Kay And Others v United Kingdom: ECHR 21 Sep 2010

References: [2010] ECHR 1322, 37341/06
Links: Bailii
Ratio: (Fourth Section) After carefully considering the various views expressed in the House of Lords in Kay v Lambeth [2006] 2 AC 465 and Doherty v Birmingham [2009] 1 AC 367, and the relevant decisions of the Court of Appeal, the EurCtHR stated, at paras 65-68, that the principles laid down in Connors v UK (2005) 40 EHRR 9 and McCann v UK (2008) 47 EHRR 40 applied. In so far as the law had subsequently been developed in Doherty v Birmingham [2009] 1 AC 367, this development could not be relied on in this case.
‘The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8. A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants’ to encompass more than just traditional Wednesbury grounds (see Lord Hope at para 55; Lord Scott at paras 70 and 84 to 85; and Lord Mance at paras 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants’ cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach [in Kay v Lambeth [2006] 2 AC 465] although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue.’ and
‘In conclusion, the Kay applicants’ challenge to the decision to strike out their article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of article 8 of the Convention in the instant case.’
Statutes: European Convention on Human Rights 8
This case cites:

  • See Also – Kay And Others v United Kingdom ECHR (37341/06, Bailii, [2008] ECHR 1193, [2011] HLR 13)
    . .
  • Applied – Connors v The United Kingdom ECHR (66746/01, [2004] HLR 52, Times 10-Jun-04, Bailii, [2004] ECHR 223, (2004) 40 EHRR 189, Bailii, [2004] 40 EHRR 9)
    The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
  • Applied – McCann v The United Kingdom ECHR (4839/03, Bailii, [2008] ECHR 978, [2008] BLGR 474, [2008] 20 EG 136, [2008] 2 FLR 899, [2008] Fam Law 729, [2008] 28 EG 114, [2009] L and TR 4, [2009] 1 FCR 390, [2008] HLR 40, [2008] 2 EGLR 45, (2008) 47 EHRR 40)
    The local authority had determined Mr McCann’s right to remain in his home by obtaining from his wife a notice to quit, the effect of which (surrendering their joint tenancy) upon him she did not understand. He said that this interfered with his . .

(This list may be incomplete)
This case is cited by:

  • Cited – Manchester City Council v Pinnock SC (Bailii, [2010] UKSC 45, UKSC 2009/0180, SC Summary, SC, [2010] WLR (D) 278, WLRD, [2011] HLR 7, [2011] 1 All ER 285, [2010] 3 WLR 1441, [2011] PTSR 61, [2010] BLGR 909, [2010] 45 EG 93, [2010] NPC 109, Bailii Summ)
    The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
  • Cited – Manchester City Council v Pinnock SC (Bailii, [2011] UKSC 6, [2011] 2 All ER 586, [2011] NPC 16, [2011] 2 WLR 220, UKSC 2009/0180, SC Summary, SC, [2011] 2 AC 104)
    The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .

(This list may be incomplete)

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