Newham v Kibata [2003] EWCA Civ 1785

Case No B2/2003/0062[2003] EWCA Civ 1785
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DEPUTY DISTRICT JUDGE BACKHOUSE
BOW COUNTY COURT
Venue Royal Courts of JusticeDate Tuesday 9 th December 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE MUMMERYMR JUSTICE HOLMAN
Between
LONDON BOROUGH OF NEWHAMAppellantAMRANI KIBATARespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR MARK LOWE QC & MS NAOMI HAWKES (instructed by Helen Sidwell, London Borough of Newham) for AppellantMR DANIEL PEARCE-HIGGINS QC & MR CHRIS LUNDIE (instructed by Ashley Bean & Co) for Respondent
JudgmentLord Justice Mummery :Introduction
[1]Since the Human Rights Act 1998 (the 1998 Act) came into force on 2 October 2000 there have been a number of reported cases in which article 8 of the European Convention on Human Rights and section 6(1) of the 1998 Act have been invoked as a defence to proceedings by public authorities to recover possession of their residential property unlawfully occupied by the defendant, after, for example, the termination of a secure tenancy by the service of a valid notice to quit: see Sheffield City Council v. Smart [2002] LGR 467; London Borough of Wandsworth v. Michalak [2003] 1 WLR 617; Royal Borough of Kensington & Chelsea v. O’Sullivan [2003] 1 FCR 687; and, the most recent and the most important of all, Qazi v. London Borough of Harrow [2003] 3 WLR 792 (Qazi).[2]Article 8 of the Convention, which is concerned with guaranteeing human rights and freedoms, has been interpreted and applied by some courts, including the first instance judge in this case, as creating and conferring on the unlawful occupiers of local authority housing a new species of property right in a “home.” The potential effect of such a right is to prevent or postpone the obtaining of a county court order enabling a local authority to recover possession of its social housing stock, unless it can show that, on the facts of the particular case, interference with that right is necessary for the reasons allowed by the article, which provides “1. Everyone has the right to respect for…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 …or for the protection of the rights and freedoms of others.”[3]Section 6(1) of the 1998 Act provides:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
[4]“Public authority” includes not only the appellant in this case, the London Borough of Newham (the Council), but also the county court, which heard the Council’s proceedings for possession of a flat against the respondent occupier, Mr Amrani Kibata, and this court, to which the Council has appealed against the dismissal by Deputy District Judge Backhouse of its claim for possession.[5]It is agreed that, following the service of a valid notice to quit by the sole tenant (Mr Kibata’s estranged wife), the Council would have been entitled to a possession order against Mr Kibata, but for the potential application of the provisions of the Convention and the 1998 Act.

The Judgment

[6]The Deputy District Judge, in an extremely thorough judgment handed down on 11 December 2002, held:
“101. In the circumstances of this case, the Claimant [the Council] has not satisfied me on the evidence that the interference with the Defendant’s Article 8(1) rights is justified under Article 8(2). It follows from what I have said that I do not consider that the Local Authority can at this stage lawfully obtain possession and the Court should not therefore order it. I therefore dismiss the possession claim. I do so with some hesitation, not least because I am aware that I could be said to have usurped the function of the Administrative Court. Nevertheless, it seems to me to be necessary to comply with the court’s duty to behave lawfully.”
[7]The judge did not consider the circumstances in which the Council might at some future date become entitled to obtain possession of the flat from Mr Kibata, or the nature of Mr Kibata’s occupation of the flat, or the respective rights and liabilities of the parties in the meantime.[8]The judge’s hesitation in refusing a possession order on article 8 grounds has, in the event, been justified by the decision in the House of Lords in Qazi (by a majority of 3 to 2.) The opinions in Qazi were delivered on 31 July 2003, just 10 days after the hearing of this appeal. At the oral hearing of this appeal the court had been alerted to a possible change of direction by the prophetic dicta of Lord Hutton in South Bucks District Council v. Porter [2003] 2 WLR 1547. In that case the local planning authority sought injunctive relief against gypsies to prevent them from living on land acquired by them for that purpose, but for which planning consent had been refused. Lord Hutton referred obiter to the impact on public housing of article 8 of the Convention (p.1582):
“90. Whilst I do not express a concluded opinion on the point which was not the subject of detailed argument before the House, I see no reason to doubt the view expressed by Laws LJ in Sheffield City Council v. Smart [2002] LGR 476,486D that there are some statutory regimes under which the balance of interests arising under article 8(2) has in all essentials been struck by the legislature and under which a court, before ordering a defendant to give up possession of accommodation where he has been living, is not obliged to adjudicate upon the specific merits of coercive action in an individual case.”
[9]Following the decision in Qazi both sides submitted additional written arguments in August and September. It was then discovered in October that there were other appeals pending, which related to the impact of article 8 and the decision in Qazi on possession proceedings by public authorities. Appeals in the cases of Bradney v. Birmingham City Council (No B2/2003/1452) and Birmingham City Council v. McCann (No B2/2003/0090) were due to be heard by the Court of Appeal (Lord Phillips of Worth Matravers, Mummery & Tuckey LJJ) on 22 October 2003. It was obviously sensible to defer handing down judgment on this appeal until after those appeals had been heard.

