England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM (1)HHJ FRANCES KIRKHAM AND
(2) HHJ DURMAN
BIRMINGHAM COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2003

Lord Justice Mummery :

This is the judgment of the court.

Introduction

1. The two appeals before the court arise out of proceedings by Birmingham City Council (the Council) to recover possession of its residential freehold property from defendants, who have remained in occupation without permission after the termination of a tenancy. Neither of the defendant occupiers is entitled under domestic law to any tenancy, contractual licence or other right of occupation. In each case the only defence relied on is that the property is the defendant's "home" within article 8 of the European Convention on Human Rights. In one case (McCann) the defence succeeded at first instance. In the other case (Bradney) the defence failed.
2. According to Article 8

"1. Everyone has the right to respect for…..his home.

2. There shall be no interference by a public authority with the exercise of this right except such as is accordance with the law and is necessary in a democratic society in the interests of… or for the protection of the rights and freedoms of others."

3. Since the county court decided the two cases under appeal the legal scenery has shifted significantly. On 31 July 2003 the House of Lords delivered their opinions in Qazi v. London Borough of Harrow [2003] 3 WLR 792 (Qazi) on the issue of article 8 as a defence in possession proceedings by a local authority against a person who had no tenancy, contractual right or other domestic law right to remain in occupation of its residential freehold property. By a bare majority (3 to 2) the House held that (a) a person may establish as a fact that the property of a public authority, which he continues to occupy after the termination of his right as a tenant or licensee, is his "home" for the purposes of article 8; but (b) the article cannot be used as a defence to defeat the ordinary domestic law proprietary or contractual right of the local authority to recover possession of its property from a person, who has no right to be in possession of it.
4. By the time that these appeals came to be heard another division of the Court of Appeal (Mummery LJ and Holman J) had already reserved judgment in the case of London Borough of Newham v. Kibata (No 2003/0062/A). That case was also about the impact of article 8 when, after the termination of a tenancy, a local authority claimed possession of residential property owned by it. Kibata was argued ten days before the House of Lords delivered its decision in Qazi. Judgment was reserved. During August and September the court received additional written submissions from the parties on the effect of the decision in Qazi. When it was discovered that the pending appeals in Bradney and McCann raised the same point it was decided to defer the judgment in Kibata until after the hearing of these appeals.
5. It is unnecessary to repeat all the legal background, as it is fully explained in the judgments in Kibata, to which reference should be made. We shall turn immediately to deal with the facts and submissions in the two appeals.

A. The Bradney Appeal.

6. This is an appeal by Mr Bradney against an order for possession made by HHJ Frances Kirkham in the Birmingham County Court on 6 March 2003.
7. The Council is the freehold owner of a two bedroomed terraced house with a garden at 11 Wakemam Grove, Sheldon, Birmingham (No 11). On 2 March 1992 Mr Bradney, Miss Tracy Bromwell and their two daughters moved into No 11. Miss Bromwell was registered as the sole tenant of No 11, which was held under a secure tenancy.
8. In December 2000 the relationship broke down. Miss Bromwell moved out and was later joined by her daughters. Mr Bradney asked Miss Bromwell to arrange for his name to be added to the tenancy agreement as a joint tenant of No 11. That was done on 15 January 2001.
9. On 21 February 2001 Miss Bromwell, who was by then living with her mother, wrote to the Council asking for her name to be removed from the joint tenancy of No 11, leaving it in the sole name of Mr Bradney. She wished to bring her own personal liability under the tenancy to an end, while safeguarding the position of Mr Bradney as a tenant. At the request of the Council Miss Bromwell signed a notice to quit No 11, terminating the tenancy with effect from 26 March 2001. There was no evidence that anyone explained to Miss Bromwell that, by giving the notice to quit to the Council she, as one joint tenant, would terminate the tenancy and bring to an end the right of the other joint tenant, Mr Bradney, to remain in possession of No 11.
10. Mr Bradney was shocked, so the judge found, to discover that the tenancy had come to an end when he requested a sole tenancy of No 11. His request was considered by the Council's Allocation Officer Review Panel, which decided not to grant him a tenancy and to seek possession. By a letter of 22 November 2001 he was required to vacate No 11 within 14 days. It was explained that he had a right of appeal and that the Council was willing to offer him suitable alternative accommodation. Mr Bradney's appeal was heard and rejected on 11 March 2002. He was informed of the result and was required to vacate No 11. He was invited to contact the Council to discuss alternative accommodation. As he did not vacate No 11, the Council started possession proceedings on 26 March 2002.
11. The judge proceeded on the basis that it was common ground that Miss Bromwell's notice was effective to terminate Mr Bradney's legal right to remain in occupation, although she could "understand that Miss Bromwell might not have appreciated the consequences for Mr Bradney of what she was signing" (paragraph 6). It was conceded that Mr Bradney occupied No 11 as his home and that article 8 was "engaged." The judge concluded that

