Kay constitutes the latest round in the debate over the application of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) to possession claims.
By way of brief background, the applicants were occupiers of housing stock belonging to Lambeth Borough Council. Possession proceedings were brought against them by Lambeth and, amongst other arguments, the applicants submitted that an order for possession would breach their Article 8 rights to respect for family life. That limb of the defence was struck out with no consideration of the applicants’ personal circumstances and whether they rendered Lambeth’s decision to seek possession disproportionate. The consequent appeals made their way to the European Court of Human Rights (“ECtHR”).
The ECtHR upheld the applicants’ complaints. In striking out the Article 8 defences, the UK courts had failed to observe the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference with the applicants’ rights to family life.
In reaching this decision, the ECtHR found it significant that UK domestic law had moved on since the decision in Kay that was under scrutiny. Dicta in Birmingham City Council v Doherty  UKHL 57 have considered the possibility of judicial review in possession cases encompassing Article 8 considerations as well as conventional Wednesbury unreasonableness. It was not clear, however, whether the ECtHR considered that Doherty went far enough, or if future judgments based on its principles may still be considered non-compliant with the Convention. A number of cases are pending before the Supreme Court with similar issues, which will hopefully clarify the domestic position. Until then, in practical terms, Kay has no immediate impact on the conduct of possession claims in the county court.
/ 2nd Nov 2010
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