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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> McDonald v McDonald & Ors [2016] UKSC 28 (15 June 2016) URL: http://www.bailii.org/uk/cases/UKSC/2016/28.html Cite as: [2016] WLR(D) 312, [2016] 2 P &CR DG22, [2016] HLR 28, [2016] 3 WLR 45, [2017] AC 273, [2016] HRLR 18, [2016] UKSC 28 |
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[2016] UKSC 28
On appeal from: [2014] EWCA Civ 1112
McDonald (by her litigation friend Duncan J McDonald) (Appellant) v McDonald and others (Respondents)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Carnwath
JUDGMENT GIVEN ON
15 June 2016
Heard on 15 and 16 March 2016
Appellant Kerry Bretherton QC Rebecca Cattermole Diane Doliveux (Instructed by Turpin & Miller LLP) |
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Respondents Stephen Jourdan QC Ciara Fairley (Instructed by TLT LLP) |
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Intervener (Secretary of State for Communities and Local Government) James Eadie QC Jonathan Moffett Heather Emmerson (Instructed by The Government Legal Department) |
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Intervener (Residential Landlords Association Limited - written submissions only) Jonathan Manning Justin Bates Alice Richardson (Instructed by Bury & Walkers LLP) |
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Intervener (Shelter - written submissions only) Matt Hutchings Jennifer Oscroft (Instructed by Freshfields Bruckhaus Deringer LLP) |
lord neuberger and lady hale: ( with whom Lord Kerr, Lord Reed and Lord Carnwath agree)
The factual and procedural background
The substantive facts
2. The appellant, Fiona McDonald, is aged 45 and, sadly, she has had psychiatric and behavioural problems since she was five. Dr Peter Sargent, an experienced psychiatrist, explained in his expert evidence that she had "an emotionally unstable personality disorder and at times when her mental state has deteriorated she has presented with frank psychotic symptoms". She has been unable to hold down any employment, and has not worked since 1999; since that time she lost two public sector tenancies owing to her behaviour.
5. As the rent was being regularly paid, and the arrears of interest were not substantial, the Receivers took no immediate steps to end the AST or to sell the property. However, not least because the arrears persisted, albeit not on a very large scale, the Receivers served a notice, in the name of the respondents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property. The notice was served under section 21 of the Housing Act 1988 ("the 1988 Act") and it expired on 14 March 2012.
The procedural history
6. On the expiry of that notice, the Receivers then issued the instant proceedings, again in the names of the respondents, for possession of the property in the Oxford County Court. In the light of the appellant's mental health, her brother, Duncan McDonald, was appointed her litigation friend. The proceedings came on for trial before His Honour Judge Corrie, who heard them on 4 December 2012 and 7 March 2013.
"[Homelessness], I am sure, would have a major detrimental effect on [the appellant's] mental health and she would decompensate entirely, very probably requiring admission to hospital. ...
I think that if she was evicted from the current accommodation ... she would have real difficulty in finding alternative rented accommodation that would accept her on benefits and in view of her mental health history including at times aggression towards others. I think that there is a significant possibility that she would become homeless as a consequence.
Even if alternative accommodation is found for her, I think that the stress and upheaval of trying to find and move into alternative accommodation would also very likely have a significantly detrimental effect on her mental health with the possibility of harm to herself or suicide, or the possibility of violence towards others which she has exhibited on a number of occasions when she has previously de-compensated under stress."
8. Judge Corrie gave judgment on 22 April 2013. In his judgment, he considered a number of issues which are no longer live between the parties, including whether the respondents had misled CHL (they had not), and whether the Receivers had had authority to serve the notice and bring the proceedings (they had). Accordingly, the judge concluded that, subject to the appellant's reliance on article 8, the court had no alternative to make an order for possession. He then turned to consider the appellant's article 8 case, and held that it was not open to her to require the court to consider the proportionality of making an order for possession against a residential occupier, given that the person seeking possession was not a public authority. He went on to hold that, if he was wrong on that issue, and he had been entitled to consider the proportionality of making an order for possession, he would have dismissed the action, because, "on balance", he would "have taken the view that those circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate".
