COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LUTON COUNTY COURT
His Honour Judge Everall QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE RICHARDS
| Central Bedfordshire Council
(formerly Bedfordshire County Council
|- and -
|Paul Taylor and others
|Secretary of State for Communities and Local Government
David Watkinson (instructed by Messrs Pierce Glynn) for the Appellants
Deok Joo Rhee (instructed by the Treasury Solicitor) for the Intervener
Hearing date : 23rd April 2009
Crown Copyright ©
Lord Justice Waller :
" 108. These conclusions can be fitted into the lessons to be drawn from Connors and from Blecic in this way. There will be some cases of a special and unusual kind, of which Connors is an example, where the interference with the right to respect for the home which results from the making of a possession order will require to be justified by a decision-making process that ensures that "some special consideration" (the words used in Connors, para 84) is given to the interests safeguarded by article 8. If there is such a defect the law will need to be amended to provide the necessary safeguards. But there will be many other cases where there are no such special circumstances - where the person's right to occupy the premises as his home has simply been brought to an end by the operation of law and his eviction is necessary to protect the rights under the law of the landowner. In these cases it is enough that the eviction is in accordance with what the law itself requires as the case of Blecic, in which it was held that the requirements of the law had been satisfied, demonstrates. Further consideration of the interests safeguarded by article 8 will be unnecessary. Cases where the home was occupied under a tenancy, or some other interest falling short of a tenancy, which has been brought to an end in accordance with the relevant law, as in Qazi, will fall into this category. The interests safeguarded by article 8 will be sufficiently protected by the fulfilment of the formal requirements for the eviction laid down by the relevant statute or by the common law."
"109. The contrary conclusion, for which the appellants contend, is that procedures must exist in the domestic system for a consideration of the interests safeguarded by article 8 in every case where a person is evicted from his home by the making of a possession order. A requirement that the article 8 issue must be considered by the court in every case by taking into account the defendant's personal circumstances would go further than a reading of these three cases, taken together and in the light of the prior Strasbourg jurisprudence, will justify. It would breach Lord Bingham's "no more and no less" rule. The extent and consequences of this breach should not be underestimated. It would drive a deep wedge into the domestic system for the handling of possession cases and would be a colossal waste of time and money, as Lord Nicholls indicates. So I agree with him that judges in the county courts, when faced with such a defence, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier's Convention rights.
110. 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 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."
"(3) Having determined the Appellants were trespassers at their various dwellings on land at St Margaret's, Streatley, Bedfordshire (otherwise known as St Margaret's or Haz Manor) he failed to deal with or make any findings as to the Appellants' Defence that the Respondent's claim for possession constituted an unjustified interference with their rights under Article 8 of the ECHR in particular by failing to consider whether the decision to recover possession was unlawful by applying the law as expressed in Doherty v Birmingham CC  UKHL 57, Kay v Lambeth 2006 2AC 465 @ para 110 (Lord Hope) and Wandsworth LBC v Winder 1985 AC 461."
" 46. It follows from the foregoing paragraphs of this opinion that the courts below should have held the premises in question to be the homes of the respective appellants and should have held their eviction or proposed eviction to be an interference with their exercise of their right to respect for their homes within the meaning of article 8(2). Their defences should not have been struck out save on the basis that nothing sufficient was pleaded to support them.
47. The question then arises whether these cases should, even after this lapse of time, be remitted to the county court for consideration whether eviction is necessary in a democratic society, as that expression has been defined in the Strasbourg jurisprudence. I would favour that course if there appeared any reasonable prospect of the court deciding that it was not necessary. But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made. I would accordingly, although for reasons differing from those of the Court of Appeal, dismiss these appeals."
"115. For the reasons given by my noble and learned friend Lord Scott of Foscote I would reject the arguments which Mr Luba advanced on the private law issue. The appellants' right to continue in occupation of premises over which they never had any rights granted to them by the landowner was brought to an end by the operation of law when Lambeth gave notice terminating the leases to LQHT. They have no right to remain there indefinitely, which would be the effect of denying to Lambeth its unqualified right to possession of the premises on the ground that to give effect to this right would be incompatible with article 8. Their interests will be sufficiently protected by the fulfilment of the formal requirements for the eviction, which demand proof by the public authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. I would dismiss this appeal."
