On one view, the European Court of Human Rights (ECtHR) in Strasbourg , and the English and Welsh courts are engaged in a continuous struggle as to whether ECHR Article 8 can provide a defence in possession claims.
In Harrow LBC v Qazi  UKHL 43;  1 AC 983, Lord Hope and Lord Scott said that contractual and property rights cannot be defeated by a defence based on Article 8.
In Connors v UK Application no 66746/01;  HLR 52, the ECtHR found that the power to evict without giving reasons which were liable to be examined on the merits by an independent tribunal amounted to a breach of Article 8. The eviction Mr Connors 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.
In Lambeth LBC v Kay; Leeds CC v Price  UKHL 10;  2 AC 465, Lord Hope said that Connors was a case ‘of a special and unusual kind.’ He continued, in a passage with which the remainder of the majority expressly agreed
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 … [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, … [or] (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 …”
In McCann v UK App No 19009/04, 13 May 2008,  HLR 40, the ECtHR again found a breach of Article 8, saying
The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal (para 50).
In Birmingham City Council v Doherty  UKHL 57, 30 July 2008,  3 WLR 636, notwithstanding McCann, the House of Lords rejected an ‘attempt to undermine’ the decisions in Qazi and Kay. County court judges should continue to follow the guidance given in Kay. Lord Scott described ‘comments’ made by the ECtHR about the English and Welsh law as ‘quite astonishing’. He stated that “the McCann judgment [was] based on a mistaken understanding of the procedure in this country.”
This unedifying game of ping-pong has continued unabated since Doherty. An application by the occupants in Kay to Strasbourg (Application 37341/06;) is pending, but on 17 October 2008, a Statement of Facts prepared by the Fourth Section of the ECtHR posed the following question to the parties: “Did the applicants have the opportunity to have the proportionality of their evictions determined by an independent tribunal in the light of the relevant principles under Article 8 (McCann v UK)?”
More significant is Ćosić v Croatia Application no. 28261/06; 15 January 2009, a case in which a teacher was living in a flat which had been temporarily leased from the Yugoslav People’s Army. She had no security of tenure. Some years after the lease expired, a domestic court ordered her to vacate the flat in fifteen days. It found that there was “no legal basis for [Ms Ćosić] to have acquired any rights on the flat.” The ECtHR found that there was a breach of Article 8. The obligation to vacate the flat was an interference with her right to respect for her home. The national courts’ decisions were in accordance with domestic law and the interference in question pursued the legitimate aim of protecting the rights of the State as the owner of the flat. The central question was whether the interference was proportionate to the aim pursued and thus “necessary in a democratic society”. This raised a question of procedure as well as one of substance. Following Connors and McCann, the court continued
The first-instance court expressly stated that … its decision had to be based exclusively on the applicable laws. The national courts thus confined themselves to finding that occupation by the applicant was without legal basis, but made no further analysis as to the proportionality of the measure to be applied against the applicant. However, the guarantees of the Convention require that the interference with an applicant’s right to respect for her home be not only based on the law but also be proportionate … to the legitimate aim pursued, regard being had to the particular circumstances of the case. … [T]he Court reiterates that the loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 … [In] the present case the applicant was not afforded such a possibility. I t follows that, because of such absence of adequate procedural safeguards, there has been a violation of Article 8. [paras 21 to 23]
Similar issues have arisen in the Irish High Court. In Dublin City Council v Gallagher  IEHC 354; 11 November 2008, a case in which the council denied the tenant’s son’s claim to be entitled to succeed to the tenancy, O’Neill J said that the procedure followed by the council was “unstructured, unregulated and specifically failed to give the defendant an opportunity to answer the concern” which the council raised or challenge and test its view. That failure deprived him of a hearing of his case. O’Neill J found that this and the absence of “procedural safeguards” or an opportunity for an independent tribunal to adjudicate on the proportionality of the decision to dispossess him, breached ECHR Articles 6 and 8. He also found that the process of judicial review would not have given a hearing on the merits. He made a declaration of incompatibility. (See too Pullen v Dublin City Council  IEHC 379; 12 December 2009.)
