England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 February 2018

The Honourable Mr Justice Nicklin:

1. This claim was issued in the Clerkenwell & Shoreditch County Court on 3 June 2014. It started life as a simple claim for possession of a 2-bedroom maisonette in Hornsey ("the property"). The Defendant's father had been granted a secure weekly tenancy of the property by the Claimant on 8 August 1994. The Defendant's father died in June 2001. His wife, the Defendant's mother, succeeded to his secure tenancy on his death pursuant to s.87 Housing Act 1985 ("HA 1985"). The date of succession was 11 June 2001. The property was the family home.
2. On 27 October 2013, the Defendant's mother died. On 1 November 2013, the Defendant contacted the Claimant to notify it of the death of his mother and to request that the tenancy of the property be transferred to him. He based his claim on the fact that, immediately prior to his mother's death, he had been occupying the property as his only or principal home for over 10 years. The Claimant refused, relying upon the terms of ss.87-88 HA 1985, on the ground that his mother had herself been a successor under s.87 HA 1985 ("the no second succession rule").
3. Having refused to allow the Defendant to succeed the tenancy, the Claimant served a notice to quit on the Defendant on 10 December 2013. The Defendant did not surrender possession and, ultimately, on 3 June 2014, the Claimant commenced possession proceedings which the Defendant defended.
4. In his Defence, the Defendant claimed that he was the secure tenant of the property by succession contending that the no second succession rule contained in ss.87-88 HA 1985 was incompatible with the Human Rights Act 1998, Schedule 1, Articles 8 and 14.

Statutory Scheme

5. At the relevant time, the relevant provisions of the HA 1985 were:

s.87 Persons qualified to succeed tenant

A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling house as his only or principal home at the time of the tenant's death and either —

(a) he is the tenant's spouse; or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of 12 months ending with the tenant's death;

unless in either case, the tenant was himself a successor, as defined in s.88.

s.88 Cases where the tenant is a successor

(1) The tenant is himself a successor if —

(a) the tenancy vested in him by virtue of s.89 (succession to a periodic tenancy) or

(b) he was a joint tenant and has become the sole tenant, or

(c) the tenancy arose by virtue of s.86 (periodic tenancy arising on ending of terms certain) and the first tenancy there mentioned was granted to another person or jointly to him or another person, or

(d) he became a tenant on the tenancy being assigned to him (but subject to subsections (2) and (3), or

(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant, or

(f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy".

(2) A tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c) is a successor only if the other party to the marriage was a successor.

6. The effect of ss.87-88 HA 1985 is, so far as material:

i) Section 87 identified the persons who were qualified to succeed a secure tenant pursuant to s.89. It provided that a person was qualified to succeed a secure tenant if he occupied the dwelling-house as his only or principal home at the time of the tenant's death and (a) he was the tenant's spouse or civil partner; or (b) he was another member of the tenant's family (as defined in s.113) and had resided with the tenant throughout the period of 12 months ending with the tenant's death, unless, in either case, the tenant was himself a successor, as defined in s.88.

ii) Section 88 defined the circumstances in which the tenant was himself a successor. It provided that a person in whom a secure tenancy had vested on the death of a previous tenant was himself a successor (s.88(1)), but that a person to whom a secure tenancy had been assigned following a breakdown in marriage was not (unless the other party to the marriage was a successor) (s.88(2)).

7. Section 160 of the Localism Act 2011 ("LA 2011") inserted a new s.86A into the HA 1985. The effect of s.86A is to limit the statutory right of succession to spouses and civil partners.^[1] s.86A(3) continues to limit that right to one statutory succession. Other family members, such as children, no longer enjoy a right of succession. However, s.86A applies only to England and only in relation to secure tenancies granted on or after 1 April 2012 ("new STs").^[2] Secure tenancies granted before 1 April 2012 ("old STs") remain governed by s.87 as described at paragraph 6(i) above. The LA 2011 did not amend s.88.
8. When brought into force, the Housing and Planning Act 2016 ("HPA 2016") will introduce further amendments to the HA 1985. So far as material, schedule 8 renumbers s.86A as s.86G and inserts a new subsection (8): paragraph 3 of schedule 8. The effect of s.86G(8), once it comes into force, will be to align the succession criteria for old and new STs. Thus, the removal of the statutory right of succession from other family members such as children will apply to old STs as well as new STs.^[3] However, this change will apply only in cases where the tenant dies after the amendment comes into force: paragraph 15 of schedule 8.
9. A commencement date for schedule 8 of the HPA 2016 has not yet been appointed.

