Supreme Court rules no proportionality assessment in private sector possession actions


This morning the Supreme Court handed down its judgment in McDonald v McDonald [2016] UKSC 28, a key decision in the area of possession claims.  

In the judgment delivered by Lord Neuberger and Lady Hale, it was held that when entertaining a claim for possession by a private sector owner against a residential occupier, the Court is not required to consider the proportionality of evicting the occupier in light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights. 

In the earlier decision of Manchester City Council v Pinnock [2011] 2 AC 104, the Supreme Court had decided in the context of claims for possession made by public sector landlords that it is, in principle, open to the occupier to raise the question of whether it is proportionate to make an order for possession, and to invite the Court to take that into account when deciding what order to make. 

However, the Supreme Court in Pinnock left open the question of whether this approach could also be taken in relation to possession actions made by private sector landlords.  

The decision in McDonald now provides useful clarification on this issue.   

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In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant's home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants.
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