Newham v Kibata

Where a public authority landlord has an unqualified domestic-law right to possession following valid termination of a tenancy, Article 8 cannot provide a defence to possession proceedings. The county court need not conduct a separate merits or proportionality assessment under Article 8(2). Complaints about unfairness, improper motives or unlawful conduct by the authority should ordinarily be pursued by judicial review, subject to the wholly exceptional circumstances identified in the authorities. Article 6 concerns adjudication of civil rights, not a private-law act such as a tenant’s notice to quit. Article 14 requires an underlying Convention right, an analogous comparator and objective justification for any difference in treatment.

The London Borough of Newham sought possession of a flat occupied by Amrani Kibata after his estranged wife, the sole tenant, served a valid notice to quit. The tenancy ended and Kibata remained without a legal or equitable interest, although the flat was accepted to be his Article 8 home.

The Bow County Court dismissed the possession claim, finding that the Council had acted unfairly and had not justified the interference under Article 8(2). The Council appealed. Kibata’s respondent’s notice raised Articles 6 and 14. Following the House of Lords decision in Qazi [2003] 3 WLR 792, the central issue was whether Convention rights or public-law duties nevertheless prevented an order for possession.

Appeal allowed; cross-appeal dismissed. Mummery LJ gave the leading judgment, with Holman J agreeing.

1. Article 8. The majority decision in Qazi [2003] 3 WLR 792 was determinative. Although the flat was Kibata’s home, he became a trespasser when the sole tenant validly terminated the tenancy. The Council was enforcing its unqualified domestic-law right to immediate possession of its own property. Article 8 did not defeat that right, and the county court was not required to undertake a separate proportionality or justification assessment under Article 8(2).
2. Domestic law and public-law challenge. The Council’s one-tenancy domestic-violence policy was lawful. It was entitled to rely on credible information supplied by the wife and was not required to investigate or await a judicial determination of the allegations before seeking possession. Any challenge based on unfairness, improper motives or procedural impropriety should ordinarily be made by judicial review. No such application had been made, and the allegedly objectionable conduct preceded the notice to quit. The case therefore did not fall within the wholly exceptional post-notice circumstances discussed in Sheffield City Council v Smart [2002] EWCA Civ 04.
3. Articles 6 and 14. The Council’s conduct did not determine Kibata’s civil rights for Article 6 purposes. Determination refers to legal or factual adjudication by a decision-making body, not a tenant’s private-law act terminating a tenancy. Article 14 was unavailable if Article 8 was unavailable. Alternatively, the alleged comparators were either unsupported by evidence or not in an analogous situation, and the difference in treatment between sole and joint tenants had objective and reasonable justification. The structured approach in London Borough of Wandsworth v Michalak [2003] 1 WLR 617 was correctly applied.
4. Orders. An order for possession was made, requiring possession by 16 January 2004. Kibata was ordered to pay the costs below and on appeal. Permission to appeal to the House of Lords was refused, subject to a stay pending any application for permission.

• Court of Appeal (Civil Division) — The appeal was allowed and the respondent’s cross-appeal on Articles 6 and 14 was dismissed: [2003] EWCA Civ 1785.
• Bow County Court — Deputy District Judge Backhouse dismissed the Council’s possession claim on 11 December 2002, holding that the interference with Kibata’s Article 8 rights had not been justified.