Coombes, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2010] EWHC 666 (Admin)

Case No CO/12836/2009[2010] EWHC 666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 8 March 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF COOMBESClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantMAYOR AND BURGESSES OF THE LONDON BOROUGH OF WALTHAM FORESTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Toby Vanhegan appeared for ClaimantMr Simon Brilliant appeared for DefendantMiss Jessica Simor appeared for Second Defendant
J U D G M E N T

Introduction

[1]This is yet another case where Article 8 of the European Convention on Human Rights is invoked in the context of proceedings for the possession of property. The matter has been transferred to this court from Bow County Court by order of His Honour Judge Mitchell to deal with a counter-claim by the second defendant in the possession proceedings. Those proceedings are brought there by the Mayor and Burgesses of the London Borough of Waltham Forest ("the council"). For convenience, the second defendant in the county court proceedings is called the claimant in this court. In that counter-claim the claimant seeks a declaration of incompatibility under the Human Rights Act 1998 ("the 1998 Act") against section 3 of the Protection from Eviction Act 1977 and related legislation. Background[2]By an agreement dated 27 January 1954, the council granted to Mr John Coombes a tenancy of 3 Palmerston Court, Palmerston Road, London E17. The property is a two-bedroom ground-floor flat with a reception room, kitchenette, bathroom and shed. The claimant is the son of Mr Coombes and his wife Mrs Amy Coombes. He has lived at the property with his parents since 1954 when he was 6 years old. On 28 February 1999 Mr John Coombes died. Mrs Amy Coombes succeeded to the tenancy under section 85 of the Housing Act 1985. On 10 June 2005 she too died.[3]The following year the council served a notice to quit on the property but later they purported to withdraw it. Over two years later, on 11 August 2008, the council served another notice to quit on the claimant and his mother's personal representatives, set to expire on 15 September 2008. On 20 February 2009 a claim for possession was issued at Bow County Court.[4]The claimant seeks to defend the action on three grounds. First, he argues that the council granted him a fresh, secure tenancy of the property. Secondly, he alleges that his case has not been dealt with in accordance with the council's allocation scheme. By order of this court, the Bow County Court proceedings in relation to those two grounds are stayed until determination of the third ground. That third ground is the counterclaim raising the human rights issue. In essence, this third ground arises because the claimant contends that his personal circumstances, for example his long occupancy of the property, his attachment to it, and his care of his parents there, offer a basis for being permitted to remain. The Issue[5]The issue before the court is the compatibility of section 3 of the Protection from Eviction Act 1977 and related legislation with Article 8 and, to an extent, Article 6 of the European Convention on Human Rights ("the Convention"). Article 8(1) grants everyone the right to respect for, inter alia, their home. Article 8(2) requires any interference by a public authority with the exercise of the right to respect for one's home to be in accordance with the law and necessary in a democratic society in the interests of, for example, the economic well-being of the country or for the protection of the rights and freedoms of others. Article 6 (1) states:
"In the determination of [a person's] 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."
[6]Section 3 of the Protection from Eviction Act 1977 must be seen in its common law and statutory context. If a landlord seeks a possession order against a tenant with protection under the Rent Act 1977 or the various housing acts, it must be justified on the grounds enunciated there. Otherwise - for unprotected tenancies and licensees - section 3 requires, at the least, a court order for possession. Section 3 is headed Prohibition of Eviction without due process of law. It reads as follows:
"(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and — (a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. (2) In this section 'the occupier', in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy."
[7]As far as a local authority housing is concerned, section 21 (1) of the Housing Act 1985 confers on it the powers of general management, regulation and control. Local authority tenants obtain security if the conditions in Part IV of that Act are satisfied. A tenancy granted by a local authority satisfies the landlord conditions set out in section 80 and therefore, so long as the tenant condition in section 81 is also satisfied, the tenancy will be secure. The tenant condition requires that the tenant be an individual who occupies the property as his only or principal home.[8]Section 87 of the Housing Act 1985 provides that a member of the secure tenant's family is qualified to succeed to the tenancy if the property is occupied as the only or principal home at the time the tenant died and for the preceding 12 months. By virtue of section 89 (2), the tenancy vests automatically in the successor. Only one successor is permitted (section 87).[9]The balance struck in the legislation for succession was upheld by Moses J in R (Gangera) v London Borough of Hounslow [2003] EWHC 794, [2003] HLR 68, and Wandsworth Borough Council v Michalak [2002] EWCA 271, [2003] 1 WLR 617.