England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London, WC2 Tuesday, 19th November 2002

Tuesday, 19th November 2002

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: I will ask Kay to give the first judgment.
2. LORD JUSTICE KAY: This is an application for permission to appeal against a decision of Maurice Kay J on 5th September 2002 refusing a renewed application for permission to apply for judicial review, the original application having been considered on the papers by Jackson J.
3. The claimant is a defendant in county court proceedings in which the London Borough of Lambeth seeks possession of local authority property of which she was the tenant. In the course of those proceedings in the county court the matter has been adjourned so that an application for permission to apply for judicial review could be made to the court.
4. Essentially, the proceedings in the county court are ones in which possession is sought, a notice to quit having been served, on the basis that the claimant has sublet the whole of the premises.
5. By section 93(2) of the Housing Act 1985.

"If the tenant under a secure tenancy parts with the possession of the dwelling house or sublets the whole of it (or sublets first part of it and then the remainder) the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy."

6. The point which Mr Geldhart seeks to argue on an application for judicial review is that the provision of section 93(2) is incompatible with Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol. He submits that if that is not right, then it can only be on the basis that the court reads section 93(2) by adding extra words in effect to give it a meaning that is compatible with the Article.
7. Maurice Kay J in his decision came to the conclusion that the particular provision was an anti-abuse provision. That was common ground at the hearing before him and remained so at this hearing. He recognised that it was possible to put forward various hypothetical situations which might be said to fall on one side or another of an anti-abuse provision. He expressed the view that that was inevitably the case. However, he concluded that in the formulation of anti-abuse provisions it was well established on the authorities that Parliament had a wide measure of discretion in the way in which it approached such matters. He referred to Sheffield City Council v Smart [2002] HLR case 34 [2002] EWCA Civil 04.
8. Mr Geldhart's submission is that this particular provision is one that is wider than is necessary for the objective of preventing abuse. He submits that, when one has regard to other provisions in relation to secure tenancies, the consequence of fault on the part of the tenant does not provide for the immediate loss of the secure tenancy, but gives a right to the court to consider the matter and, where appropriate, to allow the secure tenancy to remain. He submits that this provision, different from other provisions of the part of the Act, falls foul of the provision that requires, where an action is taken which is contrary to Article 8(1), that it is no wider than is necessary for the legitimate purpose sought to be achieved by Parliament in passing the statute.
9. For my part, I do not in any way share the view that he puts forward in relation to that matter. It seems to me that Maurice Kay J was right when he pointed to the fact that in deciding how to deal with questions of abuse of this kind Parliament has to be given a wide measure of discretion in deciding the proper manner of dealing with the situation.
10. As Mr Kilcoyne in a written skeleton argument points out on behalf of the proposed respondent, the question of determining in such instances whether or not the tenant had behaved reasonably would be a particularly difficult one. It would involve examination of the intention of the tenant at the time when he had originally sublet premises; and that would involve very difficult questions of proof. He submits in his skeleton that it is understandable why Parliament decided that the subletting of the whole of the demised premises would terminate the statutory rights of the secure tenant. It is to be observed that where the tenant does not part with the whole of the premises -- in other words, retains the premises as his principal home -- this provision has no effect at all.
11. It seems to me, in those circumstances, that it would be wholly impossible for this court to conclude that that was a provision, read in the way in which it appears in the statute, which was not within the range of measures which was available to Parliament. Accordingly, the suggested way of reading the subsection so as to give the court a right to examine whether or not it was reasonable in the particular circumstances of the case for the tenancy to cease cannot be right. Nor can it be right that the particular provision is one which is properly to be viewed as being incompatible with the Convention.
12. For these reasons, I would refuse this application for permission to appeal.
13. LORD JUSTICE PETER GIBSON: I agree.
Order: Application refused.