ON APPEAL FROM Oxford County Court
His Honour Judge Corrie
20X50223Royal Courts of Justice
B e f o r e :
Lord Justice Tomlinson
Lord Justice Ryder
| Miss Fiona McDonald
(By her Litigation friend Duncan J McDonald)
|- and -
|(1) Brian John McDonald
(2) Margaret Helen McDonald
(acting by Mr Andrew Hughes and Mr Julian Smith Joint Receivers)
Mr Stephen Jourdan QC & Ciara Fairley (instructed by TLT LPP) for the Respondents
Hearing dates: 4 – 5 March 2014
Crown Copyright ©
Lady Justice Arden :
Miss McDonald resists a claim for possession of her home
"…a court shall make an order for possession of the dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earlier day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above."
"Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Right to a home where court bound to grant a PO (First ground of appeal)
What is not in dispute
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right….
(3) In this section "public authority" includes—
(a) a court …"
What is in dispute
Summary of my reasons for dismissing the appeal on the Article 8 point
i) There is no "clear and constant" jurisprudence of the Strasbourg court that the proportionality test implied into Article 8(2) applies where there is a private landlord.
ii) Even if the proportionality test had applied in this case, the court would still have made a possession order.
iii) In any event, this court is bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48 to hold that section 21 of the HA 1988 is compatible with the Convention. That precludes this court from holding that the proportionality test applies.
iv) In the circumstances, the question of interpreting section 21 of the 1988 Act to conform to Convention rights does not arise.
(1) No clear and constant Strasbourg jurisprudence
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
- There is a small group of cases where the Strasbourg court has applied the proportionality test to a possession claim by a private landlord, but (1) in no case has the landlord had an unconditional right under the tenancy agreement to return of the property on a date which has passed, and (2) these cases proceed on the basis that the proportionality test applies when Article 8 is engaged in a dispute between a tenant and his private landlord.
- There is other authority to the effect that the proportionality test does not apply in this situation as it would interfere with the operation of arrangements agreed between private parties.
- None of these cases is a Grand Chamber decision.
Cases in which the Strasbourg court has proceeded on the basis that the proportionality test applies in a dispute between a tenant and his landlord
"An interference will be considered 'necessary in a democratic society' for a legitimate aim if it answers a 'pressing social need' and, in particular, if it is proportionate to the legitimate aim pursued."
Strasbourg case law indicating that the proportionality test does not apply to the operation of arrangements agreed between private parties
"Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under art 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end (see McCann, cited above, para 50; Kay, cited above, para 68; and Paulic v Croatia  ECHR 3572/06, para 43, 22 October 2009)."
"My only reservation in this case is with the principle as set out in the second sentence of para 65. This sentence is a verbatim reproduction of what is found in para 50 of McCann and in para 68 of Kay (the sentence was slightly modified, but not in substance, in para 43 of Paulic). However, all the cases quoted in support of the principle as thus formulated (including, indirectly, Connors) are cases where the landlord was either the Government or a local authority. None were cases where the landlord was a private individual. In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds, should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant's right should in principle be limited to challenging whether the occupation – tenancy, lease, encroachment concession, et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under art 8 should not come into the equation. This is not to say, of course, that the Government may not, by legislation, impose restrictions on the use of the property by the landlord upon or after the termination of the occupancy, from which restrictions the last tenant or occupant might even benefit (see, by way of analogy, James v UK  ECHR 8793/79, 21 February 1986; Hutten-Czapska v Poland  ECHR 35014/97, 19 June 2006); but this is a totally different issue from what is being proposed in the second sentence of para 65.
As the late Professor A. L. Goodhart said, 'The principle of a case is not to be found in the reasons given in the opinion'; it should, instead, be found by taking account of the facts treated by the judge as material, and his decision based on those facts. It is precisely to prevent what we have said in the second sentence of para 65 from being extrapolated to a different context that I would have preferred that the principle should have been qualified or otherwise restated."
No Grand Chamber decision
Conclusions from the case law
(2) The application of the proportionality test in this case would in any event have led to the making of possession order
"I would on balance have taken the view that Miss McDonald's circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. Those circumstances do not just include palpable disability and fragility, but the fact that these arrears were never very substantial; the fact that there was no element of deception or dishonesty in the mortgage application as was conceded…; the fact that the rent was always up-to-date; and very specifically the fact that this vulnerable young woman had failed to keep two previous tenancies which were, it appears, provided by public bodies. Whether they were or not is, in a sense, immaterial. She would find it very difficult to find alternative accommodation and, in consequence of this court's decision, if upheld, she will find it highly problematical and distressing." (judgment, para 40)
(3) This court is in any event bound by Poplar
" There is certainly room for conflicting views as to the social desirability of an RSL being able to grant assured shorthold tenancies which are subject to s 21(4) of the 1988 Act. Mr Holmes considers the present policy mistaken. However, in considering whether Poplar can rely on art 8(2), the Court has to pay considerable attention to the fact that Parliament intended when enacting s 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under s 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the HRA does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the convention."
(4) In the circumstances, the question of interpreting section 21 of the 1988 Act to conform to Convention rights does not arise
Conclusion on the Article 8 ground
Receivers' authority to terminate Miss McDonald's tenancy (Second ground of appeal)
Conclusion on the second ground
Conclusion on this appeal
Lord Justice Tomlinson
Lord Justice Ryder