[10]The claimant's case is that this combination of legislation precludes him advancing his personal circumstances as a defence to the council's possession action. The parties seem to be largely agreed that if the council properly served a valid notice to quit this had the effect of automatically terminating Mrs Amy Coombes' tenancy and automatically terminated the claimant's licence in the property, granted by his mother, pursuant to her secure tenancy. The claimant has not succeeded to the tenancy under Sections 87 and 89 of the Housing Act 1985. If the claimant is only an occupier the council has an automatic right to a possession order. The court must order possession if it is satisfied that the council has a right to possession. The only requirement under section 3 (1) of the Protection from Eviction Act 1977 is that the council must obtain a court order. There is no other restriction on the council's right to possession.[11]The claimant's contention is that the court cannot consider the issue of proportionality. It cannot consider the claimant's personal circumstances. Moreover, the council's power to manage its property under section 21 of the Housing Act 1985 is unfettered and not subject to any need to take account of Convention rights. In the claimant's submissions a statutory regime of this nature, which prevents the court from considering the proportionality of an eviction, cannot be compliant with the requirements of Article 8 of the Convention. Moreover, since the possession proceedings did not give the claimant the possibility of having the issue of proportionality considered by the court, there has been a breach of Article 6 of the Convention, in that he has not had a fair and proper hearing. Kay and Doherty[12]The leading domestic authorities in this area are two decisions of the House of Lords: Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465 ("Kay"), and Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367 ("Doherty").[13]Kay was a seven-judge court. It followed the decision of the House of Lords in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, and the decision of the European Court of Human Rights in Connors v United Kingdom [2004] ECHR 66746/01. In the latter the Strasbourg Court had before it the Mobile Homes Act 1983 which excluded from its protection land operated by a local authority as a caravan site for the travelling community. The court held that there was a violation of Article 8 because the eviction of the applicant 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. Consequently, it could not be regarded as justified by a pressing social need or be proportionate to the legitimate aim being pursued (paragraph 95).[14]Against that background Kay has been taken to establish two gateways where it is open to a court to refrain from proceeding to summary judgment, and from making a possession order, notwithstanding that the requirements of the law have been met. These two gateways are expressed thus in Lord Hope's speech at paragraph 110:
"110 ..... (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461 ..... "
[15]Gateway (a) thus concerns whether the domestic law is compatible with the Convention. All seven Law Lords seemed to be in agreement that apart from situations where there was a positive obligation on a state as regards groups like travellers, gateway (a) would only arise in exceptional cases. As Lord Bingham expressed it, a statutory scheme was likely to satisfy the Article 8 (2) proportionality requirement as a democratic solution to problems inherent in housing allocation (paragraph 35); (see also paragraphs 180, 185, 187 (per Baroness Hale), 203 (per Lord Brown)).[16]In this context Lord Bingham invoked Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48, and Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617.[17]In Poplar, the Court of Appeal found no breach of Article 8 (2) in the use of Section 21 (4) of the Housing Act 1988 to gain possession of an assured shorthold tenancy granted to a person who had been intentionally homeless. The Court of Appeal held that Parliament had struck the balance in favour of the needs of those dependent on social housing as a whole over those who, like the tenant in that case, were intentionally homeless (paragraph 69 per Lord Woolf CJ).[18]In Michalak, members of the Court of Appeal said that a local authority was not required to justify a possession order within Article 8 (2) of the Convention on a case-by-case basis where appropriate justification is derived from the statutory scheme: paragraph 46 (per Brooke J), paragraph 63 (per Mance J).[19]In Kay, Lord Bingham added that in some cases where the relationship between the public authority and the tenant or occupier was not governed by a statutory scheme and possession was sought because, for example, a term had come to an end or a condition of occupancy had been broken, it was not unrealistic to regard the general law as striking the requisite Article 8 (2) balance (paragraph 36). Lord Hope confines his formulation of gateway (a) in paragraph 110 of Kay to legislation, through his reference to Sections 3 and 4 of the 1998 Act. However, it is clear from the tenor of his speech in Kay, and from Doherty, that he would not disagree with Lord Bingham on this matter (see also paragraph 203, per Lord Brown in Kay).[20]There was, however, an important disagreement in Kay. The minority - Lords Bingham, Nicholls and Walker - thought that in highly exceptional cases there was a role for personal circumstances to be taken into account to give effect to Article 8 of the Convention, albeit that personal circumstances would not avail the occupier where social services were available to alleviate the problem, or if, otherwise than perhaps for a very short period, he or she could be accommodated elsewhere (paragraph 38, per Lord Bingham).[21]By contrast, the majority - Lords Hope, Scott, Hale and Brown - held that where the requirements of the domestic law had been met, and the right to recover possession was unqualified, no challenge based on the individual circumstances of the individual is permissible (paragraphs 72, 110 per Lord Hope, 172 per Lord Scott, 189 to 192 per Baroness Hale, 198, 203 to 204 per Lord Brown). Indeed at paragraph 110 of his speech, Lord Hope stated:
