14th Jan 2011 | Articles

Is proportionality moving in? Robert Strang reports on orders for sale after Pinnock, in this New Law Journal article “A new neighbour”

On an application for an order for sale of property to enforce a charging order, the law as it is presently applied by the High Court does not require explicit consideration of the occupants’ human rights (in particular those protected by Art 8 of the European Convention on Human Rights) or the proportionality of the proposed interference with them: NatWest Bank v Rushmer [2010] EWHC 554 (Ch), [2010] All ER (D) 205 (Mar) paras 50 and 51.

In Manchester CC v Pinnock [2010] UKSC 45, [2010] All ER (D) 42 (Nov) in respect of possession orders sought by public authority landlords, the Supreme Court bowed to the repeated insistence by the European Court of Human Rights (ECtHR) that people facing eviction from their home are entitled to have the proportionality of the decision to evict them assessed by a court.

Although the Supreme Court said that its judgment in Pinnock only bears on local authority landlords in possession claims, it is likely to have a wider effect, at least as an indicator of the supremacy of the ECtHR’s approach, in cases involving possible eviction, to the question of the proportionality of the interference with Art 8 rights and the court’s role in determining that question. This article looks at how these developments might affect applications for an order for sale.

InClose Invoice Finance Ltd vPile [2008] EWHC 1580 (Ch), followed in NatWest v Rushmer ̧ the court held that on an application for an order for sale the court’s discretion must be exercised compatibly with the Art 8 rights of those affected by the order, and went on to say that meant “ina way which gives due respect to the right of all those living in the property, not just the debtors, to have respect for their family life and their home.”

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