St. Brice and anr v L. B. of Southwark [2001] EWCA Civ 1138

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H H JUDGE COX
(Lambeth County Court)
[2001] EWCA Civ 1138Case No Case No: B2/2001/0973Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 17th July, 2001
Between
St. Brice and anrAppellantL. B. of SouthwarkRespondent
Before
Lord Justice KennedyLord Justice ChadwickLord Justice RixRobert Latham (instructed by Southwark Law Centre for the Appellant)Patrick Routley (instructed by Southwark Legal Services for the Respondent)Cecilia Ivimy (instructed by Treasury Solicitors for the Interested Party - Lord Chancellor's Department)

LORD JUSTICE KENNEDY:

This

[1]is a tenant's appeal from a decision of Judge Cox sitting in the Lambeth County Court who, on 30 th March 2001, dismissed the tenant's application to set aside the warrant of possession issued by the Court which had preceeded his eviction on 31 st January 2001 from residential premises owned by the London Borough of Southwark at 156 Missenden, Inville Road, Aylesbury Estate, SE 17 2HU. On the day of his eviction the tenant sought an order that he be permitted to re-enter, and it was that application that the judge refused. The Issue[2]The tenant's case is that although the local authority as landlords did follow the normal procedure which they adopted in such cases, and did not apparently contravene any County Court Rule, nevertheless their procedure, and the procedures of the Court, should have been adjusted to take account of the provisions of the European Convention on Human Rights, as implemented by the Human Rights Act 1998. In particular the issue of the warrant of possession in December 2000 should have been a judicial as opposed to an administrative act, of which the tenant should have had formal notice, so that he could, if so minded, make representations as to why the warrant should not be issued. Chronology[3]That being the issue it is not necessary to deal with the history of the tenancy in great detail. Suffice to say that it began in 1992, and that in 1996, when the arrears amounted to £1559.87, the landlord served notice seeking possession. In August 1997, when the arrears amounted to £3051.42, the landlord commenced proceedings for possession in the County Court. In his defence the tenant offered to pay off the arrears at £15 per week, and in October 1997 a lower rate of re-payment was agreed and the case was adjourned. However, all did not proceed as planned, so the matter was restored for hearing on 5 th June 1998, and the Court then made an order for possession, suspended on terms, the tenant's obligation being to pay in addition to his current rent £10 per week towards his outstanding liability of £3708.73. Once again there were problems, and in February 1999 the landlord applied for and obtained a warrant of possession. By a letter dated 17 th February 1999 the tenant was advised by the landlord that he would be evicted on 9 th March 1999. On 24 th February 1999 the tenant applied to the Court for what he described as "a stay of the eviction", and on 2 nd March 1999 the Court adjourned his application to 4 th May 1999, ordered him to pay £11.02 per week in the meantime, and suspended the warrant until the next hearing. On 4 th May 1999 the tenant did not appear at Court. The arrears were then £4342.64, and his application was dismissed. He was not, however, evicted at that stage. On 20 th July 1999 he made a further application that the eviction be stayed. That resulted in an order of 13 th August 1999 that the warrant be suspended on payment of current rent and £17.78 off arrears of £4126.11 with costs of £175 to be added to the arrears. In September 2000 payment of housing benefit reduced the arrears by £557.64, but again the tenant failed to maintain his payments so on 20 th December 2000 the landlord, using Form N325 and without notice to the tenant, applied to the court to issue a fresh warrant of possession. The balance due was said to be £4441.78. In fact the figure should have been £4041.78. That was, as the judge accepted, simply a typographical error. The landlord's solicitor certified that the tenant had not complied with the terms of the previous order, and the warrant was issued by some member of the court staff. On 22 nd December 2000 the landlord wrote to the tenant as follows – "URGENT – DO NOT IGNORE THIS LETTER. Re: EVICTION FROM 156 Missenden ON 31 st January 2001. Amount of Debt 4058.38 You have not kept to the terms of the Possession Order made against you for non payment of rent. We have applied to the Lambeth County Court to evict you from the property and the eviction will take place on 31 st January 2001. You should start looking for alternative accommodation NOW so that you will not be homeless when you are evicted. In line with the Council's policy you may be found to be intentionally homeless due to your failure to pay rent. Under the Provisions of the Housing Act 1996 the Council will be under no obligation to rehouse you. ACT NOW – YOU SHOULD EITHER :- 1) Pay the outstanding debt including Court Costs. 