Neutral Citation Number: [2008] EWHC 499 (QB)

Case No: N/K
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 29 January 2008 
BEFORE:

THE HONOURABLE MR JUSTICE FLAUX

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BETWEEN:

AUSTIN	
Appellant	
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	SOUTHWARK LONDON BOROUGH COUNCIL
	Respondent	

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Mr Desmond Rutledge (Instructed by Anthony Gold) appeared on behalf of the Appellant
Mr Shaw Kelly (Instructed by London Borough of Southwark) appeared on behalf of the Respondent
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Judgment

MR JUSTICE FLAUX:
1.	The late Alan Austin, the brother of the present Appellant, Barry Austin, was granted a tenancy of Council property by the London Borough of Southwark in 1983.  Following default in paying rent the Council commenced possession proceedings in the Lambeth County Court in 1986.  Those proceedings culminated in an order for possession dated 4th February 1987, which was suspended for 28 days so long as Mr Austin paid the rent by 4th March 1987.  He appears to have remained in arrears, but the Council took no steps to enforce the possession order so that he remained, what is known as a tolerated trespasser, until his death nearly 20 years later.

2.	It is important to note at this stage that the tenancy came to an end with the possession order in 1987.  That is the effect of the decision of the House of Lords in Burroughs v. London Borough of Brent [1986] 1WLR 1448.  However, under s.85(2) of The Housing Act 1985 a court could have made an order postponing possession at the behest of Mr Alan Austin.  This is known as a Lazarus order, presumably because the effect of it, as held by the House of Lords in Burroughs, is to revive the tenancy, provided that whatever conditions have been imposed by the court, such as payment of rent, are complied with.

3.	The present Appellant, Mr Barry Austin, went to live with his brother in the premises in October of 2003 to care for his brother during his last terminal illness.  Mr Alan Austin died on 8th February 2005.  Thereafter, Mr Barry Austin made an application to Southwark Council to succeed his brother as tenant, which was refused.  Notice to quit was served on him in September 2006, and possession proceedings were commenced in January 2007.  In April 2007, those proceedings were adjourned by a District Judge pending Mr Barry Austin’s application under CPR Part 19.8 to be appointed to represent the Estate of Alan Austin who died intestate.  The avowed purpose of that application was to then apply in the earlier 1986 possession proceedings on behalf of the Estate for a Lazarus order reviving the tenancy.  Once that was achieved Mr Barry Austin would be entitled to succeed Mr Alan Austin as tenant under s.87(b) of The Housing Act.  The difficulty which that application faced, as was accepted when the application came before his Honour Judge Welchman in the Lambeth County Court on 5th September 2007, is that in London Borough of Brent v. Knightly [1997] 29 Housing Law Reports 857, the Court of Appeal decided that the right to apply for a postponement of an order for possession under s.85(2) is not an interest in land capable of being inherited so that, as a matter of English law, once Mr Alan Austin died any right he had before his death to make an application for a Lazarus order ceased. 

4.	What is contended on behalf of Mr Barry Austin by Mr Rutledge, is that that decision ante-dated the coming into force of The Human Rights Act 1998 and that that decision is at least arguably not compliant with the European Convention on Human Rights, specifically Article 1 of Protocol 1 to that Convention, which provides as follows:
“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 proceeding 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.”

5.	What Mr Rutledge on behalf of Barry Austin wishes to contend, is that the effect of a decision that the right to revive the tenancy does not survive death, was to deprive the Estate of its possession in breach of that Article.  Alternatively, he contends that Mr Barry Austin has a legitimate expectation of being able to apply to revive the tenancy and, that that legitimate expectation can be regarded as a possession under Article 1 of the Protocol.  All this was explained to his Honour Judge Welchman and he alludes to in paragraph 8 of his judgment.  The Learned Judge decided that Part 19.8 had no application here, because the earlier possession proceedings had effectively reached a conclusion so that it was unreal to talk about this being an ongoing matter.  Although the judgment is not entirely clear, it seems to me that Mr Kelly, having drawn his attention to Lord Bingham’s speech in Kay v. Lambeth Borough Council [2006] 2AC 465 and specifically to paragraphs 43 and 45 of Lord Bingham’s speech, that the court must apply the doctrine of precedent and follow decisions of higher courts, save in exceptional circumstances, the Learned Judge was saying that, even if CPR 19.8 had applied in principle, he would not have exercised his discretion to make an order, because the decision of the Court of Appeal in Brent v. Knightly was binding on him and posed an insuperable difficulty to any claim.

