Archive

It’s oh so quiet…

Published
by
NL
on 6 August 2008
in whatever
. 8 Comments

Or at least after last week’s tsunami of housing cases, it is quiet. This is good because I am a) perversely very busy, what with everyone else being on holiday, and b) behind the serene exterior of the blog, there is intense plotting and organising going on, of which much more in a few weeks days.

However my eye was caught by a news story. It appears that the great housing crash of ‘08 might have yet another unexpected benefit, as buried towards the bottom of a Guardian story on stamp duty holidays was this little nugget about our own dear housing minister:

The housing minister, Caroline Flint, has also signalled she is willing to take a “totally pragmatic” view on whether councils should be allowed to build homes and keep the rental revenue.

This would be a long overdue Good Thing and at least mitigate one of the great policy disasters of the Thatcher era. Note though, they would only keep the rental revenue from new homes, so not actually putting right the wrong. But local authorities, go on and press your advantage while the government is flailing about over housing.

Retrospective CFAs

Published
by
NL
on 4 August 2008
in Housing law
. 0 Comments

Forde v Birmingham City Council [2008] EWHC 90105 (Costs)

In brief, where a firm had asked a client to sign a second CFA for a disrepair claim, at a time when it appeared that the first CFA might be found unenforceable, and the second CFA provided for a success fee where the first one didn’t:

a) was the second CFA unenforceable because it concerns matters contained in the first CFA?

b) was the second CFA unenforceable because it is retrospective?

c) what period is covered by the second CFA?

d) is the success fee retrospective?

e) when a second CFA is signed at a time when a firm offer is on the table, what is the appropriate success fee?

f) Does the first CFA continue to be valid if the second is unenforceable.

Also in brief, the answers are as follows:

a) No

b) No

c) The period from the signing of the first CFA (depending on the second CFA’s terms

d) Where the first CFA did not provide for a success fee, no. The success fee would only apply from the date service of a second N251.  But if the second CFA had been signed pre-issue of claim:

That leaves open the question of what would have happened had CFA II been signed before issue and had the litigation been settled without proceedings. Section 19.2 Costs Practice Direction states at (3) that there is no requirement in the PD for the provision of information about funding arrangements before the commencement of proceedings. No one suggested that the pre-action protocol required this to be done in the present case.  It follows that a curious situation would have arisen  had McGrath settled the case after  signing CFA II  but before  issue because the time for serving Form N251 would not have been reached. It would seem that in those circumstances a retrospective success fee would have been recoverable, but because, in the event, proceedings were issued  and no notice  under CPR 44.15 was given, McGrath’s claim for a success fee has been lost.  

e) In this case, the second CFA had provided a sliding scale of success fee: 50% if the claim concludes before the issue of proceedings, 75% before commencement of trial and 100% if concluded at trial. Birmingham had argued that the certainty of success at the time of signing was such that the appropriate level was nil. The Court was persuaded that the claim was relatively free of risk at the time of CFA 2. Using the Begum baseline of a 15% success fee for near certainty, the Court said:

Using the ready reckoner, I consider that a fair assessment of the risks if the claim had concluded before the issue of proceedings, were that there was a 90% chance of winning, giving a success fee of 10%.    I am not persuaded that a significantly higher sum is warranted just because proceedings were issued. Having failed to settle during the protocol period, limited grounds might be advanced for saying that the Council must have considered that the prospects of a successful defence were much higher than 43%, (a 57% chance of winning would reflect a 75% success fee under the ready reckoner). In my judgment, however, the likelihood of  Miss Forde losing would still have been slim. Left to me, I would assess prospects of winning up to trial at 83% giving a success fee of 20%.  Had the matter actually concluded at trial, the position would have been different as McGrath could then have argued with justification that the Council had  clearly considered it would win, so the success fee should be 100% reflecting 50/50 prospects of success.   

f) The first CFA cannot continue as a ‘fall back’ for the second. CFA 1 did not survive the signing of the second.

The case also contains significant discussion on Regulation 4 Conditional Fee Agreement Regulations (2000), applicable to CFAs signed before October 2005, on advice to clients on alternative funding and specifically public funding. The details are specific to the facts, but worth a look for re-examining any CFAs of that vintage. See paras 144-155, amongst others.