The Impact of Qazi

[10]What is the effect of the decision in Qazi on this case and similar cases? Mr Qazi and his wife were joint tenants of a flat at 31H Sutton Lane, Harrow Weald under a secure tenancy granted by the local authority. The wife left with her daughter to live elsewhere. She gave the council notice to quit. The tenancy was brought to an end. Mr Qazi no longer had any right to remain in the flat. As he did not vacate the flat, the local authority started possession proceedings against him. His defence was based on article 8. He failed in the county court on the ground that the flat was not his “home” within article 8. The Court of Appeal held that the flat was his “home” and remitted the case to the county court to decide the issue of justification under article 8(2). The local authority successfully appealed to the House of Lords.[11]For present purposes the 152 paragraphs of the decision in Qazi can be condensed into the proposition that, although 31 Hutton Lane was Mr Qazi’s “home”, article 8 could not be used to prevent the county court from making an order for possession of it in favour of the local authority, which was solely seeking to enforce its right to immediate possession of its own property against a person, who no longer had any right under domestic law to remain in possession of it.[12]The majority (Lords Hope, Millett and Scott) rejected article 8 as a defence to possession in cases like the instant case. Lord Hope explained that article 8 regards a person’s home “as an aspect of his right to privacy” and that the question of article 8 as a defence to a claim for possession “ has much more to do with the law relating to property rights than respect for a person’s privacy”(paragraph 82). While recognising (paragraph 79) that the service of a notice to quit by a local authority might be challenged in judicial review proceedings in the Administrative Court and that there might be “wholly exceptional cases” in which it was open to the tenant to raise such issues in county court proceedings for possession, he summarised the position generally as follows:
“83. I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list does not violate the essence of the right to respect for the home under article 8(1). That is a conclusion which can be applied now to all cases of this type generally. 84. I agree with….Lord Millett and Lord Scott of Foscote that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court….”
[13]Lord Scott accepted that residential premises, in which an occupier has no legal or equitable interest, may be his “home” within article 8, but added that his article 8 rights in his home “149…… could not prevail against the council’s admitted and undoubted right to possession under the ordinary housing law…..Article 8 cannot be raised to defeat contractual and proprietary rights to possession. 151…..If Mr Qazi has no contractual rights under the ordinary law to resist the council’s claim for possession, and it is accepted he has not, the acceptance by the court of a defence based on article 8 would give him a possessory right over 31 Hutton Lane that he would not otherwise have. It would deprive the council of its right under the ordinary law to immediate possession. It would constitute an amendment of the domestic social housing legislation. It would give article 8 an effect it was never intended to have and which it has never been given by the Strasbourg tribunals responsible for implementing the Convention.”[14]Lord Scott concluded that “an article 8 defence can never prevail against an owner entitled under the ordinary law to possession.” (paragraph 152). Lord Millett, while recognising that there might be exceptional cases in which the tenant could apply to the Administrative Court for judicial review on the ground of unfair or improper conduct by a local authority (paragraph 109), agreed that there was no arguable breach of article 8 in enforcing the terms on which premises are occupied as a home, pointing out (paragraph 100) that “ Article 8 does not give a right to a home, but only to “respect” for the home.” He added (paragraph 107) that “ ..save in wholly exceptional circumstances….there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law.” Such an order is necessary to protect the ordinary property rights of the local authority and it is entitled to the order without the need for the county court to consider in each case whether an order for possession would be disproportionate and infringe article 8 rights.[15]The conclusions of the majority in Qazi are very relevant to the Council’s main ground of appeal in this case, to which I now turn.

