Ask and ye shall receive

Yesterday evening I asked for more information about Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) and, by the next morning, two copies of the transcript had made their way to my inbox. My gratitude to The Chief and to William Flack of Flack & Co, who are acting for Mr Dixon. Without wanting to get too carried away, this looks like it could be a significant case and I’m going to deal with it in some detail.

The facts

In April 1993 Mr Dixon (then aged 17) and his sister became the joint secure tenants of Wandsworth at a 2 bed flat in SW11. In October 2005, the sister served a Notice to Quit on the claimant, with the result that the joint tenancy came to an end – see LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

Wandsworth then appeared to have considered re-housing Mr Dixon in his own 1 bed flat. That offer was withdrawn after Mr Dixon was cautioned for possession of cannabis and convicted of possession of cocaine. Possession proceedings were then issued, seeking recovery of the 2 bed flat. Those proceedings were expressly pleaded on the basis of the NTQ served by the sister and a possession order was granted.

The first set of proceedings

After the possession order was made, but before it was executed, Mr Dixon applied for further housing from Wandsworth under Part 6 Housing Act 1996, but was told that, because of inter alia his drug conviction, he was now treated as ineligible for social housing – see s.160A(7), Housing Act 1996. He challenged that decision by way of judicial review but was unsuccessful. See Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin). The Court of Appeal refused permission to appeal, both on the papers and after an oral application.

These proceedings

Mr Dixon then applied to set aside the warrant of possession, contending that, were it to be executed, it would amount to a violation of his rights under Art. 8, ECHR. By consent, the application was transferred from the Wandsworth County Court to the High Court.

The law – according to the High Court

Before dealing in any substance with the arguments of the parties, the High Court set out what it regarded as the law.

The starting point was that a Notice to Quit given by one joint tenant would have the effect of terminating the tenancy, regardless of whether or not the other joint tenant(s) supported that move. This had been settled law since Doe d. Aslin v Summersett (1830) 1 B&AD 135 and had been confirmed in LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

That rule of law had not, however, developed with any consideration of the rights of the parties under Article 8. In Qazi v LB Harrow [2004] 1 AC 983, the House of Lords had directly confronted this point and had concluded that Article 8 could not be used to defeat a private law contractual and proprietary right to possession. There was no infringement of Article 8 in recovering possession pursuant to a Notice to Quit.

That position had been further explained by Kay v LB Lambeth; Price v Leeds CC [2006] UKHL 10. One of the points in that appeal had been whether or not Qazi (and Monk) needed to be reconsidered in light of the decision of the European Court of Human Rights in Connors v UK 40 EHRR 189. Qazi was explained as meaning that, although Article 8 was engaged, domestic law would supply sufficient justification for the purposes of Article 8(2) in most cases.

There were, in effect, two gateways. Gateway A was a challenge to the underlying legislation such that it either had to be reinterpreted so as to comply with the requirements of the Human Rights Act 1998 (or a declaration of incompatibility granted) and Gateway B was a challenge, on judicial review grounds, to the decision to seek possession. Challenges could not be taken on the basis of individual personal circumstances.

In Doherty v Birmingham CC [2008] 3 WLR 636, Kay was revisited but not overruled. An unqualified right to possession could be challenged if the decision to seek possession was one that no reasonable person would consider justifiable.

The ‘new’ factor in the present case was the decision of the European Court of Human Rights in McCann v UK 19009/04. The European Court had found that possession proceedings predicated on an unqualified right to possession were in accordance with the law and pursued legitimate aims. However, they could not be said to be proportionate or necessary in a democratic society. Article 8(2) required an individual assessment of the eviction by a court and could not be met by a blanket presumption that domestic law had struck the correct balance.

That was the critical point of difference between the House of Lords and the European Court. The House had received written submissions on McCann before deciding Doherty and had concluded that it was not open to them to permit individual circumstances to stand as a free-standing defence. Judicial review-style defences were the only ones permissible.

