Nicholas v Secretary of State for Defence

When incompatibility is alleged, the court should begin with the claimant’s actual Convention rights. If those rights have not been violated, the court should ordinarily end the case and be slow to decide a hypothetical, macro-level compatibility question or make an abstract declaration. Article 14 requires comparison with persons in relevantly similar or analogous situations. Only if there is disadvantageous difference must the court consider objective and reasonable justification. A notice terminating a contractual licence must strictly satisfy formal requirements. Information conveyed by the notice is assessed by reference to the reasonable recipient. A notice may therefore be valid even if addressed to another named occupier, where the notice and covering letter are read together.

Mrs Helen Nicholas occupied service family accommodation under a licence granted to her then husband. Following marital breakdown and his departure, the Ministry of Defence served notice requiring her to vacate and later brought possession proceedings.

She argued that the absence of security of tenure for Crown licensees discriminated against her under Articles 8 and 14 of the Convention and that the notice was invalid. Burton J rejected both arguments in [2013] EWHC 2945 (Ch). The appeal concerned the proper scope of the compatibility question and the validity of the notice.

Appeal dismissed. Lewison LJ gave the substantive judgment, with the Master of the Rolls and Pitchford LJ agreeing. The reasoning was substantially the same as that of Burton J.

1. Under section 6 of the Human Rights Act 1998, the court should first ask whether the particular claimant’s Convention rights have been violated. If not, that will ordinarily end the case. The court should be slow to decide a hypothetical macro-level question or make an abstract declaration under section 4. This approach was supported by R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23, R (Chester) v Secretary of State for Justice [2013] UKSC 63 and R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35. Bellinger v Bellinger [2003] UKHL 21 was consistent because the legislation continued to have adverse practical effects on that claimant. R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) involved an admitted violation.
2. Article 14 requires comparison with persons in relevantly similar or analogous situations. If there is a prejudicial difference in treatment, the court must consider whether it has objective and reasonable justification, including a legitimate aim and a reasonable relationship between the difference and that aim.
3. Mrs Nicholas had no relevant disadvantage. A private-sector licence would also provide no security of tenure. Even if the Crown had satisfied the landlord condition under section 80 of the Housing Act 1985, paragraph 2 of Schedule 1 would have excluded the service accommodation from secure-tenancy protection. The statutory security regimes also gave no relevant protection to a former spouse in these circumstances. No Article 14 violation was therefore established, and the court declined to answer the wider macro-question. The Ministry of Defence’s suggested justifications did not require determination.
4. For the notice, Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 required a distinction between formal requirements, which must be strictly complied with, and information conveyed, which is assessed by the reasonable recipient. The notice was written, served at the property, provided 93 days’ notice and given to Squadron Leader Nicholas. Read with the covering letter, it clearly required both occupants to vacate. It validly terminated the licence.

• Court of Appeal (Civil Division): dismissed the appeal.
• High Court: Burton J rejected the discrimination and notice arguments in [2013] EWHC 2945 (Ch).