a public announcement
On 8 July 2010, the Court of Appeal, in the case of Brent
London Borough Council v Corcoran and O'Donnell took the
opportunity to criticise the now routine use of so-called public
law defences in possession claims.
The facts of the case which are, for these purposes, largely
irrelevant, involved the termination of licences, due to breaches
and anti-social behaviour. Part of the defence was that the
decision to serve the notices to quit, to bring and to press on
with possession proceedings was unreasonable. The court said:
"The only reason we granted permission [to appeal] is that
we considered it important to make it absolutely clear that public
law attacks of the technical and over-theoretical sort advanced
here have no merit whatsoever in this sort of case" and
that;
…where notice to quit has been served, but the occupier
asserts that the decision to serve it and seek possession was
unlawful; it is for the licensee to make good such a defence. To do
so, it must be shown that the [landlord's] decision to serve the
notice and seek possession was one which no reasonable [landlord]
would have taken in the circumstances known, or which ought to have
been known, to it at the time of the decision. This is a high test
and rarely likely to be satisfied where the decision was made in
good faith."
what this means for social landlords
The Court of Appeal is clearly fed up with what should be (and
once were) straightforward possession claims being delayed or even
defeated by spurious 'public law' defences. The court emphasised
that if such a defence is raised the onus is on the defendant to
satisfy the court that the landlord is acting unreasonably (not for
the landlord to show that it is acting reasonably). Further that
the likelihood of any such defence succeeding is remote.
The real battle, once a notice of termination is valid, comes
when the question of suspension of an order of possession comes to
be considered. All factors can come into play then.
