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Article 8 and possession orders

House key iStock 000004543619XSmall 146x219The Court of Appeal has dismissed an Article 8 challenge. Jon Holbrook explains why.

In a decision that will bring relief to social landlords the Court of Appeal has dismissed an appeal against decisions made by Circuit Judges to dismiss Article 8 challenges to the making and then enforcement of a possession order.

Key practice points from Lawal v Circle 33 [2014] EWCA 1514 are as follows.

First, ensure that a judge gives reasons for dismissing an Article 8 defence in his final judgment, even if they have been given at the time an application to raise Article 8 is first made. (§66)

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Secondly, save in exceptional circumstances an Article 8 defence ought to be raised during the possession proceedings and in particular at the trial. Raising it at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process. (§89)

Thirdly, on dismissing an Article 8 defence the judge is entitled to have regard to these seven points:

  1. The evidential burden is on applicants to show that an eviction would be disproportionate. (§81)
  2. In discharging this burden matters such as the length of time required for avoiding a disproportionate eviction and the relevant terms of any such extended occupation would be relevant. (§81)
  3. The same principles on proportionality apply to both local authorities and other social landlords. (§76)
  4. There is a great need for social housing in inner London and that a housing association is likely to make its properties available for those owed a housing duty under the Housing Act 1996. (§77)
  5. There is a strong presumption that granting possession to a social landlord would be pursuant to a legitimate aim and would not be disproportionate. (§78)
  6. Under-occupation of a much needed housing resource is particularly relevant. (§§79, 82)
  7. The applicant's potential homelessness is unlikely to be relevant because even if the applicant were to become homeless the court is not usually properly equipped to express a view as to matters of housing management and priority between competing claims to be housed. (§81)

Article 8 and the making of a possession order

The key issue in the possession claim was whether the 2nd Appellant had retained his secure tenancy (under HA 1985, s81) by occupying the house as his only or principal home when a notice to quit expired in 2011.

HHJ May concluded that he had not as passport evidence showed that in the 70 months (nearly 6 years) before the NTQ expired he had only been in the UK for 7 months and that he had not been in the UK for the previous 10 months. Her conclusion was supported by her finding that after the NTQ expired the 2nd Appellant had intended to return to Nigeria promptly and only stayed in London because possession proceedings had by then been issued.

The Appellants had defended the possession claim for two years with the benefit of legal aid until shortly before the multi-track trial started, whereupon legal aid was discharged. At the end of their closing submissions the Appellants sought to raise an Article 8 defence for the first time, which Circle 33 objected to on the grounds that it had not been pleaded and that no evidence had been given in respect of it.

The Court of Appeal found that although Judge May "peremptorily refused to hear or dismissed the Appellants' Article 8 argument" during the Appellants' closing submissions (§84) she gave "no reason in her judgment for refusing to deal with it" and this may have entitled them to permission to appeal on that point. (§66)

However, permission to appeal against the possession order was not given by the Court of Appeal.  The jurisdiction under r.52.17 can only be invoked where an appellant demonstrates that the integrity of the earlier litigation process had been critically undermined so that the risk of a grave injustice outweighes the importance of finality in litigation. (§65)

Article 8 and the enforcement of a possession order

After permission to appeal against Judge May's possession order had been refused by the Court of Appeal the Appellants relied on Article 8 to prevent enforcement of Judge May's possession order.

HHJ John Mitchell dismissed the application finding that:

  • CPR 3.1(7) – a power of the court under the CPR to make an order includes a power to vary or revoke the order – did not apply in the absence of a material change in circumstances or any misstatement or omission in the material placed before the trial judge. (§20) This finding was not appealed to the Court of Appeal.
  • He was bound by the view expressed by the Supreme Court in LB Hounslow v Powell [2011] UKSC 8 that since the 2nd Appellant had lost his secure tenancy status his eviction could not be stayed by more than 6 weeks, under section 89(1) of the Housing Act, a period which had long since expired. (§30) The Court of Appeal refused the Appellants permission to appeal this point to the Supreme Court.
  • In any event the Appellants' application for a stay under Article 8 would fail because the eviction would not be disproportionate. The Court of Appeal upheld Judge Mitchell's finding on this point having regard to the seven bullet points set out above.

Jon Holbrook is a barrister at Cornerstone Barristers. Instructed by Samantha Grix, of Devonshires Solicitors, he acted for Circle 33 throughout.

Jan Luba QC & Catherine O'Donnell, instructed by Shelter, acted for the Appellants.

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