Alleged Incompatibility

10. The grounds of the alleged incompatibility were set out in the Defence. In summary, it was contended that the relevant sections of the Housing Act treated differently a tenant whose partner died and a tenant whose marriage/civil partnership with his/her partner had broken-down. In the former case, the tenant was treated as a successor under ss.87-88 of the Act. In the latter case, if the tenancy was assigned under a property assignment order made in matrimonial proceedings then the person remaining in resident would become a tenant de novo. In consequence, the Defendant contends that a child who would otherwise satisfy the succession requirements of the Housing Act is treated less favourably if his/her parent was a sole tenant because of death than as a result of relationship breakdown.
11. Paragraphs 21 to 23 of the Defence contend:

21. The Defendant asserts that:

(i) whether a person becomes a sole tenant through death or assignment after relationship breakdown is a status for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and

(ii) … the potential successor children of such persons are in an 'analogous position' with each other for the purposes of Art 14 of Schedule 1 of the Human Rights Act 1998; and

(iii) there is no sensible justification for the less favourable treatment accorded to successors by death and their putative successor children; and therefore

(iv) the 'no second succession rule' is incompatible with Art 14 and Art 8 of Schedule 1 of the Human Rights Act 1998.

21a. Further, the distinction drawn in s.88 is indirectly discriminatory on gender grounds. The distinction is prima facie gender neutral. However, the distinction adversely affects women and their putative successors relative to men. This is because women as a class live longer than men, and so are statistically more likely to become sole tenants as a result of widowhood rather than divorce. Sole tenancy arising consequent upon divorce is gender neutral – as obviously both parties to the relationship are alive. However, because of women's greater longevity, the surviving sole tenant consequent upon widowhood is more likely to be a woman than a man.

22. The Defendant further avers that it is possible for the court – in accordance with the Human Rights Act 1998 s.3 – to lend the Housing Act 1988 (sic) ss.87-88 a meaning which is compatible with Art 14 of Sch 1 of the Human Rights Act 1998 by, for example, reading the italicised words below into s.88(e):

(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant unless he/she was the spouse of the previous tenant and the previous tenant was not him/herself a successor to the tenancy or…

23. If the court accepts that the above cited provisions of the Housing Act 1985 create a legal position which is incompatible with Art 14, but that it is not possible per the Human Rights Act 1998 s.3 to construe these provisions in a Convention-Rights compatible manner, then this matter should stand adjourned so that the Defendant may seek a declaration of incompatibility in the High Court per the Human Rights Act 1998 s.4.

12. This was the first ground upon which the Defendant resisted the claim for possession ("Ground 1"). The Defendant also contended that the Council's decision not to grant a discretionary tenancy to the Defendant was unlawful. That second ground is not relevant for the issue I have to decide.
13. In light of the incompatibility issue, by an order dated 4 August 2015, the claim was transferred to the High Court. Proceedings continued in the High Court until, on 27 January 2017, Supperstone J made an order that the Interested Party be joined to the proceedings. On 7 September 2017, following consideration of the Interested Party's position statement, Supperstone J ordered that there be a hearing to determine (1) whether the Ground 1 issue is 'academic'; and, if it is not, (2) the further directions that should be made for the conduct of the case. As recorded in the Order of 8 November 2017, the parties were agreed that Ground 1 would become academic if the Claimant were to offer (and the Defendant to accept) a new secure tenancy. If the Claimant refused to offer a new secure tenancy, Ground 1 would not become academic. The acceptance of a new tenancy by the Defendant would, of course, bring the claim for possession to an end and the incompatibility issue would become academic.
14. At present, the issue is not academic, because a new secure tenancy has not been offered to and accepted by the Defendant. As a result, at the hearing before me, directions were agreed for the service of evidence and skeleton arguments and a hearing for up to 2 days was fixed for 2 October 2018 before Supperstone J. The issue that I have been asked by the parties to determine is whether, if the claim does become academic at some stage between now and the hearing on 2 October 2018, the Court should nevertheless go on to determine it. The Defendant urges me to make such an order because of what he submits is the public importance of the point. The Claimant and Interested Party contend that no order should be made and that, if a secure tenancy is offered and accepted between now and the hearing on 2 October 2018, the claim will be at an end in the ordinary way.

The resolution of 'academic' issues: the law

15. All parties are agreed that the Court has a discretion to determine a dispute that has become academic. Mr Lask, for the Interested Party, contends that it is a narrow one and is to be exercised with caution. In R -v- Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, 456-457 Lord Slynn said:

"… in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury -v- Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise "On the facts of this case;" the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.

In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In R -v- Secretary of State for the Home Department, Ex parte Karaoui, The Times, 27 March 1997, the issue was whether there was a record; the determination was quashed because there was no record. In R -v- Secretary of State for the Home Department, Ex parte Bawa (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge's decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis having gone.

This was not brought as a test case and in my view these factors outweigh any possible advantages for the legal aid board in dealing with this case which proceeded so far."