Estoppel - needs something to estop

Published
by
NL
on 4 August 2008
in Housing law
. 2 Comments

I’m not going to do a report on this one as it is a) epic, b) unprecis-able and thankfully c) pretty much off topic for housing law. But anyone who, like me, is a bit of an equity hobbyist on the side, the House of Lords judgment in Yeoman’s Row Management Limited (Appellants) and another v Cobbe (Respondent) [2008] UKHL 55 is a must read on proprietary estoppel and constructive trust.

The upshot is that

Proprietary estoppel requires, in my opinion, clarity as to what it is that the object of the estoppel is to be estopped from denying, or asserting, and clarity as to the interest in the property in question that that denial, or assertion, would otherwise defeat.  If these requirements are not recognised, proprietary estoppel will lose contact with its roots and risk becoming unprincipled and therefore unpredictable, if it has not already become so. [28]

and 

a claim for the imposition of a constructive trust in order to provide a remedy for a disappointed expectation engendered by a representation made in the context of incomplete contractual negotiations is, in my opinion, misconceived and cannot be sustained by reliance on unconscionable behaviour on the part of the representor.[38]

But there is lots of juicy stuff in there. Well, juicy if you are an equity geek, and I am, on the side.

What is a locality?

Published
by
NL
on 3 August 2008
in Housing law
. 0 Comments

R (on the application of Heffernan) (FC) (Appellant) v The Rent Service) (Respondents) [2008] UK 58 concerns the meaning of locality in para 4(6) of Part 1 Schedule 1 Rent Officers (Housing Benefit Functions) Order 1997.

Locality serves to define the area by reference to which the Local Reference Rent was established and hence the level of Housing Benefit. As the definition of locality is effectively the same for the new system of Local Housing Allowances, the issue is still of importance.

The appeal was from a Court of Appeal judgment upholding a rent officers determination that a locality could be the whole of Sheffield, with outlying rural areas.

Para 4(6) of Part I of Schedule 1 to the 1997 Order provides:

“For the purposes of this paragraph and paragraph 5 ‘locality’ means an area—

(a)  comprising two or more neighbourhoods, including the neighbourhood where the dwelling is situated, each neighbourhood adjoining at least one other in the area;

(b)  within which a tenant of the dwelling could reasonably be expected to live having regard to facilities and services for the purposes of health, education, recreation, personal banking and shopping which are in or accessible from the neighbourhood of the dwelling, taking account of the distance of travel, by public and private transport, to and from facilities and services of the same type and similar standard; and

(c)  containing residential premises of a variety of types, and including such premises held on a variety of tenancies.”

Lords Hope, Neuberger and Scott held that 4(6)(a) set a minimum number of neighbourhoods - two - but that additional neighbourhoods must be justifed by the need to meet the requirements of (b) and (c), i.e. where the variety of tenancies and residences in the two neighbourhoods is not sufficient to establish the highest and lowest rents. Para (b) sets a geographical limit on the selection of neighbourhoods, so the criterea of para (b) must be applied to each proposed additional locality. Appeal allowed.

Lord Rodger disagreed. If a neighbourhood met the criteria in paras (a), (b) and (c), there was no reason why the rent officer could not use it in establishing the rent, and no requirement to justify adding more than two neighbourhoods to the locality [para 28-29]

Lord Walker, bewildered by the absence of guidance on where a locality would actually stop, agreed with Lord Rodger.

Enforcing positive covenants

Published
by
NL
on 3 August 2008
in Housing law
. 3 Comments

Cantrell v Wycombe District Council [2008] EWCA Civ 866 concerns enforcement of positive covenants by a Local Authority.

In return for funds towards the purchase of another property, a housing association had granted the Council nomination rights to six properties, including the one at issue, the agreement was said to be made pursuant to s.609 Housing Act 1985. Clause 3 of the agreement stated that the covenants would be:

enforceable without any limit of time against any body or person deriving title from the original covenantor in respect of its interest in the properties and any person deriving title under it in respect of any lesser interest in the properties … as if that body or person had been an original covenanting party …

Among those covenants was:

the Association will let each of the properties on a periodic tenancy to a nominee of the Council … 

The original HA undertook to carry out repairs, but apparently didn’t and sold the property to another HA who sold the property at auction to the appellant, C. The covenant had been registered as a local land charge and C had seen a local search revealing it when he bought the property. The Council sought to enforce the covenant against C. 

