Tag Archive for 'possession claims'

Pre-emptive possession orders

Published
by
NL
on 26 August 2008
in Housing law
. 3 Comments

Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 was a case concerning travellers encamped on Forestry Commission land. Some of the travellers had previously camped on a nearby patch of Forestry Commission land until a possession order was obtained. The Forestry Commission (or rather the Sec of State, the owner of the land) applied for:

  1. A possession order in respect of the patch of land occupied.
  2. A possession order for other nearby areas of Forestry Commission land that the travellers might move to.
  3. An injunction preventing the travellers from entering upon the land they currently occupied and the other nearby areas.

At the County Court, possession order 1 was granted. But the ‘prospective’ possession order and injunction were refused, on the grounds that the recorder had discretion and exercised it against the orders because a prospective possession order and injunction clashed with the recommendations made to local authorities and others, including, inter alia, the Forestry Commission in the then ODPM’s Guidance on Managing Unauthorised Camping, 2004, which suggests that, while there are insufficient authorised sites, and there would be locations where encampment would not be acceptable under any circumstances, each location has to be considered on its merits against criteria such as health and safety and serious environmental damage and land use (para 11-12). A prospective possession order, which would subject anyone who entered on the parcels of land to eviction, was, the recorder found, not in accordance with the guidance, and was for that reason, Wednesbury unreasonable.

The Secretary of State appealed on basis that:

the recorder had no discretion to refuse the order and injunction once he had concluded that the Drury criterion was fulfilled. Alternatively, he erred in the exercise of his discretion by declining to grant the order and injunction. In the further alternative, he was wrong to hold that the Secretary of State was perverse in seeking the order and injunction. Finally, the recorder was wrong to conclude that the grant of the injunction was disproportionate.

Drury v the Secretary of State[2004] 1 WLR 1906 set out the criterion for prospective possession orders where further acts of trespass are threatened. A prospective order would be granted:

if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area. [Drury 20]

and where there

is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted. [Drury 20]

The test for a quia timet injunction, as set out in Snell’s Equity is:

Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; “no one can obtain a quia timet order by merely saying ‘timeo.’ He must prove that there is an imminent danger of very substantial damage…

The Drury criterion itself is taken from Wilson J at para 21:

Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in the MAFF case itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.

In Drury, there was no injunction application, on the basis that, as it could only be made and enforced against named individuals, it would not have been of much practical use.

In the appeal, the Sec of State argued that once the Drury criterion had been met, then there was no discretion on the making of a prospective possession order. The considerations of the Guidance should take place at the enforcement stage, not at the point of considering the claim. As the hurdle for the prospective possession order and an injunction were effectively the same, the recorder should also have granted the quia timet injunction, the practicality of enforcement being an issue for the Sec of State, not the court. In any case, the finding of unreasonableness should be set aside because the Forestry Commission were not going to enforce the possession order granted until the end of the school term.

The Respondents argued that

it would have been inconsistent with the government guidance set out above for a possession order in the wider form to be made. That guidance enjoins public authorities to consider whether eviction is really necessary. It requires public authorities to consider the specific characteristics of the site and of the incursion before they make a decision to evict. [...] the Forestry Commission should look at the site occupied, and on the basis of the guidance they should accept that, in view of the shortage of suitable accommodation for travellers, the presence of the respondents should be tolerated. [...] if the Forestry Commission wants a possession order in the wider form it should have to identify the areas where it accepts that the respondents could encamp.

On the injunction, the Respondents argued that the point of Drury was the creation of a practical remedy, and that the prospective possession order incorporated elements of an injunction to that end. or that reason an injunction in addition was inappropriate. In any case, grant of injunction was discretionary. As the recorder was plainly exercising his discretion within its proper bounds and he was entitled to reach his conclusions, the Court of Appeal had no basis to review the decision.

Lady Justice Arden, in the lead judgment, held that while the making of a prospective possession order was discretionary, once the Drury criterion were made out, it would only be in ‘exceptional circumstances’ that the order would be refused. Exceptional circumstances would include a failure to carry out a public law obligation.