2) Seek independent legal advice from a Solicitor, Citizens Advice Bureau or an Advice Centre. 3) Make an application to Lambeth County Court. A Judge will decide whether the eviction will proceed. Please note that your application will be opposed by the Council."[4]On 29 th December 2000 the Lambeth County Court wrote to the tenant in similar vein. That letter headed "Eviction Notice" begins - "As you have failed to give possession of the premises to the Claimant, or made payments as directed by the Court, the above warrant has been issued and should be enforced forthwith."[5]Details are then given of the time of eviction, and the letter continues - " Please Note : Applications to suspend this warrant should be made no less than two days prior to the date of eviction …. It may be helpful for you to contact your local Homeless Persons Unit and/or seek professional advice, before the above date producing this notice."[6]It seems that the tenant did then seek advice, and on 10 th January 2001 he was referred to Southwark Law Centre. A housing adviser, Mr Lemosa, saw him on 17 th January 2001, but he had no documents. The adviser tried to get the tenant to produce relevant documents, but on two out of three occasions he simply failed to attend, and so nothing of any moment had been achieved before the eviction took place on 31 st January, after which the tenant made the application to re-enter which was considered by the judge. It is clear from Mr Lemosa's statement of 4 th February 2001 that the tenant had problems, and on 5 th March 2001 he was interviewed by Dr Bindman who considered it possible that in 1999 the tenant was suffering from depression which persisted up to the end of January 2001. It is not suggested that the landlords were aware of that. Law and Procedure[7]The relevant law is helpfully and accurately set out in paragraphs 5 to 8 of the judgment of Judge Cox in the court below. Where, as here, there is a secure tenancy, that tenancy cannot be brought to an end by the landlord without an order of the court (see section 82(1) of the Housing Act 1985). The landlord must first serve a notice seeking possession, as was done in this case on 16 th October 1996. He must then commence proceedings in the prescribed form, which enables the tenant to know precisely what is alleged against him. If the matter goes to a hearing, as happened in this case on 5 th June 1998, and arrears are proved, the judge must decide if it is reasonable to make an order for possession, and if so, whether in the circumstances the order should take effect immediately, or be suspended on terms. If, as in this case, the order for possession is suspended on terms, and the tenant does not comply with the terms, the tenancy comes to an end by operation of law, and the former tenant becomes a "tolerated trespasser". The landlord then has to apply to the court to issue a warrant of possession. The County Court Rules, unlike the Rules of the Supreme Court, do not require notice of that application to be given to the tenant. The warrant is issued by an officer of the court, and an appointment is made with the bailiffs for its execution. Although the Rules do not require that the tenant be advised of the arrangements for execution such notice is in practice given, at any rate by the landlord involved in this case and by the County Court with which we are concerned. That is important because section 85(2) of the Act provides that on the making of an order for possession – "or at any time before the execution of the order, the court may-(a) stay or suspend the execution of the order, or(b) postpone the date of possession, for such period or periods as the court thinks fit"[8]As the wording makes clear, the courts power of intervention under section 85(2) does not begin or end with the issue of the warrant, but it does end with execution. Thereafter the court has limited powers to set aside the execution on grounds of abuse of process or oppression, but those issues are not raised in this case. The Human Rights Argument[9]Mr Latham submits that the procedure followed in this case was defective because it failed to give sufficient weight to the provisions of Article 8 of the Convention which, so far as relevant, provides - "1. Everyone has the right to respect for his private and family life, his home ….. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ….. the economic well-being of the country …. or for the protection of the rights and freedoms of others."[10]In the 1998 Act section 6(1) provides that – "It is unlawful for a public authority to act in a way which is incompatible with a Convention Right."