Birmingham City Council v Lloyd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Gross |
| Judgment Date | 04 July 2012 |
| Neutral Citation | [2012] EWCA Civ 969 |
| Docket Number | Case No: B5/2011/3097 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2012 |
[2012] EWCA Civ 969
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
MR RECORDER DEL FABBRO
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Longmore
and
Lord Justice Gross
Case No: B5/2011/3097
Mr Jonathan Manning and Mr Sam Madge -Wylde (instructed by Birmingham City Council) appeared on behalf of the Appellant.
The Respondent appeared in person.
Lord Neuberger:
On 11 November 1991 Birmingham City Council ('the Council') granted to Dean Gibbs a weekly secure tenancy of 8 Sandown Court, Abdon Avenue, Birmingham ("the flat"). Mr Gibbs died on 21 August 2009. Some time during the next month Mr Gibbs' brother, Richard Lloyd, moved into the flat without the knowledge and consent of those responsible for Mr Gibbs' estate or of the Council.
At that time, Mr Lloyd was the Council's tenant of another property, 6 Coxwell Gardens in Ladywood, Birmingham, but an order for possession had been made against him for non-payment of rent. However, shortly before he moved into the flat, he had succeeded in having the warrant of possession suspended on terms that he paid each week the current rent and a small amount off the arrears.
On 2 November 2009, having moved into the flat from 6 Coxwell Gardens, Mr Lloyd visited the Council's neighbourhood offices, informed a housing officer that he was living in the flat, and sought to raise a claim for housing benefit. He was told he would remain liable for the rent on 6 Coxwell Gardens until he served a notice to determine his tenancy, but he was warned that if he did so and was then not allowed to take a tenancy of the flat, he would be likely to be held to be voluntarily homeless.
In a letter of 19 November 2009 , Mr Lloyd was told that i) the Council was not prepared to grant him a secure tenancy of the flat; ii) the Council was proposing to serve notice to quit on the personal representatives of his brother Mr Gibbs, thereby determining the continuing tenancy of the flat; iii) when such notice to quit had been served and expired, possession proceedings would be brought against him if he had not vacated the flat; iv) he should return to 6 Coxwell Gardens; and v) he could appeal against the decision refusing his application to succeed his deceased brother as tenant of the flat, and that he had 14 days to do so.
On 26 November 2009, Mr Lloyd served notice on the Council determining his tenancy of 6 Coxwell Gardens on 28 December 2009. Some three weeks later, out of time, on 16 December 2009, Mr Lloyd wrote to the Council seeking to appeal the decision to refuse him a tenancy of the flat. Having obtained possession of 6 Coxwell Gardens on 10 January 2010, the Council subsequently, on 5 March 2010, dismissed Mr Lloyd's appeal against the refusal to grant him a secure tenancy of the flat. Because of his appeal which had just been refused the council had stayed their hand in serving notice to quit on the public trustee as the representative of Mr Gibbs, but they served such notice on 30 March 2010, expiring on 3 May 2010.
Mr Lloyd remained in the flat. On 7 October 2010 the council issued proceedings for possession of the flat against him. On 7 January 2011 the possession claim came before the district judge, who allocated the multitrack, ordered a defence be served before 14 January and ordered that the claim be listed for a one-day hearing.
On 12 January Mr Lloyd served a defence which effectively accepted that he was a trespasser in the flat, but contended that he should be allowed to remain in the flat on the ground that evicting him from the flat would be a disproportionate interference with his right to respect for his home under Article 8 of the European Convention on Human Rights on various grounds which were in due course reflected in the judgment.
After a hearing in which Mr Lloyd gave evidence, Mr Recorder Del Fabbro refused to make an order for possession against him for reasons contained in a full and careful judgment, dated 10 November 2011. Effectively the Recorder held that to make an order for possession against Mr Lloyd, even though he was and had always been a trespasser in the flat, would be a disproportionate interference with his Article 8 rights.
The reasons for the Recorder's decision were, in summary, were: (i) Mr Lloyd had had a history of depression which would worsen if he was evicted and made homeless; (ii) his financial circumstances and previous history of rent arrears at 6 Coxwell Gardens would render it difficult for him to find other accommodation if he was evicted from the flat; (iii) much effort and some expenditure, including a start up loan of £1,000, had been incurred by Mr Lloyd in setting up his own web design business, all of which would be wasted if he lost the place from which to work; (iv) there was confusion in the circumstances in which Mr Lloyd gave up his tenancy of 6 Coxwell Gardens; and (v) this was not a case where the occupier of the property concerned, namely Mr Lloyd, had been guilty of nuisance, anti-social behaviour or criminal activity and he appeared to get on with his neighbours.
The Council now appeals the decision, contending that the Recorder was wrong to refuse to make an order for possession. The appeal has taken some time to get on, not least because, when the appeal last was before the court for hearing, Mr Lloyd had been deprived of legal aid and was hoping to obtain it. Although he has not been able to obtain legal aid, he has realistically accepted that this appeal must nonetheless proceed with him as a self-representing litigant. He has made submissions, if I may say so, on his behalf very clearly and succinctly.
The interrelationship of domestic property law and Article 8 has been considered in a large number of cases both in this jurisdiction and in Strasbourg. The conflict between the approach of the House of Lords and the approach taken by the Strasbourg court was resolved in Manchester City Council v Pinnock [2010] UKSC 45, since when the law has been developed domestically in a number of cases, most notably by the Supreme Court in Hounslow London Borough Council v Powell [2011] UKSC 8, but also by this court in Corby Borough Council v Scott [2012] EWCA Civ 276.
It is now clear that a person who has no right under...
To continue reading
Request your trial
-
Southend-on-Sea Borough Council v Armour
...an article 8 defence, although his bad behaviour may undermine it. He relies in particular on the decision of this court in Birmingham City Council v Lloyd [2012] EWCA Civ 969; [2012] HLR 44. Before coming to the dictum on which he relies, it is necessary to give the context. Mr Lloyd had ......
-
Max Couper the Trustees of the Couper Collection Charitable Trust v Albion Properties Ltd Port of London Authority Hutchison Whampoa Properties (Europe) Ltd Magdelena Couper
...92 (Lord Phillips), Corby Borough Council v Scott [2012] EWCA Civ 276, [2012] HLR 23 at paragraph 35 (Lord Neuberger MR). In Birmingham City Council v Lloyd [2012] EWCA Civ 969 at paragraph 25 Lord Neuberger indicated that in some cases the circumstance might even have to be 'extraordinaril......
-
The King on the Application of DF v Essex County Council
...Powell at [92] (Lord Phillips), Corby BC v Scott [2012] EWCA Civ 276; [2012] H.L.R. 23 at [35] (Lord Neuberger M.R.). In Birmingham City Council v Lloyd [2012] EWCA Civ 969 at [25], Lord Neuberger indicated that in some cases the circumstance might even have to be “extraordinarily excepti......
-
Thurrock Borough Council v Aaron West
...8 defence: Powell at [92] (Lord Phillips), Corby BC v Scott [2012] EWCA Civ 276, [2012] HLR 23 at [35] (Lord Neuberger MR)). In Birmingham City Council v Lloyd (2012) EWCA Civ 969 at [25] Lord Neuberger indicated that in some cases the circumstance might even have to be "extraordinarily exc......
-
Human Rights and the Law of Leases
...BC v Scott; West Kent Housing Association Ltd v Haycraft [2012] EWCA Civ 276, [2012] HLR 23 and Birmingham City Council v Lloyd [2012] EWCA Civ 969, [2012] HLR 44. A successful proportionality defence will concern itself not with why the possession order has been sought, but on how disposse......