Back in the UK , courts have done their best to try to follow Doherty. In Hillingdon LBC v Collins  EWHC 3016 (Admin); 5 December 2008, HHJ Gilbart QC, sitting as a deputy high court judge, was asked to give directions in a claim for possession against defendants without security of tenure who occupied caravans on a site provided by Hillingdon. He remitted the case to Uxbridge County Court and gave directions for service of witness statements and disclosure. His judgment, running to 63 paragraphs and 47 pages, explains how courts should proceed post-Doherty.
In Wandsworth LBC v Dixon  EWHC 27 (Admin); 15 January 2009, HHJ Bidder QC, sitting as a deputy judge of the High Court, refused an application to set aside a possession order and/or to stay or suspend the execution of the warrant for possession made against a former joint tenant, whose sister had terminated the tenancy by serving a notice to quit. He stated that it could “hardly be doubted that Parliament must be assumed to have left unqualified the right of an owner to recover possession where one of two joint tenants has served notice to quit.” There would be
obvious practical problems if the question of proportionality were to result in the common law rule being displaced. It would be undesirable if one tenant were to be prevented from terminating his or her interest in a tenancy and, thus, be forced to continue to pay rent. Alternatively, the difficulty would arise as to one tenant paying the full rent or the landlord being faced with only one tenant paying half the rent.”
In this long running case, Wandsworth had afforded Mr Dixon the opportunity to make extensive representations about the factual matters that they should take into account when making their decision. It was “simply unarguable that the Claimants [had] not properly considered whether to continue with the possession claim … [It was] clear that, in reaching that decision, they [had] performed the very balancing exercise that is required by article 8 (2). HHJ Bidder’s judgment runs to 71 paragraphs and 20 pages.
In Bedfordshire CC v Taylor  EWCA Civ 1316; 16 October 2008, where a circuit judge had made a possession order against trespassers, the defendants made an oral application for permission to appeal, arguing that “Doherty adds a material gloss to Kay; … that contrary to the majority decision in Kay, it now enables the personal circumstances of the defendants to be taken into account in assessing the proportionality of a decision by a public authority to recover possession of property.” Although the Court of Appeal did “not hold out any encouragement to the appellants to expect success on the substantive hearing”, it granted permission to appeal. Tuckey LJ said that “a permission application … is not the occasion on which to wrestle with the effects, if any, of [Doherty’s] 56 pages of speeches.
In Liverpool City Council v Doran  EWCA Civ 146; 3 March 2009, the council granted Ms Doran, an Irish traveller, a licence to occupy a pitch on a site which it ran in accordance with Caravan Sites Act 1968. There were allegations of anti-social behaviour by her and other members of her family. The council served a notice to quit and then began a possession claim. At trial, the council sought summary judgment on the basis that a notice to quit had been served and it was irrelevant whether the council was able to prove that there had been breaches of the licence. HHJ Trigger granted the council summary judgment. Ms Doran appealed.
The Court of Appeal dismissed her appeal. Toulson LJ said that Doherty had “created a new battleground area.” He described the effect of Doherty as being two fold.
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.  … 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. 
Whether or not a “council’s decision was unreasonable has to be decided by applying public law principles as they have been developed at common law”.  He continued “that 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 this 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 anti-social behaviour. “Whether [Ms Doran was] right or wrong, or whether it was six of one and half a dozen of the other, there [was] no denying the fact that the council had cause to believe that her family were trouble makers and that there had been repeated breaches of the licence”. He rejected “as unarguable any submission that a reasonable council must have conducted the equivalent of a judicial investigation into where exactly the truth lay between the allegations and counter-allegations before deciding that it was appropriate to terminate [Ms Doran’s] licence.” Toulson LJ’s judgment comprises 18 pages and 69 paragraphs.
