Friday 3 March 2006

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Of the seven Law Lords who heard the case, three (including the country's two most senior law lords) were agreed with the argument advanced by the occupiers (and supported by the Government) that - at least in very highly exceptional circumstances - the European Convention "right to respect for a home" could provide an answer to an authority's claim. Lords Bingham, Nicholls and Walker were agreed that the court hearing the possession claim should deal with human rights defences under a procedure outlined by Lord Bingham [para 39 of the judgment].

But a bare majority of four Law Lords (Lords Hope, Scott, Brown and Baroness Hale) held that such a human rights defence was not available. All agreed with Lord Hope that an occupier could only defeat a public authority's otherwise unanswerable claim by showing that either: (1) the underlying housing law or common law on which the owner relied was not Convention-compliant; or (2) the public authority was acting improperly in seeking possession (para 110 of the judgment).

The same result had been reached by another bare majority (3:2) the last time the House of Lords considered the issue - just over two years ago.

Today's cases were brought by Lambeth Council against Mr Kay (and numerous other long-term residents of short-life property in South London) and by Leeds Council against the Maloney family (gipsies occupying an unauthorised council site). Click here for the full judgment.

The occupiers are now considering whether to bring a further appeal to the European Court in Strasbourg.

The Garden Court Chambers team involved in the case included as leading Jan Luba QC counsel for the occupiers in both cases and Mr David Watkinson for the occupiers in the Lambeth case.

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