" ..... a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out."
[22]In Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367, the council had issued a notice to quit and commenced possession proceedings against the licensee of a plot on a caravan site, who had been there for 17 years. The site was designed for the travelling community. The council intended to improve the site. Genuine travellers, it was said, were deterred from going on to the site by the presence of the defendant's family and were, consequently, camping elsewhere.[23]The House of Lords held that because Section 5 (1) of the Mobile Homes Act 1983 excluded travellers from its statutory protection, it was incompatible with the Article 8 right to respect for their home. The legal framework was indistinguishable from that which applied in Connors. The legislation could not be read compatibly with Article 8 pursuant to the interpretation obligation in section 3 (1) of the 1998 Act. Thus, a declaration of incompatibility would have been made under section 4 of the Act but for the Housing and Regeneration Act 2008, which removed the exclusion of travellers' sites from the 1983 Act (paragraphs 45, 51, 78 to 81, 105, 132 and 164).[24]The importance of Doherty is that it provides authority for more intensive gateway (b) review. While Lord Hope referred to the test of reasonableness as being - " ..... whether the decision to recover possession was one which no reasonable person would consider justifiable" - in other words orthodox Wednesbury review, in the same paragraph he said, " ..... it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds": paragraph 55. Lord Scott said:
"76 ..... bearing in mind the multiplicity of interests and considerations to which a responsible local authority would need to have regard, [a court] would not conclude that the Council’s decision to serve the Notice to Quit had been unlawful unless [it] considered that the decision was one to which the Council could not reasonably have come."
Earlier, however, Lord Scott coupled orthodox Wednesbury review with proportionality (paragraph 70). Lord Rodger agreed with both Lords Hope and Scott.[25]For Lord Walker, who was in the minority in Kay, gateway (b) caused difficulty. He was bound to accept the majority view in Kay, which distinguished between common law or conventional grounds of review, and the wider minority view of Lord Bingham, that Article 8 might - highly exceptionally - provide additional protection (paragraph 107). Lord Walker quoted Baroness Hale (at paragraph 190 of Kay) that, in an appropriate case the range of considerations which any public authority would take into account in deciding whether to invoke its powers could be very wide (paragraph 108). In the following passages in his judgment Lord Walker identified the difficulty of distinguishing conventional judicial review when all public authorities were bound, as a result of the 1988 Act, to take account of human rights. Lord Mance unequivocally adopted a wider, more "relaxed" sense of the standard review "which takes full account of the basic interest which any occupant has in his or her home": paragraph 136.[26]Procedurally as well, Doherty facilitates more intensive review. Thus, Lord Scott refers to the perceived procedural deficiencies of judicial review being - "68 ..... surely curable by a simple procedural adjustment enabling ..... the public authority's decision to terminate the occupier's tenancy or licence to be part of the occupier's defence to the possession claim, ie, gateway (b) ..... thus enabling any factual disputes that needed to be resolved to be dealt with in the ordinary way in the course of proceedings." (See also paragraph 123 per Lord Walker.)[27]Thus, as Toulson LJ pointed out in Doran v Liverpool City Council [2009] EWCA Civ 146, Doherty establishes that there is no formalistic restriction on the factors which may be relied upon by a licensee in support of an argument that council's decision to serve a notice to quit and seek a possession order was one which no reasonable council would have taken:
"49 ..... Such factors are not automatically irrelevant simply because they may include the licensee's personal circumstances, such as length of time of occupation."
Toulson LJ added that, according to Doherty - "50 ..... 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," albeit that public law "principles are not frozen" (paragraph 52).[28]With respect, an even wider meaning of Doherty may be possible given, for example, the reference to proportionality in Lord Scott's speech, Lord Rodger's agreement with it and Lord Mance's approach.[29]For present purposes, the key point about Doherty is that gateway (b) can involve consideration of whether the council's decision in this case to seek possession was "reasonable having regard to the aim which it was pursuing and to the length of time that [he] resided [there]", adopting the words of Lord Hope in paragraph 55 of Doherty.[30]However Doherty does not enable Bow County Court to substitute its view for that of the council. That court would still be asking itself whether the decision to recover possession was flawed on public law principles. The claimant contends that Strasbourg jurisprudence, supported by recent decisions of the Irish High Court, make quite clear that Article 8 of the Convention requires proportionality to be considered in every eviction case by an independent court. Thus there is a procedural breach of Article 8 on the facts of the present case because the claimant has not been afforded the opportunity of having the issue of proportionality considered by Bow County Court. The only way to raise a human rights defence is through gateway (a), in the claimant's submission. This entails an attack on the statutory regime which provides the entitlement to possession through the declaration of incompatibility route. Let me turn to the Strasbourg cases.

