Smith (on behalf of the Gipsy Council) v Evans

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay
Judgment Date18 April 2007
Neutral Citation[2007] EWCA Civ 401
Docket NumberCase No: B2/2006/2434
Date18 April 2007

[2007] EWCA Civ 401





Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Maurice Kay

Case No: B2/2006/2434

Smith (On Behalf of the Gypsy Council)
Evans and ORS

MR J LUBA QC and MR P THOMPSON (instructed by The Community Law Partnership) appeared on behalf of the Appellant.


Lord Justice Maurice Kay

This matter before me today is a renewed application for permission to appeal, permission having been refused on the papers ultimately by Tuckey LJ following an earlier adjournment by Neuberger LJ, as he then was. The reason for that adjournment was that this case is not wholly dissimilar to the case of Doherty v Birmingham City Council [2006] EWCA Civ 1739 and it was considered possible, at the time that Neuberger LJ was considering this case on the papers, that the issues might be resolved by the judgment in Doherty when it was eventually handed down.


The underlying questions relate to the extent to which Article 8 of the ECHR may avail a person such as this applicant, Mrs Buckland. She was in lawful occupation of a site within a gypsy caravan site, provided originally by a local authority, but managed by the Gypsy Council. Eventually she was given notice of termination of her licence, apparently because of the misbehaviour of her son. That licence came to an end and Mrs Buckland remained on the site without any security of tenure beyond on the four weeks' notice period that is required by statute.


The issue sought to be raised is the extent to which a person whose lawful rights have been terminated by reference to domestic contract or property law may avail herself of Article 8 so as to resist an order for possession. This question has caused immense difficulty, notwithstanding the fact that in Doherty it was understandably described as a fairly mundane question.


Initially, the House of Lords in the case of Qazi [2004] 1 App Cases 983 concluded that Article 8 did not avail a person in the position of the applicant and that domestic contractual and property rights were determinative of the situation. However, in Connors v The United Kingdom [2005] 40 EHRR 9, the European Court of Human Rights took a different view.


This led to further consideration of some aspects of the law in the cases of Kay and Price which were decided together in the House of Lords by a judicial committee of seven of their Lordships and is not reported in [2006] 2 App Cases 465. Their Lordships divided by four to three against the interest of the person seeking to resist the orders for possession. That case then led to the decision of this court in Doherty, which on the face of it appears to determine the first point sought to be advanced by Mr Luba QC in a manner contrary to his submission. However, not only Mr Doherty but also the Secretary of State for Communities and Local Governments, who was an interested party before this court in Doherty, are in the process of petitioning the House of Lords with a view to obtaining leave to appeal.


The present case is, on Mr Luba's submission, closer to the case of Connors than to any of the other recent cases, in that it arose out of an allegation of anti-social behaviour by a member of the household. Of the other cases, not all are concerned with gypsies and not all relate to anti-social behaviour.


Indeed, on Mr Luba's submission, that is the distinguishing feature between the present case and Doherty. Mr Luba seeks the permission of this court to proceed to a substantive appeal by reference to a number of grounds. The first, which he numbers Ground 2, raises the Doherty point, in the sense that it seeks to question whether this court correctly categorised the context in Doherty as a statutory one. Mr Luba of course appreciates that this court is bound by the decision of Doherty. He...

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10 cases
  • Donegan v Dublin City Council
    • Ireland
    • Supreme Court
    • 27 February 2012
    ...Borough Council [2003] UKHL 5, [2003] 2 A.C. 430; [2002] 3 W.L.R. 338, [2003] 1 All E.R. 731. Smith v. Evans [2007] EWCA Civ. 1318, [2008] 1 W.L.R. 661; [2008] L.G.R. 71. The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642; [1987] I.L.R.M. 202. State (Kathleen Litzouw) v. Du......
  • Donegan v Dublin City Council and Others
    • Ireland
    • Supreme Court
    • 27 February 2012
    ...& ORS 2006 2 AC 465 2006 2 WLR 570 2006 4 AER 128 DOHERTY v BIRMINGHAM CITY COUNCIL 2007 HLR 32 2006 EWCA CIV 1739 SMITH v EVANS & ORS 2008 1 WLR 661 2008 3 FCR 591 2008 HRLR 18 2007 EWCA CIV 1318 LEONARD v DUBLIN CITY COUNCIL & ORS UNREP DUNNE 31.3.2008 2008/35/7594 2008 IEHC 79 EUROPEAN C......
  • Salford City Council & others v Mullen & others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 30 March 2010
    ...was acting in a manner in which no reasonable authority could have acted …”; see his judgment in Smith v. Evans [2007] EWCA Civ 1318 [2008] 1 WLR 661. Dyson LJ also held at [44] in that case in, we emphasise, the context of a quite different scheme that: “Since the amendment to the 1968 Act......
  • London Borough of Brent v Corcoran
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 July 2010
    ...assert that the licensees' Art. 8 rights were affected at the stage of service of the notice to terminate the licence, see Smith v Evans [2008] 1 WLR 661 at [62]: “It is the act of eviction, rather than the act of making a possession order, which interferes with a person's right to respect ......
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