Can an Article 8 defence be run at the stage of en-forcement of possession proceedings?

This question was considered by the Court of Appeal in R on the application of JL v The Secretary of State for Defence [2013] EWCA Civ 449. The tenant had raised an Art 8 defence to possession proceedings which had been dismissed. The Supreme Court subse-quently made its decision in Pinnock and an Article 8 defence then became available. The tenant raised it after the possession order had been made. The Court of Appeal said that this could be done in exceptional circumstances such as where there had been a funda-mental change in the tenant’s circumstances after the possession order but before enforcement, for example: the diagnosis of an incurable illness after the making of the possession order, making it disproportionate for to evict the occupant before he or she could be allowed to die peacefully at home. The case of JL itself was also such an exception as Pinnock had been decided after the possession order was made. There were normally a number of stages in possession proceed-ings at which a decision on proportionality could be made – usually at trial if raised by a defendant – but in this case there had not been any stage at which the issue could be assessed. Having said that the Art 8 defence could be run after the possession order had been made, the Court did not accept that JL had a defence. It therefore falls into a long line of unsuc-cessful Art 8 defences which I have looked at in previ-ous Briefings.

The defendant in Southend-on-Sea v Armour [2012] EWHC 3361 had an introductory tenancy and was served with a notice to quit due to three incidents of anti-social behaviour. At his instigation there were a number of adjournments of possession proceedings. By the time of the final hearing he had clocked up nearly 12 months of good behaviour. He had an ap-palling criminal record and history of domestic vio-lence but his probation officer wrote a letter indicating the likely devastating effect of an eviction on both him and the public. There was also a letter from his doctor outlining the adverse effect on him of an eviction. The judge dismissed the proceedings for a possession order on the basis of the Article 8 defence. The Court of Appeal upheld her decision saying that ‘subsequent behaviour, even good behaviour, may be a relevant consideration’. Further, although the de-fence would not have succeeded when proceedings were first brought the Court of Appeal said that the court had to make a decision on the material availa-ble at the time of the hearing. The judge had been entitled to come to the view that it would be dispro-portionate to evict and therefore the claim for posses-sion failed and the appeal was dismissed.

Arguably Armour gives tenants an incentive to turn up at the first hearing unrepresented, armed with a few arguments and a request for an adjournment to get legal representation. If the matter can then be spun out whilst the tenant gets his or her house in order there is a greater chance that a good case for a landlord will lose its merit and will end up being an expensive exercise. It is also arguable that the deci-sion undermines the scheme of Introductory Tenan-cies. By the time this claim came to trial the court was making a decision which was to all intents and pur-poses the same as though he had security of tenure: the issue was more or less the reasonableness of making an order. The landlord may not be able to avoid delays in proceedings but they will want to en-sure a summary hearing on an Article 8 point takes place as swiftly as possible.