England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Transferred from the Wandsworth County Court)

		Cardiff Civil Justice Centre 2 Park Street, Cardiff
		15 January 2009

His Honour Judge Bidder QC :

INTRODUCTION

1. This is an application by the Defendant to set aside a possession order made on the 9^th August 2006 and/or to stay or suspend the execution of the warrant for possession. By consent, it has been transferred from the Wandsworth County Court.
2. In the application the Defendant's case is that the making of the summary order for possession and its execution would breach his rights to respect for his home under Article 8 of the European Convention of Human Rights and would, thus, be unlawful by virtue of section 6(1) of the Human Rights Act 1998.
3. This case involves difficult questions about the relationship of Convention rights with both the statutory and common law relating to housing and is yet a further step into the territory already much explored by the House of Lords in the cases of Harrow London Borough Council -v- Qazi [2004] 1 AC 983, Kay -v- Lambeth Borough Council [2005] QB 352, Doherty -v- Birmingham City Council [2008] 3 WLR 636 and the ECHR in Connors v UK (2005) 40 EHRR 9 and most recently McCann v UK (App. No. 19009/04, BAILII: [2008] ECHR 385 ).
4. The Defendant's possession of the two bedroom flat at 81 Macey House, Surrey Lane, London SW11 ("the flat") has already been the subject of judicial review proceedings, decided against him both in this court and in the Court of Appeal which refused him permission to appeal against the Administrative Court judgment. However the McCann judgment in the ECHR has opened a further line of argument which I now have to resolve.

HISTORY

5. In April 1983 the Claimant Borough, the Housing Authority for the purposes of the Housing Act 1996, granted the Defendant, who was then 17 years old and his sister, a joint tenancy of the flat which has been occupied by the Defendant as his home since then. In October 2005 his sister served a notice to quit on the Claimants thereby determining the joint tenancy with effect from 14^th November 2005. The Defendant then sought alternative accommodation from the Claimants and by a letter dated the 15^th December 2005 the Claimants made him an offer of a one bedroom property. It seems they were considering offering him the flat on his own.
6. However, on the 10^th February 2006, the police executed a search warrant at the premises and found about a gram of cocaine in the Defendant's possession, which was for his own use. On 16^th March 2006 the police again executed a search warrant at the flat and found the Defendant in possession of a small amount of herbal cannabis. The Defendant was cautioned for that latter offence but prosecuted for the cocaine offence and pleaded guilty at the magistrates court on 25^th April 2006 to possession of a class A drug and was fined £300 and ordered to pay costs.
7. On the 8^th May 2006 the Claimants wrote to the Defendant as follows:

"Your conviction of an arrestable offence is grounds for possession and therefore your application for a discretionary tenancy of 81 Macey House will no longer be considered. You are therefore advised to provide the council with vacant possession of 81 Macey House by returning the keys to the property and removing all your belongings by Monday 15^th May 2006. If you fail to do this you are advised that our Borough Solicitor will be instructed to seek a possession order for the property and for you to be liable for any costs incurred in this action."

8. On 27^th June 2006 the Claimants issued the current proceedings for possession of the flat and an order for possession was made at a hearing on 9^th August 2006. The Claimants were represented by a solicitor. The Defendant was in person. The decision was given by District Judge Tilbury (see page 6 in the first bundle). It should be noted that the claim form (pages 1 and 2) specified that the grounds for possession were "unauthorised occupation" more particularly specified in the Particulars of Claim (3-4). They pleaded that the Claimants were the freehold owner of the flat, that it had been let to the Defendant and his sister Lorraine Dixon (aka Ms Gayle) on a joint weekly secure tenancy from the 18^th April 1983 and that his sister ceased to occupy the premises on or before 14^th November 2005. On the 14^th October 2005 it is pleaded she served notice to quit on the Claimants to expire on the 14^th November 2005. It is then pleaded that the Defendant remains on the premises as an unauthorised occupant who had been told he must vacate.
9. It does not appear there were any witness statements served on behalf of either party.
10. On the 19^th March 2007 the Claimants notified the Defendant that it had decided he was ineligible for an allocation of housing accommodation by them. In addition to the two drug searches in 2006 referred to above, the Claimants discovered that a search warrant had been executed at the flat in 1996 as a result of which the Defendant had been cautioned for possession of cocaine and cannabis.
11. The Defendant sought judicial review of the decision of the 19^th March 2007. The claim for judicial review was dismissed on the 20^th December 2007, a decision of Mr Michael Supperstone QC sitting as a deputy High Court Judge. An application for permission to appeal to the Court of Appeal was first dismissed on the papers and then was dismissed when it was renewed before the full court on the 29^th April 2008.

