Case Study

T C Young - Mitchell Report

Monday 9th March 2009

The House of Lords has issued its decision in the case raised by Anne Mitchell and Karen Mitchell against Glasgow City Council.  This case had the potential to cause significant difficulties to all local authorities and registered social landlords in connection with the manner in which they deal with complaints of antisocial behaviour. 

 

This court action was raised by the wife and daughter of a man who was killed by his neighbour.  Mr James Mitchell moved into his house in Bellahouston Drive, Mosspark, Glasgow in March 1986.  His next door neighbour was James Drummond.  In December 1994, Drummond was playing loud music within his property which woke Mr Mitchell.  Mr Mitchell complained by banging on the adjoining wall.  Drummond retaliated by banging on the wall, shouting abuse and then attending at Mr Mitchell's house.  Drummond was armed with an iron bar and he proceeded to smash windows and the door.   He was arrested.  From that date there were numerous incidents of Drummond behaving in a manner which was violent, aggressive and abusive towards Mr Mitchell.  Glasgow City Council were the owners and landlords of both properties and both Mr Mitchell and Drummond were tenants of the Council.  Mr Mitchell and his family involved all the usual agencies in their attempt to deal with the problems being caused by Drummond.  Between December 1994 and January 2001 numerous complaints were made.  The Council received information from other neighbours of Drummond's behaviour and also received correspondence from local councillors, members of the Scottish Parliament and Victim Support.  On numerous occasions between June 1999 and June 2001 Mr Mitchell himself reported incidents of antisocial behaviour to the Council.  Some of these incidents involved threats by Drummond to kill Mr Mitchell.

 

In 1995 the council interviewed Drummond and gave him a written warning as to his future conduct.  In January 2001 they eventually served a Notice of Proceedings for recovery of possession on him.  On 10th July 2001 the council received information regarding a further incident as a result of which Drummond was arrested.  On 26th July 2001 the council wrote to Drummond inviting him to attend a meeting on 31st July 2001.  That meeting took place and began at about 2 pm on that date.  At the meeting council staff told Drummond that a fresh Notice of Proceedings would be served upon him and they would continue to monitor his behaviour.  He was warned that continuing his antisocial behaviour could result in his eviction.  At the meeting Drummond lost his temper and became abusive towards Council staff.  He then apologised to the staff for having lost his temper.  The meeting concluded and Drummond left the Council office.  Drummond returned home to Bellahouston Drive.  At about 3 pm he violently assaulted Mr Mitchell who died on 10th August 2001 from the injuries received.  Glasgow City Council did not tell Mr Mitchell that they had invited Drummond to attend a meeting on 31st July.  They did not warn Mr Mitchell or the police about Drummond's behaviour at the meeting.

 

Mr Mitchell's widow and daughter then raised an action against Glasgow City council. The family argued that the Council had a duty of care towards Mr Mitchell, both at common law and in terms of the Human Rights Act 1998. They claimed that  if Glasgow City Council had given that warning Mr. Mitchell could have taken steps to avoid Drummond on 31st July 2001.  They also originally argued that the failure of the Council to take eviction proceedings prior to the end of 1999 was also a breach of the council's duty of care towards Mr. Mitchell..  Their case originally proceeded in the Court of Session.

 

This case has now proceeded through all stages of civil procedure.  There have been three separate legal judgments issued.  The first judgment was issued by Lord Bracadale in the Court of Session on 30th June 2005.  In that judgment Lord Bracadale rejected the argument that the Council had any duty of care towards Mr Mitchell. 

 

An appeal was taken to the Inner House of the Court of Session and a judgment was issued there on 29th February 2008.  In that judgment a majority of the judges held that the suggestion that there was a duty of care at common law should be allowed to proceed to a proof where evidence would be led.  Similarly by a majority that judgment rejected the claim under the Human Rights Act.

