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Moore v BWB Judgments on Human Rights & Costs

Moore v BWB Judgments on Human Rights & Costs

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Published by Nigel Moore
Two supplementary judgments re: Human Rights & Costs and right of appeal
Two supplementary judgments re: Human Rights & Costs and right of appeal

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Categories:Business/Law
Published by: Nigel Moore on Jan 19, 2013
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01/19/2013

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BEVERLEY F NUNNERY & COOFFICIAL SHORTHAND WRITERS
IN THE HIGH COURT OF JUSTICECHANCERY DIVISION
[2012] EWHC 1175 (Ch)
No. HC07C02340The Rolls BuildingThursday, 16
th
February 2012Before:MR. JUSTICE HILDYARDB E T W E E N :NIGEL PETER MOORE Claimant- and -BRITISH WATERWAYS BOARD Defendant_________
Transcribed by
 BEVERLEY F. NUNNERY & CO
 Official Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737  Email: info@beverleynunnery.com
 _________THE CLAIMANT appeared in person.MR. C. STONER QC (instructed by Shoosmiths) appeared on behalf of the Defendant._________
J U D G M E N T
 (Approved)
 
BEVERLEY F NUNNERY & COOFFICIAL SHORTHAND WRITERS
MR. JUSTICE HILDYARD:1.
 
In this
ex tempore
supplemental judgment the question which I now have toconsider, as foreshadowed in my main judgment, is whether my provisionalview as there
expressed, that the claimant‟s human rights
under Article 8 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) m
ay have been infringed and thatit may be that the steps taken by BWB and the relief they seek would not beproportionate, should be confirmed.2.
 
As I hope I have indicated, the view I expressed in my main judgment wasonly provisional; it signified that I was sufficiently concerned about theprocess adopted and its proportionality to a further hearing on the issue; and Ihave, I hope, listened with care and with an open mind to further argument,having indicated that I felt there was some case to answer. As to that I havenow had the benefit of written and then oral submissions from both theclaimant and Mr. Stoner QC. As at the main hearing, each has been moderateand very helpful to me, and I am grateful to them both.3.
 
I am conscious that the main issue which I am now considering, the issue of human rights
in the context of an individual‟s home
, and thus Article 8 of theConvention, is an issue of (in one sense) surprising complexity, and onewhich has occasioned very considerable attention on the part of the SupremeCourt in recent months. I have in mind in particular the decisions in
 Mayor and Burgesses of the London Borough of Hounslow v Powell
and
 Manchester City Council v Pinnock 
where, in the one case, a seven-judge Supreme Court,and in the other case a nine-judge Supreme Court had to give consideration tothe interface between the human rights legislation and the property rights ineach of those cases of Local Authorities with respect to housing and theirobligations to manage public housing in a sensible way. These decisionsfollowed a stream of cases in the European Court of Human Rights.4.
 
It seems to me that in the context of human rights - and I leave aside for thepresent legitimate expectations which I have said have been infringed - thestarting point is to consider what is the nature of the human right which issaid to be infringed.5.
 
In this case, it is the right to respect for one‟s home which is enshrined in
Article 8 of the Convention. Obviously anything which would not onlyintrude upon, but deprive, a person of his home is capable of being aninfringement of that right if either not lawful or if exercised in adisproportionate way or otherwise improperly: as noted by the EuropeanCourt of Human Rights in
 McMann v United Kingdom
(2008) 47 EHRR 40,
 
BEVERLEY F NUNNERY & COOFFICIAL SHORTHAND WRITERS
“the loss of one‟s home is the most extreme form of interference with
 
the right for respect for the home.”
(I should perhaps record that BWBdid not seek to argue that the vessel on which Mr Moore was residing(first
„Platypus‟ and then „Gilgie‟ should be treated as his home for 
these purposes.)6.
 
It seems to me that the right for respect for
a person‟s
home includes now, atleast, both the right to a proper procedural process leading up to theapplication or leading up to the steps taken to deprive the person concernedof his home in exercise of management or property rights and also the right tohave the proportionality of a decision by a public authority reviewed by acompetent court; and this is so even if his right of occupation under domesticlaw has come to an end: see
ibid.
and
 Manchester City Council v Pinnock 
[2010] UKSC 45 at para. 45.7.
 
The question for the court - and I now read from
 Mayor and Burgesses of the London Borough of Hounslow v Powell
[2011] UKSC 8 at
 para.39 “
... willalways be whether the making of an order would be lawful and
 proportionate.” I will return to the question of what the exercise of reviewing
proportionality actually involves in due course: but for the present suffice itto say that the standard applicable in the context of judicial review is notadequate: in the context of housing, the question of proportionality is notwhether the eviction was so unreasonable that it cannot be supported butwhether the eviction is a proportionate means of achieving a legitimate aim(see
 Manchester City Council v Pinnock 
[2010] UKSC 45 at para. 52).8.
 
The next issue I have had to consider is whether in this case there was, and if so what was, the relevant infringement of the human right as so defined,whether in terms of the process or the proportionality of the result sought.9.
 
In this case, as I have sought to explain in my main judgment, the processadopted by BWB was not compliant with its own internal rules, nor withproper respect for the special care and consideration required beforedepriving a person of his home. It has not seemed to me that there was anysufficient reason for these infringements, which resulted in inadequate initialnotice and did not initially provide for court review. I have been unsettled bythe way in which BWB implemented the process of moving Mr. Moore on or,
more particularly, the vessel “Gilgie” on which he lives
.10.
 
But as events have unravelled, the claimant has had a very considerable timeboth in terms of the notice, in the sense of knowing that this might happen,and in the sense of having a court review: this court has taken many days in

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