Simon Allison has now had judgment from DJ Wakem at Lambeth County Court in the case concerning a non-secure tenant’s claim that the Court had the power to stay a possession order beyond 6 weeks on public law grounds, akin to the principles set out in Wandsworth LBC v Winder  AC 461. Following on from the Supreme Court judgment in Hounslow LBC v Powell  UKSC 8, Simon relied on Southwark LBC v St Brice  1 WLR 1537 and s.89 Housing Law Act 1980 in support of an application for summary judgment in respect of the occupier’s application for a stay, on the basis that the Court had no jurisdiction to grant the application.
DJ Wakem granted the application for summary judgment, set aside the stay of the possession order and left the authority free to finally enforce the possession order. However, permission to the former tenant to appeal directly to the Court of Appeal (leapfrog) was granted, and an appellant’s notice has now been lodged. Watch this space!
It should be noted that cases have started to arise where the Article 8 argument has been applied though just in respect of an application to stay a warrant issued in a mandatory possession claim, alongside in some instances traditional judicial review arguments (e.g. to a Children Act decision/assessment made by a Claimant local authority). Bjedov v Croatia (ECHR 29 May 2012) is occasionally cited to support an argument that, following a change of circumstances, any enforcement of the previously obtained possession order would not be proportionate.
The difficulty with this approach however remains the fact that the Powell case referred to above remains binding authority for the proposition that in such cases the statutory maximum for a possession order – i.e. s.89 of the Housing Act 1980 - can only be interpreted as being restricted to 6 weeks (Lord Hope, paragraph 62 of the judgment).