Local authority — Possession proceedings — Defence based upon Article 8 of European Convention on Human Rights — Appeals dismissed
In both appeals, a local authority sought possession orders against occupiers of their properties who relied for their defences upon their rights under Article 8 of the European Convention on Human Rights.
In the first appeal, the respondent local authority had an arrangement with a housing trust, under which the appellants occupied “short-life” premises owned by the respondents. The latter eventually terminated the arrangement and sought possession of the properties. The court below found that although the trust had granted leases to the appellants (see Bruton v London & Quadrant Housing Trust [1999] 2 EGLR 59; [1999] 30 EG 91), they had no continuing right to occupy; see [2004] EWCA Civ 926; [2004] 3 WLR 1396.
In the second appeal, the appellants had set up camp on the respondent council’s land. The respondents brought possession proceedings, at which time the appellants had occupied the site for two days and were its sole occupants. The trespass was not disputed. The Article 8 point was dealt with as a preliminary issue.
In both cases, the courts considered themselves bound by Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLR 109, so that the Article 8 claims would fail in the light of the local authorities’ rights to possession under the general law. However, in the second appeal, the Court of Appeal contended that Qazi was incompatible with the decision of the European Court of Justice in Connors v United Kingdom 66746/01 [2004] 4 PLR 16.
The issues were: (i) how the courts could give effect to a claimant’s Article 8 right to respect for his home where a public authority sought possession of premises to which it was entitled under domestic property law; (ii) the compatibility of Qazi and Connors; and (iii) the perceived incompatibility of binding domestic precedents with European Court jurisprudence.
Held: The appeals were dismissed.
(1) A public authority landlord would ordinarily be entitled to a possession order where a lawful occupant’s right to occupy had determined, or in respect of trespassers. County court judges should proceed on the basis that domestic law struck a fair balance and was compatible with an occupier’s Convention rights. Where a right to recover possession was unqualified, the court could refrain from making the possession order on Article 8 grounds only if a seriously arguable point pertaining to those grounds were raised by the occupier. The local authority was not obliged to prove that possession was justified under Article 8. If such an argument were advanced, the court could decide the matter or consider whether to refer proceedings to the High Court.
(2) Prior to Connor, most Strasbourg cases treated it as axiomatic that the landowner was entitled to a possession order if it was found that the occupier had no contractual or proprietary right to remain: Qazi considered. However, if the domestic law rules concerning the relationship between owner and occupier included an unusual feature that particularly disadvantaged the occupier, that feature of law could lead to a finding of Article 8 infringement: Larkos v Cyprus (1999) 30 EHRR 597 considered. Connors and Blecic v Croatia (2004) 41 EHRR 13 were consistent with that analysis of the pre-Connors jurisprudence; Connors and Qazi were not incompatible, although the principle in Qazi might require qualification.
(3) Lower courts could not decline to follow binding domestic authority on the ground that it was inconsistent with Strasbourg jurisprudence. The Strasbourg court authoritatively interpreted Convention rights, but its rulings sometimes accorded a generous margin of appreciation to the decisions of national authorities, which could decide in the first instance how Convention principles should be applied in a national context.
In the first appeal, the tenancy granted by the housing trust was not binding since the trust had been a mere licensee of the respondents. Thus, the appellants’ rights against the trust were not enforceable against the respondents. Once the trust’s interest in the properties had ended, the appellants became trespassers. No facts had been pleaded on their behalf that would outweigh the respondents’ duty to manage their housing stock.
In the second appeal, the appellants failed to show sufficient continuing links with the land for it to be regarded as their home for Article 8 purposes. Moreover, no court had suggested that a trespasser could assert an Article 8 right to defeat eviction proceedings.
Note: With the exception of Lord Bingham, the court found that an Article 8 defence that relied only upon the occupier’s personal circumstances could not succeed.
Jan Luba QC, David Watkinson, Kelvin Rutledge and Alexander Offer (instructed by Nicholas & Co and Thomas & Co in the first appeal, and Davies Gore Lomax, of Leeds, in the second) appeared for the appellants; Andrew Arden QC, Terence Gallivan and John McCafferty (instructed by Devonshires) appeared for the respondents in the first appeal; Ashley Underwood QC and Thomas Tyson (instructed by the legal department of Leeds City Council) appeared for the respondents in the second appeal.
Sally Dobson, barrister
