COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, BIRMINGHAM DISTRICT REGISTRY
His Hon. Judge McKenna
Case No: 4BM74579
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE NEUBERGER
| WILLIAM DOHERTY
|- and -
|BIRMINGHAM CITY COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
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Ashley Underwood QC & Douglas Readings (instructed by Legal Services, Birmingham City Council) for the Respondent
Daniel Stilitz (instructed by The Treasury Solicitor) for the Interested Party
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Lord Justice Carnwath :
The factual context
"the point of law raised by this petition will be decided by the House of Lords in the cases of [Kay and Price]. There is thus no need for this case to come to the House of Lords. The Court of Appeal will be able to give effect to the decision of the House of Lords in due course…"
Kay v Lambeth CC and Price v Leeds CC
The statutory framework
"Part I of the Caravan Sites Act 1968 ("the 1968 Act") provides limited security of tenure to certain occupiers of caravans and caravan sites. Section 2 provides that at least 4 weeks notice of termination of a licence to occupy a caravan site must be given.
Section 4(1) provides that when a court makes an order for the removal or exclusion of an occupier from a caravan site, it may suspend the enforcement of that order for up to 12 months at a time. The power to suspend the enforcement for such an order is expressed to be "without prejudice to any power apart from this section to postpone the operation or suspend the execution of an order, and subject to the following provisions of this section".
Prior to its amendment by section 211(1) of the Housing Act 2004 ("the 2004 Act"), section 4(6) of the 1968 Act excluded the court's power to suspend the enforcement of a possession order under section 4(1) in the case of possession proceedings brought by local authorities. The exclusion of local authority caravan sites from the ambit of the power to suspend under section 4(1) was removed with effect from 18th January 2005 in respect of proceedings begun on or after that date: see sections 211(2) and 270(3) of the 2004 Act.
The Mobile Homes Act 1983 ("the 1983 Act") applies to any agreement under which a person is entitled to station a mobile home on land forming part of a protected site and to occupy it as his only or main residence: see section 1(1). The 1983 Act provides a degree of security of tenure to occupiers of caravan sites by implying into licence agreements falling within the ambit of its provisions various protective terms. In particular, by section 2(1) of and paragraph 4 of Schedule 1 to the 1983 Act, the owner of a relevant site is entitled to terminate the licence only if: (a) he satisfies the court that the occupier has breached a term of the licence agreement and has failed to comply with a notice to remedy the breach; and (b) the court considers it reasonable for the agreement to be terminated.
However, the protection provided by the 1983 Act does not avail the Appellants in the present case because section 5(1) excludes from the definition of "protected sites" any land occupied by a local authority as a caravan site providing accommodation for Gypsies.
The provisions of Part IV of the Housing Act 1985 ("the 1985 Act") confer security of tenure on occupiers of accommodation let or licensed to them by local authorities. However, these rights are confined to tenancies or licences for occupation of "dwelling houses": see sections 79(1) and 112 of the 1985 Act. It follows that occupiers of mobile homes or Gypsy caravan sites do not enjoy the rights associated with security of tenure under Part IV of the 1985 Act.
It follows that, subject to the right to 4 weeks' notice conferred by section 2 of the 1968 Act, the Appellants had no rights to security of tenure in respect of the Site."
What did the House of Lords decide in Kay and Price?
i) The principle in Qazi, that the enforcement of a right to possession in accordance with domestic law of property could never be incompatible with Article 8, requires modification in the light of Connors, but the exception should be narrowly defined (para 24).
ii) The ordinary presumption is that the property right of a public landowner supplies the justification required by Article 8(2); in a normal case, there is no need for the authority to plead or prove individual justification (para 24).
iii) There are only two possible "gateways" (our term) for a successful defence to summary judgment in such cases: (a) a seriously arguable challenge under Article 8 to the law under which the possession order is made, but only where it is possible (with the interpretative aids of the Human Rights Act) to adapt the domestic law to make it more compliant; (b) a seriously arguable challenge on conventional judicial review grounds (rather than under the Human Rights Act) to the authority's decision to recover possession (para 26-40).
