Prayers answered

The Court of Appeal has concluded that the rule in Monk is compatible with the European Convention on Human Rights. Andy Lane and Dean Underwood, who opposed the 'leapfrog' appeal against a possession order, explain why.

In a landmark ruling, the Court of Appeal has handed down judgment in Sims v Dacorum Borough Council [2013] EWCA Civ 12, in which Mr Sims challenged the compatibility of the rule in Hammersmith LBC v Monk [1992] AC 478 ("Monk") with Article 8 and Article 1 of the First Protocol to the European Convention on Human Rights ("the Convention"). 

The facts of the case

Mr and Mrs Sims had been the joint, secure tenants of a property owned by Dacorum Borough Council (“the Council”). The couple separated in 2010 and Mrs Sims, alleging domestic violence, left her home with their two youngest children. She was eventually re-housed by a different local authority, but not until she had served a notice to quit on the Council in June the same year.

Mr Sims applied to the Council to remain at the property as the sole tenant, but his application was rejected and possession proceedings issued on 28 October 2010. Mr Sims filed a defence alleging, amongst other matters, that his wife’s notice to quit was invalid, that his eviction from the property would breach his rights under Article 8 of the Convention and that, in any event, the rule in Monk, by which a joint tenant can, without recourse to other joint tenants, end their joint tenancy by serving his or her landlord with a notice to quit, was incompatible with Article 8.

On 16 December 2011, after a one-day trial, Deputy DJ Wood, sitting at Watford County Court, handed down judgment, rejecting Mr Sims’ arguments and making an order for possession of the property. Mr Sims obtained permission to appeal the order and “leapfrogged” to the Court of Appeal.

The appeal

By the time his case reached the Court of Appeal, Mr Sims was relying on only one (amended) ground of appeal: “The judge was wrong in law in deciding that the service of a notice to quit by one joint tenant was effective to terminate a joint secure tenancy. This breaches the appellant’s rights under Article 8 and/or article 1 of the First Protocol of the European Convention on Human Rights.”

It was accepted by both parties that the Court of Appeal had no option but to dismiss the appeal because it was bound by the House of Lords’ decision in Monk. The Court of Appeal heard submissions, however, over the course of a day to determine whether Mr Sims should have permission to appeal to the Supreme Court.

The Appellant’s case

The mainstay of Mr Sims’ argument was that, in light of developing Strasbourg and domestic jurisprudence, the Court was bound to develop the common law to ensure that the rule in Monk did not interfere unduly with his right to respect for his home ("the Article 8 argument") and/or his right to freedom from state interference with his property rights ("the Protocol argument").

In effect, he argued, the service by a joint tenant of a notice to quit should be treated as a release by him of his interest in the tenancy to the remaining tenant or tenants (relying in part on the minority speech of Lord Millett in Burton v Camden LBC [2000] 2 AC 399, HL).

Alternatively, service of the notice should be treated as the “function” of a trustee within the meaning of the Trusts of Land and Appointment of Trustees Act 1996, such that an application might then be made under section 14 of the Act to set the notice aside. Such an approach had, it was conceded, been rejected by the Court of Appeal in Notting Hill Housing Trust v Brackley [2002] HLR 10.

The council’s response

The Council adopted a robust position in response to these arguments, its primary position being that neither Article 8 nor Article 1 of the First Protocol was engaged by operation of the rule.

Article 8 was not, it was argued, directed towards the protection of property or contractual rights and was, rather, concerned with an individual’s right to respect for his home per se, a right already protected in domestic law by the former tenant’s ability to argue, in defence to a claim for possession of his home, that an eviction would not be proportionate (i.e. the “Pinnock proportionality” defence). In any event, it could not be said that there had been any interference with Mr Sims’ Article 8 rights, because his right to occupy the property had, to his knowledge, always been qualified, limited by the ability of either him or his wife to end their tenancy by serving the Council with a notice to quit. That was, in short, the nature of the bargain they had struck with the Council.

As for the alleged incompatibility of Monk with Article 1 of the First Protocol, there had again been no interference with Mr Sims’ rights - qualified as they were - because Mrs Sims had, simply, exercised the right enjoyed by both of them to end their joint tenancy of the property.

Judgment

The Court of Appeal dismissed Mr Sims’ appeal and his application for permission to appeal to the Supreme Court.

In the lead judgment, Lord Justice Mummery concluded: “37. Finally, the proposed appeal to the Supreme Court. It is unarguable. There is no incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR. I cannot think of a sensible purpose that would be served by the expenditure of yet more public funds (on both sides) on a repeat of this debate before five (or even more) Justices of the Supreme Court of the United Kingdom.

He made 4 "basic points" in reaching this conclusion:

1. The appeal concerned the compatibility of the rule in Monk with Article 8 and Article 1 of the First Protocol, not the application of these articles to the particular proceedings.
2. Mr Sims was, in essence, seeking enhanced and different contractual and property rights from those agreed by the parties in 2002.
3. Article 8 was not engaged by operation of the rule in Monk and there was nothing in the rule per se or in the exercise by Mrs Sims of her right to serve a notice to quit that represented an interference by her or by the Council with Mr Sims’ right to respect for his home.
4. For the same reason, Article 1 of the First Protocol was not engaged and there was no interference with Mr Sims’ rights under the Protocol by either Mrs Sims or the Council.

Commentary

Sims was, surprisingly, the first occasion on which an appeal court had had to consider the Protocol argument. The Court’s conclusions are, therefore, likely to be of considerable interest to practitioners and academics alike.

The High Court had grappled with the Article 8 argument in Poplar HARCA v Howe [2010] EWHC 1745 (QB), in which Poplar HARCA was represented by Hardwicke’s Andrew Lane, and Harrow LBC v Wilson [2010] EWHC 1574 (QB).

Strasbourg and domestic jurisprudence had developed significantly, however, since both Wilson and Howe had been decided, not least by the Supreme Court’s decision in Manchester City Council v Pinnock [2010] UKSC 45. Moreover, the Council’s response to Mr Sims’ appeal was framed differently from those in Wilson and Howe.

Mr Sims’ legal advisers may yet renew their application for permission to appeal in the Supreme Court, despite the excoriating conclusions of Lord Justice Mummery at paragraph 38 of his judgment: “I would dismiss the appeal. The parties rightly regarded that as inevitable. I would also refuse permission for another appeal. It would be a waste of the publicly funded resources of the Supreme Court.”

For the time being, however, the Court’s judgment will, for many landlords, bring a welcome end to speculation about Monk’s compatibility with former tenants’ Convention rights and, for listing offices in county courts nationwide, a welcome opportunity to lift the stay of possession claims awaiting the outcome of Sims.

As matters stand, any change to the operation of Monk at common law will now have to be made by Parliament, rather than the courts.

Andy Lane and Dean Underwood are barristers at Hardwicke. They represented the council in this case.