It’s all in the detail – Pinnock part 2

Manchester City Council v Pinnock [2010] UKSC 6

As if to confirm that housing law is, well, complicated, there is a coda to the Supreme Court decision in Manchester City Council v Pinnock, which has led to a supplementary judgment being handed down. This deals with what order should be made and costs.

The first problem was that the parties couldn’t agree on the consequential order from Pinnock 1 – as you’ll recall, Mr Pinnock’s appeal of the possession order made against his demoted tenancy failed. The initial possession order was made on 22 December 2008, with possession to be given by 12 January 2009. Notice of appeal was served by 26 January 2009, as ordered by the first instance judge.

If the original possession order was found to take effect as from 12 January 2009, Mr P would have been occupying as a tolerated trespasser. He would be caught by the Housing and Regeneration Act in May 2009 and a new demoted (replacement) tenancy would have arisen. The Council had brought further proceedings, based on just that eventuality, but adjourned them. The Council argued that it would be against rational principle for them now to have to restart (or continue) proceedings against Mr P afresh. They argued that the Supreme Court Order should vary the date for possession in the original order to 21 May 2009, thus avoiding the creation of the new demoted tenancy.

Mr P took no issue with the merits of the Council’s position, but nargued that there was no jurisdiction to make such an order, even for the Supreme Court:

The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.

But nobody tells the Supreme Court they can’t do something (or at least not if they have an alternative route)

The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.
We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.

On costs, the Council argued that it should have costs, having succeeded on the central point of the possession proceedings against Mr P.

Mr P argued “for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.”

The Court made no order as to costs on the appeals and the Council’s costs award in the County Court should stand.

The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.

And that should be that.

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, Introductory and Demoted tenancies, Tolerated trespasser.

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