 

Both of those decisions, namely the rejection of the Human Rights Act claim and the allowing of the common law claim were appealed to the House of Lords.  In a judgment issued on 18th February from the House of Lords all five judges in the House of Lords have indicated that the alleged duty of care claimed by the deceased's family does not exist and they also rejected any suggestion that there was a breach of the Human Rights Act.

This case is probably the most significant judgment in housing management law of the last ten years.  In the House of Lords decision, the leading judgment is given by Lord Hope.  The duties which were claimed to exist on behalf of the Mitchell family were that at common law the Council had a duty:

 

  • to keep Mr Mitchell and the police informed of the steps they wished to take against Drummond
  • to tell Mr Mitchell he might be at real and immediate risk of injury
  • to consider Mr Mitchell's safety when arranging the meeting on 31st July
  • to advise Mr Mitchell that the meeting had been arranged
  • to alert the police that a meeting had been arranged that day
  • to tell Mr Mitchell what had happened at the meeting and of Drummond's state of mind during it

 

Additionally the Mitchell family alleged a contravention by Glasgow City Council of Article 2 of the European Convention on Human Rights.  They argued that by failing to advise Mr Mitchell that the meeting was to take place and of the events that transpired at the meeting the Council acted in a way that was incompatible with Mr. Mitchell's right to life under that Article.  They claimed that Glasgow City Council had therefore acted in a way which was unlawful within the meaning of Section 6 of the Human Rights Act 1998.  The House of Lords therefore had to consider both arguments. 

 

In a lengthy judgment all five judges have rejected both the alleged duties at common law and the claim that Glasgow City Council have breached the Human Rights Act. 

 

At common law, the Mitchell family required to show that the duty to warn Mr Mitchell existed, that it was reasonably foreseeable that harm would occur if the Council  failed in that duty and that it would be just, fair and reasonable to impose that duty upon the Council.  The court concluded that it would not be fair, just or reasonable to hold that the Council were under a duty to warn Mr Mitchell of the steps they were taking. 

 

The court reiterated the general rule that a duty to warn another person that he may be at risk of loss, injury or damage as a result of a criminal act of a third party would only arise where the person who is said to be under that duty has by their words or conduct assumed responsibility for the safety of the person who is at risk.  The court took the view that if such a duty were imposed on local authorities it would prevent them and other registered social landlords from intervening to reduce antisocial behaviour.  The court held that it was desirable that social landlords and other bodies who seek to address the many behavioural problems that arise in housing estates and elsewhere should be safeguarded from legal proceedings arising from alleged failures to warn those who might be at risk of criminal attack in response to their activities.  The court indicated that if such a duty were to exist then the defensive measures which would then be taken against the risk of legal proceedings would be likely to create practices of giving warnings as a matter of routine, many of which would be for no good purpose while others would risk causing undue alarm or reveal the taking of steps that would be best kept confidential.

 

In terms of the argument under the Human Rights Act the requirement upon the Mitchell family was to show that the local authority knew or ought to have known that there was a real and immediate risk to the life of an identified individual from the criminal activities of a third party and that the Council failed to take measures which were within the scope of their powers and which judged reasonably might have been expected to avoid that risk.

 

In his judgment, Lord Hope stated that one must beware of the dangers of hindsight.  The court was required to put itself in the same situation as those who were being criticised were as the events unfolded.  He further indicated that events had to be viewed in their whole context.  He noted that although there was a long history of antisocial behaviour by Drummond, two facts stood out.  The first was that Drummond had threatened to kill the deceased on countless occasions during the previous six and a half years prior to 31st July 2001.  However he had never actually used violence against Mr Mitchell apart from the first incident in December 1994 when a door was damaged and windows were broken.  The second fact was that while Drummond had lost his temper at the meeting with the council staff and was abusive, he was not said to have uttered any threats against Mr Mitchell nor to have been armed with any kind of weapon.  He did not say or do anything at the meeting which would have alerted the Council to a risk that he might have attacked Mr Mitchell when he returned home.   Accordingly there was nothing to suggest that Mr Mitchell's life was at immediate risk.  Indeed Lord Hope suggested there was nothing to suggest that there was any suggestion that Mr Mitchell's life was at risk at all when Drummond left the council office on 31st July 2001.  Accordingly the Human Rights Act argument was rejected.  Lord Hope's position was followed by the other four judges. 

