On 25th February 2021, Deputy District Judge Martynski, in the case of Southern Housing Group Ltd v Stephen Berry, considered the housing provider’s duty to make full and frank disclosure at a without notice hearing.  

Facts of the case 

There was a dispute between the Respondent and two of his neighbours, with serious allegations made by both sides. There was evidence that both the Respondent and his neighbour had mental health difficulties, which have been adversely affected by the ongoing dispute.  

The landlord applied for an injunction on a without-notice basis against the Respondent, which was supported by a witness statement from a housing officer. The injunction was granted in the Respondent’s absence and a power of arrest attached.  

At the return hearing the court considered whether by not disclosing to the judge that the Respondent had a long history of mental health issues and that the Respondent had made serious counter-allegations against his neighbours, they had failed to make full and frank disclosure as they are required to do so at a without notice hearing.  

The judge found that they had failed in their duty to the court and the Injunction was discharged, with the landlord ordered to pay the Respondent’s costs. 

Duty to make full and frank disclosure 

In his judgment the judge found that: 

• The duty of the Applicant is to make full and accurate disclosure of all material facts. 

• The court must be able to rely on the Applicant to present the arguments in a way not just designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments that it can reasonably anticipate the absent party would wish to make. 
• The judge must have confidence in the thoroughness and objectivity of the Applicant’s case. 
• The Applicant must make proper enquiries before making the application. They 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. Sensible limits must be drawn. The primary question is whether in all the circumstances its effect was such as to mislead the court in any material effect. 

Importance 

When drafting an ASB injunction statement always check your records for any information that the judge should be made aware of. 

This includes but is not limited to health issues and cross allegations. 

Applicants have a duty to highlight to the court, if relevant, any counter-allegations, the Respondent’s mental health and/or disability, the duration of the Respondent’s tenancy, and when any complaints of nuisance first arose. 

The Housing Officer’s witness statement cannot be just a rhetorical document, arguing for the imposition of an order, the facts of the case must prove there is an appropriate balance.