Yesterday evening I asked for more information about Dixon v Wandsworth LBC (No 2) [2009] EWHC 27 (Admin) and, by the next morning, two copies of the transcript had made their way to my inbox. My gratitude to The Chief and to William Flack of Flack & Co, who are acting for Mr Dixon. Without wanting to get too carried away, this looks like it could be a significant case and I’m going to deal with it in some detail.

The facts

In April 1993 Mr Dixon (then aged 17) and his sister became the joint secure tenants of Wandsworth at a 2 bed flat in SW11. In October 2005, the sister served a Notice to Quit on the claimant, with the result that the joint tenancy came to an end – see LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

Wandsworth then appeared to have considered re-housing Mr Dixon in his own 1 bed flat. That offer was withdrawn after Mr Dixon was cautioned for possession of cannabis and convicted of possession of cocaine. Possession proceedings were then issued, seeking recovery of the 2 bed flat. Those proceedings were expressly pleaded on the basis of the NTQ served by the sister and a possession order was granted.

The first set of proceedings

After the possession order was made, but before it was executed, Mr Dixon applied for further housing from Wandsworth under Part 6 Housing Act 1996, but was told that, because of inter alia his drug conviction, he was now treated as ineligible for social housing – see s.160A(7), Housing Act 1996. He challenged that decision by way of judicial review but was unsuccessful. See Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin). The Court of Appeal refused permission to appeal, both on the papers and after an oral application.

These proceedings

Mr Dixon then applied to set aside the warrant of possession, contending that, were it to be executed, it would amount to a violation of his rights under Art. 8, ECHR. By consent, the application was transferred from the Wandsworth County Court to the High Court.

The law – according to the High Court

Before dealing in any substance with the arguments of the parties, the High Court set out what it regarded as the law.

The starting point was that a Notice to Quit given by one joint tenant would have the effect of terminating the tenancy, regardless of whether or not the other joint tenant(s) supported that move. This had been settled law since Doe d. Aslin v Summersett (1830) 1 B&AD 135 and had been confirmed in LB Hammersmith & Fulham v Monk [1992] 1 AC 478.

That rule of law had not, however, developed with any consideration of the rights of the parties under Article 8. In Qazi v LB Harrow [2004] 1 AC 983, the House of Lords had directly confronted this point and had concluded that Article 8 could not be used to defeat a private law contractual and proprietary right to possession. There was no infringement of Article 8 in recovering possession pursuant to a Notice to Quit.

That position had been further explained by Kay v LB Lambeth; Price v Leeds CC [2006] UKHL 10. One of the points in that appeal had been whether or not Qazi (and Monk) needed to be reconsidered in light of the decision of the European Court of Human Rights in Connors v UK 40 EHRR 189. Qazi was explained as meaning that, although Article 8 was engaged, domestic law would supply sufficient justification for the purposes of Article 8(2) in most cases.

There were, in effect, two gateways. Gateway A was a challenge to the underlying legislation such that it either had to be reinterpreted so as to comply with the requirements of the Human Rights Act 1998 (or a declaration of incompatibility granted) and Gateway B was a challenge, on judicial review grounds, to the decision to seek possession. Challenges could not be taken on the basis of individual personal circumstances.

In Doherty v Birmingham CC [2008] 3 WLR 636, Kay was revisited but not overruled. An unqualified right to possession could be challenged if the decision to seek possession was one that no reasonable person would consider justifiable.

The ‘new’ factor in the present case was the decision of the European Court of Human Rights in McCann v UK 19009/04. The European Court had found that possession proceedings predicated on an unqualified right to possession were in accordance with the law and pursued legitimate aims. However, they could not be said to be proportionate or necessary in a democratic society. Article 8(2) required an individual assessment of the eviction by a court and could not be met by a blanket presumption that domestic law had struck the correct balance.

That was the critical point of difference between the House of Lords and the European Court. The House had received written submissions on McCann before deciding Doherty and had concluded that it was not open to them to permit individual circumstances to stand as a free-standing defence. Judicial review-style defences were the only ones permissible.

The decision: Gateway A

When considering the compatibility of the rule in Monk with Article 8, McCann was of limited assistance. McCann had involved a local authority improperly procuring a Notice to Quit, whilst, in the present case, the Notice to Quit had been given freely by a private individual. All Wandsworth were doing was exercising their common law rights, as a result of the service of the notice.

It was not open to Mr Dixon to contend that the rule in Monk was incompatible with Article 8. That issue had been decided, against Mr Dixon, in Qazi. It was unclear what sort of modification Mr Dixon would want made to the rule in Monk. Why should an unwilling tenant be forced to remain in a joint tenancy against their will? Would the new rule apply equally to the public and private sector?

McCann was, at best, merely a persuasive authority. It had been doubted in the House of Lords and was factually distinguishable from the present case. There was no basis for contending that the rule in Monk was incompatible with Article 8.

The decision: Gateway B

Any challenge under Gateway B had to be on the basis that no reasonable person would consider the decision to seek possession justifiable. Although some of their Lordships in Doherty had suggested that this might need to be widened, none had actually done so.

The Court was not to substitute its own view of the proportionality of the eviction. Whilst there was no evidence to show that Wandsworth had carried out any proportionality assessment, the totality of the evidence was such that, had the assessment been carried out, Wandsworth could properly have concluded that it should seek possession.

What to make of this

I have some sympathy for the Judge, but this is a decision which side-steps the major issue. It was the ratio of McCann which mattered, not the facts. If, as the European Court held in McCann, a right to possession which does not afford a court the opportunity to examine the proportionality of that eviction is incompatible with Article 8, then surely all mandatory grounds (NTQ, s.21, Housing Act 1988, Ground 8, Housing Act 1988 etc) are incompatible with Article 8.

The House of Lords does not accept this premise and does not agree that an individual examination of the proportionality of the eviction is necessary, but has not yet properly said so. McCann and Connors cannot stand with Qazi, Kay and Doherty and, at some stage, their Lordships are going to have to bite the bullet and decide what to do about this.

I am less sympathetic however to his treatment of the proportionality question under Gateway B. On the one hand we’re told that a court cannot simply come to its own conclusion on proportionality, but on the other, the court decides that, if Wandsworth had ever done such an assessment, they would have been entitled to decide that they should proceed. Surely the landlord should do a proportionality assessment before each and every eviction. Permission to appeal has been sought on this point.

Finally, I’m not entirely convinced that this decision is compatible with Hillingdon v Collins & Another [2008] EWHC 3016 (Admin), discussed by us here. I’ll need some more time to reflect on that though, but, if there is even a slight difference, surely the Court of Appeal should grant permission… is it too much to hope that the Court of Appeal might then explain what Doherty actually means in practice?