However, the highest the obligation imposed by the Guidance could be said to be was ‘to consider the acceptability of an encampment once the encampment has occurred’, and it did not concern possible future sites. The Recorder was therefore wrong to apply it to future encampments. Consideration of the Guidance should occur at the time of enforcement. Moreover, while:

Mr Hobson [for the Respondent] urged on us the point that those factors did not need to be considered at all if the occupiers had previously been found on the land of the same landowner and a Drury order had been made. That order would identify the land to which it related. I do not consider that the court can fetter itself in relation to some future application to enforce a possession order. The occupation had not yet taken place. There will inevitably be an interval of time between the occupation and the order for eviction. In that time, the defendants may assert that there are matters which the Secretary of State ought to have considered but did not do so. There may be some people affected who are within the order yet unnamed. They may not know about the order for eviction from Hethfelton Wood. But, in so far as the occupiers were served with an order for possession of Hethfelton Wood, I would expect the court to be less willing to give them further time. If there is any such matter which the court needs to consider, it can be considered at the stage of enforcement.

On the injunction, there is enough distinction between an injunction served on individuals and a prospective possession order against any and all (putative) occupiers to mean that an injunction is also available as a complementary remedy. And there is no reason it can’t be granted on the same facts. The grant of an injunction is discretionary, but the Recorder erred in exercising his for the same reason his discretion on the prospective order was wrongly exercised. Nothing in the Guidance prevents the Sec of State obtaining an injunction. While actually exercising the injunction, on the facts of this case, might seem heavy handed, there was nothing to suggest that the Sec of State would not exercise his discretion in whether to enforce the injunction in accordance with public law obligations.

Lord Justice Pill agreed.

Lord Justice Wilson agreed on the possession order, but suggests that where there are two potential discretionary remedies available, the presumption should be that only one is granted, the most practically effective. he therefore disagrees on the grant of the injunction and approves the part of the recorder’s judgment that finds that “the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order”. [paras 72-76]

This judgment clearly has significant repercussions for travellers on unauthorised sites and threatens to make prospective orders and injunctions considerably more likely where the Drury criterion are met. While local authorities have more extensive roles under the Guidance than the Forestry Commission, to be sure, this combination of prospective possession order and injunction could well be used against roadside or verge encampments, with the local authority seeking a prospective order covering great swathes of land. That the Guidance only requires consideration at the point of enforcement, while leaving injunction enforcement hanging over the heads of the travellers, makes for a very difficult situation, both for the travellers and their advisors.

ASB corner

Published
by
NL
on 9 August 2008
in Housing law
. 1 Comment

The August 2008 Legal Action contains a couple of cases concerning anti-social behaviour possession claims that weren’t recorded elsewhere.

Ealing LBC v Jama B5/08/0104 was a Court of Appeal matter. Mrs Jama was Ealing’s secure tenant of a two bed property. The household included her husband and six children. Ealing sought possession on allegations of ASB including noise nuisance, ten instances of flooding into the flat below, problems with rubbish disposal and urination in the lift. At the County Court, the judge accepted Mrs Jama had faced some harassment, but did not accept her evidence on the flooding. The judge accepted the evidence of a plumber that the flooding was not due to defective water system. The judge held it was reasonable to make a possession order because there had been two substantial breaches of the tenancy - the flooding and serious and persistent noise nuisance. Mrs Jama appealed.

The Court of Appeal found it was impossible to hold that the noise was ‘domestic noise’. Reasonableness was a matter for the judge at first instance and the Court of Appeal would not interfere unless the judge had erred in law. For that reason the judge’s decision could not be attacked. But in any case the decision not to suspend the order was clearly right.

High Peak BC v Purser Buxton County Court 26/11/2007, like North Devon Homes v Batchelor, concerned a conviction for posession of drugs. Ms Purser was a secure tenant with two children. In Jnauary 2006 she was convicted of possession of cannabis resin. In October 2007, she pleaded guilty to supply of ecstasy, possession and supply of amphetamine and possession and supply of cannabis resin, all at the property. She received a nine month sentence, suspended and a 12 month supervision order. She was engaged with professional drug support and family support services and drug test were negative.

In the possession proceedings, DJ Jolly found it was reasonable to make a possession order, but in view of the evidence that suggested there was a ‘real hope’ for the future, the order was postponed for two years on condition Ms Purser comply with the tenancy agreement.

Also in Legal Action, R v Edwards [2008] EWCA Crim 1172 (not on Bailii) did not concern possession proceedings, but rather an ASBO excluding Ms Edwards from the home she owned for ten years. The ASBO was made on the basis of ‘extreme harassment’ of a neighbour, including damage to their car, throwing rubbish and excrement at their house, loud singing and banging. She had breached an injunction, a restraining order and had been sentenced to imprisonment three times.

