Doherty & Ors v Birmingham City Council

The House considered whether an occupier of a long‑standing gypsy/traveller pitch, whose licence had been terminated and who had no enforceable proprietary right to remain, could resist a summary possession order by relying on article 8 (right to respect for the home) read together with the Human Rights Act 1998. Applying the framework developed in Harrow LBC v Qazi and Kay v Lambeth LBC, the House confirmed that where domestic law gives a public authority an unqualified right to possession an article 8 defence will normally be struck out, but recognised two limited routes by which such a defence may be entertained: (a) a seriously arguable attack that the statutory or regulatory legal framework itself is incompatible with article 8 (gateway (a)); or (b) a seriously arguable public law challenge to the lawfulness or reasonableness of the authority's decision to seek possession (gateway (b)).

On the facts the court held that the statutory framework applicable to local authority gypsy sites at the time gave rise to the same incompatibility identified in Connors v United Kingdom and that that incompatibility could not be cured by interpretation under section 3 HRA. Gateway (a) therefore did not afford a summary disposal in favour of the occupier. However, gateway (b) did apply: the occupier was entitled to have the respondent's decision to terminate the licence and seek possession reviewed on conventional public law/reasonableness grounds in the possession proceedings. The House allowed the appeal and remitted the case to the High Court for review of the respondent's reasons for seeking possession; if the termination was shown to be unreasonable the possession order should be refused.

Background and facts:

• The respondent local authority owned and managed a 16‑plot travellers' site. The appellant had occupied plots for some 17 years under a licence which the authority terminated by notice to quit on 4 March 2004. Proceedings for possession were commenced on 27 May 2004.
• At the time the statutory regime excluded occupiers on local authority gypsy sites from certain statutory protections available elsewhere under the Caravan Sites Act 1968 and the Mobile Homes Act 1983.

Procedural history:

• Summary judgment for the authority was given by HHJ McKenna (20 December 2004), with a limited stay to allow application for judicial review. The Court of Appeal dismissed the appellant's appeal ([2006] EWCA Civ 1739). The case went to the House of Lords as the appellate court.

Nature of the claim and relief sought:

• The appellant sought to resist a possession order, relying on article 8 and the Human Rights Act 1998 (section 6 duty) arguing that eviction would be disproportionate and that procedural safeguards were lacking.

Issues framed:

1. Whether an occupier in the appellant's position can rely on article 8 to resist a summary possession claim by a public authority when the occupier has no proprietary or contractual right to remain.
2. If so, whether that challenge should be considered under (a) the interpretative/declaratory routes in the Human Rights Act (gateway (a)) or (b) as a public‑law challenge to the authority's decision to seek possession (gateway (b)).

Reasoning and disposition:

• The House reviewed and applied the approach in Qazi and Kay. It accepted that the statutory scheme applicable to local authority gypsy sites was indistinguishable from the scheme criticised in Connors and that that statutory framework produced an incompatibility with article 8 which could not be remedied by section 3 HRA. Accordingly, part (i) of gateway (a) (reading the legislation compatibly) was not available.
• Given parliamentary responsibility for the statutory regime, a county court could not itself rewrite primary legislation; where the incompatibility could not be removed by interpretation the appropriate response might be a section 4 declaration, but on the facts remedial legislation (subsequently enacted) had removed the practical need for a declaration.
• Conversely, gateway (b) permits a defendant to raise a conventional judicial‑review style defence (challenge to the reasonableness/lawfulness of the authority's decision to seek possession) in the possession proceedings. That route provides the procedural safeguard identified in Connors because it allows factual disputes and the justification for eviction to be examined in court. The House therefore remitted the matter to the High Court for review under gateway (b): the judge was to determine the factual disputes, assess whether the authority's decision to terminate the licence and seek possession was one which no reasonable person would consider justifiable, and refuse possession if it was not.

Wider implications: the judgment explains the interplay between section 6(2)(b) HRA, parliamentary sovereignty and the court's powers, confirms the limited and exceptional scope of article 8 defences in public‑authority possession claims under Kay, and clarifies that where the occupier can raise a seriously arguable public law challenge that point should be resolved in the possession proceedings.

Appeal allowed. The House held that, while domestic law normally permits public‑authority landlords an unqualified right to recover possession (the Qazi principle as qualified by Kay), two limited exceptions apply: (a) a seriously arguable point that the enabling law is incompatible with article 8 (gateway (a)), and (b) a seriously arguable public‑law challenge to the authority's decision to seek possession (gateway (b)). On the facts the statutory scheme was defective in a way indistinguishable from Connors so section 3 could not cure it; but the judge should examine the appellant's gateway (b) defence. The case was therefore remitted to the High Court to determine whether the authority's decision to terminate the licence was unreasonable; if so, possession should be refused.

County Court claim for possession (Birmingham) transferred to the High Court (HHJ McKenna) — summary judgment given 20 December 2004 with a limited stay; permission to appeal and certification for direct appeal to the House of Lords; judgment of the Court of Appeal dismissing the appellant's appeal ([2006] EWCA Civ 1739); appeal to the House of Lords allowed and case remitted to the High Court.