Renting Homes: The Final Report - Law Commission

PART 5
POWERS OF THE COURT
INTRODUCTION
5.1 The last Part considered the rules relating to the termination of occupation
contracts. This Part deals with the powers of the court 1 in relation to possession
claims. For the most part, the recommended scheme replicates the effect of the
current law. There are however two important reforms we recommend.
5.2 First, we received widespread criticism both in submissions to the Commission
and in comments made at public meetings about judicial inconsistency. There
was considerable feeling that too often it took too long for a party to proceedings
to get a final order from the court. Given the complexity and variety of
circumstances that come to court, especially in possession proceedings, it is
unreasonable to expect complete uniformity and predictability of outcome.
Nonetheless we think that there is a case for providing judges with some
additional framework within which to exercise their discretion. This Part sets out
our recommendations on structured discretion.
5.3 Second, we floated some radical ideas about the possible abolition of suspended
possession orders and their replacement with hearings more focussed on the real
issues landlords were usually concerned about, in particular the payment of
arrears of rent. Reaction to these ideas was generally hostile, though some
consultees saw the logic of what we were proposing. Here we recommend a
power to set up pilot studies for dealing with rent cases, to test whether a new
approach might in fact work.
5.4 Since we published Renting Homes 2 it was agreed that we should undertake a
more wide-ranging review of housing problems and disputes. We have recently
published an Issues Paper on these matters. 3 This new project does not remove
the need to implement the recommendations in this Part.
POSSESSION CLAIMS
5.5 The basic outline of the law on the powers of the court in possession claims
follows existing legislation. As noted, the principal change we recommend is that,
when exercising their discretion, the approach to be adopted by judges should be
structured, as currently happens in nuisance and anti-social behaviour cases.
The structuring of discretion is discussed below. 4
1 Cl 231(1) defines court as a county court or the High Court. In practice, the vast majority of
housing possession cases are dealt with in the county court. The Bill also provides that
provisions in this Act are subject to s 1 of the Courts and Legal Services Act 1990, which
deals with the allocation of business between the High Court and county courts: cl 231(2).
Power to make rules of court is also conferred: cl 231(3).
2
(2003) Law Com No 284.
3 Housing: Proportionate Dispute Resolution: An Issues Paper (2006) available on the Law
Commission website at http://www.lawcom.gov.uk/docs/issues_paper.pdf.
4 See below, at paras 5.31 to 5.42.
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