Amenability cases

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Aston Cantlow and Wilmcote v Wallbank [2003] UKHL 37

The Wallbanks owned a farm on church land. As ‘lay rectors’ they would be liable for any repairs needed to the church under archaic laws dating back to the 16th century (although underpinned by the Chancel Repairs Act 1932).

  • The church issued the Wallbanks with a notice to pay £96,000 (which later increased to £230,000) under this law for the upkeep of the church
  • The claimants sought to rely on the Human Rights Act to argue that the Church of England parish was a public authority depriving them of their Article 1 of the First Protocol ECHR rights to peaceful enjoyment of their possessions.

A legal question for the courts was whether the HRA applied: was the church parish a public authority under s.6(3)?

  • The Court of Appeal said that it was, and that there had been a breach of the Article 1 First Protocol right to property, and Article 14 on unlawful discrimination in respect of the enjoyment of the substantive right (Art 1, FP)
  • The HoL allowed the church parish’s appeal and reinstated the original order to pay the chancel repair bill → in other words, the court is saying that they can rely upon their private law right because the church parish is not a public authority for the purpose of the HRA

The Wallbanks later sold their house to meet the cost of the bill (and legal costs of £250,000).

R v Disciplinary Committee of the Jockey Club, ex parte Khan [1993] 1 WLR 909

The claimant (a racehorse owner) sought judicial review of decision to disqualify his filly (i.e. a young female horse) and fine the claimant when a banned substance was found in the horse’s urine

The Jockey Club had been incorporated by Royal Charter, but gained its powers from the issuance of licences and permits in a system of sport self-regulation.

  • This is similar to the ex parte Datafin case as we are talking about a body which is really about self regulation and about a body which administers the rules of racing (like the Panel who administered the code on take over and mergers)
  • But here the court decided this was a private law body, not a public law body so is not amenable to judicial review

R v Panel on Takeovers and Mergers, ex parte Datafin [1987] 2 WLR 699

Facts: Datafin were looking to takeover a company, but complained to the Panel on Takeovers and Mergers about the company (to be taken over) acting in concert with other parties in breach of the City Code.

The Panel dismissed the complaint, and the claimant sought judicial review of that dismissal. The question was, was the panel an amenable body for judicial review purposes?

  • Peculiarly, the Panel operated through the consent of the City of London; it had no formal powers or statutory underpinning. It was effectively an exercise in self-regulation.

The High Court dismissed the action because the body was not thought to be susceptible to judicial review.

  • Only recently had the GCHQ case occurred where judicial review had been extended to the prerogative, but now the court were being asked to extend it further

Held: The Court of Appeal heard an appeal on the jurisdictional (amenability) question, and the substantive application.

  • The Court of Appeal decided that the Panel was an amenable body
  • Although it had no statutory footing, it performed governmental or public law duties, and was part of a governmental framework for regulating activity in the City;
  • It had been referred to by statute and was recognised as having quasi-judicial powers of decision-making and enforcement;
  • The function of the Panel points towards a public law body who must come under the scrutiny of the courts in judicial review.

Poplar Housing v Donoghue [2001] EWCA Civ 595

Facts: Donoghue as provided with temporary non-secure tenancy by a local authority, pending determination of whether she was intentionally homeless. The property was transferred to a housing association, with a distinct legal identity to the local authority. The housing association served notice to quit, and pursued a possession order in the courts.

Donoghue sought to argue that her rights under Article 8 ECHR (i.e. right to respect of one’s private and family life) were engaged, and sought an adjournment to the possession proceedings so that the point could be argued about her article 8 rights.

Held: The trial judge refused the adjournment on the basis that, if her Article 8 rights were engaged, there would be no infringement of that right. She appealed to the Court of Appeal. The Court of Appeal agreed on the point that no Article 8 infringement would occur.

But crucially, the Court of Appeal did rule that Poplar Housing was a public authority under s.6(3) having regard to:

  • The statutory responsibilities it was exercising on behalf of the local authority;
  • The closeness between the local authority and the housing authority (the former created the latter).

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R (Weaver) v London & Quadrant Housing [2009] EWCA Civ 587

The claimant was a tenant who had most (but not all) of their rent paid for by the local authority. The registered social landlord sought possession of the property when the rent fell into arrears. The claimant sought to rely on her Convention rights in contesting the possession order. The Court of Appeal held that the landlord was a functional public authority (i.e. a hybrid public body)

  • In other words, the court of appeal held that a private landlord was on hybrid public body because although they are out to make a profit, they were registered with the local authority to provide social housing

The CA had regard to:

  • The significant public financing of the accommodation;
  • The extent to which the landlord worked in close harmony with the core public authority (the local authority);
  • The fact that the landlord was bound by a regulatory framework for social housing

The CA further considered that:

  • Parliament had intended to confer public law rights on claimants subjected to the decisions of hybrid public bodies; and
  • Perhaps the situation would be different were the landlord to enforce his private law rights to possession of the property where the rent was at market value.

YL v Birmingham CC [2007] UKHL 27

Facts: The claimant was 84 years old, and required residential care under s.21 of the National Assistance Act 1948. The care was provided by Southern Cross: a for-profit firm operating care homes for the benefit of public and private residents. The majority of the claimant’s fees were met by the local authority. There was a disagreement between the claimant’s relatives and the care home, so the care home simply decided to terminate the care contract and remove the claimant from the home.

Held: A claim was brought under the HRA, and the question for the court was whether Southern Cross was a functional public authority, such that it would be bound by Article 8 ECHR (i.e. right to respect of one’s private and family life)

  • By a 3-2 majority (Bingham and Hale dissenting), Southern Cross was held not to be a functional public authority for the purposes of s.6(3) HRA
  • In other words, the HRA rights of the claimant against the local authority had not been contracted out to the care provider

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