The role of proportionality in property law is set to explored like never before in a case set to be heard by the Supreme Court next week.
Commenting on the case of Mcdonald v Mcdonald and others, scheduled to be heard by the Supreme Court on 15 March, TLT’s Mark Routley said that it was one of the most important property and human rights cases of the year.
He said: “It has constitutional significance as it brings into question the role of the court in any dispute between two or more private parties where the only public body is the court.
“It raises the question of whether the court is there to see that the rules are followed and the law applied correctly. Or does it have broader role to consider whether what is sought is proportionate? This is an issue that has never been fully considered by any court in the UK or Europe and one that the Supreme Court must decide.
“What we could see is the Supreme Court effectively offering a get-out-of-leaving card under the Human Rights Act. Article 8 of the European Convention on Human Rights guarantees a right to respect for private and family life. Interference with this right is permitted by a public authority where such interference is necessary for the protection of the rights and freedoms of others. At the moment, a court may only determine if the grant of a possession order is proportionate where the landlord is a public authority, such as a council.
“If the Supreme Court overturns the decisions of the lower courts and determines that, even in a private landlord situation, the court can intervene and decide that a possession order should not be granted, the implications would be extensive, with potentially serious implications for the buy-to-let market.
“The decision goes further than just possession claims. It brings into question the role of the court in any dispute between private individuals.”
Lord Neuberger, Lady Hale, Lord Kerr, Lord Reed and Lord Carnwath will ultimately decide whether it is open to a court, hearing an application by a private landlord under section 21(4) of the Housing Act 1988 for a possession order against an assured shorthold tenant, to consider whether the order would infringe the tenant’s rights under Article 8.
Appellant Fiona McDonald is an assured shorthold tenant of a house owned by her parents. The house was purchased with the assistance of a mortgage. Following defaults on the mortgage payments the mortgagees appointed receivers, who served notice on the appellant seeking possession of the house.
She opposed the making of a possession order by the court on the grounds that the receivers had not been entitled to serve notice on her in their own names, and that the order would be incompatible with her right to respect for her home under Article 8.
The appeal will be heard over two days beginning on 15 March.