"69. It is worth noticing that gateway (b) [in paragraph 110 of Lord Hope] and a challenge to the lawfulness of the decision by the property owner to recover possession of the property from its "home" occupier, is of no relevance whatever to possession proceedings brought not by public authority owners but by private owners. If private owners are entitled to recover possession of their property under the ordinary domestic law, whether common law, statute or a combination, their reasons for deciding to recover possession are irrelevant. Private owners are entitled to take decisions about their own property to suit themselves unless and to the extent that statute has fettered that entitlement. Their property rights are recognised and protected by the Convention (see article 1 of the 1st Protocol to the Convention). Trespassers who have established a "home" on the property of a private owner are entitled to no more respect for their home from the owner on whose land they are trespassing than the law prohibiting forcible entry or eviction without a court order affords. Home occupiers whose contractual and statutory rights to remain on the property have come to an end are in no different state. Such balance as is required to be struck between the rights of home occupiers and the rights of the private owners of the properties on which the homes have been established has been struck by the domestic law and, unless a gateway (a) attack on the domestic law can be sustained, e.g. an attack based on discrimination as in Connors, article 8.2 has no further part to play. Qazi established that that was so and its authority in that respect remains unaltered. But public authorities, and in particular local authorities, are in a different position. Their decision making powers are subject to the constraints of Wednesbury reasonableness, and they must not act in a way that is incompatible with Convention rights (section 6 of the 1998 Act). But those public law constraints strike, in my opinion, the balance that article 8.2 requires (see the penultimate sentence of Lord Hope's para.110)."
"15. In Kay the House of Lords agreed on a number of points. These included:
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.
16. The House was divided as to the width of gateway (b). The minority would have held that it was open to the licensee to argue that the decision to seek a possession order was an unlawful act within the meaning of s6 of the HRA on the ground that it was incompatible with a Convention right. It is implicit on that approach that in considering the issue of proportionality for the purposes of article 8, the personal circumstances of the licensee may be relevant.
17. The position of the majority was summarised in the judgment of Lord Hope at para 110, where he said:
"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."
18. In Doherty the Court of Appeal (Tuckey, Carnwath and Neuberger LJJ) subjected the judgments in Kay to detailed analysis. They concluded, in para 61, that the effect of the majority's decision was that under gateway (b) a council's action was open to challenge "on conventional judicial review grounds, but not on the grounds that it was contrary to article 8".
19. The House of Lords was invited in Doherty to adopt the position of the minority in Kay, but it declined to do so. (Kay had been decided by a seven judge panel and it would have unprecedented for its decision to be departed from shortly afterwards by a five judge panel.) However, Lord Hope said at para 36 that he acknowledged that the way in which the formula expressed by him in para 110 of Kay worked in cases of this kind required further explanation and to some extent modification.
20. In Doherty the council's decision to seek possession of the site was not prompted by any concerns about the behaviour of the licensee or any members of his family. They had occupied the site peaceably for 17 years. The decision to seek possession of the site was driven by planning considerations. The council wanted possession in order to carry out essential improvement works and thereafter to manage the site as temporary accommodation for travellers. The judge had made a summary possession order. The Court of Appeal held that it was not open to Mr Doherty to advance an article 8 claim under gateway (b) and that the council's judgment about the appropriate use of its land in the public interest could not be characterised as Wednesbury unreasonable. Accordingly, there was no point in remitting the case to the county court for further consideration of whether Mr Doherty had a defence under gateway (b).
21. The House of Lords disagreed and remitted the matter to the county court. Lord Hope's reasons are encapsulated in the following paragraphs of his opinion:
52 As I said earlier, the speeches in Kay show that the route indicated by this gateway 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."
22. The point made by Lord Brown in para 210 of Kay was that in Connors it might have been argued that, having regard to the great length of time that the family had resided on the site, it was unreasonable and 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 action.
23. Lord Rodger (at para 89) and Lord Walker (at paras 123-124) agreed with Lord Hope's approach."
"48. As I see it, the effect of Doherty is two fold.
49. First, there is no formulaic or formalistic restriction of the factors which may be relied upon by the licensee in support of an argument that the council's decision to serve a notice to quit, and seek a possession order, was one which no reasonable council would have taken. Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation. In Doherty, where the family had been in occupation for a substantial time without causing any trouble, but the council wanted to use the site in a different way, it might also be thought relevant whether the council had taken any steps to offer the family, or help them to acquire, alternative accommodation.
