Manchester City Council v Pinnock (No 2)

Following the handing down of our judgment on 3 November 2010, the parties have made written submissions on two issues, namely the terms of the consequential order which the court should make, and the allocation of costs. The issue relating to the terms of the order gives rise to a point of a little difficulty and potentially more general application. It therefore seems right to set out our conclusions and reasons on the two issues in this short further judgment.

In summary terms, the facts giving rise to the appeal were as follows. Mr Pinnock was a demoted tenant of residential premises (and therefore had limited statutory protection), and his landlord, Manchester City Council, applied to the Manchester County Court for an order for possession against him. In a judgment given on 22 December 2008, His Honour Judge Holman rejected Mr Pinnock’s contention that the court had to be satisfied that article 8 of the Convention was satisfied before making an order for possession, and therefore he did not consider whether it was proportionate to make an order for possession against Mr Pinnock. The Judge accordingly made an order requiring Mr Pinnock to deliver up possession of the premises on 12 January 2009. He also gave Mr Pinnock permission to appeal, and stayed enforcement of the possession order provided that the notice of appeal was served by 26 January 2009.

Mr Pinnock served a notice of appeal by that date, arguing that the Judge should have taken into account article 8, and therefore should have considered whether it was proportionate to order Mr Pinnock to deliver up possession of the premises. The Court of Appeal rejected his appeal, [2009] EWCA Civ 852; [2010] 1 WLR 713, and Mr Pinnock appealed to the Supreme Court. The Court of Appeal did not continue the stay imposed by the Judge, but the parties agreed that the possession order would not be enforced pending the outcome of the appeal to this court.

In our decision, [2010] UKSC 45; [2010] 3 WLR 1441, we held that the Judge and the Court of Appeal were wrong in taking the view that article 8 could not be raised by Mr Pinnock, and that, in those circumstances, there were “two alternative courses that we could … take: we could address the proportionality issue ourselves, or we could remit the issue to the Manchester County Court” – [2010] 3 WLR 1441, para 108. We then went on to decide that we would take the former course, because, for the reasons set out at [2010] 3 WLR 1441, paras 119-124 and 127-130, we were “not persuaded that this is a case where the occupiers of the property have any real prospect of successfully relying on article 8 proportionality, or indeed on the contention that the decision of the Council to issue and maintain possession proceedings against them was unreasonable” – [2010] 3 WLR 1441, para 125.

At any rate at first sight, the terms of the order we should make seem to present no problem: the Judge made an order for possession, which the Court of Appeal upheld, which it can be said we have upheld, albeit for different reasons, and accordingly we should simply dismiss the appeal. However, the Council argues that this apparently simple course would produce an unjust result, which arises form the transitional provisions of the Housing and Regeneration Act 2008.

In this case, the order for possession made by Judge Holman took effect on 12 January 2009; under section 143D(3) of the Housing Act 1996 this meant that Mr Pinnock’s demoted tenancy came to an end on that date. His status thereafter was that of a tolerated trespasser, as discussed in Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 3 WLR 144.

Section 299 of, and schedule 11 to, the 2008 Act abolished the concept of tolerated trespass in relation to various types of tenancy, including demoted tenancies, by providing that, where an order for possession is made, the tenancy comes to an end on the date that the order is executed rather than (as was previously the position) the date on which the tenant is to give up possession pursuant to the order. In the case of demoted tenancies this was achieved by the insertion of a new subsection (1A) into section 143D of the 1996 Act– see para 13 of schedule 11 to the 2008 Act.

These provisions of the 2008 Act, which were prospective in their effect, came into force on 20 May 2009 (pursuant to article 2 of the Housing and Regeneration Act 2008 (Commencement No.5) Order 2009 SI 2009/1261), some eighteen weeks after Judge Holman’s order for possession took effect. If that order is confirmed, the effect will be, by virtue of paras 16, 19 and 26 of Schedule 11 to the 2008 Act, that on 20 May 2009, a new demoted tenancy will have been created in favour of the former tenant and tolerated trespasser. On the basis that that might indeed prove to be the position, the Council served a notice of proceedings under section 143E of the 1996 Act, in respect of which Mr Pinnock requested a review under section 143F (as explained at [2010] 3 WLR 1441, para 11). Further proceedings on that notice have been adjourned.

The Council contends that, although it has protected its position if we simply dismiss Mr Pinnock’s appeal and effectively affirm the orders of the Judge and the Court of Appeal, it would be “contrary to any rational legal principle” to require the Council to incur the expense, effort and delay, as well as any possible uncertainty of outcome, of further possession proceedings against Mr Pinnock based on his new demoted tenancy, given the procedure that has already been undertaken, as described in [2010] 3 WLR 1441, paras 14-17.

Accordingly, the Council argues that we should vary Judge Holman’s order to adjust the date on which he is to deliver up possession from 12 January 2009 to 21 May 2009.

Mr Pinnock does not challenge this proposal on its merits, but contends that, for two reasons, we have no jurisdiction to make the variation sought by the Council. The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.

Mr Pinnock is right not to challenge the good sense of the Council’s argument. There may be force in the two technical points that he takes, particularly the second, but there is no need for us to consider these. The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.

We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.

This course is consistent with the reasoning in our judgment. We decided that the Judge and the Court of Appeal had reached their conclusions on an erroneous basis, and accordingly we had to make our own assessment as to whether an order for possession should be made. Thus, we were effectively overruling the order for possession made and affirmed below, and were concluding that we should make our own order for possession. That is well demonstrated by the passage quoted from [2010] 3 WLR 1441, paras 108 and 125 quoted in para 4 above. If we had taken the course of remitting the case to the County Court, we would have set aside the original order for possession, and the County Court would in due course have made a fresh order for possession (for the reasons we gave at [2010] 3 WLR 1441, paras 119-130): it would be anomalous if a different result obtained because we decided that we could make the order for possession ourselves without remitting it.

In those circumstances, to set aside the orders below and make our own order for possession more accurately reflects our reasoning than simply dismissing Mr Pinnock’s appeal.

Quite apart from this, it would seem rather curious if we could not make an order which achieves the outcome for which the Council contends. If the Judge had dismissed the claim for possession, and had been upheld in the Court of Appeal, our decision that an order for possession should be made would have led to no difficulties for the Council. It would seem a bit odd if the position of the Council were to be prejudiced by the fact that it in fact succeeded in both of the courts below.

As to the issue of costs, the dispute, in summary terms, is as follows. The Council seeks an order for costs against Mr Pinnock, on the ground that, as between the parties, the ultimate issue was whether the Council was entitled to claim possession of the premises, and its claim succeeded at every stage, most importantly in this court. On the other hand, Mr Pinnock argues for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.

In our view, there should be no order for costs in the Supreme Court or in the Court of Appeal, and the order for costs made in favour of the Council in the County Court should stand. As to the order in the County Court, the Council claimed possession while Mr Pinnock resisted the claim, and the effect of our decision is that the claim succeeds, so an order for costs in favour of the Council should follow, absent a good reason to the contrary, and no such reason appears to exist. The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and 6 therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.

In these circumstances, we set aside the order for possession made by Judge Holman, we make an order for possession to take effect on 10 March 2011, we make no order for costs in this court or the Court of Appeal, and the order for costs made by Judge Holman stands. No doubt the parties can agree any other terms of the order which are outstanding.