16. When it is submitted that the court is being asked to determine a point that has become 'academic' that means as between the individual litigants in the proceedings. It is 'academic' because the point does not need to be determined to resolve their dispute. The point may well not be 'academic' in a wider sense of having ramifications for other cases. For those cases, the point may be very real.
17. Mr Lask submits that academic disputes should not be determined unless there are exceptional circumstances. He relies upon Silber J's judgment in R (Zoolife) -v- Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin), and in particular [36]-[37]:

[36] … academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the court. The first condition is in the words of Lord Slynn in Salem (supra) that "a large number of similar cases exist or anticipated" or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequence would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.

[37] These points are particularly potent at the present time where the Administrative Court is completely overrun with immigration, asylum and other cases and where it would be contrary to the overriding objectives of the CPR for an academic case to be pursued. After all one of those overriding objectives is "dealing with a case justly [which] includes, so far as is practicable … (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases" (CPR Part 1.1) It is noteworthy that there have been a number of cases where the court has considered it appropriate to hear an academic issue but those cases, which often concerned statutory construction or the impact of the European Convention on Human Rights on English statutes, satisfied the two tests which I have set out in paragraph 36 above (see generally the examples given in R (on the application of B) v Dr SS, Dr AC and the Secretary of State for the Department of Health [2005] EWHC 86 (Admin) [47]).

18. In Hamnett -v- Essex County Council [2017] 1 WLR 1155, the Court of Appeal summarised the relevant principles, citing Lord Slynn's remarks in Salem and Lord Neuberger's judgment in Hutcheson -v- Popdog Ltd (Practice Note) [2012] 1 WLR 782 :

[33] In a case involving a public authority and raising a question of public law, the court has a discretion to hear the appeal, even if by the time it is heard, there is no longer an issue to be decided which will directly affect the rights and obligations of the parties as between themselves: see R -v- Secretary of State for the Home Department, Ex p Salem [1999] 1 AC 450, 456, per Lord Slynn of Hadley. However, as Lord Slynn went on to emphasise, at p.457, that discretion was to be exercised with caution:

"and appeals which are academic … should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

[34] Just how narrow this discretion is, was underlined in this court in Hutcheson -v- Popdog Ltd (News Group Newspapers Ltd, third party) (Practice Note) [2012] 1 WLR 782. Lord Neuberger of Abbotsbury MR said, at para 12, that "the mere fact" that a projected appeal may raise a point or points of significance did not mean that "it should be allowed to proceed where are no longer real issues in the proceedings as between the parties." Lord Neuberger formulated the following propositions, at para 15:

"Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean 'may') be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated."

Even taking into account that Hutcheson did not involve a public authority or a question of public law, the caution needed before exercising the discretion to proceed in a case which has become academic is readily apparent…

[37] Pulling the threads together, I do not, respectfully, read these authorities as suggesting any inflexible rule as regards proceeding with an appeal which has become academic between the parties. Instead, in such a case, they point to the court having a narrow discretion to proceed, to be exercised with caution—even when a point of public law of some general importance is involved...

19. Finally, Mr Lask has referred me to the cautionary words of Mummery LJ in Floe Telecom Ltd (in liquidation) -v- Office of Communications (T-Mobile (UK) Ltd intervening) [2009] BusLR 1116 as to the risks in the Court deciding 'academic' points:

[20] …There are sound reasons why courts and tribunals at all levels generally confine themselves to deciding what is necessary for the adjudication of the actual disputes between the parties. Deciding no more than is necessary may be described as an unimaginative, unadventurous, inactive, conservative or restrictive approach to the judicial function, but the lessons of practical experience are that unnecessary opinions and findings of courts are fraught with danger.

[21] Specialist tribunals seem to be more prone than ordinary courts to yield to the temptation of generous general advice and guidance. The wish to be helpful to users is understandable. It may even be commendable. But bodies established to adjudicate on disputes are not in the business of giving advisory opinions to litigants or potential litigants. They should take care not to be, or to feel, pressured by the parties or by interveners or by critics to do things which they are not intended, qualified or equipped to do. In general, more harm than good is likely to be done by deciding more than is necessary for the adjudication of the actual dispute.

[22] One of the dangers of unnecessary rulings is that, with only the assistance of the parties and without the benefit of wider consultation on relevant aspects of the public interest, the court's opinions, though meant to be helpful, may turn out to be damaging in practice and wrong in law. The court may be unaware of all the available arguments or ignorant of the practical implications of what it says. Those who rely on its advisory opinions when applying the law in practice may be misled or confused. A judgment aimed at giving authoritative advice and guidance may be misused by selective citation in different and unforeseen disputes and circumstances.

[23] It is also the case that the Court of Appeal is faced with a dilemma when presented with unnecessarily wide ranging judgments at first instance or, as in this case, at a lower appellate level. If, on the one hand, the Court of Appeal accepts an appeal against unnecessary rulings on points of law, it risks making the situation even worse by itself expressing unnecessary opinions, apparently impressed with greater authority. If, on the other hand, it takes a purist stance and refuses to accept the appeal at all, those who have reasonable grounds to be aggrieved by parts of the judgment of the lower court may have to wait a very long time in the happenstance of litigation before they have an opportunity to challenge those parts of the judgment. Indeed, they may never have the chance to get what has been said judicially examined and, if necessary, corrected.

