Public law only available as a defence to possession with a "seriously arguable" case


10 March, 2009

Traveller sites have been particularly difficult for local authorities and housing organisations to deal with. In March 2009, the Court of Appeal heard the case of Margaret Doran v Liverpool City Council and the Secretary of State for Communities and Local Government [2009] EWCA Civ 146 and considered whether a public law defence existed in the circumstances of the case and if the possession order previously granted to the Council was reasonable.

The Facts

Doran (D), an Irish traveller, and her daughter had been provided with licences for two pitches at a site on Oil Street in Liverpool in March 2005. Prior to occupying their pitches, discussions took place between D and the site management with regards to what needed to be known about living on the site. From an early stage of taking up residence, there were difficulties between D, her family and neighbours, which resulted in numerous cross-allegations. On one occasion, D and her family moved two caravans onto the site when they should have sought permission to do so. When asked about the reasoning for the caravans, the site management were informed that they were for storage purposes, but it later transpired that they were housing French individuals who were working for D's husband.

At the initial trial, the Council contended that the licence agreement had been validly determined by the notice to quit and that because on the authorities D had no public law defence, they were entitled to summary judgment. Although D advanced such a defence, the judge did indeed grant summary judgment to the Council. He did not consider whether, on the evidence before him, there was a valid argument that the decision to issue a notice to quit and seek possession was a matter of public law. He also stayed the possession order pending the appeal and therefore did not reach the stage of considering whether there should be a statutory suspension.

The Appeal

For the appeal, D submitted that the summary judgment should be set aside and that the matter should be remitted to the county court for the judge to determine the validity of the defence after resolving any relevant disputed issues of fact; this was said to be necessary because the decision to issue a notice to quit had been prompted by complaints over D and her family's behaviour and she had not been given the opportunity to refute these claims.

The Court of Appeal held that:

  • If a licensee wished to advance public law grounds as a defence, they had to show a seriously arguable case that the local authority's decision to recover possession was one which no reasonable person could consider it justifiable.
  • On the factual history of D's case, the submission that no reasonable local authority would have served a notice to quit was hopelessly unarguable. The Court considered that the Council had cause to believe that there had been repeated breaches of the licence and incidents of anti social behaviour of D and her family. If the decision to serve a notice was reasonable on the facts and materials known to the Council at the time of making the decision, it could not be invalidated by a later reconsideration of the situation; no decision could be made apart from on the facts known to the Council at the time.

The court was, as a consequence, of the opinion that it also could only make a judgment on the reasonableness of the Council's decision on the facts as they appeared, or should have appeared, at the time of making the decision. Therefore, D's appeal was dismissed.


This case has highlighted the need for aggrieved parties to have reasonably arguable points in relation to public law in order to bring appeals. It has shown that using such arguments without a real consideration of the likelihood of success will be given short shrift by the courts.

For landlords, it is advisable to bear in mind the reasoning of the Court of Appeal in this instance. If any decision made can be deemed as reasonable on the facts and circumstances of the case known at the time the decision was made, then the courts will not seek to intervene in this process.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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