The mopping up of the tail end of tolerated trespasser cases continues.

Barry Austin v LB Southwark [2008] EWCA Civ 66 was the Court of Appeal hearing of the appeal from the High Court hearing we noted earlier.

The issue at stake was whether Mr Austin would have a right to apply under s.85 HA 1985 to vary the possession order made against his late brother Alan in 1987, so as to revive the tenancy, by way of application to the Court under CPR 19.8 to represent his late brother’s estate in the possession proceedings.

If the possession order were varied, Mr Austin would succeed to his late brother’s tenancy. At the time of his death, Alan Austin was a tolerated trespasser and had been since 1987.

Brent LBC v Knightley (1997) HLR 857, [1997] EWCA Civ 917 was Court of Appeal authority that the right to apply under s.85 to vary the possession order was not inheritable. The issue here was whether the late (ex) tenant’s estate retained the right to make a s.85 application.

Mr Austin, via Jan Luba QC, argued that:

A secure tenancy does not determine on the death of the tenant, because it can vest in a successor. Thus an order for revival after death would be effective.

The discretion under s.85(2) to vary the order can be exercised at any time before the execution of the order. There is no suggestion that this ends at the death of the tenant. A successor could exercise it, or, the estate where there was an extant possession order, but the date for possession had not yet passed.

There are practical reasons for allowing a post-mortem application for a tolerated trespasser – possibly for removing belongings or the landlord may wish to apply. A spouse. cohabitant or former such may wish to apply under s.85(5).

If Alan Austin had made an application but died before it was heard, the order could still be made.

Brent v Knightley could be distinguished. There was no application to represent the estate of the deceased Mrs Knightley, so the decision was not binding. Alternatively, Knightley was decided per incuriam because s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 meant that it was possible for causes of action to survive death. The right to apply under s.85(2) should be treated as a transmissible personal right. The causes of action which survive include causes of action founded on statutory rights, which included s.85 applications.

Further, the right to make a s.85 application was a property for the purposes of Art 1 Protocol 1 ECHR and s.85(2) should be interpreted in accordance with Art 1 Prot 1.

Southwark, via Richard Drabble QC, argued that Brent v Knightley was binding. The right to apply under s.85(2) was a personal right for the ex-tenant which did not survive death and therefore Art 1 Prot 1 was not engaged.

Arden LJ’s lead judgment held:

1. Subject to s.3 HRA 1998, the court was bound by Brent v Knightley. Knightley decided that the right to apply under s.85 was a personal right that can only be exercised by the tenant. It is not an interest in land capable of being inherited – Aldous LJ and the only possible way Miss Knightley could succeed was via s.89 HA 1985 – Schiemann LJ. The relevant claim was an application under s.85, not the original possession proceedings as the defence was merged into the possession order.

(As an aside, given that any s.85 application has to be under the original possession proceedings to vary the original order, I’m puzzled by this last bit, but as nothing much apparently turns on it in this judgment…)

2. Knightley was not decided per incuriam as the relevant statutory provisions were before the court and it had not been shown that any relevant authority had been overlooked (as it would have to have been shown that the authority overlooked would have required the court to reach a different conclusion Duke v Reliance Systems Ltd [1998] QB 108).

3. The right to apply under s.85 is restricted to the tenant, successor or a person to whom s.85(5) applies (spouse/cohabitant or former such). No right is given to any other person.

4. S.85(2) does not contain express provision as to who can apply, but absent express statutory provision, it can only be by a party to the possession proceedings or a person deriving title through a party where permitted by the HA 1985.

5. As the right to apply under s.85 was a personal, non-transmissible right, Art 1 Prot 1 was not engaged, as it does not create rights not given in domestic law.

The estate could not make a posthumous application under s.85, there was therefore no need to consider Mr Austin’s application under CPR 19.8(1)(b).

Londmore LJ and Pill LJ concurred. Appeal dismissed.

There are some odd comments.

Contrary to my earlier suggestion that the House of Lords decision in White v Knowsley might change the landscape for the Court of Appeal on the remaining tolerated trespasser cases, the Court of Appeal found no reason to interfere with this part of the secure tenant ‘tolerated trespasser’ regime.

I’d be interested in other’s views here, as the discussion of the House of Lords judgment in White v Knowsley strikes me as slightly odd. While there was nothing in that judgment that would directly impact on this case, I don’t think it is quite right to say that the mention of Brent v Knightley was ‘without apparent criticism or qualification’ [para 21] for instance, in view of Lord Neuberger’s comments at para 91 of White.

The CoA even suggests that the effects of tolerated trespasserdom were ‘the intention of Parliament’. [paras 49 and 54]. I’m not sure that anybody had any idea what the Courts were going to invent out of Housing Act 1985 in Burrows and after, let alone intend it.

The suggestion of Longmore LJ that one should not seek convoluted technical arguments to try to avoid the intention of the Housing Act 1985 [para 56] would thereby be a little misplaced, with respect, as arguably, the whole TT regime is the result of just one such argument.

On the core argument here. I do wonder whether it is right to describe a statutory right, which is clearly transmissible in some circumstances (e.g. by succession) as a wholly personal right. I’m also not entirely sure that the Art 1 Prot 1 issue is quite so straightforward, given the ECtHR case law.

But as the Court of Appeal considers itself bound by Knightley, these issues would be for the Lords to decide – any news on this going to the Lords will be passed on as soon as we hear.

For Austin: Jan Luba QC and Desmond Rutledge, instructed by Anthony Gold.

For Southwark: Richard Drabble QC and Shaw Kelly, instructed by Southwark Legal