20. I understand this warning – compelling and obviously correct – to be directed more at the risks presented when (typically) a first instance judge is tempted to give strictly obiter remarks or explanations on points that s/he did not need to decide. If the parties in the immediate case resolve their dispute, rendering an appeal 'academic', the nature of the Court of Appeal's dilemma is clearly explained by Mummery LJ in [23]. Does the Court of Appeal continue to hear the appeal to 'correct' the (ex hypothesi) incorrect obiter remarks and risk embedding an 'academic' point yet further? Or does it leave it, hoping that the matter can be addressed in a subsequent case when the point is not 'academic'?
21. The point is rather different in this case (although I accept that the principles from Floe Telecom have a bearing by analogy). This is not situation where an appeal court is confronted with the dilemma created by the first instance court having decided obiter points. I am being asked, consciously and with the benefit of submissions, to direct the determination of a discrete point that has (if events turn out) been rendered 'academic' by the resolution of the immediate case between the parties. Any decision the Court made on Ground 1 would not be obiter; it would not be a point that arose because of imaginative, adventurous and proactive judicial rumination. Subject to any appeal, the point would be authoritatively determined. Although I have taken on board the warnings of Mummery LJ, I consider that the decision in this case is to be made in accordance with the authorities and principles I have identified in paragraphs 15-18 above.

Submissions

Point of general importance

22. For the Interested Party, Mr Lask submits that there is here no point of public importance. He makes essentially two preliminary points. First, he says that the answer to the point raised in Ground 1 has already been determined by the Court in R (Gangera) -v- Hounslow LBC [2003] HLR 68. Second, although he takes issue with the contention that there are "many" cases awaiting the outcome of this case (he says that the figure is smaller than suggested), in those that are the relevant Court can find the answer in Gangera.
23. Mr Lask accepts that the amendments to the legislation (set out in paragraphs 7-8) do not apply to the Defendant in this case or his comparator and, as such, do not affect the substance of this Defendant's case on Art. 14 (insofar as there remains a live dispute between the Defendant and the Claimant). ?
24. Nevertheless, he submits, the amendments do undermine the Defendant's argument that there is a wider public interest in determining Ground 1 even if it becomes academic. His argument is as follows:?

i) Section 86A removes the statutory right of succession from family members other than spouses and civil partners. Going forward, therefore, the difference in treatment complained of by the Defendant in this case has been eliminated. The family member of a deceased secure tenant to whom the tenancy was assigned because of a breakdown in marriage no longer has a statutory right of succession. He is therefore in the same position as the family member of a deceased secure tenant who succeeded to the tenancy upon the previous tenant's death. ?

ii) By removing the statutory right of succession from the family members of divorced tenants, s.86A equalises the position of those family members and the position of family members of widowed tenants. It thereby eliminates the alleged discrimination on which the Defendant's Art. 14 case rests. ?

iii) Section 86A applies at present to new STs. Thus, whilst it does not apply to this Defendant or his comparator, the potential impact of the difference in treatment arising from the previous version of s.87 is already diminishing. Once the HPA 2016 comes into force, s.86A (to be renumbered s.86G) will apply to old STs as well. At that point, the difference in treatment will disappear altogether.^[4]?

iv) Thus, because of the amendments to the HA 1985, the cohort of cases that could be affected by any ruling on Ground 1 is already shrinking. Once HPA 2016 comes into force, it will shrink even further and ultimately disappear. It follows that, whilst the amendments do not affect this Defendant's case, he submits they reinforce the Interested Party's submission that there is no wider public interest in hearing Ground 1 should it become academic.

25. Mr Phillips for the Claimant adopts the submissions of the Interested Party.
26. For the Defendant, Mr Vanhegan submits that the point raised is of public importance and one which has not been decided by Gangera. It is a challenge to the lawfulness of the statutory scheme and would affect several succession cases. He points to the fact that there are other cases in which the point has arisen and that the litigants in those cases are awaiting the outcome of this case. The Court has been provided with a witness statement from Keith Clarke, the Defendant's solicitor. Mr Clarke says that similar cases in the County Court are being stayed pending the Court's decision in relation to Ground 1. He says that he has been contacted by those acting in similar cases inquiring as to what stage the current proceedings have reached and when a decision is likely. He exhibits correspondence from solicitors representing litigants who are similarly raising this point in defence of possession proceedings brought against them.

