In writing this article I am indebted to Gilles Peaker, a Solicitor who writes excellent housing related blogs under the guise of “Nearly Legal”. He recently published an appraisal of this significant decision on his blog on 8th  July 2016. I write as a civil mediator rather than a lawyer and what I set out below should not be construed as legal advice.

in this case the Court of Appeal considered two instances where possession proceedings had been instituted against two previously unconnected tenants by City West Housing Trust (the Trust), a social landlord.

The outline facts of the two cases are broadly similar. In both the Trust issued possession proceedings in the County Court, essentially alleging that the tenants’ respective properties were being used for the cultivation of cannabis. In both cases, the tenants denied that they had anything to do with this. In both cases, the court saw fit to make suspended possession orders and from this it can be inferred that at least in part, their contentions and denials were not accepted.

In each case, the court made a possession order. However, in both instances, the court exercised its discretion not to make an order granting the Trust immediate possession. Instead both orders were suspended. Accordingly, the tenants were permitted to continue living in their respective properties but their occupancies  were made conditional on them each observing the terms of their tenancies and what were termed “third parties” keeping away. Additionally, in at least one of the cases, provision was made for the Trust to inspect, something that appears to have been initiated by a judge rather than any of the parties to the action.

Both cases were referred to the Court of Appeal  which laid down detailed guidelines as to how judges hearing possession cases should exercise their discretion. In so doing it considered a plethora of issues including the following: – the extent of any associated illegality, the genuineness of the remorse demonstrated by a wrongdoing tenant and the resources available to the landlord.

These guidelines are by no means unhelpful and particularly as the vast majority of the possession orders made in the County Court on a day today basis are suspended, not least because in practice, many first instance judges are reluctant to make outright possession orders. Some will feel that the law governing the making of suspended possession orders has been clarified although in Massey there appears to have been some disquiet on the part of the Trust about the  inspection option. My one criticism is that in an otherwise quite comprehensive judgment, at a time when in England and Wales the higher courts are increasingly warning litigants about the perils of embarking on costly litigation, in Massey, the Court of Appeal made no reference either to Alternative Dispute Resolution or more specifically to mediation.

In practice, although allowance must be made for cases in which first instance courts have no discretion and are required to make an outright possession order immediately, in many instances the court does have to exercise its discretion – even in cases where very serious wrongdoing is alleged. When issuing possession proceedings and pursuing their cases to court, charitable, public and private sector landlords will generally be satisfied with suspended possession orders and initially at least will not press for anything more. Both they and their tenants will understand that it the terms of such an order are broken e.g. where a tenant fails to pay both rent currently due and instalments in respect of rent arrears that have been ordered by the court, the process of securing the tenant’s eviction will be relatively straightforward.

What has all this got to do with mediation you ask? Is there scope for mediation in cases where tenants are considered to have breached the terms of their tenancies?

In practice, and not least because court fees are so high, applications to the County Court for possession are expensive, both to commence and to pursue, even in instances where individual cases are dealt with at brief hearings and where substantive defences are not put forward. Although when possession orders are made landlords are invariably awarded costs, it is relatively rare for them to fully recover such monies. In cases involving public or charitable landlords, any losses will perhaps inevitably be made good from public funds.
There will inevitably be scenarios such as those considered in the Massey case where a tenant is accused of very significant wrongdoing and the landlord may feel that nothing short of court proceedings will suffice. However, in my experience as a housing lawyer who worked on “both sides of the fence”, most tenants are not wantonly culpable and not infrequently find themselves being cast as wrongdoers in circumstances where they have been inadvertent or find that matters are beyond their control. Some tenants will have genuine counterclaims but in reality, the combination of a lack of financial resources and legal aid cutbacks will often prevent them from defending themselves.

Generally, there are no pre trial reviews in possession cases and in practice very little time is allocated to individual cases. This means that those who are not legally represented, be they tenants or indeed landlords, may be significantly disadvantaged. This is because the formal, often complex and emotionally charged atmosphere of the busy courtroom does not offer unrepresented people an adequate opportunity to defend themselves or give appropriate assurances as to future conduct.

In many instances, including in what might be termed serious cases, “wrongdoing” tenants may find that they do not have adequate opportunity to explain themselves or to demonstrate the extent of any remorse. It may be argued that in most cases warnings will have been given before possession proceedings are started and landlords will feel that they need the “security” of a suspended possession order.

I suspect that in the vast majority of cases, the threat of court proceedings will be sufficient to ensure future good conduct on the part of any “wrongdoing” tenant and a properly conducted, mediated agreement will more than suffice. In many cases the issues will be relatively straightforward. Individual mediations need not  necessarily last for more than two hours and in practice will be much cheaper to conduct than issuing court proceedings.

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A mediated settlement which will give both landlord and tenant much more flexibility and allows scope for the inclusion of measures such as the post hearing inspections that were considered by the Court of Appeal in Massey. A tenant who without good reason did not adhere to a mediated settlement that he/she had voluntarily entered into would probably not attract the sympathy of a court that subsequently heard his or her case.

Mediation gives much better opportunities both for tenants to express contrition or remorse and safe in the knowledge that they can be open and candid. A landlord’s housing officer or other representative will be well placed to carefully evaluate what is said and consider whether any apologies or reassurances given are genuine. Tenants with valid grievances or counterclaims will be able to express them in simple terms and the chances are that in mediation, it is more likely that agreements will be reached that the interested parties are happy with and will adhere to. Mediators scrupulously maintain their independence and because they do not have a judicial role, the onus and responsibility for
dispute resolution is placed on the parties including either landlords or tenants who may be guilty of inappropriate conduct of one form or another.

One other possible option is for provisions to be included in the Civil Procedure Rules requiring judges considering possession actions, and by implication other civil actions, to consider whether mediation might be appropriate and quite possibly to adjourn proceedings for this purpose. This would give individual landlords an assurance that if for some reason a mediation fails, then they         have the “fallback” option of pursuing the court proceedings.

Apart from anything else, at a time when the UK appears to be experiencing straightened circumstances, the just and fair process that civil mediation is will ensure a good, sound common sense process and considerable savings of both time and money