S.609 HA 1985 states:

Where—
(a) a local housing authority have disposed of land held by them for any of the purposes of this Act and the person to whom the disposal was made has entered into a covenant with the authority concerning the land, or
(b) an owner of any land has entered into a covenant with the local housing authority concerning the land for the purposes of any of the provisions of this Act,
the authority may enforce the covenant against the persons deriving title under the covenantor, notwithstanding that the authority are not in possession of or interested in any land for the benefit of which the covenant was entered into, in like manner and to the like extent as if they had been possessed of or interested in such land.

The County Court held this did enable the Council to enforce the covenants, acknowledging there was no precedent on the meaning of the section. C appealed.

Held: At common law, the burden of a covenant is not binding. Negative covenants, so far as they protect land held by the covenantee are binding in equity. Enforcement by injunction or damages in lieu. S.609 should be considered in the light of the Law Commission’s report that led up to its introduction. The discussion in the report concerns solely negative covenants, in the context of the old s.151 Housing Act 1957. If parliament had intended s.609 to apply to positive covenants, it would have been necessary for it to expressly say so. Lord Denning in Gee v National Trust [1966] 1 WLR 170 followed.

If the result is absurd, it is no more so than the law on positive covenants in general. Commentators either way have not given reasons and do not advance the argument.

The purpose of s.609 is to allow the Council to enforce a negative covenant where it no longer holds the land benefited by the covenant. No more.

[Post particularly for J ;-)]

Care and Attention

Published
by
NL
on 3 August 2008
in Housing law
. 0 Comments

R (on the application of M) (FC) (Respondent) v Slough Borough Council [2008] UKHL 52 is a House of Lords case concerning Local Authority obligations under the National Assistance Act 1948, and specifically when the authority is obliged to arrange and pay for accommodation.

The facts of the case are that M, a 42 year old Zimbabwean, subject to immigration control and HIV positive had applied to Slough BC for assistance under the National Assistance Act. He has subsequently become eligible for housing assistance by NASS, pending an appeal against return.

M’s needs stated needs are

other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it.

At judicial review and Court of Appeal, it was held that the need for medication and regular medical assistance amounted to a need for ‘care and attention’ for the purposes of s.21(1)(a) NAA 1948 (as amended). The Council appealed.

The lead judgment is by Baroness Hale, who rehearses the history of the NAA and in particular the interaction with immigration law after R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10

S.21 now states:
Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing:
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.

As amended by the Immigration and Asylum Act 1996, s.21(1A) of the NAA now states:
A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely -
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute.

s.21(1B) states:
For the purposes of this section, a person is destitute if -
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.

The Court of Appeal decision in R v Wandsworth London Borough Council, Ex parte O, R v Leicester City Council, Ex parte Bhikha [2000] 1 WLR 2539 held that

if an applicant’s need for care and attention is to any material extent made more acute by some circumstance other than the mere lack of accommodation and funds, then . . . he qualifies.

However, as NASS support for care needs beyond accommodation is only available if the asylum seeker has no other support available to them, and support is technically available under s.21(1)(a), the result was an “inverted and unseemly turf war between local and national government”.
In R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 the House of Lords held that where it was only because of the lack of the applicants own accommodation that the care and attention they needed was not otherwise available to them, this fell under s.21(1)(a). And so to the current case and the meaning of ‘care and attention’.

Baroness Hale did not accept the Council’s view that this meant that the person needed someone else to look after him because there were things that he could not do for himself.

So the “care and attention” which is needed under section 21(1)(a) is a wider concept than “nursing or personal care”. Section 21 accommodation may be provided for the purpose of preventing illness as well as caring for those who are ill.

But care and attention must mean something more than accommodation. Baroness Hale’s preferred definition is as follows:

the natural and ordinary meaning of the words “care and attention” in this context is “looking after”. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. Viewed in this light, I think it likely that all three of Mrs Y-Ahmed, Mrs O and Mr Bhikha needed some care and attention (as did Mr Wahid but in his case it was available to him in his own home, over-crowded though it was). This definition draws a reasonable line between the “able bodied” and the “infirm”. [para 34]

She recognises that this should include ‘the anticipated physical effects of destitution’ for future care needs, but there must be a need for some care and attention at the point of application. [para 35].