THE LAW

12. Hammersmith & Fulham LBC -v- Monk [1992] 1 AC 478 establishes that a notice to quit given by one joint tenant, without the concurrence of the other joint tenant, validly determines a periodic tenancy in the absence of a term to the contrary in the tenancy agreement. It is right to say that Monk is consistent with a line of authority deriving from Doe d. Aslin v. Summersett (1830) 1 B. & Ad. 135. No consideration was given in Monk to any Article 8 rights. However, Monk was upheld in Harrow LBC v Qazi in which Article 8 was indeed argued. Although the House of Lords in Qazi accepted that the Defendant had established sufficient and continuous links with the house in question, despite the termination of the joint tenancy by the notice to quit which ended his legal or equitable rights to occupy the house, so that it constituted his home for the purposes of article 8 (1), they also decided that, having regard to its object, article 8 could not be relied on to defeat proprietary or contractual rights to possession. They then held that the domestic law gave the housing authority an unqualified right to immediate possession once service of the notice to quit had terminated the joint tenancy and that, since it had been clear from the tenancy at its outset that it could be so terminated (as it was in this instant case) and since the premises (once recovered) would be available for letting to other persons in need of housing within the authority's area, there was no infringement of the Defendant's article 8 right to respect for his home and that, accordingly, no question arose for determination under article 8(2).
13. In the conjoined appeals in Kay v. Lambeth LBC and Leeds City Council v. Price and others, it was similarly the case that by the operation of the domestic housing law, the appellants were afforded no defence to the claims for possession against them but sought to raise their article 8 rights to defeat the contractual and proprietary rights to possession of the landowners. At first instance, the County Court judges made orders for possession against the appellants, despite, in one case, it being argued that the decision of Connors v. United Kingdom was inconsistent with the decision in Qazi. The headnote in Kay sufficiently summarises the decision of their Lordships, dismissing the appeals, for present purposes:

"(1) that although domestic courts were not strictly required to follow the rulings of the European Court of Human Rights they were obliged to give practical recognition to the principles it expounded; that effective implementation of the Convention depended on constructive collaboration between the Strasbourg court and national authorities and, while it was for that court as the highest judicial authority to interpret Convention rights as they were uniformly to be understood by all member states, it was for domestic courts to determine initially how the principles it laid down were to be applied in the domestic context; that adherence to precedent was a cornerstone of the domestic legal system by which a degree of certainty in legal matters was best achieved; that judges could give leave to appeal where they considered a binding precedent was inconsistent with Strasbourg authority and that they should follow the ordinary rules of precedent, save in an extreme case where the decision of a superior court could not survive the introduction of the 1998 Act;

…

(3) that the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by article 8(2) for an interference with the occupier's right to respect for his home; that the public authority was not required to plead or prove justification in every case and courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with article 8; that a challenge to the making of an order could be raised in the possession proceedings in the county court, so far as its jurisdictional limits permitted, if the defendant could, exceptionally, show a seriously arguable case that the relevant domestic law was incompatible with the Convention; but that (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe dissenting) where the requirements of the law had been satisfied and the right to recover possession was unqualified no challenge based only on a defendant's individual circumstances was permissible"

14. The decision in Qazi was explained and not overruled and Qazi remains binding authority on this court.
15. In Doherty v. Birmingham City Council their Lordships revisited Kay and declined to depart from it. They accepted that the definition of "protected site" in section 5 (1) of the Mobile Homes Act 1983, in excluding gypsies from the statutory protection provided by the Act, was incompatible with the defendant's right under article 8 to respect for his home; the section could not be interpreted compatibly with that right but it was unnecessary to make a declaration of incompatibility because the defect had been remedied by later legislation. However, consistently with the guidance in Kay, their Lordships held that incompatible primary legislation remained fully effective until repealed or modified by Parliament and that under section 6(2)(b) of the Human Rights Act 1998 the right of the local authority to exercise its unqualified right to possession had to be enforced unless its decision to seek possession could be said to be one which no reasonable person would consider justifiable, that being an issue which could be raised in the proceedings for possession. Their Lordships specifically held that judges sitting in the County Court should continue to follow the guidance given in Kay as more fully explained in the opinion of Lord Hope of Craighead.
16. After the hearing in the appeal in Doherty, the ECHR gave its judgment in McCann v United Kingdom. In that case the applicant and his wife had been joint tenants of a family house owned by Birmingham City Council. Their marriage broke down and Mr McCann, having used serious violence against his wife was made the subject of an ouster order. Allegedly he tried to force his way back into the house. Mrs McCann submitted to the local authority an application to be rehoused and returned the keys to the house saying she was giving up the tenancy. She then moved into another council house and when the authority visited the house they took the view it was uninhabited. However, Mr McCann moved back into the house and did a considerable amount of work on it and his relationship with his wife improved so that she supported his application for an exchange of accommodation as the existing house was too big for his needs. On the same day that the application was completed a local authority housing officer, realising that the property was not empty, persuaded Mrs McCann to close the tenancy by signing a notice to quit.
17. The County Court judge who heard the local authority's claim for possession found as a fact that Mrs McCann was not advised and had no understanding that the notice to quit would have the effect of extinguishing Mr McCann's right to live in the house or to exchange it for another local authority property. Mrs McCann tried to withdraw the notice to quit.
18. The local authority brought possession proceedings against Mr McCann in the County Court which he defended on the basis that it was contrary to his right to respect for his home under Article 8 of the Convention to be evicted on the basis of the notice to quit. The County Court judge held that under the common law and the Housing Acts Mr McCann had no defence to the claim for possession. He did consider the article 8 grounds but on the basis of prior authority he held that generally the interests of the local authority as landlord and of other persons in need of social housing had been taken into account by the common law and legislation and, save in exceptional circumstances, it was not open to a court to refuse possession.
19. However, he considered that in these circumstances in which Mrs McCann had signed a notice to quit, and had she not been induced to sign it, the local authority would have had to apply for a possession order under section 84 of the Housing Act 1985 and the issue of reasonableness would have had to have been argued before the court. In the circumstances, the judge held that the local authority had not acted as required by article 8 (2) of the Convention and he dismissed the claim for possession.
20. The authority appealed to the Court of Appeal and the appeal was adjourned pending the outcome in Qazi. Following the House of Lords' judgment, the Court of Appeal gave judgment and Lord Justice Mummery held:

