In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
Section 21 (7) of the Act states that:
“In deciding whether to grant an injunction under section 1, a court may take account of conduct occurring up to six months before the commencement day.”
The commencement day for Part 1 of the Act is 23 March 2015, so six months before this is 23 September 2014.
In Birmingham County Council v Pardoe, the High Court found that, as long as it was proved that the Defendant had engaged in anti-social behaviour after 23 September 2014, evidence of conduct prior to 23 September 2014 could still be taken into account when deciding whether or not it is just and convenient to grant an injunction. The Judgment can be found by clicking here.
As landlords will be aware, the Act requires the following two conditions to be met before an injunction can be granted:
- The court has to be satisfied that the Defendant had engaged, or threatened to engage, in anti-social behaviour; and
- It is just and convenient to grant an injunction.
The Birmingham County Council v Pardoe appeal revolved around the interpretation of s.21 (7) of the Act, which states that the court "may take account of conduct occurring up to six months before the commencement day". The Defendant argued that the court was therefore precluded from taking into account any conduct prior to 23 September 2014.
The facts were that the Claimant local authority issued a claim against the Defendants. It was alleged that the Defendants had engaged in anti-social behaviour over a number of years by targeting old or vulnerable people and charging them inflated amounts for unnecessary and sub-standard work. There were 49 allegations.
The Defendants applied to exclude 27 of the 49 allegations on the basis that they had taken place before 23 September 2014. The application was dismissed as limiting the conduct that could be considered would lead to “absurd results”.
In relation to the two conditions that had to be met before an injunction was granted, it was concluded that conduct prior to 23 September 2014 could not be considered for the purposes of satisfying the court that the Defendant had engaged, or threatened to engage, in anti-social behaviour (condition 1). However, the conduct could be considered for the purposes of satisfying the court that it was just and convenient to grant an injunction (condition 2). The Defendant then appealed and the appeal was dismissed.
The Judge had been correct to hold that the literal interpretation of section 21 (7) of the Act would cause absurd results. The Judge had been wrong, however, to limit the consideration of conduct prior to 23 September 2014 to the second condition.
Evidence prior to 23 September 2014 can be considered both for the purposes of satisfying the court that the Defendant had engaged, or threatened to engage, in anti-social behaviour (condition 1) and for the purposes of satisfying the court that it was just and convenient to grant an injunction (condition 2). There must, however, be some conduct after 23 September 2014 for the court to be able to make an order.
Evidence prior to 23 September 2014 could be particularly relevant in relation to condition 1 to answer a defence of innocent error or to show similar previous conduct.
- Landlords do not have to limit possible anti-social behaviour relied upon in an injunction to conduct occurring after 23 September 2014 but must include some conduct after that date.
- Older conduct may be particularly useful if it shows a pattern of behaviour or contradicts a Defendant’s explanation.
- Obviously the earlier the incident, the less useful or relevant it may be.
For more information
Please contact Helen Tucker or any member of the Housing Litigation team on 0121 212 7400.
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