In McDonald v McDonald & Anor [2014] EWCA Civ 1049, the Defendant held an assured shorthold tenancy of a property in Witney, Oxfordshire. The tenancy was granted by Ms McD’s parents in breach of the terms and conditions of a mortgage agreement with Capital Homes Ltd (they had not sought the company’s permission to let the property to a family member and they were prohibited under the agreement from letting to a social security claimant). The landlords  fell behind with their mortgage instalments and receivers were appointed to manage the property. The receivers served a s.21 notice on Ms McD and accelerated possession proceedings were brought in the name of the landlords. A possession order was made in Oxford CC on 23/4/2013.

Ms McD appealed to the CoA on the grounds that the making of a possession order was an unlawful interference with the right to respect for her home under Art.8 ECHR and that the receivers had no power to serve a s.21 notice.

The issue under the first ground was whether a tenant could raise an Art.8 defence against a private landlord. The CoA was invited to conclude that there was a clear line of ECHR case law (listed at paras 27-32 of the judgement) establishing the principle that an Art.8 defence could be raised against a private party. Giving the lead judgement, Arden LJ concluded that this principle was not established by that case law. She noted that there was a ‘public’ character to the landlords in each case. The case of Di Palma v UK prevented parties from invoking Convention rights to defeat a freely negotiated contract and the separate opinion of Judge Gaetano in Buckland v UK confirmed that the law was not settled. It is not clear from the judgement but it would appear that Arden LJ viewed the Judge’s words “when the landlord is a private individual the tenant’s right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law” as aspirational rather than declaratory of the law (see our earlier discussion of this opinion here). It was therefore significant for Arden LJ that there was no Grand Chamber judgement on this issue.

The Court also considered itself bound by the decision in Poplar HARCA v Donoghue [2002] QB 48, where the CoA found that s.21 of the 1988 Act did not contravene the Convention.

In any event, Arden LJ found that the making of a possession order would have been proportionate. Despite Ms McD’s acute mental health problems, settling into a new home could be achieved with appropriate treatment and the mortgage company was entitled to realise its security.

As for the point about the s.21 notice, the Court held that the receivers were entitled to serve the notice in furtherance of their powers to enforce their security under the mortgage agreement.

The appeal was therefore dismissed.

Comment

Even if the outcome in this case may have been predictable, there is much about the Court’s reasoning that I find problematic.

Firstly, the idea that the ECtHR’s case law on Art.8 and private landlords is not decisive because there was no argument in the relevant cases (para.42) misses the point about the Court’s admissibility criteria. Even if parties do not object to the Court’s competence ratione personae, the ECtHR is required to examine the issue of its own initiative (Sejdic and Finci v Bosnia and Herzegovina at para.27). Furthermore, in the one ECtHR case not mentioned in the CoA’s judgement, Pelipenko v Russia (our note here), the Court found that the complaint was not inadmissible because of the character of the parties to the dispute (para.48).

Secondly, the judgement in Donoghue was reviewed by Lord Scott in LB Harrow v Qazi (at para.141), whose view was that s.21 was in accordance with the law for the purposes of Art.8(2) and that Donoghue was correctly decided but for the wrong reasons. Since then of course, we have had Pinnock and Powell, which has established the principle that the Court must have the power to assess the proportionality of making a possession order under Art.8.

Finally, the CoA heard the appeal shortly before the decision of the High Court in Manchester Ship Canal Developments v Persons Unknown [2014] EWHC 645 (Ch) (our note here), where HHJ Pelling QC clearly considered himself bound by the CoA’s decision in Malik v Fassenfelt to conclude that Art.8 was capable of being engaged in relation to land owned by a private landowner. Arden LJ refers to the Malik decision at para.57 but leaves us with the curious possibility that Art.8 may now be relied on in a defence to private possession claims other than through the accelerated possession procedure.

This is a decision that has left us with a number of unsatisfactory loose ends and it seems that it will be up to a higher court to pull them together.

[post updated 14/8/2014: a certain member of ‘a higher court’, namely Lord Neuberger, has since had something to say on this point. In his address to the Supreme Court of Victoria, Melbourne on the Role of Judges in Human Rights Jurisprudence on 8/8/2014, he makes the following comment (at para 28 of this link):

Also in contrast with the Charter as I understand it, the HRA expressly states that the courts are public authorities for all purposes. This raises a difficult point on which we have yet to rule. It is best illustrated by reference to a point I have already alluded to, namely the position of a residential tenant whose right of occupation under domestic law has ceased. If his landlord is a public authority then the landlord is bound to take into account the article 8 rights of the tenant, and so the court must take them into account when asked to make an eviction order. On the face of it, however, that would not apply when the landlord is a private company or individual. However, in order to evict a tenant, a private landlord must go to court and obtain an order for possession. So the question is: must the court, as a public authority take into account the tenant’s article 8 rights when considering whether to make an order for possession. We have yet to hear such a case. This means that the room for the Convention to have horizontal effect in the UK may well be potentially significantly greater than for the Charter in Victoria.

So it is clear that the Supreme Court is now alive to the issue and the invitation is open for a suitable case…]