London Borough of Newham v Kibata

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mummery,Mr Justice Holman
Judgment Date09 December 2003
Neutral Citation[2003] EWCA Civ 1785
Docket NumberCase No: B2/2003/0062
Date09 December 2003

[2003] EWCA Civ 1785






Lord Justice Mummery

Mr Justice Holman

Case No: B2/2003/0062

London Borough of Newham
Amrani Kibata

MR MARK LOWE QC & MS NAOMI HAWKES (instructed by Helen Sidwell, London Borough of Newham) for the Appellant

MR DANIEL PEARCE-HIGGINS QC & MR CHRIS LUNDIE (instructed by Ashley Bean & Co) for the Respondent

Lord Justice Mummery



Since the Human Rights Act 1998 (the 1998 Act) came into force on 2 October 2000 there have been a number of reported cases in which article 8 of the European Convention on Human Rights and section 6(1) of the 1998 Act have been invoked as a defence to proceedings by public authorities to recover possession of their residential property unlawfully occupied by the defendant, after, for example, the termination of a secure tenancy by the service of a valid notice to quit: see Sheffield City Council v. Smart [2002] LGR 467; London Borough of Wandsworth v. Michalak [2003] 1 WLR 617; Royal Borough of Kensington & Chelsea v. O'Sullivan [2003] 1 FCR 687; and, the most recent and the most important of all, Qazi v. London Borough of Harrow [2003] 3 WLR 792 (Qazi).


Article 8 of the Convention, which is concerned with guaranteeing human rights and freedoms, has been interpreted and applied by some courts, including the first instance judge in this case, as creating and conferring on the unlawful occupiers of local authority housing a new species of property right in a "home." The potential effect of such a right is to prevent or postpone the obtaining of a county court order enabling a local authority to recover possession of its social housing stock, unless it can show that, on the facts of the particular case, interference with that right is necessary for the reasons allowed by the article, which provides

"1. Everyone has the right to respect for…his home.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of …or for the protection of the rights and freedoms of others."


Section 6(1) of the 1998 Act provides:

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."


"Public authority" includes not only the appellant in this case, the London Borough of Newham (the Council), but also the county court, which heard the Council's proceedings for possession of a flat against the respondent occupier, Mr Amrani Kibata, and this court, to which the Council has appealed against the dismissal by Deputy District Judge Backhouse of its claim for possession.


It is agreed that, following the service of a valid notice to quit by the sole tenant (Mr Kibata's estranged wife), the Council would have been entitled to a possession order against Mr Kibata, but for the potential application of the provisions of the Convention and the 1998 Act.

The Judgment


The Deputy District Judge, in an extremely thorough judgment handed down on 11 December 2002, held:

"101. In the circumstances of this case, the Claimant [the Council] has not satisfied me on the evidence that the interference with the Defendant's Article 8(1) rights is justified under Article 8(2). It follows from what I have said that I do not consider that the Local Authority can at this stage lawfully obtain possession and the Court should not therefore order it. I therefore dismiss the possession claim. I do so with some hesitation, not least because I am aware that I could be said to have usurped the function of the Administrative Court. Nevertheless, it seems to me to be necessary to comply with the court's duty to behave lawfully."


The judge did not consider the circumstances in which the Council might at some future date become entitled to obtain possession of the flat from Mr Kibata, or the nature of Mr Kibata's occupation of the flat, or the respective rights and liabilities of the parties in the meantime.


The judge's hesitation in refusing a possession order on article 8 grounds has, in the event, been justified by the decision in the House of Lords in Qazi (by a majority of 3 to 2.) The opinions in Qazi were delivered on 31 July 2003, just 10 days after the hearing of this appeal. At the oral hearing of this appeal the court had been alerted to a possible change of direction by the prophetic dicta of Lord Hutton in South Bucks District Council v. Porter [2003] 2 WLR 1547. In that case the local planning authority sought injunctive relief against gypsies to prevent them from living on land acquired by them for that purpose, but for which planning consent had been refused. Lord Hutton referred obiter to the impact on public housing of article 8 of the Convention (p.1582):

"90. Whilst I do not express a concluded opinion on the point which was not the subject of detailed argument before the House, I see no reason to doubt the view expressed by Laws LJ in Sheffield City Council v. Smart [2002] LGR 476,486D that there are some statutory regimes under which the balance of interests arising under article 8(2) has in all essentials been struck by the legislature and under which a court, before ordering a defendant to give up possession of accommodation where he has been living, is not obliged to adjudicate upon the specific merits of coercive action in an individual case."