"26. Instead of giving effect to Miss Bromwell's request that Mr Bradney's position be protected, [the Council] so arranged matters that the opposite result was achieved. Given Miss Bromwell's apparent intention, and Mr Bradney's own wish, one can understand his deep concern at finding that the Notice to Quit had the effect of terminating his tenancy. I am led to the conclusion that [the Council] procured the termination of the tenancy against the wishes and intention of Miss Bromwell and Mr Bradney. I reject Miss Lakin's submission that the Notice to Quit was an act not by a public authority but by a private individual. [The Council] did ask Miss Bromwell to sign the Notice to Quit. Although Miss Bromwell signed the document, it was an instrument whose effect she did not intend but which [the Council] desired. In those circumstances, [the Council's] action in procuring the termination of Mr Bradney's tenancy amounts , in my judgment, to an act by a public authority. The consequence of the Notice was that Mr Bradney, contrary to his wishes (expressed to [the Council] through Miss Bromwell) found himself in a position where his tenancy had come to an end and became vulnerable to these proceedings. I conclude that the Article 8 applies to the procuring of the termination of the tenancy as well as to these possession proceedings."

12. The judge went on, however, to find that the Council was entitled to possession of No 11, as Mr Bradney's article 8(1) right was overborne by article 8(2). She said:

" 38. I accept that [the Council] requires the property for another family which has greater need than Mr Bradney. I conclude that [the Council] has invoked the rights of others as a legitimate aim under Article 8. This case is an example of one of the unfortunate consequences of the break down of long term relationships. The remaining occupier often cannot justify retention of the family home because it provides more space than is reasonably required by him. [The Council] has a long waiting/transfer list. They have many families with greater need than Mr Bradney of a two-bedroomed property. I accept that some families in the Council's waiting/transfer list will be in unsuitable accommodation and have an urgent need for a two bedroomed property. Self evidently, Mr Bradney's continued occupation of the property denies only one family, not 63 or 485 families. However, that does not detract from the fact that [the Council] face an acute shortage of accommodation of this type and have a real and urgent need for the property for families in greater need than Mr Bradney.

39. In my judgment it is necessary and proportionate to grant [the Council] possession of the property to enable them to pursue their legitimate aim of providing social housing to those to whom they owe obligations and on the basis of the allocations policy they have devised in pursuance of Act of Parliament, even though that aim can be achieved only by eviction of Mr Bradney from his home of 10 years and in circumstances where the alternative accommodation [the Council ] has offerred him is not ideal so far as contact with his younger daughter is concerned."

13. In our view, the judge, who did not have the benefit of the decision in Qazi, reached the right result, but for the wrong reasons. No issue of justification under article 8(2), which the judge resolved in the Council's favour, arises as article 8 in not available as a defence to the Council's possession proceedings in this case. Miss Bromwell would not have been able to use the article as a defence, if she had remained in No 11 after her notice to quit had expired. The validity of the notice, which relieved Miss Bromwell of her continuing liabilities under the tenancy, has not been disputed. Mr Bradney, who remained in possession, cannot be in a better position than she would have been in, had she remained in possession. There is nothing exceptional about the circumstances of the case or improper or unlawful in the conduct of the Council, which could give Mr Bradney a defence under article 8 so as to prevent the Council from enforcing its ordinary property rights to immediate possession of No 11.
14. We are unable to agree with Mr Watkinson, appearing for Mr Bradney, that this is an exceptional case, which can be distinguished from Qazi. He relied principally on the finding of the judge that the Council had procured the termination of the tenancy by one joint tenant against the wishes and intentions of both joint tenants, so as to defeat the wishes of both of them that Mr Bradney's position should be protected. There was no such finding, he pointed out, about the circumstances in which Mrs Qazi served a notice to quit on the Harrow Council.
15. That difference on the facts is insufficient to displace the ruling of the majority in Qazi that, as a matter of human rights law, article 8 is not available as a defence to possession proceedings brought to enforce the ordinary property rights of a local authority. As a matter of the law of landlord and tenant, the notice to quit was effective to terminate the joint tenancy. Miss Bromwell has not suggested otherwise. This is not surprising because, as well as the wish to protect the position of Mr Bradney, it was also her wish and intention to protect her own position by terminating her liabilities under the tenancy. The notice to quit was given by her to achieve that purpose. There was nothing to prevent or inhibit the Council from then acting on the basis that the tenancy was effectively terminated by a valid notice to quit and that Mr Bradney had become a trespasser. As a matter of public law, there have been no judicial review proceedings challenging the lawfulness of any of the actions of the Council. We are unable to see anything in its obtaining of the valid notice to quit from Miss Bromwell and acting on it which was outside the powers of the Council or an abuse of its power. This is not one of those "wholly exceptional" cases in which a public law challenge to the Council's conduct in the matter might afford a defence to possession proceedings in the county court.
16. We would dismiss Mr Bradney's appeal.

