Defending possession proceedings

SEVENTH EDITION (August 2010) ONLINE UPDATE: March 2011

Jan Luba QC, John Gallagher, Derek McConnell and Nic Madge

Legal Action Group 2011

www.lag.org.uk/DPP7 Defending possession proceedings 7th edition: online update March 2011

CHAPTER 7

Introductory tenancies

As foreshadowed by the special note on page 172 of the seventh edition, the Supreme Court has now had the opportunity to consider the impact of the Human Rights Act 1998 on possession proceedings brought against introductory tenants. In Leeds CC v Hall and Birmingham CC v Frisby it dealt with appeals brought by two introductory tenants. The Court held that in principle it is open to an introductory tenant to advance: (1) a public law defence to the claim (ie, an assertion that the bringing of the proceedings is the result of unlawful decision-making by the council landlord see chapter 25 and the updating note to it provided below);1 and/or (2) a defence relying upon article 8 of the European Convention on Human Rights that the making of a possession order would not be proportionate on the facts of the case (see chapter 26 Human rights defences and the updating note to it provided below). The two appeals are reported under the name Hounslow LBC v Powell2 (a third case with which they were heard). For the judgments, see: http://www.bailii.org/uk/cases/UKSC/2011/8.pdf In the event, the Court decided on the facts that neither introductory tenant in the appeals before them had a seriously arguable defence of either type. The history of noise nuisance problems arising during their tenancies amply justified their landlords actions.
1 The decision in Manchester CC v Cochrane [1999] 1 WLR 809, (1999) 31 HLR 180, CA to the contrary effect should no longer be followed see Manchester CC v Pinnock [2010] UKSC 45 paras [82][87]. 2 [2011] UKSC 8, [2011] 2 WLR 287.

www.lag.org.uk/DPP7 Defending possession proceedings 7th edition: online update March 2011

CHAPTER 8

Demoted tenancies

As foreshadowed by the special note on page 189 of the seventh edition, the Supreme Court has now had the opportunity to consider the impact of the Human Rights Act 1998 on possession proceedings brought against demoted tenants. In Manchester CC v Pinnock1 it dealt with an appeal against a possession order brought by a demoted tenant. It held that in principle it is open to a demoted tenant to advance: (1) a public law defence to the claim (ie, an assertion that the bringing of the proceedings is the result of unlawful decision-making by the council landlord see chapter 25); and/or (2) a defence relying upon article 8 of the European Convention on Human Rights that the making of a possession order would not be proportionate on the facts of the case (see chapter 26 Human rights defences). For the judgment, see: http://www.bailii.org/uk/cases/UKSC/2010/45.pdf In the event, on the facts the Court decided that the eviction of Mr Pinnock would be proportionate given the long history of serious anti-social behaviour associated with members of his household.

1 [2010] UKSC 45, [2011] HLR 7, [2011] 1 All ER 285, [2010] 3 WLR 1441.

www.lag.org.uk/DPP7 Defending possession proceedings 7th edition: online update March 2011

CHAPTER 25

Public law defences

The Recent developments section at the end of this chapter (paras 25.3625.38) flagged-up pending cases in the Supreme Court which were expected to consider further the availability of public law d efences in possession proceedings. In the first of those cases, Manchester CC v Pinnock,1 the Supreme Court decided that a public law defence is available in the county court even where the statutory jurisdiction of that court seems to be limited to checking whether the procedural requirements for the making of a possession order are satisfied.2 The judgment contains a useful summary of the most recent House of Lords cases on the availability of the public law defence (or the judicial review defence). Lord Neuberger said at [27][28]:
[In Kay v Lambeth LBC [2006] 2 AC 465 at para 110] Lord Hope explained that, following Wandsworth London Borough Council v Winder [1985] AC 461, in principle, it would be open to a defendant to challenge the decision of a local authority to recover possession as an improper exercise of its powers at common law on the traditional judicial review ground that it was a decision that no reasonable person would consider justifiable. In Doherty v Birmingham CC [2009] 1 AC 367 the law as stated in para 110 of Kay was substantially reaffirmed ... The law on the judicial review point was affirmed by Lord Hope, Lord Walker, and Lord Mance, at paras 56, 123 and 157 respectively.

1 [2010] UKSC 45, [2011] HLR 7, [2011] 1 All ER 285, [210] 3 WLR 1441. 2 The decision in Manchester CC v Cochrane [1999] 1 WLR 809, (1999) 31 HLR 180, CA to the contrary effect should no longer be followed see Manchester CC v Pinnock paras [82][87].

