North of the border

Glasgow City Council v Mitchell [2009] UKHL 11

This is a Scottish appeal to the House of Lords on the scope of the duties owed – if any – by landlords in respect of the behavior of their tenants. It is a difficult case to read (at least for any English lawyers) because of the different terminology used in Scottish cases but – for the joy of housing law – we here at NL have managed to read and translate the case. Here is what is says.

Mr Mitchell and Mr Drummond were the tenants of Glasgow City Council (“Glasgow”). On 31 July 2001, Mr Drummond attacked Mr Mitchell with a stick or iron bar. Mr Mitchell was severely injured and died on 10 August 2001. Mr Drummond was convicted of culpable homicide and sentenced to five years imprisonment.

The attack of 31 July 2001 was not wholly unexpected. The parties had been neighbors since the 1980’s and there had been a series of incidents. Mr Drummond had verbally abused Mr Mitchell; threatened him with an iron bar; battered his door and smashed his windows; threatened to kill Mr Mitchell (on a regular basis). If that was not enough, Mr Drummond had also been involved in anti-social behavior (attacking a tenant with a tyre lever) at his previous property.

In January 2001, Glasgow started possession proceedings. A meeting was called with Mr Drummond in July 2001 to discuss the most recent incident of anti-social behavior. In that meeting, Mr Drummond became abusive and lost his temper. He left the meeting, returned home, and promptly assaulted Mr Mitchell.

Glasgow had not warned Mr Mitchell that they would be meeting with Mr Drummond, nor did they warn Mr Mitchell (or the police) of Mr Drummond’s violent behavior in the meeting.

The widow and daughter of Mr Mitchell issued proceedings against Glasgow CC, contending that they had breached a duty of care owed to Mr Mitchell at common law and / or, that they had acted in a way which was incompatible with Article 2 of the ECHR. It was their case that, had Glasgow warned Mr Mitchell about the meeting and Mr Drummond’s violent reaction, then Mr Mitchell would have been able to take steps to avoid Mr Drummond on that fateful afternoon.

Glasgow applied for the Scottish equivalent of a strike out / summary judgment and was successful before the Lord Ordinary and the Extra Division. Thus did the case come to their Lordships House, where Glasgow were vindicated by five votes to zero.

Lord Hope gave the leading judgment. His Lordship rejected the claim at common law. Although all that was contended for was a “duty to warn” that still raised fundamental issues about the scope of the duty owed by landlords, whether public or private sector, to persons who live next to anti-social tenants.

His Lordship felt there were three basic propositions of law to consider and apply:

(a) it was not enough to give rise to a duty of care that harm was foreseeable (Dorset Yacht Co v Home Office [1970] AC 1004);

(b) the law did not ordinarily impose positive duties to protect others (Smith v Littlewoods Organisation Ltd 1987 SC (HL) 37;

(c) the law did not impose a duty to prevent a person being harmed by a criminal act of a third party merely because such harm was foreseeable (Smith, above).

One had to demonstrate that it was “fair, just and reasonable” (Caparo Industries v Dickman [1990] 2 AC 605) before there could be any liability at common law. In Hussain v Lancaster CC [200] QB 1, it had been held that there was no duty of care owed by a landlord as regards the exercise of a discretionary power to seek possession.

For policy reasons, it would not be right to overturn that decision. If there was a duty to warn of possible attacks, where would it stop? Would social workers owe that duty? Would private landlords? Would the duty be owed to all persons in the neighborhood of the violent individual? This would swiftly become an onerous duty. Far better to leave landlords to make decisions on the facts of each case and not to impose a general duty. Landlords, especially social landlords, had better things to devote their time and money to dealing with. In short, it was not “fair, just and reasonable” to impose any duty on Glasgow in this case.

As to the claim under the Human Rights Act 1998, it could not be said that Glasgow ought to have known that, when Mr Drummond left the meeting, there was a real and immediate risk that Mr Mitchell’s life was in danger.

Lord Scott agreed with Lord Roger and Lord Brown on the common law liability.The common law did not, in general, impose liability for omissions. There had to be something more than a mere omission for liability to attach. The relationship of landlord/tenant was not sufficient to give rise to a duty to protect against the risk of being assaulted. There was nothing to suggest that Glasgow had gone on to assume responsibility for Mr Mitchell’s welfare. Whilst it would have been prudent to have warned him of the outcome of the meeting, there was no duty to do so and the failure to do so did not amount to a breach of duty.

On the Human Rights Act 1998, Lord Scott agreed with Lord Hope and had nothing to add.

Lord Rodger agreed with Lord Hope, Lord Scott and Lord Brown. The starting point was the tenancy agreement. There was nothing in the agreement which gave rise to any obligation to protect or warn Mr Mitchell. Public sector tenants were responsible individuals with rights, not a class of people who could not be expected to look after their own interests.

