Michael Grant discusses the recent Court of Appeal decision of Aster Communities v Kerry Chapman (and Ors)  EWCA Civ 660, concerning the attachment of conditions to an award of dispensation from the consultation requirements under S.20 of the Landlord and Tenant Act 1985. Read more >
Under Article 8 of the European Convention on Human Rights, everyone has the right to respect for his private and family life, and there shall be no interference with that right unless it is in accordance with the law and is necessary in a democratic society.
In the context of possession proceedings, the courts have interpreted this as offering a defence to a possession claim if to allow it would be disproportionate in all the circumstances. Following a number of House of Lords and Supreme Court cases, the successful employment of the defence was seriously curtailed by the Court of Appeal in Thurrock BC v. West  EWCA Civ 1435, which emphasised that the threshold for satisfying the ‘proportionality’ test was a high one and will only be met in a small number of cases. Its effect was that the successful use of the defence rapidly dried up.
The recent case of Southend-on-Sea BC v. Armour  EWCA Civ 231 may reignite the debate.
On 31 January 2011 Mr Armour became an introductory tenant of Southend-on-Sea BC. As such, he had little security of tenure. By 31 March 2011, three complaints had been received relating to his behaviour and, following a review, on 7 June 2011 the council began possession proceedings. It was not until 2 March 2012, almost a year after the last allegation, that the matter was tried. On the morning of the trial, Mr Armour was allowed to amend his defence to plead Article 8 ECHR.
Primarily because of the absence of any further incidents, the trial judge held that to order possession would be disproportionate. Cranston J in the High Court dismissed an appeal, as did the Court of Appeal.
There are two important points to note. The first is that an absence of repeated acts may sway a trial judge and lead to a finding that to give possession would be disproportionate. However, since Mr Armour drafted his defence, the Jackson reforms and, in particular, the Mitchell decision have embedded themselves into the courts’ case management psyche. In this new environment, it will be difficult to amend a defence on the morning of trial – 9 months after the claim was issued. As such, it will perhaps be rare that a tenant will have long enough between the allegation that sparked the possession claim (assuming it to be credible) and the hearing of the claim to show that his conduct has changed such that possession order should not be made in a case where the statute gives the court no discretion.
The second point is more important. The Court of Appeal said that it should only interfere with a trial judge’s decision if the decision was not open to him. In deciding whether eviction was necessary in a democratic society, the trial judge was exercising a value judgment rather applying a ‘bright line test’. This is somewhat of a departure from the approach hitherto taken, which has focused on looking at whether the possession order would lead to an exceptional outcome – with the answer tending to be given in the negative, meaning possession was given. Here, largely because of a cessation in the troublesome behaviour and also mental health issues the Court of Appeal held that the finding that possession would be disproportionate was open to the trial judge. As the Court said, other judges may not have reached such a decision but that did not mean that this trial judge had got it wrong.
It is unlikely to lead to a surge of possession proceedings being successfully defended using Article 8. Unless, for one reason or another, there happens to be a long delay between the tenant’s act that prompted the possession claim and the hearing then Armour is unlikely to offer a defendant much assistance. Landlords and their representatives will, once the decision to seek possession is confirmed, clearly want to ensure that there is little to no delay – either in issuing or in getting the court listing.
As for the second point — interfering with a trial judge’s decision – Armour is likely to lead to an appellate court interfering less with the decision of a trial judge. But it will have no affect on the employment of the Article 8 defence at trial. In other words, it may be that Armour results in appellate courts reversing findings of disproportionality less, but that is of little use if the appellate courts are not being tasked with the question in the first place.