Is the game of ping pong over?
Last year, I wrote an editorial for the Journal of Housing Law (La Lutta Continua?  JHL 43, http://www.nicmadge.co.uk/Art_8_-_after_Doherty.php ) in which I referred to an “unedifying game of ping-pong” between the European Court of Human Rights (ECtHR) and the House of Lords (as it then was) about whether Article 8 could provide a defence to possession claims. In Kay v UK Application no. 37341/06, the ECtHR undoubtedly hit the ball back over the net towards the Supreme Court. However, on one view, it has done so in such a way as to enable the Supreme Court to catch the ball and declare the game over as an honourable draw.
In Kay, the ECtHR welcomed the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of Article 8. It noted that in Birmingham CC v Doherty  UKHL 57,  1 AC 367, the House of Lords referred to the possibility of challenges on conventional judicial review grounds encompassing more than just traditional Wednesbury grounds and stated that the gateway (b) test set out by Lord Hope in Kay should now be applied in a more flexible manner, allowing for personal circumstances to be relevant to the county court's assessment of the reasonableness of a decision to seek a possession order. The ECtHR noted that the widening of gateway (b) occurred after the end of the Kay case. It found a breach of Article 8 in its procedural aspect because the decision by the county court to strike out the occupants’ Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. The occupants were dispossessed of their homes without any possibility of having the proportionality of the measure determined by an independent tribunal. The court implied that if the occupants’ case had been heard in the domestic courts after Doherty, there would have been no procedural breach
In other words, the substantive law, allowing a land owner to obtain a possession order against occupants who had become trespassers did not breach Article 8. The problem, at the time of Kay in the English courts, was procedural. The courts were not able to consider the proportionality of the decision to bring the possession claim.
Meanwhile the judgment of the Supreme Court in Manchester CC v Pinnock  EWCA Civ 852,  1 WLR 713 is expected on November 3rd. The Supreme Court is due to hear argument in Housnlow LBC v Powell, Leeds CC v Hall and Frisby v Birmingham CC (cases selected to go to the Supreme Court following Salford CC v Mullen  EWCA Civ 336) in late November.
In La Lutta Continua?, I suggested that the struggle between the ECtHR and the House of Lords might be over. I pointed out that the unanimous decision in Doherty was that the case be remitted to the High Court so that it could review the reasons that the council gave for serving a notice to quit, resolve any disputed facts and decide whether or not the decision to terminate Mr Doherty’s licence was reasonable. I also noted that the most significant shift that could be detected in the Lords’ speeches in Doherty was a narrowing of the distance between (or, indeed, merging of) the traditional Wednesbury test and direct human rights challenges (see e.g. Lord Hope at para 55). Following that decision, Toulson LJ said in Liverpool CC v Doran  EWCA Civ 146;  1 WLR 2365 that it is to be remembered that the public law principles developed at common law “are not frozen”. I referred to “a subtle but significant shifting of the goal-posts”. Although occupants can only rely on public law principles, as developed at common law, “and not through the lens of the Convention”, I queried how much difference there was between determining whether a decision was reasonable, having regard to the aim being pursued on the one hand, and deciding whether a decision was proportionate within the meaning of Article 8 on the other hand. I also asked rhetorically if it was possible to determine whether a decision was reasonable, having regard to the aim being pursued, without considering an occupant’s personal circumstances.
That analysis was perhaps confirmed on this side of the Channel by Waller LJ in Central Bedfordshire Council v Taylor  EWCA Civ 613,  1 WLR 446, when he said that: ‘There does appear to have been a tension between the views of the House of Lords as to the proper approach to article 8, and those of ECtHR, but hopefully the divergence is less serious than some would suggest’ (para 26).
The ability of occupants to raise administrative law defences in county court possession claims may have become unfashionable, but it is not novel. The House of Lords approved such an approach in Wandsworth LBC v Winder  AC 461. The Court of Appeal adopted a similar approach in West Glamorgan CC v Rafferty  1 WLR 45, CA and there was a suggestion in Poplar HARCA v Donoghue  EWCA Civ 595;  QB 48 that county courts might summarily determine such issues.
Any fear that this approach would open flood gates is misconceived. In McCann v UK App No 19009/04,  HLR 40 (a case involving a notice to quit following domestic violence) the ECtHR rejected the suggestion that giving occupiers the right to raise issues under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. It would only be in very exceptional cases that occupiers would succeed in raising an arguable case which would require a court to examine the issue. In the great majority of cases, orders for possession could continue to be made ‘in summary proceedings’.
With the possible exceptions of Welwyn Hatfield DC v McGlynn  EWCA Civ 285, 1 April 2009;  HLR 10, and Doherty (in which the remitted hearing is yet to take place) it is hard to see that, even on the widest, most liberal or flexible interpretation of Gateway (b), any of the occupants in any of the recently reported cases stood any serious chance of succeeding in challenging the decision to serve a notice to quit or bring a possession claim. The merits in many of these cases were truly appalling. Mr Price ( Leeds CC v Price  UKHL 10) had only been living on the traveller site for two days. In Kay, the ECtHR stated that it was far from clear that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted. In Taylor , it was noted that the occupants did not allege any facts which provided some special claim to remain. Lloyd LJ stated that the council’s ‘decision to press for a possession order at the trial was a proper and valid public law decision’. Richards LJ said ‘the council’s decision to press for a possession order could not be regarded as one which no reasonable person would consider justifiable’. On the merits, even if the Pinnock family had the full protection of a secure tenancy, any defence to a possession claim would have been almost unarguable.
