New Judgment: McDonald (by her litigation friend Duncan J McDonald) v McDonald & Ors  UKSC 28
15 Wednesday Jun 2016
On appeal from:  EWCA Civ 1049
The Supreme Court unanimously dismissed the appeal regarding a possession order against the appellant’s home owned by her parents.
The appellant had been granted a series of assured shorthold tenancies (“ASTs”) of the property by her parents. When her parents fell behind on their loan repayments for the property and the arrears persisted, the appellant was served a notice by the loan company, in the name of the her parents, indicating that they would be seeking possession of the property and, on the expiry of that notice, they issued proceedings Oxford County Court.
The High Court judge ruled that the Housing Act 1988, s 21(4), required him to make an order for possession against a person holding under an AST who had been served with an appropriate order. The Court of Appeal dismissed the appellant’s challenge against that decision.
In delivering the joint lead judgment, Lord Neuberger and Lady Hale believed it was not open to the tenant to contend that the ECHR, art 8, could justify a different order from that which is mandated by the contractual relationship between the parties, particularly when legislation had been put in place already to balance the competing interests of private sector landlords and residential tenants. They highlighted that if that were possible, the ECHR could be said to be directly enforceable as between private citizens so as to alter their contractual rights and obligations.
Lord Neuberger and Lady Hale also stated that even if the court had been able to find the possession order disproportionate to her rights under art 8, the appellant could not assume that this would have led to the order being refused. They believed it seemed likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks’ time, the maximum permitted by the Housing Act 1980, s 89(1).
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