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The judgment later restates the law on the availability of public law defences in these terms at [81]:
where a tenant contends that the decision of a local authority landlord to issue, or indeed to continue, possession proceedings can in some way be impugned, the tenant should be entitled to raise that contention in the possession proceedings themselves, even if they are in the County Court. This seems to us to follow from the decision of the House of Lords in Wandsworth v Winder [1985] AC 461, as cited and approved in the present context in Kay v Lambeth [2006] 2 AC 465, para 110, and again in Doherty v Birmingham [2009] 1 AC 367, paras 56, 123 and 157 (see para 28 above). This approach also derives strong support from the observations of Lord Bingham in Kay v Lambeth [2006] 2 AC 465, para 30.

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These principles must now be regarded as well settled. Where the claimant for possession is a body which would be amenable to a j udicial review of its decision-making in the Administrative Court, the defendant to a possession claim can in principle deploy a public law defence in the county court. Whether such a defence is in practice available will depend on the facts of the case. In Pinnock, the claim for possession was brought against a demoted3 tenant. The tenant had received notice of intention to seek possession and an oral hearing by a Panel of council officers of an application for a review of that decision. Lord Neuberger said at [72]:
Rightly, in our view, it is common ground that a court has jurisdiction, under normal judicial review principles, to satisfy itself that the local authority and Panel have indeed acted reasonably and have investigated the relevant facts fairly, when deciding to bring possession proceedings. From this it must follow that any decision by the local authority to continue possession proceedings is similarly susceptible to judicial review. At the same time, it is right to emphasise that it would almost always require a marked change of circumstances following a Panels decision to approve the proceedings, before an attempt could properly be made to judicially review the continuance of proceedings which were initially justified.

In a more recent group of Supreme Court cases, reported under the name Hounslow LBC v Powell,4 the Supreme Court additionally decided that:
(1) the decision to commence possession proceedings was one in respect of which reasons should normally be provided to the prospective
3 See chapter 8. 4 [2011] UKSC 8, [2011] 2 WLR 287.

chapter 25 / Public law defences www.lag.org.uk/DPP7 defendant, not later than the point in time at which a tenant would need to frame their defence;5 and

(2) a public law defence in the county court could not only challenge the decision to bring the proceedings but also any prior decision on which the possession claim was founded e.g. the decision to serve a notice to quit.6

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Of the various questions about the scope of public law defences listed in chapter 25 (at pages 446447) these cases directly answer questions (2) and (4). Those answers are respectively Yes and No. These recent cases emphasise a point at the heart of chapter 25 that the public law defence is about challenging the decision-making by the claimant at any of the stages up to and including the decision to press the claim at a trial. It has nothing to do with an evaluation by the court of the factual circumstances of the claim. That sort of evaluation will be undertaken either as part of the courts consideration of reasonableness (if the tenant has full security of tenure) or in the course of determining a proportionality defence as discussed in chapter 26 (where the occupier does not enjoy full security of tenure).

5 Per Lord Phillips at [114][117]. 6 Per Lord Phillips at [120].

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CHAPTER 26

Human rights defences

The Recent developments section at the end of this chapter (paras 26.4726.51) in the seventh edition, flagged-up pending cases in the European Court of Human Rights (ECtHR) and in the Supreme Court which were expected to consider further the availability of human rights defences in possession proceedings. Decisions in those cases are now available. They do not relate to what is said in this chapter at paragraphs 26.2826.32 about defences which challenge the law underlying a possession claim. Rather they are concerned with the discussion at paragraphs 26.3326.45 about defences based on the particular facts of a case. Collectively, they affirm that a human rights defence is in principle available in the possession proceedings. At the time that the original chapter 26 of the seventh edition was drafted the decision of the ECtHR in Kay v UK was awaited (see paragraph 26.45). That decision has now been delivered.1 The ECtHR welcomed the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of article 8. It noted that in Birmingham CC v Doherty,2 the House of Lords had referred to the possibility of challenges on conventional judicial review grounds encompassing more than just traditional Wednesbury grounds and stated that the gateway (b) test3 set out by Lord Hope
1 Kay v UK, Application no 37341/06, [2011] HLR 2, ECtHR. 2 [2008] UKHL 57, [2009] 1 AC 367. 3 if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [gateway (a)], (b) if the defendant wishes to challenge the decision 6 of a public authority to recover possession as an improper exercise of its