[11]By virtue of section 6(3) it is clear that both the landlord in this case and the court are public authorities for the purposes of section 6, and Mr Latham submits that in consequence there is a continuing obligation on the local authority and on the court not to proceed to eviction if, as a result of what has happened since the order for possession was made, it would no longer be necessary and proportionate to take that further step. Mr Latham makes no complaint in relation to the original decision of 5 th June 1998, but he points out that 2½ years then elapsed before the relevant warrant was issued, which he described as a "determinative step" which should have been taken by a judge giving the matter anxious scrutiny after notice to the tenant, and with the benefit of any representations which the tenant might choose to lay before him, the right to make representations prior to a judicial decision being implicit in Article 6 (which enshrines the right to a fair trial). Mr Latham contends that the onus should not be upon the tenant to apply to suspend a warrant under section 85(2) of the 1985 Act.[12]Mr Latham also invited our attention to Article 14 of the Convention, which provides that the rights and freedoms in the Convention shall be secured without discrimination on grounds of status. He contends that as the procedure is different where proceedings are in the High Court such discrimination is detectable in this case. Response[13]In her skeleton argument on behalf of the Lord Chancellor's Department Ms Ivimy emphasised at the outset that anyone who is a secure tenant under the Housing Act 1985 cannot be required to surrender possession without an order of the court made at a hearing of which the tenant has notice, which he has an opportunity to attend, and at which he can adduce evidence and make submissions. Before the order is made the court must be satisfied that there exists one of the specified grounds for making an order, and that it is "reasonable to make the order" (section 84(1) and (2)). In other words, as Mr Latham accepts, at that stage the court is required to have regard to proportionality.[14]If the order is to be enforced a warrant of possession has to be obtained, and in practice the tenant is notified of the issue of the warrant and of the intention to evict. As is clear from the facts of this case, he is also in practice advised as to the ways in which he may be able to prevent eviction, including an application to the court to exercise its powers under section 85(2) or (4). If he makes such an application there will then be a further oral hearing at which the tenant can again adduce evidence and make submissions.[15]If the tenant is not notified of the intention to evict he can apply to set aside the eviction on grounds of abuse of process or oppression in the execution of the warrant of possession (see Lambeth BC v Hughes Court of Appeal 8 th May 2000 unreported, and Jephson Homes H.A. v Moisejevs [2001] 2 All E R 901).[16]Turning to the alleged contravention of Article 6 of the Convention, Ms Ivimy accepts that possession proceedings as a whole do determine the tenant's civil rights and obligations, and so fall within the scope of the Article. The tenant is therefore entitled to "a fair and public hearing within a reasonable time by an independent and impartial tribunal" but, as Mr Latham accepts, this appellant got such a hearing when the order for possession was made. Furthermore, he was entitled to a further hearing if he sought it right up to the moment of eviction, and to a limited extent thereafter. It is clear from the use of the indefinite article in Article 6 that all that is envisaged by the article is one hearing, but the right to have a further hearing makes it impossible for a tenant to say that he has had no opportunity to bring before the court changes of circumstance which occurred after the making of the order for possession and before eviction. Ms Ivimy accepts that a breach of Article 6 may arise in relation to the enforcement of a judgment, which has to be regarded as part of the trial for the purposes of Article 6 (see Hornsby v Greece [1997] 24 EHRR 250 ), but that does not mean that enforcement involves a separate determination of civil rights and obligations which necessitate a further hearing, and no such determination was required in this case. The right to possession had been determined, in compliance with Article 6, when the order for possession was made. The issue of the warrant for possession was simply a step which had to be taken to give effect to that order. It did not alter the legal status of the tenant, or make any decision of any kind in relation to his rights. Because the tenant had failed to comply with the terms laid down when the order for possession was suspended the tenancy had come to an end on the date of the tenant's default ( Thompson v Elmbridge B C [1987] 1 WLR 1425 and Burrows v Brent L B [1996] 1 WLR 1448 ). The landlord therefore had a right to possession both before and after the warrant of possession was issued.