iv) Connors itself was an exceptional case, depending on a combination of three factors: unjustified discrimination between occupiers of local authority sites and those of private caravan sites; the "special consideration" required by Strasbourg law for gipsies; and lack of suitable procedural means to resolve the factual issues which lay behind the authority's action; the latter was the "central" issue (para 41-45).
v) On the facts of Connors itself:a) Gateway (a) would have remained closed, because of the inflexibility of the statutory scheme (the only potential remedy being a declaration of incompatibility, which would not have saved the Connors family, but might have helped others in the future) (para 46-54);b) Gateway (b) might have been open for a defence based on broader judicial review grounds than those actually advanced (para 55-60).
vi) On the facts of Kay and Price there was no basis for resisting summary judgment (para 25).
In the light of the discussion of these issues, we shall be able to state our conclusions on the present case relatively briefly (para 61). Finally we shall make some general comments about the form of the judgment of the House of Lords (para 62ff).
(i)(ii)(vi) The exception to Qazi - unanimity
"… dislocate the conduct of housing claims in the county court, distort local authority housing policies and budgets, and upset the important compromises inherent in our property law and housing legislation." (Lord Bingham (para 31))
Accordingly, although it was agreed that there must be an exception to Qazi, all thought that it should be narrowly defined.
(iii) The scope of the exception – paragraph 
"(2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds.
(3) The two grounds are:
(a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and
(b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6."
"… domestic law provides a fair balance and is compatible with the occupier's Convention rights",
Lord Hope continued:
"But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown  Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these:
(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways:
(i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with Article 8, or
(ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court;
(b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder  AC 461. The common law as explained in that case is, of course, compatible with Article 8. It provides an additional safeguard."
(We have inserted breaks to highlight the contrast between the two "gateways")
The cases – McPhail
The cases – Wandsworth LBC v Winder
"There is a fundamental difference between this case and Winder's case. Mr Winder was seeking to raise a true defence. He was saying that he had a valid tenancy, that he did not owe any rent and accordingly was not liable to eviction. It was a defence on the merits. In the present case the defendants do not allege any right to occupy the land and accordingly do not deny that they are liable to be evicted. They do not suggest that they have any defence on the merits. What they say is quite different, namely, that the council is not entitled to enforce its rights. It is not entitled to come to the court to enforce an eviction order." (p 663)
The distinction was not without its critics. Wade & Forsyth Administrative Law (9th Ed) commented that "it seems impossible to draw any logical line" between Avon and Wandsworth (p 671). It has not always been consistently applied (see, for example, Rhondda Cynnon Taff County Borough Council v Watkins  EWCA Civ 129;  1 WLR 1864).
"A defendant has the right to contend in his defence that the decision of a public authority to recover possession was one which no reasonable person could consider justifiable, as Lord Fraser of Tullybelton explained in Wandsworth…" (para 86)
Mr Underwood realistically did not suggest otherwise. Indeed, from an authority's point of view, once it is accepted that its decision is in principle open to challenge on judicial review grounds, there seems every advantage in those grounds being considered in the county court. As Lord Hope said in the same paragraph:
"It is preferable, wherever possible, that the matter should be dealt with in the county court, rather than by adjourning the proceedings to enable the defendant to apply in the High Court for permission for judicial review of the decision to apply for the possession order."
Furthermore, in contrast to the position in 1988, and at least since the Housing Act 1996, the legal issues are no different in kind from those regularly dealt with by county court judges under its housing jurisdiction.
"Common law" challenge
"(1) a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) [i.e. in a way which is incompatible with a Convention right] may …
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act."