Agreement of the parties, costs and prejudice

27. The second point identified by Lord Neuberger MR in Hutcheson [34] is whether the respondent agrees to the case proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced.
28. Neither the Interested Party nor the Claimant agree that the point should nevertheless be determined (Hutcheson [15]). They are not indemnified as to costs; the Defendant is publicly funded.
29. Mr Vanhegan accepts these points, but he submits that, on the question of whether the Claimant is "inappropriately prejudiced", the Court should consider the following factors:

i) This claim has, after many years, reached a stage where the point is practically ready to be determined. The only stage, before legal argument, is for the Interested Party to file such evidence as he wants on the issue of objective justification for the difference of treatment under ss.87-88.

ii) When looking at the costs, the Court should have regard to the likely overall costs saving that will occur because of the authoritative determination of the point. He submits that it is wasteful of costs – and not in accordance with the overriding objective – for this case to end at the 11^th hour. Not only are the costs that have been incurred in this case not going to bear the fruit of a determination on this legal point, but if the point is going to have to be pursued in another case (as inevitably he says that it will), then other litigants will have to expend the costs of getting their case to the point that this case has reached. He characterised it as a game of 'snakes and ladders' where a player, who is two steps away from home, lands on a snake and is sent all the way back to the start.

The argument will be properly ventilated

30. All parties are agreed that, were the point to be argued before the Court, then the argument will be properly ventilated. Even if the Claimant continues to take a neutral position, the issue of incompatibility and the engagement of the Interested Party means that there is no risk of the Court having only one side of the argument properly advanced.

Decision

31. Is there a point of general public importance? Objectively judged, it seems to me to be plain that this is a point of real importance and significance that potentially affects a large number of people. The point is likely to arise in several succession cases under ss.87-88 and for many years to come. This is not some obscure legislative provision that affects only a handful of people each decade.
32. Beyond the cases identified by Mr Clarke in which the point is being taken, some indication that the point is one of general importance is the fact that it has been the subject of academic commentary. My limited inquiries following the hearing have identified two articles by Professor Ian Loveland: Survivorship and Article 8 of the Human Rights Act [2016] JHL 51 and Second Successions to Secure Tenancies [2012] 76 Conv 453. I invited the parties' submissions on these two articles.
33. The 2012 article advances a detailed analysis of what the author considers to be the potential vulnerability of ss.87-88 to a challenge of incompatibility with Articles 8 and 14. The following quotation probably suffices to capture the argument (pp.455-456 – omitting footnote references):

"Sections 87 and 88 of the Housing Act 1985 treat a person who becomes a tenant on the death of her/his spouse or civil partner as a successor to the tenancy. This consequence applies if the partners were joint tenants or if the deceased partner was the sole tenant. However, per Housing Act 1985 s.88(2), a person who becomes the tenant following an assignment by the court consequent on the breakdown of a marriage/civil partnership/cohabitation relationship becomes a tenant de novo unless the other tenant was him/herself a successor.

A person (W1) whose spouse/partner "leaves" her/him because of death is therefore treated less favourably within the ambit of art.8 for succession purposes under the scheme of the Housing Act 1985 than a person (W2) whose spouse/partner "leaves" her/him because of relationship breakdown. The less favourable treatment to W1 arises because W1's home is no longer a familial asset which will pass as a matter of law on W1's death either to a qualifying family member or a new spouse. Relatedly, while W2 could assign her de novo tenancy to a qualified potential successor, W1 cannot do so.16

Less (indeed much less) favourable treatment (within the ambit both of art.8 and art.1 of the First Protocol) also extends consequentially to a child (or new spouse/partner/civil partner) who satisfies the succession requirements of the Housing Act 1985 s.87 (and for non-spouses s.113) if her/his parent/new partner was a sole tenant by death than if the parent/new partner was a sole tenant by relationship breakdown. In the latter case, the child/new partner is herself a secure tenant. While she cannot assign the tenancy and cannot pass it by succession on her death, she enjoys the legal right to significant security of tenure, the right to buy, and a rent set at significantly less than those prevailing in the private sector. In the former case, the child new partner has no legal rights at all in her home, save the dubious benefit of being protected against 'disproportionate' eviction."

34. The article contains no reference to Gangera. Has Professor Loveland overlooked the case? Is it, as Mr Lask submits, the complete answer?
35. The facts of Gangera are similar to the present case. The claimant's parents occupied their home as secure tenants. His father died in December 1995 and his mother became the secure tenant under s.87. The claimant's mother died in June 2001. The claimant had continued to reside at the property throughout. Following his mother's death, the Council sought possession of the property on the grounds that he was not entitled to succeed because of the no second succession rule. The claimant contended that the provisions preventing him from succeeding to his mother's secure tenancy infringed Article 14 read with Article 8 of the Convention. Moses J rejected this argument. He held:

[22] It is important to observe that … the claimant does not contend that the provisions in relation to succession to a secure tenancy themselves infringe Art 8. It is not surprising that he eschews any such argument. The policy underlying the rules of succession contained within the 1985 Act, in the context of the legislative provisions relating to the management and allocation of local authority housing is clear… Every secure tenant, whether sole or joint, is limited to one assignment or other transmission of the secure tenancy. The rule limiting succession to one transmission applies to all secure tenants equally…"

The Judge explained that, as a matter of policy, Parliament was entitled to limit succession of a secure tenancy to one assignment. He continued:

[23] … There is no basis for contending that the statutory scheme, which seeks to allocate public resources for the provision of local authority housing to those most in need, amounts to a disproportionate interference with a person's right to respect for his home. No such contention is made in the instant case. But the claimant advances the more limited argument that the provision constitutes unlawful discrimination. The proper approach to this issue was identified by Brooke LJ in Wandsworth London Borough Council -v- Michalak [2003] WLR 617 at [20].