[17]In response to Mr Latham's submission that the rights given to the tenant by section 85 should be regarded as insufficient for the purposes of Article 6 and Article 8 because they required the tenant to take the initiative to bring the matter before the court, Ms Ivimy points out that no authority is cited in support of that submission which, if it were right, would be, to say the least, surprising. The court has already made a determination in compliance with Article 6. Even if, as in this case, there has been a substantial interval of time between the determination and the application for a warrant of possession and the fixing of the date for eviction, it is surely in no way unreasonable to expect the tenant, who is likely to be the party with the relevant information, to bring the matter before the court if there has been a change of circumstances which might persuade the court to intervene. As Mr Latham recognises, it would be absurd to require the landlord, as a matter of course, to prove again that which he had to prove in order to obtain the order for possession. And, as Ms Ivimy points out, the European Court in Schuler Zgraggen v Switzerland { 1993] 16 EHRR 405 said at paragraph 58 of the judgment - "In the instant case the Federal Insurance Court's Rules of Procedure provided in express terms for the possibility of a hearing 'on an application by one of the parties or of the (presiding judge's) own motion'. As the proceedings in that court generally take place without a public hearing, Mrs Schuler Zgraggen could be expected to apply for one if she attached importance to it. She did not do so, however. It may reasonably be considered, therefore, that she unequivocally waived her right to a public hearing in the Federal Insurance Court."[18]As the trial judge said in paragraph 16 of his judgment in the present case, implicit in that decision of the European Court is an acceptance of the principle that to cast upon the person whose rights are in issue the burden to initiate process is not intrinsically wrong. In my judgment it cannot possibly be wrong where, as here, there has already been a full hearing leading to an order as a result of proceedings initiated by the landlord.[19]As Ms Ivimy points out, it is also important not to lose sight of reality. The routine enforcement of court orders, made after a hearing in compliance with Article 6, should not normally entail a separate hearing. In order to safeguard and make best use of resources housing and court administration needs to be flexible and efficient as well as fair, and the present procedure, as it worked in this case, meets those needs. As Lord Bingham said in Brown v Stott [2001] 2 WLR 817 at 825 B – "What a fair trial requires cannot … be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done."[20]In my judgment for the reasons given by Ms Ivimy, which were adopted by Mr Routley for the respondent, it is plain beyond argument that there was here no breach of the requirements of Article 6, and so the appellant's claim to the contrary must fail.[21]But, as Mr Latham emphasises, his primary case is that there was a breach of the requirements of Article 8. As to that Ms Ivimy accepts that the possession proceedings against the appellant interfered with his right of respect of his home, within the meaning of Article 8(1) but, turning to Article 8(2), they were in accordance with law and, so she submits, necessary in that they pursued a legitimate aim of eviction for non-payment of rent. Clearly a local authority landlord must be able to evict tenants who do not pay rent. That is necessary to protect public funds, and to safeguard the interests of others who need the housing. Mr Latham does not contend otherwise. What he contends is that both the local authority and the court were under a duty to ensure that each step taken towards eviction was proportionate, and that they could not legitimately cast upon the tenant the burden of alerting them if it might not be so. This is something that I have already considered in the context of Article 6. In reality proportionality was considered, and by statute had to be considered, when the order for possession was made. Thereafter there was, on any view, non-compliance with the terms of suspension, and the arrears grew to a figure in excess of £4000. For the local authority to then seek eviction cannot be regarded as a disproportionate response, given that the tenant knew what was being done, and had the right to seek assistance of the court under section 85.[22]That leaves only Article 14, on which Mr Latham places less reliance. So far as material it reads - "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as … status." Here the contention is that the appellant was discriminated against on the grounds of status in that he found himself a defendant in the County Court rather than in the High Court, where he would have had notice of an application for a warrant of possession.