Positive requirements in ASB injunctions

Daryl Bigwood looks at the lessons from a successful appeal over a judge’s refusal to include a positive requirement in an ASB injunction.

Cobb Warren were recently successful in an appeal against the decision of a District Judge to refuse an application to include a positive requirement in an injunction pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). This took place in October in front of a Circuit Judge in the County Court at Bristol.

Our client sought to include a provision requiring the respondent to engage with support services to help address the underlying causes of the anti-social behaviour the respondent engaged in.

The District Judge at first instance refused the application on the basis that such an order would amount to an order of mandamus (orders of mandamus have, since 2004, been known as ‘mandatory orders’ - they are specific to public law matters) and therefore, pursuant to section 38 of the County Courts Act 1984. The District Judge said that the County Court lacked jurisdiction to make such an order.

The appeal was argued on two points:

1. The order was not an order of mandamus (or mandatory order) as such orders are remedies in public law proceedings only and not private law proceedings; or
2. In any event, even if it were, the 2014 Act creates a separate statutory scheme which enables the County Court to include any positive requirements in an injunction in order to prevent the respondent from engaging in anti-social behaviour.

The Circuit Judge hearing the appeal allowed the appeal on both grounds.

In respects of the second ground, we advanced an argument that the decision in Swindon Borough Council v Abrook [2024] EWCA Civ 221 supported the ground as:

1. The Court of Appeal determined that the Court’s usual case management powers to vary or set aside an order of its own volition did not apply to injunctions under the 2014 Act. This was therefore indicative of the 2014 Act creating its own statutory scheme.
2. The Court of Appeal was considering an appeal from the decision of a District Judge in the County Court and determined, at paragraph 109 of that earlier judgment that a Court should consider making positive requirements. Therefore, the Court of Appeal seemingly accepted that positive requirements were available in the County Court.

Overall, we achieved a good outcome for our client and obtained clarity as to the use of positive requirements. Such requirements can often be more effective in addressing anti-social behaviour, by addressing the causes of the behaviour, rather than simply prohibiting the behaviour itself.

A review of the Court's powers in relation to Anti-Social Behaviour by the Civil Justice Council in 2020 emphasised the importance of including positive requirements in injunctions. One of its recommendations was to increase their use as a way of addressing underlying issue causing Anti-Social Behaviour.

Daryl Bigwood is a Senior Associate at Cobb Warren.