COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
H H J TRIGGER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE AIKENS
| MARGARET DORAN
|- and -
|LIVERPOOL CITY COUNCIL
THE SECRETARY OF STATE FOR COMMUNTIES AND LOCAL GOVERNMENT
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Edward Bartley Jones QC and Andrew Vinson (instructed by Liverpool City Council) for the Respondent
Daniel Stilitz (instructed by Treasury Solicitors) for the Intervener
Hearing dates: 9 February 2009
Crown Copyright ©
Lord Justice Toulson :
History of the action
"…It seems to me that even if there is, or may be a breach by the Claimants which should afford the Defendants …a right of contest, because they contend that their rights, such as the right to respect for private and family life have been impugned, the decision that I make does not in any way end that particular avenue of approach if the Defendants are advised to seek it."
Legislative scheme: phase one
"94. …It would rather appear that the situation in England as it has developed, for which the authorities must take some responsibility, places considerable obstacles in the way of gypsies pursing an actively nomadic lifestyle while at the same time excluding from procedural protection those who decide to take up a more settled lifestyle.
95. In conclusion, the court finds that the eviction of the applicant and his family from the local authority site was not attend by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a "pressing social need" or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of art 8 of the Convention."
1. If a licensee wishes to advance public law grounds for not making a possession order, it is for the licensee to raise the point.
2. There are two potential grounds or gateways (to use the language of later authorities) for making such a challenge;
(a) that the law which requires the court to make a possession order is itself incompatible with the Convention;
(b) that the local authority's exercise of its power to serve a notice to quit and seek a possession order was unlawful on public law grounds.
(There was sharp disagreement as to the breadth of the latter ground or gateway)
3. Where either ground is raised, the court must first consider whether the licensee has a seriously arguable case. As to that, Lord Bingham said at para 39:
"This question should be decided summarily, on the basis of an affidavit or of the defendant's evidence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question."
4. If the court considers that the defence sought to be raised on either or both grounds is not seriously arguable, the court should make a possession order.
5. Where a seriously arguable challenge is raised on the first ground, the court has either to decide the case itself, doing the best it can to arrive at a result which is compatible with the Convention, or it may refer the case to the High Court.
6. Where a seriously arguable issue is raised on the second ground, the court should decide it. In other words, the licensee is not required to pursue such a challenge by way of a separate judicial review application but can raise it as a defence to the claim for possession.
"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…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:…(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."
52 As I said earlier, the speeches in Kay show that the route indicated by this getaway is limited to what is conveniently described as conventional judicial review…
54. The Court of Appeal said in para 61 that it could see no purpose in remitting the case to the judge. I disagree, with respect, with this assessment. In para 43 of his judgment the judge said that it seemed to him that in this case judicial review would be able to check the fairness and legality of the respondent's decision. Now that it is clear that arguments of that kind may be presented by way of a defence to the proceedings under gateway (b), I think that he should be given the opportunity to carry out that exercise. Any factual disputes that may exist between the parties as to the facts on the basis of which the decision was taken will be capable of being resolved by him too. Lord Brown's observations in para 210 of his opinion in Kay add a further point that is relevant to this issue. The site had been occupied as their home by the appellant and his family for about 17 years when the notice to quit was served. So it could be argued that it was unfair for the respondent to be able to claim possession without being required to make good the reasons that it gave in its own statement of claim for doing so.
55. I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent's decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own opinion for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable. The further point to which Lord Brown referred will have a part to play in that assessment."
Legislative scheme: phase two
"(2) Where the court by virtue of this section suspends the enforcement of an order, it may impose such terms and conditions, including conditions as to the payment of rent or other periodical payments or of arrears of such rent or payments, as the court thinks reasonable.
(3) The court may from time to time, on the application of either party, extend, reduce or terminate the period of suspension ordered by virtue of this section, or vary any terms or conditions imposed thereunder, but shall not extend the period of suspension for more than 12 months at a time.
(4) In considering whether or how to exercise its powers under this section, the court shall have regard to all the circumstances, and in particular to the questions –
(a) whether the occupier has failed, whether before or after the expiration or determination of the relevant residential contract, to observe any terms or conditions of that contract, any conditions of the site license, or any reasonable rules made by the owner for the management and conduct of the site or the maintenance of caravans thereon;
(b) whether the occupier has unreasonably refused an offer by the owner to renew the residential contract or make another such contract for a reasonable period and on reasonable terms;
(c) whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation for his caravan (or, as the case may be, another suitable caravan and accommodation for it)."
"This defence is based on conventional public law grounds, that is to say that the decision to recover possession was so unreasonable that no reasonable public authority could have made it or that it was unlawful for some other public law reason: see the Kay case  2 AC 465, paras 110, 118-190, 207-212 and the Doherty case  LGR 165, paras 22(iii)(b), 37-60, 61."
The legislative scheme: phase 3
1. The appellant had spent £5,000-6,000 on her caravan.
2. It had taken her 7 years to obtain a pitch.
3. She had initially been living on the site (and elsewhere) as an unauthorised camper and had become an authorised occupier.
4. The majority of the pitches at the site were occupied by her extended family.
5. She had health problems which would be exacerbated by her eviction.
6. Her father suffered from dementia and was in a local hospital, where she regularly visited him.
7. Her grandson, whose mother was dead, lived with the appellant and went to a local school where he was doing well.
8. She had nowhere else to go.
9. She denied all the allegations of breach of her licence.
10. The family with whom there was greatest friction left the site in 2006.
Gateway (b) and the legislative scheme, phase 1
"It should not be forgotten that in an appropriate case, the range of considerations which any public authority should take into account in deciding whether to invoke its powers can be very wide: see R v Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R (Casey) v Crawley Borough Council  EWHC 301 (Admin)."
Gateway (b) and the legislative scheme, phase 2
Reasonableness of the council's decision
"If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed, that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that the breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy."
"Further…the claimant was entitled to bring proceedings on the basis of the evidence that it had from its site manager…that the defendant was personally guilty of conduct amounting to a nuisance on the site. The decision to terminate the licence and bring proceedings was informed by that evidence. It is true that the judge rejected certain of the allegations…But it does not follow that the claimant was acting outside the bounds of reasonableness in bringing proceedings on the basis of those allegations."
Alleged breaches of the Convention
"Strasbourg is concerned with the bigger picture: has the United Kingdom failed, through all or any of its legislative, executive or judicial arms, to meet the requirements of article 8(2) (it being a given that eviction from one's home engages article 8)?"
Post script: practical guidance
Lord Justice Aikens:
Lord Justice Jacob: