Transcript Slide 1

Kay and Doherty
The Current Law
Wayne Beglan
Sequence of cases
Qazi
Connors
Kay
 McCann
 Doherty
 Dixon
 Doran
 McGlynn
 Defence Estates
 Taylor
 Pinnock
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(HL)
(ECtHR)
(HL x7)
(ECtHR)
(HL)
(15 Jan 09, HC)
(3 March 09, CA)
(1 April 09, CA)
(5 May 09, HC)
(23 June 09, CA)
(31 July 09, CA)
Summary
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Gateway (a) – seriously arguable point of
incompatibility
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Gateway (b) – seriously arguable extended
irrationality
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“highly exceptional” – Bingham minority in
Kay
Kay
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[2006] UKHL 10; [2006] 2 AC 465; [2006] 2 WLR
570; [2006] 4 All ER 194
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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
Kay
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that the public authority was not required to
plead or prove justification
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courts were to assume that domestic law
struck the proper balance of the competing
interests and was compatible with article 8
Kay
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that a challenge to the making of an order could
be raised in the possession proceedings in the
county court,
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so far as its jurisdictional limits permitted,
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if the defendant could, exceptionally, show a
seriously arguable case that the relevant domestic
law was incompatible with the Convention
Kay
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but that (Lord Bingham of Cornhill, Lord
Nicholls of Birkenhead and Lord Walker of
Gestingthorpe dissenting)
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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
Kay
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post, paras 28 -30 ,34 -36 , 39 ,50 , 53 -55
,58 -59 , 86 ,108 -111 , 172 ,174 -175 ,180 183 , 185 ,188 , 192 , 198 ,200 , 203 , 212
§110
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if the requirements of the law have been
established; and
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the right to recover possession is unqualified,
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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:
Gateway (a)
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(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:
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(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
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(ii) by adjourning the proceedings to enable the
compatibility issue to be dealt with in the High Court;
Gateway (b)
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(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
Gateway (b)
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Seriously arguable
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Only applies to summary hearing
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Test at full hearing simply whether D is right
to allege decision was one that no
reasonable person would consider
justifiable
Doherty
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[2009] 1 AC 367 [2008] 3 WLR 636.
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In Doherty the House held that it would not
overrule the majority in Kay – they provided
clarification
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Accordingly Kay remains the binding authority on
the point, with such further explanation given in
Doherty as it consistent with the majority view in
Kay
Doherty – Lord Hope §55
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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. [55]
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Begs the question – how much wider?
§55
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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.
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But the requisite scrutiny would not involve the judge
substituting his own judgment for that of the local authority
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Length of time plainly capable of being a “personal
circumstance”
§55
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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.
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Italicised in Pinnock
Doherty – Lord Scott
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para. 61 – rejection of attempt to undermine Kay;
para. 66 – para. 110 of Kay set out;
para. 79 – rejection of attempt to incorporate
security of tenure by the back door;
para. 85 – requirement on judge is to review the
lawfulness of the authority’s decision – decision
outside the range of reasonable responses may
be quashed as erroneous in public law
Doherty – Lord Rodger
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agreed with Lords Hope and Walker;
Doherty – Lord Walker
para. 115 – “In common (as I understand it) with
the rest of your Lordships I do not think, despite
the decision in McCann, that it would be right for
this Appellate Committee to depart from the
decision recently arrived at in Kay by an
Appellate Committee of seven members”;
 para. 117 – the breach identified by the ECtHR in
McCann was procedural;
 para. 123 – it is clear on a challenge under
gateway (b) that the judge will in effect be hearing
an application for judicial review on traditional
judicial review grounds.
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Doherty – Lord Mance
para. 134 – recalling Dyson LJ recognising
that a shift from conventional JR to a
proportionality test could was a step that
could only be taken by the House;
 para. 135 – noting proportionality not
introduced by this case;
 para. 140 – under gateway (b) the only
challenge is conventional judicial review
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Dixon
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[2009] EWHC 27 Admin; [2009] NPC 21; [2009]
LL&TR (CA refused PtA)
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Challenge to the Monk rule in case of joint
tenancy
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Joint tenancy terminated by Ts NTQ. D was
found to have (in part class A) drug habit
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And gateway (b) challenge – covered by earlier JR
in Dixon No 1
Dixon [2]
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Common law rule: survived many housing
re-enactments over more than 100 years see Monk
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Other cases demonstrate the strength of the
“striking the balance” point
Doran v Liverpool CC
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[2009] EWCA Civ 146
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Irish traveller – on local authority pitch
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Counsel’s approach to gateway (b)
LHA - new form of judicial review of “uncertain dimensions”, wider than
judicial review as ordinarily understood but at the same time not
extending to a full application of the Convention.
SoS submitted that the effect of the clarification and modification in
Doherty was far more limited. It was a modest development in the
elucidation of domestic public law principles.
Appellant - took an intermediate position, submitting that the effect was
less dramatic than was suggested by Mr Bartley Jones but more
significant than was suggested by Mr Stilitz.
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Doran
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Counsel were united in the view that the
decision had created a new “battleground
area”
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Much argument about the scope of the
modification of gateway
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A bleak prospect [46]
Doran
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Helpful approach to what is a reasonable
decision: [56]
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And no duty to conduct judicial investigation
as to where the truth lies [56]
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That point reinforced in both Taylor and
Defence Estates
Doran
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Toulson LJ thought twofold effect of Doherty
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All factors can potentially be relevant (including
personal) for example:
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Money spent on pitch / property
Time taken to get pitch / property
History / family support and connections
Health problems (educational problems) old age
Absence of alternative accommodation
Prospect of improvement in (e.g. behaviour)
Doran
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Second effect of Doherty
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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
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Promising – but read on!
Doran
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Lord Hope stated at para 55 that the requisite scrutiny
would not involve the judge substituting his own judgment
for that of the local authority.
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It cannot therefore have been envisaged that the court
would make a judgment of the reasonableness of the
council’s decision otherwise than on the facts as they
reasonably appeared, or should have appeared, to the
council at the time of making its decision. [60]
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As to when “decisions” might now be “made” see Taylor
Doran
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See postscript at [65-69] for helpful
guidance on traveller cases involving phase
2 MHA 1983
Doran
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Court rejected argument that court can
consider case retrospectively: [57], [58]
McGlynn v Welwyn HC
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[2009] EWCA Civ 285
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Non-secure tenancy (para 4 case)
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NTQ served as a result of ASB (magnet
case)
McGlynn
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“If we do not receive any further complaints of
anti-social behaviour that can be linked to Mr
McGlynn or his property we will consider granting
him a further non-secure tenancy with an option to
him being re-housed in a smaller property as
requested. However, if the complaints continue,
we will have no option but to continue with the
legal action required to repossess 20 Kingscroft…
“ (Emphasis supplied)
McGlynn
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Correct approach is Kay, Doherty [32]
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WS from authority did not give details of
continuing complaints – who made them, what
they were, their impact etc.
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Court applied “seriously arguable” test – appears
to be on basis DJ made summary order: [31]
Defence Estates
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[2009] EWHC 1049 (Admin)
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No security of tenure: para 11 sch1 HA
1988
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D was wife of resigned army officer –
provided with accommodation for 18 years
after resignation
Defence Estates
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S.49A(1) – “positive discrimination”
provision
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“But to suggest that section 49A enables
someone who otherwise would fail to have
any defence to a possession order
nonetheless to remain is to take that much
too far.” [23]
Defence Estates
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Conclusions in paras 57, 58
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No domestic law right to remain
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Need of army for accommodation outweighed
individual Art 8 rights
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Unclear whether being treated as a “summary
hearing” or not
Taylor
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[2009] EWCA Civ 613
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Trespassers case – former right to occupy pursuant to AST
granted by HAssoc who took from LHA (Luton) who took
from another LHA (Bedford – C) – similar to Kay
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The main issue - whether arguable that the circumstances
were such as to impose on the council an obligation to
consider the personal circumstances of the appellants?
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Second issue - whether, in judging the lawfulness of the
council’s decision, the test is the strict Wednesbury
rationality test or something wider?
Taylor
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Waller LJ emphasised that private landowner
would face no difficulty
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Only additional point is A8 defence because C
was a public body with decisions susceptible to JR
[18]
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Concept of “further decisions” discussed [39-42]
Taylor
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[Kay type] situations may make it unreasonable not to
allow a period of time to bring the possession order sought
into effect but that is something which the court oversees
and which the law allows for [44]
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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 [45].
Pinnock – demoted tenant
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[2009] EWCA Civ 852; [2009] 32 EG 68 (CS)
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Tenant of 30 years standing, 5 children aged 26 to
19
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Demoted due to ASB – by household - 8 June
2007, two asbo’s, blackmail, dwd, poa offences
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6 June 2008 – MCC served possession notice
based on events of 22 Sept 07 and 18 Jan 08
Pinnock
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[29] When, as here, the conduct of the tenant or
those residing with or visiting him has been so
serious as to justify a demotion order, very little is
required to justify the landlord’s decision to obtain
possession.
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It would be wholly wrong, and inconsistent with
the statutory scheme, to scrutinise the landlord’s
decision at the second stage with the rigour
required of the county court at the first stage
Pinnock
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Proportionality at the second stage is not a high
test
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decision must not be one that no reasonable
person would consider justifiable
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good reason
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Now the best part ->
Pinnock
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Further landlord’s decision at the second stage is
not subject to the requirement of proportionality
[32]
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Simply “extended rationality” [47] on JR challenge
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And note CC has no JR jurisdiction in demotion
cases – [49-52]