Stokes v London Borough of Brent

A county court may entertain a public-law defence to possession proceedings where a seriously arguable case is raised that a public authority improperly exercised its powers. The operative test is whether the decision to recover possession was one which no reasonable person would consider justifiable. Review is based on matters known, or which ought to have been known, when the decision was made. It does not permit the court to substitute its own judgment or conduct a free-standing proportionality review under Article 8. Personal circumstances may be relevant, but only within the common-law public-law review. The defendant bears the burden of showing a seriously arguable case. Mere pleading of relevant considerations or statutory duties, without compelling supporting material or circumstances apparently inconsistent with those duties, is insufficient.

The appellant, an Irish Traveller, occupied a pitch on a local authority travellers’ site without consent. The authority temporarily tolerated the occupation after the birth of her fourth child, but terminated that tolerance and commenced possession proceedings when the appellant remained in occupation. She accepted that she had no substantive defence as a trespasser.

The county court granted summary possession under CPR Part 55. The appellant argued that the authority’s decision was Wednesbury unreasonable, that relevant statutory duties and guidance had not been considered, that the procedure was unfair, and that eviction was disproportionate under Article 8. The appeal concerned whether those matters raised substantial grounds requiring a full hearing.

1. The appeal was dismissed. The appellant was a trespasser and had no defence under the substantive law of possession.

2. Following Kay v Lambeth London Borough Council [2006] UKHL 10, a gateway (b) public-law defence may be raised in possession proceedings where it is seriously arguable that the public authority’s decision to recover possession was an improper exercise of its powers. The test is whether the decision was one which no reasonable person would consider justifiable. The court must not substitute its own judgment for that of the authority.

3. Doherty v Birmingham City Council [2008] UKHL 57 did not create a free-standing Article 8 proportionality defence. It confirmed that the matters relevant to common-law review may be wider than a strict application of traditional Wednesbury grounds, and may include personal circumstances. A full Convention review remained unavailable.

4. The review concerns the lawfulness of the decision when made. Later facts and hindsight are excluded. Ordinarily, a landowner, including a local authority, need not justify its decision to recover possession or provide alternative accommodation before seeking possession, absent a statutory obligation. Exceptional circumstances may justify closer scrutiny, particularly where an occupier had lawfully made a long-term home on the site.

5. At the summary stage under CPR 55.8, the defendant bears the burden of showing a seriously arguable case. The court need not conduct a full trial, order disclosure, or permit cross-examination merely because the defence alleges that relevant considerations or statutory duties were ignored. There must be compelling material, or identifiable circumstances apparently incompatible with the alleged duties, beyond bare assertion.

6. The appellant’s short and predominantly unlawful occupation, the temporary nature of the authority’s tolerance, the refused offer of another pitch, and the advice about homelessness assistance meant that no seriously arguable gateway (b) case arose. The Article 8 defence was also unavailable under the binding authority of Kay.

• High Court (Queen’s Bench Division): On appeal from the Willesden County Court, the court dismissed the appeal against the summary possession order dated 14 May 2008.