B. The McCann Appeal

17. The other appeal is brought by the Council, with the permission of this court, from the decision of HHJ Durman in the Birmingham County Court on 15 April 2003, dismissing the Council's proceedings against Mr Gerrard McCann for possession of its property at No 9 Anstey Grove, Acock's Green, Birmingham (No 9).
18. On 27 July 1998 the Council let No 9 to Mr McCann and his wife Wendy jointly. They lived there with their two children. Early in 2001 the marriage broke down. Mrs McCann alleged that there had been domestic violence and moved out to live with her mother. On 5 April 2001 she obtained a non-molestation order and an ouster order after a contested hearing. On 8 August 2001 she returned the keys to the Council, and wrote a note saying that she was giving up the tenancy. She was re-housed by the Council on the grounds of domestic violence. On 4 January 2002, at the Council's instigation, she signed a notice to quit. The judge found that "she had no idea about the effect on [Mr Mc Cann's] occupation of No 9 her signing of the document would have."
19. The judge held that, although Mrs McCann did not understand the effect of signing document on Mr McCann's occupation of the premises, it was a valid notice to quit by one joint tenant and it brought the joint tenancy to an end. Mrs McCann later made ineffective attempts to retract or cancel the notice.
20. So far as the Council was aware No 9 was empty. Mr McCann had moved out temporarily. He stayed in his brother-in-law's house, but in November 2001 he returned to live at No 9 and did a considerable amount of work on the premises to make them habitable. In December 2001 he sought an exchange or a transfer of the tenancy into his sole name. He was informed that the tenancy had come to an end and was given notice to vacate the premises.
21. On 10 October 2002 the Council brought proceedings for possession against him. The possession claim was dismissed "without prejudice to the Council bringing a further claim." The sole ground on which the judge dismissed the possession proceedings was that he had not been persuaded by the Council that grounds existed for interfering with Mr McCann's right to his home under article 8 of the Convention. The judge said that, if the matter were determined solely by the common law and the Housing Acts, there was no defence to the claim. In respect of the article 8 point he reviewed the authorities and stated that the question for his decision was

"34. ..whether this case comes within one of those exceptional circumstances which allow a court to refuse to grant a possession order and direct the local authority to think again as to whether the rights accorded to a person under Article 8 of the European Charter of Human Rights have been properly considered."

22. The judge then looked at the decision-making process, which led to the Council getting Mrs McCann to sign the notice to quit and offering suitable alternative accommodation to Mr McCann. He also considered the Council's domestic violence policy dated 4 November 1999 and the fact that No 9 was Mr McCann's sole or main residence. He concluded that he was not persuaded that the Council had acted as a public authority should under article 8.2. He continued

"56….. I do not make any findings with regard to that. It is for them to satisfy me that the grounds exist for the interference with the defendant's right to their home which an order for possession would necessarily involve.

57. They have not satisfied me. I propose to dismiss this claim without prejudice to the local authority pursuing this matter when it has fully considered the position."