In the present case, the applicant’s medical needs were being met by the NHS. He was not sick or infirm so long as those needs were being met and there was no development in his condition. He therefore did not fall under s.21(1)(a).

Lord Brown concurs and adds:

The looking after required does not have to be for either nursing or personal care. It must, however, be of such a character as would be required even were the person wealthy. It is immaterial that this care and attention could be provided in the person’s own home if he had one (as he would have if he were wealthy). All that is required is that the care and attention needed must not be available to him otherwise than by the provision of section 21 accommodation. [...]

(ii) Should the person’s need for care and attention be regarded as having arisen “solely because he is destitute”?

This question only arises once it is established that the person has a need to be looked after—a need beyond merely the provision of a home and the means of survival. If a person reaches that state purely as a result of sleeping rough and going without food, as envisaged in R v Hammersmith and Fulham London Borough Council, Ex parte M (1997) 30 HLR 10 (“Ex parte M“) at p.19, then clearly the need for care and attention will have arisen solely from destitution. If, however, that state of need has been accelerated by some pre-existing disability or infirmity—not of itself sufficient to give rise to a need for care and attention but such as to cause a faster deterioration to that state and perhaps to make the need once it arises that much more acute—then for my part, consistently with the views I expressed in the earlier cases, I would not regard such a person as excluded under section 21(1A). [para 40]

As to responsibility for provision of accommodation to destitute asylum seekers, he adds at para 41.

Surely the question to be asked is rather whose responsibility it is to provide accommodation and subsistence to destitute asylum-seekers before any such deterioration occurs and by reference, therefore, only to whatever particular disability or infirmity the person already suffers. Only if they already need section 21 care and attention is the local authority responsible; otherwise the responsibility falls on central government.

Lord Brown expressly notes his change of mind from his view in the Court of Appeal decision in Ex Parte Mani.

Lord Neuberger also agrees and adds:

It would seem wrong to extend a duty owed to a person who satisfies a statutory requirement to a person who currently does not satisfy the requirement simply because he will or may do so in the future. I should add that, as a matter of practicality, humanity and common sense, this cannot mean that a local authority is required to wait to act under section 21 until a person becomes seriously in need, however close and inevitable that serious need may be, and however much the authority reasonably wants to assist at once. The section must contemplate that a local authority can act, where it reasonably considers it right to do so, as soon as a person can be said to be in need of some care and attention, even to a relatively small degree.[para 55]

So, a prospective need for care and attention does not engage s.21(1)(a). The interpretation that the words ‘not otherwise available to them’ refer to ‘care and attention’ not ‘residential accommodation’ is confirmed.

Disrepair - One bite at the cherry

Published
by
NL
on 2 August 2008
in Housing law
. 0 Comments

Onwuama v Ealing LBC [2008] EWHC 1704 (QB) (not on Bailii yet).

The Claimant made a claim for s.11 disrepair (in person), alleging dampness and electrical problems. No expert evidence was put forward as to the cause of dampness. The claim largely failed as the Judge found the most likely cause was condensation rather than structural issues or rising damp.

The Claimant sought permission to appeal that judgment, with an expert report suggesting that lack of a damp-proof membrane was the cause of the dampness.

Permission was refused, but before that decision, the Claimant made a second claim on the basis of the damp and some other matters and including the same expert report as evidence. The Court found that the Claimant was estopped per rem judicatam from claiming that the cause of the disrepair was anything other than condensation.

The duty under Section 11 of the Landlord and tenant Act 1985 is of course a continuing duty. To succeed in a second action the Claimant must prove that the cause of the damp (which is the same damp or worse damp as was alleged in the first action) is structural. That issue has already been determined against the Claimant. In other words it has been determined that the damp is not disrepair within Section 11, and Section 11 does not apply to the damp in these premises.

The Claimant appealed on the basis that the dampness was a continuing breach of s.11 and to hold that this was res judicata was against the will of Parliament in s.11 Landlord and Tenant Act 1985 in imposing a duty upon landlords.

The Court of Appeal held that the principle of finality in litigation is in the public interest. A continuing duty under the L&T 1985 did not escape that principle:

It was held that that issue had already been determined against her and that the Claimant was estopped from reopening a factual issue which had been determined against her. I do not regard that as frustrating the will of the Parliament. There is nothing in the Landlord and Tenant Act which provides that a tenant may have multiple attempts to prove a breach of duty by the landlord, contrary to the principles of res judicata .