6	Similar considerations seem to have influenced Blake J, in refusing permission to appeal.  He concluded that Brent v. Knightly precluded any claim by a personal representative to revive a tenancy, but that principle had not been doubted since the coming into force of the Human Rights Act and was binding on the judge and that there was no point in making any order under 19.8 as the claim was bound to fail.  He also concluded that if the Applicant had no interest for the purposes of 19.8, he would have no possession or right to respect for a home within the meaning of the European Convention on Human Rights, an important conclusion to which I will return later in this judgment.

7.	The application for permission was renewed orally at a contested hearing before Mackay J, on 21st December last year.  I have not been provided with a transcript, but I understand that he gave permission on the basis that the Learned County Court Judge had not grappled with the issues of European law, which the present application raised.

8.	The appeal pursuant to the leave of Mackay J raises two issues, although they are inextricably interlinked.  Firstly, did Alan Austin have an interest in a claim within the meaning of CPR Part 19.8 so that, at least in principle the Rule is applicable and secondly, is this an appropriate case for the court to exercise its discretion to make an order under CPR 19.8?

9.	Before considering the first question I should perhaps set out in this judgment the terms of the relevant Rule.  The Rule is headed “Death” and provides as follows:
“Where a person who had an interest in a claim has died and that person has no personal representative the court may order: (a) the claim to proceed in the absence of a person representing the Estate of the deceased or; (b) a person to be appointed to represent the Estate of the deceased.”

	So far as the first question is concerned there is a dearth of authority, indeed, I think one can safely say there does not seem to be any authority on what is meant by “an interest in a claim.”  It is important to note that the Rule contemplates a deceased’s interest in a claim in proceedings, which are to be carried on, on behalf of his or her Estate.  It does not permit the would-be personal representative to bring a claim in his or her own right.  Clearly, it seems to me, that the words of the Rule are wider than merely where the deceased was a claimant in proceedings or a counter-claimant and I certainly agree with Mr Rutledge that, so far as possible the court should give a broad construction to the Rule, which is obviously designed to ensure that the death of a person with an interest in the claim does not prevent disputes from being resolved between all parties who may have an interest in the claim.  Hence, as I see it, the reason for the provision in sub-Rule 4, which says that, “Before making an order under this Rule the court may direct notice of the application to be given to any other person with an interest in the claim.”  It seems to me that before his death Mr Alan Austin had a right to apply for a Lazarus order to postpone the 1987 possession order and to revive the tenancy and, that that was a claim for the purposes of CPR 19.8, in which he had an interest.  To that extent I accept the argument of the Appellant, but the matter does not end there.

10.	It seems to me, that Part 19.8 is predicated upon the relevant claim surviving death and being capable of being proceeded with, otherwise the sub-Rules in sub-Rule 1 make absolutely no sense.  In the present case the claim does not survive the death of Mr Alan Austin.  That is the effect of the decision of the Court of Appeal in Knightly.  Therefore, there is nothing in respect of which an order under CPR 19.8 could be made.  That seems to me to be fatal to the application in the present appeal.  

11.	It is no answer to say that this is all somehow contrary to Article 1 of Protocol 1, as I see it, for two reasons.  Firstly, the legal rule laid down by the Court of Appeal in Knightly that the interest or right of Mr Alan Austin to apply for a Lazarus order ceased with his death and did not pass to his Estate does not seem to me to amount to deprivation of his possessions within the meaning of Article 1, since he is dead and can no longer enjoy peaceful enjoyment of his possessions.  Secondly, Article 1 is intended to protect a citizen’s possession from arbitrary interference or deprivation by a public authority.  It does not confer substantive rights to property which do not otherwise exist.  That is the effect of the decision of the Court of Appeal in Kay v. Lambeth Borough Council [2005] QB 352.  In that case the London Borough of Lambeth leased property to London and Quadrant Housing Trust, which let the property, or rather let Mr Kay and others into possession of the relevant property under the authority of a licence granted by Lambeth.

