Article 8 Defences – Does the Court of Appeal’s decision in Jones v Canal and River Trust refusing summary disposal have lessons for housing cases?
9 March 2017
James Stark, who represented the successful Appellant in this case, Jones v Canal & River Trust  EWCA Civ 135, and who was instructed by Chris Johnson of the Community Law Partnership, explores the Court of Appeal’s decision.
The Canal and River Trust (CRT) applied for a declaration that it was entitled to remove the Appellant and his boat “Mrs T” from the Kennett and Avon Canal as it had purported to terminate his licence to be on the canal granted under Section 17 British Waterways Act 1995. They also sought injunctive relief requiring not only the removal of the boat but also prohibiting its return to any part of its network of inland waterways. They alleged that they were entitled to do so on the basis that the Appellant had not moved his boat far enough or regularly enough along the canal to comply with his continuous navigation licence.
Mr Jones defended the claim on the basis that he was not in breach of his licence, that his difficulties with moving arose from his disabilities and therefore his removal would have been an act of unlawful discrimination under the Equality Act 2010 (EA) and that it would breach his right to respect for his home under Article 8 (A8) of the European Convention on Human Rights (ECHR).
In 2014 CRT applied to strike out Mr Jones’ A8 defence on the basis that by analogy with the approach adopted in Manchester City Council v Pinnock and Hounslow BC v Powell a very high threshold would need to be crossed for an A8 defence to be even arguable and that had not been met. Mr Jones argued that the removal of a boat from the whole inland waterway network was not analogous to eviction from a council house as the legitimate aims relied upon by CRT would be very different to those in respect of social housing and the weight of those aims could not be taken as given as, for example, removing a boat from the canal did not involve usurping any allocation decision or making hard choices, for example, as to whether a failed successor rather than a person on the waiting lists with greater needs should have a home. It was also argued that the A8 defence was inextricably linked to the other defences and that as it was admitted that A8 considerations would be relevant to any relief to be granted it was illogical to strike out the defence for one purpose but then accept A8 may then be relevant at a later stage.
The County Court Judge at Bristol, HHJ Denyer QC, struck out the A8 defence albeit that he described the matter as finely balanced. McGowan J dismissed an appeal to the High Court in a very short judgment and whilst she did not agree that the matter was finely balanced her judgment did not explain why.
The Court of Appeal allowed Mr Jones’ appeal and reinstated the A8 defence. In summary LJ McCombe, with whom LJ Jackson and LJ Sales agreed, held:
1. That the approach in Pinnock and Powell was applied to residential social landlords because the balance between social landlords and occupants was well tried and tested before the courts. The relative weight of those considerations was well known. That did not apply necessarily to other public authorities such as CRT (para 41);
2. The relative weight of a boat operator’s A8 rights cannot be readily assessed against CRT’s obvious public responsibilities (para 44);
3. That although CRT’s management responsibilities may be taken as given, the relative weight may not especially where there is a dispute as to whether CRT was entitled to act as it did in terminating a licence (para 46);
4. That it may be possible to dispose summarily of such defences if the boat owner was in persistent breach of insurance requirements or safety standards or was in flagrant and persistent breach of licence conditions (para 47); and
5. This did not apply however, if there was a dispute as to whether the licence was breached or other interlocking defences such as under the EA 2010 or where CRT was seeking removal not from a mooring where property rights were being asserted and there was no attempt to remove the boat from the part of the river that passed through the area (para 49).
Applying those principles to the Mr Jones’ case, the Court found:
1. Mr Jones’ A8 rights could not be properly disposed of: (a) until the question as to whether he was in breach of his licence conditions; (b) his EA 2010 defence could not be summarily determined; and (c) due to the extensive nature of the relief sought (para 55), the A8 defence could not be revisited for the purpose of relief alone (para 56); and
2. The fact that a structured proportionality approach was appropriate applied to an A8 defence once raised. It was not necessary for CRT to plead its legitimate aims at the outset, albeit it might well be wise to plead them in response to an A8 defence (paras 58 and 61). The burden of having to deal properly with an A8 defence is not a good reason for striking them out.
This is an important case not only for those living on the inland waterways facing the removal of their boat and homes from the canal or river, but for all those where the interference by a public authority with their right to respect for a home is concerned.
For boaters, it is unlikely, unless their A8 defence is obviously weak or that their breaches of their licence are flagrant and persistent and without any reasonable explanation, that it would be appropriate for their A8 defence to be dismissed summarily. One might hope this will also lead to careful consideration of an individual’s circumstances by CRT before they seek enforcement action to remove a boat and its residents from the canal.
More generally, LJ McCombe also made interesting observations at paragraph 52 as to the approach applied in housing cases to proportionality. In Powell Lord Hope had disavowed the application of a structured proportionality approach. LJ McCombe, however, took the view that the Pinnock line of cases was not a true exception to a structured proportionality approach merely that in public authority housing cases A8 issues are more amenable to a pre-trial summary assessment and determination in the authority’s favour than in other cases in which issues of proportionality arise. He relied on Lord Neuberger’s important statement in Pinnock that:
“The question is always whether the eviction is a proportionate means of achieving a legitimate aim“.
In my view LJ McCombe’s rather more nuanced analysis has much to say for it. If an assessment of proportionality in housing cases means excluding entirely the four stage test set out in Bank Mellat v HM Treasury No 2  UKSC 38 & 39 (at paragraphs 20 to 21 – note that the judgment for No 2 follows that of No 1 in the link) then how is the judge to assess proportionality at all?
The facts of the case and the personal circumstances of the occupier are likely to be relevant in particular to: (a) is there a rational connection to the objective; (b) whether a less intrusive measure could have been used; and (c) whether having regard to these matters and the severity of the consequences, whether a fair balance has been struck between the rights of the individual and the interests of the community.
It may well be that what Lord Hope really meant in Powell was that the whole of the structured proportionality test did not apply in particular whether the objective is sufficiently important to justify the limitation of a fundamental right can be taken as given in housing cases. The thrust of his judgment is directed it seems to making it clear that the assessment of proportionality did not always require the application of that test at a trial, especially because of the great weight of the housing authority’s management responsibilities. It also would reflect the fact that in many cases, eg, against failed successors whom the landlord wishes to replace with a new tenant, the objective can only be met by eviction.
The adoption of LJ McCombe’s analysis will hopefully lead to more focused A8 defences and also to careful scrutiny at the summary assessment stage in housing cases as to whether the defence is seriously arguable.
James Stark is a barrister at Garden Court North Chambers.