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Yes, it's Article 8... again!

Counsel for the defendant in this recent case, heard at Clerkenwell & Shoreditch County Court, provided a skeleton argument on the morning of the hearing, ignoring the set aside (it being conceded there was no merit in this) but rather arguing that the Court’s lack of discretion to delay execution of a possession order by over six weeks was incompatible with Article 8. It followed that he was seeking a transfer to the High Court for declaration purposes (CPR 30.3(2)(g)).

This was approved by the district judge, though it was accepted by both parties that the eviction was to go ahead in the meantime.

Powell, Powell, Powell!  Did nobody read Hounslow LBC v Powell [2011] UKSC 8; [2011] 2 AC 186?  Remember one of the four issues in that case was - can the court defer the delivery of possession for a period in excess of the maximum permitted by section 89 of the Housing Act 1980 if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility?

Lord Hope made it quite clear – (1) section 89 could not be read so as to defer the execution of a possession order covered by this provision for longer than six weeks – see paragraph 62 of his judgment. It is true to say that the following paragraph allowed for deferral of a possession order pending appeal/administrative court proceedings or to allow the obtaining of further information but had the warning:

"But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum."

The Supreme Court declined to make a declaration of incompatibility, Lord Hope explaining:

64. The question then is whether the Court should make a declaration ofincompatibility under section 4 of the 1998 Act. This would be appropriate if there was good reason to believe that the time limit that the section sets is likely in practice to be incompatible with the article 8 Convention right of the person against whom the order for possession is made. Mr Arden’s comment in Current Law Statutes indicates that at the time when section 89 of the 1980 Act was enacted postponements of orders for possession for periods of four to six weeks was normal. No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blečić v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.

We know from R (on the application of JL) v Secretary of State for Defence [2013] EWCA Civ 449 that any Convention Rights arguments should preferably be ventilated at the original possession claim but that the proportionality “review” by the courts involves a number of stages from the service of the notice to quit through to eventual execution of the warrant for possession (see paragraph 38 of Lord Justice Briggs’ judgment).  However:

  1. In the "overwhelming majority of cases the occupant’s Article 8 rights will be appropriately and sufficiently respected by the provision at the occupant’s request of a proportionality review during the possession proceedings themselves, and usually at the hearing of them" (paragraph 39).
  2. But "there will be exceptional cases, and the present is a very unusual but powerful example, where the raising of Article 8 rights at the enforcement stage will not be an abuse. The obvious example is where there is a fundamental change in the occupant’s personal circumstances after the making of the possession order but before its enforcement. The example canvassed during the hearing of this appeal was that of the diagnosis of an incurable illness for the first time after the making of the possession order, making it disproportionate for the public authority to evict the occupant before he or she could be allowed to die peacefully at home". (paragraph 41).

Where was I?… Powell, Powell, Powell!