The Court of Appeal upheld the ASBO. An order excluding someone from their home that they own is very much a last resort, but that point had been reached. The order was necessary and proportionate, considering Art 8.

Comments on Malcolm in the Lords

Published
by
NL
on 29 June 2008
in Housing law
. 63 Comments

Oh dear, oh dear. That could have gone better.

I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.

The headline result is that:

  • For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
  • To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
  • It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.

This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.

Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.

The issue is s.24(1) which defines discrimination for the purposes of s.22(3) - the eviction clause. S.24(1) reads:

For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -

(a)  for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b)  he cannot show that the treatment is justified.

However, exactly the same formulation appears at s.5(1) - employment; and s20(1) - Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.

Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.

For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.

The specific problem for services and premises - which was the provision facing the Lords here - is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.

Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.

What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]

The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 - 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view - the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.

The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did - the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.

Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.

The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.

[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series:

Malcolm in brief

Published
by
NL
on 25 June 2008
in Housing law
. 9 Comments

LB Lewisham v Malcolm [2008] UKHL 43

Court of Appeal thoroughly and unanimously overturned.

The reason for the treatment is the reason in the mind of the landlord, or one which can be imputed to them. So the landlord must be aware or be imputed to be aware of the disability, and the reason for the treatment in the landlord’s mind must be related to the disability.

Clark v Novacold mostly disapproved. The Court has some problems with the comparator issue, but mostly settles for the comparator for less favourable treatment being someone who has done the same thing but is not disabled (Thus, in Malcolm, someone who has illegally sub-let). Marvellous passage on the blind man and guide dog hypothetical at 35.

Baroness Hale alone disagrees, holding that the Novacold interpretation was what Parliament intended and approves Novacold for that reason. But she also finds that the landlord must or ought to have known of the disability and that knowledge to be a reason for the treatment.

Baroness Hale also argues for the introduction of a discretion on granting possession orders where there is apparent unlawful discrimination, balancing occupier and landlord interests.

Mandatory/unanswerable possession procedures can still have a DDA ‘defence’, it appears, but discrimination must be established as above.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series: :Next in series

And now Malcolm!

Published
by
NL
on 25 June 2008
in Housing law
. 2 Comments

Wondering about McCann

Published
by
NL
on 18 May 2008
in Housing law
. 3 Comments

Well, McCann v UK certainly seems to have stirred things up. Naturally, most of the speculation is on the effect and extent of the judgment.

I’m still trying to work out for myself what the likely or even possible effects are, so this is a work in progress.

In descending order of certainty…

Common law summary possession by a local authority/public body landlord after Notice to Quit (e.g Ex joint tenants; temporary accommodation under s.183 and possibly s.192 HA 1996; ’successors’ to deceased tolerated trespassers; non-successor occupants; etc.)

Possession proceedings will need to include the potential to consider whether the eviction is proportionate under Art 8.2 ECHR.

Does an assertion that the eviction is not proportionate constitute a defence? I think it is likely to be so. Although alternatives might include compensation, if the eviction is disproportionate, the court would be aiding a breach of Art 8.2 in making a possession order. (The similarity to the ‘unlawful act’ element in Malcolm v Lewisham might mean that the House of Lords judgment in Malcolm has an impact, but Malcolm concerns interpretation of statute, not ECHR).

Where will this leave the tenant? Most likely as an ex-tenant still in occupation. I can’t see much in McCann to suggest that the ending of the secure tenancy per se was taken to be disproportionate, the issue being purely that the possession proceedings could not consider proportionality of eviction.

Mandatory possession proceedings brought by a public body landlord under statute - for instance introductory and demoted tenancies.

Trickier, as to some extent the summary nature of the possession hearing is given in statute. While in common law proceedings, the Court can introduce ‘proportionality’ under its own duty under the Human Rights Act, it is surely different where the process is statutorily limited. Would the best the Court could do be a declaration of incompatibility?

Possession proceedings by non-public bodies, private landlords or RSLs, where summary or mandatory.

There have been suggestions that McCann might hold other than for a public body landlord. Given that private and RSL landlords have no duty to comply with the ECHR under the HRA, there is no duty on them to behave proportionately in evictions and therefore no basis for the court to hold them to proportionality as being their duty.