"… article 8 is not available as a defence to the possession proceedings, even though the premises in question were 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 but that the tenancy had been brought to an end by the wife'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 section 82 of the 1985 Act, which is available to a 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.

This is not a 'wholly exceptional' case where, for example, something has happened since the service of the notice to quit, which is fundamentally alter the right and wrongs of the proposed eviction and the council might be required to justify its claim to override the Article 8 right."

21. Judicial review was sought both of the local authority's decision to procure the notice to quit from Mr McCann's wife and of its decision to issue a possession proceedings. The application for judicial review failed and permission was refused to appeal to the Court of Appeal.
22. In the ECHR the court considered that the interference with Mr McCann's right to respect for his home was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others in two respects. First, it protected the local authority's right to gain possession of the property as against an individual who had no contractual or other right to be there. It also pursued the aim of ensuring that the statutory scheme for housing provision was properly applied. The court considered that the central question was, therefore, whether the interference was proportionate to the aim of pursued and thus "necessary in a democratic society". The court specifically recalled that that requirement under paragraph 2 of article 8 raised a question of procedure as well as one of substance. The court was of the view that the loss of one's home was a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of that magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.
23. The court considered that in the case before them the local authority chose to bypass the statutory scheme by requesting Mrs McCann to sign a common-law notice to quit, the effect of which was immediately to terminate the applicant's right to remain in the house. It did not appear to the court that the authority, in the course of that procedure, gave any consideration to the applicant's right to respect for his home. The court also took the view that it was not open to the County Court to consider any issue concerning the proportionality of the possession order, save in exceptional cases where, as the Court of Appeal had put it in the McCann case, "something has happened since the service of the notice to quit, which has fundamentally altered the rights and wrongs of the proposed eviction".
24. The court considered that, as in Connors, the "procedural safeguards" required by article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the local authority's decisions. The court considered that judicial review procedure was not well adapted for the resolution of sensitive factual questions which were better left to the County Court responsible for ordering possession. In the present case, the judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate under article 8 (2) to the legitimate aims pursued.
25. Further, the court did not accept that the grant of the rights to the occupier to raise an issue under article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed, it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases and order for possession would continue to be made in summary proceedings.
26. The court considered that under the summary procedure available to a landlord where one joint tenant serves notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It followed, as far as the ECHR was concerned, that, because of the lack of adequate procedural safeguards, there had been a violation of article 8 in Mr McCann's case.
27. By section 2 of the Human Rights Act 1988 a court determining a question which has arisen in connection with a convention right must take into account any judgment of the European Court of Human Rights. However, I am plainly bound by the guidance in Kay that as a domestic court it is for me to determine initially how the principles the convention laid down were to be applied in the domestic context; adherence to precedent remains a vital part of the domestic law.
28. A number of the law lords in Doherty considered the McCann judgment. It is of considerable significance in this instant case that, although the judgments in Kay are explained in the light of McCann, their Lordships considered that Kay did not need revisiting after McCann.
29. Lord Hope of Craighead repeated his words in Kay with the following preface:

"9. In Kay, para 110, I said that 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 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 of the public authority landlord 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 [1985] AC 461."

I added that, as the common law as explained in Wandsworth Borough Council v Winder was compatible with article 8, it provided an additional safeguard. Lord Scott of Foscote (para 174), Baroness Hale of Richmond (para 192) and Lord Brown of Eaton-under-Heywood (para 212) agreed with what I said in that paragraph."

30. The Court of Appeal had referred to the two routes in Lord Hope's judgment in Kay as gateway (a) and (b) and counsel before me have done the same but it may be important to note that Lord Hope did not consider them mutually exclusive.
31. Lord Hope was, in particular, not convinced that the Strasbourg court had fully appreciated the very real problems that were likely to be caused if the House departed from the majority in Kay. He took the view that it would be unworkable in practice if a County Court were to have to examine the issue of proportionality in every case in which the solicitor for an occupier decided to raise that issue and he again supported the majority view in Kay which he considered laid down objective standards on which the courts could rely. Moreover he continued to take the view he espoused in Kay of section 6(2)(b), a view which has particular relevance to the approach to seeking possession that has been taken by the Claimants in this case:

"I remain of the view which I expressed about this in para 114 of my opinion in Kay. Primary legislation which cannot be read or given effect in a way which is compatible with the Convention right must nevertheless still be enforced, unless the decision of the public authority to seek eviction can be said, when judicially reviewed, to be arbitrary, unreasonable or disproportionate. That is the effect of section 6(2)(b) of the Human Rights Act 1998. The question is whether, having decided to do what it is doing, the public authority landlord is doing what it has been authorised to do by the primary legislation: R v Kansal (No 2), para 88. If it is, giving effect to it cannot be held to be unlawful within the meaning of section 6(1) of that Act: see further paras 43, 44. That is the system which applies in domestic law, which preserves the sovereignty of Parliament. Incompatible primary legislation remains fully effective unless and until it has been repealed or modified. The solutions that are available to the domestic court in response to decisions of the court in Strasbourg are limited by this fundamental principle. As I indicated in Kay, it reinforces the proposition that a defence under article 8 must be struck out unless the legislation can be read and given effect in a way that is compatible with the Convention right. Nothing that was said by the Strasbourg court in McCann can alter, or has altered, the way acts authorised by primary legislation must be dealt with under section 6(2) of the 1998 Act.

The basic law

22. So I must make it clear at the outset that nothing that I may say in this opinion is to be understood as detracting in any way from the basic law as laid down by the majority in Qazi and re-affirmed by the majority in Kay."

32. Again, critically to this case, Lord Hope indicated that:

"It is not open to the court, once it has decided in any individual case that the effect of the legislation is that the public authority's right to possession is unqualified, to hold that the exercise of that right should be denied because of the occupier's personal circumstances."

33. There seems to me little doubt from paragraph 52 of the ECHR decision in McCann, that essential to that Court's finding of a breach of Article 8 was the fact that the local authority had chosen to bypass the statutory scheme by requesting Mrs McCann to sign a notice to quit. In following that procedure it was clear that the authority had given no consideration to the applicant's right to respect to his home.
34. It is also important to note that in Kay, Lord Brown of Eaton-under-Heywood, in a passage approved by Lord Hope in Doherty, considered that where no statutory protection was afforded to occupiers that should be assumed to be Parliament's will, the result of a deliberate decision by Parliament to leave the owner's right to recover possession in these cases unqualified. In my judgment, despite the best efforts of counsel for the Defendant in this case, it can hardly be doubted that Parliament must be assumed to have left unqualified the right of an owner to recover possession where one of two joint tenants has served notice to quit. The rule in Summersett's case is of very long standing and there has been at least one significant Housing Act affecting local authority housing since Monk.
35. In the case of a tenancy not governed by statutory restrictions, it is entirely open to the joint tenants and the landlord to agree a different solution. In the case of a statutorily protected tenancy there is no reason in principle why such an agreement should not be made but in any event there are obvious practical problems if the question of proportionality were to result in the common law rule being displaced. It would be undesirable if one tenant were to be prevented from terminating his or her interest in a tenancy and, thus, be forced to continue to pay rent. Alternatively, the difficulty would arise as to one tenant paying the full rent or the landlord being faced with only one tenant paying half the rent.
36. Of course, in the instant case, the position would be even more egregious if the landlords were unable to regain possession, the tenancy having been terminated by the notice to quit. There would be no longer any contractual or statutory obligation to pay rent or to adhere to any of the terms of the statutory or contractual tenancy. The position of the defendant would be that of an irremovable trespasser.
37. It should be noted that in the case of Kay the appellants never had any rights of occupation and in Price the gypsies had been present on the land for only two days. In both cases it was held that the appellants' interests were sufficiently protected by requiring proof by the landowner of its entitlement to obtain an order for possession in the exercise of its property rights. Where, as here, the landlords did not persuade the Defendant's sister to serve her notice to quit, which she did in order that she could be more appropriately rehoused and when the Defendant was entitled to be considered and was considered for alternative housing, albeit that the Claimants did not consider it was appropriate to grant him that housing, the situation, is, in principle, no different from the position of the appellants in Kay and Price and is distinguishable from the position of Mr McCann. The Defendant has no right to remain in the house and the Claimants simply seek as landowners to enforce their rights. Indeed they are doing so, as were the landowners in Kay and Price, to regain a property for the benefit of others who need homes. The Claimants' decision to exercise their right to possession, which it is clear in domestic law is unqualified, could not, in my judgment, have been held to have been unlawful within the meaning of section 6(1) of the Human Rights Act 1998 as it was acting so as to give effect to primary legislation in the sense that the statutory structure, under which the Claimants let the premises to the Defendant and his sister jointly, provides him with no security of tenure where his sister has given notice to quit and, thus, no defence to the common law right of the Claimants to recover their property. This is, it seems to me, clearly a scheme which, read as a whole, gives no protection to one joint tenant when the other has terminated the tenancy.
38. It is exactly similar to the position of the gipsies in Doherty as set out by Lord Hope at paragraph 38. I am satisfied that this is not simply a chance omission of protection. The Defendant in this case has no right to remain in the property, not simply because of the common law but because Parliament has chosen not to bring his case within the statutory scheme of protection. The Claimants are given statutory powers of management of property owned by them under the Housing Act 1996 and have an obligation to exercise them for the benefit of those in their area needing accommodation. They were, thus, bound by the statutory scheme to seek to recover possession. That this is not simply a chance omission by Parliament to deal with the position of joint tenants and the rule in Monk can be seen by consideration of section 81 of the Housing Act 1985 where Parliament sets out the "tenant condition" for the existence of a secure tenancy, namely that, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling house as his only or principal home. I accept, in any event, the submission of the Claimant's counsel that, at least in this case, it must be assumed that the Parliamentary draftsman was aware of the domestic law.
39. Doherty was the type of exceptional case envisaged in Kay because of the discriminatory effect of the statutory scheme which applied at the time the possession order was sought. It is difficult to see why this Defendant's case is in any way exceptional. Rather, in my judgment, it is strongly arguable that the challenge to the possession order in this case is, in fact, based only on the personal circumstances of the Defendant.
40. As to gateway (b) Lord Hope is quite clear at paragraph 52 that the route indicated by that gateway is limited to conventional judicial review (i.e. not importing questions of proportionality as are within Article 8). However, at paragraph 55 he states:

