Transcript Slide 1

Public Housing Law Seminar
Kay and Doherty:
practical issues
by
Kelvin Rutledge
Public-law defences to private law
claims: the position pre-HRA
Prior to the HRA, the general position was
represented by Cocks v Thanet DC [1983] 2 AC
286 in which the House of Lords held that it was
both contrary to public policy and an abuse of
process to seek to establish an infringement of a
person’s rights under public law by a public body
by action and thus evade the safeguards
provided under RSC O.53 (CPR 54).
Two exceptions to the general rule:
1.
London Borough of Wandsworth v Winder
2.
Avon County Council v Buscott [1988] QB 656 –
[1985] AC 461 - where the defence met the
claim ‘head-on’;
where the public law challenge was collateral to
the claim. If the court hearing it was satisfied
there was a “real prospect of success”, it could
adjourn the proceedings pending a judicial
review
Human Rights Act 1998
Section 6 - Acts of public authorities
“(1) It is unlawful for a public authority to act in a
way which is incompatible with a Convention right.”
Section 8 Judicial remedies
“(1) In relation to any act (or proposed act) of a
public authority which the court finds is (or would be)
unlawful, it may grant such relief or remedy, or make
such order, within its powers as it considers just and
appropriate.”
L B Harrow v Tarik Qazi [2003] UKHL 43
Issue - whether Article 8 barred the local authority’s
common law right to recover possession against a
secure tenant whose joint tenant had served notice to
quit on the authority. Q’s case was rejected.
Held - accepting (by a majority) that Q’s
accommodation remained, for the purposes of Article
8(1), his “home”, the HL held that Article 8 did not
give a right to a home only a right to respect for a
person’s home as an aspect of his right to privacy.
Application of the common law, with a view to making
the premises available for letting to others on the
authority’s housing list, did not violate the essence of
the right to respect for the home under Article 8(1).
The case law of the ECtHR showed that contractual
and proprietary rights to possession could not be
defeated by a defence based on Article 8.
Consequently, it was unnecessary to consider whether
any interference was permitted by Article 8(2).
Connors v United Kingdom (2004) 40 EHRR 189
C and his family lived as licensees on a local authority gipsy
site for most of the preceding 16 years when, in January 2000,
they were given notice to quit. The notice was prompted by
complaints about the behaviour on the site of some members
of the applicant’s family or their guests, which were said to be
a breach of the license conditions. The applicant did not leave
and the local authority brought possession proceedings. C’s
attempt to seek judicial review of the authority’s decision to
evict failed.
The Strasbourg court held that judicial review was not an
adequate safeguard in this case. It reasoned:
“… the eviction of the applicant and his family from the local
authority site was not attended by the requisite procedural
safeguards, namely the requirement to establish proper
justification for the serious interference with his rights and
consequently cannot be regarded as justified by a 'pressing
social need' or proportionate to the legitimate aim being
pursued. There has, accordingly, been a violation of Article 8
of the Convention.”
Kay & Others v L B Lambeth [2006] UKHL 10
In light of the apparent inconsistency between Qazi and
Connors, the House of Lords gave leave to appeal in Kay and
heard it by a committee comprising 7 members.
K and others sought to defend possession proceedings,
amongst other grounds, on the basis that their eviction would
breach their Article 8 rights. They had occupied ‘short-life’
accommodation owned by Lambeth Council and let to them by
Lambeth’s licensee, London & Quadrant Housing Trust, in
some cases for over twenty years. Vis-à-vis LQHT they were
secure tenants but Lambeth, as superior landlord, sought to
evict them as trespassers relying on its common law right to
possession.
The House of Lords, in agreement with the decisions of the
Court of Appeal and of the trial judge, held that Mr Kay’s
Article 8 defence disclosed no reasonable ground for
defending the claim and must be struck out.
Para 110 of Lord Hope’s speech
“… I would hold that a defence which does not challenge the law under
which the possession order is sought as being incompatible with the
article 8 but is based only on the occupier's personal circumstances
should be struck out. I do not think that McPhail v Persons, Names
Unknown [1973] Ch 447 needs to be reconsidered in the light of
Strasbourg case law. Where domestic law provides for personal
circumstances to be taken into account, as in a case where the statutory
test is whether it would be reasonable to make a possession order, then
a fair opportunity must be given for the arguments in favour of the
occupier to be presented. But if the requirements of the law have been
established and the right to recover possession is unqualified, the only
situations in which it would be open to the court to refrain from
proceeding to summary judgment and making the possession order are
these: (a) if a seriously arguable point is raised that the law which
enables the court to make the possession order is incompatible with
article 8, the county court in the exercise of its jurisdiction under the
Human Rights Act 1998 should deal with the argument in one or other of
two ways: (i) by giving effect to the law, so far as it is possible for it do
so under section 3, in a way that is compatible with article 8, or (ii) by
adjourning the proceedings to enable the compatibility issue to be dealt
with in the High Court; (b) if the defendant wishes to challenge the
decision of a public authority to recover possession as an improper
exercise of its powers at common law on the ground that it was a
decision that no reasonable person would consider justifiable, he should
be permitted to do this provided again that the point is seriously
arguable: Wandsworth London Borough Council v Winder [1985] AC 461.
The common law as explained in that case is, of course, compatible with
article 8. It provides an additional safeguard.”
“Gateway (a)“
Either (i) interpret law in ECHR-compliant
way, or (ii) adjourn pending incompatibility
challenge;
“Gateway (b)”
Public-law challenge in the proceedings
themselves on traditional judicial review
grounds
McCann v UK (App. No. 19009/04, 13 May 2008)
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Factually similar to Qazi
The landlord authority, having rehoused the applicant’s wife
and children under its domestic violence policy, sought
possession against the husband on the ground of the wife’s
notice to quit. The Fourth Section of the ECtHR held, without
the benefit of an oral hearing, that the lack of adequate
procedural safeguards in possession proceedings violated the
husband’s right to respect for his home.
The decision in McCann was given after oral argument in
Doherty, but before judgment was given in that case. In the
meantime, the UK Parliament had addressed the matter in the
Housing and Regeneration Bill 2008.
William Doherty & Others v Birmingham CC [2008] UKHL 57
D appealed against the dismissal of his appeal against an
order for his eviction from a caravan site owned by the
respondent local authority on the basis that his removal
would violate his Article 8 rights. He had been granted a
licence by the local authority to station a caravan on the site,
used as a gypsy and travellers’ caravan site, in 1987. When
the local authority served notice to quit, D and his family had
been resident on the site for 17 years. The local authority
asserted that it required vacant possession to carry out
essential improvement works, and that once the works were
completed the site was to be managed as temporary
accommodation for travellers. D maintained that the local
authority was only entitled to an order for possession if it was
proportionate in all the circumstances of the case, and that
the circumstances of the instant case did not satisfy that test.
He relied on gateways (a) and (b).
In the House of Lords:

Lords Rodger and Scott agreed with the speeches of Lords
Hope and Walker;

Lord Walker agreed that Lord Hope’s approach is binding
[123], but had misgivings heightened by McCann;
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Lord Mance’s views were in a minority. But he identified what
his view of the majority was [140, 164]. The ratio appears to
be found primarily in the speech of Lord Hope
The decision was to remit the case to the High Court for a
determination as to whether Gateway (b) applied because it
was arguable that it might be unreasonable to issue a notice
to quit after 17 years: per Lords Hope [54]; Scott [77]; Walker
[124]
On overruling Kay:
Constitutionally it would have taken a committee of 9 to
overrule the decision of the majority reflected in paragraph
110 of Kay, as the Committee in Doherty recognised: per
Lords Hope [19]; Scott [61] and Walker [115].
The Committee found, therefore, that paragraph 110 of Kay
remained good law but requires some “modification”: per
Lords Hope [19/22]; Scott [61] and Walker [108]
Lord Hope’s “basic rule” (para 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. The effect of those decisions was
summarised by Baroness Hale in Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR
1420, para 36:
‘… there are situations in which the court is entitled to say that the legislation itself
strikes a fair balance between the rights of the individual and the interests of the
community, so that there is no room for the court to strike the balance in the individual
case. That is what this House decided in Kay v Lambeth London Borough Council [2006] 2
AC 465.’
The basic rule is that such interference with the right to respect for the home as may flow
from the application of the law which enables a public authority to exercise its unqualified
right to possession does not violate the essence of the Convention right. Unless the
legislation itself can be attacked, this is a conclusion which can be applied to all cases of
this type generally. 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.
The “modification”
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Gateways (a) and (b) are not hermetically
sealed
ECHR considerations can enter via gateway
(b)
Super-Wednesbury approach in cases
where domestic law lacks sufficient
safeguards
Cases falling within the “basic rule”
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Qazi
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Kay
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Price?
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Taylor
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Pinnock
Exceptional cases
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Doherty
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Doran
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McCann ?
Post-Doherty decisions
In Doran v Liverpool City Council [2009] EWCA Civ
146 The CA was concerned with a decision ordering
the appellant, an Irish traveller, to deliver up vacant
possession of a pitch at a traveller site to the
respondent local authority. The Court held that if a
licensee wished to advance public law grounds for not
making a possession order, he or she had to show a
seriously arguable case that the local authority's
decision to recover possession was one which no
reasonable person would consider justifiable, and the
submission in the instant case that no reasonable
local authority would have served on the appellant a
notice to quit her pitch on a traveller site was
hopelessly unarguable.
Toulson LJ analysed the points on which all 7 members of the Appellate
Committee in Kay were agreed, the point on which there was
disagreement and how he saw the position post-Doherty. He said there
was agreement in Kay as follows:
“1. If a licensee wishes to advance public law grounds for not making a
possession order, it is for the licensee to raise the point.
2. There are two potential grounds or gateways (to use the language of
later authorities) for making such a challenge;
(a) that the law which requires the court to make a possession order is
itself incompatible with the Convention;
(b) that the local authority's exercise of its power to serve a notice to quit
and seek a possession order was unlawful on public law grounds.
(There was sharp disagreement as to the breadth of the latter ground or
gateway)
…
Toulson LJ (cont.)
3. Where either ground is raised, the court must first consider whether the
licensee has a seriously arguable case. As to that, Lord Bingham said at
para 39:
‘This question should be decided summarily, on the basis of an affidavit or
of the defendant's evidence, suitably particularised, or in whatever other
summary way the court considers appropriate. The procedural aim of the
court must be to decide this question as expeditiously as is consistent with
the defendant having a fair opportunity to present his case on this
question.’
4. If the court considers that the defence sought to be raised on either or
both grounds is not seriously arguable, the court should make a possession
order.
5. Where a seriously arguable challenge is raised on the first ground, the
court has either to decide the case itself, doing the best it can to arrive at a
result which is compatible with the Convention, or it may refer the case to
the High Court.
6. Where a seriously arguable issue is raised on the second ground, the
