Thanks to the virtual telegraph, I’ve had the transcript in R (Coombes) v Secretary of State for CLG and Waltham Forest LBC [2010] EWHC 666 (Admin) for a few days (but it still does not appear on Baili, although, I gather, is available on Westlaw and the like), but a variety of circumstances (man flu/an excellent conference/family holiday culminating in a dramatic late night trip to a&e with my eldest, who’s absolutely fine, thanks) have prevented me from posting about it beyond the short note based on the Lawtel summary. A number of points of clarification can be made now based on the transcript.
First, and least significantly, the SoS does nto appear to be an intervener but the first Defendant.
Second, the claim on behalf of Mr Coombes (who had lived in the property for 56 years and was now the subject of a notice to quit after the death of his Mum, the successor to the tenancy) was not just based on a gateway (a) challenge to section 3, PEA 1977, but on the statutory scheme (sections 21, 87 and 89, Housing Act 1985) which lead to LBWF seeking to terminate Mr Coombes’ occupation through section 3. There are still two other potential defences to the possession action (grant of a new tenancy and a gateway (b) defence) for decision in the Bow CC.
Third, amidst the usual welter of authorities being discussed, it was particularly interesting to see the Irish cases (Donegan v Dublin CC [2008] IEHC 288; Dublin CC v Gallagher [2008] IEHC 354) being drawn on in this context, although they are a bit of a sideshow. Both of those cases demonstrate the ways Irish courts have found mandatory possession proceedings non-compliant with Article 8, the latter being a succession case. It is also good to read a judgment where the judge really analyses all the cases, rather than cite chunks of a judgment.
So, fourth, Cranston J, a(nother) former professor and author of the fantastic Legal Foundations of the Welfare State (before he went all banking and commercial, and, well, New Labour) really does a great job; or mostly does. The key paragraphs are [54]-[56]. At [54], he says that section 3 cannot be incompatible with Article 8 because it requires a possession order in circumstnaces in which otherwise there would be no need for one; and the succession provisions for secure tenancies have been found to be compatible. At [55], he makes clear, though, that “There is an obvious conflict between the Strasbourg jurisprudence and our own” in that McCann “and its progeny” establish
… that for an eviction to be proportionate an independent tribunal itself must be able to consider the personal circumstances of the occupier. Gateway (b) in Kay and Doherty enables personal circumstances to enter but only through a review of the decision-making of the council property owner. ([55])
Cranston J found himself bound by Kay and Doherty (on which see our notes here and here respectively), though because they
… held that the availability of gateways (a) and (b) to challenge possession proceedings is sufficient to render them compatible with Article 8. … There is nothing in the wording of section 3 and the other legislation which makes it not “possible”, to use the statutory language, for the County Court to consider a defence based on Article 8. It is the binding force of the House of Lords’ decisions which produce that result. That is not a basis for making a declaration of incompatibility. ([56])
An Article 6 claim, brought by Mr Coombes at a late stage, was rightly dismissed shortly by Cranston J.
All-in-all, this is an interesting decision, which potentially uses the ECHR sonic screwdriver to broaden the gap between the Strasbourg jurisprudence and “ordinary” principles of housing law; and congrats to Toby Vanhegan for Mr Coombes who also tried to persuade Cranston J that he should get a leapfrog to the SC to be joined with Pinnock, but at least managed to get Cranston J to request an expedited hearing before the CA.
Para [55] is, I agree, the really important paragraph. It’s nice to see a senior Judge finally say what we’ve all been saying for ages! One wonders why, on the back of that paragraph, he didn’t make a declaration of incompatability?