Doran v Liverpool City Council

JurisdictionEngland & Wales
JudgeLord Justice Toulson,Lord Justice Aikens,Lord Justice Jacob
Judgment Date03 March 2009
Neutral Citation[2009] EWCA Civ 146
Docket NumberCase No: B5/2007/1565
CourtCourt of Appeal (Civil Division)
Date03 March 2009

[2009] EWCA Civ 146

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LIVERPOOL COUNTY COURT

H H J TRIGGER

Before: Lord Justice Jacob

Lord Justice Toulson

and

Lord Justice Aikens

Case No: B5/2007/1565

6LV55430/6LV55431

Between
Margaret Doran
Appellant
and
Liverpool City Council
Respondent
and
The Secretary Of State For Communties And Local Government
Intervener

David Berkley QC and Kashif Ali (instructed by Messrs James Murray) for the Appellant

Edward Bartley Jones QC and Andrew Vinson (instructed by Liverpool City Council) for the Respondent

Daniel Stilitz (instructed by Treasury Solicitors) for the Intervener

Hearing dates: 9 February 2009

Lord Justice Toulson

Lord Justice Toulson :

Introduction

1

The appellant is an Irish traveller. She appeals against a summary judgment given by His Honour Judge Trigger on 30 May 2007, by which he ordered the appellant to deliver up vacant possession of pitch 8, Tara Park, Oil Street, Liverpool, to the respondent (“the council”). Tara Park is a site run by the council under the regulations of the Caravan Sites Act 1968. By written licence agreement dated 30 March 2005 the council granted a licence to the appellant to occupy pitch 8. On 12 June 2006 the council served on the appellant a notice to quit the site on 10 July 2006.

2

In summary, the appellant argues that the council's decision to issue the notice to quit and to seek possession of the site was unlawful as a matter of public law, and that she therefore had a public law defence to the claim for possession. Mr Berkley QC on her behalf made the point that the council's decision to seek to evict the appellant was sub-divisible into a number of stages, the decision to issue a notice to quit, the decision to issue proceedings and the decision to ask the judge to make a possession order. Subject to one important reservation, however, he did not suggest on the facts of this case any different considerations apply to an assessment of the lawfulness of the council's conduct at these different stages. So I will concentrate on the issue as to the lawfulness of the decision to issue a notice to quit and will come to the reservation at the appropriate point.

3

The appellant seeks an order that the summary judgment be set aside and the matter remitted to the county court for the judge to hear oral evidence so as to be able properly to determine the validity of her public law defence after resolving any relevant disputed issues of fact. It is submitted that this is necessary because the council's decision to issue the notice to quit was prompted by criticisms of the behaviour of the appellant or other members of her family, which she denies and should have the opportunity of refuting.

4

The arguments before this court have concentrated on two cases, both decided since the judgment of Judge Trigger. One is the decision of this court in Smith v Evans [2007] EWCA Civ 1318, [2008] 1 WLR 661. The other is the more recent decision of the House of Lords in Doherty v Birmingham City Council [2008] UKHL 57, [2008] 3 WLR 636. We were told by counsel that this is the first of a number of appeals which raise issues about the effect of Doherty and, more particularly, its effect on the decision in Smith v Evans.

History of the action

5

The council issued its possession proceedings on 14 August 2006. A defence was lodged on 12 October 2006. On the same day a deputy district judge gave written directions, which included allocating the case to the multi-track and directing a case management conference. By the date of the case management conference, on 12 February 2007, little if any progress had been made by the defendant in complying with the previous directions, and the court set fresh directions for the service of witness statements, including any medical evidence on which the defendant intended to rely. Directions were also given for a hearing, with an estimated length of 3 days, from the 30 May 2007 to 1 June 2007. (Nobody at the hearing of the appeal was able to explain such a long trial estimate). The defendant's witness statement was served (4 weeks late) on 21 May 2007.

6

Counsel on both sides prepared skeleton arguments for the trial. The council's skeleton argument contended that the licence agreement had been validly determined by the notice to quit, and that on the authorities the appellant had no public law defence; accordingly the council was entitled to summary judgment. The appellant's skeleton argument advanced a public law defence.

7

The judge concluded that the council was entitled to summary judgment. His reasoning is not entirely clear. He said that he would not be assisted in determining whether the council was entitled to possession of the site by hearing evidence about the rights and wrongs of the appellant's conduct. That seems to have been on the basis argued for by the council, which was that the council was entitled to summary possession on the undisputed ground that notice to quit had been served, and that it was irrelevant whether the council was able to prove that the appellant had committed breaches of the licence. But that did not address directly the appellant's public law defence. As to that, the judge he said that:

“…It seems to me that even if there is, or may be a breach by the Claimants which should afford the Defendants …a right of contest, because they contend that their rights, such as the right to respect for private and family life have been impugned, the decision that I make does not in any way end that particular avenue of approach if the Defendants are advised to seek it.”

