European Court provides judgment on defences to possession proceedings


22 October, 2010

In a recent decision the European Court of Human Rights (which sits in Strasbourg, France) has given its view on the latest developments to the law in England and Wales on possession proceedings for residential property.

The decision in Kay v United Kingdom offers an analysis of the present law on how and when defences can be made to possession proceedings. As such, it should be noted by those involved in the social housing sector.

The Facts

It is important to firstly bear in mind that the European Court was considering the law prior to the decision of the House of Lords in Birmingham City Council v Doherty [2008] UKHL 57, as opposed to afterwards.

In domestic proceedings, the case title was Lambeth LBC v Kay [2006] UKHL 10. The local authority (L) had owned a number of properties which were due to have renovation work done to them, but had insufficient capital to do this. Instead an agreement was reached whereby a housing trust would make the properties available for homeless people to live in and provide them with licences, on the understanding that L would owe no duty towards them.

In 1986 L and the trust reached an agreement in which L granted a licence to the trust of all the properties. This agreement was replaced in 1995 by a new contract with leases of the properties and the inclusion of break clauses allowing for the termination of the arrangement by either party through written notice.

Following case law which held that the licences provided by the trust were in fact tenancies, L sought to make use of the break clause and sought possession of the properties on the basis that, upon the lease being terminated, the residents were trespassers. One of the residents (K) argued that even if they were deemed to be trespassers, they were still entitled to defend the legal action by reference to their rights under Article 8 of the European Convention on Human Rights; Article 8(1) provides that everyone has the right to respect for their home and Article 8(2) states that there can be no interference with this right by a public authority except in accordance with the law and so far as is necessary in a democratic society.

K's defence was struck out in the county court and subsequent appeals to the Court of Appeal and the House of Lords were dismissed. An application was then made by K to the European Court on the basis that there had been a violation of rights under Article 8 due to a court not examining the proportionality of the interference upon the residents.

The European Court's Decision

The question which had to be considered by the European Court was whether the interference suffered by K was necessary in a democratic society as required by Article 8: it had been conceded by the UK government that the properties in question were the residents' homes and that the decision to seek an order for possession amounted to an interference with their right to respect for the home.

It was noted by the court that there was a difference in approach between the majority verdict in Kay and the dissenting minority judgment on the issue of so-called 'Gateway (b)' defences. The majority held that if the defendant in a case had a seriously arguable point that the decision to seek possession of the property was an improper exercise of their powers, the county court should permit it to be raised via a defence. The minority position was that this faculty should have a wider interpretation and that defences could be raised where, after regard had been had for the defendant's personal circumstances, it could be argued that no possession order should be granted on Convention grounds.

Although the European Court acknowledged the progression of the law on this area and the increase in the potential usage of judicial review proceedings, it was said that at the time when the English courts had reached their verdicts in Kay, there was no distinction between the previously mentioned approaches and that K had not been able to benefit from the increased flexibility in 'Gateway (b)' defences being permitted.

At the time when K's arguments had been made, it was not possible to challenge L's decision on the grounds of proportionality due to personal circumstances. Therefore, the protection offered by Article 8 had not been afforded to K as the properties had been taken from them without the decision being scrutinised by an independent tribunal (i.e. a court), which meant there had been a breach of Article 8.

The European Court said that each applicant should receive 2,000 by way of reparation for "feelings of frustration and injustice".


The decision in this case is worthy of note by social landlords. What has been made clear by the European Court is that it is expected that, as a general rule, individuals can forward arguments to a court (in the form of a defence) that the decision to seek possession of a property infringes their human rights and should be balanced against the decision accordingly.

In the context of domestic law, it is understood that the parties in Manchester City Council v Pinnock, which is presently in the Supreme Court, were invited to submit written statements on what effect the decision in Kay would have upon their case. There are also three other cases believed to be due to be heard by the Supreme Court in the coming months which concern similar issues to those in Kay. The interpretation and assessment of the domestic courts on this decision is awaited expectantly. Whether this case spells the end of the long running dispute between domestic and European judges on how to deal with possession proceedings remains to be seen.

For more information and assistance on these issues, please contact our Housing department on 01772 220200 or email Stuart Penswick.


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