In R (JL) – v – Secretary of State for Defence  EWCA Civ 449, the Court of Appeal upheld the Judge at first instance who had held that a proportionality argument could be raised at the enforcement stage of a possession order (i.e. after it had been made and when a writ or warrant to bailiffs to execute the order had been issued) although only in exceptional cases, otherwise it would be an abuse of the process of the court to do so. Such a case could be where “there is a fundamental change in the occupants’ personal circumstances after the making of a possession order but before its enforcement” (para 41) or, as in this case, the state of the law at the time of the possession hearing was that the proportionality argument could not be made (para 42). In the recent Court of Appeal Judgment in Lawal – v – Circle 33 Housing Trust Limited ( EWCA Civ 1514), the Court of Appeal added a case where an Article 8 defence had been advanced before the first instance judge but she “either declined to hear it or peremptorily dismissed it but in either case, she gave no reasons for doing so” (para 90, Sir Terence Etherton LJ).
To read the Judgment in this case, see: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2014/1514.html&query=Lawal+and+v+and+Circle+and+33&method=boolean