Jones v Canal & River Trust

A public authority seeking to remove a vessel used as a home must be able to meet an Article 8 proportionality challenge. Its ownership and waterway-management functions will usually be legitimate aims of substantial weight and may ordinarily be treated as a given.

The possession cases do not create an exception to structured proportionality. They show that an Article 8 defence may often be resolved summarily where it is not seriously arguable. A court should not, however, strike out the defence before trial where there is a genuine dispute about the statutory entitlement to terminate the licence, an unresolved Equality Act claim, or relief capable of depriving the occupier of his home.

The Trust sought a declaration and injunctions enabling it to remove the appellant’s boat, which was his home, from the Kennet & Avon Canal. It alleged that he had not complied with the navigation conditions of his licence under the British Waterways Act 1995. The appellant disputed that allegation and pleaded that removal would be disproportionate under Article 8.

The Bristol County Court struck out the Article 8 paragraphs of the defence. The High Court gave permission to appeal but dismissed the appeal. The appellant then brought a second appeal, challenging the use of the housing-possession authorities, the reliance on administrative burden, and the summary dismissal of his Article 8 case.

1. Appeal allowed. The order striking out paragraphs 10 to 12 of the defence was reversed. Sales and Jackson LJJ agreed with McCombe LJ.

2. The relevant question under Article 8 remains whether removal of a person from his home is a proportionate means of achieving a legitimate aim. The Pinnock line does not establish an exception to structured proportionality. It establishes that public-housing cases are often particularly suitable for an early, summary assessment because the authority’s property rights and housing-management duties carry obvious weight.

3. Comparable weight normally attaches to the Trust’s ownership rights and its public responsibility to manage waterways. A court may ordinarily treat its enforcement aim as a given without requiring it to plead and prove management reasons from the outset. Some waterway cases may therefore permit summary dismissal, for example where statutory standards or insurance requirements are plainly unmet, or where there is a flagrant and unremedied breach of licence conditions.

4. Those considerations did not justify strike-out here. The parties had a continuing genuine dispute about whether the licence conditions had been breached and hence whether the Trust could invoke its removal rights under the British Waterways Act 1983. The Equality Act defence remained live. The relief sought was extensive and included removal of the appellant’s home and restraints affecting mooring and navigation. Those matters could make the Article 8 defence seriously arguable and required determination at trial.

5. The prospect of a burden on the Trust in addressing Article 8 was not a proper independent reason to strike out the defence. Once a seriously arguable defence is raised, the court must assess the occupier’s personal circumstances against the authority’s legitimate objectives. The Trust was not required to plead proportionality in its original claim, although fuller public-interest pleading might assist the litigation.

• Court of Appeal (Civil Division): Allowed the second appeal in [2017] EWCA Civ 135 and reversed the strike-out of the Article 8 defence.
• High Court: On 6 March 2015 granted permission to appeal from the County Court but dismissed the appeal.
• Bristol County Court: On 24 September 2014 struck out paragraphs 10 to 12 of the defence, which advanced the Article 8 case.