The Appeal

[16]This appeal (brought with the leave of the judge) is from the order of Deputy District Judge Backhouse dismissing the claim by the appellant, the Council, for possession of a two bedroomed flat (the Flat) at 19, Newton Point, Clarkson Road, London E16 occupied by Mr Kibata.[17]The issues arising on the Council’s appeal and on Mr Kibata’s respondent’s notice are whether the conduct of the Council in relation to Mr Kibata was in breach of his rights under articles 6, 8 and 14 of the Convention and whether it would be incompatible with those Convention provisions to make an order against Mr Kibata for possession of the Flat.

The Facts

[18]On 10 February 1999 the Council let the Flat on an introductory tenancy to Ms Amina Nkurkiye. She lived there with her son and Mr Kibata. She married Mr Kibata. On 21 February 2000 the introductory tenancy became a secure tenancy within the meaning of Part III of the Housing Act 1985 (the 1985 Act). In about July 2000 the wife left the Flat with her son. She has never returned. Mr Kibata stayed living in the Flat.[19]On 24 July the wife applied to the Council to be re-housed. She made serious allegations of domestic violence against Mr Kibata. He disputes them. On 11 August the Council warned him that it would be seeking possession of the Flat. The wife was told by the Council of its policy (as set out in detail in its Domestic Violence Policy & Procedural Manual in operation since 1999) that, when a person applied for re-housing on the grounds of domestic violence, the tenant would only be permitted to hold one tenancy. The Manual states in paragraph 7.4.2. “ A client should only be allowed to hold one tenancy at a time. It is therefore important that she is not granted a new tenancy until the previous one has been terminated.” The Council informed the wife that the service of the notice to quit by her was a condition of her being re-housed. The Manual refers in paragraph 7.4.1. to the fact that “ ….the tenant has a right to end the tenancy by service of a NTQ [ notice to quit] by the tenant on the Council.”[20]On 14 May 2001 the wife served notice to quit on the Council. Her tenancy was terminated as from 18 June 2001. Her obligations to the Council as a tenant of the Flat came to an end. She was re-housed by the Council under its Domestic Violence Policy. At about the same time as she served her notice to quit the Council served its own notice to quit dated 9 May on her at the Flat, but the Council has never sought to rely on it as an effective notice. In November 2001 the Council started proceedings in the Bow County Court for possession of the Flat against Mr Kibata, as he continued to be in possession without the consent of the Council.

Common ground

[21]It is common ground that: (1). The notice to quit served by the wife on the Council was valid. (2). The wife’s tenancy of the Flat terminated on 18 June 2001. (3) Since 18 June 2001 Mr Kibata’s occupation of the Flat has been as a trespasser and he has never at any time had any legal or equitable interest in the Flat or in any tenancy of it. (4) Various statutory provisions affecting the Council’s rights to recover possession of the Flat also ceased to apply when the tenancy of the Flat terminated on the expiration of the notice to quit on 18 June 2001: for example, Mr Kibata’s matrimonial home rights in the Flat under sections 30, 31 and 33 of the Family Law Act 1996; his statutory protection, even as a non-tenant, in respect the secure tenancy of the Flat under s 30 (4) (b) of the same Act; his security of tenure under the provisions of sections 82, 83A,84 and Schedule 2 of the 1985 Act; and the provisions of s 145 of the Housing Act 1996 governing the right of the Council to recover possession in cases of domestic violence by the insertion of Ground 2A in Schedule 2 to the 1985 Act . (5) Even though the tenancy had terminated and Mr Kibata had become a trespasser in the Flat after the expiration of the notice to quit, it was his “home” within the meaning of article 8. Article 8 point[22]In my judgment, the judge was wrong to hold that the Council was not entitled to recover possession of the Flat and that the court should not make an order for possession against Mr Kibata.[23]In reaching her conclusions the judge held that the Council had acted in breach of its public law duties and standards in failing to act fairly towards Mr Kibata. It had acted on the wife’s allegations of domestic violence, without putting the allegations to him and seeking his response; it had procured the wife to serve a notice to quit without making Mr Kibata aware of that fact; it had not taken into account and given proper consideration to Mr Kibata’s article 8 rights and his matrimonial home rights; and it had not considered the exercise of its discretion in respect of options other than procuring the notice to quit from the wife and seeking possession of the Flat. The judge expressly found that the Council had procured the service of the notice to quit by the wife. The Council’s actions went “far beyond mere advice.” The Council’s policy “effectively deprived her of any other option.” It was all part of one process leading up to the hearing of the possession claim by which the Council sought to evict Mr Kibata. It was, she held, a device to avoid the statutory safeguards of normal possession proceedings for domestic violence.[24]There was, she also found, no comprehensive statutory scheme applicable to the position of Mr Kibata and so the court was entitled to examine the justification for the substantial interference with Mr Kibata’s article 8 right. The judge was not satisfied that the interference by the Council with that right was justified under article 8(2). The Council could not at that stage lawfully obtain possession and the court should not therefore order it. Discussion of