 

Lord Scott of Foscote indicated that "a landlord/ tenant relationship goes nowhere to cast a legal duty on a Council to protect Mr Mitchell from the risk of being assaulted by Mr Drummond".

 

Lord Roger of Earlsferry in his judgment indicated that imposition of a "duty to warn" would tend to run counter to the thrust of the housing legislation which recognises public sector tenants in general as responsible individuals with rights, rather than as a class of people who could not be expected to look after their own interests.  He described eviction as "a slow motion procedure to deal with antisocial behaviour" and that it was clearly not designed to provide "an immediate response to emergencies created by a tenant's criminal behaviour.  Lord Rodger stated that such emergencies were to be dealt with in some other fashion.  He further stated that he could see no identifiable principle on which it would be appropriate to impose liability on the Council for the loss and injury caused to the Mitchell family by Drummond's criminal activity simply because the Council did not warn Mr Mitchell that their meeting was taking place.  He indicated that if there was any public authority which had a duty to prevent criminal violence then that authority was Strathclyde Police.  He also rejected the argument under the Human Rights Act on the basis that Mr Mitchell was not in the custody or control of the Council simply by being their tenant.  The council had not deprived him of his freedom of movement or action or in any other way assumed responsibility for his safety.  He also noted the whole policy behind the introduction of the secure tenancy regime was to free public sector tenants from some of the controls to which they had previously been subjected and to emphasise their independence as individuals with rights over their own homes.  He noted that Councils and Housing Associations would not have and are not meant to have the resources for staff or powers to take effective steps to prevent crimes.  They are resourced on the basis that they are landlords operating within a society where the responsibility for preventing violent crime lies with the police who are given the resources, training and powers to do the job. 

 

The fourth judgment in the case was from Baroness Hale of Richmond.  She agreed with the other judges and indicated that landlords should not be deterred from the responsible use of their powers to deal with antisocial behaviour by the threat of liability for the harm caused by the criminal acts of antisocial tenants.  She stated that antisocial tenants are presumed to be grown ups with minds of their own who can make their own choices on how to behave.  If they act in an antisocial fashion she indicated that the liability for that was theirs and the fact that they have no means to pay for that liability was not in itself a good enough reason to transfer the liability to someone else.

 

The final judgment was from Lord Brown of Eaton-under-Heywood.  In his judgment he indicated that landlords are under no obligation to supervise their tenants and prevent their committing criminal acts. 

 

This judgment will make it clear to landlords that where they take steps to try to reduce antisocial behaviour they are not at the same time creating a risk of liability for damages in their attempts to do so.  Such a risk would only be created in the specific circumstances of a landlord assuming a special responsibility towards a tenant which would lead that tenant to rely on the landlord to provide warnings or take other measures to protect that tenant. 

 

In the normal case of dealing with antisocial behaviour, landlords will have no liabilities to their tenants because of the antisocial behaviour of another tenant.  Copies of the entire judgments are available on line on the House of Lords website (http://www.publications.parliament.uk/) or can be provided by this office.

 

If you would like any further information on the issues raised in this briefing contact

Fiona Greer:  fjg@tcyoung.co.uk, 0131 220 7660
Andrew Cowan: asc@tcyoung.co.uk, 0141 221 5562
Jim Bauld:  jdb@tcyoung.co.uk, 0141 221 5562
Ruth Johnston:  rej@tcyoung.co.uk, 0141 221 5562

Gayle Blaikie:  glb@tcyoung.co.uk, 0141 221 5562

 

Please note that this briefing not a comprehensive statement of the law. Legal advice should be taken on individual circumstances