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IN THE HIGH COURT

APPEAL REF: QB/2015/0318
(on appeal from STAINES COUNTY COURT)
BETWEEN:
ORCHID RUNNYMEDE LTD
Claimant
and
(1) JAMES HAMPSON
(2) PETER PHOENIX
(3) ANTONY SEANOR
(4) PERSONS UNKNOWN
Defendants

________________________________________________________

THIRD DEFENDANT’S SKELETON ARGUMENT
________________________________________

1

The Defendant, Antony Seanor, seeks permission to appeal. There a real prospects of
success which are more than merely fanciful which warrant the grant of permission.

Ground 1
2

The learned judge failed to follow CPR 55 and apply a seriously arguable test when determining the claim summarily. The learned judge erred when applying an exceptional
circumstances test in determining the claim summarily. That test is appropriate, if at all,
at the end of a full proportionality review.

3

The judge correctly stated the test:
I have to consider whether the case can be disposed of summarily or whether directions should be given for
trial. In considering that the test is essentially whether the claim is genuinely disputed on grounds which
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appear to be substantial. That is subject to the caveat, as will appear, that in relation to Human Rights
Act issues that have been raised a rather sterner threshold emerges from the case law, namely that the intended defences should be strongly arguable. There is also quite a high hurdle for the substantive nature of
the intended defence.1
4

This is derived from Manchester City Council v Pinnock [2010] UKSC 45 which confirmed
that Human Rights defences were available in possession proceedings and where Lord
Neuberger gave a unanimous judgment of a 9 SCJ panel. In it he stated:
[51] It is necessary to address the proposition that it will only be in “very highly exceptional cases” that it
will be appropriate for the court to consider a proportionality argument. Such a proposition undoubtedly
derives support from the views expressed by Lord Bingham, and has been referred to with apparent approval by the EurCtHR in more than one case. Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in
Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or
Lord Bingham supposed where art 8 could reasonably be invoked by a residential tenant.
[52] We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim.

5

This was reinforced by Lord Hope in Hounslow LBC v Powell [2011] UKSC 8 , a case
which dealt with the form and content of the proportionality review, where he confirmed:
33 The basic rules are not now in doubt. The court will only have to consider whether the making of a
possession order is proportionate if the issue has been raised and it has crossed the high threshold of being
seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim

6

However the judge then went on to follow obiter comments from Lord Scott in the
same case where he was attempting to summarise the paragraphs of Pinnock cited above.
Lord Scott states:
[92] This court in Pinnock's case at [51]–[53] commented on the proposition that it will only be 'in
very highly exceptional cases' that it will be appropriate for the court to consider a proportionality argu-

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Transcript – paragraph 4

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ment. I believe that this proposition is an accurate statement of fact in relation to introductory tenancies.
This is because the judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this.
7

Lord Scott’s initial summary is incorrect; paragraphs 51-53 of Pinnock did not incorporate an exceptionality test into the summary decision whether or not to undertake a proportionality review. In fact it did the exact opposite. Exceptionality was not the test at
any stage.

8

Lord Scott remedied this error in the last sentence of paragraph 92. Unfortunately, here
the learned judge incorrectly applied an exceptionality test at the summary stage.

9

The judge also considered what Lord Neuberger said in the Court of Appeal in Birmingham City Council v Lloyd [2012] EWCA Civ 969 where Lord Neuberger also seems to have
been confused by Powell rather than following his own judgment in Pinnock.

10

The judge then concluded:
that where the defendant has never been more than a trespasser, and seeks to invoke Article 8, at the
summary stage the defendant has to cross the high threshold of having a seriously arguable defence and ultimately that is going to be a strongly arguable case that there exist the most extraordinary exceptional
circumstances.2

11

That is too high a test and at odds with the guidance in Pinnock. The judge was wrong to
incorporate any exceptionality test at the summary hearing stage.

Ground 23
12

The judge failed to give any reasons for his decision.

13

The judge then concluded:
My conclusion is that there is no arguable defence whatever to this claim. The claimant is entitled to the
order sought.4

14

The judge failed to give any reasons at all for his decision and was wrong not to do so

Transcript – paragraph 49
This is an additional ground not originally included in the Appellant’s Notice but is now relied on after sight of
the Transcript.
4
Transcript – paragraph 80
2
3

3

Ground 3
15

The learned judge erred in law by failing to follow the Human Rights Act 1998 and read
McPhail v Persons Unknown and the common law to enable the court to delay possession
proceedings against a trespasser and not be obliged to grant a forthwith order.

16

The judge was correct to follow the obiter comments of Sir Alan Ward in Malik v Fassenfelt [2013] EWCA 79 and conclude:
first of all obviously McPhail is no longer good law5

17

However at no stage did the judge then go on to consider whether the Defendants
should be given time to vacate the land. The judge merely granted the Claimant’s forthwith order.

18

That was wrong where the Claimant had no urgent need for the land and the Defendants
had been living there for three years. The judge failed to exercise his discretion at all.

Michael Paget
Cornerstone Barristers
16 July 2015

5

Transcript – paragraph 52.

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