Mayor and Burgesses of London Borough of Hillingdon (Claimant) Priscilla Collins (First Defendant) Anthony O'donnell (Second Defendant) Martin O'donnell (Third Defendant) Secretary of State for Communities and Local Government (Interested Party)
| Jurisdiction | England & Wales |
| Judge | JUDGE GILBART QC |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] EWHC 3016 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6006/2007 |
| Date | 05 December 2008 |
[2008] EWHC 3016 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London,
WC2A 2LL
His Honour Judge Gilbart Qc (sitting as a deputy High Court Judge)
Case No: CO/6006/2007
Case No: CO/6007/2007
James Findlay QC and Johanna Boyd (instructed by Rajesh Alaga, Borough Solicitor) for the Claimant
Stephen Cottle (instructed by the Community Law Partnership, solicitors of Birmingham) for the Defendants
Daniel Stilitz (instructed by the Treasury Solicitor) for the Interested Party
Hearing date 3 rd December 2008
Although listed before me as a Case Management Conference, this matter, as all the parties urged on me, concerns an important case on the application of the effect of the House of Lords recent decision of 30 th July 2008 in Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57, [2008] 3 WLR 636. Indeed Mr Findlay QC, for the claimant authority, described it as a test case.
I am sorry that this judgement is longer than I would have wished, but it has been prepared since the court rose on Wednesday afternoon, to be given at 10.00 am on Friday, so that no delay was caused to the proceedings by awaiting a written judgement after my return to the Northern Circuit on Monday. Inevitably, the time for editing down of citations from authority has not been available to me.
It is sensible if I start by setting out the way in which I will deal with the issues
(a) Subject matter of the claim and defence thereto, and history of the litigation
(b) Orders applied for
(c) The common law and statutory context
(d) The future conduct of the litigation and consequent orders.
A Subject matter of the claim and defence thereto and history of the litigation
The Defendants occupy caravans on plots on a site owned by the Claimant authority (“LBH”). The agreements by which they do so give no security of tenure at common law. The First and Second Defendants have occupied a plot since June 2003, while the Third Defendant has done so since November 2004.
On 13 th October 2006 the First and Second Defendants were served with a notice to quit their plot by 13 th November 2006. An application was made on 12 th October 2006 for a without notice Anti-Social Behaviour Injunction “ASBI”) under sections 153A and 153C of the Housing Act 1996 (as amended) against 7 persons, including these 3 Defendants. The claim sought the exclusion of the Second Defendant from his plot at the site. An injunction was granted against the Defendants on 12 th October 2006, but it did not exclude them from the site, limiting itself to restraining them from causing nuisance or annoyance, or engaging in violence, harassment or threatening behaviour. The application was adjourned on 29 th October 2006, pending the outcome of mediation, but interim injunctions were granted until 12 th April 2007. (The order of 29 th October 2006 was by consent). On 12 th April 2007 they were extended, but an appeal against their extension was allowed on 11 th January 2008. The allegations made in the ASBI proceedings are the same allegations as are made in the schedules attached to the possession claims, as set out below. I note that one of the grounds taken by the Defendants in their successful appeal (although I have not been provided with HH Judge Behar's reasons for allowing the appeal) was that section 153A of the Housing Act 1996 (as amended) does not apply to caravan sites where what is owned by the authority is the plot and not the dwelling.
Proceedings for possession were issued on 9 th March 2007 (although dated 9 th March 2006 in error) and served on 23 rd March 2007. The Third Defendant was also served with a similar notice, and served with concurrent proceedings (also misdated) which were issued and served on the same dates as those relating to the First and Second Defendants.