50. Secondly, the question whether the council's decision was one which no reasonable person would have made is to be decided by applying public law principles as they have been developed at common law, and not through the lens of the Convention.
51. There is no conflict between these two propositions, which should be capable of being applied without additional complexity. As Baroness Hale observed in Kay at para 190, in a passage cited by Lord Walker in Doherty at para 108:
"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)."
52. Having said that the question whether the council's decision was unreasonable has to be decided by applying public law principles as they have been developed at common law, it is to be remembered that those principles are not frozen. Even before the enactment of the HRA, our public law principles were being influenced by Convention ways of thinking. Since its enactment, the process has gathered momentum. It is now a well recognised fact that the Convention is influencing the shape and development of our domestic public law principles, whether one uses the metaphors of embedding, weaving into the fabric, osmosis or alignment. (See the judgment of Lord Walker in Doherty at para 109.)"
"there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council  2 AC 465."
" 171. The article 8 defences were struck out by Judge Roger Cooke. They were in my opinion rightly struck out. If a defendant does not plead or allege sufficient facts which, if made good, could constitute a defence, the defence can be struck out. On the facts pleaded and alleged in the article 8 defences the defences could not have succeeded.
172. Nor, in my opinion, where a home occupier has no contractual or proprietary right to remain in possession as against the owner of the property, could an article 8 defence based on no more than the personal circumstances of the occupier and his family ever succeed. Connors is no authority to the contrary. The successful article 8 defence in Connors was founded on a combination of Mr Connors inability to enjoy the security of tenure advantages afforded by statute to occupiers of privately owned caravan sites and on the Strasbourg court's perception (which I think was an unjustified perception) of a lack of sufficient procedural safeguards enabling him to dispute the grounds which had led the council to terminate his site licence."
" 189. Thus far I believe that we are all agreed. 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?
190. 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. 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 e.g. R v Lincolnshire County Council and Wealden District Council, Ex p Atkinson, Wales and Stratford (1995) 8 Admin LR 529, R (Casey and others) v Crawley Borough Council  EWHC 301 (Admin)."
"207. . . . 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."
"36. The decision of the majority, as summarised in para 110 of my speech, went as far as it was necessary to go to provide answers to the two cases that were before the House in Kay. But the facts in those two cases were very different from those in the present case and from those in McCann. The appellants in Kay v Lambeth London Borough Council never had any rights of occupation granted to them by the landowner. The appellants in Leeds City Council v Price were gipsies, but they had been present on the recreation ground for only two days when proceedings were taken against them for the making of a possession order. In both cases it was held the appellants' interests were sufficiently protected by requiring proof by the local authority landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Neither of them was close on its facts, as this case is, to Connors. For reasons that I shall seek to show, I believe that the answer to the article 8 issue in this case can be found in the formula that is set out in para 110. But I would be the first to acknowledge that the way that the formula works in a case of this kind requires further explanation. To some extent too it needs to be modified.
. . .
42. The question is whether it is possible for this violation of the appellant's Convention rights to be avoided, given that the basic principle that was established by Qazi is that the law itself strikes a fair balance between the rights of the individual and the interests of the community. As I said in para 109 of my opinion in Kay, and again at the outset of para 110, a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances of the occupier should be struck out. The personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by the fulfilment of the requirements for the recovery of possession by the landowner laid down by the statute or by the common law. That is the basic law that was established in Qazi and it is the point on which the majority in Kay differed from the minority: see ground (3)(b) in para 39 of Lord Bingham's opinion. This however is an exceptional case, and it is the law itself that is at fault. The legal framework that applies to the appellant's case is defective because the statute excludes the gipsy community from its procedural safeguards. The modification that was made to Qazi to accommodate the decision in Connors applies to this case."
Lord Justice Lloyd :
"But it is clear that under domestic property law the appellants have no right to occupy their respective premises, of which the local authority has an unqualified right to possession. The appellants fall outside the categories to which Parliament has extended a measure of protection. The local authority has no duty to accommodate the appellants, but has a power and duty to manage its housing stock. The appellants have not pleaded or alleged facts which give them a special claim to remain. I am satisfied that if these cases were remitted, possession orders would necessarily be made."
Lord Justice Richards :