Article 8 point

[25]In my judgment, the legal position is that, as was held by the House of Lords in Qazi, article 8 is unavailable to Mr Kibata as a defence to these possession proceedings. All that the Council is seeking to do is to recover possession of its own freehold property from someone who has no legal right to be living in it. Mr Kibata is a trespasser on the Council’s property. His statutory and contractual rights in respect of the Flat ceased on the termination of the tenancy, as a result of his wife’s act in giving notice to quit to the Council. The service of the notice to quit was a lawful exercise of her rights as a tenant. (The same would have been true, even if they had been joint tenants, as was the case in Qazi. It was held in Notting Hill Housing Trust v. Brackley [2001] EWCA Civ 601 that the service of a notice to quit by only one of two joint tenants is effective to determine the tenancy.) The notice released her from her obligations to the Council as her landlord. There was nothing unlawful in the Council getting her to give a notice, which she was entitled to give, as a condition of being re-housed by the Council in alternative accommodation. The Council was then entitled to act as it did on the basis of an effective notice to quit by the wife. It had a right to immediate possession of the Flat and it was entitled to enforce that right by taking proceedings for possession and obtaining an order for possession. In those circumstances article 8 was not infringed and the court was not required to enter into a detailed consideration of the merits of the case under article 8(2) in order to be satisfied that the Council could justify an interference with Mr Kibata’s right to respect for his home.[26]As for ordinary public law grounds for challenging the lawfulness of the actions of the Council, no application has ever been made for judicial review of the Council’s decision to seek possession of the Flat on the basis of the tenant’s notice to quit. The judge did not take the exceptional step of adjourning the possession proceedings to enable such an application to be made. Indeed, Mr Kibata was already out of time for making an application for permission for judicial review.[27]Mr Pearce-Higgins QC, appearing for Mr Kibata, argued that Qazi does not directly affect this appeal, as it can be distinguished. He accepted that, if the claimant in the possession proceedings were a private individual, Mr Kibata would have no defence, as his existing rights under the tenancy agreement and under the Family Law Act 1996 (matrimonial home rights) would have been terminated. The position of the Council is different, however, as it is subject to public law duties and to duties under the 1998 Act. In Qazi there had been no suggestion that there was any unlawful act on the part of the local authority in the procedure followed by it to recover possession or that any other article of the Convention, such as article 6 and 14, could be invoked by the spouse remaining in possession: see paragraphs 34,59and 76 in the opinion of Lord Hope and paragraphs 104 and 109 in the opinion of Lord Millett. In contrast, the lawfulness and fairness of the Council’s conduct and its compatibility with articles 6 and 14, as well as article 8, has been challenged in this case on the public law grounds and human rights grounds discussed below.[28]The Council’s response was that it had not acted in breach of any of the articles of the Convention or of any of its public law duties. It was simply seeking to recover possession of its property from a person, who had no right to be in it after the tenant had terminated the tenancy. It had acted throughout in accordance with the law (for example the Protection from Eviction Act) and with a reasonable policy of granting only one tenancy in cases such as this. Apart from the discrimination point mentioned below, the lawfulness of the policy has not been challenged by an application to the Administrative Court for judicial review nor was this one of those “wholly exceptional” cases in which it was permissible to raise public law issues as a defence to a claim for possession in the county court. It is self evident that the policy was formulated to protect both the rights of the Council and the rights of others with legitimate expectations in relation to the availability of public housing. The Council has accepted that, once it obtains possession of the Flat, it will owe other duties to Mr Kibata as a homeless person under the housing legislation.[29]The Council was criticised by Mr Pearce-Higgins QC in his submissions for acting unlawfully and unfairly. The criticisms took a number of forms: the Council had acted with procedural impropriety in causing, encouraging or procuring the wife to serve the notice to quit as a device for avoiding the statutory safeguards available to Mr Kibata in the normal possession procedure in domestic violence cases, so that the service of the notice by the wife on the Council should be treated as the act of the Council and as such as having no legal effect; the Council had unlawfully interfered with Mr Kibata’s rights in acting on allegations of domestic violence made by his wife against him without making proper inquiries into the allegations, without regard for his statutory rights to the Flat or proper consideration of other options, and without putting to him relevant matters before deciding to evict him; and the Council had failed, as a public authority, to exercise properly its discretion on the range of options open to it for dealing with the housing situation, which had arisen and on the question whether to issue possession proceedings.[30]I agree that the Council could have acted differently. From the point of view of Mr Kibata, the Council could have acted with more concern for his situation. Its conduct did not, however, involve a breach of any of the Council’s public law duties or give Mr Kibata a defence to a claim for a possession order in the county court. The Council has acted in accordance with the law, both in respect of the formulation and application of its domestic violence policy and in respect of its part in the decision of the wife to exercise her right to terminate the tenancy. It was not unlawful for the Council to act on the basis of credible information supplied to it by the wife. The Council was under no duty, before deciding whether to issue possession proceedings, to make, or to await, a judicial determination as to the truth of the allegations made by the wife against Mr Kibata. Once the tenancy had been lawfully terminated by the wife, the Council acted in accordance with the law. It simply relied on the effective termination of the tenancy and on the consequent termination of his statutory matrimonial home rights and his Housing Act rights and sought to recover possession of the Flat by due process of law.[31]On the facts before the county court there was nothing incompatible with the Convention in the court making an order for possession of the Flat. The court would be assisting the Council, as the freehold owner of the Flat with a right to immediate possession of it, to recover possession of its property from a person whose rights to occupy it had been terminated in accordance with the law. No further justification, such as whether the making of a possession order was proportionate, was required for granting such an order.

