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Expanding the Public Law defence, a bit


What Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 actually means for a public law defence to possession claims, particularly summary possession, was the subject of London Borough of Hillingdon v Collins & Another [2008] EWHC 3016 (Admin). This is what was to have been a CMC in the Administrative Court, but turned, by the nature of circumstances, into a consideration of the scope and boundaries of the post Doherty defence. As we’ve previously noted, the House of Lords in Doherty did little to actually make things clear, so Hillingdon v Collins is an important judgment.

The case involved possession of caravan sites occupied by travellers on the basis of (minor) rent arrears and allegations of harassment and ASB, following service of Notices to Quit. The defendants filed defences, giving as grounds a mix of reasonableness issues for eviction, Art 8 rights being engaged, the Court to assess LBH’s reasons for seeking eviction under Art 8, disproportionality, denial of accusations of ASB, and incompatibility of summary proceedings.

The proceedings were transferred to the Administrative Court and stayed pending the appeal in Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318. Following Doherty, the Defendants sought to amemd the Defence and Counterclaim to the following grounds, dropping the incompatibility point:

(a) Smith v Buckland is not binding with regard to Article 1 of the First Protocol

(b) Those rights were engaged when the Notices to Quit were issued and in these proceedings

(c) LBH , as a public authority, was required to act proportionately and the Court had to consider if a fair balance was struck;

(d) Notwithstanding the decision in Smith v Buckland the lack of an ability on the part of the Defendants to challenge the factual basis for a possession order is incompatible with Article 1 of the First Protocol

(e) The difference in treatment between dwellers on sites for gypsies and dwellers on other sites was discriminatory

(f) It was for LBH to evaluate the effects of the taking of proceedings, and the lack of alternative provision, and the Court should consider whether it had done so.

Judge Gilbert QC notes that these proceedings post-date the introduction of a consideration of reasonableness in making a decision whether to suspend a possession order made under the Caravan Sites Act 1968 (as amended by Housing Act 2004 in response to Connors). However, there is no option but to make the Order, until the HRA 2008 provisions come into force. Factual considerations can be addressed in the context of reasonableness in a decision to suspend or not, but not otherwise. And so, to Doherty

Judge Gilbert then embarks on a consideration of Kay, Buckland and Doherty, quoting at length. From Doherty, he quotes extensively from the speeches of Lord Hope and Lord Walker. In Lord Hope’s speech, para 57 in particular is noted as introducing an additional element to the post Kay ‘gateway b’ public law challenge:

It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable [Doherty para 57].

Lord Walker’s speech, cited at length, is taken to show:

(a) His speech, and the reasons for his sense of unease, bears out the point that the effect of Kay and of Lord Hope’s application of it in Doherty is not to enable scrutiny of LBH’s decision to obtain possession in the context of ECHR/Article 8;

(b) He confirms that the Kay gateway (b) test has broadened so that it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

(c) He draws attention to the wisdom of having such a case heard in the County Court.

Judge Gilbert QC’s conclusions are that:

54 I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.

55 I also consider that the test is no longer whether the claim on public law grounds is ” seriously arguable.” It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.

56 I also consider in the light of Lord Hope’s speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope’s speech. I draw attention also to paragraph 54 of Lord Hope’s speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown’s concerns..

57. That approach has other practical effects:

(a) it will help the judge when he gets to the stage of considering whether or not to suspend possession. As already noted, at that stage he will have to weigh the case in favour of suspension against the case for it. Of course the fact that LBH will have a right to possession is a matter which must attract weight, but the degree of weight depends on many other factors, and since that is the relevant stage at which to address Article 8 issues, then proportionality will be of significance. An order for possession sought because an occupier is one month behind with the rent is a far less powerful one than one where the arrears have amassed over six months. An occupier who has been engaged in one drunken act of disorder during a row with his neighbour may be regarded as much less culpable than one who has inflicted serious physical harm and engaged in numerous threats. I do not intend to set out a prescriptive list, as there is a wide variation of relevant circumstances, and a wide variation of potential weight that can be ascribed.

(b) I regard it as artificial to have one judge address whether the authority acted reasonably when considering the wider Kay approach, and another one then addressing that issue again, or at least a closely related issue, at the suspension stage. I follow Lord Walker’s reluctance to see an Administrative Court judge having to hear oral evidence in a forum unsuited to it. There is no better tribunal, nor one more experienced in dealing with disputes of this kind in housing cases, than an experienced circuit judge sitting in the county court. I express the view that this matter should be heard by a circuit judge with experience of possession disputes.

The matter was remitted to the County Court, to be heard by a CJ with possession experience and directions were given for disclosure and witness evidence.

So Judge Gibert QC takes Doherty as confirming that a public law defence (on JR grounds) and a human rights defence have not been fused, so that consideration of the LA’s decision is not a scrutiny in the context of Art 8 (or other Article). The defence has clearly been taken here as extending to issues of fact in assessing whether the decision to bring proceedings was reasonable (in the sense that no reasonable person would consider it justified, not Wednesbury grounds). The proper venue is the County Court, but we knew that – although the direction for a CJ to hear it is interesting.

This is not a surprising version of Doherty, but it is, I think, quite a conservative one. Even in Lord Hope’s speech, here taken as the lead one, there are suggestions that proportionality is at least akin to a JR ground. But Judge Gilbert QC keeps a consideration of proportionality firmly out of a ‘gateway b’ public law defence, in favour of a quasi new ground of reasonableness defined as ‘a decision that no reasonable person would consider justified’.

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.


  1. J

    Just a few short points:
    (a) I thought the comment (apparently an issue in an earlier appeal) that s.153A HA 1996 couldn’t apply to a caravan site where the landlord only owned the plot and not the caravan was interesting; and
    (b) this still won’t satisfy the ECtHR, or, at least, doesn’t appear to meet the requirements of para. 50 in McCann;
    (c) this is a wider public law question. In CCSU, Lord Diplock characterised public law challenges as irrationality, illegality and procedural impropriety. By s.6 HRA 1998, it is unlawful for a public authority to act incompatibly with a Convention right. So why not frame an Art 8 challenge as an illegality challenge, rather than as a freestanding HRA challenge?

    • NL

      On (b) No, certainly not. No more than Doherty would.

      On (c) perhaps because that is akin to a restatement of incompatibility? The LA is pursuing a lawful possession (Kay). If it was so badly in breach of Art 8, then it would likely also fall foul of the ‘extended’ reasonableness. On the other hand, yes, I can see that argument. Hmm.

      On (a) I need to have another look.

      • NL

        Still thinking about the ‘illegality’ approach. One the one hand, it arguably doesn’t fall foul of Kay, because one is not contesting the right to possession. It doesn’t fall foul of Kay by importing human rights into JR grounds – one is asserting the failure of the public body to act lawfully in failing to act in a compatible manner.

        But, then again, surely one would have to show that either the Public Body had failed to consider Art 8 at all, or that it had but had persevered despite there clearly being no justification or proportionality in its action. In either case, the public body would have Kay to fall back on, specifically the presumption that in using its powers under existing housing law, the Public Body is acting compatibly.

        So it is akin to an incompatibility argument in the end. It would, in any case, be a higher mountain to climb than the new fangled reasonable test, which would arguably also cover the same facts.

        Or am I missing something? Probably.

        • J

          It’s just something I’m toying with and I’m not sure that it is going to work. However, the obligation under s.6 is to act compatibly unless prevented from doing so by primary legislation. How can this be satisfied merely by considering the jurisprudence? The focus is (surely) on the result, not the methodology.

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