(a) McCann

[31]McCann v Birmingham City Council [2008] ECHR 19009/04 is an appropriate starting point. In 1998 Birmingham Council granted the husband and his wife a joint secure tenancy of a three-bedroom home. In 2001 the marriage broke down and the wife left the family home with the two children. She obtained a non-molestation order and an ouster order against him. He tried to force his way into the home. She applied to the council, and it provided her with alternative accommodation. In November 2001 the husband returned to the house and in January the following year applied to the council for a mutual exchange with another tenant because the house was larger than he required.[32]To terminate the joint tenancy of the house a council housing officer visited the wife and asked her to sign a notice to quit. She was not advised as to its effect. In the light of Hammersmith and Fulham Borough Council v Monk [1992] 1 AC 478, that was that at common law the notice to quit by her terminated the joint tenancy. The effect was that she ended her husband's right to live in the house. A week later she sought to withdraw the notice, but the council told her husband that the tenancy had ended. It sought possession in the county court.[33]The case went to appeal and is reported as Birmingham City Council v Bradney [2003] EWCA Civ 1783, [2004] HLR 27. The husband contended that in seeking to obtain from the wife the notice to quit the council had circumvented the statutory powers in relation to recovery of possession of a secure tenancy under Section 82 of the Housing Act 1985 and ground 2 (a) of Schedule 2. Giving the judgment of himself, Lord Phillips MR and Tuckey J, Mummery J held that Article 8 was not available as a defence to the possession proceedings even though the property in question was the "home" of the occupant for the purposes of the Convention.[34]The council acted lawfully and within its powers in obtaining the notice to quit which, at common law, had the effect of terminating the secure tenancy. Section 82 did not apply. The notice to quit was effective although it was signed without appreciating the consequences for the husband (paragraph 28). This was not a "wholly exceptional" case where, for example, something had happened since the service of the notice to quit which had fundamentally altered the rights and wrongs of the proposed eviction, and the council might be required to justify its claim to override the Article 8 right (see paragraph 29, citing Qazi).[35]When the matter reached the Fourth Section of the European Court of Human Rights the matter was dealt with without oral argument. The Strasbourg Court canvassed the statutory provisions and the House of Lords' authorities such as Qazi and Kay. It then addressed the alleged violation of Article 6 (1) of the Convention, that the council was not an independent and impartial tribunal when it brought about the termination of the tenancy. That application, it held, was manifestly ill founded. The determination of the rights and obligations arising out of the tenancy took place before the County Court and the Court of Appeal. There were no submissions about the fairness of those proceedings, nor that anything outside them had an adverse impact.[36]The Strasbourg Court then turned to Article 8. The effect of the notice to quit, together with the possession proceedings brought by the council, was to interfere with the husband's right to respect for his home. That interference was in accordance with law and pursued the legitimate aim of pursuing the rights and freedoms of others, but it was not proportionate:
"50 ..... 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 in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end."
[37]The court noted that United Kingdom legislation set up a complex system for the allocation of public housing. Had the council sought to evict the applicant in accordance with the statutory scheme, it would have been open to the applicant to ask the court to examine, for example, whether his wife had really left the family home because of domestic violence and whether given his personal circumstances, including his need to provide accommodation for his children during overnight visits several times a week, it was reasonable to grant the possession order (paragraph 51).[38]The local authority chose to by-pass the statutory scheme by requesting the wife to sign a common law notice to quit. It did not appear that the council in the course of the procedure gave any consideration to the applicant's right to respect for his home. Moreover, under domestic law applicable in this type of case, it was not open to the country court to consider any issue concerning the proportionality of the possession order save in "exceptional" cases mentioned by the Court of Appeal at paragraph 29 of its judgment (paragraph 52). Moreover the Strasbourg Court held that judicial review of the council's decision was not well adapted to redress such issues. Like the possession proceedings in issue, judicial review did not provide an opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate, under Article 8 (2), to the legitimate aims pursued (paragraph 53).[39]The court did not accept that the grant of the right to the occupier to raise an issue under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. Referring to the minority views of gateway (b) in the House of Lords in Kay, the Strasbourg Court observed that it would only be in exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue (paragraph 54). At paragraph 55 of the judgment the court said:
"55 Under the summary procedure available to a landlord where one joint tenant serves notice to quit, the husband was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case."
The husband had been deprived of his home without the opportunity to obtain a ruling on the issue under Article 8 (paragraph 59).[40]In my view McCann might have been interpreted as having a limited impact. Partly that is because the court was focussed on the summary procedure whereby under English common law a joint tenant can - by notice to quit - terminate the interest of other joint tenants or of another joint tenant. That focus is most evident in the last sentence of paragraph 50 and in paragraphs 52 and 55 of the Strasbourg Court's judgment. The tenor of the court's concern, expressed in paragraph 52, is that the council had sought to by-pass the complex statutory scheme so that the proportionality of the possession order was not considered. The common law rule about termination of a joint tenancy avoided these protections, and there was no opportunity for an independent tribunal to consider the issue of proportionality. That meant, as the court put it in paragraph 55, a lack of procedural safeguards.[41]Any limited impact which McCann might have had is belied by two later developments. First, the Strasbourg Court has applied the McCann principles more generally in its subsequent jurisprudence. The Irish High Court has done likewise. The second development is the treatment of McCann by the House of Lords in Doherty.

