Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent)

Where domestic law gives a public authority an unqualified right to possession, an occupier cannot resist possession merely by relying on personal circumstances under article 8. The occupier may, however, raise a seriously arguable public law challenge to the authority’s decision within the possession proceedings.

The court must scrutinise the authority’s reasons and relevant facts. Review need not be confined rigidly to traditional Wednesbury grounds, but the court cannot substitute its own decision. It asks whether the decision, having regard to its purpose and the occupier’s circumstances, was one no reasonable authority could regard as justifiable. Express statutory exclusions cannot be reversed through section 3 of the Human Rights Act 1998.

The appellant and his family had occupied plots on a local authority gipsy and travellers’ caravan site for about 17 years. The authority terminated his licence and sought possession so that it could improve the site and thereafter operate it as temporary accommodation for travellers. The claim alleged no breach of licence or misconduct.

HHJ McKenna granted summary judgment for possession but stayed execution briefly to permit judicial review. The Court of Appeal dismissed the occupier’s appeal: [2006] EWCA Civ 1739. The appeal to the House concerned whether the statutory exclusions affecting local authority gipsy sites were compatible with article 8 and whether the authority’s decision could be challenged as a defence under the two gateways identified in Kay v Lambeth London Borough Council.

1. Disposition. The House unanimously allowed the appeal and remitted the case to the High Court. Lord Hope delivered the leading speech. Lord Scott and Lord Walker agreed with the remittal, and Lord Rodger expressly relied on the reasons of Lord Hope and Lord Walker. Lord Mance agreed with the result but would have permitted a wider Convention-based review.

2. The basic possession rule. Per Lord Hope, the majority rules in Harrow London Borough Council v Qazi and Kay v Lambeth London Borough Council remained authoritative. Where domestic law gives a public authority an unqualified right to possession, the law ordinarily supplies the balance required by article 8. Personal circumstances alone cannot defeat that right. The House declined to replace that approach with the broader proportionality review suggested by McCann v United Kingdom.

3. Gateway (a). Per Lord Hope, supported on the material conclusion by Lord Walker and Lord Rodger, the statutory framework was seriously arguably incompatible with article 8 because it excluded residents of local authority gipsy sites from procedural safeguards available to other caravan occupiers. Section 3 of the Human Rights Act 1998 could not reverse unequivocal exclusions in the Caravan Sites Act 1968 and the Mobile Homes Act 1983. Section 6(2)(b) preserved action giving effect to that deliberate statutory scheme. A declaration of incompatibility had become unnecessary because the relevant exclusions had been removed or were to be removed by enacted legislation. Lord Scott reached the same practical conclusion while doubting that the post-Kay domestic framework was incompatible.

4. Gateway (b). Per Lord Hope, the authority’s decision to recover possession could be challenged as an improper exercise of public power within the possession proceedings. Review should not be confined unduly formalistically to traditional Wednesbury grounds. The judge should examine the authority’s reasons, resolve material factual disputes, and consider the aim pursued and the family’s lengthy residence. The judge must not substitute his own judgment. The governing question is whether the decision was one no reasonable person could consider justifiable.

5. The Court of Appeal was therefore wrong to conclude that remission would serve no purpose. If the authority’s decision satisfies the reasonableness standard, the High Court must make a possession order. If it does not, the court must decline possession unless and until an adequate justification is established.

6. Lord Mance’s separate reasoning. Lord Mance considered that Qazi and Kay concerned enforcement of an already established right to possession and did not govern a challenge to the validity of the authority’s own notice to quit. He would have allowed direct review under article 8 as well as conventional public law review. That broader ground did not command a majority.

1. House of Lords: The appeal was allowed unanimously. The decision of the Court of Appeal was displaced and the case was remitted to the High Court for review of the authority’s reasons for terminating the licence.
2. Court of Appeal: The appeal was dismissed: [2006] EWCA Civ 1739 . The court held that the case did not succeed through gateway (a) and that remission under gateway (b) would serve no purpose.
3. High Court: HHJ McKenna granted the local authority summary judgment for possession. He stayed execution briefly to permit an application for judicial review and later suspended execution pending the appellate proceedings.