The decision: Gateway A

When considering the compatibility of the rule in Monk with Article 8, McCann was of limited assistance. McCann had involved a local authority improperly procuring a Notice to Quit, whilst, in the present case, the Notice to Quit had been given freely by a private individual. All Wandsworth were doing was exercising their common law rights, as a result of the service of the notice.

It was not open to Mr Dixon to contend that the rule in Monk was incompatible with Article 8. That issue had been decided, against Mr Dixon, in Qazi. It was unclear what sort of modification Mr Dixon would want made to the rule in Monk. Why should an unwilling tenant be forced to remain in a joint tenancy against their will? Would the new rule apply equally to the public and private sector?

McCann was, at best, merely a persuasive authority. It had been doubted in the House of Lords and was factually distinguishable from the present case. There was no basis for contending that the rule in Monk was incompatible with Article 8.

The decision: Gateway B

Any challenge under Gateway B had to be on the basis that no reasonable person would consider the decision to seek possession justifiable. Although some of their Lordships in Doherty had suggested that this might need to be widened, none had actually done so.

The Court was not to substitute its own view of the proportionality of the eviction. Whilst there was no evidence to show that Wandsworth had carried out any proportionality assessment, the totality of the evidence was such that, had the assessment been carried out, Wandsworth could properly have concluded that it should seek possession.

What to make of this

I have some sympathy for the Judge, but this is a decision which side-steps the major issue. It was the ratio of McCann which mattered, not the facts. If, as the European Court held in McCann, a right to possession which does not afford a court the opportunity to examine the proportionality of that eviction is incompatible with Article 8, then surely all mandatory grounds (NTQ, s.21, Housing Act 1988, Ground 8, Housing Act 1988 etc) are incompatible with Article 8.

The House of Lords does not accept this premise and does not agree that an individual examination of the proportionality of the eviction is necessary, but has not yet properly said so. McCann and Connors cannot stand with Qazi, Kay and Doherty and, at some stage, their Lordships are going to have to bite the bullet and decide what to do about this.

I am less sympathetic however to his treatment of the proportionality question under Gateway B. On the one hand we’re told that a court cannot simply come to its own conclusion on proportionality, but on the other, the court decides that, if Wandsworth had ever done such an assessment, they would have been entitled to decide that they should proceed. Surely the landlord should do a proportionality assessment before each and every eviction. Permission to appeal has been sought on this point.

Finally, I’m not entirely convinced that this decision is compatible with Hillingdon v Collins & Another [2008] EWHC 3016 (Admin), discussed by us here. I’ll need some more time to reflect on that though, but, if there is even a slight difference, surely the Court of Appeal should grant permission… is it too much to hope that the Court of Appeal might then explain what Doherty actually means in practice?

Posted in ASB, FLW case note, Housing law - All, Licences and occupiers, Possession, secure-tenancy and tagged , , , , , , , . RSS feed for this post and comments.

About

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

14 Comments

  1. Niki Goss
    Posted 27/01/2009 at 3:38 pm | link to comment

    it is interesting to look at Dixon in light of ĆOSIĆ v. CROATIA
    in that case ĆOSIĆ was a primary school teacher who had a son and was given a protected tenancy. she changed schools and they got replacement accommodation on a temporary basis for her ultimately from the state.
    of the lease was not renewed. After 15years the state commenced possession proceedings based upon its ownership and after 18 years the court ordered possession Even though she had nowhere else to stay.
    “21. In the present case, the Court notes that when it comes to the decisions of the domestic authorities, their findings were limited to the conclusion that under applicable national laws the applicant had no legal entitlement to occupy the flat. The first-instance court expressly stated that while it recognised the applicant’s difficult position, its decision had to be based exclusively on the applicable laws. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate under paragraph 2 of Article 8 to the legitimate aim pursued, regard being had to the particular circumstances of the case. Furthermore, no legal provision of domestic law should be interpreted and applied in a manner incompatible with Croatia’s obligations under the Convention (see Stanková v. Slovakia, cited above, § 24).
    22. In this connection the Court reiterates that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end (see McCann v. the United Kingdom, no. 19009/04, § 50, 13 May 2008).
    23. However, in the circumstances of the present case the applicant was not afforded such a possibility. It follows that, because of such absence of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case.”

    as i read cosic and the note from dixon cosic means that dixon is wrong tho itn will take the HoL to say it.

