McDonald -v- McDonald [2014} EWCA Civ 1049 24 July 2014
Ms McDonald was an assured shorthold tenant of a private landlord. Eviction action was taken against her on the basis of the automatic ground for possession contained in Housing Act 1988 section 21. One of her grounds of defence was reliance on Article 8 of the European Convention on Human Rights ( the right to respect for private and family life and home). The question, in terms of this ground, for the Court of Appeal, was whether she could rely on this ground of defence in an action involving a private landlord.
Arden LJ, giving the leading judgment, stated:
1. In my judgment, the judge was correct, and, it follows, Miss McDonald’s claim that the PO should be set aside because it violates her Article 8 right must be rejected for the following reasons, which are amplified later in this judgment:
i) There is no “clear and constant” jurisprudence of the Strasbourg court that the proportionality test implied into Article 8(2) applies where there is a private landlord.
ii) Even if the proportionality test had applied in this case, the court would still have made a possession order.
iii) In any event, this court is bound by Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48 to hold that section 21 of the HA 1988 is compatible with the Convention. That precludes this court from holding that the proportionality test applies.
iv) In the circumstances, the question of interpreting section 21 of the 1988 Act to conform to Convention rights does not arise (para 19).
In Malik -v- Fassenfelt  EWCA Civ 798, 3 July 2013, the case involved certain people who were squatting on a derelict piece of land owned by a private landowner as a protest against the proposal for a third runway at Heathrow Airport. The defendants attempted unsuccessfully to argue Article 8 in their defence. However, the Court of Appeal accepted that Article 8 could apply in a case involving a private landowner (since the court itself is a public body that has to have regard to the Convention). That said, it is clear that an Article 8 defence would only defeat a claim brought by a private landowner in the rarest of cases.
Arden LJ seemed to sidestep Malik, stating that “the context on this appeal is different” (para 57).
The Housing Law website Nearly Legal comments ( see : http://nearlylegal.co.uk/blog/2014/08/article-8-private-sector-court-appeal-speaks/ ):
… the CoA heard the appeal shortly before the decision of the High Court in Manchester Ship Canal Developments v Persons Unknown  EWHC 645 (Ch)…where HHJ Pelling QC clearly considered himself bound by the CoA’s decision in Malik v Fassenfelt to conclude that Art.8 was capable of being engaged in relation to land owned by a private landowner. Arden LJ refers to the Malik decision at para.57 but leaves us with the curious possibility that Art.8 may now be relied on in a defence to private possession claims other than through the accelerated possession procedure.
We would suggest that advisers representing Gypsies and Travellers facing eviction from private land should continue to rely on Malik. However they should note that any defence will have to be exceptional in terms of the circumstances.