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Judgments - Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)


SESSION 2005-06

[2006] UKHL 10

on appeal from: [2004] EWCA Civ 926

and [2005] EWCA Civ 289



for judgment IN THE CAUSE


Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents)


Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)



Appellate Committee

Lord Bingham of Cornhill

Lord Nicholls Of Birkenhead

Lord Hope of Craighead

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood




Jan Luba QC

David Watkinson

Kelvin Rutledge

Alex Offer

(Instructed by Davies Gore Lomax for the Leeds appellants, and Nicholas & Co and Thomas & Co for the Lambeth appellants)


London Borough of Lambeth

Andrew Arden QC

Terence Gallivan

John McCafferty

(Instructed by Devonshires)

Leeds City Council

Ashley Underwood QC

Thomas Tyson

(Instructed by Leeds City Council)


Philip Sales and Daniel Stilitz intervening in both appeals (Instructed by Treasury Solicitor) for the First Secretary of State

Written intervention in the second appeal by Justice and Liberty

Hearing dates:

12, 13, 14 and 15 December 2005



WEDNESDAY 8 march 2006





Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents)

Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants)

[2006] UKHL 10


My Lords,

    1.  These appeals have been joined and heard together because they raise an important common issue on the scope and application of the right to respect for the home protected by article 8 of the European Convention on Human Rights and the Human Rights Act 1998. The House is invited to reconsider and depart from its decision in Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983.

The Lambeth appeal

    2.  The first (Lambeth) appeal also raises a discrete issue on the occupation status of the appellants as the result of transactions between the London Borough of Lambeth, the London & Quadrant Housing Trust and them over a period of years. On that issue, I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote, with which I am in complete agreement and to which I cannot usefully add. I need not repeat the facts summarised in his opinion. I take as the legal and factual premise of this opinion that, on termination by Lambeth of the headleases to Quadrant and notification by Quadrant to these appellants of that termination, the appellants' right to occupy their respective premises came to an end and they continued in occupation with no right to do so under the domestic property law of England and Wales.

    3.  In July 2000 Mr Gorman (the second-named Lambeth appellant) brought an action against Lambeth seeking a declaration that he was a secure tenant. In August 2000 Lambeth began summary proceedings for possession against all these appellants including Mr Gorman. In his case, the claim was struck out as abusive, and Lambeth sought an order for possession by way of counterclaim. Since the other appellants were also seeking recognition as secure tenants, the issue was in each case the same.

    4.  For detailed reasons given in his judgment dated 13 December 2002, His Honour Judge Roger Cooke resolved all the domestic property law issues against the appellants. The judge then heard argument on the appellants' alternative defence based on the European Convention and the 1998 Act and, following the decision of the House in Harrow London Borough Council v Qazi [2004] 1 AC 983, he struck it out. His decision on that ground (as on the domestic property law ground) was upheld by the Court of Appeal (Auld, Latham and Arden LJJ) [2004] EWCA Civ 926, [2005] QB 352. Certain Convention issues argued in the Court of Appeal have not been pursued in the House, and only the appellants' argument on article 8 remains for decision.

The Leeds appeal

    5.  In the second (Leeds) appeal there is an additional issue, on the extent to which, if at all, our domestic rules of precedent are, or should be, modified to give effect to our obligations under the European Convention and the duties imposed on domestic courts by the 1998 Act.

    6.  The respondent, Leeds City Council, is a local authority and the freehold owner of a recreation ground at Spinkwell Lane in Leeds. On about 24 May 2004 that land was occupied by travellers without the Council's permission. By 2 June 2004 the first group of travellers had left but others had arrived. On 13 June these appellants (who are the Maloney family) moved onto the site. On 15 June the Council issued proceedings for possession in the Leeds County Court. On 24 June, the return date on the claim form, the appellants attended and were represented. On 22 September the proceedings were transferred to the High Court. They had originally been issued against Mr Price, Mr Smith and Persons Unknown, but the Maloney family were the only occupiers to appear at court or contest the proceedings and they were formally joined as defendants on 18 October 2004 when the claim was heard.

    7.  The Council claimed possession as freehold owner against the appellants as trespassers. The appellants did not challenge the Council's title, and they claimed no leave or licence to enter or occupy the land. They based their defence on article 8, averring that, although the statutory scheme for the protection of gipsy families, taken with the Government guidance, was compatible with the Convention, the Council could not rely on this when it was itself in clear and substantial breach of its obligations under the scheme and the guidance. They also asserted that their personal circumstances and those of their immediate family were exceptional, and so required the Council to justify evicting them.