So, the only way that I can see that McCann would extend beyond public body landlords is if the Courts, as public bodies, are taken as being required to consider proportionality in their decisions to make an possession order - the duty of behaving proportionately being the court’s, not the landlords. Thus there would be a general duty to consider proportionality in all possession claims, whether brought by private landlord, RSL, public landlord, and whether summary, mandatory, or discretionary.

I very much doubt that this can be the case. It is not, after all, the court that is evicting the (ex)tenant/occupier, it is the landlord.

McCann focussed on the procedural ‘defect’ of the summary possession procedure against a local authority (ex)tenant. The LA’s ability to ’sidestep’ the requirements of HA 1985 via the NTQ was specifically raised as an issue by the ECtHR in the judgment. The ECtHR acknowledges that the existing summary procedure, and the availability of JR, provides safeguards to ensure the possession claim is lawful and for a legitimate purpose. If the ECtHR had been concerned with possession claims in general, then the lack of availability of JR against private or RSL landlords could have been mentioned as an even greater defect. But it wasn’t.

The ‘procedural defect’ is therefore a lack of ability to scrutinise whether the landlord’s interference with Art 8 rights is proportionate. This can only be the case where the landlord has a human rights duty to act proportionately.

I would be keen to be shown I was wrong, obviously, but I can’t see how McCann can extend beyond public sector landlords. Even if it does, we are back to the issue of statutorily given processes (s.21, mandatory grounds, etc.) and declarations of incompatibility.

Doherty v Birmingham in the Lords will give some clarification, but it is going to be fun in the County Courts for a while.

Possession and human rights - blimey!

Published
by
NL
on 13 May 2008
in Housing law
. 29 Comments

Just when, post Kay v Lambeth in the Lords, it looked like the issue of human rights defences to possession claims was pretty much settled (i.e. there pretty much weren’t any), the ECtHR has decided to put a large stick in the spokes.

As many people have already emailed me to tell me (alright, four people, all of them lovely), McCann v United Kingdom 19009/04 was handed down today. This is a first hurried look, but this one is going to be big. I can’t link to the case directly. It is on the ECtHR site as a recent case. A word copy of the judgment is downloadable here case-of-mc-cann-v2-the-united-kingdom.

The facts can be dealt with quickly, as they are not, in the end, that important. The applicant and his then wife were joint tenants of Birmingham. The wife made accusations of domestic violence and the applicant was removed by ouster order. The wife and children were rehoused by Birmingham. The applicant moved back into the property. When Birmingham found out, they got the wife to sign a Notice to Quit, ending the joint tenancy. The wife claimed she was not told that this would mean ending the applicant’s tenancy as well. Birmingham then brought a claim for possession against the applicant.  The County Court held that there was a breach of Art.8 ECHR in that the applicant’s Art.8 rights had not been properly considered and that Birmingham had apparently induced Mrs McCann to sign the NTQ. Brimingham appealed. The Court of Appeal held - after the decision on Qazi v Harrow [2003] UKHL 43 - that there was no Art 8 defence to the lawful possession proceedings. An attempt at a Judicial Review of the decision to procure an NTQ from Mrs McCann failed as there was no unlawfulness and the decision was properly open to Birmingham. The rest of the issue had already been decided by the Court of Appeal. Permission to appeal refused. The applicant was evicted and brought an application to the ECtHR.

The applicant raised Art 6 - the LA was not an independent tribunal when it brought about the termination of the tenancy. Rejected on the obvious ground that the County Court was the determining tribunal.

The applicant also raised Art 14 discrimination, comparing the LA’s relationship breakdown policy with the policy on domestic violence. Rejected on the obvious ground that DV and relationship breakdown are not the same thing, so different treatment cannot be discriminatory.

But the Art 8 issue went very differently.

It was common ground between the applicant and the Government that:

  1. the property was the applicant’s home (home takes a wide definition, not reliant on lawful tenancy).
  2. the applicant’s Art 8 rights were engaged.

The Government argued that any interference with Art 8.1 rights was justified under Art 8.2. The LA was pursuing legitimate aims, the absolute right to possession was legitimate in a democratic society. The case was distinguishable from Connors v UK (66746/01) as the key features of Connors were i) the vulnerable position of gypsies; ii) the absence of procedural protection - no scrutiny by the courts; and iii) discrimination of domestic law between those residing in private and in LA sites. The LA had merely been seking to regularise the situation in asking Mrs McCann to sign the NTQ. If this was improper behaviour, then Judicial Review was the appropriate course. And, post Kay, public law issues could be raised in the County Court possession proceedings.