    “should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his or her right of occupation has come to an end”

    is dixon appealing?

    • J
      Posted 27/01/2009 at 4:01 pm | link to comment

      Yes – Cosic looks like a similar example of a case where a signatory to the Convention does not permit its courts to make an assessment of the proportionality of an eviction. The difference, I suspect, is that Croatia is likely to have an entirely statutory system of housing regulation, whereas the NTQ system in England and Wales is a rule of common law. A brave High Court Judge could, of course, always change the rule of common law so as to permit a proportionality challenge.

      Permission to appeal has been sought in Dixon.

      • Posted 27/01/2009 at 7:00 pm | link to comment

        But one wonders how far it is actually still common law, given the views on the operation of s.6(2)(b) HRA in Doherty (paras 40 or 100, for instance). The point of gateway b is that it is a challenge to the decision to seek possession, rather than a challenge to the lawfulness of the claim per se. Wouldn’t the brave High Court judge’s view fall foul of s.6(2)(b) via Doherty?

        • J
          Posted 27/01/2009 at 7:09 pm | link to comment

          I take the point. My view is that the construction of s.6(2)(b) in Doherty is wrong but, I accept that I have to do somewhat better than that!

          My prefered route is to challenge the NTQ possession proceedings via Gateway A, rather than B – they simply are incompatible with the HRA for the reasons given in McCann. If (and this is a big “if”) that is accepted, the court can apply s.3 HRA to revisit the rule in Monk and introduce a common law proportionality defence. We don’t get near s.6(2)(b) on this analysis. I accept, however, that this was rejected in Dixon itself.

          • Posted 27/01/2009 at 7:28 pm | link to comment

            But, with my devil’s advocate hat on (at a jaunty angle), if the common law, at least for ‘public’ landlords, is taken as being effectively part of the statutory regime (surely the effect of the 6(2)(b) views in Doherty), then you fall foul of Kay v Lambeth on any declaration of incompatibility? Absent a clear statement from the ECtHR as per Connors, in any case.

    • Posted 27/01/2009 at 4:06 pm | link to comment

      This is fundamentally the McCann issue, and Doherty doesn’t adequately resolve it,as J says.

  2. house
    Posted 27/01/2009 at 9:49 pm | link to comment

    Must say again this all makes it rather hard for a poor adviser to know what to advise.

    Off to a solicitor is my usual advice if I get any inkling of a public law defence that isn’t really a defence sort of…

    Not sure what else to do apart from getting a better brain I guess.

  3. J
    Posted 28/01/2009 at 7:03 pm | link to comment

    @NL – ah, but I’d have said that McCann is a sufficiently clear statement :-)

    • Posted 28/01/2009 at 7:21 pm | link to comment

      Alas, their Lordships disagree with you (and me).

      • J
        Posted 28/01/2009 at 7:27 pm | link to comment

        But we all know that the point is going back to the Lords again, probably sooner rather than later.

        • Posted 28/01/2009 at 7:49 pm | link to comment

          To be sure, but if a 7 strong panel changed their minds, that would change everything anyway, so probably no need to strong-arm a High Court judge into changing the common law in the face of the HoL.

  4. chief
    Posted 29/01/2009 at 1:24 pm | link to comment

    The judgment is up on BAILII now: http://www.bailii.org/ew/cases/EWHC/Admin/2009/27.html

    • Posted 29/01/2009 at 7:23 pm | link to comment

      Thanks Chief and whoever updated the post (also Chief?)

      • J
        Posted 29/01/2009 at 9:46 pm | link to comment

        No – that was me. Thanks Chief for reminding me to do so!

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