    8.  In making these allegations of breach against the Council the appellants contended that the Council

    "(a)  had not addressed the needs of the gipsy population in its homelessness strategy at all, contrary to the Homelessness Act 2002 and the Government Guidance given thereupon. This was also averred to be in breach of its obligations under the Race Relations Act 1976;

    (b)  had failed to deal adequately with the needs of the gipsy community in its Unitary Development Plan. This was alleged to be contrary to both the Homelessness Act 2002 and the Government Guidance given thereupon and to be a breach of the Respondent's duties under the Race Relations Act 1976;

    (c)  did not have a Race Relations Strategy which made any provision for the needs of the gipsy/traveller population;

    (d)  had not complied with the Guidance given either in the 1998 DETR and Home Office publication, 'Managing Unauthorised Camping: A Good Practice Guide' or that given in Circular 18/94."

    The appellants further submitted that these alleged failures had to be seen in context, namely that:

    "(a)  the [Council] had declined to consider additional site provision for the gipsy community; despite the fact that this should be a key part of any homelessness strategy, and;

    (b) there was only one official site in the Leeds metropolitan area. This site was full and had a waiting list. Approximately 20% of the gipsy population of Leeds consequently lived on unauthorised encampments."

    The appellants further relied on a number of matters particular to them and at the date of trial:

    "(a)  in the 12 months immediately prior to them moving onto the land at Spinkwell Lane the family had either been evicted or forced to move under the threat of eviction in excess of 50 times;

    (b) in May 2004 Kim Maloney had been admitted to the Leeds General Infirmary suffering from exhaustion and stress resulting directly from these regular moves. She had been in hospital for 2 nights;

    (c) Patrick Maloney (Senior) suffered from Alzheimer's disease. He was also affected by a serious head injury which he had sustained in a road traffic accident. He was unable to copy on his own and had significant memory loss and care needs;

    (d) Ellen Maloney suffered from depression and associated psychiatric problems as detailed in the report of Dr K Rix. She also had mobility problems;

    (e) Ellen Elizabeth Maloney suffered from fits. She was hospitalised with pneumonia at the beginning of June 2004. She was only one year old. Her mother Kathleen Maloney was a single parent;

    (f) Patrick Maloney (Junior) had major mental health problems as a result of a serious head injury he sustained following a vicious assault on him on 4th July 1998. He was also blind in one eye following a further attack with broken glass. His mental health condition was variable and unpredictable;

    (g) there were 3 school age children residing on the site;

    (h) Patrick Maloney (Senior) had just been treated as an inpatient at the Leeds General Infirmary for a gall bladder problem. He was admitted to the hospital on 9th July 2004. He was awaiting further admission and treatment;

    (i) Patrick Maloney (Junior) had recently suffered from bowel problems and had been treated as an inpatient at St James' hospital for about 3 weeks. He was awaiting further investigations."

    9.  Before the trial, by a letter dated 8 October 2004, the Council had formally notified the appellants that they had been found to be unintentionally homeless and in priority need, and had accepted a duty to help them secure accommodation. The appellants at trial contended that in all the circumstances an order for possession was neither necessary nor proportionate. The Council replied that it had an absolute right to possession, that the Human Rights Act had no application to the case and that the court had no need to consider questions of necessity, justification or proportionality. It had been agreed that the question whether article 8 of the Convention could in law provide the appellants with a defence to the Council's claim for possession should be resolved as a preliminary issue and on the trial date His Honour Judge Bush, sitting as a judge of the High Court, heard submissions and reserved his decision.

    10.  On 25 October 2004 the judge gave judgment resolving the preliminary issue in the Council's favour. Holding himself bound by the decision of the House in Qazi and that of the Court of Appeal in the Lambeth appeal, he held that the Council's contractual and proprietary claim to possession could not be defeated or qualified by article 8. He made an order for possession forthwith, and refused a stay of execution, but granted leave to appeal to the Court of Appeal.

    11.  After this order the appellants left the site. But they appealed to the Court of Appeal (Lord Phillips of Worth Matravers MR, Brooke and Sedley LJJ), which on 16 March 2005 dismissed the appeal: [2005] EWCA Civ 289, [2005] 1 WLR 1825. The court held that it was bound by the decision of the House in Qazi, [2004] 1 AC 983. But it considered that decision to be incompatible with a later decision of the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189 and granted the appellants leave to appeal to the House.