(b) Post-McCann Strasbourg Jurisprudence

[42]In Cosic v Croatia [2009] ECHR 28261/06 the applicant was a teacher provided a flat by her school, which in turn leased the property from the Yugoslavian Army. That lease expired in 1990. She remained, paying rent to the school. Ultimately the Croatian State, which had assumed ownership of Yugoslavian Army property, obtained an order of possession from the Municipal Court. The basis was that the lease had expired so the applicant had no lawful entitlement to occupy the flat. She had no other place to stay.[43]The Strasbourg Court stated that the Municipal Court had confined itself to finding that occupation by the applicant was without a legal basis but made no further analysis as to the proportionality of the measure when applied against her. However, the guarantees of the Convention required that the interference with an applicant's right and respect for her home be not only based on the law but also be proportionate, under Article 8 (2), to the legitimate aim pursued, regard being had to the particular circumstances of the case (paragraph 21). The court reiterated paragraph 50 of McCann. In the circumstances the applicant was not afforded adequate procedural safeguards and there was a violation of Article 8. However, the court held that the alleged violation of Article 6 was manifestly ill founded.[44]In Zehentner v Austria [2009] 20082/02 the applicant's apartment was subject to a judicial sale for non-payment of debt. She was suffering psychiatric illness, and did not participate in aspects of the sale. The Austrian law had time limits for challenging a judicial sale, designed to protect the right of a bona fide purchaser and to ensure legal certainty. Neither interest, held the Strasbourg Court, was sufficient to outweigh the considerations of the applicant who lacked legal capacity, was dispossessed of her home without being able to participate effectively in the proceedings, and was without any possibility to have the proportionality of the measure determined by the courts. It followed that because of the lack of procedural safeguards there had been a violation of Article 8.[45]Finally, there is Paulic v Croatia [2009] ECHR 3572/06, another case where the Croatian State resumed a former Yugoslavian Army flat and brought a civil action seeking the applicant's eviction on the basis that he never obtained a specially protected tenancy under domestic law. The Croatian court ordered his eviction but the Strasbourg Court held that it had not analysed the proportionality of the measure, in breach of Article 8. "43 In this connection the Court reiterates that any person at risk of an interference with his right to home 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 of the Convention, notwithstanding that, under domestic law, he or she has no right to occupy a flat (see McCann v United Kingdom No 19009/04, paragraph 50, 13 May 2008). The Court, however, emphasises that such an issue does not arise automatically in each case concerning an eviction dispute. If an applicant raises an Article 8 defence to prevent eviction, it is for him to do so and for a court to rebut the claim.

