Kay and others and another (FC) (Appellants) v. London Borough of Lambeth and others (Respondents) and Leeds City Council (Respondents) v. Price and others and others (FC) (Appellants), (2006)



SESSION 2005-06



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)



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




Borough of Lambeth

Andrew Arden QC

Terence Gallivan

John McCafferty

(Instructed by Devonshires)

Leeds City


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...

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