Comments on: Ask and ye shall receive

By: J

Thu, 29 Jan 2009 21:46:44 +0000

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

By: NL

NL — Thu, 29 Jan 2009 19:23:15 +0000

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

By: chief

chief — Thu, 29 Jan 2009 13:24:49 +0000

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

By: NL

NL — Wed, 28 Jan 2009 19:49:55 +0000

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.

By: J

Wed, 28 Jan 2009 19:27:23 +0000

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

By: NL

NL — Wed, 28 Jan 2009 19:21:37 +0000

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

By: J

Wed, 28 Jan 2009 19:03:58 +0000

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

By: house

house — Tue, 27 Jan 2009 21:49:54 +0000

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.

By: NL

NL — Tue, 27 Jan 2009 19:28:47 +0000

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.

By: J

Tue, 27 Jan 2009 19:09:01 +0000

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.