12.	The Borough then sought possession of the relevant premises from London and Quadrant Housing Trust and the Defendants argued inter alia, that an order against them for possession would infringe their rights under Article 1 of Protocol 1.  The judge in the County Court struck that defence out and the Court of Appeal upheld that decision and it does so at the end of its judgment in paragraphs 107 and 108, which I will read:
“107 Turning then to the alleged breach of article 1 of the First Protocol, Mr Luba submitted that Mr Kay's tenancy with LQHT, which was a secure tenancy, was a possession for the purposes of this article. He submitted that Mr Kay was deprived of this possession by the act of Lambeth in serving notice as the head landlord to determine LQHT's lease, which had the effect of terminating Mr Kay's tenancy. This was an act of Lambeth as a public authority and accordingly a breach of the article unless it could be justified as being in the public interest. That is therefore an issue which Mr Kay is entitled to raise by way of defence.
108 This argument, ingenious though it is, is in our view fundamentally flawed. Lambeth accepts that Mr Kay's tenancy was a "possession" for the purposes of article 1. But that article is concerned to protect a citizen's possessions from arbitrary interference or deprivation by public authorities. As Lord Hope said in  Wilson v First County Trust Ltd (No 2)  [2004] 1 AC 816, para 106, the article "does not confer a right of property as such nor does it guarantee the content of any rights in property". The nature of Mr Kay's "possession" is therefore defined by domestic law. His tenancy was at all times vulnerable to the rule of domestic law that it would terminate on the lawful determination of LQHT's lease. The fact that the lease was terminated by notice given by Lambeth does not in any way change the nature of Mr Kay's "possession". Once LQHT's lease had been terminated, Mr Kay had no more right to be in the premises than Mr Qazi after his right to remain in occupation had been determined by the service by his wife of a notice to quit as joint tenant. The termination of Mr Kay's tenancy was the result of the exercise by Lambeth of its proprietary rights under domestic law. To accede to Mr Luba's submission would, accordingly, be to give Mr Kay, in effect, additional substantive rights, which was not the purpose, and can never be the effect, of article 1.”

I should add in parenthesis, that that point as to alleged breach of Article 1 of the First Protocol was not re-argued by Mr Luba when the case subsequently went to the House of Lords.

13.	It seems to me that the reasoning of the Court of Appeal there is equally applicable here.  Upon his death Mr Alan Austin’s right to apply for a Lazarus order ceased as did any right he had to possession of the premises as a matter of English law.  There was nothing capable of being passed to his Estate.  Accordingly, Article 1 is simply not engaged and thus, as I see it, the Human Rights Convention is not engaged.  In those circumstances it is not arguable that in this case somehow CPR 19.8 is not Convention compliant and has to be read under s.3 of The Human Rights Act in a way which makes it compliant.  It seems to me that this point is what Blake J had in mind in paragraph 4 of his reasons for refusing permission, to which I have already alluded.  In this context, it seems to me that it does not assist Mr Barry Austin to pray in aid his own potential right to possession if the obstacle of Knightly could be overcome and a Lazarus order could be made at the behest of Mr Barry Austin as personal representative of the Estate of Alan Austin.  That is because whatever else CPR 19.8 is dealing with, it is not covering the position of Mr Barry Austin to bring a claim in his own right.

14.	Dealing with the second issue, even if CPR 19.8 were capable of application in principle, contrary to the conclusion I have just reached, as it were, capable of operation in the abstract, it is clear from the permissive wording of the Rule that it involves a discretion.  In other words it says the court may make an order, that someone in the position of Mr Barry Austin does not have an absolute right to be appointed personal representative.  It is a matter for the discretion of the court.  In exercising the discretion the court has to have regard to the overriding objective, part of which entails ensuring that the courts are not concerned with claims which are bound to fail.  

