Comments on: Ask and ye shall receive http://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/ Housing law news and comment Mon, 21 May 2012 14:36:47 +0000 hourly 1 http://wordpress.org/?v= By: Jhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-140 J Thu, 29 Jan 2009 21:46:44 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-140 No - that was me. Thanks Chief for reminding me to do so! No – that was me. Thanks Chief for reminding me to do so!

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-139 NL Thu, 29 Jan 2009 19:23:15 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-139 Thanks Chief and whoever updated the post (also Chief?) Thanks Chief and whoever updated the post (also Chief?)

]]> By: chiefhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-138 chief Thu, 29 Jan 2009 13:24:49 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-138 The judgment is up on BAILII now: http://www.bailii.org/ew/cases/EWHC/Admin/2009/27.html The judgment is up on BAILII now: http://www.bailii.org/ew/cases/EWHC/Admin/2009/27.html

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-137 NL Wed, 28 Jan 2009 19:49:55 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-137 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. 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: Jhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-136 J Wed, 28 Jan 2009 19:27:23 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-136 But we all know that the point is going back to the Lords again, probably sooner rather than later. But we all know that the point is going back to the Lords again, probably sooner rather than later.

]]> By: NLhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-135 NL Wed, 28 Jan 2009 19:21:37 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-135 Alas, their Lordships disagree with you (and me). Alas, their Lordships disagree with you (and me).

]]> By: Jhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-134 J Wed, 28 Jan 2009 19:03:58 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-134 @NL - ah, but I'd have said that McCann is a sufficiently clear statement :-) @NL – ah, but I’d have said that McCann is a sufficiently clear statement :-)

]]> By: househttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-133 house Tue, 27 Jan 2009 21:49:54 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-133 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. 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: NLhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-132 NL Tue, 27 Jan 2009 19:28:47 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-132 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. 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: Jhttp://nearlylegal.co.uk/blog/2009/01/ask-and-ye-shall-receive/#comment-131 J Tue, 27 Jan 2009 19:09:01 +0000 http://nearlylegal.co.uk/blog/?p=1167#comment-131 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. 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.

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