Kay and others v Lambeth London Borough Council (and Leeds City Council v Price)

This appeal concerned the scope of the article 8 right to respect for the home (ECHR) and its interaction with possession claims brought by public authorities under domestic property law and the Human Rights Act 1998. The House held that article 8 is engaged where a person occupies premises as his home, but that compliance with domestic property law is a necessary but not sufficient condition to justify eviction under article 8(2). A defendant in possession proceedings brought by a public authority may raise an article 8 defence in those proceedings under section 7(1)(b) of the Human Rights Act 1998, but to succeed must show a highly exceptional, seriously arguable case (for example that domestic law is Convention-incompatible or that the authority's action is unlawful under section 6). County court judges should generally proceed on the assumption that domestic law strikes a fair balance and may summarily dismiss defences that are not seriously arguable. On the facts, the House concluded (i) the Lambeth appellants had no continuing domestic law right to occupy after termination of the headleases and their article 8 defences were not sufficiently pleaded, and (ii) the Leeds appellants had not established their short occupation was their "home" and in any event eviction was proportionate; both appeals were dismissed.

The appellants in the joined appeals sought to resist possession claims brought by two local authorities by relying on article 8 of the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998. In the Lambeth appeals occupiers who had originally been placed in council-owned "short-life" housing by a housing trust relied on arguments about tenancy status and on article 8 after the council terminated headleases to the trust. In the Leeds appeal a travelling family who had camped briefly on a council recreation ground sought to resist a possession claim and alleged systemic failures in the council's provision for travellers. Both matters had passed through county court and Court of Appeal stages ([2004] EWCA Civ 926 and [2005] EWCA Civ 289) before reaching the House.

Nature of relief sought: a defence to possession (including declarations of tenancy in the Lambeth cases) and dismissal of the local authorities' possession claims.

Issues framed:

• whether the premises in question were the occupiers' "home" for article 8 purposes;
• whether eviction constituted an interference with article 8;
• whether, and in what forum, an occupier may raise an article 8 defence to possession proceedings brought by a public authority;
• how domestic precedent and Strasbourg jurisprudence (notably Connors v United Kingdom and Blecic v Croatia) should affect domestic courts' treatment of such defences;
• domestic property law issues on the effect of termination of headleases and the status of so-called "Bruton" tenancies.

Reasoning and disposition: the House analysed the Strasbourg authorities and concluded that, while article 8 applies where premises are a person's home, compliance with domestic property law alone does not automatically satisfy article 8(2). Domestic courts, however, should assume domestic law strikes a fair balance and may summarily dismiss defences that are not "seriously arguable". Where a seriously arguable Convention challenge exists (for example that primary legislation is incompatible or that a public authority's act is unlawful under section 6), the county court is generally the appropriate forum to consider it, subject to the limits of its jurisdiction (and to possible referral to the High Court for section 3/4 issues). Applying these principles, the House held that the Lambeth appellants had no domestic-law right to remain after the headleases were terminated and that the Leeds appellants had not established a home or any exceptional Convention case; both appeals were dismissed. The House emphasised the rarity of successful article 8 defences to possession and gave practical guidance on summary disposal and the threshold of "seriously arguable".

Appeals dismissed. The House held that article 8 is engaged where premises are a person's home but that compliance with domestic property law is a necessary, not sufficient, justification under article 8(2). Defendants in possession proceedings by public authorities may raise article 8 defences in those proceedings under section 7(1)(b) HRA 1998, but such defences will succeed only in highly exceptional, seriously arguable cases; on the facts here no such defence was established and the appellants' challenges failed.

County court proceedings and High Court consideration of preliminary issues. Lambeth appeals: appealed to the Court of Appeal ([2004] EWCA Civ 926, reported [2005] QB 352) which upheld the striking out of defences. Leeds appeal: High Court (preliminary issue), then Court of Appeal ([2005] EWCA Civ 289, reported [2005] 1 WLR 1825) which considered compatibility with Strasbourg jurisprudence and granted leave to appeal to the House. House of Lords decision: [2006] UKHL 10.