"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 judgment 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."

41. Lord Scott of Foscote also considered the extent of gateway (b) and said, at paragraph 69:

"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). [i.e. 'The common law as explained in {Winder}is, of course compatible with article 8. It provides an additional safeguard'."

42. In considering the extent of gateway (b) in its application to Mr Doherty's case, Lord Scott took the view that the interests of the Dohertys did come into the equation but only in the "conventional" judicial review sense that the decision of the council to seek possession could be challenged if it failed to pay sufficient regard to or attributed insufficient weight to those interests (see para. 76).
43. Lord Scott considered that the McCann judgment did not require a reconsideration of Kay. His reasons were set out in para. 82:

"I am not prepared to do so because I consider the McCann judgment to be based on a mistaken understanding of the procedure in this country whereby proceedings brought by a local authority owner of residential property for the purpose of recovery of possession of the property from a defendant who has, or had had, his home on the property can be defended by reliance on article 8. I consider, also, that the McCann judgment discloses a misunderstanding of the various factors that would have been taken into account by the domestic court that dealt with the possession application in concluding that the defendant, Mr McCann, had no arguable article 8 defence."

44. He took the view that it was possible to raise as a defence in the possession proceedings the question whether the local authority's decision to institute the possession proceedings was a lawful one. He was, however, of the view that such a defence would have to be pleaded. In fact, such a defence was not pleaded in this case; indeed there was no defence filed. If such a defence were filed, Lord Scott considered that the judge would have to review the lawfulness of the decision:

"The Fourth Section appear to believe that on an application for a summary judgment the court cannot consider 'any issue concerning the proportionality of the possession order'. Not so. An article 8 defence requires the judge to review the lawfulness of the local authority's decision to recover possession of the property in question and, in doing so, to review the factors that a responsible local authority ought to have taken into account in reaching its decision. The proportionality of the decision in all the circumstances of the case would be central to the review and if the local authority's decision could be shown to be outside the range of reasonable decisions that a responsible local authority could take, having regard both to the circumstances of the defendant as well as to all the other relevant circumstances, the decision would be held to be unlawful as a matter of public law. But in a case in which it is not reasonably arguable on the face of the pleadings, or from the contents of the affidavits that have been filed, that that is so, the judge can be expected to make a summary order for possession. The adjective 'summary' in this context does not mean that the judge would not have considered the proportionality of the requested possession order. It means that the article 8 case put forward by the defendant for a conclusion that a possession order would be disproportionate is not, in the opinion of the judge, capable of being sustained by serious argument. The notion that a defence based on an article 8 right to respect for a home requires the case to proceed to a full trial even though it is apparent that the defence cannot succeed is clearly absurd. An application for a summary judgment does require the defendant's contention that a possession order would be disproportionate to be given proper attention and, if reasonably arguable, to be permitted to proceed to a full trial."

45. Lord Walker of Gestinghope also considered that the argument addressed to the House that section 6(2) was inapplicable was mistaken. In a vivid analogy he dismissed that argument:

"100. At common law, a landlord is entitled to possession of the demised premises if the tenant's lease or tenancy has expired or been validly terminated, and similarly a fortiori if there was only a licence. To that extent the appellant and the Secretary of State are correct in saying that the City Council was, in seeking possession, relying on a common law right. That is part of the picture, but it is far from the whole picture, and in my opinion it would be unrealistic, and productive of error, not to look at the whole picture. The fact is that the City Council's common law right was surrounded on all sides by statutory infrastructure, like a patch of grass in the middle of a motorway junction. The field of social housing is, as Baroness Hale of Richmond observed in Kay (para 185)  

'an area of the law much trampled over by the legislature as it has tried to respond to shifting and conflicting social and economic pressures.' "

46. In my judgment, the same situation arises here.
47. Lord Walker was uneasy about the restriction in Kay of gateway (b) to "conventional judicial review". As he indicated at para. 109 "Public authorities are bound to take account of human rights". However, he felt himself bound by the majority line in Kay.
48. When considering the case of McCann, which did not persuade him that it was necessary to reconsider Kay, he accepted that both the cases of Connors and that of the case which the House was then considering (both gipsy cases) showed that the special treatment which Parliament accorded to local authority gipsy caravan sites was, "in human rights terms, a legislative error." However, he contrasted that with the wider field of housing legislation:

"119. By contrast, the important distinction drawn by our housing legislation between tenancies as to which the court must be satisfied, and those as to which it need not be satisfied, that it is reasonable to make a possession order is, Kay tells us, not open to attack under section 4 of HRA, because Parliament has over a long period worked out arrangements which strike a fair balance between the article 8 rights of existing tenants (who may be only probationary, or may have lost secure status as a result of past failings) and the claims of others with a pressing need for social housing. So the important distinctions drawn by the Housing Act 1985 (as amended) between different types of tenancy cannot, since Kay and at the legislative level, be attacked as incompatible with article 8 rights.

