-social behaviour. c) That the injunction will not provoke the harm it sought to avert and, beyond reasonable doubt, the defendant committed the anti-social behaviour. d) That the injunction will not provoke the harm it sought to avert and, on the balance of probability, the defendant committed the anti-social behaviour. e) That the injunction will not provoke the harm it sought to avert and the balance of convenience lies in granting the injunction f) That there is a serious issue to be tried and the balance of convenience lies in granting the injunction. 5. Which three documents must you provide to a court to apply for an injunction? (pick three) a) The Statement of Claim. b) Sworn witness statements. c) A without notice order. d) A draft of the terms of the injunction. e) A copy of the tenancy agreement. f) Evidence that the defendant is over 18 years old. g) An exclusion order. h) Evidence that other organisations have been consulted. Answers: 1 c; 2 a; 3 a; 4 f; 5 a, b, d Page 10