Price & Ors v Leeds City Council

A public authority’s unqualified domestic-law right to possession does not automatically prevent Article 8 from being engaged, nor does it necessarily establish that possession is justified under Article 8(2). The statutory possession regime must be open to scrutiny, including whether the authority has properly weighed the effect of its decision on the individual and whether that decision can be challenged in court.

However, the Court of Appeal cannot depart from a binding House of Lords decision merely because a later Strasbourg decision is incompatible with it. The proper course is to follow the House of Lords authority while taking the Strasbourg decision into account by permitting an appeal to the House of Lords.

Leeds City Council, the freehold owner of land occupied without permission by gypsies, brought possession proceedings against the appellants. The appellants relied solely on Article 8 of the Convention, contending that possession would unlawfully interfere with their home rights.

The deputy High Court judge held that Harrow London Borough Council v Qazi, [2003] UKHL 43; [2004] AC 983, required the defence to fail. The appellants argued that Qazi was incompatible with Connors v United Kingdom, which had found an Article 8 violation where a statutory regime permitted summary eviction from a local-authority gypsy site without examination of the justification for eviction. The central issues were whether the two decisions were incompatible and, if so, whether this court should follow the House of Lords or the Strasbourg Court.

1. Appeal dismissed. The court was bound by Harrow London Borough Council v Qazi, [2003] UKHL 43; [2004] AC 983, and could not itself depart from that decision.
2. Connors v United Kingdom was not founded merely on a concession that Article 8 was engaged. The Strasbourg Court treated that concession as properly made and held that the statutory framework lacked sufficient procedural protection. Its reasoning was incompatible with the proposition in the majority opinions in Qazi that an unqualified proprietary right to possession could never interfere with Article 8 rights or would always be justified under Article 8(2).
3. The reasoning in Connors was not confined to gypsy cases. Its general emphasis on procedural safeguards meant that statutory regimes governing possession had to be open to scrutiny. A regime might itself supply the Article 8(2) balance, but it might also need to require a public authority to weigh the impact on the individual and allow the conclusion to be challenged in court.
4. The court rejected the submission that Connors represented a later development which entitled an inferior court to depart from Qazi. Less than a year separated the decisions, and Connors did not purport to make new law. The court distinguished the earlier departure in D v East Berkshire NHS Trust, [2003] EWCA Civ 1151; [2004] QB 558, which had resulted from the changed legal context created by the Human Rights Act 1998.
5. The only permissible course was to follow Qazi while taking Connors into account by granting permission, if sought and not successfully opposed, to appeal to the House of Lords. The court therefore did not decide whether Article 8 could provide a defence to a proprietary possession claim by trespassing gypsies, whether judicial review was required, or whether the facts disclosed an arguable defence.

• Court of Appeal (Civil Division): Appeal from the decision of His Honour Judge Bush, sitting as a deputy High Court judge, following transfer of the possession proceedings from Leeds County Court. The court dismissed the appeal and held itself bound by Harrow London Borough Council v Qazi, [2003] UKHL 43; [2004] AC 983.
• High Court (Queen’s Bench Division): On 25 October 2004, Judge Bush held that the Article 8 defence failed because Qazi was binding and was not incompatible with Connors v United Kingdom.