120. But Connors and McCann show that the decisions that a housing authority makes in giving effect to the legislation may be open to attack, subject to section 6(2)(b), as having been made with insufficient respect towards the tenant's article 8 rights. It is understandable that housing authorities, faced with long waiting lists and limited human and financial resources to deal with possession cases, should seek the simplest and cheapest way of obtaining possession from tenants or former tenants. Why embark on proceedings which may involve a day or more's oral evidence (possibly involving witnesses liable to be intimidated) if there appears to be a route under which the defendant will not be able to resist summary judgment? Does not the authority's duty to its council tax payers, and in particular to those on the waiting list, compel the choice of the simpler, cheaper remedy?

121. The decisions of the Strasbourg Court in Connors and McCann show that housing authorities may find that, in the long run, that course will not be simpler and cheaper. Their housing policies ought to take account of the article 8 rights of tenants or ex-tenants, even if they are protected by section 6(2)(b) from direct challenge in the courts."

49. It should be noted however that Lord Walker also stressed the importance in McCann of the persuasion by the council of Mrs McCann to serve the notice to quit.
50. Lord Mance did not consider that the appeal before the House enabled them to consider whether proportionality had a role in conventional judicial review. It is also notable that Lord Mance was also of the opinion that the decision in Kay did not mean that, in a case such as this, it was impossible for an occupier to challenge the validity of a notice to quit:

"160. The next question is whether paragraph 110 in Kay itself prevents a challenge on article 8 grounds to the validity of the notice to quit. In my opinion, it does not. Both Qazi and Kay were, as I have shown, concerned with circumstances where it was clear or was held that there existed an unqualified domestic law right to possession. It was in that context that gateway (b) in paragraph 110 addressed the possibility of a challenge to the local authority's 'decision….. to recover possession as an improper exercise of its powers at common law', and defined the possibility of such a challenge by reference to conventional common law grounds of judicial review. Gateway (b) was not conceived with reference to a challenge on Human Rights Convention grounds to the validity of a public authority's exercise of a contractual right which if good would mean that no right to possession arose at all. My noble and learned friend, Lord Hope, underlined this distinction in Qazi itself. In paragraph 79 he identified as a 'wholly exceptional case' - in relation to which he reserved his opinion as to whether article 8 issues might be raised in the county court - a case 'where proceedings for possession were being taken following the service of a notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time limit'. He went on to distinguish Qazi on the basis that 'The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy'. Since Kay the principle in Wandsworth LBC v. Winder allows judicial review points to be raised by way of defence and without time limit in the county court, but the distinction remains between cases (like Qazi and Kay) where the challenge is to a decision to enforce an undoubted right to possession by court proceedings and cases (like the present) where the challenge is to the decision to serve a notice to quit which is a contractual pre-condition to any right to possession."

The Arguments on Gateway (a) and my ruling

51. Mr Gallivan first submits that there is no material difference between McCann and this Defendant's case. As I have indicated above, in my judgment (and Lord Hope specifically makes this point in Doherty) it was clearly a vital factor in the ECHR's decision that the local authority in that case had persuaded Mrs McCann to serve a notice to quit. Thus the public authority itself had caused the bypass of what would have been Mr McCann's right to have the reasonableness of the claim for possession determined by an independent tribunal. Here, the action of a private individual, the other joint tenant, uninfluenced by the Claimants, terminated the Defendant's right to have the recovery of possession considered by the Court. In seeking possession, the Claimants were merely enforcing their common law rights (in order to comply with their duties under the statutory scheme) which rights were left untouched by the statutory scheme.
52. Mr Gallivan contends first that he can bring the Defendant's case under gateway (a) of Kay in that he submits that the rule of law which entitles Wandsworth to recover possession, namely the common law rule in Monk, is inconsistent with the right to respect for the home enshrined by article 8. He contends that there was no challenge to Monk's rule in Qazi. It is right that Qazi turned on a determination of the "autonomous" meaning of "home" in the Convention. It was, however, a fundamental basis of the decision in Qazi that the domestic law was compatible with article 8. Indeed it is clear from Lord Hope's judgment in Qazi at para 74 that it was not even suggested in that case that the fact that the rule in Monk meant that an order for possession was inevitable was a violation of article 8. Lord Hope considered that to be an unsustainable argument particularly in the light of the Commission's response to that argument in Ure v. United Kingdom (application no. 28027/95). At paragraph 83 Lord Hope said:

"I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list does not violate the essence of the right to respect for the home under article 8(1). That is a conclusion which can be applied now to all cases of this type generally."

