Austin v Southwark London Borough Council

A procedural rule permitting representation of a deceased person’s estate applies only where the deceased’s claim survives death. A right to seek a postponement of a possession order and revival of a tenancy does not survive death where binding authority provides otherwise. Article 1 of Protocol 1 protects existing possessions recognised by domestic law; it does not create substantive property rights or preserve a claim which domestic law has extinguished. Where the proposed claim is bound to fail because of binding precedent, the court may refuse to appoint a representative under CPR Part 19.8 in accordance with the overriding objective.

Alan Austin became a tolerated trespasser after a suspended possession order ended his council tenancy. He died before applying for an order under section 85(2) of the Housing Act 1985 to revive the tenancy. His brother, Barry Austin, sought appointment under CPR Part 19.8 so that the estate could make that application and thereby enable a statutory succession claim under section 87(b).

The Lambeth County Court refused the application, relying on London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857, and permission to appeal was subsequently granted. The appeal concerned whether Alan Austin had an interest in a claim within Part 19.8 and whether the court should exercise its discretion to make an order, having regard to Article 1 of Protocol 1 and the Human Rights Act 1998.

1. Appeal dismissed. The right to apply for a Lazarus order under section 85(2) of the Housing Act 1985 was an interest in a claim for the purposes of CPR Part 19.8. The rule was therefore capable, in principle, of applying to Alan Austin’s estate.
2. That was not sufficient. Part 19.8 is predicated on the relevant claim surviving death and being capable of continuation. Under London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857, the right to apply for postponement and revival of the tenancy ceased on Alan Austin’s death. No surviving claim remained in respect of which an order under Part 19.8 could be made.
3. Article 1 of Protocol 1 was not engaged. The rule in Knightly did not deprive a deceased person of a possession. Article 1 protects possessions from arbitrary interference by public authorities but does not confer substantive property rights which do not exist under domestic law. The reasoning of the Court of Appeal in Kay v Lambeth Borough Council [2005] QB 352 applied. The asserted expectation of succession was only a hope that an old property right might survive, not a possession.
4. The European authorities relied upon did not alter that conclusion. Stretch v United Kingdom was materially different because it concerned a legitimate expectation attached to existing leasehold property rights. Tettorini v Russia recognised the autonomous and potentially wide meaning of possessions, but did not support treating this extinguished procedural right as a possession.
5. Even if Part 19.8 were capable of operating in the abstract, its permissive language conferred a discretion, not an absolute right to appointment. The overriding objective supported refusing an order where the proposed claim was bound to fail under binding precedent. The court was required to apply Knightly; any legislative gap affecting tolerated trespassers was a matter for Parliament.

• Lambeth County Court: His Honour Judge Welchman refused the application under CPR Part 19.8, concluding that the proposed claim was barred by London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857.
• High Court: Blake J refused permission to appeal. Mackay J later granted permission at an oral renewed hearing.
• High Court (Queen’s Bench Division): The appeal was dismissed. The refusal to appoint a representative was upheld.