[24] The first question is whether the facts fall within the ambit of one or more of the substantive convention rights. There is no dispute that they do since Art.8 is engaged. The order for possession threatens to infringe Mr Gangera's rights enshrined in Art.8(1).

[25] The second question is whether there was a difference in treatment as respects the rights enshrined in Art.8 between the complainant on the one hand and other persons put forward for comparison on the other. The claimant contends that his position should be contrasted with two comparators. Firstly, if his mother had been the sole tenant from the commencement of the tenancy he would have been entitled to succeed. Secondly, where there is no spouse, and a secure tenant was not formerly a joint tenant, the tenant's nephew by marriage could succeed to the secure tenancy so long as he fulfilled the requirement of residing with the tenant for a period of twelve months ending with the tenant's death. Again, there is no dispute but that in relation to the chosen comparators there is a difference in treatment.

[26] The third question is whether the chosen comparators are in an analogous situation to the complainant's position. In my judgment they are not. In the first example the claimant's father was never a tenant. In the second there was no spouse to whom the secure tenancy may be transmitted. The answer to the claimant's submissions is that the legislation has not discriminated against the claimant on the basis of his status at all. In Kjeldsen -v- Denmark (1976) 1 EHRR 711 the European Court of Human Rights said that Art.14 prohibits [discriminatory] treatment having as its basis or reason a personal characteristic by which persons or groups of persons are distinguishable from each other (see para. [56]). Since that case, as Brooke LJ pointed out at [34] in Wandsworth London Borough Council -v- Michalak, the Court has not limited the concept of discrimination to personal characteristics. The Court has found discrimination between owners of non-residential as opposed to residential buildings, owners of Pit Bull terriers as opposed to owners of other breeds of dogs and between small as opposed to large landowners. But however widely "status" may be interpreted it is clear to me that there has been no discrimination on the grounds of status whatsoever. The reason why the claimant is not entitled to succeed to his mother's tenancy does not depend upon his status at all. It is because his mother had become the sole tenant and therefore, by virtue of the operation of s.88(1)(b) of the 1985 Act, she was herself a successor. The difference in treatment follows from the fact of a previous succession not because of the status of the claimant. His chosen comparisons are not true comparisons at all. In his two examples the comparators were succeeding to a secure tenant who was not himself a successor within the meaning of s.88(1).

36. From the underlined sections it appears to me that the Court was not addressing the question that is raised in this case. Moses J found that there was no discrimination; all second-successions were prohibited by the Act. The comparators offered by the claimant in Gangera did not illuminate the point that is advanced in the present case. The point is not that Mr Simawi is being discriminated against when compared to others who face a bar to second-succession under the Act. The basis of the alleged discrimination is articulated by Professor Loveland in the passage I have quoted above (paragraph 33). This point was not considered Gangera. Indeed, s.88(2) was not mentioned in the case at all.
37. If the Defendant's case comes to be fully argued at some later point, it will be for the Court at that stage to consider all the arguments including whether Gangera assists in the determination of the point. For present purposes I am satisfied that it is not the "complete answer" that Mr Lask submits. It might be thought that, if it were the complete answer, it is probably unlikely that this case would have got this far.
38. Are there many cases waiting in the wings? I do not think that Mr Lask's submission that Mr Clarke has been able to identify relatively few cases in which this point has arisen is very persuasive. I am quite satisfied on the evidence that there are cases pending before County Courts where this issue is raised. I am also satisfied that this is likely to be only part of the real picture. The issue of statutory succession of secure tenancies, as I have already noted, is one that is likely to be in issue in several cases. The facts in this case, and in Gangera, are in no way unusual or atypical. The fact that Mr Clarke has not been able to identify hundreds of cases is likely to be explicable for many reasons.

i) Although the statutory regime applies to all secure tenancies, the likelihood is that the overwhelming majority of cases in which this point arises will be in relation to secure tenancies of local authority housing.

ii) The tenants of these properties (and their families) are unlikely to be wealthy; on the contrary they are likely to be poor and unable to afford legal representation. Many will represent themselves and are unlikely to have the knowledge of, or ability to argue, what is a complicated point. The typical possession list in a County Court hardly provides an opportunity for extended consideration of the merits of each defendant's case. Under CPR Part 55, the Court may dispose of the case on a summary basis, at the first hearing, unless it appears that the claim can be "genuinely disputed on a ground which appears to be substantial" (CPR Part 55.8(2)).