(c) The Irish cases

[46]Donegan v Dublin City Council [2008] IEHC 288 involved a possession action by the council against a tenant. The tenancy agreement contained clause 26 which enabled the council to terminate by a four-week notice. There was a factual dispute as to whether the tenant's son was a drug addict or drug dealer. Section 62 of the Housing Act 1966 (as amended) establishes a summary procedure whereby a public authority landlord can obtain a warrant for possession, to which there is no defence and no possibility of any factual dispute being considered or resolved.[47]After a careful review of authorities from both the Strasbourg Court and from our courts, Laffroy J concluded that the tenant's case fell squarely within the core principles established by the judgments of the European Court of Human Rights. It was an exceptional case. Judicial review in her judgment was inadequate as a remedy because it did not address any dispute as to the facts:
"Accordingly, in the light of the decisions of the ECHR in Connors and Blecic the procedure provided for in s. 62, under which a warrant for possession is issued by the District Court against the tenant of a housing authority on the grounds of breach of the tenant's tenancy agreement, without affording the tenant an opportunity where there is a dispute as to the underlying facts on which the allegation is based to have the decision to terminate reviewed on the merits, by the District Court or some other independent tribunal, cannot be regarded as proportionate to the need of the housing authority to manage and regulate its housing stock in accordance with its statutory duties and the principles of good estate management."
A declaration of incompatibility was made under Section 5 of the Human Rights Act 2003.[48]Donegan was applied in Dublin City Council v Gallagher [2008] IEHC 354. There, the defendant's son claimed that he was entitled to succeed to a tenancy on his mother's death. The council rejected the claim and served him with proceedings under Section 62 of the Housing Act 1966 (as amended) to recover possession of the premises. The district judge found as a fact that save for a period when he resided with his partner, he had resided with his mother and regarded the dwelling as his permanent residence. O'Neil J referred, inter alia, to the Strasbourg judgment in McCann, in particular to paragraphs 50 and 53, and agreed with Laffroy J in Donegan that the absence of the procedures there demanded must lead to the conclusion that Section 62 violated the son's Article 8 rights because of the lack of procedural safeguards.[49]Notwithstanding the treatment of Article 6 in McCann, O'Neill J held, as well, that there was a breach of Article 6 in the process carried out internally by the council. Unlike McCann, there was a determination of the son's rights by the council insofar as it made the decision that he was not entitled to succeed to the tenancy. There was no appeal for this decision within the decision making structures of the council and the issue could not be opened up again in the Section 62 proceedings. The restricted application of Article 6, as evidenced in McCann, was to be contrasted with the wide-reaching implicit guarantee of fair procedures in decision making by public bodies under the Irish constitution.[50]These Irish cases deserve close attention. There are, however, some important distinguishing features. For example, under Section 62 of the legislation it seems that once notice to quit expires the matter moves inexorably to a warrant of possession if formal proofs are in order. Moreover, judicial review before the Irish courts does not seem to enable any resolution of disputed facts. Under gateway (b) of Kay and Doherty an occupier is able to raise factual matters in an action under Section 3 of the Protection from Eviction Act 1977 in the manner outlined earlier. The key difference is the obvious point that - unlike this court - the Irish High Court is not bound by decisions of the House of Lords.

