The UNISON Case – Biggest SC Case for Years

R v Lord Chancellor (ex p Unison) [2017] UKSC 51

This is my 100th post on this blog. I started it in June 2011 and had been intending to put up a commemorative piece, going over my favourite articles and looking forward to the future. I may still be doing this, but not now. Because the SC’s decision this morning is so significant that I have to cover it immediately

The facts of the case are simple. In 2013 the government imposed fees on applications to the Employment Tribunals, all of which had previously been free. By way of contrast the civil courts have charged fees for claims, applications and other activities for hundreds of years. But the ET fees were very high – £390 for the simplest claims, and £1,200 for the more complex ones, including Unfair Dismissal, Equal Pay and Discrimination claims. There were also fees imposed in the appeal tribunal – the EAT. These fees were generally to be paid in two stages – to issue, and to proceed to a hearing.

These fees were much higher than the fees for equivalent claims in the courts, and were in many cases to be paid by applicants who had just lost their jobs, so it is not surprising that immediately after they took effect  – on 29th July 2013 – the number of applications slumped by about 80%. It would appear that many employers took the view that instead of negotiating a settlement at an early stage they would wait until they saw if the employee paid the fee to issue and to proceed to a hearing before negotiating, as the number of settlements reported to ACAS fell as well.

Now this case wouldn’t be important if all that happened was that the fees were reduced to something a bit more reasonable. This is clearly what is going to happen in the end, even though there is no indication of this as I write. No, the interest is in the way the Supreme Court laid out the manner in which it clearly intends to behave in the future, as Brexit happens and the ECJ fades out of the picture. Because it made it abundantly clear that despite the lack of the sort of constitutional supremacy that a Supreme Court has in say the United States or Germany it is going to lay down the law in a totally fearless way and is not afraid to extract constitutional rights from the Common Law if it can’t find them in statute.

The Decision

The main speech is given by Lord Reed, with whom the other Justices in a bench of 7 agree. After setting out the facts, the statistical reports, and the history of the case, he sets out the constitutional principles  – in this context the rights to access to the courts, and that statutory rights are not to be cut down by subordinate legislation. And he then gives a lesson on the constitution in extremely simple but devastating words:

66.             The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services”.

67.             It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.             At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

69.             Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North [2013] UKSC 45; [2013] ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.

70.             Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

71.             But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.

72.             When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended, provide authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution.

He then sets out the principle as found in all the standard constitutional documents, which some of us will remember from the beginning of a law degree – Coke’s Institutes, Blackstone’s Commentaries, and of course Magna Carta:

  1. In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297:

“We will sell to no man, we will not deny or defer to any man either Justice or Right.”

Those words are not a prohibition on the charging of court fees, but they are a guarantee of access to courts which administer justice promptly and fairly.

For myself I prefer the traditional translation of the passage:

To no man will we sell, to no man will we deny or delay Justice and Right

He then quotes the  cases leading up to the present day. You can see them yourselves from the link at the top of this piece.

The Conclusion

Having looked at the principle he then applies it to the case. For court fees to be lawful they have to be set at a level that everybody can afford, taking into account any remission available. This is not being achieved. For a number of reasons:

  • The sharp and substantial and sustained fall in the volume of cases … as a result of the introduction of fees.
  • People are often obliged to resort to the ET jurisdiction involuntarily and unexpetedly.
  • The Review Report said 10% of claimants said they didn’t bring a claim because they couldn’t afford to do so. This means reasonably afford to do so – not by having to sacrifice “the ordinary and reasonable expenditure required to maintain …an acceptable standard of living”.
  • Hypothetical examples show that the cost to low-income families can be all their free income for up to 3 month. This is not affordable in the real world.
  • The statutory power of remission is far too restricted to change matters. It is limited to exceptional circumstances, but the problem is systemic.
  • Fees can prevent access to justice if they make it futile or irrational, such as in the case of low value claims for say unlawful deductions from wages, especially as many successful applicants recover nothing from their employers in the end.