Following the decision in Qazi both sides submitted additional written arguments in August and September. It was then discovered in October that there were other appeals pending, which related to the impact of article 8 and the decision in Qazi on possession proceedings by public authorities. Appeals in the cases of Bradney v. Birmingham City Council (No B2/2003/1452) and Birmingham City Council v. McCann (No B2/2003/0090) were due to be heard by the Court of Appeal (Lord Phillips of Worth Matravers, Mummery & Tuckey LJJ) on 22 October 2003. It was obviously sensible to defer handing down judgment on this appeal until after those appeals had been heard.

The Impact of Qazi


What is the effect of the decision in Qazi on this case and similar cases? Mr Qazi and his wife were joint tenants of a flat at 31H Sutton Lane, Harrow Weald under a secure tenancy granted by the local authority. The wife left with her daughter to live elsewhere. She gave the council notice to quit. The tenancy was brought to an end. Mr Qazi no longer had any right to remain in the flat. As he did not vacate the flat, the local authority started possession proceedings against him. His defence was based on article 8. He failed in the county court on the ground that the flat was not his "home" within article 8. The Court of Appeal held that the flat was his "home" and remitted the case to the county court to decide the issue of justification under article 8(2). The local authority successfully appealed to the House of Lords.


For present purposes the 152 paragraphs of the decision in Qazi can be condensed into the proposition that, although 31 Hutton Lane was Mr Qazi's "home", article 8 could not be used to prevent the county court from making an order for possession of it in favour of the local authority, which was solely seeking to enforce its right to immediate possession of its own property against a person, who no longer had any right under domestic law to remain in possession of it.


The majority (Lords Hope, Millett and Scott) rejected article 8 as a defence to possession in cases like the instant case. Lord Hope explained that article 8 regards a person's home "as an aspect of his right to privacy" and that the question of article 8 as a defence to a claim for possession "has much more to do with the law relating to property rights than respect for a person's privacy"(paragraph 82). While recognising (paragraph 79) that the service of a notice to quit by a local authority might be challenged in judicial review proceedings in the Administrative Court and that there might be "wholly exceptional cases" in which it was open to the tenant to raise such issues in county court proceedings for possession, he summarised the position generally as follows:

"83. I do not say that the right to respect for the home is irrelevant. But I consider that such interference with it as flows from the application of the law which enables the public authority landlord to exercise its unqualified right to recover possession, following service of a notice to quit which has terminated the tenancy, with a view to making the premises available for letting to others on its housing list does not violate the essence of the right to respect for the home under article 8(1). That is a conclusion which can be applied now to all cases of this type generally.

84. I agree with….Lord Millett and Lord Scott of Foscote that the Strasbourg jurisprudence has shown that contractual and proprietary rights to possession cannot be defeated by a defence based on article 8. It follows that the question whether any interference is permitted by article 8(2) does not require, in this case, to be considered by the county court…."


Lord Scott accepted that residential premises, in which an occupier has no legal or equitable interest, may be his "home" within article 8, but added that his article 8 rights in his home

"149…… could not prevail against the council's admitted and undoubted right to possession under the ordinary housing law…..Article 8 cannot be raised to defeat contractual and proprietary rights to possession.


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3 cases
  • McCann and Birmingham City Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 23 Septiembre 2004
    ...with the partner) of itself renders unlawful other methods of achieving the same result. It is not at all surprising that in London Borough of Newham v. Kibata [2003] EWCA Civ 1785, which concerned a sole tenant who gave notice to quit in order to be re-housed following allegations of domes......
  • National Westminster Bank Plc v Malhan and Others
    • United Kingdom
    • Chancery Division
    • 22 Abril 2004
    ...for the Bank and the Lord Chancellor based on Qazi v London Borough of Harrow [2003] 3 WLR 792; London Borough of Newhamv Kibata [2003] EWCA Civ.1785 para 39 and Bramelid v Sweden (1982) 5 EHRR 249. Suffice it to say that it appears to me that there is much force in those submissions. Nor d......
  • Tower Hamlets London Borough Council v Rahanara Begum
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 Febrero 2005
    ...has manifested an approach consistent with that view: see Bradney v Birmingham City Council [2003] EWCA Civ 1783, at para 15, London Borough of Newham v Kibata [2003] EWCA Civ 1785, at paras 25 and 54, and Kay -v- London Borough of Lambeth [2004] EWCA Civ 926, at paras 100–103. It is true t......

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