Article 6 point

[32]I agree with the judge that the Council has not acted in breach of article 6 of the Convention. Its action in obtaining a notice to quit from the wife did not amount to a “determination ”of Mr Kibata’s “civil rights.”[33]Article 6 confers a right to a fair trial in the following terms:
“1. 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…”
[34]The submissions on behalf of Mr Kibata were based on a misunderstanding of the concept of a “determination” within the meaning of the article and of the nature of the rights conferred by article 6. It was contended that Mr Kibata had civil rights in respect of his occupation of the Flat (i.e. the statutory rights under the legislation referred to above). The Council, it was argued, had “determined” those rights by, as the judge held, “procuring” the notice to quit from the wife and securing the termination of the tenancy and with it all the statutory rights of Mr Kibata with respect to the Flat. The “determination” was not that of an “independent and impartial tribunal.” The Council had not given Mr Kibata a “fair and public hearing.” His civil rights had been “determined” by the Council without even a prior notification to him of the wife’s intention to serve a notice to quit. So he had no opportunity to take action to protect his rights before they were “determined.” He was not even aware of what rights he had in relation to the occupation of the Flat.[35]In my view, article 6 did not apply to the relevant actions of the Council in this case. I agree that Mr Kibata’s had “civil rights” conferred by statute in relation to the occupation of the Flat after the departure of the wife and until the termination of the tenancy by her notice to quit. He had a right of access to the courts for the determination of those rights. “Determination” of civil rights in article 6 is used in the context of a legal or factual adjudication made by a decision-making body in relation to those rights. It is not used in the sense for which Mr Pearce-Higgins contends, that is of a private law act (in this case the act of the wife) putting an end to or causing a cessation of a legal interest in property, such as the termination of a tenancy by giving a notice to quit. The conduct of the Council, in informing the wife of its policy and of the need to terminate her tenancy of the Flat if she wished to be granted the tenancy of other council accommodation, was not a “determination” by the Council of Mr Kibata’s civil rights within article 6.[36]I would add that, in my view, the termination of the tenancy of the Flat, turning Mr Kibata’s licensed occupation into that of a trespasser, was brought about by the lawful act of the wife, not by an unlawful act of the Council. It was the wife who served a valid and effective notice to quit. The service of the notice was not “procured” by the Council in an unlawful, unfair or underhand sense, nor was it a “device” in the sense of an inappropriate procedure improperly employed by the Council to avoid having to establish Ground 2A of the 1985 Act for the purpose of obtaining an order for possession against Mr Kibata. The Council acted in accordance with the provisions of a reasonable and lawful housing policy for dealing with difficult re-housing problems, which were not of its own making, arising on the break up of relationships accompanied by allegations of domestic violence. In the implementation of that policy Mr Kibata’s article 6 rights apply to the proceedings brought by the Council in the county court in order to obtain a possession order against him. It is not suggested that there was any breach of article 6 by the Council or by the court in those proceedings.

Article 14 point

[37]I also agree with the judge that the Council has not acted in breach of article 14 of the Convention, which prohibits discrimination in the following terms:
“ The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds 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.”
[38]Mr Kibata’s case was that he had been discriminated against by the Council in respect of his right under article 8 to respect for his “home”, when compared with the Council’s treatment of(a) the spouses of tenants who leave premises, but do not seek re-housing by the Council or who are not procured to serve a notice to quit; or(b) joint tenants of the Council.[39]According to Qazi no right under article 8 right is available to Mr Kibata in respect of the Council’s proceedings against him for recovery of possession of the Flat. If the Convention right in article 8 is unavailable, so is the prohibition on discrimination in article 14.[40]In any event, even on the basis that article 8 was available, the judge rightly rejected the submissions on discrimination. She correctly followed the structured approach laid down by this court in London Borough of Wandsworth v. Michalak [2003] 1 WLR 617 at paragraph 20, which was followed in O’Sullivan in paragraphs 47,64 and 89, and concluded that there was no discrimination against Mr Kibata by the Council.[41]As for the first of the chosen comparators, the evidence before the court failed to establish as a fact that there was any difference in the Council’s treatment of Mr Kibata’s situation, where there were allegations of domestic violence against him, and the Council’s treatment of cases, in which there was a breakdown in a relationship leading one partner to leave the other in the premises without making such allegations or without seeking re-housing. There was no evidence that the Council’s policy that a tenant was only able to have one tenancy was applied any differently in cases where there was no allegation of domestic violence or where there was no application for re-housing.[42]As for the second chosen comparator, the judge found that there was in fact a difference in treatment by the Council of the spouses of sole tenants and the spouses of joint tenants in cases of alleged domestic violence. In the former case the policy envisaged that it might not be in the Council’s interest to have the tenancy terminated. There was also a warning against colluding with one joint tenant to deprive the other of tenancy rights and against pressuring one joint tenant to serve a notice to quit.[43]The judge went on to hold, correctly in my view, that(a) a joint tenant remaining in the tenanted premises was not in an analogous situation to the situation of Mr Kibata, as both joint tenants had contractual rights against the Council to a secure tenancy; and(b) there was an objective and reasonable justification for the difference in treatment. The differential treatment had a legitimate aim and bore a reasonable relationship of proportionality to the aim sought to be achieved.

Result

[44]I would allow the appeal, dismiss the cross appeal on articles 6 and 14 and make the order for possession sought by the Council. Mr

Justice Holman:

