On Wednesday 3 November 2010, the Supreme Court will hand down judgment in the case of Manchester City Council-v-Pinnock (UKSC 2009/0180), which concerns the availability of gateway (a) and gateway (b) defences in claims for possession of property held under demoted tenancies. The Court of Appeal decided last year that the County Court was restricted in such cases – which focus on anti-social behaviour committed by tenants or their households and visitors – to considering whether the landlord had complied with the procedures prescribed by sections 143E and 143F of the Housing Act 1996 and could not go on to consider any public law defence to the claim or criticism based on assertions that the occupier's Convention Rights had been breached (i.e. the gateway defences).
"In one sense this appeal is of limited importance and a precursor to the wider question of public law and Human Rights Act defences in otherwise mandatory possession claims which the Supreme Court is due to consider later in the year. Over the last few years local authority and registered provider landlords (such as housing associations) have faced an increasing number of challenges to their mandatory claims for possession, with defences claiming that the action is Wednesbury unreasonable, disproportionate and/or in contravention of the occupier's Convention Rights. Such defences offer important protection to occupiers in exceptional cases, though the evidence is that they are mis-used and over-used to the considerable and irrecoverable expense of the landlords.
The Pinnock decision will hopefully add some clarity to the jurisprudence dealing with such defences (especially of course in demoted tenancy and introductory tenancy possession claims), and in particular could impact upon their proliferation in County Courts across England and Wales, albeit at the potential expense of increased judicial review claims. The Supreme Court will be looking at not only the appropriate venue for such "defences" – whether it be the County Court or Administrative Court by way of judicial review – but also the public law "test" and its overlap with the proportionality concept introduced by Article 8."
Dean Underwood, Barrister at Hardwicke chambers (telephone 020 7242 2523, firstname.lastname@example.org ) adds:
“In the recent and much anticipated judgment in Kay v United Kingdom (37341/06) Times October 18 2010, the European Court of Human Rights welcomed what it perceived to be the “increasing tendency of domestic courts to develop and expand conventional judicial review grounds in the light of Article 8 [ECHR].” This was a judicial nod in the direction of what the Court considered to be the propensity of UK domestic courts to recognise proportionality as a ground of review. There appears to have been little in domestic jurisprudence to warrant the Court’s confidence however. Although Doherty suggests that a gateway (b) review is not strictly confined to traditional Wednesbury grounds and that “the considerations that can be brought into account are wider”, the reasoning of the decision suggests that the test is in fact much narrower than the type of proportionality review to which the ECHR is accustomed. And the Court of Appeal has recently confirmed in Mullen that “a gateway (b) challenge to a decision by a local authority to seek possession does not permit a proportionality review under art.8(2) of the Convention”. Clearly, something has been lost in translation. The Supreme Court will have an opportunity in Pinnock to consider the issue further and, it is hoped, will shed some light on whether the confidence expressed by the ECHR was well placed.”
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