In the case of the First and Second Defendants, LBH alleged that they were in arrears with their rent to the extent of £ 1,683, had failed to pay electricity charges of £ 573.67 and that “the defendant's (sic) have taken part in a particularly vicious attack on a pregnant female on the site, and such behaviour will not be tolerated.” A schedule attached to the Particulars of Claim alleges that, inter alia;
(a) The Second Defendant had assaulted a named woman (whom I shall refer to as M) on 29 th May 2006 after she had alleged that he had made improper advances to her and her teenage daughter. On the day before a fight involving knives and weapons had taken place between his family and her family
(b) On 20 th June 2006, after a fight between the two families, the Second Defendant kicked the pregnant M as she lay unconscious on the floor;
(c) On 5 th July 2006 the Second Defendant threatened to kill another member of M's family;
(d) The First Defendant had engaged in harassment, and in particular in conjunction with the Second Defendant, harassment of M on 1 st September 2006;
(e) The Defendants' family, and in particular the Second Defendant, had been harassing other residents on occasions in September 2006;
(f) The Second Defendant assaulted the First Defendant on 15 th September 2006;
(g) In September 2006 the Second Defendant had stated that he intended to cut up one member, and stab another member, of M's family;
(h) On 25 th September 2006 the Second Defendant deposited rubbish from a truck near the entrance to the site
(i) On 26 th September 2006 the First Defendant behaved offensively by spitting at children on the site;
(j) On 28 th September 2006 the Second Defendant threatened the postman;
(k) On 29 th September 2006 the First and Second Defendants fought one another.
In the case of the Third Defendant the proceedings allege that he is in arrears, but in a sum of just £ 7.16, which is less than half a day's rent. He is also alleged to owe £ 746.75 for electricity. He is alleged to have engaged in what is described as a campaign of harassment. A schedule attached to the Particulars of Claim alleges that, inter alia;
(a) On 29 th May 2006 he was arrested for taking part in an assault with the Second Defendant against John M with a baseball bat and pickaxe handle (an allegation not made against the Second Defendant)
(b) On 5 th July 2006 he is alleged to have “ been involved in an incident whereby threats were made by (the Second Defendant) towards Michael (M)”
(c) On 1 st August 2006 that he and a member of his family were intimidating an unnamed person on the site;
(d) On 18 th September 2006 he was said to be making further threats to the M family ;
(e) On 22 nd September 2006 it was reported that that he was, with the Second Defendant, threatening members of the M family;
(f) On 26 th September 2006 the Third Defendant behaved offensively by spitting at children on the site.
In both cases the Defendants filed Defences and Counterclaims as follows
(a) The Defendants family's rights under the ECHR were engaged because of the length of time they had lived there;
(b) Acute hardship would be caused by their eviction as they had nowhere to go;
(c) It was for LBH to justify the proposed eviction and, given the terms of Article 8 of the ECHR, the need for conviction must be convincingly established. It was argued that it was for the Court to assess whether the reasons given to justify the intended eviction were sufficient;
(d) Eviction would be disproportionate in the absence of a suitable alternative plot;
(e) In the absence of an opportunity to subject the facts to scrutiny, and challenge it before an independent Tribunal, the common law provision to LBH of an otherwise absolute right to a possession order was incompatible with the Defendants' Article 8 rights;
(f) The Court was under a duty to make an Article 8 enquiry;
(g) All arrears have been paid, and it was unreasonable of LBH to continue to press for eviction.
(h) The alleged incidents of violence, harassment and other disreputable behaviour were denied;
(i) LBH had acted unfairly by failing to put the allegations to the Defendants to see if another remedy could be found short of possession being sought;
(j) The decision to bring the claim was unlawful because the matters complained of had been dealt with by interim injunction. It was argued that the possession claim was being used as a way of avoiding a trial of the injunction application;
(k) The procedure used infringed Article 8 of the ECHR;
(l) LBH had not addressed Article 8 of ECHR;
(m) LBH had failed to consider whether to acquire land for the Defendants to move to, in the context of the duty of LBH to act consistently with its race equality duty under section 71 of the Race Relations Act 1976;
(n) A declaration was sought that the “regulatory framework which results in the Court having no discretion to withhold an order for possession and no jurisdiction to withhold an order even if the allegations are found to have occurred, is incompatible with the Defendants' rights under the ECHR” It is an obvious that a negative has been omitted from that sentence in the pleading.
On 18 th April 2007, the Defendants applied to have the actions for possession transferred to the High Court. They did so on the basis that they were contending that the claim involved an issue on whether the legislation relating to possession proceedings for sites such as...
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