A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
This time however the Court found that proportionality can be considered at enforcement stage after a Possession Order has been made.
JL was a tenant of the Secretary of State for Defence due to her husband being an Army Officer. Their relationship broken down in 1989 and JL was allowed to remain in the Property with her two daughters and her grandchild on compassionate grounds. This was supposed to be a temporary arrangement to allow JL to obtain alternative accommodation from the local Council. JL suffered from long standing physical difficulties and one of her daughters has long standing mental health issues. JL’s grandson suffers from Crohns Disease.
It was not until 2007 that possession proceedings were commenced. JL sought to rely on interference with her Article 8 rights in her Defence. Article 8 gives a right to respect for private and family life including a person’s home.
We are all familiar with the concept of proportionality as introduced by the Pinnock case however JL’s possession proceedings were heard before this decision was made.The Judge in the possession proceedings therefore had no choice but to dismiss JL’s Article 8 arguments as the law did not allow such defences at that time. A Possession Order was therefore made in May 2009.
JL made a homeless application to the Council who took into consideration the health of both JL and her family and gave JL the highest priority for re-housing. The requirements for a suitable property were very specific and took into account JL’s mobility and health issues.
The Secretary of State voluntarily allowed JL a period of six months to find alternative accommodation and she remained in the Property. However, it wasn’t until March 2011 that a Warrant for Possession was issued.
JL sought to argue Article 8 rights at the enforcement stage as a reason why the Warrant should be stayed. At this time Pinnock had now been decided and was applicable, it was thought, to claims only before a Possession Order was made. The Court dismissed her Appeal but agreed that Article 8 rights and proportionality should and could be considered by the Court even as late as an application to suspend a Warrant. The Court did say however the circumstances where a Defendant could raise these issues would be "exceptional". Only if there has been a significant change in the tenant’s personal circumstances will a Judge allow such an argument to be considered.
An example given by the Judge was where a tenant is diagnosed with a terminal condition after the making of a Possession Order and it would be disproportionate for the landlord to evict that tenant before they were allowed to die peacefully at home.
The Court also stated that attempts to raise such arguments again, after they had already been dealt with at Trial, could be seen as an abuse of process. Likewise if the Defendant could have raised the issues during the hearing of the original Possession claim he or she will struggle to persuade a Judge to listen to such an argument at this stage.
Practical Advice for Hearings
Should you attend a Warrant suspension hearing and the Defendant seeks to raise proportionality issues, be ready to make submissions to the Judge arguing that either:
- These issues were heard and already dismissed at Trial; or
- They could and should have been raised at Trial and weren’t; or
- There has been no significant change in the Defendant’s personal circumstances so as to allow the Court to take such arguments into consideration.
If there has been a change in circumstances or the Judge deals with the argument remember the general points in relation to dealing with proportionality issues raised at Court:
- The Court will only have to consider proportionality if the occupier raises the issue;
- The occupier will need to cross the high threshold of proportionality being 'seriously arguable'.
- That 'seriously arguable' threshold will be crossed in only a small proportion of cases.
- The Landlord’s reasons for seeking possession where it has a legal right to possession to which there is no defence is a 'given'.
- If the Landlord does include the reasons that it has relied on it must include, i.e. 'plead', those reasons in its Court papers and produce evidence to support what it is saying.
- If the Proportionality Defence put forward is not seriously arguable then it will not be necessary for the Judge to adjourn the case for further consideration and the Warrant suspension application should be dealt with at the first hearing.
For more information
Should you wish to discuss the implications of this case please call any member of our Housing Litigation team on 0121 212 7400 or Alex Loxton on firstname.lastname@example.org.
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