Possession proceedings – Trespassers – Article 8 of European Convention on Human Rights – Appellants seeking to advance defence based on Article 8 – Whether Article 8 affording defence – Whether respondent local authority obliged to consider personal circumstances of appellants in deciding whether to bring possession claim – Possession order made – Appeal dismissed
The respondent council owned the freehold of premises of which, from 2003, a housing association held a sublease. The sublease had been granted out of a three-year headlease for the purpose of granting assured shorthold tenancies to homeless people. The appellants occupied parts of those premises. Negotiations, regarding the grant of a new lease to the headlessee and a new sublease to the housing association took place in 2005, but they did not come to fruition and the lease term expired in 2006.
The respondents served a notice to quit on the appellants and subsequently brought possession proceedings against them. It was established that the appellants had become trespassers and an order for possession was made. However, the appellants wanted to raise a defence that, even if they had no further legal rights, the respondents’ claim for possession was an unjustified interference with their rights under Article 8 of the European Convention on Human Rights (ECHR). They accepted that, on the basis of the law as expounded in Kay v Lambeth City Council [2006] UKHL 10; [2006] AC 465, Article 8 did not provide a defence. However, they hoped that the then outstanding decision of the House of Lords in Doherty v Birmingham City Council might support their argument, derived from a decision of the European Court of Human Rights in McCann v United Kingdom 19009/04 [2008] 2 EGLR 45, that, in exceptional circumstances, the respondents might be required to take into account the appellants’ personal circumstances before seeking possession. They appealed on that basis. Meanwhile, judgment was given in Doherty: see [2008] UKHL 57; [2008] 3 WLR 636.
The issues on the appeal were whether: (i) it was arguable that the circumstances were such that the respondents would be obliged to consider the appellants’ personal circumstances; and (ii) in judging the lawfulness of the respondents’ decision, the test was the strict Wednesbury rationality test or something wider.
Held: The appeal was dismissed.
If an arguable case for judicial review of a local authority’s decision were raised in the context of possession claims in the county court, the county court was the correct forum for that review. The relevant decision for review was not necessarily the original decision to seek possession. A local authority might make a series of decisions in the light of the facts as they appeared to them. The authority would decide to seek possession on the facts then known and, prima facie, were not obliged to establsih the true facts. The burden of demonstrating any grounds that might provide an Article 8 defence lay with the occupier. If the authority wrote a letter seeking possession and the occupier then informed them of relevant circumstances, the authority would then decide whether to commence proceedings. If the relevant facts were disclosed at a later date, shortly before or during the possession hearing, the authority would again have to decide whether to proceed and to continue to press for an order. Any one of those decisions could be attacked if it could be shown to be “unreasonable”. A county court seized of the matter could determine whether there was an arguable case that, in deciding to continue to seek possession even in the light of those facts, the authority had acted unreasonably.
Doherty had extended the scope of judicial review beyond the strict rationality test, although not so far as a straightforward challenge by reference to the ECHR. A public authority should take account of the personal circumstances of the occupier of which they were aware. However, that did not mean that it would ever be unreasonable to seek possession against trespassers in circumstances similar to those in Kay. Although those situations might make it unreasonable not to allow a period of time to bring the possession order into effect, that was something that the law allowed for by giving the court a discretion to suspend the possession order for a short period, in the exercise of which it could take account of personal circumstances. Accordingly, where, as in the instant case, the circumstances were similar to Kay, a court post-Kay and Doherty would be in much the same position it had always been in. In the circumstances, it would not be appropriate to remit the instant case to the county court.
David Watkinson (instructed by Pierce Glynn) appeared for the appellants; Clive Pithers (instructed by the legal department of Central Bedfordshire County Council) appeared for the respondents; Deok-Joo Rhee (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervenor.
Sally Dobson, barrister