court should decide it. In other words, the licensee is not required to
pursue such a challenge by way of a separate judicial review application
but can raise it as a defence to the claim for possession.
As to the effect of Doherty, Toulson LJ saw this as two
fold (paras 48-52):
“First, there is no formulaic or formalistic restriction of
the factors which may be relied upon by the licensee in
support of an argument that the council's decision to
serve a notice to quit, and seek a possession order, was
one which no reasonable council would have taken. Such
factors are not automatically irrelevant simply because
they may include the licensee's personal circumstances,
such as length of time of occupation. In Doherty, where
the family had been in occupation for a substantial time
without causing any trouble, but the council wanted to
use the site in a different way, it might also be thought
relevant whether the council had taken any steps to offer
the family, or help them to acquire, alternative
accommodation.
Secondly, the question whether the council's decision was one which no
reasonable person would have made is to be decided by applying public
law principles as they have been developed at common law, and not
through the lens of the Convention.
There is no conflict between these two propositions, which should be
capable of being applied without additional complexity. As Baroness Hale
observed in Kay at para 190, in a passage cited by Lord Walker in Doherty
at para 108:
‘It should not be forgotten that in an appropriate case, the range of
considerations which any public authority should take into account in
deciding whether to invoke its powers can be very wide: see R v
Lincolnshire County Council ex parte Atkinson (1995) 8 Admin LR 529; R
(Casey) v Crawley Borough Council [2006] EWHC 301 (Admin).’
Having said that the question whether the council’s decision was
unreasonable has to be decided by applying public law principles as they
have been developed at common law, it is to be remembered that those
principles are not frozen. Even before the enactment of the HRA, our public
law principles were being influenced by Convention ways of thinking. Since
its enactment, the process has gathered momentum. It is now a well
recognised fact that the Convention is influencing the shape and
development of our domestic public law principles, whether one uses the
metaphors of embedding, weaving into the fabric, osmosis or alignment.
(See the judgment of Lord Walker in Doherty at para 109.)”
Taylor v Central Bedfordshire Council [2009] EWCA Civ 613
The CA was concerned with a different factual situation to Doran but similar
to Kay where a local authority had leased land to another authority for three
years and sub-leased to a housing association to enable it to grant assured
shorthold tenancies to homeless persons.
Rejecting the occupiers’ Article 8 defences the Court, applying Kay, held that
although the decision of a public authority was subject to judicial review on
ordinary public law principles, it could not be a ground of challenge that the
authority which otherwise had an absolute right to possession had failed to
take account of personal circumstances. Such a defence should be struck
out. The personal interests safeguarded by Article 8 were to be regarded as
sufficiently safeguarded by the fulfilment of the requirements for the
recovery of possession by the landowner laid down by the statute or by the
common law.
Waller LJ said (para 45):
“…Even if one made the assumption that the public
authority was aware of the personal circumstances of the
occupiers, their obligation to take account of them could
never make it unreasonable to take proceedings for
possession. Provided they could establish their absolute
right to possession, personal circumstances could only be
relevant to the extent to which a court was prepared to
postpone execution, which a public authority would be
entitled to leave to the court.”
Manchester City Council v Pinnock [2009] EWCA Civ 852
The CA considered the application of Doherty to the demoted tenancy
scheme under the Housing Act 1996. Reviewing all the authorities, including
Taylor and Doran, Stanley Burnton LJ said:
“In my judgment, two simple propositions follow from these authorities.
First, a landlord deciding to seek possession in a statutory context such as
the present, and a court making an order for possession, is acting so as to
give effect to or enforce statutory provisions, and if those provisions are
incompatible with Convention rights, the landlord’s decision and the order of
the county court is nonetheless lawful by virtue of section 6(2)(b) of the
Human Rights Act 1998.
Secondly, on a judicial review of the landlord’s decision, the applicable
grounds are those applicable on a non-Convention domestic review, subject
to the rationality test extended as stated by Lord Hope in Doherty and
commented upon in Doran and Taylor.”
Practical considerations:

Arguability
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Whose duty to raise issue?
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Adjournment/stay
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Disclosure
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Track allocation
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Policy revision
Forthcoming Cases (Nov 2009):

Manchester CC v Mushin

L B Hounslow v Powell
Public Housing Law Seminar
Kay and Doherty:
practical issues
by
Kelvin Rutledge