9. The appellant appealed to the Court of Appeal, who dismissed the appeal - [2014] EWCA Civ 1049; [2015] Ch 357. The main judgment was given by Arden LJ, Tomlinson LJ gave a brief concurring judgment, and Ryder LJ gave a concurring judgment agreeing with them both. The Court of Appeal agreed with the judge that article 8 could not be invoked by a residential occupier in possession proceedings brought by a private sector landowner, as a ground for opposing the making of, or the terms of, the order for possession. However, they considered that, if article 8 could have been invoked in this case, the judge would have been wrong to dismiss the claim as he had indicated that he would have done.
10. The appellant now appeals to this court. Before turning to the three issues identified in para 1 above, it is appropriate to explain the relevant provisions of the 1988 Act, and, albeit in very summary terms, the history of the policy of successive Governments towards renting in the private sector.
Private sector residential tenants and the relevant statutory provisions
Government policy since 1977
12. Security of tenure, which only applied to tenants with private sector landlords, was accorded by the Rent Act 1977, whose provisions extended to most but not all such tenancies. In very summary terms, that Act (i) precluded a court making an order for possession against most such tenants unless one or more of a number of specified grounds could be established, (ii) permitted family members to succeed on the death of the tenant in some circumstances, and (iii) limited the level of rent which a landlord could recover from the tenant, often to a rate considerably below the market level. Under Chapter II of Part I of the Housing Act 1980, later replaced by Part IV of the Housing Act 1985, residential public sector tenants were for the first time given a substantially similar degree of security of tenure.
14. The 1987 White Paper therefore made proposals which were intended according to para 1.15 to ensure that "the letting of private property will again become an economic proposition". The White Paper therefore proposed two new types of tenancy, namely (i) an assured tenancy, which would be at a freely negotiated rent, but with the tenant having security of tenure (albeit somewhat more attenuated than under the Rent Act 1977), and (ii) an AST, under which the tenant would have very limited security of tenure, and either party could have an appropriate rent determined (which would be substantially less restricted than the rent fixed under the Rent Act 1977) - para 3.11.
18. Following the general election in 1997, the Labour Government stated that it did not intend to reverse the reforms affected by the 1988 and 1996 Acts, but "rather to build on them by promoting choice in both the public and private sectors", to quote from para 2.68 of a Law Commission Consultation Paper No 162 Renting Homes 1: Status and Security [2002] EWLC 162, citing a paper published by the Department for Transport, Local Government and the Regions, Quality and Choice: A Decent Home for All, The Way Forward for Housing (December 2000). That policy was continued by the Coalition government in 2010 and there is no reason to think that the Conservative government, elected in 2015, has different ideas.
19. Accordingly, since 1996, although the 1988 Act has been amended from time to time, its basic provisions have remained unaffected and continue to apply in England. (The Welsh Assembly has enacted a scheme based upon the Law Commission's recommendations on Renting Homes: The Final Report ( [2006] EWLC 297, Law Com No 297) which preserves essentially the same distinction between private and public sector tenancies.) Successive reports emanating from government departments have claimed that the decrease in statutory protection effected by the 1988 and 1996 Acts has been at least one of the factors which has served to reinvigorate the private residential rented sector in England and Wales over the past 25 years - see eg the annual English Housing Surveys issued by the Department for Communities and Local Government.
The Housing Act 1988 in its current form
"(1) An assured tenancy cannot be brought to an end by the landlord except by -
(a) obtaining -
(i) an order of the court for possession of the dwelling-house under section 7 or 21,
and
(ii) the execution of the order,
...
and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy.
(1A) Where an order of the court for possession of the dwelling-house is obtained, the tenancy ends when the order is executed.
(2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of -
(a) an order of the court [of] the kind mentioned in subsection(1)(a) ... , or
(b) a surrender or other action on the part of the tenant,
then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and ... his right to possession shall depend upon a periodic tenancy arising by virtue of this section.
..."
"[O]n or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied -
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord ... has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house."
(Various other restrictions on a court's power to order possession in relation to an AST have been added by the Housing Act 2004, the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations (SI 2015/1646) but nothing hangs on them for period proposed.)
"Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied -
(a) that the landlord ... has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above."
"Where a court makes an order for the possession of any land ..., the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order."
The issues
The first issue: can the appellant rely on proportionality?
Introductory
32. Article 8 of the Convention provides as follows:
"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 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."
34. Where the party seeking possession of residential property is a local authority, or other "public authority" within the meaning of section 6 of the Human Rights Act 1998, it is now well established that it is, in principle, open to the occupier to raise the question whether it is proportionate to make an order for possession against her, and if it is, to invite the court to take that into account when deciding what order to make. That is the effect of the decisions of this court in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186. Pinnock represented the resolution of a protracted inter-judicial dialogue between the House of Lords and the Strasbourg court, discussed in paras 25-50.
