So Article 8 isn’t always useless then?

Any keen follower of housing law (no laughing for those of you who have stumbled across this blog for the first time; we do exist) will know that the decade long struggle surrounding the admissibility of the Article 8 defence culminated mainly in disappointment. Tenants/unlawful occupiers had managed to win the war but in doing so had also managed to lose every single battle that would follow; the defence could be used but it would never succeed save for in highly exceptional and unique circumstances. Case after case the Supreme Court and then Court of Appeal told us so (Thurrock BC v West probably contains the best summary of where we are).

The tide may just have turned. Southend-on-Sea BC v Armour [2014] EWCA Civ 231 is that very rare thing: a successful Article 8 defence that has been upheld in the High Court and now the Court of Appeal. It is more than that though; in my view it is potentially a real game changer. Not because it criticises or overturns the existing Court of Appeal guidance on Article 8, but because of the way it requires the higher courts to treat appeals from the county court.

Mr Armour was an introductory tenant of Southend. He suffered from Asperger’s syndrome and depression. At the trial there was some assertion that he lacked capacity (albeit no litigation friend was appointed). Almost immediately after his tenancy began he swore at a neighbour. Southend warned him that any further anti-social conduct would not be tolerated. A month later, however, Mr Armour verbally abused one of Southend’s employees on the telephone. One week later, Mr Armour verbally abused Southend’s contractors, who had attended to carry out works to the property. The contractors also alleged that Mr Armour had turned the electricity back on which had given one of their workers an electric shock.

As a result of the three incidents Southend served Mr Armour with a notice of possession proceedings. The decision to seek possession was upheld at a review hearing and Southend issued their claim for possession. After various procedural delays, which appear to have arisen after Mr Armour was permitted to amend his defence, the matter came on for trial almost a year after the claim had been issued. Mr Armour chose not to attend the trial and did not give evidence.

Mr Armour’s defence succeeded. The Recorder’s decision was mainly predicated on the fact that since the issue with the contractors Southend could not point to any further anti-social conduct. As such, while the decision to seek possession was proportionate, it was no longer proportionate for a possession order to be made in light of Mr Armour’s improved behaviour. The service of the notice had stopped Mr Armour’s bad behaviour and it was thus not proportionate to evict him, especially as if he misbehaved again Southend would have a ground for possession under Grounds 1 and 2, Housing Act 1985.

Southend appealed to the High Court. The appeal was dismissed. Southend then appealed to the Court of Appeal. That appeal was also dismissed. In doing so, the Court of Appeal first held that an appellate court should be slow to interfere with a decision of a trial judge that an eviction would be disproportionate unless it was a decision that was not open to her on the evidence. That was because the trial judge was, just like when considering whether it was reasonable to make a possession order, exercising a value judgment.

In this case, the Court of Appeal was satisfied that the decision was one that was open to her. The whole point of the introductory tenancy regime was to test a tenant’s behaviour. As such

[30]… Where, as here, the tenant under an introductory tenancy gets off to a shaky start, but mends his ways for almost all of the one year period, I consider that that improvement in behaviour is capable of being a factor in deciding whether it is disproportionate for the landlord to continue to insist on recovering possession. What weight to give it is a question for the trial judge. …”

In Mr Armour’s case, the trial judge was entitled to attach sufficient weight to the improved behaviour so as to render his eviciton disproportionate. It was a decision that was not obviously wrong and one that was open to her.

Southend also tried to adduce various of items of evidence, designed at portraying Mr Armour in a less than favourable light (i.e. he had committed fraud to obtain the tenancy, did not lack capacity and he had lied about his girlfriend’s daughter living at the property). However, the Court of Appeal refused Southend permission to rely on the new evidence. It did not undermine the trial judge’s principle reasoning behind why it would be disproportionate to evict him. Moreover, as this was a second appeal, the test for adducing fresh evidence was far stricter, i.e. there must be a risk of injustice so grave as to overbear the pressing claims of finality in litigation and the fresh evidence must demonstrate that there is a powerful probability that such a result has been perpetrated.

Comment

This is important for the following reasons. First, we can finally point to a personal circumstance that is capable of outweighing the need for landlords to be able to manage their stock without interference, i.e. someone with mental health issues whose behaviour improves for the remainder of his introductory tenancy. This is, I have to confess, a rather surprising development. West Kent HA v Haycraft (which may, but doesn’t appear to, have been referred to in this case) appeared to say the complete opposite (our note here).

Be that as it may, the second, and in my view far more important point, is the extent to which the Court of Appeal will interfere with a lower court’s decision. The guidance given in the earlier cases all tended to suggest that the Court of Appeal would generally intervene in any case where the occupier’s circumstances were not “exceptional” as, while that was not the test, it was a useful cross check and unless the circumstances were exceptional an eviction would not be disproportionate. But here the Court of Appeal appears to have departed from that. It does not matter if the Court of Appeal would have reached a different conclusion; the issue is whether the decision was one that was open to the trial judge.

Now it maybe that in time this case will be an outlier, confined to its own facts, and that normal service will be resumed; a differently constituted Court of Appeal might have decided that the trial judge’s decision was obviously wrong and not open to her on the facts, having had regard to West Kent HA and Powell. However, it might just be the encouragement certain district judges need to uphold some of the Article 8 defences that come before them.

 

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.
Posted in Housing law - All.

4 Comments

  1. In the county court Recorder Davies said (at Para [28]), “at the time the possession claim was filed I find there was in reality no defence to the claim. The only live question is whether the personal circumstances that mean the decision now [a year after the claim was issued], whether now is is a disproportionate or unreaosnable decision to make.”

    The delay from issuing the claim was far too long and no objection was made to amending the pleadings at a late stage.

    Had there been no or less of a delay the outcome may have been very different.

    A good case is won on the facts,
    A reasonable case is won on the law,
    A hopeless case is won on the Human Rights Act.

    • That is a rather daft statement.

      It is, as the court of appeal noted, always a question of whether the continuing decision to evict is proportionate. So, proportionality is a question of the facts and history at the time of the possession hearing.

      Or are you suggesting that, for example, a minor technical breach at the start of an introductory tenancy means it is proportionate to evict? You want to argue formalities over the facts?

  2. This is an interesting but what intrigues me is how cases where the trial judge has made the contrary decision should be dealt with. Was the CA saying that if the trial judge decided that eviction was proportionate, then the same principles should apply? If not, would it not be rather odd to have different outcomes on the same question treated differently?

    I can see it raising problems on any situation where possession proceedings are long and drawn out – is it effectively now the case that if the tenant fights his eviction for months (or even years!) and the circumstances under which his eviction was sought have changed, the landlord has to re-consider whether to evict him at all……. though assumably he could gain possession through a new claim for different reasons.

    No doubt the majority of those cases will be ones where the fact of the long, drawn-out arguments should have the landlord re-considering whether the original decision was justified but what about the tenant who just refuses to accept that he has no case?

    • It would apply either way, as far as I can see.

      It would have to be a possession claim where an art 8 defence was a) required and b) raised. This would not be the case for a ‘reasonableness’ case (although obviously the ongoing situation would be considered there too).

      Not sure I get your last point. It is the tenant’s art 8 rights at issue. But if they have no case then the duration will make no difference to the outcome.

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