The fees are therefore unlawful.

He scampered over the remaining points with a side-swipe at an attempted justification on economic grounds

99.             The primary aim of the Fees Order was to transfer some of the cost burden of the ET and EAT system from general taxpayers to users of the system. … Similarly, in his written case, the Lord Chancellor states that, in pursuing the aim of transferring the costs of the tribunals from taxpayers to users, “the higher the fees are, patently the more effective they are in doing so”. This idea is repeated: in recovering the cost from users, it is said, “the higher the fee, the more effective it is”.

100.         However, it is elementary economics, and plain common sense, that the revenue derived from the supply of services is not maximised by maximising the price. In order to obtain the maximum revenue, it is necessary to identify the optimal price, which depends on the price elasticity of demand. In the present case, it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated. It has not been shown that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users.

The fees are also held to be contrary to EU law as imposing limitations on the exercise of EU rights which are disproportionate, and hence contrary to Article 47 of the Charter of Fundamental Rights of the EU

Article 47 guarantees in its first paragraph that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”. In terms of article 52(1):

“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.”

As a result, and despite the Lord Chancellor arguing that the SC should only make a declaration that the current levels of the fees were too high the court disagreed in strong terms:

119.         That argument mistakes the nature of the illegality with which we are concerned. This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.

Lady Hale gave a subsidiary speech explaining why the fees also amounted to unlawful discrimination on the grounds principally of discrimination against women, who made up a high proportion of the more expensive Type B claims. And the rest of the court agreed with both of them.

The Consequences

The fees are quashed. Everybody who paid them will be refunded (at a cost estimated at £32m) and until new lawful fees are fixed all ET and EAT proceedings are free. There is a lot of egg on the government’s face, mainly on Mr Grayling’s who was LC at the time they were imposed.

But more importantly the SC has shown that it will stand up for the rights implicit in the rule of law – that there must not only be laws but they must be effectively enforceble through the courts if need be. “That is why the courts do not merely provide a public service like any other.”

I have written on many occasions on the subject of the need to have an effective court system that the public can use, and if it wasn’t the middle of the night I would give you the cross references. The most prominent are Having Rights is Not Enough and Mediation – not the Complete Answer, but there are many others – it is one of my hobby-horses. I may return to this in post 101 shortly, especially after the news that the civil courts made a profit in the last year. Therefore it is really good news that the SC is doing the heavy lifting for us and won’t let a mere politician get in their way.

So that is why I feel that this is the most important SC case for years, even despite the Brexit case in January R v SoS (ex p Miller) That merely showed that the government was doing something that it could do but doing it the wrong way. This is showing that the whole basis of what they are trying to do is wrong, and that is what gives it the importance that it has.

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Ilott v The Blue Cross – Supreme Court Judgment – the final round

Note: All previous hearings of this case reported as Ilott v Mitson

Well, the Supreme Court gave its judgment on this elderly case this morning, and decided that the District Judge who heard it the first time, back in May 2007, got it right, and that all the other hearings in between – two in the High Court and two in the Court of Appeal – got it wrong. So Mrs Ilott got £50,000 from her mother’s £486,000 estate, and the animal charities got the rest. The costs of the exercise would need to be provided for, of course, although Mrs Ilott’s team were acting  pro bono throughout. However at least there is now an authoratitve decision on the area of law in question – well one would hope so, but I’m not so sure about that. More on that later.

How We Got Here

Let’s start by going back to basics. The brief facts are that Heather Ilott was the only child of Mrs Jackson, and ran away with her boyfriend, whom she subsequently married, when she was aged 17. Her mother never forgave her , and there was virtually no contact between them until her mother’s death 26 years later. During this time Mrs Ilott had 5 children, and lived with her husband in difficult financial circumstances, depending largely on state benefits, and living in social housing. When she died, the mother’s last will left virtually all her estate to three animal charities, with whom she had no prior connection, and nothing to her daughter, and indeed a direction to her executors to resist any claim made by her daughter.