(d) McCann and Doherty

[51]In McCann the European Court of Human Rights referred to the minority judgment in the House of Lords in Kay (paragraph 54). As mentioned, the approach of the minority in Kay was that in exceptional cases tenants might succeed in raising an arguable Article 8 issue before the court, notwithstanding the statutory scheme of housing law. The majority in Kay was more limited, as explained earlier: there are only two gateways to Article 8 challenges, an attack on the very law itself and that the housing authority's decision was challengeable on public law grounds.[52]In Doherty the House of Lords felt bound by the majority decision in Kay. The implication in the Strasbourg court's judgment in McCann, that adoption of the minority position in Kay would cure the perceived defect in English housing possession law, was not a course open to it. Lord Hope explained that, first, the House of Lords should not overrule one of its recent decisions unless there was some good reason for doing so, and if the case were re-argued before a panel of nine Law Lords; secondly, the European Court of Human Rights had not fully appreciated the real problems which would arise in domestic law if the minority approach in Kay was followed, namely the lack of firm objective criteria by which a judgment can be made as to whether a decision is arguably disproportionate; and, thirdly, section 6 (2) (b) of the 1998 Act requires a court to give effect to primary legislation even if incompatible with the Convention unless the decision of the public authority seeking possession could be said to be arbitrary, unreasonable or disproportionate (paragraphs 19 to 21). Conclusion[53]In essence, the claimant's case is that procedurally he is unable to agitate his personal circumstances before the County Court as justification to be able to remain in his property. Section 3 of the Protection from Eviction Act 1997 precludes him from doing so and, in his submission, is thus incompatible with the Convention. A declaration of incompatibility ought to follow.[54]That course is not open to me. Section 3 does nothing more than prohibit a property owner, like the council, from re-possessing property without first seeking a possession order in the court. The requirement to seek a possession order, rather than to recover possession without any supervision by the court, cannot be incompatible with Article 8. Coupled with the other legislation, Section 3 does not fall within the exceptional category of cases which the House of Lords in Kay and Doherty identified as passing through gateway (a), in other words, cases which are beyond the boundary of democratic solutions to the problems of allocating scarce public housing. In particular, the provisions which deny the claimant's right to succeed to the tenancy of the premises have been held to strike the requisite balance and to be fully compatible with Article 8 of the Convention in the decisions cited earlier.[55]Nor is it open to me to find that the manner in which the County Court grants possession orders under these legislative provisions is incompatible with Article 8 of the Convention. The Strasbourg jurisprudence - McCann and its progeny - establishes that for an eviction to be proportionate an independent tribunal itself must be able to consider the personal circumstances of the occupier. Gateway (b) in Kay and Doherty enables personal circumstances to enter but only through a review of the decision-making of the council property owner. There is an obvious conflict between the Strasbourg jurisprudence and our own.[56]But the House of Lords in Kay and Doherty has held that the availability of gateways (a) and (b) to challenge possession proceedings is sufficient to render them compatible with Article 8. This court is bound to follow decisions higher in the domestic curial hierarchy irrespective of the conflicting Strasbourg authority (see Lord Bingham in Kay paragraphs 40 to 45, with whom all other Law Lords agreed, paragraphs 50, 62, 121, 177 178, 213). There is nothing in the wording of Section 3 and the other legislation which makes it not "possible", to use the statutory language, for the County Court to consider a defence based on Article 8. It is the binding force of the House of Lords' decisions which produce that result. That is not a basis for making a declaration of incompatibility.[57]At a late stage in the proceedings the claimant sought to raise Article 6 of the Convention, as I have mentioned. In the light of the rulings against admissibility when the Article 6 issue was raised in McCann and Cosic, the claimant's contention cannot succeed. Under Article 6 the claimant must have access to a court to determine the scope of any civil right as defined in national law. The claimant has full access to this court and to Bow County Court for the determination of his claims under national law. It follows that Article 6 is satisfied.[58]The upshot is that the claimant has no basis before this court to seek a declaration of incompatibility. I dismiss the claim.[59]MR BRILLIANT: My Lord, there is an issue of costs. In relation to costs, it is my understanding from my friend, Mr Vanhegan, that there is in fact a legal services certificate in place. However it is not anything that either those instructing me or, as I understand, instructing Miss Simor have ever seen despite numerous requests. On that basis, we are in perhaps a little bit of difficulty. I do not doubt that if Mr Vanhegan tells me there is a certificate there is indeed such a certificate. If that is the case I would ask for an order that it be determined.

MR JUSTICE CRANSTON: Mr Vanhegan, can you help on that?

[61]MR VANHEGAN: Yes. As far as I am aware, there is a certificate. I thought I had seen one when this case was before His Honour Judge Mitchell in the lower court in a bundle. I did not bring that bundle with me.[62]MR JUSTICE CRANSTON: I will make the order for costs and the usual order with the legal aid certificate.[63]MR VANHEGAN: Can I say something about costs?

MR JUSTICE CRANSTON: Yes.