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Defending possession proceedings 7th edition: online update March 2011

in Kay should in future be applied in a more flexible manner, allowing for personal circumstances to be relevant to the county courts assessment of the reasonableness of a decision to seek a possession order. The ECtHR noted that the widening of gateway (b) occurred after the end of the Kay case. It found a breach of article 8 in its procedural aspect because the decision by the county court to strike out the occupants article 8 defences meant that the procedural safeguards required by article 8 for the assessment of the proportionality of the interference were not met. The occupants were dispossessed of their homes without any possibility of having the proportionality of the measure determined by an independent tribunal. Modest compensation was ordered to be paid. In summary, the ECtHR had decided that the substantive law, allowing a land owner to obtain a possession order against occupants who had become trespassers did not breach article 8. The problem, at the time of Kay in the English courts, was procedural. The courts were not able to consider the proportionality of the decision to bring the possession claim. The ECtHR has repeatedly required that the court determining the possession claim must be able to decide the proportionality of the proposed eviction and it has re-affirmed that again since its decision in Kay.4 In Manchester CC v Pinnock,5 after considering the growing body of ECtHR jurisprudence on article 8 and possession clams in general, the Supreme Court held that if UK law is to be compatible with article 8 ... the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.6 After referring to the decisions of the House of Lords in Harrow LBC v Qazi,7 Kay v Lambeth LBC,8 and Doherty v Birmingham CC,9 Lord Neuberger, giving the judgment of the Court, stated that it was unnecessary to consider them in any detail. As there was now [an]
powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [gateway (b)] : Kay v Lambeth LBC; Price v Leeds CC [2006] UKHL 10, per Lord Hope at [110]. Kryvitska v Ukraine Application No 30856, January 2011 Legal Action 35, ECtHR. [2010] UKSC 45, [2010] 3 WLR 1441, [2011] HLR 7. [2010] UKSC 45 at [49] [2003] UKHL 43, [2004] 1 AC 983. [2006] UKHL 10, [2006] 2 AC 465. [2008] UKHL 57, [2009] 1 AC 367.

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4 5 6 7 8 9

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Defending possession proceedings 7th edition: online update March 2011

unambiguous and consistent approach of the ECtHR, the Supreme Court had to consider whether it was appropriate to depart from those decisions. Although the Supreme Court was not bound to follow Strasbourg decisions, Where ... there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.10 Lord Neuberger said that even before the decision in Kay, we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay, that is clearly the right conclusion.11 In Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby,12 the Supreme Court confirmed that approach. Having regard to these recent judgments, it may now be helpful to set out a series of questions and answers relating to how human rights defences based on the particular facts of cases may arise. They address the circumstances in which the court dealing with the possession claim may need to consider whether granting it would be proportionate.

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When does article 8 come into play?

In Powell, Hall and Frisby, Lord Hope said that the obligation to consider proportionality only arises if the property constitutes the occupants home the individual has to show sufficient and continuing links with a place to show that it is his or her home for the purposes of article 8 but in most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8.13 However, [the] court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupiers eviction is a proportionate means of achieving a legitimate aim.
10 11 12 13 [2010] UKSC 45 at [48]. [2010] UKSC 45 at [49]. [2011] UKSC 8, [2011] 2 WLR 287. [2011] UKSC 8 at [33].

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Does Pinnock apply to other kinds of occupancy lacking security of tenure?

On the face of it, the decision in Pinnock appeared to apply to all kinds of occupancy lacking security of tenure, not just demoted tenancies. The importance of the decision in relation to occupants other than demoted tenants appears to be demonstrated by the following passages:
if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.14 the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a persons home may require certain statutory and procedural provisions to be revisited, eg Housing Act 1980 s89 and some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim.15

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However, this is an issue which was argued before the Supreme Court in Powell, Hall and Frisby. In Frisby, notwithstanding Pinnock, counsel for Birmingham argued that even though the premises were Mr Frisbys home, there was no requirement for an independent determination of proportionality under article 8 during the trial period of occupation and that the decision in Manchester CC v Cochrane,16 remained good law. In Powell, counsel for Hounslow argued that courts were not entitled to consider the lawfulness of notices to quit, under article 8, as nothing in that article permitted or required them to do so. The Secretary of State accepted that county courts hearing possession claims against introductory tenants may consider domestic public law challenges to both decisions to serve notices of proceedings and decisions to begin possession proceedings, and may, as necessary, consider any article 8 defence that is raised by the occupier. He also accepted that where a tenancy has been granted under Housing Act 1996 Part 7, the occupier will in principle be able to raise an article 8 defence and argue that the grant of such an order would be disproportionate. In Powell, Hall and Frisby, Lord Hope noted that in Pinnock the S upreme Court held that article 8 requires courts asked to make
14 [2011] UKSC 8 at [62]. 15 [2011] UKSC 8 at [63]. 16 [1999] 1 WLR 809, CA.