The daughter made a claim for a share of the estate under the Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”). This allows various people – spouses, former spouses, children, and people being financially supported by the deceased – to make a claim on the grounds that the will and/or intestacy provisions did not make reasonable financial provision for them. But in the case of an applicant other than a spouse reasonable financial provision is restricted to reasonable financial provision for their maintenance. And the Act set out in s3 a number of matters which the court must take into account when it makes an order. These include:

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

The court hearings (all of which were under the name of Ilott v Mitson until the SC hearing) were:

  1. DJ Million  – awarded Mrs Ilott £50,000 (about 10% of the fairly modest estate) as being an appropriate amount in the circumstances. She appealed for more and the charities cross-appealed on the grounds that she should get nothing.
  2. King J – allowed the charities’ appeal and dismissed the claim. Mrs I appealed.
  3. CA – allowed Mrs I’s appeal. Case sent back to H Ct to deal with Mrs I’s appeal on quantum.
  4. Parker J – dismissed Mrs I’s appeal on quantum and reinstated the DJ’s award. Mrs I appealed.
  5. CA – allowed Mrs I’s appeal, held that the DJ had made serious errors of law, and substituted an award of £143,000 (to buy her social housing house) and a further £20,000. The charities appealed.
  6. SC – appeal allowed. DJ’s award of £50,000 reinstated.

And I have written about this a number of times – principally here, and here, and here.

The Supreme Court Decision

This runs to 66 closely argued paragraphs and came out this morning, so I’m not going to analyse them in detail here. If you want that there are a number of other articles out already, and there will no doubt be more soon. However, the important points are:

  • Maintenance has an established meaning and means provision to meet everyday living expenses, more on an income basis than a capital basis, and at an appropriate level – not limited to subsistence levels.
  • Reasonable Financial Provision is an objective test. You look at what the result is, and not whether the deceased was unreasonable, or the applicant was disappointed. The case of In re Coventry got it right:

It is not the purpose of the Act to provide legacies or rewards for meritorious conduct. Subject to the court’s powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases or, if he chooses to do so, to leave that disposition to be regulated by the laws of intestate succession. In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown, not that the deceased acted unreasonably, but that, looked at objectively, his disposition or lack of disposition produces an unreasonable result in that it does not make any or any greater provision for the applicant – and that means, in the case of an applicant other than a spouse for that applicant’s maintenance. It clearly cannot be enough to say that the circumstances are such that if the deceased had made a particular provision for the applicant, that would not have been an unreasonable thing for him to do and therefore it now ought to be done. The court has no carte blanche to reform the deceased’s dispositions or those which statute makes of his estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.

  • The questions to ask are normally: (1) did the will/intestacy make reasonable financial provision for the claimant and (2) if not, what reasonable financial provision ought now to be made for him?
  • These are essentially questions giving a large amount of discretion to the trial judge, and the Act plainly requires a broad brush approach from the judge to very variable personal and family circumstances.

The court went through the history of the case and in particular the decision of the CA that was under appeal. This identified two apparent errors in the original decision of the DJ, and therefore felt able to set his decision aside and look at matters anew. These were:

  1. He stated that as Mrs I had no expectation of receiving anything from her mother’s estate, and lived modestly, and within her limited means, any provision now must be limited. However he didn’t explain what the provision would be otherwise and how it was being restricted, and this breached the requirement to give a full reasoned judgment.
  2. And he did not know what effect the award of £50,000 would have on her state benefits. He made a working assumption …that the effect of a ‘large capital payment’… would disentitle the family to most if not all of their state benefits, Failure to verify this assumption undermined the logic of the award.

The SC disagreed strongly with the CA’s views on both of these matters. On the first they said (para 35) that such a two-fold explanation was quite unnecesary.