To the extent that the Claimant sought to rely on dampness existing prior to the first judgment, her claim was res judicata.

It was further submitted that “if the judgment were to stand the Claimant could never require the landlord to remedy dampness in the walls or floors of the premises no matter how caused. The cause of damp regardless of evidence to the contrary would always be deemed to be condensation.” This submission fails to understand the decision of HHJ Edwards. If there develops some new cause of damp in the flat caused by a want of repair then the Claimant can of course allege and prove that. What she cannot do is allege that the cause of the damp which was the subject of complaint in the first action was other than as found by the HHJ Nathan.

But any fresh damp must have a new cause as the issue in the first judgment was the cause of damp, not the existence of the damp. In the second claim, it was the same damp - as indicated by the same expert report being used for both permission to appeal and second claim - and what was contested was the cause. The cause was therefore res judicata.

Harsh, one might think, particularly as the Claimant was a litigant in person in the first claim. But probably right. The claim in disrepair is not for the effects of disrepair per se, but for the specific failure to repair, from which the effects flow. Once a judgment has been made on the specific cause, that is that.

However, one wonders if some canny pleading and limitation of periods of claim might have avoided this situation. The permission to appeal application, with expert report probably scotched this second claim, but it could perhaps have gone otherwise.

Disrepair protocol costs

Published
by
NL
on 31 July 2008
in Housing law
. 6 Comments

Birmingham City Council v Lee [2008] EWCA Civ 891 concerns claimant’s costs incurred while following the disrepair pre-action protocol.

It is not uncommon for a landlord to do repairs after an early notification letter, or letter of claim, but pre issue (not that common, but not uncommon). This leaves the claim as for damages only. Where repairs are outstanding, the small claims limit is £1000 in damages or cost of works. But a damages only claim hits the usual £5000 limit. There are the small claims unavailability of costs consequences, and there is no public funding for small claims. Thus, doing the repairs would often kill a disrepair claim. In the meantime, costs would have been racked up following the protocol steps - which are necessary, with a potential costs penalty for not doing so.

Lee decides that, given the nature of the protocol, a claim begins at the start of the protocol steps, not at the commencement of litigation. Pursuant to CPR 44.9(2), the Court has the power to make a costs order for pre-allocation period, unrestrained by the limitations of whatever track the claim is allocated to.

Where a claim at pre-action protocol stage would be a fast-track claim (works not done), the Court can make an order that the Claimant have their costs, up to the date of the works being done, at the fast-track rate. This is still subject to establishing notice, liability etc., so will likely be ordered as costs in the cause.

The Claimant should apply for such a costs order with allocation questionnaires.

Now, although this leaves the claim ongoing as a small claim, with the remaining costs issues that this implies, it does mean that:

a) the principle is established for the purposes of negotiating costs in settlements, even pre-issue. There is the stick of a threat to issue and seek the costs order to use.

b) depending on the specifics of the case, it may be possible to continue a case that was initially publicly funded on a CFA basis, once it turns into a small claim. The statutory charge for the pre-action period should be covered by the pre-action fast-track costs order, meaning that the client’s damages won’t vanish into the statutory charge. But that is going to take careful evaluation of the client’s benefit.

Notes on Doherty v Birmingham CC

Published
by
NL
on 30 July 2008
in Housing law
. 10 Comments

So, Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57

Well, well, and once more for effect, well. This is a very interesting result indeed, although I use the word result in a non-definite kind of way.

The headline is simple enough, the case was remitted to the High Court for determination of the domestic judicial review issues raised as defence to possession. Court of Appeal overturned. The majority would also have made a declaration of incompatibility in regard to the Mobile Homes Act 1998, if the incompatibility had not already been removed by the passing of the Housing and Regeneration Act. Their Lordships declined to vary or amend Kay v Lambeth in the light of this appeal or the last minute submissions on McCann v UK.

Behind the headlines though, there is a hell of a lot of devil in the details. In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared.

