Manchester City Council v Pinnock (No 2)

An appellate court may set aside a possession order and substitute its own order where that course accurately gives effect to its substantive judgment and avoids anomalous statutory consequences. The wide power conferred by Rule 29(1) of the Supreme Court Rules 2009 permitted the court to make a fresh possession order prospectively rather than affirm an order made on an erroneous legal basis.

Costs may reflect the parties’ relative success on distinct issues. A landlord’s ultimate success in obtaining possession justified its trial costs, while the occupier’s success in establishing the applicability of article 8 justified making no order for costs in the appellate courts.

The council obtained a possession order against its demoted tenant in the Manchester County Court. The tenant argued that the court had to consider whether possession was proportionate under article 8 of the European Convention on Human Rights. The County Court rejected that argument, and the Court of Appeal dismissed his appeal in [2009] EWCA Civ 852; [2010] 1 WLR 713.

In an earlier judgment in the same proceedings, [2010] UKSC 45; [2010] 3 WLR 1441, the Supreme Court held that article 8 was available but concluded that the occupiers had no real prospect of resisting possession on proportionality or public law grounds. Written submissions were then received on the consequential order and costs.

The questions were whether the original order should be affirmed, varied or replaced in light of the transitional provisions abolishing tolerated trespassers, and how costs should reflect the parties’ divided success.

1. Disposition. The County Court possession order was set aside and replaced by a fresh possession order taking effect on 10 March 2011. There was no order for costs in the Supreme Court or Court of Appeal. The County Court costs order in the council’s favour remained in force.

2. The court’s earlier substantive judgment established that the courts below had adopted an erroneous approach to article 8. The Supreme Court had therefore made its own proportionality assessment and decided for itself that possession should be ordered. Setting aside the original order and making a fresh one more accurately reflected that reasoning than simply dismissing the appeal.

3. Confirmation of the original order would have produced an anomalous result under the transitional provisions of the Housing and Regeneration Act 2008. Because that order took effect before the abolition of tolerated trespassers commenced, its confirmation would have resulted in a new demoted tenancy arising on 20 May 2009. This could have required further possession proceedings despite the council’s substantive success.

4. The broad terms of Rule 29(1) of the Supreme Court Rules 2009 permitted the court to avoid that result. It was unnecessary to decide whether the original order could retrospectively be varied or whether section 89(1) of the Housing Act 1980 prevented such a variation. By setting aside that order and making a fresh prospective order, the tenant’s original demoted tenancy continued until possession was obtained under the new order.

5. The council was entitled to its County Court costs because its possession claim ultimately succeeded. No appellate costs were awarded. That order reflected the parties’ relative success: the council maintained its right to possession, while the tenant established the fundamental general principle that article 8 may be relied upon where a person’s home is the subject of a possession claim.

1. United Kingdom Supreme Court: In this consequential judgment, [2011] UKSC 6, the court set aside the original possession order, made a fresh order taking effect on 10 March 2011, and made no order for costs in either appellate court.
2. United Kingdom Supreme Court: In [2010] UKSC 45; [2010] 3 WLR 1441, the court held that article 8 could be raised in the possession proceedings but decided that the occupiers had no real prospect of successfully resisting possession.
3. Court of Appeal: In [2009] EWCA Civ 852; [2010] 1 WLR 713, the court dismissed the tenant’s appeal from the possession order.
4. Manchester County Court: His Honour Judge Holman rejected the article 8 argument, made a possession order taking effect on 12 January 2009, granted permission to appeal and ordered costs in the council’s favour.