But without going through any such exercise, and yet adhering to the concept of maintenance, a judge ought in such circumstances to attach importance to the closeness of the relationship in arriving at his assessment of what reasonable financial provision requires. In the paragraphs leading up to the one criticised by the Court of Appeal, this Judge had dutifully worked his way through each of the section 3 factors. The long estrangement was the reason the testator made the will she did. It meant that Mrs Ilott was not only a non-dependent adult child but had made her life entirely separately from her mother, and lacked any expectation of benefit from her estate. Because of these consequences, the estrangement was one of the two dominant factors in this case; the other was Mrs Ilott’s very straitened financial position. Some judges might legitimately have concluded that the very long and deep estrangement had meant that the deceased had no remaining obligation to make any provision for her independent adult daughter – as indeed did Eleanor King J when it appeared that she had scope to re-make the decision. As it was, the judge was perfectly entitled to reach the conclusion which he did, namely that there was a failure of reasonable financial provision, but that what reasonable provision would be was coloured by the nature of the relationship between mother and daughter.

On the second the DJ had been presented with a wholly unrealistic wish-list by Mrs I’s counsel at the first hearing, which he described as “unhelpful” and disregarded it. However, the DJ sat regularly in the Principal Registry of the Family Division and had a good working knowledge of the effect of awards of capital on the state benefits of the recipients. Although he had not been given formal evidence on the benefit position, he had been given evidence which showed that Mrs I was managing to pay her way by failing to spend anything on the replacement and repair of the ordinary household belongings;

Mrs Ilott made a strong case for the necessity of spending a substantial sum on items which could properly be described as necessities for daily living. They included such things as essential white goods, basic carpeting, floor covering and curtains, and the replacement of worn out and broken beds. That list did not include other similar necessities such as a reliable car, nor a holiday.

In the circumstances an award of £50,000 would allow her to carry out these replacements, and this kind of necessary replacement of essential household items was not such an indulgence; rather it was the maintenance of daily living. Furthermore reasonable expenditure of this type would rapidly reduce the family’s capital below £16,000 where the cut-off for various benefits occurred. So there was nothing wrong with this part of the award either.

The Result

As the CA’s criticism of the DJ’s decision was wrong the appeal was allowed, and the DJ’s award restored. The court emphasised that the long period of estrangement had to be taken into account, although exactly how was a matter for the trial judge, and that the award under appeal, giving Mrs I about 1/3 of the estate, did not do so adequately, while an award of £50,000 did.

And there was a supplementary judgment by Lady Hale (who agreed with the main judgment as well) setting out some history, and a number of studies and reports, and a strong plea for a revision to the Act to give greater guidance to the weight to be given to the various factors set out in s3 of the Act, especially in the case of an able-bodied adult child.

And the Guidance?

Fortunately the SC can’t rabbit on for 66 paras without giving some guidance to the rest of us, and there are various things here, which I’ve tried to set out above. But the result does seem to me, at least at present, to be disappointing. We had hoped that something would have been said about the way to weigh up the various factors, and we have just ended up being told that it is a matter of judicial discretion, that different judges might decide in different ways and still be correct, and that legislative intervention is required. Not a matter of the highest priority in these Brexit-filled times.

It is useful to have the emphasis placed on the elements of “maintenance” and the fact that the test is an objective one. It is also helpful for the CA’s enthusiasm for rewriting wills to be reeled in a bit, because it makes it easier to predict, at least in broad outline, what a court is going to do. The charities are no doubt pleased with the result, and Mrs Ilott must be wondering why she appealed the 2007 decision in the first place. But it is a long way from answering all the questions, which we had been hoping for. Still, it preserves some uncertainty upon which those of us in practice can make a living – you never litigate in areas where the law is entirely clear, do you?

Newsflash – Ilott v Blue Cross (formerly Ilott v Mitson) Judgment

This is the case about the lady who cut out her only daughter from her will and left everything to some animal charities. The courts varied this under the Inheritance etc Act and after various hearings the case eventually reached the Supreme court just before Christmas. I have mentioned it on a number of occasions –  here here and here.

The case changed names when the Executor defending the will died, as an added complicating factor.