23. That result was criticised by Mr Ashley Underwood QC, appearing for the Council, on the ground that, in the light of the later decision in Qazi, the judge had been wrong to refuse a possession order in reliance on article 8. After the tenancy of No 9 had been terminated by Mrs McCann the Council was entitled, as a matter of domestic property law, to recover possession of its property, to which it had a right of immediate possession against Mr McCann, and the making and execution of a possession order would not amount to an infringement of his article 8 rights. If there were any public law grounds for challenging the actions of the Council in respect of possession of the property, that was properly the subject of a judicial review application and was not in the circumstances a defence to the possession proceedings. The judge had not been asked to adjourn the possession proceedings to enable an application for judicial review to be made. In any case, such an application would have been long out of time.
24. In any event, he submitted that the Council had acted lawfully. It had applied its domestic violence policy in a proper manner. There was nothing improper in obtaining the notice to quit from Mrs McCann. She had made it plain that she did not want to continue to remain liable to the Council as a tenant of its property.
25. Quite apart from the article 8 point the Council denied that there was any unlawfulness in the Council's dealings with Mr McCann.
26. On the other hand, according to Mr Stephen Cottle, appearing for Mr McCann, the Council, as a public authority, had acted unlawfully, not just unfairly. It had acted outside its powers in relation to the recovery of possession of a secure tenancy otherwise than in accordance with the statutory scheme for recovery of possession under s 82 in Part IV of the Housing Act 1985 and Ground 2A. In seeking to obtain from Mrs McCann the notice to quit to terminate the tenancy the Council had not acted in accordance with the law embodied in the statutory scheme for obtaining possession: it had wrongfully circumvented the statutory procedure for recovering possession by manoeuvring itself into "a position of having proprietary rights to possession by its own wrongdoing." Section 82 of the 1985 Act did not permit such conduct. Parliament had provided in s 82 that the Council could only recover possession on specified grounds. Notwithstanding the decision of the House of Lords in Qazi, the court should uphold the decision of the judge refusing to make a possession order and dismiss the Council's appeal.
27. Mr Cottle contended that this was one of those rare and exceptional cases contemplated in Qazi (see paragraph 109) in which judicial review would be available to set aside the Council's decision to obtain possession outside the terms on which Parliament has permitted the local authority to act. The Council had acted unfairly and unlawfully in getting itself into the position in which it could obtain possession of the property by short circuiting and "stealing a march" on the statutory procedures in the 1985 Act for the protection of secure tenants for recovering possession of a secure tenancy. The county court judge could give effect to that as a defence without the need for the High Court to deal with the matter by judicial review.
28. In our judgment, the appeal in McCann should be allowed. As already explained in Kibata and Bradney, article 8 is not available as a defence to the possession proceedings, even though the premises in question was the "home" of the occupant for the purposes of the article. The Council acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy. There was no dispute that the tenancy had been brought to an end by Mrs McCann's notice to quit. Under ordinary domestic law the Council had an unqualified right to immediate possession on proof that the tenancy of the premises had been brought to an end. The statutory procedure in s 82 of the 1985 Act, which is available to the local authority landlord for terminating a secure tenancy, does not apply to a case where the secure tenancy has been terminated by the tenant's notice to quit. That notice to quit was effective, even though the notice was signed without appreciating the consequences for the occupier of the premises.
29. This is not a "wholly exceptional" case where, for example, something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction and the Council might be required to justify its claim to override the article 8 right (see Qazi at paragraph 79.)
30. We would allow the McCann appeal and make the order for possession sought by the Council.

Order:

Bradney

31. Appeals dismissed
32. Order for possession of 11 Wakeman Grove, Sheldon, Birmingham be suspended until 16 January 2004
33. Appellant to pay the Respondent's costs of the appeal subject to detailed assessment and subject to a determination that the appellant's liability to pay the costs be subject to section 11 of the Access to Justice Act 1999, such assessment to be adjourned generally with permission to restore on three months' notice to the appellant.
34. There be a detailed assessment of the costs incurred on the appellant's Community Legal Services Public Funded Certificate.
35. Application for permission to appeal to their Lordship's House refused, but a stay of execution of the order for possession granted pending determination of any petition to their Lordship's House. Stay of execution to be conditional on application for funding the petition to be lodged within 14 days.

McCann

36. Appeal allowed
37. Order for possession of 9 Anstey Grove, Birmingham to be suspended until 16 January 2004
38. The Respondent to pay the appellant's costs of the appeal and the costs of the hearing in the lower court, subject to detailed assessment and subject to a determination of the respondent's liability to pay those costs pursuant to section 11 of the Justice Act 1999, such assessment to be adjourned generally with permission to restore on three months' notice to the respondent.
39. Costs in the court below to be repaid to the appellant within 14 days
40. Detailed assessment of costs incurred on the respondent's Community Legal Services Public Funding Certificate
41. Respondent's application for permission to appeal to their Lordships' House be dismissed
42. Stay of execution of the order for possession pending determination of any petition to appeal to their Lordships' House provided that application for funding that petition is made within 14 days
(Order does not form part of the approved judgment)