35. The view originally taken by the House of Lords was that, although a claim for possession of residential property by a local authority engaged the article 8 right of the residential occupier, the proportionality of making an order for possession was already taken into account by Parliament through the legislation which limited the landlord's right to obtain possession. However, the Strasbourg court took the view that the existence of the legislation did not prevent an occupier in such a case from raising her article 8 rights when possession of her home was being sought.
36. In Pinnock, para 49, this court concluded that, in the light of the Strasbourg court's clear and constant jurisprudence, "if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact". However, the Supreme Court also made it clear in paras 51 and 54 that it would "only be in 'very highly exceptional cases' that it will be appropriate for the court to consider a proportionality argument" and that "where ... the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate".
37. In Pinnock, it was made clear that the Supreme Court's conclusion, that proportionality should, if raised, be addressed (albeit that in the great majority of cases it could and should be summarily rejected) in every possession action against a residential occupier, only applied in cases where the person seeking possession was a local authority or other public authority. That was because section 6(1) of the 1998 Act only applied to "a public authority", which is unsurprising, given that the Convention is intended to protect individual rights against infringement by the state or its emanations. Thus, in Pinnock, para 50, the Supreme Court made it clear that "nothing" said in the judgment in that case was "intended to bear on cases where the person seeking the order for possession is a private landowner", and added that it was "preferable for this court to express no view on the issue until it arises and has to be determined".
"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."
Accordingly, as Ms Bretherton QC accepts on behalf of the appellant, unlike in the case of a public sector landlord, a judge invited to make an order for possession against a residential occupier by a private sector landlord would, if the appellant's argument is correct, have to balance the landlord's A1P1 rights against the occupier's article 8 rights. Either party would have a potential claim against the United Kingdom in Strasbourg if the balance were struck in the wrong place.
Preliminary view
40. In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant's home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants. In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the state's assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended. (It is true that the balance was initially struck in statutes enacted before the 1998 Act came into force in 2000. However, the effect of those statutes has not only been considered and approved in government reports since 2000, as mentioned in para 19 above, but they have been effectively confirmed on a number of occasions by Parliament, when approving amendments to those statutes since 2000).
41. To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable. Indeed, if article 8 permitted the court to postpone the execution of an order for possession for a significant period, it could well result in financial loss without compensation - for instance if the landlord wished, or even needed, to sell the property with vacant possession (which notoriously commands a higher price than if the property is occupied).
42. The contrary view would also mean that article 8 could only be invoked in cases where a private sector landowner, or other private sector entity entitled to possession in domestic law, was either required by law, or voluntarily chose, to enforce its rights through the court, as opposed to taking the law into its own hands - eg by changing the locks when the residential occupier was absent. There are a number of types of residential occupiers who are not protected by the Protection from Eviction Act 1977, and who can therefore be physically (albeit peaceably) evicted, such as trespassers, bare licensees, sharers with the landlord and some temporary occupiers, as well, it appears, as mortgagors - see Ropaigealach v Barclays Bank plc [2000] QB 263. The risk of otherwise facing an article 8 defence seems a somewhat perverse incentive for a private sector landowner to take the unattractive course of locking out the occupier rather than the more civilised course of seeking possession through the courts.
43. More broadly, it would be unsatisfactory if a domestic legislature could not impose a general set of rules protecting residential tenants in the private sector without thereby forcing the state to accept a super-added requirement of addressing the issue of proportionality in each case where possession is sought. In the field of proprietary rights between parties neither of whom is a public authority, the state should be allowed to lay down rules which are of general application, with a view to ensuring consistency of application and certainty of outcome. Those are two essential ingredients of the rule of law, and accepting the appellant's argument in this case would involve diluting those rules in relation to possession actions in the private rented sector.
44. It is, of course, true that a court, which is a public authority for the purposes of the 1998 Act (and is regarded as part of the state by the Strasbourg court), actually makes the order for possession which deprives the tenant of his home - and indeed puts an end to the AST. However, as Lord Millett explained in Harrow London Borough Council v Qazi [2004] 1 AC 983, paras 108-109, the court is "merely the forum for the determination of the civil right in dispute between the parties" and "once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate".
47. Given that that is our view as a matter of principle, it is necessary to consider the jurisprudence of the Strasbourg court to see whether it points to a different conclusion.