iii) Some, like Mr Simawi, may qualify for public funding, but as is well known the availability of public funding is very limited. Those who might qualify based on the paucity of their means will still have to demonstrate prospects of success that are sufficiently favourable to be granted public funding. Applicants may well face the submission that Gangera is the complete answer and that their prospects of success are not sufficient to justify public funding.

iv) Other litigants may reach agreements with their housing authority on the basis that their personal circumstances are such that the council, in exercise of its discretion, offers them a tenancy. The tenant may simply be glad to have a tenancy and be completely unaware (and without the benefit of advice) that the tenancy that s/he is now being offered offers substantially less protection than the secure tenancy that s/he was – arguably – entitled to succeed.

These factors are likely to suppress the number of cases in which the point actually presents for determination by a court. In short, the absence of visible ranks of defendants for whom this point is important is not a reliable indicator of the true number of people that stands to be affected by the decision in this case.

39. Subject to Mr Lask's submissions on legislative changes and the shrinking pool of people for whom determination of Ground 1 could be relevant, I am satisfied that Ground 1 raises a real point of some general importance.
40. Should the legislative changes that have been made (and those that are still to be brought into force) affect the decision? I am satisfied that I cannot attach much weight to potential changes to the legislation that will occur when the relevant provisions of HPA 2016 come into force. As has been recognised, there is no date for this. Unless and until those changes are enacted, the position as summarised in paragraph 6 above continues to apply to all old STs (i.e. those granted before 1 April 2012). I have no evidence, and it is impossible to ascertain how many old STs there are. What the evidence I have does show is that there are present cases pending determination in which the point has been raised. For the reasons I have given above, I am satisfied that this will not be the full extent of the number of people that it could affect. Taking just this case (and Gangera) as examples, it took 19 years before the point emerged and became material for this Defendant and 12 years in Gangera. Those were secure tenancies granted originally in 1994 and 1989 respectively. Given that Ground 1 arises upon the death of the secure tenant, I am confident that there must be a significant number of old STs still in existence in which the point that is the subject of Ground 1 could become material.
41. I am satisfied Mr Lask's "shrinking pool" point does not significantly reduce the number of people that resolution of Ground 1 could affect. As such, I remain of the view that Ground 1 is a point of some general importance.
42. Turning to the position of the Claimant, it has not consented to Ground 1 being argued even if it becomes 'academic'. It is not – and cannot be – indemnified as to the costs it will incur. I do not regard this as a point that is determinative. If it were, that would be to give a party an effective veto. There is no justification for such a veto. That would be to adopt precisely the "inflexible approach" to the exercise of the discretion that was made clear in Hutcheson [37] is not appropriate. The principle is that the Court must consider carefully whether the prejudice to the party that does not wish the point to be determined – typically in costs – is justified. The question is whether the objecting party is "inappropriately prejudiced".
43. It is important, in my judgment, to have clearly in view that, because of the claim for a declaration of incompatibility and the joinder of the Interested Party, this matter has now gone well beyond the private interests of the two litigants in the claim. It is to be remembered that Hutcheson did not involve a public authority and the point in the case was whether it was a contempt of court for a third-party to publish information that s/he knew was the subject of an injunction that prevented the defendant from publishing. The so-called Spycatcher principle was explained by Lord Neuberger [5]:

"… a party who has notice of an interim injunction is at risk of being in contempt of court if he does something which effectively flouts or undermines the injunction: see, for instance, Attorney General -v- Times Newspapers Ltd [1992] 1 AC 191, 223–224 and see also Attorney General -v- Punch Ltd [2003] 1 AC 1046, 1066. This principle, sometimes known as "the Spycatcher principle" (Attorney General -v- Newspaper Publishing plc [1988] Ch 333, 375 and 380), is well-established. However, Gray J decided in Jockey Club -v- Buffham [2003] QB 462, paras 23–27 that, if and when a final injunction is granted in favour of a claimant, any interim injunction is discharged and replaced by the final injunction, and that a third party, even one who has notice of the final injunction, is not at risk of being in contempt of court if he acts inconsistently with the injunction."