I’ll start with the majority and the judgments of Lords Hope and Walker, agreed by Lord Rodger

For those with attention spans of less than a year, the majority in Kay v Lambeth held to a formulation on Human Rights challenges to possession claims where the landlord’s right to recover possession is unqualified that was set out by Lord Hope in para 110 of Kay. To wit, the only situations in which it would be open to the Court to refrain from proceeding to summary judgment are:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

These will be called gateway (a) and gateway (b) below. In Kay the majority view was clearly that gateway (b) would mean a challenge on the basis of domestic public law grounds, not broader Convention grounds. The minority in Kay considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

In his judgment, Lords Hope held that the facts of Doherty - a gipsy family faced with summary possession after a Notice to Quit from a site that they had occupied for many years - were distinct from those of Connors v UK, Kay and indeed McCann, although most similar to Connors.

Here too was a unqualified right to possession by the local authority, where the decision to exercise that right was unchallengable under s.6(1) HRA 1998 as it was acting to give effect to the provisions of statute - s.6(2)(b). (Both Jan Luba QC for Doherty and Philip Sales QC for the Secretary of State challenged this point and it was not uniformly accepted - see below).

This was not a common law possession issue, but, because of the specific exception of local authority caravan sites from the Caravan Sites Act 1968 and the Mobile Homes Act 1998, an exercise of a specific right to common law possession given by statutary enactment - such that common law rights are effectively permitted by statute. (Again, not uniformly accepted).

Given this, and the Dohertys’ position as gypsies, the Connors issue of gateway (a) incompatibility applies - unjustifiably discriminatory statute. Because s.6(2)(b) applied, there was no possibility for the Courts to interpret the statute in accordance with the HRA (s.3(1)), leaving a declaration of incompatibility as the gateway (a) resort. As a result of the passing of the Housing and Regeneration Act, which corrects the issue, a declaration is not neccessary.

But gateway (b) could also apply. In Kay, the defence on public law grounds was limited to whether the decision to claim possession was ‘one that no reasonable person would consider justifiable’. Lord Hope points to his own comment at para 114 of Kay that the grounds of challenge to a decision to bring a claim were whether it was ‘arbitrary, unreasonable or disproportionate’. So gateway (a) and (b) work together to address the incompatibility of lack of procedural safeguard. If the statutes can be effected by the court in accordance with article 8 under gateway (a), fine. if not then it is open to the defendant to argue that that court must be satisfied that, on the basis of the grounds the claimant gives for its decision to seek possession, the decision is not Wednesbury unreasonable [para 53] (What grounds given for the decision? - this is summary possession!)

On the facts of this case, gateway (b) might have give an effective defence to the appellant. Gateway (b) provides an effective procedural protection. But, at para 55. Lord Hope says:

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.

Lord Hope’s address to McCann, at paras 15-21, is solely in terms of the issue of incompatibility and ‘objective standards’ of an arguable case. There is no address to the issue of whether domestic judicial review grounds and a consideration or proportionality are commensurate, despite McCann’s express view on this. But Lord Hope’s suggestion that judicial review grounds could address disproportionate decisions [para 52] and the hints at para 55 may indicate a broader set of grounds for public law defence to unqualified possession claims than just Wednesbury unreasonableness.

Lord Walker’s judgment broadly ends up at the same point. However, Lord Walker spends some time to point out that the statute/common law distinction was not at issue in Kay, in order to support the view that s.6(2)(b) applies in the present case - implementation of statute not common law is at issue. Accordingly, Lord Walker agrees on a declaration of incompatibility via gateway (a) and also that it is not now required.

On gateway (b) Lord Walker, who was in the minority in Kay, is not happy about the distinction between HRA grounds and ‘traditional public law grounds’ [paras 108 -110]. He remains unsure that s.6(2)(b) applies to what are common law possessions. In view of McCann, he is even more concerned about the separation of HRA and JR grounds [para 116]. In fact, the circumstances where a viable defence appears may not be as exceptional as he thought in Kay, in view of Local Authorities looking to avoid contested possession claims via ‘relinquishing notices’ as in McCann (Birmingham and others should rethink their policy).[para 121-122]. The Court’s consideration of any gateway (b) defence should be focussed on the Local Authorities’ decision making process.

Lord Rodger agrees with Lords Hope and Walker, with nothing further.