[23]As Ms Ivimy points out, in order to establish an infringement of Article 14 the appellant must show that(1) he has been treated less favourably(2) in the exercise of his Convention Rights(3) as compared with others who are in an analogous position(4) on grounds which are capable of founding a complaint of discrimination under Article 14(5) for reasons which are not objectively justified. In fact the appellant was not treated less favourably than a defendant in the High Court. He had an equal opportunity to require the court to hear him before eviction. The alleged discrimination did occur within the field of Convention Rights (Articles 6 & 8), but the appellant's position was not really analogous to the position of the defendant in the High Court because High Court procedure is significantly different, as recognised by this court in Jephson Homes (supra) and by the European Commission in DP v UK (1 st December 1986 application 11949/86) where it was accepted that County Court procedures "are designed with an eye to greater simplicity than those in the High Court, with a resultant reduction in costs and complexity."[24]Even more significantly, in order to establish a claim under Article 14 an individual must show that he has been discriminated against on the basis of "a personal characteristic (status) by which persons or groups of persons are distinguishable from each other" (see Kjeldsen Madsen and Pedesen v Denmark [1975] 1 EHRR 711). The landlord's choice of forum for its possession action was not based upon any personal characteristic of the tenant capable of founding a claim for discrimination under Article 14.[25]Finally, if there were discrimination it can be objectively justified. There are, it would seem, reasons for the County Court Rules, and the Rules of the Supreme Court to be different, even though no doubt further consideration will be given to the possibility of bringing them into line. Conclusion[26]For the reasons set out above, which are in substance those put forward by the Interested Party and accepted by the trial judge, I am satisfied that this appeal must fail. That is why at the end of the hearing we dismissed the appeal, dealt with the question of costs, and refused leave to appeal to the House of Lords. I would only add this: we were shown by Ms Ivimy form N54, the standard form now used to give tenants notice of eviction, which helpfully sets out all relevant information. It is important that so far as possible tenants should receive such notice in time to enable them to take advice and, if so advised, bring the matter back to the court before the date fixed for eviction. In the present case the tenant received adequate notice in ample time. Nothing turned on the typographical error in the application for the warrant, which was not repeated in the landlord's letter to the tenant advising him of the arrears, nor did anything turn on the Court's requirement that any application to suspend the warrant should be made "no less than two days prior to the date of the eviction". As Mr Latham points out, that requirement was obsolete, but it did not disadvantage the tenant in any way.

LORD JUSTICE CHADWICK:

[27]An order for possession made in the County Court is enforced by means of warrant of possession authorising eviction by the Court Bailiff. A warrant of possession is issued pursuant to Order 26 rule 17 of the County Court Rules 1981. So far as material, the rule is in these terms:
"(1) A judgment or order for the recovery of land shall be enforceable by warrant of possession. (2) Without prejudice to paragraph (3A), the person desiring a warrant of possession to be issued shall file a request in that behalf certifying that the land has not been vacated in accordance with the judgment or order for the recovery of the said land. (3) Where a warrant of possession is issued, the judgment creditor shall be entitled, by the same or a separate warrant, to execution against the debtor's goods for any money payable under the judgment or order which is to be enforced by the warrant of possession. (3A) In a case to which paragraph (3) applies or where an order for possession has been suspended on terms as to payment of a sum of money by instalments, the judgment creditor shall in his request certify – (a) the amount of money remaining due under the judgment or order; and (b) that the whole or part of any instalment due remains unpaid. …… (6) Rules 5 and 6 shall apply, with the necessary modifications, in relation to a warrant of possession . . . as they apply in relation to a warrant of execution."
[28]Order 26 rule 5(1) of the County Court Rules requires that in certain circumstances (there specified) a warrant shall not issue without the permission of the court. Permission is required under that rule where, for example, six years or more have elapsed since the date of the judgment or order which it is sought to enforce; or where there has been some change, whether by death or otherwise, in the parties entitled to enforce the judgment or order or liable to have it enforced against them. Order 26 rule 5(4) is in these terms:
"Paragraph (1) is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order."
