Austin v Southwark London Borough Council

A right to apply for a postponement order under section 85(2) of the Housing Act 1985 does not survive the tenant’s death where binding authority provides that the right ends on death. CPR 1998, Part 19.8 presupposes a claim which survives death and can be continued for the estate. It cannot be used to revive a claim that has ceased to exist.

Article 1 of Protocol 1 protects possessions recognised by domestic law but does not create substantive property rights. A hope that a deceased tenant’s former right might be revived is not, without more, a possession. A court should also refuse its Part 19.8 discretion where the proposed claim is bound to fail under binding precedent.

Alan Austin became a tolerated trespasser after a suspended possession order ended his council tenancy in 1987. He died in 2005. His brother, Barry Austin, later sought succession to the tenancy and applied to be appointed to represent the estate so that an application could be made for a postponement order reviving the tenancy.

The county court refused the procedural application, relying on London Borough of Brent v Knightly [1997] 29 HLR 857, which held that the right to seek such an order was not inheritable. Permission to appeal was granted on the basis that the Human Rights Convention issues had not been fully addressed. The central questions were whether Alan Austin had an interest in a claim within CPR Part 19.8 and whether the court should exercise its discretion to make an order.

1. Appeal dismissed. The right to apply for a postponement order under section 85(2) of the Housing Act 1985 was a claim in which Alan Austin had an interest for the purposes of CPR Part 19.8. The rule should receive a broad construction and was not limited to cases where the deceased had been a claimant or counterclaimant.
2. That conclusion did not assist the appellant because Part 19.8 presupposed that the relevant claim survived death and could be continued for the estate. Under London Borough of Brent v Knightly [1997] 29 HLR 857, the right to apply for a postponement order ceased on Alan Austin’s death. There was therefore no surviving claim in respect of which an order could be made.
3. Article 1 of Protocol 1 did not alter that conclusion. Following the reasoning in Kay v Lambeth London Borough Council [2005] QB 352, the provision protected possessions from arbitrary interference but did not create substantive rights in property. Domestic law defined the relevant possession. After death, Alan Austin’s estate had no right to possession capable of being inherited.
4. The European authorities relied upon did not assist. Stretch v United Kingdom was concerned with a legitimate expectation attached to existing contractual property rights, whereas the appellant had only a hope that an old and unusable right might survive death. Tettorini v Russia did not support treating that hope as a possession.
5. Even if Part 19.8 were capable of applying in principle, its permissive wording conferred a discretion. The overriding objective supported refusing an order where the proposed claim was bound to fail. Under Kay v Lambeth London Borough Council [2006] 2 AC 465, lower courts had to apply binding precedent while expressing Convention concerns and giving permission for an appeal where appropriate. Knightly was not inconsistent with Strasbourg authority, and the county court judge had not erred in refusing to exercise the discretion.

• High Court (Queen’s Bench Division): The appeal from the county court’s refusal to appoint a representative under CPR Part 19.8 was dismissed. The court upheld the conclusion that the proposed claim was incapable of surviving death and, alternatively, that the discretion should not be exercised because the claim was bound to fail.