This is an interesting case that I missed when it came out on Bailii a couple of months ago. It has just been mentioned in Legal Action, so I went to have a look.

Austin v London Borough of Southwark [2007] EWHC 355 (QB) concerned an attempt to revive a tenancy after the death of the tolerated trespasser via an application by the deceased’s brother under CPR Part 19.8 to be appointed to represent the Estate. If the tenancy was revived, the brother would succeed to the tenancy. The brother was facing a claim for possession.

This had seemed to be settled by the Court of Appeal in London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857, which held that the right to apply for a postponement of an order for possession under s.85(2) was not an interest in land capable of being inherited.

Austin, on appeal from the County Court, contended that Brent v Knightly predated the HRA and is not compliant with Art 1 Protocol 1 of the ECHR:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The appellant argued that the ability to make a s.85 application (called a Lazarus order in this case) should be a possession under Art 1 Prot 1 and thereby inheritable.

At first instance, the Court had found that this was not a live matter for the purposes of CPR 19.8, but in any case, the Court would not have exercised its discretion to appoint as it was bound by Knightly.

The High Court found that Art 1 Prot 1 didn’t apply; firstly because Knightly does not mean a deprivation of possession, because the tolerated trespasser is dead and can’t enjoy the possession. Secondly:

Article 1 is intended to protect a citizen’s possession from arbitrary interference or deprivation by a public authority.  It does not confer substantive rights to property which do not otherwise exist.  That is the effect of the decision of the Court of Appeal in Kay v. Lambeth Borough Council [2005] QB 352.

The appellant raised Stretch v UK 2003 and Tettorini v Russia 2005. From the latter:

The court reiterates at the outset that the concept of possessions in the first part of Article 1 of Protocol 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. Certain other rights and interests constituting assets can also be regarded as property rights and this as possessions for the purposes of this provision.

But the High Court didn’t see that this made any difference to Kay v Lambeth or Knightly. Appeal dismissed.

Given that Knightly was a Court of Appeal judgment, I am guessing that Counsel for the Appellant, Desmond Rutledge, instructed by Anthony Gold, must have planned to take this one upwards from the High Court. One to keep an eye open for.