Bedfordshire County Council v Taylor & Ors

At a permission stage, the court need not resolve the full effect of lengthy appellate reasoning on an earlier authority where the issue can properly be determined at the substantive hearing. A later decision said to reaffirm an earlier Article 8 possession authority may nevertheless raise an arguable question about whether personal circumstances enter the proportionality assessment. Permission may be granted on that ground even where the court gives no encouragement that the appeal will succeed. Abandoned grounds should be formally refused.

This was an application for permission to appeal against an order of His Honour Judge Everall QC in Luton County Court requiring four occupants to give up possession of dwellings on land at St Margaret’s, Streatley. The judge had found them to be trespassers and Bedfordshire County Council to be the freehold owner. Those findings were not challenged.

The proposed appeal originally relied on Article 8 and the hoped-for effect of McCann v The United Kingdom. The defendants accepted that Kay v Lambeth Borough Council [2006] 2 AC 465 prevented the defence. Following Doherty v Birmingham County Council [2008] 3 WLR 636, they argued that the law had changed or that Kay had acquired a material gloss permitting consideration of their personal circumstances. Grounds 1 and 2 were abandoned, leaving ground 3 as the central issue.

Lord Justice Rimer gave the reasons for the court, and Lord Justice Tuckey agreed.

1. Existing position. The lower court had found each appellant to be a trespasser and the Council to be the freehold owner. The majority ratio in Kay v Lambeth Borough Council [2006] 2 AC 465, identified by reference to paragraph 110 of Lord Hope’s speech, was understood to leave no sensible scope for an Article 8 defence. The appellants relied on factual differences, including that the property was not traditional housing stock and that there was no evidence of the Council’s intended use after possession was recovered.
2. Effect of Doherty. Doherty v Birmingham County Council [2008] 3 WLR 636 had not adopted the principle explained in McCann v The United Kingdom and had essentially reaffirmed Kay. The appellants nevertheless argued that Doherty added a material gloss by permitting defendants’ personal circumstances to be considered when assessing the proportionality of a public authority’s decision to recover property. The Council argued that Doherty concerned licensees rather than trespassers and the lawfulness of terminating licences, which had been remitted for trial.
3. Permission decision. A permission application was not the proper occasion to determine the effect of lengthy speeches in Doherty on Kay. Although the Council’s argument might ultimately prove persuasive, the alleged interaction between the authorities raised a sufficiently arguable issue for consideration at the substantive appeal. The court gave no encouragement as to the prospects of success.
4. Order. Permission to appeal was granted on amended ground 3 only. Permission on grounds 1 and 2 was formally refused, those grounds having been abandoned. The existing stay was continued until final disposal of the appeal or further order.

• Court of Appeal (Civil Division). On 16 October 2008, permission to appeal was granted on amended ground 3 only, while grounds 1 and 2 were formally refused. The substantive appeal was not determined.
• Luton County Court. On 1 July 2008, His Honour Judge Everall QC ordered the defendants to give up possession, finding them to be trespassers and Bedfordshire County Council to be the freehold owner.