Anyway, the judgment will be out tomorrow at 9.45, and as the decision, whichever way it goes, will give a lot of very authoratitive guidance on how courts implement the law, so there is bound to be a lot of comment afterwards. And I’m sure that I will add another piece here. But not for a day or two,

Ilott v Mitson in the Supreme Court – Newsflash only

Well, its been and gone. The hearing lasted one day on 12th December and the decision will be out some time in the New Year – if not too badly delayed by the Brexit kerfuffle, we hope.

For links to my previous comments on this energetic case (just having had its 6th hearing, including 2 trips to the CA) see here and here and here.

PS As at 22.2.17 no sign of the judgment coming out. 

Ilott v Mitson – NEWSFLASH

This is the case where a mother excluded her estranged daughter from her will in favour of three charities and the daughter successfully applied for provision under the Inheritance etc Act. I have reported on it before, most recently here. It has been to the CA and been given leave to appeal to the SC.

The Supreme Court has now given a date for the hearing – 12th December 2016 – and before a bench of 7 Justices. So some time reasonably early in the New Year we’ll finally have a result. Watch this space.

No Human Rights Here – McDonald v McDonald in the Supreme Court

McDonald v McDonald [2016] UKSC 28

The European Convention on Human Rights, and the Human Rights Act 1998 are basically intended to regulate the relationship between individuals and the State, not between individuals themselves, which is generally left to domestic law. The HRA provides this expressly:

s 6.1 It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

So what happens when one individual, or private organisation, while exercising their own rights, normally as to the ownership of property, infringes the Human Rights of another individual?

In the housing field the easiest way for this to happen is when a landlord seeks possession of a house or flat belonging to him, but occupied by somebody as their home, and so the occupier’s rights would normally be protected under Article 8 of the Convention:

Art 8.1 Everyone has the right to respect for his private and fimily life, his home and his correspondence.

Art 8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This clashes with the landlord’s rights under Article 1 of the First Protocol to the Convention:

A1P1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

If the occupant is evicted they lose their home. If not the landlord is deprived of his property. Which takes priority? It is easy enough if you are asking the judge to exercise his discretion and make an order, because he can take all these factors into consideration. But how do you decide if the landlord is seeking possession under a mandatory ground, such as ground 8  or s21 HA, when the judge has no discretion in the matter?

Well, the matter was decided in respect of property belonging to public bodies long ago, in the well known cases of Manchester CC v Pinnock (2010), and Hounslow v Powell etc (2011) I wrote about them at the time (here and here) and the SC decided that in an appropriate (ie very strong) case the court should decide whether the order sought was “proportionate” in all the cirdumstances. In practice the courts rarely exercise this discretion, but it is there and cannot be ignored, with public bodies generally adapting ther procedure to take it into account. And in this context “public bodies” includes most social landlords, following the CA case of Weaver v London & Quadrant (2009).

This was all based on the wording “a public authority” and so at first glance couldn’t affect relationships between private individuals, or private bodies. However, these are all cases where there is a mandatory ground of possession, with no discretion to the judge, and a strong feeling of unfairness, or lack of proportionateness, so the occupants’ advocates were inventive, and argued that although Joseph Soap, the landlord, wasn’t a public body, the local county court was, and so the court was bound by the HRA even if the landlord wasn’t. The court would therefore have to consider and deal with the human rights points, and if that affected the landlord’s rights then this was covered by the proviso in A1P1. If the argument succeeded than it would in fact apply to all areas of law, and not just housing claims, so it was a matter of great importance.

McDonald v McDonald

This was an undoubtedly hard case. The defendant, an adult with psychiatric and behavioural problems, was living in a house bought for her by her parents with the aid of a short-term interest-only mortgage from CHL. She had an AST of the property, paid from her benefits. Unfortunately her parents’ financial circumstances deteriorated and they could no longer pay the morgage payments in full. CHL appointed receivers under the LPA who exercised their power to serve a s21 notice on the defendant, and brought possession proceedings.