Where will this end? District judges and circuit judges must continue to follow Qazi and Kay, as explained in Doherty and Doran. However, given what appears to be an increasingly consistent stream of cases emanating from Strasbourg (Connors, McCann, Ćosić and Stanková v Slovakia, Application no 7205/02; 9 October 2007), it can no longer be said, as Lord Hope did in Kay, that Connors is the only case where the ECtHR has held that the making of a possession order against an occupier has failed to meet the third requirement in article 8(2). In these circumstances, for how long can the House of Lords, Canute-like, continue to resist the European tide?
It may be that this is the wrong question, that the struggle is over, and that the answer lies in Doherty itself. A compelling intellectual explanation of Doherty was advanced in a recent Journal of Housing Law editorial (2008 JHL 93 and 96). But it may be that Doherty is one of those cases where an overly intellectual or analytical approach obscures, rather than elucidates. The unanimous decision in Doherty was after all that the case be remitted to the judge in the High Court so that he 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. Further, perhaps the most significant shift that can be detected in the Lords’ speeches in Doherty is a narrowing of the distance between (or, indeed, merging of) the traditional Wednesbury test and direct human rights challenges. For example, Lord Hope said:
... it would be unduly formalistic to confine the re-view strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing … would be appropriate (para 55).
In Doran, Toulson LJ said that it is to be remembered that the public law principles developed at common law “are not frozen”.  Although Qazi and Kay were re-affirmed, there has been 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”, how much difference is there 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? And, is it possible to determine whether a decision was reasonable, having regard to the aim being pursued, without considering an occupant’s personal circumstances?
Whatever the answers to these questions may be, county courts are going to have to consider defences in possession claims against occupants without security of tenure, based not only on traditional Wednesbury grounds but also on allegations that decisions to evict made by local authorities and RSLs (see e.g. R (Weaver) v London & Quadrant Housing Trust  EWHC 1377 (Admin), 24 June 2008, Court of Appeal judgment pending) were unreasonable, having regard to the aims which they were pursuing. That is clear, both from Doherty and Collins. As HHJ Gilbart said in Collins, while a judge “must eschew simply substituting his own judgment for that of a local authority, [the court] must grapple with whether it had material before it, and whether the decision was reasonable”. 
If this is done in an unregulated way, it potentially raises a nightmare scenario for local authorities and RSLs, courts and occupants. It may be that, as the ECtHR said in McCann, it will “be only in very exceptional cases that occupiers would succeed in raising an arguable case which would require a court to examine the issue”, but hard pressed local authorities and RSLs do not have the resources, either financial or legal, to engage routinely in such litigation. Such cases would play havoc with possession lists in county courts. Given the decreasing numbers of solicitors with housing contracts, occupants are going to find it hard to get legal representation to run such defences.
Good local authorities and RSLs already consider both the proportionality of any decision to evict and the personal circumstances of occupants before deciding to bring possession claims. Where proper, fair consideration is given, as in Dixon, it is highly unlikely that any public law defence, whether based on Wednesbury unreasonableness, a wider Doherty unreasonableness, or even (having regard to McCann, Stanková and Ćosić) Article 8 dis-proportionality, would succeed.
What is needed is not only that all local authority landlords and RSLs give early consideration to such issues, but also that occupants can raise such matters prior to issue of proceedings and that courts can see in a simple and straight-forward way what the position is. This 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 explaining why they currently intend to seek possession and requiring the occupants 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.
Local authorities and RSLs may complain that such a protocol would increase their work-load, but arguably such a procedure would reduce it in the long run and be preferable to an unregulated free for all in the county court. It would also, when combined with the ability to raise such matters as a defence in the county court, mean that “the requisite procedural safeguards” required by Strasbourg were in place. Further, provided that courts exercised their powers sufficiently widely, it is arguable that the ECtHR would, in the future, find that the English and Welsh procedure complied with Article 8.
This proposal was discussed at the Civil Justice Council Housing and Land Committee on February 11th. The Committee unanimously agreed the proposal and referred it to the Civil Justice Council committee which is reviewing all Pre-Action Protocols for further consideration.
9th March 2009
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