[45]I agree that this appeal should be allowed for the reasons given by my Lord with which I respectfully agree. I also agree with him that the cross-appeal fails and that the deputy district judge was correct to reject the arguments based on articles 6 and 14.[46]I would like to pay tribute to the thoroughness and care with which the deputy district judge grappled with the many issues and arguments that had been deployed and developed before her. The history of Qazi shows what a controversial area she was dealing with in relation to article 8, for the House of Lords allowed by a bare majority an appeal from the unanimous decision of the Court of Appeal. In my view, however, the majority decision in Qazi is now determinative of the article 8 point in this case.[47]The deputy district judge considered that she was entitled to, and should, examine under article 8(2) whether the interference with Mr Kibata’s right to respect for his home was justified, and she concluded that it was not. In my view, however, that course can now be seen to be precluded by Qazi.[48]Lord Scott of Foscote said that "Article 8 can never constitute an answer." (paragraph 144) "In my opinion, the Strasbourg jurisprudence has shown, in effect, that article 8 has no relevance to these landlord/tenant possession cases." (paragraph 146) "Article 8 cannot be raised to defeat contractual and proprietary rights to possession." (paragraph 149) "If the reality of the matter is, as I believe it is, that an article 8 defence can never prevail against an owner entitled under the ordinary law to possession, your Lordships should, in my opinion, say so." (paragraph 152)[49]Lord Millett said that "…save in exceptional circumstances…there is no lack of respect, and no infringement of article 8, where the order is made in favour of the person entitled to possession by national law." (paragraph 107) "Once [the court] concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. The order is necessary to protect the rights of the landlord; and making or enforcing it does not show a want of appropriate respect for the applicant’s home." (paragraph 108)[50]As to exceptional circumstances, Lord Millett said at paragraph 109:
"In the exceptional case where the applicant believes that the local authority is acting unfairly or from improper or ulterior motives, he can apply to the High Court for judicial review. The availability of this remedy, coupled with the fact that an occupier cannot be evicted without a court order, so that the court can consider whether the claimant is entitled as of right to possession, is sufficient to supply the necessary and appropriate degree of respect for the applicant’s home."
[51]Lord Hope of Craighead said that "My understanding of the European jurisprudence leads me to the conclusion that article 8(2) is met where the law affords an unqualified right to possession on proof that the tenancy has been terminated." (paragraph 78) "…the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8." (paragraph 84)[52]As to exceptional circumstances, Lord Hope of Craighead referred to some observations of Laws LJ in Sheffield City Council v Smart [2002] EWCA Civ 04, [2002] HLR 639 at paragraphs 40 and 44 – 45. There, Laws LJ referred to "the rare case where something wholly exceptional has happened since service of the notice to quit, which fundamentally alters the rights and wrongs of the proposed eviction" (my emphasis) and expressed the view that "In the extremely limited circumstances in which an article 8(2) point arises at the stage of trial of the possession proceedings, the trial

judge must deal with it." However, Lord Hope of Craighead commented in Qazi at paragraph 79 that:

"I wish to reserve my opinion as to whether it would be open to the tenant, in a wholly exceptional case, to raise these issues in the county court where proceedings for possession were being taken following service of a notice to quit by the housing authority, bearing in mind as Lord Millett points out that its decision to serve the notice to quit would be judicially reviewable in the High Court so long as the application was made within the relevant time limit. The situation in the present case is different, as it was a notice to quit served by one of the joint tenants that terminated the tenancy."
[53]In my view there is no material distinction between the present case and Qazi, and these clear statements by all three of their Lordships precluded the deputy district judge within the county court possession proceedings from considering article 8 at all.[54]I agree with my Lord, Mummery LJ, that the local authority did not act unlawfully in the formulation and application of their domestic violence policy, or in, to use the word of the deputy district judge, "procuring" the tenant to give a notice to quit. But in any event, the policy and all the actions of the local authority of which complaint is made effectively preceded the service of that notice to quit. On any view, they were not actions which might amount to "something wholly exceptional….since service of the notice to quit, which fundamentally alters the rights and wrongs of the proposed eviction" (my emphasis) of the kind contemplated by Laws LJ in Smart and to which Lord Hope of Craighead was referring in paragraph 79, which I have quoted above. Further, as Lord Hope of Craighead pointed out, the situation is anyway different when (as here) it was the tenant, not the landlord, who served the notice to quit. So this case is not at all the situation in which Lord Hope of Craighead wished to reserve his opinion as to whether it would be open to the tenant to raise article 8 issues within the possession proceedings in the county court. If any article 8 issues were capable of arising at all (and I do not think they were) then they could only have been raised by judicial review (see Lord Millett at paragraph 109, which I have quoted above).[55]For these reasons and those given by my Lord, I, too, would allow the appeal and make an order for possession.

Order:

[1]Appeal allowed[2]Cross-appeal dismissed[3]Respondent to give the appellant possession of the premises known as and situate at 19 Newton Point, Clarkson Road, London E16 on or before 16 January 2004.[4]The respondent to pay the appellant’s costs of the appeal and proceedings below[5]Order for costs not to be enforced until determination made pursuant to section 11 of the Access to Justice Act 1999, such determination to be adjourned generally with liberty to restore.[6]Application for permission to appeal to the House of Lords refused but a stay of the order for possession to be granted pending a petition by the respondent to the House of Lords for leave to appeal, and, if granted, pending the hearing of the appeal[7]The respondent is to undertake to prosecute the application for permission and any appeal which he is allowed to bring with all reasonable expedition. (Order does not form part of the approved judgment)

Cited in 2 later judgments