At Oxford County Court the defendant’s representatives argued that the court ought to consider the proportionality of making an order for possession, given that there was medical evidence that having to move would have a severe adverse affect upon her. HHJ Corrie held that he had no power to do this as the claimants were not a public body. However, if he did have the power the Judge would have exercised it and dismissed the possession claim, there being no other way to protect the defendant’s interests.

The CA dismissed the appeal and the case got to the SC and judgment was given on 15.6.16. They identified three questions:

  • should a court consider proportionality in a claim to evict a residential occupier by a private sector owner;
  • if so, is can s21 HA be read in a Convention compliant way; and
  • if so, would the Judge have been entitled to dismiss the claim as he said he would?

Proportionality

The defendant’s counsel argued strongly that the court was clearly a part of the state, and so was bound to consider proportionality in making any possession order, and if there was a private sector claimant would have to balance their A1P1 rights against the occupant’s Art 8 rights when coming to a decision.

The court said that things were not as simple as that. Parliament has regulated the position between private landlords and tenants for many years and although the tenant with an AST has restricted rights, they are significant and show where parliament has democratically decided to strike the balance between them. There are no circumstances where a judge should use Article 8 to make a different order from that determined by the contractual position, as regulated by the legislation. And as Lord Millett explained in Harrow LBC v Qazi (2004) the court:

 is merely the forum for the determination of the civil rights in dispute between the parties… once it concludes that the landord is entitled to an order for possession, there is nothing further to investigate. [paras 108-109]

Having looked at the cases from the ECHR the court decided that although there was some support for the view that Art 8 was engaged, there was none that said that a judge had to consider proprotionality when making a possession order, so the appeal was dismissed.

Can s21 be made compliant?

The court said that it is one thing to imply words into legislation which are consistent with the scheme of the legislation, but are needed to make it comply with the Convention. It is quite another to insert words that are wholly inconsistent this its scheme. That is not interpretation, but amendment, and is something for parliament and not for the courts to do. If the section was incompatible then there would have to be a declaration of incompatibilty. But in the circumstances this did not arise.

Should the Judge have dismissed the claim?

The judge could only postpone any order for possession bu up to six weeks, and then only if there was exceptional hardship. It was difficult to see how it would ever be proportionate to dismiss the posession claim altogether, and prevent the mortgagees getting repaid at all. The mortgage term expired only three weeks after the County Court judgment, and the only way to recover the loan was by selling the property with vacant possession. On the facts possession should have been postponed by six weeks at the most.

And this means?

The court has banged the argument that all law is subject to the Convention because all laws are enfirced by courts very firmly on the head. And also indicated that s21 and other mandatory possession grounds have been decided by parliament and that the courts must accept the balance between the parties that parliament has struck.

There may be a few small points on introductory tenancies still to be considered, but these are granted by public sector landlords, and this case, hard as it is to the parties concerned, really draws all this argument to a close, some 18 years after the Human Rights Act came into force.

Sighs of relief from private sector landlords. And at least the rest of us know where we are.

More details as ever with the Nearly Legal blog.

Where am I? – Edwards v Kurasamy in the Supreme Court

Sometimes the most interesting cases arise from pretty ordinary events. In this case Mr Edwards fell over on his way to the dustbins in his block of flats, because of uneven paving. He can’t have been too badly hurt because the DDJ awarded him £3,750 in damages, but it started a chain of appeals all the way up to the SC, where the decision came out on 13th July. So it was obviously thought very important by a number of insurers, landlords and others. A link to the full report is here [2016] UKSC 40.

Before I tell you about the decision you will need some background. Mr K had a long lease of a flat in a block of flats in Runcorn. Access was over a paved courtyard leading to the entrance into the communal hallway, and then on into the individual flats. Mr K sub-let his flat to Mr E in 2009, and one day in 2010 Mr E was crossing the courtyard to put out the rubbish in the dustbins when he tripped over an uneven paving slab and suffered the injuries from which he has no doubt long recovered.