The Strasbourg jurisprudence
48. There are two admissibility decisions of the European Commission on Human Rights which are inconsistent with the appellant's case, and are understandably relied on by Mr Jourdan QC for the respondents. They are Di Palma v United Kingdom (1988) 10 EHRR CD149 and Wood v United Kingdom (1997) 24 EHRR CD69. Di Palma was a case where a private sector landlord forfeited a long and valuable residential lease for non-payment of a relatively small amount of service charge, and the court refused the tenant relief from forfeiture owing to her refusal to apply within the statutorily prescribed time. The Commission rejected the tenant's application, which was based on articles 6, 8, 13 and 14 and on A1P1, as manifestly ill-founded, as the Government's Convention responsibilities were not engaged by an "exclusively private law relationship between the parties" (p 154). The Commission also said that the fact that a domestic court made the orders granting forfeiture and refusing relief made no difference, as the court "merely provided a forum for the determination of the civil right in dispute between the parties" (p 155). In Wood, the same reasoning led to the conclusion that a mortgagor had no article 8 complaint if a private sector mortgagee sought and obtained possession of her home in circumstances in which she had failed to pay instalments due under the mortgage, which gave the mortgagee the right to seek possession as a matter of domestic law.
49. If these decisions represent the view in Strasbourg, they would be fatal to the appellant's case. However, Ms Bretherton QC contends that the Strasbourg jurisprudence has developed in a very different direction over the past 15 years. So far as possession actions brought by public sector landlords are concerned, this is undoubtedly correct, as the decisions discussed in Pinnock, paras 31-43, demonstrate. However, as we have explained, and as Ms Bretherton fairly accepts, there is a fundamental difference between public sector landlords (who owe their residential tenants an article 8 duty) and private sector landlords (such as those in the two admissibility decisions described in para 48 above, who do not). Accordingly, we do not consider that the decisions concerning cases where a public sector landlord seeks possession are of much relevance.
50. Of those decisions discussed in Pinnock, it appears to us therefore that Connors v United Kingdom (2005) 40 EHRR 9, Ble čić v Croatia (2006) 43 EHRR 48, McCann v United Kingdom (2008) 47 EHRR 40, Ćosić v Croatia (2011) 52 EHRR 39, Paulić v Croatia (Application No 3572/06) (unreported, [2009] ECHR 1614) 22 October 2009 and Kay v United Kingdom [2011] HLR 13 take matters little further for present purposes, as the party seeking possession was a public institution. The same applies to the decisions in Orlić v Croatia [2011] HLR 44 and in Buckland v United Kingdom (2013) 56 EHRR 16 (where the local authority owned the site - see para 60). The furthest any observations in those eight decisions can be said to go for present purposes is to support the notion that, whenever an order for possession is made by a court, article 8 is engaged. However, observations which appear to have that effect when read on their own in the context of claims by public authorities, cannot be confidently translated to cases involving private sector landlords seeking to enforce a contractual right to possession subject to legislative constraints. And, even if they can be so read, they beg the question whether a domestic court can be required to take into account the proportionality of making the order for possession required by the contractual terms as softened by domestic legislation.
51. Zehentner v Austria (2011) 52 EHRR 22 is at first sight of some assistance to the appellant, because the Strasbourg court held that article 8 rights could be invoked where the court had ordered a sale of the applicant's home to reimburse her creditors. However, quite apart from the fact that Austria does not seem to have challenged the contention that article 8 was engaged, the case was not concerned with the enforcement of a landlord's right to possession, but with statutorily created powers of a court to enforce debts owed to creditors by ordering the sale of the debtor's assets, including her home. The basis of the court's finding of incompatibility was that the decision of the domestic court refusing the applicant any opportunity to pay off what was owing to her creditors had been disproportionate, principally in the light of the absence of any procedural safeguards and the applicant's mental incapacity, which meant that the debts were unenforceable - see paras 61-65. The furthest this decision goes in assisting the appellant is to support the notion that article 8 is engaged whenever a court determines a tenancy of residential property and makes an order for possession. However, once again, the decision does not support the notion that article 8 can be invoked by a residential occupier to curb her private sector landlord's reliance on its contractual right to possession, where the statutory regime according her a degree of protection is not said to infringe the Convention.
