You may recall, almost two years ago now, we reported on the case of Defence Estates v L [2009] EWHC 1049 (Admin), under the title “Something of a mess”. The title was a reference to a comment of Collins J during the course of discussions after his judgment that three House of Lords’ decisions (Qazi, Kay & Doherty) had “left the law frankly in something of a mess”. This comment was subsequently picked up Lord Neuberger in his keynote address to SHLA’s annual conference in 2009. It was Lord Neuberger who then attempted to clean up some of the mess when giving the judgment of the Supreme Court in Pinnock (our note is here). That came too late for the defendant in Defence Estates, who had had her application for permission to appeal to the Court of Appeal dismissed by early 2010.
An application to the European Court of Human Rights was lodged in November 2010, and so the 4th Section of the ECtHR will also have a bash at tidying up. The ECtHR’s statement of facts is now available on BAILII. It seems that not only is Article 8, unsurprisingly, being complained about, but that Article 14 is also alleged to have been breached in view of the applicant’s “different situation”. Without considerably more it is very difficult to see how the Art.14 point will succeed, but the Art.8 one will be particularly interesting. This is especially so as in Kay v UK, the ECtHR, while deciding the case on the basis of the applicable domestic law at the time of the House of Lords decision in Kay, did make reference to domestic law post-Doherty. It will therefore be the domestic law post-Doherty and pre-Pinnock that falls to be considered this time, but the ECtHR’s recital of the relevant domestic law suggests that we can expect some comment on the domestic situation after the two recent decisions in Pinnock & Powell.
What is also interesting is the way that the 4th Section has framed its question to the parties. In Kay, the question was:
“Did the applicants have the opportunity to have the proportionality of their evictions determined by an independent tribunal in light of the relevant principles under Article 8 (McCann v. the United Kingdom, no. 19009/04, 13 May 2008)?”
But this time the 4th Section wants views on:
“Was the interference with the applicant’s respect for her home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?”
So this might end up being the one where we learn what the ECtHR really thinks about substantive proportionality.
It’s very difficult to predict the timetable going forward, but the statement of facts in Kay v UK was made available in October 2008, with judgment not forthcoming until September 2010. This one already appears to be moving a bit quicker than Kay, but I still wouldn’t cancel any forthcoming plans.