The difference in Doherty?

A Court of Appeal judgment expressly dealing with a post Doherty public law defence to termination of licence by Notice to Quit was handed down today. Doran v Liverpool City Council [2009] EWCA Civ 146 concerned a possession claim for a plot on a local authority travellers’ site.

Liverpool served Notice to Quit on the basis of alleged breach of licence conditions by ASB abd other breaches. The claim was defended on the basis that the allegations were denied or contested and that there was a public law defence to the decision to issue Notice to Quit. At County Court, summary judgment was granted, abeit that the judgment isn’t entirely clear on why the defence was rejected. Execution was stayed pending appeal.

At the Court of Appeal, the issue was whether the previous court of appeal judgment in Smith v Evans [2007] EWCA Civ 1318 (actually Smith v Buckland, but continually cited here as Evans) could be considered as still standing after the decisions in Doherty v Birmingham City Council [2008] UKHL 57 (our post on Doherty here).

Unlike Kay v Lambeth and Connors, both Smith v Evans and the present case involved proceedings brought after s.211 of the Housing Act 2004 came into effect, amending s.4 Caravan Sites Act 1968 to remove the exemption of local authorities from the court’s power to suspend execution of a possession order,. So although possession remained summary, execution could be suspended on terms and the terms later varied. It was common ground that Kay Gateway A – the incompatibility argument – was not engaged. The issue therefore was the extent and nature of the public law defence post-Doherty.

Smith v Evans (or Smith v Buckland) had found that ‘the public law defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it’ (Dyson LJ at para 40). Th Court in Smith also found that the amendment to s.4 Caravan Sites Act was significant as it meant no eviction without judicial scrutiny.

Here Mrs Doran, via Mr Berkley QC, argued that:

Gateway (b) had been widened in Doherty such that the personal circumstances and history of occupation of Mrs Doran were factors that should be considered both the the Council in deciding to issue an NTQ and by the Court in considering whether the Council’s decision was one that a reasonable person would consider justified. On the facts of Mrs Doran’s circumstances there was an arguable public law defence and the matter should be remitted to the County Court to hear the defence once the summary judgment was set aside. He also argued that there would be breaches of articles 6, 8 and/or 14 if the matter were not remitted.

For Liverpool, Mr Bartley Jones QC submitted that Doherty made no difference to the law in a case under the amended Caravans Act, as held in Smith v Evans. He also argued that the facts in Mrs Doran’s case did not give rise to an arguable defence.

The intervening Secretary of State for Communities and Local Government, by Mr Stilitz, supported the position of the council.

So the Court considered Doherty and the gateway (b) defence.

When the discussion was of the Caravan Sites Act prior to the Housing Act 2004 amendment (here called phase 1), Counsel for Liverpool, Mrs Doran and the intervening Secretary of State all agreed that Doherty had widened gateway (b), in a way that dismayed the court. In fact Counsel for Liverpool appeared to take the widest view: [para 46 Toulson LJ]

Mr Bartley Jones submitted that it gave rise to a new form of judicial review of uncertain dimensions, wider than judicial review as ordinarily understood but at the same time not extending to a full application of the Convention. Mr Stilitz for the Secretary of State submitted that the effect of the clarification and modification in Doherty was far more limited. It was a modest development in the elucidation of domestic public law principles. Mr Berkley took an intermediate position, submitting that the effect was less dramatic than was suggested by Mr Bartley Jones but more significant than was suggested by Mr Stilitz. Counsel were united in the view that the decision had created a new battleground area (to follow the analogy used by Lord Mance in Doherty at para 125) and predicted that there would inevitably be much argument about the scope of the modification of gateway (b) in future cases in the county court and on appeal. That is a bleak prospect. The last thing that will help councils or caravan dwellers is further complexity or uncertainty.

The Court of Appeal, in Toulson LJ’s sole judgment, finds a twofold effect in Doherty.

1. There is no formulaic restriction on the factors that may be relied upon in support of a gateway (b) public law defence. Factors are not automatically irrelevant because they include personal circumstances, like length of occupation, or any steps to provide an alternative taken by the Council. [para 49]

2. The question whether the Council’s decision was one that no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law and not through the lens of the Convention (ECHR). [para 50]

These two principles are not in conflict and should be applied without further complexity.

But, common law principles are not frozen [para 52]:

Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment.

When it came to the amended Act (‘phase 2′), the parties’ positions differed further, with Liverpool and the SoS arguing that the matters to be taken into account in a gateway (b) challenge under phase 2 should be more restricted, on the basis that Doherty did not overrule Smith v Evans (or Buckland) and in any case Doherty only dealt with phase 1, leaving Kay as authority for phase 2. Toulson LJ gave that short shrift. All that was clarified and to some degree modified in Doherty was the range of factors to be taken into account in ‘conventional judicial review’, so no change to the principle in Kay. Besides, there was no justification for having a narrower range of factors for consideration in case after the amendment than before. It would just make things more complex.

However, the existence of the Court’s powers of suspension under s.4(A) would be a factor in considering whether the Council had acted in a manner no reasonable person would have done. The Court finds a parallel with introductory tenancies (also lasting a year) under Part V HA 1996 – this is a probationary period. So, a) the Council might seek possession on the basis that it will be suspended and b) the court has its own responsibility to decide on suspension or not. Any decision to serve an NTQ will be taken against that backdrop and with it scrutiny of the circumstances, making it less likely that the Council would lack any ground for deciding to serve the NTQ.

