Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) and Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)

A public authority’s claim for possession of a person’s home engages article 8. Domestic property law is presumed to strike a fair and Convention-compatible balance, but that presumption is not absolute.

An occupier must raise a seriously arguable challenge. The controlling majority held that personal circumstances alone provide no freestanding article 8 defence where the governing law is compatible and gives an unqualified right to possession. The available challenges concern incompatibility of the law or the conventional public law invalidity of the authority’s decision.

Lower courts remain bound by domestic precedent despite a later inconsistent Strasbourg decision, save in extreme circumstances. A tenancy granted by a licensee does not bind the freeholder, and any estate later acquired by the grantor remains subject to the terms governing its termination.

These conjoined appeals concerned possession claims by two local authorities. In the Lambeth appeal, occupiers of short-life housing had been granted tenancies by a housing trust. The trust’s headleases were later terminated, and the occupiers claimed continuing tenancies against the freeholder and protection under article 8. The Court of Appeal rejected those claims in [2004] EWCA Civ 926, reported at [2005] QB 352.

In the Leeds appeal, a traveller family occupied a public recreation ground without permission. Possession proceedings began after two days. The Court of Appeal dismissed their appeal in [2005] EWCA Civ 289, reported at [2005] 1 WLR 1825, while considering itself bound by Harrow London Borough Council v Qazi despite a perceived conflict with later Strasbourg authority.

The House considered the scope of article 8 in possession proceedings, the permissible defences, the effect of Strasbourg judgments on domestic precedent, and the occupiers’ private-law status in the Lambeth appeal.

1. Disposition. The House unanimously dismissed both appeals. Lord Bingham, Lord Nicholls and Lord Walker differed from Lord Hope, Lord Scott, Baroness Hale and Lord Brown on the permissible scope of an individual article 8 defence, but that difference did not affect either result.

2. The Lambeth tenancies. Lord Scott gave the leading opinion on the private-law issue, with which all the other members agreed. A tenancy granted by a person holding only a contractual licence was effective between grantor and occupier but did not bind the freeholder. When the housing trust later obtained a lease, the occupiers’ tenancies acquired estate character, but remained derivative of that lease and could not survive its termination in accordance with its pre-existing terms. The occupiers therefore became trespassers against Lambeth.

3. Article 8 and possession. The House accepted that possession proceedings concerning an established home engage article 8 and that an unqualified domestic right to possession is not invariably conclusive. The actual result in Harrow London Borough Council v Qazi [2003] UKHL 43 remained sound, but its reasoning required clarification in light of Connors v United Kingdom (2004) 40 EHRR 189. Courts should presume that domestic law strikes a fair and Convention-compatible balance. The occupier must identify a seriously arguable basis for displacing that presumption.

4. Controlling majority on personal circumstances. Lord Hope held, with express agreement from Lord Scott, Baroness Hale and Lord Brown, that personal circumstances alone create no freestanding article 8 defence where compatible domestic law gives an unqualified right to possession. A seriously arguable challenge may concern the Convention compatibility of the governing law or the validity, on conventional public law grounds, of the authority’s decision to seek possession. Lord Bingham, supported by Lord Nicholls and Lord Walker, would also have permitted a highly exceptional, individual proportionality defence.

5. Procedure. An article 8 or public-law defence may be raised within possession proceedings. The county court should determine matters within its jurisdiction summarily and fairly. It may interpret legislation under section 3 of the Human Rights Act 1998, but a declaration of incompatibility must be sought in the High Court. Inflexible primary legislation must still be enforced where section 6(2) applies.

6. Precedent. Lord Bingham’s reasoning on precedent was accepted by the whole House. A lower court must follow binding domestic authority even where it considers that authority inconsistent with a later Strasbourg judgment. It may express its view and facilitate an appeal. Departure is permissible only in extreme circumstances comparable to the children’s claims considered after X (Minors) v Bedfordshire County Council.

7. Application. The Lambeth occupiers pleaded no sufficient challenge to the governing law or to Lambeth’s decision. In Leeds, two days’ unauthorised occupation created no sufficiently continuous link for the recreation ground to be a home. Even if it had been a home, prompt recovery of public recreational land was plainly justified.

• House of Lords: Both appeals were dismissed unanimously. The Lambeth private-law ruling was affirmed, and both possession orders were upheld, although the House clarified the governing article 8 principles.
• Court of Appeal — Leeds: The appeal was dismissed in [2005] EWCA Civ 289, reported at [2005] 1 WLR 1825. The court considered Harrow London Borough Council v Qazi incompatible with later Strasbourg authority but followed it as binding precedent.
• Court of Appeal — Lambeth: The occupiers’ private-law and article 8 appeals were dismissed in [2004] EWCA Civ 926, reported at [2005] QB 352.
• High Court — Leeds: Following transfer from the county court, His Honour Judge Bush held that binding authority precluded the article 8 defence and ordered possession forthwith.
• County Court — Lambeth: His Honour Judge Roger Cooke rejected the occupiers’ asserted tenancy rights and struck out their alternative article 8 defences.