The Supreme Court has dismissed an appeal from a tenant who had argued that before the court of first instance made a possession order against her, on mandatory grounds, it should have considered whether such an order was proportionate with reference to her right to a family and private life under Article 8 of the European Convention on Human Rights (“ECHR”).

The Facts in McDonald v. McDonald & Others [2016] UKSC 28 were as follows: the Appellant, who suffered from severe mental health problems, rented a property from her parents, which they had purchased with a mortgage. When the Appellant’s parents’ business failed they were unable to maintain payments towards the mortgage and receivers were appointed under the Law of Property Act 1925 to manage the property. The receivers served the Appellant with notice under s.21 Housing Act 1988, requiring her to vacate the property and subsequently obtained a possession order.  

Although all of the parties to the matter were private individuals and not public bodies, the Appellant argued that the Court, as a public body, was still required to have regard to her human rights. The Supreme Court held that whilst Article 8 may well be engaged, it was not open to the tenant to contend that any different order could have been justified, because the order made was mandated by the contractual relationship between the parties (with reference to the provisions enacted by the legislature to balance the interests of landlords and their tenants). The Supreme Court noted that to hold otherwise would result in the ECHR effectively being directly enforceable between private citizens, whereas its purpose was only to protect individuals rights from state infringement. The Supreme Court considered a number of decisions from the European Court of Justice and concluded these offered no support for the contention that a judge could be required to consider the proportionality of making such an order.

Interestingly the Supreme Court noted that, had an assessment of the proportionality of the order been required, because the term of the mortgage had expired three weeks before the possession order was made, it would be necessary to consider that the lender was entitled to repayment of the outstanding balance of the mortgage. In the joint judgment of Lord Neuberger and Lady Hale they commented, “It is difficult to see how the Appellant’s circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lender’s right to be repaid.”