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p ossession orders against demoted tenants to have the power to consider whether the order would be necessary in a democratic society. He held that this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a persons home for the purposes of article 8.17 So the answer is yes, what was said in Pinnock applies to other kinds of occupancy lacking security of tenure.

Defending possession proceedings 7th edition: online update March 2011

What is the extent of proportionality?

In Pinnock, in relation to demoted tenants, Lord Neuberger stated that:
an occupier who is the defendant in possession proceedings in the County Court and who claims that it would be incompatible with his article 8 Convention rights for him to be put out of his home must be able to rely on those rights in defending those proceedings.18

Lord Neuberger referred to the view that it would only be in exceptional cases that article 8 proportionality would even arguably give a right for an occupant to remain in possession where there was no such right under domestic law.19 However, he stated that consideration of proportionality arguments should not be limited to very highly exceptional cases. It would be both unsafe and unhelpful to invoke exceptionality as a guide. ... [E]xceptionality is an outcome and not a guide.20 The fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession.21 He continued by stating in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.22 In Powell, Hall and Frisby, Lord Hope said The threshold for raising an arguable case on proportionality [is] a high one which would
17 18 19 20 21 22 [2011] UKSC 8 at [3]. [2010] UKSC 45 at [78]. See eg McCann v UK 47 EHRR 913, para 54; Kay v UK (App no 37341/06), para 73. [2010] UKSC 45 at [51]. [2010] UKSC 45 at [53]. 10 [2010] UKSC 45 at [54].

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s ucceed in only a small proportion of cases.23 [There] will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order.24 In Pinnock, the Supreme Court declined to give further guidance, stating The wide implications of the obligation to consider the proportionality of making a possession order are best left to the good sense and experience of judges sitting in the County Court.25

Defending possession proceedings 7th edition: online update March 2011

How much wider is a proportionality defence than a conventional administrative law defence?
One of the key differences between the human rights defence described in this Chapter and the public law defence (described in Chapter 25) is that conventional judicial review and administrative law defences focus upon the decision-making process and the procedure followed by the claimant. However, human rights or proportionality defences focus upon outcomes. As Lord Bingham said in R (Begum) v Denbigh High School Governors26 what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.27 In a human rights defence the court is deciding for itself on the facts as agreed (or as found at trial) whether the making of a possession order would be proportionate. In a public law defence the court is simply deciding whether the claim is lawfully brought to the court by the claimant. There is no doubt that the merits of the personal circumstances of the occupants will be important in human rights defences. In P innock, Lord Neuberger said that the submissions that proportionality is more likely to be a relevant issue in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty, and that the issue may also require the local authority to explain why they are not securing alternative a ccommodation in such cases seemed to be well made.28
23 24 25 26 27 28 [2011] UKSC 8 at [35]. See too [92]. [2011] UKSC 8 at [37]. See too [88]. [2010] UKSC 45 at [57]. [2006] UKHL 15, (2007) 1 AC 100 [2006] UKHL 15 at [31]. [2010] UKSC 45 at [64].

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chapter 26 / Human rights defences www.lag.org.uk/DPP7 Defending possession proceedings 7th edition: online update March 2011

However, occupants defending possession claims may well be able to rely on both traditional administrative law grounds in a public law defence and proportionality arguments in a human rights defence. If that happens, courts will have to consider both the decision making process by the claimant and the occupants personal circumstances.

In what kind of cases will human rights or proportionality defences succeed?

The following are possible situations in which a defence might succeed depending upon the particular factual circumstances of the defendants case. (a) Mr and Mrs A are joint tenants. Mrs A is blameless. Mr A leaves the premises and either out of spite or because he does not want to continue to be liable for rent, he serves a notice to quit, terminating the tenancy. Perhaps the landlord encourages him to serve a notice. The former landlord then brings a possession claim against Mrs A. (b) A council grants a tenancy to Mr B. He lives in the flat until he dies. His wife succeeds to the tenancy but she too dies. The council then serves a notice to quit. Mr Bs son who has lived in the property for 50 years has no statutory right to succeed and faces a claim for possession. (c) Ms C is a sole tenant, living in premises with her 20-year-old son. He has never lived anywhere else. She abandons the tenancy, leaving him in occupation. The claimant serves notice to quit and brings a possession claim. (d) A housing association brings a possession claim against Mr D, an assured tenant, under mandatory Ground 8 Housing Act 1988. Mr D defends saying he has a housing benefit claim which through no fault of his own has not yet been determined. If it is granted, the housing benefit will clear the arrears.29 (Or a housing association seeks possession on the same facts against an assured shorthold relying upon a Housing Act 1988 s21 notice.) (e) Ms E, an elderly occupier, is terminally ill (or about to undergo major surgery) but the claimant seeks immediate possession.
29 See North British Housing Association Limited v Matthews [2004] EWCA Civ 1736; [2005] 1 WLR 3133