At the time of the fatal assault, Glasgow were taking steps to evict Mr Mitchell. Whilst the meeting had provoked the fatal assault, that was not sufficient to make Glasgow liable for the subsequent acts of Mr Mitchell because there had been no act by Glasgow which provided the opportunity for Mr Drummond to attack Mr Mitchell – Maloco v Littlewoods Organisation 1987 SC (HL) 37 applied.

Possession proceedings were predicated on a power to issue such proceedings, not a duty to do so. There could not have been any duty to, for example, seek possession some years earlier – Stovin v Wise [1996] AC 923, although an irrational decision not to issue possession proceedings might be subject to judicial review.

Ultimately, criminal activity was a matter for the police and criminal justice system, not a landlord.

The claim under Article 2 was also doomed to fail. The duty to prevent criminal violence was vested in the Strathclyde Police Force, not Glasgow.  The mere fact that Mr Drummond and Mr Mitchell were tenants of Glasgow could not somehow impose a duty under Article 2. Glasgow was a landlord, not a crime-fighting agency.

Baroness Hale did not expressly agree with anyone, but supported three points made in the other speeches. Firstly, she agreed that foreseeability of harm did not give rise to a duty of care without something more. Secondly, foreseeability of criminal acts by a third party was a necessary, but not sufficient condition for the imposition of a duty of care. There has to be some particular reason why X should be held to have assumed responsibility for protecting Y from Z. Thirdly, it is not fair, just and reasonable to impose a duty on a landlord in these circumstances where, ultimately, the anti-social tenant was a grown-up with a mind of his or her own who should answer for his or her actions.

Finally, Lord Brown felt this could be reduced to a simple question – would it be a good idea if landlords were under a duty of care in cases such as this? The answer was a resounding “no”, for the reasons given by Lord Hope.

What to make of that?

Despite purporting to agree with each other, their Lordships do seem to have given a number of different reasons for rejecting the appeal. But, reject it they have, and on the policy ground that landlords should not be expected to deal with criminal behavior and should be free to manage their housing stock as they see fit. This strikes me as a very narrow view of what local housing authorities and RSLs actually do – see, for example,  s.17 Crime and Disorder Act 1998 (duty to take steps to reduce crime and disorder in a local government area). But this was argued – or so it appears – very much as a negligence case, rather than a housing/local government case. Their Lordships don’t for example, deal with Hussain, Mowan, Smith v Scott etc in any detail.

I’d expect X v Hounslow to follow suit now and confirm that, in England as in Scotland, there is no duty of care owed in respect of the criminal acts of ones tenants, unless “something more” can be found or some sort of assumption of responsibility. Perhaps the fact that Hounslow is focusing on the failings of a local social services authority AND a local housing authority might provide a way around this decision, but, I have to say, I can’t see the Court of Appeal being brave and taking a contrary line to that taken in this case.

About J

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.
Posted in ASB, Housing law - All and tagged , , , .

6 Comments

  1. You get the language problems a lot in employment too. I like this bit in your case…

    an Extra Division (Lady Paton, Lord Reed and Lord Penrose) by a majority (Lord Reed dissenting) recalled the Lord Ordinary’s interlocutor and allowed a proof before answer on the pursuers’ case at common law. By a different majority (Lady Paton dissenting) it excluded from probation their averments that the defenders acted in a way that was incompatible with the deceased’s Convention right: 2008 SC 351. The defenders appeal to your Lordships against the allowance of a proof before answer. The pursuers cross-appeal against the exclusion from probation of their case under the Human Rights Act 1998.

    Whaaa…? Presumably all the English have to have their hands held.

    • I had (and I kid you not) a Scottish law dictionary to hand when I wrote this case up. In all seriousness, it’s actually a good lesson in humility for lawyers to suddenly realise that they don’t understand the jargon. Just think how our clients must feel!

  2. Its simply a policy argument.

    If, by tackling anti-social behaviour, a local housing authority was deemed to have accepted responsibility in negligence, a prudent local authority would be better off doing nothing, or as little as they could, as that way they would escape liability.

    Because as soon as they took any real step to tackle anti-social behaviour they would assume a responsibility and thus be liable in negligence for the actions of their officers if anything went wrong.

    The argument runs that broadly speaking you do more harm to the majority by creating a duty than you do to the minority by refusing to create a duty.

    It might seem harsh in individual cases such as this, and might not necessarily be right for certain local authorities, but I think in the main its sound.

    • I understand the policy argument but, with my jurisprudential pendantic hat on, I’m uneasy about the result. Given the plethora of ASB related duties imposed on social landlords by, inter alia, s218A Housing Act 1996; the guidance issued under s.218A(7) in August 2004; s.17 Crime and Disorder Act 1998 and the policies required by ss.5-7 of that Act, not to mention ss.2-4 of the Local Government Act 2000 – is there not a case for saying that – in that narrow category of landlord – some sort of duty does now need to be recognised?

      Their Lordships just didn’t engage with the case at this level and, as you say, have decided that, as a matter of policy, there should not be a duty. It is a frustrating decision – it just doesn’t read like a case where their Lordships actually engaged with the argument.

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