The applicant argued that the manner in which the NTQ was obtained was a violation of his Art 8 rights, effectively ending his tenancy with no possibility of challenge.

The ECtHR found something completely different from both. Having reviewed the House of Lords decisions in Qazi and in Kay (and quoting Lord Bingham’s minority judgments in both with evident approval), the Court found that:

  1. the interference with the applicant’s Art. 8 rights was lawful
  2. the interference was in pursuit of a legitimate aim
  3. but the issue was whether the interference was proportionate.

Proportionality is both a factual issue and an issue of procedure. The Court quotes Connors at 81-83 on proportionality and procedural safeguards. It states that it does not accept the limitation of Connors to cases concerning the eviction of gypsies, or to cases where there was a challenge to the law itself. Any person facing the loss of his/her home should, in principle be able to have the proptionality of the measure determined by an independent tribunal, regardless of whether there is a continued right of occupation.

HA 1985 s.84 provides this under reasonableness, but here the NTQ allowed the LA to bypass the HA 1985 procedure, and bring summary possession proceedings under common law. Apparently the LA did this without consideration of the applicant’s Art 8 rights.

The decisions in Qazi and Kay meant that it was not open to the County Court to consider proportionality, save in the exceptional case where ’something has happened since the service of the NTQ, which has fundamentally altered the rights and wrongs of the proposed eviction’ (Court of Appeal decision in Birmingham v McCann).

Judicial review, and by extension public law defences in the County Court did not permit of a consideration of proportionality as JR can only address issues of lawfulness and reasonableness of the LA’s decision. This is not the same as the balancing act of proportionality. There was, in any case, no doubt that the LA had acted lawfully.

There was therefore a procedural breach of Art 8 in that there was no procedural mechanism for the issue of whether possession was proportionate to be considered in the summary possession hearing.

The Court did not accept that a consideration of proportionality under Art 8.2 would be a hardship for the functioning of the system. It would be exceptional for an arguable case to be raised that would require the issue to be considered.

Whether Mrs McCann had understood the import of the NTQ was immaterial. The issue was the lack of any possible consideration of proportionality under summary possession where one joint tenant has served NTQ.

In the Applicant’s case, the Court felt it was doubtful that he would have been any more successful, even if he had had an Art 8 defence. But there was a violation of Art 8 in its procedural aspect.

Well, blimey.

As far as I can see this amounts to a statement that common law summary possession proceedings (at least brought by public bodies) require that a defence of lack of proportionality under Art 8.2 be available.

Clearly this extends beyond the specific facts of this case (end of joint tenancy by NTQ to summary possession claim) to include any common law possession claim brought by a body subject to the Human Rights Act.

Does it go any further?

For the common law, the courts have an obligation as public bodies to behave in accordance with the ECHR, so there is now arguably a duty on them to consider proportionality in common law possessions where the issue is arguably raised. This might include, for instance: possession claims against those in occupation after the death of a tolerated trespasser, who would otherwise have succeeded to the tenancy; or those whose secure tenancy has ended by operation of law (e.g. Malcolm in Lewisham v Malcolm). It would presumably also include possession claims brought against entrenched tolerated trespassers as trespassers (so under common law).

What about other forms of possession against limited or no security tenancies? Possession claims for introductory or demoted tenancies? Temporary accommodation after discharge of duty under Part VII? The effectively summary nature of the possession claims in these cases is given in statute to some degree.

Arguing for the duty to hear an Art 8.2 proportionality defence where there is no provision for a defence at all in statute is going to be a strain on the Court’s HRA duty to interpret statute as in accordance with the ECHR wherever possible. I can see a lot of argument about this. But the direction of the judgment does seem clear - any possession hearing should include the possibility of a proportionality defence being raised, if arguable, at least against a public body landlord.

It is worth noting the the ECtHR takes the s.84 HA 1985 as affording sufficient procedural safeguard for secure possession claims.

But I really need to think about this for longer. Anybody else’s thoughts welcome.

By the way, Garden Court North have a briefing paper on this case now out at their news page - the May bulletin. And Garden Court (south) sent out a press release a day later (14 May) on the ‘decade altering decision‘ and pointing out it was their Stephen Cottle who acted for Mr McCann.