[65]MR VANHEGAN: And appeal as well. As to costs, these proceedings are ongoing. I say that the correct order is that it should be costs in the case, or at least costs reserved until the end of the hearing. If we are ultimately successful then we should not have had to bear the costs of today because the claim would have been badly brought. I say costs are in the case. I would invite your Lordship to make an order on that basis. I accept that we might have lost this part of it, but it ought to be seen in the greater scheme of things. If we win overall there is no justification for bringing the claim in the first place.[66]MR JUSTICE CRANSTON: I think that the ordinary order ought to follow and they ought to get their costs.[67]MR VANHEGAN: Not to be enforced without order of the court.[68]MR JUSTICE CRANSTON: Yes. You wanted to say something about permission to appeal.[69]MR VANHEGAN: Yes. We were also looking at the possibility of leap-frogging to the Supreme Court. There is now a mechanism in place - Sections 12 to 16 of the Administration of Justice Act - that if you are satisfied that the relevant conditions are satisfied then an application can be made to the Supreme Court. I want to deal briefly with the test for permission: is there a real prospect of success? Or is there some other compelling reason? I say yes, there is some other compelling reason in this case - public importance.[70]On the real prospect point, the Supreme Court granted permission in Pinnock to be heard in July. The Court of Appeal granted permission in five cases to be heard in March. Clearly there is something in the Article 8 defence point. Those are examples of six cases where higher courts have granted permission and are going to hear those cases.[71]MR JUSTICE CRANSTON: What are those cases? Are they cases from the County Court, appeals from the County Court?[72]MR VANHEGAN: I do not know. I think some of them have been leap-frogged from the County Court to the Court of Appeal. I cannot remember what happened that some end up at the Court of Appeal and then the Supreme Court.[73]MR JUSTICE CRANSTON: What is the intention - that those Court of Appeal cases will go to the Supreme Court to be heard at the same time?[74]MR VANHEGAN: I think that is the desire of counsel representing the occupants, that if they are done in March there may be a sufficient time-frame to allow them to be joined to Pinnock in July. I think the claimant has four days. The Secretary of State is joined in these proceedings and I think, to an extent, has recognised the tension between domestic law and Strasbourg jurisprudence. As you know, cases of this nature only get transferred to this court if they are seriously arguable.[75]On the public importance point, one can see the public importance. And this case goes to the heart of whether the UK is in fact complying with its obligations under the Convention.

MR JUSTICE CRANSTON: I do not know if Miss Simor wants to say something.

[77]MISS SIMOR: As to permission, our submission is that there is no real prospect of success. The attempt to seek a declaration is misconceived as you have found. The case of Pinnock and the five cases in the Court of Appeal do not address declaration of incompatibility. They are concerned with the question of the extent of the proportionality, and Article 8 can be considered in defence to possession proceedings. Our submission is that those cases will be sufficient to cover the issues and there is no need for a further case.[78]Certainly there is no public importance here. We consider that an application for a declaration of incompatibility is not going to assist any further in sorting these questions out.[79]MR BRILLIANT: I only echo what my friend said.[80]MR VANHEGAN: I know that at least in Frisby and Birmingham the pleadings have been amended to seek a declaration. My understanding is that in that appeal, and possibly also in some of the other appeals in the Court of Appeal, declarations are being sought. This is not a case which is going to be decided by those six cases because Pinnock is a merger (?) tenancy case, two of them at the Court of Appeal are introductory tenancies and three of them are non-security. So we have a very different factual scenario here. I think the importance of the issue - the public importance of the issue - is that there is going to be nine justices sitting on Pinnock and the case has been listed for four days. The Secretary of State is involved in these proceedings and also, I understand, in those proceedings as well. In my submission there is considerable public importance.[81]The situation at the moment is that it is simply not open to the claimant to have a decision by the County Court which is, in the circumstances of this case, where Article 8 rights are breached. It is still not open for any judge to find a breach of Article 8. It is possible for this court and a higher court provided the entire statutory scheme was founded on Article 8. But it is still regrettable and in my submission completely inconsistent with Strasbourg that it is not possible for a judge to find a breach of Article 8 on individual circumstances.[82]MR JUSTICE CRANSTON: Given that there are different factual circumstances and given that this case does raise the incompatibility point, in my view there is no legal prospect of success. But there is a compelling reason for this to be given leave. I will do that.[83]What about expedition? I cannot order that but I can indicate that I think it should be expedited. You do not have to say anything.[84]MR VANHEGAN: I am just coming back to the leap-frogging point.[85]MR JUSTICE CRANSTON: I am not going to order leap-frogging. It can go to the Court of Appeal.[86]MR VANHEGAN: I am grateful.

MR JUSTICE CRANSTON: Is there anything more?

[88]MISS SIMOR: No.[89]MR BRILLIANT: No.

Cited in 1 later judgment