London Borough of Brent v Stokes

In a possession claim by a local authority against a trespasser where the right to possession is unqualified, the county court should ordinarily proceed summarily. Under the Civil Procedure Rules 1998, further directions are justified only where the defendant shows a seriously arguable public-law challenge: either the law authorising possession is incompatible with Article 8, or the power has been exercised in a way no reasonable person would regard as justifiable. A mere list of relevant considerations, or an assertion that they were ignored, is insufficient. Without a statutory obligation, a local authority landowner has no general common-law duty to justify seeking possession or to disclose whether it considered each pleaded matter.

The appellant, an Irish traveller, occupied a caravan pitch on a local-authority site without licence or consent. The council sought possession because the pitch was required for office accommodation. The appellant relied on her family circumstances, her children’s needs, an outstanding homelessness application, Article 8 and Article 14 rights, and alleged failures to consider statutory duties and alternative accommodation.

The Willesden County Court made a possession order on 14 May 2008. The High Court, in a judgment by King J dated 10 July 2009, rejected a direct Article 8 proportionality review and upheld the summary approach. The issue before the Court of Appeal was whether the pleaded failure to consider relevant matters disclosed a seriously arguable public-law challenge requiring further directions or disclosure, and whether the council owed a wider common-law duty to explain what it had considered.

Lord Justice Patten, with whom Sir Simon Tuckey agreed, refused permission for a second appeal. The proposed appeal had no real prospect of success and raised no important point of principle or practice or other compelling reason.

1. Under Civil Procedure Rules 1998 rule 55.8, the county court may decide a possession claim summarily or give case-management directions. Directions are appropriate where the dispute appears to raise substantial grounds, but the judge must decide whether further disclosure or evidence is needed. The rule does not itself require an extended process.
2. The approach in Kay & Ors v Lambeth London Borough Council [2004] 1 AC 983, confirmed in Doherty v Birmingham City Council [2008] UKHL 57, remained binding. Where the right to possession is unqualified, the court should not conduct a full Article 8 proportionality review. A Gateway B challenge must first be shown to be seriously arguable.
3. The burden rests on the defendant. A seriously arguable case requires compelling material suggesting that relevant duties were not complied with or relevant considerations were ignored or inadequately considered, or something identifiable in the known circumstances showing incompatibility with those duties. Merely pleading a list of potentially relevant matters is insufficient.
4. Absent a statutory obligation, a local-authority landowner has no general common-law duty to justify its decision to seek possession, to give reasons for it, or to state whether and to what extent it considered each matter raised by the occupier. The council’s stated administrative reasons were not inherently inconsistent with its having considered the pleaded matters.
5. McGlynn v West Hatfield District Council [2009] EWCA Civ 825 illustrated a case where unlawfulness could be inferred by comparing a possession decision with a previously stated policy. That reasoning did not assist the appellant because no comparable inconsistency was shown. The pre-action protocol analogy also failed; it merely permits an authority to expand its reasons and potentially avoid litigation.

The application was refused. R v SSHD [2001] 2 AC 532 represented the full proportionality approach which the court was bound not to adopt.

1. Court of Appeal (Civil Division): On 27 April 2010, the application for permission to bring a second appeal was refused.
2. High Court, Queen’s Bench Division: King J considered the appeal from the possession order and rejected a direct Article 8 proportionality review, applying the seriously arguable threshold.
3. Willesden County Court: HHJ Copley made a possession order on 14 May 2008.