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European court fails to resolve possession riddle

22 September 2010

Solicitors are looking to the Supreme Court for guidance after a ruling by the European Court of Human Rights on possession claims failed to resolve the question of when “personal circumstances” are involved.

The ECtHR ruled two years ago in McCann that courts must consider whether possession claims were proportionate in the light of article 8 (right to respect to the home).

The House of Lords strongly criticised the ruling later that year in Doherty, though it did allow personal circumstances to be taken into account in the court’s assessment of the reasonableness of a possession claim.

Defending its decision in McCann, the ECtHR ruled this week in Kay v UK (application no. 37341/06) that the county court was wrong to strike out the claimant’s article 8 defence.

The court said that in McCann it had agreed with the minority of the House of Lords in their ruling on Kay v Lambeth LBC in 2006.

“In conclusion, the Kay applicants’ challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances,” the Strasbourg court said.

Accordingly, the court ruled that the county court’s decision to strike out the applicant’s article 8 defences meant the safeguards on proportionality of the interference were not observed.

“As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of article 8 of the convention in the instant case.”

The Supreme Court has asked counsel for submissions on the impact of the ECtHR’s ruling on Manchester City Council v Pinnock, another case involving possession and article 8 and judgment is expected by the end of the year.

Andrew Dymond, housing law specialist at Arden Chambers, described the European ruling as “slightly ambiguous”.

Dymond said it was unclear from the European judgment whether the law as it was expressed in Doherty was sufficient.

“What we need is certainty,” he said. “I do not know what the Supreme Court intends, but it could clarify where we are now.”

Gurbinder Gill, solicitor at Eric Bowes & Co in Shirley, Birmingham, acted for McCann.

Gill said that, regardless of “the game of ping pong” between the House of Lords and the ECtHR, local councils had changed their attitude to possession claims since McCann and were less likely to evict tenants.

“There’s been a change in behaviour by councils and housing associations and we’re settling cases before trial, and getting alternative accommodation or new tenancies,” he said.

“The bottom line is that McCann is there and now Kay is there and there is certainly is room for a challenge. We’re running article 8 defences at almost every available opportunity and it’s always down to the facts.”

Gill added that he did not know what the Supreme Court would say in November, but it was unlikely to be the final word.

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