Lord Scott’s judgment suggests that traditional judicial review procedure should be amended to allow considerations of disputed fact [para 68] as a part of gateway (b), and also that the defendant’s personal circumstances might well be a factor to which the local authority should have regard in making the decision on a possession claim, and therefore open to an examination by the court of whether the decision was unreasonable and disproportionate.[para 70]

Lord Scott did not see the need for a declaration of incompatibility in the present case, Kay having removed any Art 8 incompatibility found in Connors [para 80]. There is also a spectacularly ill-humoured and, in my immensely humble opinion mistaken attack on McCann at paras 82 - 88.

Lord Mance agrees on remitting the case to the High Court for gateway (b) consideration, but does not agree on an (abortive) declaration of incompatibility. Although the possession claim was a statutory matter [ para 132], the availability of gateway (b) means that the statute is not incompatible with Art 8, although the statute may well have been incompatible per se. In any case, the challenge in Doherty was that if Art 8 was not available to him to rely on in one form or another, this was incompatible with convention rights. No incompatibility of specific statute was raised [para 154]. 

On gateway (b) Kay excluded convention grounds [para 136] but this case was not the same as Kay. In Kay, the challenge was to the local authority’s decision to enforce its undoubted right to possession. In Doherty, the challenge was to the validity of the decision to give a notice to quit, which is a pre-condition to any right to possession [para 157].

In Qazi, Connors, Kay and McCann situations, a Local Authority has discretion as to whether it undertakes the steps necessary to resume possession, or whether to bring proceedings. It arguably cannot be described as action ‘to give effect to’ or ‘enforce’ a statutory provision which may be considered incompatible with Convention rights. The Council is giving effect to its own evaluation of the position and in doing so is obliged to respect Convention values. Non-compliant decisions should therefore be challengeable under the Wandsworth LBC v Winder principle [para 158]

In the present case, the decision to bring possession proceedings could not be considered as ‘giving effect’ to statute, so s.6(2)(b) did not apply and would not hinder a challenge on Art 8 grounds to the validity of the notice to quit and thus a defence to the possession claim [para 159].

Kay is distinguishable on the basis that this case was a challenge to the validity of the notice to quit [para 160-161]. This case should be remitted to the High Court to consider an Art 8 challenge to the validity of the notice to quit - a challenge on Convention as well as conventional judicial review grounds. Thus any incompatibility with statute is removed [para 161]. Lord Mance regrets that it was not possible to vary Lord Hope’s ‘para 110′ (above) to enable Convention grounds for challenge.

And there we are. A majority which isn’t, as Lords Hope and Walker have significant differences in their views, with Lord Rodger agreeing with both. Judgments which suggest that the Kay formulation of judicial review grounds for defence have been extended, or not, or maybe should be taken with a bit more latitude than Kay apparently decided, but not so far as full Convention grounds, unless they should be considered.

I’ve no time for a properly considered, critical view, but at the very least, a defence on grounds of unreasonableness of the decision to bring proceedings on a summary possession claim has been acknowledged to be available, to supposedly address proportionality and that it is more likely to be raised and indeed justified than Kay apparently permitted.

A few quick points.

Their Lordships generally regretted that they hadn’t been constituted as a 7 strong panel, in the light of the late arrival of McCann. A 5 strong panel simply could not change the decision of the panel of 7 in Kay.

The gateway (b) defence only applies to summary possession proceedings brought by public bodies (now potentially including RSLs after Weaver).

The proportionality issue is seen as a matter of the decision brought by the landlord - so only applies to public landlords and their decisions - not to the decisions of the court.

Where statute provides specifically for a mandatory procedure, it is likely that a full challenge to compatibility is the only option - and extremely unlikely to be successful.

There is much else to digest, whether obiter or not part of the ratio decendi. I may well return to this shortly. For the moment, I going to start work on the public law defence for a summary possession case that has just dropped into my lap, and I’m grateful that Doherty at least gave some wriggle room on that.

Any CLP people care to contribute views?

Aaargh

Published
by
NL
on 30 July 2008
in Housing law
. 6 Comments

Started on Doherty, but on closer inspection, the Lords have also given me R (On The Application of M) (Fc) V Slough Borough Council and R (On The Application of Heffernan) (Fc) V The Rent Service to deal with, and possibly also Yeoman’s Row Management Limited and Another V Cobbe. All here.

Damn them, damn, damn, damn. Thankfully, the Court of Appeal held off handing down anything of interest - for here at least.