53. It is clear that that view also underpinned the judgment of Lord Millett in Qazi and that of Lord Scott. Thus, while the consideration of this case must be subject to the qualifications on the applicability of convention defences in possession proceedings introduced by Connors, Kay and Doherty, it must be of great significance that the compatibility of the domestic law in relation to the landowner's right to regain possession where one joint tenant had served a notice to quit was assumed and accepted by all in Qazi. I accept the argument made by counsel for the Claimants in this case that in Qazi, Kay and Doherty the arguments are predicated on the indefeasible right to possession afforded by the service of a notice to quit, and that the discussion and opinions in all those cases are only consistent with considering that the provision for notices to quit in the common law was consistent with Article 8.
54. The Defendant argues that the want of procedural safeguards introduced by the rule in Monk is extreme but the Defendant's skeleton is silent on what the alternative would be. I have already referred above to the problems which a restriction of the right of one joint tenant to terminate unilaterally the tenancy. Mr Gallivan contended that the common law was capable of creating a form of occupancy which could cope with the problem and that the difficulties should not prevent the court from finding an article 8 breach.
55. However, I agree with the submissions of the Claimant that the Defendant's arguments leave it entirely unclear what the Defendant contends the resulting state of the law should be if the Defendant's main argument, that the system of one joint tenant being able to terminate the tenancy by notice to quit itself contravenes article 8. It is right, in my judgment, that it is difficult to see how that right of a joint tenant is to be tested. What reasoned justification should be imposed on the joint tenant who wishes to move and to terminate the tenancy? How is the court to choose between the contrary interests of two joint tenants? Why, in fact, should the position be any different where the landlord is a public authority rather than a private landlord?
56. As Lord Bridge of Harwich put it in Monk's case:

"It is primarily in relation to joint tenancies in these categories that the question whether or not notice to quit given by one of the joint tenants can determine the tenancy is of practical importance, particularly where, as in the instant case, the effect of the determination will be to deprive the other joint tenant of statutory protection. This may appear an untoward result and may consequently provoke a certain reluctance to hold that the law can permit one of two joint tenants unilaterally to deprive his co-tenant of 'rights' which both are equally entitled to enjoy. But the statutory consequences are in truth of no relevance to the question which your Lordships have to decide. That question is whether, at common law, a contractual periodic tenancy granted to two or more joint tenants is incapable of termination by a tenant's notice to quit unless it is served with the concurrence of all the joint tenants. That is the proposition which the appellant must establish in order to succeed.

As a matter of principle I see no reason why this question should receive any different answer in the context of the contractual relationship of landlord and tenant than that which it would receive in any other contractual context. If A and B contract with C on terms which are to continue in operation for one year in the first place and thereafter from year to year unless determined by notice at the end of the first or any subsequent year, neither A nor B has bound himself contractually for longer than one year. To hold that A could not determine the contract at the end of any year without the concurrence of B and vice versa would presuppose that each had assumed a potentially irrevocable contractual obligation for the duration of their joint lives, which, whatever the nature of the contractual obligations undertaken, would be such an improbable intention to impute to the parties that nothing less than the clearest express contractual language would suffice to manifest it. Hence, in any ordinary agreement for an initial term which is to continue for successive terms unless determined by notice, the obvious inference is that the agreement is intended to continue beyond the initial term only if and so long as all parties to the agreement are willing that it should do so. In a common law situation, where parties are free to contract as they wish and are bound only so far as they have agreed to be bound, this leads to the only sensible result."

57. While article 8 was not in issue in Monk, those principles remain entirely valid considerations in considering whether, returning to the Kay gateway, (a) there is a seriously arguable point that the law enabling this court to make the possession order is incompatible with article 8. McCann's case is, at best, persuasive authority only; I have already indicated that it seems to me to be clearly distinguishable from the instant case and to concern itself only with the procedural effect of article 8 in the particular circumstances of that case.
58. I accept the contentions of counsel for the Claimant that the application of section 6(2)(b) of the 1998 Act only arises if the domestic system set out in Monk, is necessarily incompatible with article 8. I am satisfied, for the reasons expounded by Lord Bridge in Monk, which appear to have been accepted by all in Qazi, Kay and Doherty as being compatible with article 8, that the domestic law strikes a proper and unassailable balance between the rights of joint tenants and their landlords and that it is not arguable that the rule in Monk is incompatible with article 8.