52. Zrilić v Croatia (Application No 46726/11) (unreported, [2013] ECHR 921) 3 October 2013 is unhelpful for the same sort of reasons. It involved the partition and sale of a residential property. Croatia does not seem to have challenged the contention that article 8 could be invoked by the applicant, once she established that the property concerned was her home (see paras 42 and 59). Quite apart from this, the case involved the domestic court exercising its own powers of partition and sale, rather than enforcing the contractual rights of the parties subject to specific legislative protective provisions, and it was a case where both parties had article 8 rights. Thus, in para 65, the Strasbourg court described the domestic court's function as being "to seek a partition model which would be feasible and appropriate in the circumstances of the case". In any event, the application was rejected on the merits.
53. In two other cases involving Croatia, article 8 was successfully invoked by a residential tenant against whom a private sector landlord had obtained an order for possession. In Brežec v Croatia [2014] HLR 3, the land owner was a private company, but it had been a state-owned company when the tenancy was granted - a factor which the court plainly thought relevant (see para 48). In any event, Croatia did not rely on the subsequent privatisation to justify an argument that article 8 could not be invoked (see para 33). It therefore seems to us that the judgment in that case can take matters no further on this appeal. The same points can be made about the subsequent decision in Lemo v Croatia (Application No 3925/10, etc) (unreported, [2014] ECHR 755) 10 July 2014 (see paras 28 and 43).
54. For completeness, it is right to mention Belchikova v Russia (Application No 2408/06) (unreported, [2010] ECHR 2266) 25 March 2010, which also involved a private land-owner seeking possession (having inherited the property concerned after the former owner's death), but the decision is of no assistance as there appears to have been no challenge to the contention that article 8 could be invoked, it appears that the domestic law may well have involved a balancing exercise, and in any event the application was held to be manifestly ill-founded on the facts.
55. It is worth noting concurring opinions in two of the Strasbourg court decisions mentioned above, which are very much in line with Lord Millett's observation in Qazi, cited in para 44 above. In Buckland, para OI-1, Judge De Gaetano said that "while it is perfectly reasonable to require that an eviction ... notice issued by the Government or by a local authority ... should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenant's right should in principle be limited to challenging whether the occupation ... has in fact come to an end according to law". He added that "[i]n this latter case the proportionality of the eviction ... in light of the relevant principles under article 8 should not come into the equation". In Brežec, at pp 37-38, Judge Dedov, having pointed out that the applicant "did not ... challenge the privatisation of the properties", observed that, if the domestic court could hold that it was disproportionate to grant the land-owner possession when domestic law entitled him to it, it would represent an "interference" with "the private owner's claims", and that it "would have amounted to interference with the owner's rights and such interference would be arbitrary from the very outset, since the private owner cannot be responsible for the state's social obligations".
56. Another decision which deserves mention is Mustafa and Tarzibachi v Sweden (2011) 52 EHRR 24, where the Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant. The Strasbourg court held that this infringed the applicant's article 10 rights, but did not go on to consider their claim in so far as it was based on article 8 (see para 54). It is fair to say that the domestic court's involvement was enough to render the application based on articles 8 and 10 admissible (see paras 33-34). However, as we have already said, that does no more than establish that article 8 is engaged in a case where a private sector claimant seeks possession of a defendant's home pursuant to the terms of the contract between them.
57. Beyond that, it does not seem to us that Mustafa is of any assistance. Contrary to the submission on behalf of the appellant, we do not consider that this decision involved holding that article 10 could be invoked to vary the contractual rights as agreed between two private persons, in a case such as the present, where there is no suggestion that the legislature has failed to protect the relevant Convention rights. The effect of the decision in Mustafa, as we see it, was that the Swedish Government had failed to enact legislation to satisfy article 10, so far as individuals' rights to receive information by satellite were concerned, and that in those circumstances, unless the court had power to give effect to such rights despite the terms of the relevant contract, the applicants' article 10 rights would be infringed (see again para 34).
58. Indeed, it is worth noting that the Strasbourg court in Mustafa considered that para 59 of its earlier judgment in Pla v Andorra (2006) 42 EHRR 25 was in point (see footnote 8). In that paragraph the Strasbourg court said that it could not "remain passive where a national court's interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by article 14 and more broadly with the principles underlying the Convention". That is a long way from what this case is about.
Conclusion on the first issue
The second issue: could section 3 have applied?