The position, therefore, is that unless the case falls within Order 26 rule 5(1), or there is some other enactment, rule or direction which so requires, a warrant can be issued without the permission of the court – in the sense of a judicial determination authorising the court office to act upon the request to issue – first having been obtained.[29]The issue on the present appeal is whether the effect of section 6(1) of the Human Rights Act 1998 is to require that, in a case where a local housing authority is proceeding in the County Court to enforce an order for possession obtained under section 82 of the Housing Act 1985, it must obtain the permission of the court before a warrant of possession can be issued. I agree with Lord Justice Kennedy, for the reasons which he gives, that the section does not have that effect.[30]Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is not in dispute that both the local housing authority and the County Court are public authorities for the purposes of section 6(1) – see section 6(3) of the 1998 Act. The relevant Convention rights are said to be those conferred by articles 6(1), 8 and 14 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6(1) requires that, in the determination of his civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 8 is in these terms:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14 requires that the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.[31]It is common ground that the eviction of a tenant, or former tenant, from his home under order of the court constitutes an interference by a public authority with the right conferred by article 8 – a fortiori , where the order has been sought and obtained by a person who is itself a public authority. It is common ground, also,(i) that the order for possession which was made in the present case (on 5 June 1998) was made in accordance with the law, and(ii) that that order was 'necessary' within the meaning of article 8(2) – that is to say, that the order was made in furtherance of a legitimate aim and was a proportionate means of achieving that aim.[32]The issue of a warrant of possession in the County Court is an administrative act; the purpose of which is to enable there to be carried into effect the judicial determination, which has already been expressed in the order for possession in aid of which the warrant is issued. The issue of the warrant involves no determination of the former tenant's civil rights and obligations. His rights and obligations as a tenant have already been determined at a public hearing at the time when the order for possession is made. His right - as a former tenant who has remained in occupation following determination of the tenancy – to apply for an order under section 85(2) of the Housing Act 1985 is unaffected by the issue of the warrant.[33]In the present case, the appellant's rights and obligations as a tenant were the subject of an adjudication on 5 June 1998. The effect of the order of 5 June 1998 – in conjunction with section 82(2) of the Housing Act 1985 – was that the appellant's tenancy came to an end on or about 1 January 1999, when he failed to make the instalment payments required by that order. Thereafter he was in occupation as a 'tolerated trespasser', to adopt the description used by Lord Browne–Wilkinson in Burrows v Brent London Borough Council [1996] 1 WLR 1448 , at page 1455C-D. But he continued to have the right to seek an order, under section 85(2) of the 1985 Act, either(a) staying or suspending the execution of the order or(b) postponing the date of possession. As Lord Justice Kennedy has pointed out, the court's power to make an order under that section is exercisable " at any time before the execution of the order ". The appellant did, in fact, exercise that right on two occasions. First, when he applied, on 24 February 1999, for a stay of eviction under a warrant of possession issued on or about 17 February 1999; and again, when (following the dismissal of the earlier application on 4 May 1999 at a hearing at which he did not attend) he applied for a stay of eviction on 20 July 1999. On 13 August 1999 the court suspended execution of the warrant then current on terms that he paid instalments. It seems to have been his failure to pay the instalments required under the order of 13 August 1999 that led the respondent council, on 20 December 2000 to make a request for the issue of a further warrant of possession. The new warrant was issued on or shortly after that date. The issue of that warrant involved no determination of the appellant's civil rights and obligations. His position in law was the same after the issue of the warrant as it was before. He had no right to remain in occupation of the property of which he had formerly been tenant; but he could apply under section 85(2) of the 1985 Act for a stay of eviction (or for an order postponing the date of possession). He chose not to make an application under section 85(2) until after the warrant of possession had been executed. By that time it was too late; the court no longer had jurisdiction under that section. It is common ground that the jurisdiction which the court did have – to set aside the eviction on the grounds of abuse of process or oppression in connection with the execution of the warrant of possession – was not engaged.[34]In my view there is nothing in the present case which suggests that the appellant was denied a fair and public hearing in relation to his civil rights and obligations. The short answer to the contention that the issue of the warrant of possession on or about 20 December 2000 was incompatible with the appellant's Convention right under article 6(1) is that the issue of the warrant was a purely administrative act which did not affect his civil rights and obligations.