Under s11 Landlord & Tenant Act 1985 a landlord of a residential lease for less than 7 years is liable for structual and exterior repairs. The obligation is extended in the case of flats etc to include other parts of the the building in which the landlord has an estate or interest. The wording is of some importance:

s 11 Repairing obligations in short leases

(1)In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor—

(a)to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b)to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c)to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

(1A)If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—

(a)the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest; and

(b)any reference in paragraphs (b) and (c) of that subsection to an installation in the dwelling-house included a reference to an installation which, directly or indirectly, serves the dwelling-house and which either—

(i)forms part of any part of a building in which the lessor has an estate or interest; or

(ii)is owned by the lessor or under his control.

(1B)Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.

So what mattered here was whether the paving was:

  • part of the exterior of the building, or of the hallway;
  • an area over which Mr K had an estate or interest;  and
  • whether it mattered that Mr K hadn’t been given notice of the defect in the paving before the accident, given the long-standing rule that a  landlord is not liable to repair the let property unless the tenant has given him notice of the defect.

The DDJ found for the tenant. This was reversed by the Circuit Judge on appeal, but her decision was reversed again by the CA, and so we get to the SC.

The Supreme Court Decision

You might wonder why things got so far, given the comparatively minor injuries. The answer is that landlords, and their insurers, got seriously worried about the idea of being held liable for defects about which they had received no prior ntice, and could see a whole army of trip-and-slip cases coming their way, and were determined to do something about it if at all possible.

Lord Neuberger gave the judgment in the SC, with a very short comment by Lord Carnwath.

He dealt with the first point robustly: – external paving is not part of a building, being outside the walls and roof, especially as it was felt necessessary to include “drains, gutters and external pipes” in the definition, and you can’t interpret the section so as to get round this. The CA decision of Brown v Liverpool Corporation (1969) (on earlier legislation) to the contrary was wrong, and the CA decision in Campden Hill v Gardner (1977) (on different earlier legislation) was to be preferred.

That disposed of the appeal, but the court gave its views on the other points as well.

The second point looks impossible to dispute – Mr K had a right of way over the paving and this is an “interest” for conveyancing purposes, even if it doesn’t amount to an “estate”. Attempts by Mr E’s counsel to argue that he had lost the interest while the sub-tenancy was in existence got nowhere. It was also pointed out that s3A of the Act protects landlords from limitations in their powers:

(3A)In any case where—

(a)the lessor’s repairing covenant has effect as mentioned in subsection (1A), and

(b)in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and

(c)the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,

then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs.

The third point was the one which raised the greatest amount of heat. The SC started off by going through the cases starting in Moore v Clark (1813) and decided that it was clear that notice was required for the parts of the premises let to the tenant – especially the interior – but not for the parts that the landlord retained – eg the roof and external walls. The argument was that a landlord can’t go barging in to the tenant’s property on the off-chance that there is a defect, but is liable for his own parts, and this is a fair division of responsibilities given that the landlord has rights to inspect under s11(6):

(6) In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair.

The position if the landlord had let other parts of the building to other tenants isn’t so clear, but on balance the landlord will be liable without notice.

It was argued that all s11 liability claims needed notice, but this was rejected: the general law would apply.

Finally Mr E’s counsel argued that as the paving was outside the flat the general rule meant that no notice was needed in this case. However, the court ruled that in the particular case the rights on the paving were the limited rights of a right of way and that Mr K would have no rights as against the freeholder to carry our repairs. And he had lost the right to exercise these for the duration of the tenancy. Hence Mr E, who was there every day, should have given him notice of the defect.

The consequences

Mr K the landlord won the battle but the wider implications are not entirely clear. Landlords will be pleased that they aren’t liable for defects in outside paving, in these slightly unusual circumstances. And that notice of defects has to be given if they are going to be liable. In most cases. Some tenants may have to rely upon the more limited rights under the Defective Premises Act 1972. I suppose the lesson to all is to mind how you go.

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