McDonald v McDonald & Anor [2014] EWCA Civ 1049
In a very important decision, the Court of Appeal has finally ruled on the question left open by the House of Lords in Manchester CC v Pinnock [2011] 2 A.C. 104. This is the question of whether the so-called “Article 8 Defence” can be invoked against private landlords who do not qualify as public bodies under the Human Rights Act 1998. The Article 8 Defence allows Defendants to possession proceedings to require the Court to consider the proportionality of making a possession order, on the basis that Article 8 of the European Convention on Human Rights requires a public authority to “respect” the home (as qualified by the second paragraph of Article 8). It is established that, where the Claimant is a public authority (such as a Council), the claim for a possession order can be reviewed on proportionality grounds. The question which arises is whether the same considerations apply where the Claimant is not a public authority.
In this case, the Appellant was a tenant of a house in Witney, and her landlords were her parents. Receivers were appointed under a legal charge over the house, and they served a section 21 notice under the Housing Act 1988. If valid, such a notice is an unanswerable, mandatory ground for possession. The Appellant defended on the basis that the house was her home, and that she had Article 8 rights. After a full consideration of the relevant jurisprudence, the Court of Appeal (Arden LJ giving the leading judgment) decided that:
(1) There was no sufficient body of case law in the European Court of Human Rights that amounted to “clear and constant” jurisprudence establishing an Article 8 defence in purely private proceedings. Instead, there were disparate cases which did not speak with one voice. Nor was there a Grand Chamber decision to that effect.
(2) Even if applicable, the threshold for a proportionality defence was very high, and not made out in this case, the personal circumstances of the Appellant notwithstanding. The property rights of the private landlord carry a great deal of weight, and financial detriment in this case outweighed the Appellant’s health considerations.
(3) As a matter of precedent, the Court of Appeal had already decided the compatibility of section 21 with the European Convention in Poplar Housing and Regeneration Community Association Limited v Donoghue [2002] Q.B. 48, which decision was still to be followed. Once the scheme was found to be compatible with Convention, it followed that there was no scope for Article 8 defences to section 21 proceedings.
(4) The observations made by Ward LJ in Malik v Fassenfelt [2013] EWCA Civ 798 in relation to squatters were declared to be (a) a minority view and (b) inapplicable outside the context of a trespass claim in any event.
(5) It was decided that receivers under a charge had the power to serve section 21 notices.
(6) Ryder LJ commented that he was unpersuaded that Convention rights could be invoked on the basis that the Courts were themselves a “public authority” under the Human Rights Act 1998, and noted that such an argument, if successful, would mean that human rights could intrude into any number of private law disputes.
Stephen Jourdan QC and Ciara Fairley appeared for the successful Respondents
A transcript of the judgment may be found here
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