8

The judge seems to have had in mind the possibility that the appellant might apply to the Administrative Court for judicial review. This idea may have been sown in his mind by the appellant's defence which, as well as contending that the council's decision to seek a possession order was unlawful under s6 of the Human Rights Act 1998 (“ HRA”), raised the possibility of an adjournment or stay of the proceedings pending an application to bring proceedings for judicial review of the council's decision to terminate her licence. (The reference to the “defendants” in the passage cited was because the judge was dealing simultaneously with similar proceedings against the appellant's daughter, but they are no longer contested.)

9

For whatever reason, the judge did not embark on considering whether, on the evidence before him, there was an arguable foundation for finding that the council's decision to issue a notice to quit and seek possession was unlawful as a matter of public law.

10

At the conclusion of the judgment, Mr Berkley (who represented the appellant at the trial as well as on the appeal) argued that execution of any possession order should be postponed either through the court's statutory power to suspend its execution or by way of a stay pending appeal. The judge stayed the possession order pending appeal, for which he gave leave, and therefore did not reach the stage of considering whether there should be a statutory suspension. It is common ground that if this appeal fails the matter will have to go back to the county court for consideration whether the possession order should be suspended under s4 of the Caravan Sites Act 1968.

Legislative scheme: phase one

11

In paragraphs 26–30 of his judgment in Doherty, Lord Hope set out a summary of the legislative scheme. As appears from that summary, the scheme has gone through three phases. Phase one gave rise to the decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 (delivered on 27 May 2004), and the decisions of the House of Lords in Kay v Lambeth London Borough Council [2006] 2 AC 465 (delivered on 8 March 2006) and Doherty (delivered on 30 July 2008).

12

Under phase one, where a local authority provided a caravan site under the Caravan Sites and Control of Development Act 1960, the only statutory restriction on its power to terminate a licence to occupy the site by a notice to quit, and obtain a possession order on expiry of the notice, was that s2 of the Caravan Sites Act 1968 required the period of the notice to be a minimum of 4 weeks in cases where the licence was for residential rather than holiday use. The Mobile Homes Act 1983 provided a significantly higher level of security for mobile home occupiers, but s5(1) of that Act excluded its operation in relation to any land occupied by a local authority as a caravan site providing accommodation for gypsies. The original thinking may have been that caravan sites provided by local authorities under the Caravan Sites and Control of Development Act 1960 were intended for those who led a nomadic way of life. However, many (including the appellant) who describe themselves as “travellers” by reason of their cultural background do not wish to live a nomadic existence. Local authorities regularly enter into licence agreements for the occupation of caravan sites by travellers who intend to use the site as their home. Under phase one their rights of occupation were precarious, as the case of Connors illustrated.

13

Mr Connors and his family lived on a caravan site for a number of years. His licence was terminated by notice to quit and the council obtained a summary possession order. The underlying reason for the council's decision to proceed in this way was that the family was alleged to be “a magnet for trouble” and the site manager asserted that there had been breaches of the licence agreement. All this was denied by Mr Connors, but it did not form the legal basis on which...

To continue reading

Request your trial
13 cases
  • Central Bedfordshire Council v Taylor and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 d2 Junho d2 2009
    ...8 issue in two other cases albeit in different factual circumstances to those in the present case – Doran v Liverpool City Council and Secretary of State for Communities and Local Government [2009] EWCA Civ 146 ( Doran) and McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285 ( Mc......
  • R (Coombes) v Secretary of State for Communities & Local Government
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 8 d1 Março d1 2010
    ...the ordinary way in the course of proceedings.” (See also paragraph 123 per Lord Walker.) 27 Thus, as Toulson LJ pointed out in Doran v Liverpool City Council [2009] EWCA Civ 146, Doherty establishes that there is no formalistic restriction on the factors which may be relied upon by a licen......
  • Dudley Metropolitan Borough Council v Marilyn Mailley
    • United Kingdom
    • Queen's Bench Division
    • 14 d3 Setembro d3 2022
    ...and confirmed she would be interested in information about private rented accommodation. 146 As emphasised in cases such as Doran v Liverpool City Council [2009] 1 WLR 2365 and Leicester City Council v Shearer [2014] HLR 8, a public law defence presents a high hurdle. On the facts of this ......
  • Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 d5 Julho d5 2009
    ...London Borough of Harrow v. Qazi [2003] UKHL 43 [2004] 1 AC 983 [2003] 3 WLR 792), and the subsequent decisions of the Court of Appeal in Doran and Taylor. 34 Kay was of course concerned not with a demoted tenancy, but with trespassers. Lord Bingham said: 34. Under some statutory regimes, a......
  • Request a trial to view additional results
1 books & journal articles
  • ‘Yeah but, no but’ – Pinnock and Powell in the Supreme Court
    • United Kingdom
    • The Modern Law Review No. 75-1, January 2012
    • 1 d0 Janeiro d0 2012
    ...the62 Pinnock n 1 above at [81]; Central Bedfordshire Council vTaylor [2010] 1 WLR 446 at [39]–[41]; cfDoran vLiverpool City Council [2009] EWCA Civ 146 at [57]–[60], which must be regarded aswrong on this point.63 See Pawson, n 4 above.64 Pinnock n 1 above at [63].65 Powell n 2 above at [6......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT