Article 8 of the Convention provides that everyone has the right to respect for his private and family life. It has received a huge amount of attention in the domestic press most notably in the field of Immigration Law in the context of the resistance against automatic deportation by foreign criminals.
It is hardly surprising therefore that a huge amount of legal dicta exists on the application of Article 8 in domestic law. The leading cases of Razgar and later Huang both dealt with the application by a member state of the test that there shall be no interference with the right unless it is (1) in accordance with the law and (2) necessary in a democratic society. Both cases centred around the carrying out by the member state of an appropriate “proportionality assessment” when balancing the right itself against the strict requirements of domestic legislation.
In the context of possession proceedings, Article 8 is something which many will not have come across. For our purposes it is sufficient to say that the domestic courts have previously held in a number of authorities that the Defence will only be engaged where it would be disproportionate in all the circumstances to grant possession. The Court of Appeal have in the past refined the proportionality assessment by stating that it will be a high test to meet, which will only be met in a small number of circumstances (Thurrock). This seemed to many to be inconsistent with other dicta, including that in the immigration context, as laid down by the House of Lords in Huang, where it was held that no test of exceptionality should or indeed did exist.
The recent case of Southend-on-Sea BC v Armour [2014] EWCA Civ 231 has gone some way towards addressing this. It was alleged against Mr Armour that repeated misbehaviour resulting in complaints to the council gave rise to a right to possession. Mr Armour had also had mental health issues. By the time of the somewhat delayed trial a year later no further incidents had taken place, and the Judge at first instance refused to grant possession on the basis of Article 8, upon the grounds that to do so would lead to a disproportionate result against Mr Armour. The council appealed. The Court of Appeal upheld the refusal to grant the possession order upon the basis that the finding that it would be disproportionate to grant possession after such a long period without any repeated incidents of misbehaviour was one open to the Judge to make. The decision to refuse possession to the council was correct and would have amounted to an unlawful interference with the Article 8 rights of Mr Armour.
The case clearly raises the possibility of a defence by tenants in possession proceedings that to order possession would be disproportionate, particularly in circumstances where the facts upon which and circumstances in which possession is sought have ceased to exist or no longer apply. Landlords will no doubt want to consider prompt possession proceedings in light of the decision and in light of the inherent delays in the court system, whilst tenants will be left considering whether there are any such exceptional or changed circumstances so as to amount to a disproportionate result in the event possession is granted.
Louise Delgado, Solicitor – 12th May 2014