Mr Qazi's case

    12.  The facts of this case were summarised by four members of the House (paras 2-3, 40-44, 90-92 and 112-114), and were of the simplest. The local authority were the freehold owners of a house which they let to Mr Qazi and his wife as joint tenants. After some six years she left, with their daughter, and she gave notice to quit, which brought the tenancy to an end. He applied to the local authority for the grant of a tenancy to him alone, but this was refused. The authority issued proceedings for possession, which he resisted. He had married another wife in an Islamic ceremony before the proceedings began, and was later living at the house with her and her young son. He based his resistance to the claim for possession on the right to respect for his home, protected by article 8 of the European Convention, to which effect in the domestic law of the United Kingdom was given by the 1998 Act. Article 8 provides:

    "(1)  Everyone has the right to respect for his private and family life, his home and his correspondence.

    (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 well-being 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."

    13.  In the House there were said to be two issues and a third potential issue (para 6), and there was no difference of opinion on the formulation of the issues (para 28). They were (1) whether, when proceedings were issued and possession was ordered, the house was Mr Qazi's home within the meaning of that expression in article 8 and, if so, (2) whether what the local authority did or proposed to do infringed his right to respect for his home. If those questions were answered in Mr Qazi's favour, there arose the issue whether the local authority's action or proposed action was justified.

    14.  At first instance, the recorder answered the first question in the local authority's favour and adversely to Mr Qazi. He held that because Mr Qazi had no legal or equitable right in the house, it was not his home and article 8 was not engaged. He did not, therefore, address the remaining questions. The correctness of this answer to the first question was the main focus of debate in the Court of Appeal and in the House (per Lord Steyn, para 29). But the Court of Appeal unanimously took a different view, and a clear view was expressed by the House that the premises had at the relevant times been Mr Qazi's home within the autonomous meaning of that expression in article 8: see paras 11, 26, 68, 95, 99, 110.

    15.  A majority of members of the House, and perhaps all members, held in answer to the second question that there had on the facts been an interference by a public authority with Mr Qazi's right to respect for his home. That was my conclusion (para 24) and that of Lord Steyn (paras 30-33). Lord Hope (para 70) and Lord Millett (para 103) were, as I understand them, of the same opinion. Lord Scott (para 149) would for his part have ruled that article 8 was not in the circumstances applicable, but he also expressed agreement with Lord Hope and Lord Millett.

    16.  There was, however, a clear difference of opinion among the members of the House. In a case such as Mr Qazi's where a public authority had an unqualified right to possession under domestic property law, Lord Hope did not consider article 8 to be irrelevant (para 83) but held that article 8(2) is satisfied where domestic property law gives an unqualified right to possession (paras 78, 83). He concluded (para 84) that contractual and propriety rights to possession cannot be defeated by a defence based on article 8. Lord Millett was of a similar opinion: article 8 was engaged (para 100), but save in wholly exceptional circumstances there would be no lack of respect and no infringement of article 8, where an order is made in favour of a person entitled to possession under domestic property law (para 107). Lord Scott echoed this view in holding that article 8 cannot be raised to defeat contractual and proprietary rights to possession. Lord Steyn and I, dissenting, were of opinion that where, as in that case, there was a proposed interference with a person's right to respect for his home, the question of justification, if raised, did fall to be considered (paras 24, 26), even though considerations of domestic property law were likely to be crucial (para 12) and the occasions on which a court would be justified in declining to make a possession order would, as the parties agreed, be very highly exceptional (para 25).

The Court of Appeal decisions under appeal

    17.  In its judgment on the Lambeth appeal [2005] QB 352, the Court of Appeal first considered at length and in detail the private law issues raised by the appellants, resolving them in favour of the local authority, as the House concludes, rightly. The court then turned to the article 8 issue and (para 93 of the judgment) the decision of the House in Qazi, and stated what it understood to be the ratio of the majority. In para 98 it said:

    "The majority opinions are based, it seems to us, on the logic that the incidents of the domestic law of landlord and tenant provide the answer to the question whether or not, in any case, the interference with the person's home is justified under article 8(2)."

In para 100 it added:

    "The fact is that Lambeth has an unqualified right to possession. And on the basis of the majority opinions in Qazi's case by which we are bound, that is a sufficient answer to the claim under article 8."

Thus the appellant's article 8 claim was bound to fail. After reserving judgment, the court received the judgment of the European Court in Connors (paras 20, 22 below). It heard no oral argument on the significance of that decision, but concluded (para 106) that it could not affect its assessment of the decision of the House in Qazi and that it was of assistance to UK courts only in relation to cases involving gipsies.