64. There are, however, powerful arguments to the contrary. Both demoted and introductory tenancies can only be granted by a public authority landlord. There are three inter-linked reasons why decisions made by public authorities under the 1996 Act are different from decisions made by private landlords. First, public authorities are obliged to use their powers lawfully in accordance with the general principles of public law; it is open to a tenant to defend possession proceedings on the ground that the authority has acted unlawfully: see Wandsworth London Borough Council v Winder [1985] AC 461. As Lord Scott of Foscote pointed out in Doherty v Birmingham City Council [2009] 1 AC 367, at para 69, this concept of lawfulness has no application to a private landlord, who is entitled to recover possession of his property in accordance with the law for whatever reason he likes. He is not subject to the constraints of Wednesbury reasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223.
68. There is therefore not the same flexibility inherent in the language of section 21(4) of the 1988 Act as there is in the language of sections 143D and 127(2) of the 1996 Act such as to enable the court to read into it a requirement that the court consider the proportionality of making an order for possession. More importantly, however, there are substantive limits to what the courts can achieve under section 3(1) of the 1998 Act. It is "possible" to do a great deal with words. In the leading case of Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557, it was possible to read "as husband and wife" to include two people of the same sex. The courts had already learned what could be achieved by interpretation in order to make statutory provisions conform to a higher law, under the European Communities Act 1972 and in construing the legislation of certain Caribbean islands compatibly with the fundamental rights protected by their Constitutions. As Lord Rodger of Earlsferry put it in Ghaidan at para 119,
"Such cases are instructive in suggesting that, where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words."
"If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute."
Notably, Lord Rodger was looking at the legislation itself when seeking to draw the line, rather than its broader policy. In the case before us, the "scheme of the legislation" is to draw a careful distinction between those cases in which good grounds must be shown for obtaining possession and those cases, such as this, where no ground need be shown. The "essential principles" disclosed by its provisions are that private landlords letting property under an AST should have a high degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property. Reading in an obligation to assess the proportionality of doing so in the light of the personal circumstances of the individual tenant would not "go with the grain of the legislation" but positively contradict it. All this can be concluded without considering the broader policy of the 1988 Act, which (as we have explained at paras 12 to 19 above) was to stimulate the re-growth of the private rented sector and in doing so to increase the supply of homes available to rent.
The third issue: would the judge have been entitled to dismiss the claim?
71. Even supposing that a proportionality assessment were required, at least where the occupier has crossed the "high threshold" of showing an arguable case, and section 21(4) could be read so as to accommodate it, what should the consequences be? The judge in this case held, that had proportionality arisen, he would "on balance" have taken the view that the appellant's personal circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. In reaching that obiter conclusion, he did not consider whether there were other solutions to the problems than dismissing the claim.
73. As Lord Phillips pointed out in Powell at para 103, the effect of section 89(1) is to increase the options available to the court. It may (a) make an immediate order for possession; (b) make an order for possession on a date within 14 days; (c) in cases of exceptional hardship make an order for possession on a date within six weeks; or (d) decline to make an order for possession at all. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between, even when taken as a proportion of those rare cases where proportionality can be successfully invoked. They could only be cases in which the landlord's interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier's right to respect for her home. The evidence filed on behalf of Shelter indicates that Pinnock defences hardly if ever succeed against public authority landlords save in combination with some other public law factor (although they may well provide a helpful bargaining counter in particularly deserving cases). Were a proportionality defence to be available in section 21 claims, it is not easy to imagine circumstances in which the occupier's article 8 rights would be so strong as to preclude the making, as opposed to the short postponement, of a possession order.
74. In this case, the judge referred to the fact that the arrears of interest on the mortgage were insubstantial and the rent was always up to date. That is, however, only part of the story. The loan which enabled the appellant's parents to buy this house was for a period of only eight years, expiring on 12 May 2013, three weeks after the judge gave his judgment. The lenders were entitled to their money back then. The amount due (apart from legal costs) was nearly £164,000. The best chance of recovering all that was due to them was to sell the property with vacant possession. It may be, as the appellant argues, that they could recoup everything by selling the property with the appellant as sitting tenant. This does, however, seem unlikely, as her parents would have been advised to do this if they could have done. It was also in their interests to achieve the best price possible on the property, in the hope of realising some equity (which might have helped their daughter find another home). In any event, it would be for the appellant to show that a possession order would be disproportionate, and that to refuse a possession order would not prevent the lenders from recovering the sums to which they were entitled. It is difficult to see how the appellant's circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders' right to be repaid.
Conclusion