In Brent LBC v Corcoran  EWCA Civ 774, 8 July 2010, in rejecting arguments about a possible public law defence, Jacob LJ made it ‘absolutely clear that public law attacks of the technical and over-theoretical sort advanced here no merit whatsoever in this sort of case’. Brent’s reasons for terminating the licences were ‘clear and obvious. Both licensees were in severe and multiple breach of the terms of their licences’. The challenge was ‘entirely far-fetched”. In Doran, Toulson LJ stated ‘it is likely to be a rare case indeed where a council decides to issue a notice to quit and seek a possession order without any ground on which a reasonable council might have done so’. In that case, the submission that no reasonable council would have served a notice to quit was ‘hopelessly unarguable’. The council had evidence of repeated breaches of the licence or antisocial behaviour. In Nettleton Road Housing Co-operative Limited v Joseph  EWCA Civ 228,  HLR 30, the Court of Appeal dismissed the appeal of the tenant of a fully mutual housing co-operative because, even if he were to succeed in all his legal arguments relating to Articles 8 and 14, his appeal would fail on the facts because his breach of covenant was serious. In Brent LBC v Stokes  EWHC 1426 (QB), 10 July 2009, King J, said that the circuit judge, when considering how to proceed under CPR 55.8, was in a similar position to the single judge in the Administrative Court in having to decide whether permission should be granted to apply for judicial review, save the test was whether or not the ground was seriously arguable, and not, for example, merely capable of argument. That case raised no matters of great complexity. There was no basis for saying that there was a seriously arguable case that the council’s decision to seek possession was so unreasonable and disproportionate as to be unlawful or one ‘which no reasonable person would consider justifiable’. In Defence Estates v JL  EWHC 1049 (Admin), 5 May 2009 Collins J rejected the suggestion that it was irrational to bring the possession claim because of a failure to appreciate the full circumstances, including the presence of the tenant’s daughter who had a disability.
It may be that the terminology of gateways (a) and (b) has become redundant. The failure of substantive law to provide for security of tenure in every case clearly does not breach Article 8. It appears unlikely that the substantive law which allows introductory and demoted tenancies will be found to breach Article 8. Would anyone put serious money on the Supreme Court deciding that R (McLellan) v Bracknell Forest DC  EWCA 1510 and Manchester City Council v Pinnock  EWCA Civ 852,  1 WLR 713 were wrongly decided? The only UK possession case in which the ECtHR found a substantive law breach of Article 8 was Connors v UK Application no 66746/01;  HLR 52, a traveller case, where the Court referred to “a positive obligation for states to facilitate the gypsy way of life” and “the vulnerable position of gypsies as a minority group [which] means that some special consideration should be given to their needs and their different lifestyle”.
In relation to introductory and demoted tenancies, the real issue is how administrative law challenges to Housing Act 1996 s129 and 143F reviews should be brought and heard. It is strongly arguable that Manchester CC v Cochrane  1 WLR 809, CA was wrongly decided in so far as the Court of Appeal held that introductory tenants are not entitled to raise by way of private law defence any alleged invalidity of the review.
There is no policy reason why such challenges should not be raised as a defence in county court possession claims. The thrust of policy, whether statutory (e.g. Housing Act 1996 s204 homelessness appeals) or judicial (Winder and now Doherty) is that such administrative law questions can be decided in county courts, not by the over burdened Administrative Court. Indeed, the trend over the last generation has been for many types of cases, both civil and criminal, to be heard by lower levels of judges. Many cases which, in the 1970s or 80s, were heard by High Court Judges, are now heard by circuit judges. Many cases which were tried by circuit judges are now tried by district judges.
The same applies to what have hitherto been described as Gateway (b) challenges. The real issues are how (i) to ensure that public sector landlords are able to obtain possession without undue delay or expense in cases where they are entitled to possession, (ii) how to enable occupants to raise meritorious administrative law defences and (iii) how to prevent county courts from being swamped by hopeless cases of the kind described above. Possession claims with wider administrative law defences need to be determined fairly, quickly, and economically. How that is to be done needs to be addressed urgently, particularly in view of the increased difficulty that occupants have in obtaining representation with the reduction of the number of public finding contractors and the cuts which public sector landlords and courts face over the coming months.
In La Lutta Continua? I suggested that early consideration of issues which might be raised by occupants by local authority landlords and RSLs and the ability of occupants (other than introductory or demoted tenants) to raise such matters prior to the issue of proceedings could be achieved, without primary legislation, by adding a second part to (and renaming) the existing Pre Action Protocol on Possession Claims to provide that before issuing any possession claim
(a) public bodies should write to occupants without full security of tenure explaining why they currently intend to seek possession and requiring them within a specified time (say 14 days) to notify the landlord in writing of any personal circumstances or other matters which they wish to be taken into account. In many cases such a letter could accompany any notice to quit and so would not necessarily delay the issue of proceedings;
(b) public bodies should consider any representations received, and, if they decide to proceed with a claim for possession, give brief written reasons for doing so; and
(c) claimants should attach a copy of their initial letter, any response from the occupant and the reasons for proceeding with the eviction to the claim form.
Such a procedure would not only ensure that adequate reasons are given (the absence of reason was the main reason for finding a breach of Article 8 in Connors). It would also make it easier for courts to determine whether any wider, more flexible administrative law challenge is seriously arguable.
So, returning to the game of ping-pong, is it game over? Will the Supreme Court meet the ECtHR in a metaphorical bar for a post-match drink? We will have to await the outcome of Pinnock, Powell, Hall and Frisby.
14 October 2010