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What is the test to be applied when county court judges initially consider whether to dispose of public law defences summarily?
In Pinnock, Lord Neuberger stated:
If an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.30

Defending possession proceedings 7th edition: online update March 2011

In Powell, Hall and Frisby, Lord Hope said a court should initially consider [that question] summarily and if it is satisfied that, even if the facts relied upon are made out, the point would not succeed, it should be dismissed.31 What then is the test for summary disposal? The Supreme Court in Pinnock appear to have taken the reference to summary disposal from the ECtHR decision in McCann v UK where they referred to occupants raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.32 In Frisby, Hall and Powell, counsel for the Secretary of State argued that regard should be had to CPR 55.8(2) whether the claim is genuinely disputed on grounds which appear to be substantial. On the other hand, CPR Rule 24.2 (Grounds for summary judgment) provides that The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if (a) it considers (ii) that defendant has no real prospect of successfully defending the claim or issue. It may be that there is little difference between the two tests.

What facts should county court judges consider?

In Pinnock, Lord Neuberger said
EurCtHR jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute. [73]
30 [2010] UKSC 45 at [61]. 31 [2011] UKSC 8 at [34]. See too [92]. 32 (2008) 47 EHRR at para 54.

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chapter 26 / Human rights defences www.lag.org.uk/DPP7 Where it is required in order to give effect to an occupiers article 8 Convention rights, the courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view. [74] a County Court judge who is invited to make an order for possession against a demoted tenant can consider whether it is proportionate to make the order sought, and can investigate and determine any i ssues of fact relevant for the purpose of that exercise. [para 104]

Defending possession proceedings 7th edition: online update March 2011

However, since a local authoritys aim in wanting possession should be a given, which does not have to be explained or justified in court, [t]he court will only be concerned with the occupiers personal circumstances. [53] In the light of these pronouncements, if a defence is raised and is not dismissed summarily, the court must determine any disputed factual issues. In Powell, Hall and Frisby, in relation to introductory tenancies, Lord Hope stated at [53] that the courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering the facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view.

What, if any, is the effect of Pinnock and Powell on landlords other than local authorities?
In Pinnock, Lord Neuberger stated that the courts observations relating to local authority landlords applied equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1998, but nothing in the judgment applied to private landowners. So, in view of R (Weaver) v London & Quadrant Housing Trust,33 if a housing association or other PRPSH is a public authority all that is said in Pinnock, Powell, Hall and Frisby applies equally to it. See further paragraphs 26.14 and following in this chapter.

33 [2009] EWCA Civ 587, [2010] 1 WLR 363.

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What about Housing Act 1980 s89?

In Pinnock, Lord Neuberger said that Housing Act 1980 s89 (which in many cases limits the period for which a possession order can be postponed limited to 14 days unless exceptional hardship when 42 days) and some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. However, the Supreme Court later considered Housing Act 1980 s89 in Powell, Hall and Frisby. Notwithstanding what was said in Pinnock, it stated that no evidence had been put before it to show that in practice the maximum period of six weeks was insufficient to meet the needs of cases of exceptional hardship. [Any] reading down of the section to enable the court to postpone the execution of an order for possession of a dwelling-house which was not let on a secure tenancy for a longer period than the statutory maximum would go well beyond what [Human Rights Act 1998] section 3(1) permits.34 However, section 89 does not take away from the court its ordinary powers of case management. It would be perfectly proper for it, for example, to defer making the order for possession pending an appeal or to enable proceedings to be brought in the administrative court which might result in a finding that it was not lawful for a possession order to be made.35 What then if a local authority seeks possession against a terminally ill non-secure occupant who is likely to die in six months time? Before finding deciding whether or not the claimant is entitled to a possession order, the court may be able to adjourn. However, if a trial has taken place, it seems that the court has limited options either finding that it is disproportionate to make a possession order at all and dismissing the claim or finding that the claimant is entitled to possession and that it is proportionate to make a possession order to take effect in six weeks (assuming exceptional hardship).
34 [2011] UKSC 8 at [62]. 35 [2011] UKSC 8 at [63].

Defending possession proceedings 7th edition: online update March 2011

Jan Luba QC, John Gallagher, Derek McConnell and Nic Madge 2011. Defending possession proceedings, 7th edition, is available at www.lag.org. 15 uk/books