Lord Bingham commented that this was –
"… express authority entitling the occupier to raise his article 8 challenge to the possession order sought against him in those proceedings." (para30)
"… section 7(1) provides that a person who wishes to rely upon his Convention rights may do so either in a free-standing action or by defending an action brought against him by a public authority. In those very rare cases where a person may be evicted from his home without any court order at all, a challenge would have to be raised by way of a free-standing action or judicial review. Otherwise, a defence can be raised in the possession action itself."
However, in some cases the county court would be unable to supply a remedy, because the statute was not "sufficiently flexible" to allow the argument to be accommodated; in such cases -
"The very source of the complaint of incompatibility will be the inflexibility of the statutory scheme, leaving no discretion to the county court. The court will then have to decide whether the interpretative obligation in section 3 of the 1998 Act will enable it to solve the problem. If not, the matter could only be resolved by a declaration of incompatibility in the High Court, which would have no effect upon the outcome of the individual case."
Thus far she thought there was no difference between the majority and the minority. She continued:
"But, as I understand it, some of your Lordships would go further and accept that there may be highly exceptional cases in which the occupier could argue that his individual personal circumstances made the application of the general law disproportionate in his case. When, if at all, should the court be able to say that, even though there is no obligation to continue to provide housing in these circumstances, it is not "necessary in a democratic society" to permit the landowner to assert its property rights?
My Lords, I myself do not think that the purpose of article 8 was to oblige a social landlord to continue to supply housing to a person who has no right in domestic law to continue to be supplied with that housing, assuming that the general balance struck by domestic law was not amenable to attack and that the authority's decision to invoke that law was not open to judicial review on conventional grounds…." (emphasis added)
The expression "individual personal circumstances" in the first paragraph signals a direct response to Lord Bingham's reference to personal circumstances in his own description of the two gateways (see above). Similarly, the emphasised words in the second paragraph reflect the majority's formulation of the two gateways. Thus, "common law" in paragraph 110 and "conventional" are intended in the same sense, and refer to grounds available apart from the Human Rights Act.
"For completeness I mention a third possibility which has nothing to do with the Human Rights Act. A defendant may seek to challenge the lawfulness of the local authority's decision to pursue possession proceedings as an improper exercise of its powers quite apart from its obligations under section 6. Here again, this issue can be treated as a defence in the proceedings, in accordance with the principle enunciated in the well known decision of Wandsworth London Borough Council v Winder  AC 461." (para 60, emphasis added)
On the majority side, Lord Brown emphatically rejected the possibility of a "freestanding" human rights challenge:
"These appellants' defences must fail, not because they disclose no sufficient (highly exceptional) personal merit but because they depend upon establishing a freestanding article 8 right to remain in possession incompatible with the respective claimants' clear entitlement to possession under domestic property law. I would hold that no such freestanding right exists."
He contrasted this with the "quite different basis of challenge" on the "conventional" public law grounds that "the decision to bring the claim was itself so unreasonable as to be unlawful" (paras 207-8). Here again, therefore, one finds the emphasis on conventional, rather than Human Rights Act grounds, as being needed to open gateway (b).
(iv) The basis of decision in Connors
"Under the applicable domestic law the local authority did not have to justify their decision to terminate his licence but in fact their reason had been that they thought Mr Connors and his family had been making a nuisance of themselves on the site. Mr Connors denied that that was so but, his attempt to seek judicial review of the decision having foundered, the issue was never judicially tested." ()
Similarly, Lord Hope noted the court's emphasis on the fact that–
"… the respective merits of the arguments as to whether there had been a breach of the licence conditions were not examined in the county court proceedings."
The "central issue", as he understood it, was whether the legal framework provided the applicant with sufficient procedural protection of his rights" (paras 97-98).
"… In Bryan, Runa Begum and the other cases cited…, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the (review board) was deciding a simple question of fact, namely whether there was 'good cause' for the applicant's delay in making a claim." (para 45)
(v) Gateway (a): Statute or common law?