The arguments on gateway (b) and my ruling

59. Despite the arguments of the Defendant's counsel that Doherty has, in some way, altered the test in Kay to allow proportionality to be considered by the court under gateway (b), I consider that Kay is binding authority that the decision made by the Claimants to seek summary possession against the Defendant in reliance on their clear right to possession under domestic law may only be challenged on the basis that its decision was one that no reasonable person could consider justifiable, i.e. the test enunciated in Wandsworth LBC v. Winder [1985] AC 461.
60. Although a number of their Lordships in Doherty expressed some reservations about the limitation on gateway (b) none were prepared to overrule it. I have already referred above to some of those reservations.
61. Mr Gallivan argues that a majority of the House considered that where s.6(2)(b) does not apply a public authority is bound to take into account human rights (Lord Walker at 108-110 and at 120; Lord Scott at 84 and Lord Mance at 133, 155 and 158). While the Claimants in this case were acting within a statutory scheme or framework, even though they were enforcing their unquestionable common law right to possession, they must certainly have had, as Lord Mance indicated at para 158 of Doherty, a discretion whether to pursue court proceedings. The "primary legislation" (reading that as the scheme including the common law rule relating to joint tenants) did not require the Claimants to act in a way which was incompatible with the Defendant's convention rights. But it seems to me that there is a distinction between the Claimants being required as a public authority, to take into account the article 8 rights of the Claimant and to consider proportionality and the Court substituting its view of proportionality for the Claimants'.
62. I agree with Mr Gallivan that, at least explicitly, the Claimants did not specifically refer to the balancing exercise set out in paragraph (2) of article 8. However, that does not, in my judgment, mean that their decision must necessarily be quashed as one which no reasonable authority could have taken.
63. In this long running case, the Claimants afforded the Defendant the opportunity to make extensive representations about the factual matters that the Claimants should take into account when making their decision as to whether the Defendant was ineligible for housing accommodation because he was guilty of unacceptable behaviour within section 160A of the Housing Act 1996. It should be noted that subsection (8) of section 160A indicates that:

"The only behaviour which may be regarded by the authority (if he were a secure tenant of the authority) entitle the authority to a possession order under section 84 of the Housing Act 1985 on any ground mentioned in Part 1 of Schedule 2 to that Act (other that ground 8);…."

64. Moreover, the Claimants were bound to have regard to (and did have regard to) the Allocation of Accommodation Code of Guidance for Local Housing Authorities under section 169 of the 1996 Act.
65. They relied on the Defendant's possession of a class A drug at the premises and his conviction for that offence and considered whether a court would consider it reasonable in the circumstances to make an order for possession and one that was not suspended or postponed. The Claimants found that a judge would have made an outright order for possession.
66. Mr Supperstone QC considered what ought to have been the correct approach to that determination at paragraph 15 of his judgment, which judgment was unsuccessfully appealed by the Defendant. Mr Supperstone QC rejected the Defendant's grounds of challenge to the determination of the Claimants. He reviews the Claimants' responses to the criticisms of their decision at paragraphs 24 to 27 of his judgment and accepts those responses. I should say that for my part I consider his reasoning to be correct and I agree with it.
67. The Court of Appeal considered the same criticisms of the Claimant's decision when rejecting the renewed application by the Defendant for permission to appeal. Lord Justice Dyson, who gave the main judgment, agreed with the learned Deputy High Court Judge that it was open to the authority to conclude that an outright order was likely to be made in the Defendant's case. He considered the applicant's history of drug abuse, the fact that the flat had been raided three times, the amount of damage caused by the raid leading to the relevant conviction and the likely disturbance to neighbours as important factors.
68. Importantly, at paragraph 11 of his judgment Lord Justice Dyson considers the argument that the authority did not, in their decision on whether the Defendant was ineligible, take into account his article 8 rights:

"Assuming, without deciding, that Article 8 is engaged at all – and the judge gave what seems to me to be a good reason why it was not – but assuming that it is engaged, it seems to me that Article 8 takes the applicant no further than his arguments based on the statutory scheme itself. Part 6 of the Housing Act as amended strikes the balance which Article 8 demands, and the code to which I have not referred in detail (but is a detailed exposition of how the authority should approach these statutory provisions) must, it seems to me, reflect – as I think Mr Gallivan was inclined to accept – the Article 8 considerations. Therefore, whether one is considering a case of this kind under Article 8 or under the statutory scheme makes no difference. In other words, Article 8 adds nothing to the applicant's points made under the statutory scheme".

69. I accept Mr Beglan's arguments to me that the authority's decision making process must inevitably have proceeded on the basis that, if they decided that the Defendant was ineligible, they would be continuing with possession proceedings. That decision making process has been challenged in judicial review proceedings, the challenge was unsuccessful and the Court of Appeal has dismissed the appeal to the review. I agree that it is simply unarguable that the Claimants have not properly considered whether to continue with the possession claim and, in my judgment, it is clear that, in reaching that decision, they have performed the very balancing exercise that is required by article 8 (2). I also reject the submission of Mr Gallivan in paragraph 19 of his skeleton that the authority did not take into account the various factors he there sets out. Those factors are ones that were known at the time and there is no evidence that they were not considered.
70. Even if, therefore, proportionality were to form part of the gateway (b) consideration (whether it be on the review by me of the decision of the Claimants or on a determination whether a reasonable authority should have considered the article 8 rights when making its decision whether to bring possession proceedings) I am quite satisfied that the careful decision making process of the Defendants amply accorded with article 8. I also consider that the decision that they made was one to which they reasonably could have come.
71. I therefore decline to order that the Claimants' decision to initiate or pursue these possession proceedings was unlawful. I refuse to set aside the order for possession made by District Judge Tilbury and I further refuse to stay or suspend the execution of the warrant for possession.