Doherty v Birmingham CC [2008] 3 WLR 636 left us all wondering about the form and limits of a challenge to summary possession proceedings. My attempt at smuggling proportionality into a public law defence settled, for instance -good for the client, rather frustrating for me.

But now we have  Bedfordshire CC v Taylor & Ors [2008] EWCA 1316 to look foward to. This was an application for permission to appeal to the CoA that started as a defence in the County Court, on Article 8 grounds, to a claim for possession by the LA freeholder against trespassers (apparently on similar, but not identical, facts to Kay v Lambeth). The defence was initially based on, as the Court of Appeal puts it, ‘the hope’ that Doherty in the Lords would adopt McCann v UK.

Post Doherty, the appeal was pursued on the grounds that

it is said by the appellants that the decision in Doherty adds a material gloss to Kay; in particular, it is said that, contrary to the majority decision in Kay, it now enables the personal circumstances of the defendants to be taken into account in assessing the proportionality of a decision by a public authority to recover possession of property.

Permission to appeal given, with no suggestion that the appellants should expect success. An Art 8 appeal per se refused under Kay v Lambeth.

As this is one, but far from the only, post Doherty boundary to test, this will be an appeal to watch. Pierce Glynn and David Watkinson for the appellants.