"The absence of any statutory protection in these cases is the result of a deliberate decision by Parliament that the owner's right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier. That was the position in Connors under the legislation that was then in force…." (para 75)
"But it has to be borne in mind that it would not have been open to the county court to hold that the claim by the public authority in Connors to seek to recover possession was unlawful as it was invoking a right to possession that was provided by statute: see section 6(2)(b) of the Human Rights Act 1998, which provides that section 6(1) does not apply to an act if the authority was acting so as to give effect to or enforce provisions under primary legislation which cannot be read or given effect to in a way which is compatible with the Convention rights."
"There may, however, be cases like Connors where the incompatibility with the article 8 Convention right lies in primary legislation which the county court is being asked to apply to the case by the public authority: see para 86, above. In such a case it would be open to the High Court to make a declaration of incompatibility, if it was not possible to read or give effect to the legislation under section 3 of the Human Rights Act 1998 in a way which was compatible with the Convention right. But the legislation would nevertheless still have to be enforced, unless the decision of the public authority to seek to enforce it when faced with that incompatibility could be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. The decision could not be held in the county court to be an unlawful act within the meaning of section 6 of the 1998 Act: see section 6(2)(b). The fact that the question of incompatibility that was raised in Connors was not capable, under the domestic system, of being dealt with effectively in the county court because of the limits on its jurisdiction reinforces, rather than detracts from, the proposition that a defence which is raised in that court under article 8 should be struck out unless the legislation can be read and given effect in a way that is compatible or it raises an issue as to its incompatibility that ought to be considered in the High Court." (emphasis added)
"There might be more scope for argument where the claim lies in common law unregulated by legislation, but in such cases the landowner is likely to be a private person, upon whom no such positive obligation could be laid, or the occupiers are likely to be squatters who have never had a right to occupy the premises." (para 192)
We think it fanciful to read the latter comment as intended to be applicable to Connors. If Baroness Hale had been in disagreement with Lord Hope on this critical issue, we are confident that she would not have been shy in saying so.
(v) Gateway (b): Conventional judicial review
"… local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land." (p 534 f)
Local authorities were required also to consider their obligations under other legislation before taking any decisions to evict, including obligations concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. Sedley J held that it would be an error of law for the authority to leave such matters out of account, adding –
"… those considerations in the material paragraphs which are not statutory are considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental of human needs, the need for shelter with at least a modicum of security". (p 535 h)
" The difficulty with such a defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court, as the appellants assert, under a primary duty to reach its own judgment on the justifiability of making a possession order."
He might have added that any one seeking to raise such a challenge would have to overcome the ordinary "presumption of regularity", a point emphasised by him in a more recent case (Standard Property Co v Glasgow City Council  UKHL 50 para 74).
"For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action. That was not, be it noted, the basis of the actual judicial review application for which permission in that case was sought and refused. Indeed the council's decision there to drop the allegations of breach of licence and to assert instead a right to summary possession on the bald ground that the family were trespassers... followed rather than preceded the failed judicial review challenge."
The present case
A case for a single majority judgment?
"the law must be accessible and so far as possible intelligible, clear and predictable."
He saw the obstacles to accessibility as both legislative ("the sheer volume of current legislation") and judicial ("the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level…"). He accepted that the latter problems might "at least in theory be mitigated if the House of Lords were to give a single opinion". But he rejected that approach, adopting the reasons given by his predecessor, Lord Reid, in a 1971 speech:
"I agree with Lord Reid that the quality of single Privy Council judgments has on the whole been inferior from the point of view of developing the law to the more diverse opinions of the House.
A single lapidary judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised, however briefly, their reasons for agreeing. And a well-constituted committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law."
This view was, however, subject to "caveats": in particular, that there needed in any event to be a "clear majority ratio"; and that a different approach might be needed to cope with the special problems of "assimilation" created by the "torrent of criminal legislation" in recent years.