[35]Nor, in my view, is there anything in the present case which suggests that the local housing authority (in requesting the issue of the warrant of possession) or the court (in issuing the warrant) acted in a way which was incompatible with the appellant's Convention right under article 8. It is not said that the making of the possession order on 5 June 1998, or the making of the order on 13 August 1999 (suspending execution of the earlier warrant for possession on terms as to the payment of instalments), were other than a legitimate and proportionate response to the need to ensure that the appellant should not continue to occupy public housing (for which, no doubt, there was an unsatisfied demand in the borough) without making such payment as (with the assistance of housing benefit) he could afford. If there had been a relevant change in the appellant's circumstances since those orders were made, Parliament had provided the opportunity – through section 85(2) of the 1985 Act - for the court to reconsider the question whether eviction remained the appropriate response to that need. That opportunity would be unaffected by the issue of a warrant of possession. It remained open to the appellant, at any time before execution of the warrant, to bring to the attention of the court any change of circumstances on which he wished to rely. That is what he had done in the past; and that is what he was invited to do, both by the respondent's letter of 22 December 2000 and by the eviction notice dated 29 December 2000 which was sent to him by the Court. In the light of the orders which had been made and the appellant's failure to comply with those orders, and in the absence of any suggestion that there had been a relevant change in the appellant's circumstances, the local housing authority was entitled to take the view that its obligations to the community which it served required it to request the issue of a warrant of possession. The court was not required, by article 8, to insist on a further hearing before giving effect to that request.[36]Lord Justice Kennedy has explained why the decision to proceed in the County Court – rather than in the High Court, where the procedure on the issue of a writ of possession does (or did under Order 45 rule 3 of the Rules of the Supreme Court 1965) require the permission of the court to be obtained – cannot be regarded as discriminatory for the purposes of article 14. There is nothing that I wish to add to the reasons which he has given. LORD JUSTICE RIX:[37]I agree with the judgments of Kennedy LJ and Chadwick LJ, which I have had the opportunity of reading in draft.[38]At the core of his submissions on behalf of the appellant, Mr Latham placed the point that in practice, as in this case, the taking out and execution of a warrant of possession may well occur several years after the order for possession is first granted by a court. In that period, the tenant's position may have changed, even after he has once failed to keep within the conditions of a suspended order and become a "tolerated trespasser". Thus his ability to make regular payments of rent may more recently have improved, or his personal circumstances may have deteriorated further so as to engage the court's sympathy and lead to a further period of suspension. In such circumstances, the essence of Mr Latham's case was that articles 6(1) and 8 of the Convention required a procedure whereby execution of a warrant of possession would not and could not occur without the matter first returning to court, on notice to the tenant, for the court's anxious scrutiny of an application the burden of which fell upon the landlord, rather than the tenant.[39]Nothing less than this submission was needed by the appellant on the facts of this case, since(i) section 82(5) of the Housing Act 1985 granted him at all times up to execution of the warrant the right to apply to the court to stay or suspend the execution of the order for possession, or postpone the date of possession for such period or periods as the court may think fit;(ii) the appellant had notice both of the warrant of possession and of the opportunity for him to apply to the court – as the letter from the landlord stated "Make an application to Lambeth County Court. A Judge will decide whether the eviction will proceed", and the court's letter to him also referred to applications to suspend the warrant;(iii) the appellant had made section 85(2) applications in the past;(iv) the appellant had again on this last occasion sought advice and attended on Southwark Law Centre, but had failed to follow through to an application to the court. Therefore, unless the Convention mandated a court hearing in any event, the burden of at least initiating which rested on landlord or court, the appellant could have no remedy.[40]In my judgment, however, like my Lords, I cannot agree with Mr Latham's submission. There is nothing in the articles of the Convention relied upon, or in Strasbourg jurisprudence, which requires the intervention of the court at each stage of the process from initiation of a claim for possession to eviction. The order for possession is only obtained after a court hearing on the landlord's application, the burden of which is on the landlord, and on notice to the tenant. Such a hearing complies with article 6(1). As long as the tenant complies with the court's conditions for the suspension of its order for possession, he is protected by the court's order. If he fails to comply, and if the landlord thereafter seeks a warrant for possession, the tenant is entitled to apply to the court for its continued protection. There is nothing wrong with requiring the tenant to initiate or bear the burden of such an application: see Schuler Zraggen v. Switzerland [1993] 16 EHRR 405 at para 58. It is the tenant who is most likely to have the best and most up to date information concerning his means and personal circumstances. It is unreasonable to require the landlord to prove again what he has already proved to the satisfaction of the court once. An efficient procedure for routine execution of the court's orders is in the public interest. In such circumstances the procedure, whereby the tenant who seeks to resist the execution of the court's order against him is expected to approach the court and explain why execution should not be permitted, is legitimate and proportionate and thus necessary within the meaning of article 8(2).

ORDER

Appeal dismissed. Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 11 later judgments

and 2 more of the most senior