Case No: B5/2008/1734
Neutral Citation Number: [2008] EWCA Civ 1316
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
(HIS HONOUR JUDGE EVERALL QC)
7LU00623
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 16th October 2008

Before:

LORD JUSTICE TUCKEY
and
LORD JUSTICE RIMER

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	BEDFORDSHIRE COUNTY COUNCIL
	Respondent/
Claimant 	
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PAUL TAYLOR AND OTHERS	
  Applicant/
  Defendants	

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Mr D Watkinson (instructed by Messrs Pierce Glynn).appeared on behalf of the Applicants

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Rimer:  

1.	This is the hearing of an application which on 28 August 2008, on the papers, I adjourned to an oral hearing before two Lords Justices. There are four appellants: Paul Taylor, Russell Atkin, Carl Birch and David Lynch. The respondent is Bedfordshire County Council. The appellants have been represented before us by Mr Watkinson. We also have the benefit of a skeleton argument in opposition by Bedfordshire, which I requested (but specifically did not direct) by my earlier order.  If I may so, I have found it most helpful.

2.	The proposed appeal is against an order made His Honour Judge Everall QC on 1 July 2008 in Luton County Court requiring each appellant to give up possession of dwellings they occupy on land at St Margaret’s, Streatley, Bedfordshire. The judge found that each appellant was a trespasser and that Bedfordshire was the freehold owner.  There is no challenge to that by the proposed appeal. The original grounds of appeal raised a defence under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, being a ground that the appellants now no longer wish to pursue. In short, it was based on the unfulfilled expectation, or at least the hope, that the then pending decision of the House of Lords in Doherty v Birmingham County Council [2008] 3 WLR 636 would adopt the statement of the law to be found in the decision of the European Court of Justice in McCann v The United Kingdom, a decision of 13 May 2008, rather than apply the earlier decision of the House of Lords in Kay v Lambeth Borough Council [2006] 2 AC 465.

3.	Before the judge, the defendants recognised that Kay prevented their successful pursuit of a defence to the possession claim on the basis that it infringed their Article 8 rights. That was because the ratio of the majority decision in Kay, to be found in paragraph 110 of the speech of Lord Hope of Craighead, left no scope for any sensible argument on the point.  The factual situation in Kay was close to that of the present case, although the appellants make the point that the property in question in this case is not traditional housing stock, as in Kay, and also draw other distinctions, including the absence of evidence from Bedfordshire as to its intended use of the property if and when it recovers possession.

4.	In the event, the House’s decision in Doherty, delivered on 30 July 2008, did not adopt the principle explained in McCann but essentially reaffirmed Kay.  Nevertheless, it is said by the appellants that the decision in Doherty adds a material gloss to Kay; in particular, it is said that, contrary to the majority decision in Kay, it now enables the personal circumstances of the defendants to be taken into account in assessing the proportionality of a decision by a public authority to recover possession of property. As a result, the appellants have abandoned grounds (1) and (2) of the grounds of appeal attached to their original appellants’ notice, and have amended it to add a new ground (3), which is the only one they now wish to pursue. 

5.	Bedfordshire’s contrary argument is that Doherty does not change the law in any way relevant to the present case, which they say was on all fours with Kay and must be determined by Kay.  Doherty was, it is said, a different case in which the defendants had not been trespassers, and the question was as to the lawfulness for Article 8 purposes of the termination of their licences, a matter the House remitted for trial.

6.	There may well prove to be force in Bedfordshire’s argument that Doherty does not help the appellants. But a permission application such as this is not the occasion on which to wrestle with the effects, if any, of its some 56 pages of speeches on the decision in Kay.  Whilst, as my Lord has indicated, we do not hold out any encouragement to the appellants to expect success on the substantive hearing, I would give them permission to appeal on ground (3) of their amended grounds of appeal, but would formally refuse permission on grounds (1) and (2), which I understand anyway to be abandoned.  I would also continue the same stay and order that I made on 28 August 2008 until after the final disposal of the appeal or until further order in the meantime.

Lord Justice Tuckey:  

7.	I agree.

Order:  Application granted on ground 3 only.