Over the last couple of weeks, I have been instructed on a number of different, and somewhat challenging matters, which have included:
CLOSURE ORDER
An application to extend a Closure Order pertaining to residential premises to prevent the recurrence of anti-social behaviour in the neighbourhood. The complaints which gave rise to the application included alleged drug dealing, drugs paraphernalia being found in the locality and anti social behaviour in the area including shouting, arguing and physical altercations. This behaviour had a significant impact on the other residents – both on their quality of life and them being fearful to leave their homes due to the continuing behaviour. This matter was dealt with in the Magistrates Court. The District Judge granted the application, made pursuant S82 of the Anti Social Behaviour, Crime and Policing Act 2104, to extend the existing order for a further period of 3 months as she was satisfied that the order was necessary to prevent recurrence of:
disorderly, offensive or criminal behaviour on the premises;
serious nuisance to members of the public resulting from the use of the premises;
disorder near the premises associated with the use of the premises.
The Order precluded anyone from entering the premises save for emergency services and the owners staff/agents. Whilst the Court only needs to be satisfied that one of the 3 grounds above is made out, in this instance all 3 grounds were made out. The Defendant was also ordered to pay the costs associated with the application. These orders are frequently sought by Landlords to tackle anti social behaviour, and, if granted for a period of in excess of 48 hours, give rise to an automatic ground of possession.
STRIKE OUT
An application to strike out a claim for personal injuries, which arose from a road traffic accident, on the grounds of “res judicata”. The Claimant in this action, had been the driver of a vehicle involved in a road traffic accident, and proceedings had been issued by the owner of the vehicle, to recover his losses which included vehicle damage and credit hire. She had given evidence at that hearing, and the Judge had found that she had caused the accident.She subsequently issued a separate claim arising out of the same accident, for damages for personal injury sustained – her claim was advanced on the basis that this was a separate action because the parties were different.
CPR 3.4.5 deals with res judicata, which is a portmanteau term used to describe a number of different legal principles, which includes a prohibition on relitigating an issued decided in earlier proceedings and including the principle formulated by Wigram VC in Henderson v Henderson (1843) 3 Hare 100, which precludes a party from raising in subsequent proceedings, matters which could and should have been raised in the earlier proceedings.
The Judge disagreed with the Claimant that this was a separate action because the parties were different. His view was that this was a matter in which the Claimant could have been joined as a party in the previous set of proceedings, or could have issued a separate action at the time and had the 2 matters consolidated and dealt with at the same trial. He agreed with my submissions that, pursuant to CPR 3.4 (2) (b) the Court has the power to strike out a statement of case where “that statement of case is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings”. In order for such an argument to be successful, there has to be an abuse and striking out has to be supportive of the overriding objective. Accordingly he struck out the statement of case.
FORFEITURE ORDER
An application for an account forfeiture order pursuant to S303 Z14 (2) of the Proceeds or Crime Act 2002. This matter was a full day contested hearing in the Magistrates Court. In this matter, funds held in several accounts had been the subject of an earlier Freezing Order pursuant to S303 Z3 of the Proceeds of Crime Act 2002 – the Court having been satisfied that there were reasonable grounds for suspecting that money held in the account (whether all or part of the credit balance of the account)—(a) is recoverable property, or (b) is intended by any person for use in unlawful conduct. As the Defendant was not able to provide evidence to satisfy the Applicant as to the legitimacy of the funds, an application for forfeiture of the monies was made. At the forfeiture hearing, the Court have to be satisfied, on the balance of probabilities (the civil standard) that the money is recoverable property or intended by any person for use in unlawful conduct. Recoverable property is said to be property obtained through unlawful conduct. The Lay Bench, were satisfied, having heard evidence from the witness for the applicant and having had an opportunity to read their witness statement and exhibits showing the investigations that had been undertaken into the legitimacy (or not) of the frozen funds, and hearing submissions from both sides, that an order to forfeit the full amount was appropriate in the circumstances. They commented that the evidence of the prosecution witness was both “cogent and compelling” and that there was insufficient evidence, on the balance of probabilities to substantiate the amounts contained within the bank accounts amounted to anything other than recoverable property.Costs were also awarded in favour of the Applicant.