44. The Court of Appeal ruled that the challenge to the decision in Buffham had been rendered academic in the instant case. Perhaps encouraging the point to be raised in a subsequent case in which it arose for determination, Lord Neuberger said, in concluding remarks [26]: "… it cannot be safely assumed that the conclusion in [Buffham], that the Spycatcher principle does not apply to final injunctions but only applies to interim injunctions, would be approved by this court". Although not expressly stated, he may well have drawn some comfort from the fact that, if the point did come up in another case, it would be most likely to arise in the context of a claim brought between well-resourced litigants (as those engaged on media litigation frequently are) for whom there would be no difficulty in pursuing the determination of the point in contrast to indigent litigants dependent upon the availability of public funding, pro bono assistance or their own faltering efforts.
45. In my judgment, the costs burden that is likely to fall on the Claimant will not lead to it being "inappropriately prejudiced" and that, in all the circumstances, it is a burden that having regard to the other factors it is just for it to bear. My reasons for this are:

i) The relatively small scale of the costs that are likely to be incurred in bringing this case to its conclusion, particularly measured against the costs that have been incurred in getting it to the stage it has reached. I recognise that the Claimant is a local authority, whose resources are already likely to be stretched. However, taking a long-term view, the resolution of this issue, determinatively, is likely ultimately to reduce the costs it (and other local authorities) will expend on litigation if the issue remains unclear and the subject of disputed litigation.

ii) Unlike the objecting party in Hutcheson, who had no interest in the issue being determined, the Claimant has a continuing and real interest in the issue being resolved. It is to take too narrow a view to say that it has no interest in resolving the issue in Mr Simawi's case.

46. When deciding whether it is right to burden the Claimant with its costs of resolving Ground 1, I should consider whether such a course would be in accordance with the overriding objective. CPR Part 1.1(1) indicates that the overriding objective is to "[enable] the court to deal with cases justly and at proportionate cost". The concept of dealing with cases "justly and at proportionate cost" includes, so far as is practicable (CPR part 1.1(2)):

a) ensuring that the parties are on an equal footing;

b) saving expense;

c) dealing with the case in ways which are proportionate:

i) to the amount of money involved;

ii) to the importance of the case;

iii) to the complexity of the issues; and

iv) to the financial position of each party;

d) ensuring that it is dealt with expeditiously and fairly; and

e) allotting to it an appropriate share of the court's resources, which taking into account the need to allot resources to other cases.

47. Under CPR Part 1.4, the Court is required to further the overriding objective by actively managing cases including: "(h) considering whether the likely benefits of taking a particular step justify the cost of taking it; [and] (i) dealing with as many aspects of the case as it can on the same occasion".
48. Those rules are directed at the case management of individual cases, but they seem to me to apply with equal force (by way of analogy) on a macro scale. Ground 1 is an issue that could be raised in any – and is being raised in some – possession claims in the County Court. It seems to me that I should assess the costs of resolving Ground 1 in this case against the costs (and the drain on the court's resources) of resolving the issue in these and future cases. On that measure, the benefits of having Ground 1 resolved clearly justify the costs of it being determined; the economies of scale are obvious. This case is, essentially, a test case. It is dealing with an issue, in one case, that would otherwise be raised potentially in several cases at different time and in different courts. Given that the hearing has been fixed for 2 October 2018, dealing with the issue in this way is expeditious; it might take another 3-4 years for some other litigant to get his/her case to a similar point. When considering the financial position of the parties, I should assume (for the reasons I have given in paragraph 38(ii) above) that the parties who are likely to be affected by the point are likely to have extremely limited resources (or be in receipt of public funding). Resolving Ground 1 in this case is likely, overall, to save expense and very significantly to equal the footing that would otherwise be the case in individual County Court claims for possession. Ground 1 is clearly both important and complex.
49. These factors point, in my view overwhelmingly, to the Court ordering the resolution of Ground 1 even if it becomes academic in this case. I am quite satisfied these are benefits that clearly justify the, limited, costs burden that will fall on the Claimant.
50. Having considered all of these factors, I have come to the clear view that I should exercise my discretion to order the determination of Ground 1 even if, subsequently, its resolution in this particular case is rendered academic. I am satisfied that the particular circumstances in this case make it "exceptional". Directions have been given to progress the determination of this issue at the hearing starting on 2 October 2018.

Note 1    And to treat a person who was living with the tenant as if they were the tenant’s spouse or civil partner as the spouse or civil partner as the case may be: s.86A(5).    [Back]

Note 2    Section 87 was amended by s.160 LA to apply to Wales only. By s.160(6), this amendment does not apply in relation to secure tenancies that were granted before 1 April 2012. The position, therefore, is that (a) for secure tenancies granted before 1 April 2012, s.87 applies in its un-amended form in both England and Wales; (b) for secure tenancies granted after 1 April 2012 (i) s.86A applies in England; and (ii) s.87 in its amended form applies in Wales. The law in Wales will change once the Renting Homes (Wales) Act 2016 comes into force.     [Back]

Note 3    Schedule 8 also amends s.88 to provide that where a person succeeds to a secure tenancy by an express provision in the tenancy rather than an automatic statutory right, that person is a successor for the purposes of s.86G.     [Back]

Note 4    Save in respect of any outstanding cases in which the tenant has already died and the question of succession has not yet become academic: paragraph 15 of schedule 8 to the HPA 2016.     [Back]