Family Housing Association v Donnellan & Ors

A prior Court of Appeal decision deciding a human-rights challenge to adverse possession legislation adversely is binding when permission to appeal is considered. The proposed appeal therefore has no real prospect of success. Where the related issue is awaiting consideration by the House of Lords, the court may nevertheless grant permission and immediately dismiss the appeal, allowing the applicant to petition for linked consideration. In an unusual procedural case, no order as to costs may be appropriate.

The Family Housing Association sought possession of premises occupied by squatters. The defendants pleaded that its title had been extinguished by 12 years’ adverse possession under the Limitation Act 1980. The Association amended its pleadings to allege that this consequence breached Article 6 and Article 1 of the First Protocol to the European Convention on Human Rights, and alternatively justified a declaration of incompatibility under the Human Rights Act 1998.

The county court permitted the amendments. Park J allowed the defendants’ appeal, relying on JA Pye (Oxford) Ltd v Graham [2001] 2 WLR 1293 and holding the human-rights allegations unarguable. The Association sought permission to appeal. The central issue was whether the earlier Court of Appeal decision was binding and whether permission should nevertheless be granted while related issues were pending before the House of Lords.

1. Permission and disposition. Permission to appeal was granted, but the appeal was immediately dismissed. This was considered the appropriate and cheapest course because it preserved the Association’s opportunity to petition the House of Lords and seek consideration alongside Pye v Graham.
2. Binding authority and prospects. The human-rights point had been decided adversely to the Association in JA Pye (Oxford) Ltd v Graham [2001] 2 WLR 1293. Aldous LJ treated that conclusion as binding on the Court of Appeal. The proposed appeal therefore had no real prospect of success. Arguments that the earlier observations were obiter dicta, per incuriam, or made without all the submissions the Association wished to advance did not justify treating the conclusion as non-binding. Aldous LJ was not satisfied that the passages relied upon were properly interpreted as obiter.
3. House of Lords procedure. The human-rights issue was to be raised in the House of Lords in Pye v Graham, although the factual basis there differed because retrospectivity of the Human Rights Act 1998 arose in that case and did not arise here. The Court of Appeal did not itself grant permission to appeal to the House of Lords. That issue was left to a petition explaining why the cases should be heard together.
4. Costs. Given the unusual procedural circumstances, there was no order as to costs.

• Court of Appeal (Civil Division). Permission to appeal was granted, the appeal was dismissed, and there was no order as to costs: [2001] EWCA Civ 1840.
• High Court, Chancery Division. Park J allowed the defendants’ appeal on 12 July 2001, holding that the proposed human-rights allegations were unarguable and that the amendments were not allowable.
• Central London County Court. His Honour Judge Knight had permitted the Housing Association to amend its pleadings to raise the human-rights issues.