On the facts in the present case, there was no sustainable public law defence to the claim. it was unarguable that the council had acted in a manner that no reasonable Council would in serving an NTQ. The Council could not be expected to conduct a quasi judicial enquiry into exactly where the truth lay between allegation and counter allegation [para 56].

Mr Berkley’s argument that even if the decision was not unreasonable on the material known to the Council at the time, it could become retrospectively unreasonable for the court after full consideration of the evidence was also unsustainable in principle and on authority – Smith v Evans. There was nothing implicit in Doherty to suggest otherwise.

No convention arguments arose in the case. Gateway (a) was not argued and the observations in Doherty that a declaration of incompatibility for s.5 Mobile Homes Act 1983 would have been made save for the Housing & Regeneration Act didn’t lead anywhere in this case.

Appeal Dismissed. LJs Aiken and Jacobs concurred.

Toulson LJ gives practical guidance – this is mostly specific to possession claims under S.4 Caravan Sites Act as amended by Housing Act 2004 (‘phase 2’). The public law defence is characterised as facing ‘a high test rarely likely to be satisfied’ in these cases. The guidance is quoted below, but it is worth noting that this is specific to the situation where a one year (renewable) suspended possession order may be made.

For most summary possessions following NTQ no such discretion is available, so the observations noted above on ‘the legislative background’ providing something like a guarantor of the Council not being unreasonable don’t apply.

It is also worth noting the confirmation that the key decision for purposes of the public law defence is the decision to serve NTQ. There is no reason to hold that there are subsequent separate decision to issue the claim and to ask for a possession order [para 2].

Guidance by Toulson LJ

65. Where a local authority seeks possession after service of a notice to quit in a case arising under the legislative scheme, phase 2, there is seldom likely to be any dispute about the service of the notice to quit, and instances where the licensee has a genuinely arguable public law defence are also likely to be very rare. But cases where the court is asked to exercise its power of suspension under s4 of the Caravan Sites Act 1968 are likely to be much more common. It would be sensible if the directions given in such cases required the defendant to set out in writing all matters relied upon in support of such a suspension, and for the council, if it intends to oppose the application, to respond by setting out its grounds of opposition. It would also be sensible to order an exchange of witness statements on that issue. In the rare case where the licensee advances a public law defence to the claim, as well as invoking the court’s statutory power of suspension, it is unlikely to be a sensible use of the court’s time to conduct a hearing to decide whether the matters relied on by the licensee give rise to an arguable public law defence, when the same matters are going to have to be investigated in any event on the question of suspension. It will make better sense for the court to hear the evidence and if, at the end of it, there remains a live issue as to the lawfulness of the notice to quit, for the court to give a judgment dealing both with that issue and (if the defence is unsuccessful) with the question of suspension. That was not the course taken in this case. If it had been, there would have been a considerable saving of time and costs.

66. Conscious of the undesirability of judges in the county court having to read through lengthy appellate decisions when dealing with a claim for possession by a local authority of a pitch falling within the Caravan Sites Act 1968, it may help if I seek to summarise the position shortly.

67. In a case arising out of phase 2 of the legislative scheme, where notice to quit has been served, but the occupier asserts that the decision to serve it and seek possession was unlawful, it is for the licensee to make good such a defence. To do so, it must be shown that the council’s decision to serve the notice and seek possession was one which no reasonable council would have taken in the circumstances known, or which ought to have been known, to it at the time of the decision. This is a high test and rarely likely to be satisfied where the decision was made in good faith (for reasons more fully discussed in Smith v Evans and above).
The exercise of the court’s jurisdiction under s4 to suspend a possession order involves a much wider consideration of what would be just. Here the court is not simply reviewing the decision of the council which began the eviction process, but is forming its own judgment about whether a possession order should be suspended and, if so, for how long and on what conditions. It is required under the terms of the section to take into account the behaviour of the occupier and what attempts he or she has made to obtain alternative accommodation. Those factors are not exclusive. The court must itself be mindful of the occupier’s article 8 rights, which will need to be balanced against any other relevant considerations, such as the need to preserve public order, the interests of other residents and the need for safe and proper administration of such sites. (For example, it cannot reasonably be expected that council staff should have to spend time repeatedly sorting out disputes about disruptive or antisocial behaviour.) Article 8 rights are important but are not the same as security of tenure.

68. When phase 3 of the legislative scheme comes into force, the occupier will have a greater degree of contractual security by virtue of the Mobile Homes Act 1983. Broadly speaking, any right of termination by the owner will be conditional on the court considering it reasonable for the agreement to be terminated. That protection will be separate from the power of the court to suspend a possession order under s4 of the Caravan Sites Act 1968.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Housing law - All, Licences and occupiers, Possession and tagged , , , , .

7 Comments

  1. No mention here of Cosic v Croatia, so far as I can see (though it came out before the date of the hearing.

    • True, but then the Court of Appeal is going to consider itself bound on this issue by the House of Lords in Doherty, unless or until the HoL gets to deal with Cosic, Kay at the EctHR etc.

  2. Permission to appeal has been granted in Manchester City Council -v- Pinnock a case concerning a public law defence in demoted tenancy proceedings.

    Cosic has been raised in this appeal. At present we understand it may well be heard in the summer.

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