15.	It seems to me, as I have said, that in paragraph 11 of his judgment, Judge Welchman did recognise that there was a discretion and decided that he would exercise it against the Appellant, because Knightly imposes insuperable difficulty in the way of the Appellant’s application, since the claim which he wishes to advance on behalf of the Estate is bound to fail.  It is said that that exercise of his discretion by Judge Welchman was flawed, because he did not deal with the European law issues and that seems to be what influenced Mackay J in giving permission to appeal.

16.	Mr Kelly submits, on behalf of the Council and Mr Rutledge fairly accepts that, this may be somewhat unfair, given that the judge was effectively told that the issue before him was the narrow procedural one and given the time constraints of the hearing in a busy list in the Lambeth County Court.  Either way, for the purposes of the appeal what matters is whether the ultimate conclusion reached that he would not exercise his discretion in favour of making an order under Part 19.8 was wrong.  In my judgment, it was not, for a number of reasons.  Firstly, as I have already held, I do not see how, whatever the position may have been in Mr Alan Austin’s lifetime, it can be said Mr Alan Austin was deprived of his possession by the rule in Knightly.  As I have already said, I do not see how Article 1 is engaged at all.  Secondly, again, as I have already held, if the purpose of the Convention is to uphold rights not create substantive rights where there were none before, under English law Mr Alan Austin’s Estate had no right to possession after his death, so again, it is difficult to see how the Article engages at all.  Thirdly, what is argued by Mr Rutledge is that, since Wilson v. First Courts Trust [2004] 1AC 816 and Kay in the Court of Appeal, the relevant Strasbourg jurisprudence has moved on in relation to what may constitute a possession.  It is contended that it is arguable that a legitimate expectation of Mr Barry Austin of obtaining a tenancy if a Lazarus order is made is capable of being possession.  

17.	Reliance is placed upon the decision of the European Court of Human Rights in Stretch v. United Kingdom, in fact, a case which was decided in June 2003 before the decision of the Court of Appeal in Kay.  That case was concerned with a very different scenario to the present one.  The Applicant had been granted an option under a lease dated September 1969 with Dorchester Borough Council, which provided for an option to extend the lease for a further period of 21 years beyond the 22 year period of the lease.  By the time the Applicant came to wish to exercise the option the Dorchester Borough Council had been succeeded by the West Dorset District Council, and the Chancery Division and the Court of Appeal held in proceedings against the West Dorset District Council that, the option under the lease was ultra vires the Dorchester Council, so the claim to enforce the option failed.  The European Court of Human Rights held that there had been a violation of Article 1 of Protocol 1, because the Applicant had a legitimate expectation of exercising the option to renew, which attached to the property rights granted to him by the Dorchester Borough Council under the lease for the purposes of Article 1.  The reasoning of the court at paragraph 32 drew the distinction between two scenarios, one where the Convention jurisprudence recognised an asset or claim as a possession and one where it did not and I quote:
“The Court recalls that, according to the established case-law of the Convention organs, "possessions" can be "existing possessions" or assets, including claims, in respect of which the applicant can argue that he has at least a "legitimate expectation" of obtaining effective enjoyment of a property right.  By way of contrast, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a "possession" within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition.”

18.	Whilst it could not be contended, I suppose, that whilst he was alive Mr Alan Austin had anything other than a legitimate expectation of obtaining effective enjoyment of a property right if he applied for a Lazarus order, that does not help here, since no one is contending that the concept of a Lazarus order violates Article 1.  However, as I see it, the ultimate position of Mr Barry Austin, however much sympathy one has for him personally, really falls into the second category of a hope of recognition of the survival of an old property right, which it has not been possible to exercise since his brother’s death.  I do not consider that Stretch assists here.

19.	The other case relied on was Tettorini v. Russia, a decision in September 2005.  Mr Rutledge relies particularly on paragraph 45 of the judgment where the European Court said this:
“The court reiterates at the outset that the concept of possessions in the first part of Article 1 of Protocol 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent from the formal classification in domestic law.  Certain other rights and interests constituting assets can also be regarded as property rights and this as possessions for the purposes of this provision.” (Quote unchecked) 

This certainly gives a wide definition to possession, but nothing in that seems to me to support the proposition that someone in the position of Mr Barry Austin, who has no rights in respect of the property and who could only have obtained such rights if the original tenancy, which came to an end in February 1987, had been revived in his brother’s lifetime, has a possession of which he is being deprived within Article 1 by virtue of the application in the Rule in Knightly.  None of the European cases relied upon by Mr Rutledge goes that far or even, as I see it, could arguably provide a basis for such a contention.  I note also that, although Knightly precedes The Human Rights Act, it was referred to with approval by Collins J in R v. London Borough of Brent ex parte Mays [2003] EWHC 481 Admin, a case on not dissimilar facts to the present.  There it was held that proceedings for eviction against someone be in the position of this Appellant would not be a violation of Article 8 rights.  Although the present argument was not run as such there, the case does provide support for the approach adopted subsequently by the Court of Appeal in Kay and I have in mind particularly the passage in paragraph 30 of the judgment of Collins J, to which my attention was drawn, which provides as follows:
“Accordingly, it was submitted there was ample reason, having regard to those conditions, for the London Borough of Brent to take the view that it would, in situations where succession was not permitted as a matter of law, take proceedings for eviction, recognising it would have obligations under the homeless legislation, because in the circumstances of this case the Claimant would undoubtedly be unintentionally homeless and would be in priority need because of the existence of her daughter.  Accordingly, the Local Authority will be obliged to find her suitable accommodation.  Thus albeit there would be an interference with her rights under Article 8.1, the statutory scheme provided a proportional justification for that breach.” 

The reference to succession not being permitted as a matter of law in that passage is clearly a reference to the decision of the Court of Appeal in Knightly, to which Collins J had referred earlier in his judgment and although the specific issue, which is currently under consideration, was not specifically considered by the court, it would seem to me to be curious at the very least if it really were the case that Knightly was a case which was arguably non-compliant with The European Convention on Human Rights, that that was not an argument which was raised before the court on that occasion.

20.	Fourthly and finally, there is the whole question of lower courts being bound to apply the doctrine of precedent.  The County Court Judge, this court and for that matter the Court of Appeal itself would be bound by the decision of the Court of Appeal in Knightly.  How the court should approach this question was really laid down by the passages in Lord Bingham’s speech in Kay, to which I have already referred and in paragraph 43 he refers to the need to achieve a degree of certainty quoting Lord Hailsham and he says this:
“That degree of certainty is best achieved by adhering, even in the Convention context, to our rules of precedent.  It will, of course, be the duty of judges to review Convention arguments addressed to them and if they consider a binding precedent to be or possibly to be inconsistent with Strasbourg authority, they may express their views and give leave to appeal as the Court of Appeal did her.  Leapfrog appeals may be appropriate.  In this way, in my opinion, they discharge their duty under the 1998 Act, but they should follow the binding precedent as again the Court of Appeal did here.” 

	Although the judge did not specifically go through this exercise in his judgment, he did refer to that passage and the subsequent passage in paragraph 45 of Lord Bingham’s speech, so he clearly had in mind what Lord Bingham had said.  

21.	For all the reasons which I have already given, it seems to me, that Knightly is not inconsistent with Strasbourg authority so that this is not in any event a case where a Leapfrog appeal would be appropriate.  Again, that was a matter which apparently was addressed by Judge Welchman during the course of argument.  It may be that, as Mr Rutledge says, Mr Austin is the victim of a lacuna in the housing legislation which fails to recognise those who occupy premises with a tolerated trespasser.  However, if that is so, that is a matter for Parliament not for the courts and it does not seem to me, whatever personal sympathy one may have for Mr Austin, that the court should exercise its discretion to permit a wholly speculative claim to proceed which on the present state of the law, is bound to fail.  Although for somewhat different reasons to those expressed by the Learned Judge and at somewhat greater length, I consider the Court, for the reasons I have given, should not exercise its discretion to make any order under CPR 19.8 and I consider that Judge Welchman was not wrong to refuse to exercise his discretion to do so.  This appeal is dismissed.
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