Secretary of State for Defence v Helen Nicholas
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burton |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2945 (Ch) |
| Court | Chancery Division |
| Date | 31 July 2013 |
| Docket Number | Claim No. HC12D01728 & HC12B02739 |
[2013] EWHC 2945 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Burton
Claim No. HC12D01728 & HC12B02739
Mr Jonathan Davey (instructed by the Treasury Solicitor) for the ClaimantsMr Toby Vanhegan (instructed by Arkwright Solicitors and Luton Law Centre) for the Defendants
Approved Judgment
Wednesday, 31 July 2013
The hearing before me was of two possession actions, one which started in the Luton County Court ("Blake") and one in the Watford County Court ("Nicholas"), transferred to be heard together in the High Court because of the similarity of the issues and the availability if necessary of the powers of a High Court Judge under the Human Rights Act 1998 (" HRA").
Both are claims brought by Government Departments, the Secretary of State for Transport ("DfT") in the case of Blake and the Secretary of State for Defence (" MOD") in the case of Nicholas, for possession of premises. Mrs Blake was the tenant of premises in Luton (50 Seabrook) which were let out temporarily once they had been acquired by the MOD because of a proposed road widening scheme, and Mrs Nicholas's husband, Squadron Leader Nicholas (whom I shall call "H") was the licensee of premises in Bushey Heath (4 Thorn Avenue) which were and are owned by the MOD as one of their many homes for servicemen or women and their families ("Service Family Accommodation" or SFA) when posted locally, and Mrs Nicholas has remained in the premises after H had left, and they have subsequently divorced.
In respect of both premises the Claimants' case is (and with regard to Blake it is admitted) that the tenancy or licence has been determined and that they are entitled to possession. As Crown properties, they are not subject to statutory protection under either of the two relevant systems, the Housing Act 1985 ("the 1985 Act") which governs and regulates a secure tenancy (and by s.79 also governs licences) and the Housing Act 1988 ("the 1988 Act") which governs and regulates assured tenancies, including assured shorthold tenancies (s.19A ff):
i) By s.79 and s.80 of the 1985 Act the only landlords covered are listed and the Government is not listed.
ii) By s.1 and Schedule 1, paragraph 11 of the 1988 Act "Crown tenancies" are excluded namely:
" 11(1) A tenancy under which the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department".
Mrs Blake's tenancy was accordingly a common law tenancy and Mrs Nicholas a common law licence (or tenancy, as Mr Vanhegan for Mrs Nicholas contends).
Consequently Mrs Blake has no protection upon the termination of her tenancy (save for the right not to be removed without a court order under the Protection from Eviction Act 1977). Mrs Nicholas, upon the basis that H's licence (or tenancy) has been terminated, and H having vacated the premises, has no protection, notwithstanding the provisions of s.30 of the Family Law Act 1996 ("FLA") which would, if there were statutory protection, treat her occupation as H's.
The Blake proceedings were begun in the Luton County Court on 12 March 2010, seeking possession and arrears of rent. The claim for rent arrears and a cross-claim in respect of alleged breaches of repairing covenant were compromised in July or August 2010, and the claim for possession (and for continuing mesne profits) was transferred to the High Court, after amendment of the Counterclaim to include a claim under the HRA, on 23 March 2012, and to the Chancery Division to be heard together with Nicholas on 30 May 2012. The Nicholas proceedings were commenced in the Watford County Court on 9 March 2009 for possession and arrears. Possession was ordered on 3 August 2009, but such order was set aside on 2 February 2011 and after similar amendment by way of counterclaim the Nicholas case was transferred to the Chancery Division on 3 April 2012.
It is common ground that, although neither of the two Claimants have any general housing responsibilities, they are subject to the provisions of Article 8, and the public law responsibility to consider the appropriateness and proportionality of their acts prior to obtaining possession of premises. Article 8 does not give an unqualified right to an occupier to remain in possession of a home, be it owned, tenanted or licensed. Article 8 reads as follows:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
There has been recent guidance in the Supreme Court, addressing the role of Article 8 where a tenancy has expired. Lord Neuberger said at paragraph 45 of his speech as follows, of which the most relevant passage is at 45(d), where he spoke of the application of Article 8 proportionality only arising in exceptional cases:
"… it is clear that the following propositions are now well established in the jurisprudence of the European Court:
(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end: McCann v UK 47 EHRR 913, para 50; Cosic v Croatia 52 EHRR 4098, para 22; Zehentner v Austria 52 EHRR 739, para 59; Paulic v Croatia(App no 3572/06), para 43, andKay v UK 2011 HLR 13, paras 72–3.
(b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues: Connors v UK 40 EHRR 189, para 92; McCann v UK, para 53; Kay v UK, paras 73–4.
(c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with: Zehentner v Austria, para 54.
(d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains — for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.
Although it cannot be described as a point of principle, it seems that the European Court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain."
He continues at paragraph 52, again concluding that an order for possession would be proportionate in " virtually every case", as follows:
"52…. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.
53. In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority's aim in wanting possession should be a 'given', which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers' personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham's comment in Kay v Lambeth [2006] 2 AC 465 , 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly...
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