17/12/2008

A Post-Doherty Appeal?

Doherty v Birmingham CC [2008] 3 WLR 636 left us all wondering about the form and limits of a challenge to summary possession proceedings. My attempt at smuggling proportionality into a public law defence settled, for instance -good for the client, rather frustrating for me.

But now we have  Bedfordshire CC v Taylor & Ors [2008] EWCA 1316 to look foward to. This was an application for permission to appeal to the CoA that started as a defence in the County Court, on Article 8 grounds, to a claim for possession by the LA freeholder against trespassers (apparently on similar, but not identical, facts to Kay v Lambeth). The defence was initially based on, as the Court of Appeal puts it, ‘the hope’ that Doherty in the Lords would adopt McCann v UK.

Post Doherty, the appeal was pursued on the grounds that

it is said by the appellants that the decision in Doherty adds a material gloss to Kay; in particular, it is said that, contrary to the majority decision in Kay, it now enables the personal circumstances of the defendants to be taken into account in assessing the proportionality of a decision by a public authority to recover possession of property.

Permission to appeal given, with no suggestion that the appellants should expect success. An Art 8 appeal per se refused under Kay v Lambeth.

As this is one, but far from the only, post Doherty boundary to test, this will be an appeal to watch. Pierce Glynn and David Watkinson for the appellants.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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