On the 18th March 2011 District Judge Brett handed down a reserved Judgment at Bromley County Court in the London Borough of Southwark-v-Michelle Barrett. A possession order had been made against Ms Barrett on the 8th November 2010 following the service of a notice to quit which determined her non-secure tenancy. She had not attended the hearing but issued an application, on the 2nd December 2010, to set aside the order or, in the alternative, stay execution for 3 months. Her argument was essentially that to do otherwise would breach her Article 8 rights as confirmed in Manchester City Council-v-Pinnock  UKSC 43.
By agreement of both parties’ counsel and in the light of the Court of Appeal decision in Hackney Borough Council-v-Findlay  EWCA Civ 8 the judge applied the checklist at CPR 39.3(5) and decided that Ms Barrett had acted promptly after finding out about the possession order and had a good reason for not attending trial (on solicitor’s advice that she had no defence – Pinnock being handed down shortly thereafter), and therefore the only real issues were:
(a) Did she have a reasonable prospect of success at trial if the order were set aside? and/or
(b) Could section 89 of the Housing Act 1980, which in these cases limits the periods for which an order can be postponed, be interpreted (if the possession order were not to be set aside) so as to allow the court to provide her with longer than the 6 weeks provided for in that statutory provision?
The latter argument was conceded by Defence Counsel before Judgment was handed down in the light of the Supreme Court’s decision in Hounslow LBC-v-Powell; Leeds City Council-v-Hall; Birmingham City Council-v-Frisby  UKSC 8 which rejected the argument that section 89 was either incompatible with the Human Rights Act 1998 or could be interpreted in accordance with that Act to allow for longer than 6 weeks.
In rejecting Ms Barrett’s arguments in relation to the first issue, the reasonable prospect of success, District Judge Brett found:
i. It was not disputed that Article 8 was engaged here and there were no factual disputes (it being accepted that she could not remain at the demised premises in the long-term, her argument “simply” being that she needed more time to find alternative accommodation).
ii. Ms Barrett had been through the review procedure provided for by the homelessness provisions of Part VII of the Housing Act 1996 but had not decided to appeal against Southwark’s decision to discharge its homelessness duty following her refusal of alternative accommodation.
iii. The restriction in her right to bid under Southwark’s allocation scheme did not assist her argument as to there being exceptional circumstances. She would be unlikely to have acquired accommodation by this route anyway given her reduced banding following the cessation of the homelessness duty.
iv. The case does not cross the initial threshold of being seriously arguable (see Lord Hope’s judgment in Powell at paragraph 33), the Judge noting with approval Lord Hope’s later remarks at paragraph 35 (where he talked of the seriously arguable threshold being a high one which would only succeed in a small proportion of cases), in particular the finding that “in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order”.
The application to set aside the possession order was therefore dismissed.
This case demonstrates three primary issues:
First, where there are no disputes as to fact the matter can proceed on a submission only basis though sufficient time is required for the Judge’s consideration. In this instance the hearing lasted two hours with further submissions being provided in the light of Powell.
Second, the threshold to get over the “first stage” in an Article 8 proportionality case is high, as is the overall requirement of exceptionality. That is for the defendant to demonstrate.
Third, the landlord does not ordinarily need to specifically plead or demonstrate proportionality in its action, this only being required if raised by the defendant.
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