Is McDonald the last word on Art 8 & private landlords, asks Philip Sissons
This update considers the impact of the important recent decision of the Court of Appeal in McDonald v McDonald [2014] EWCA Civ 1049, [2014] All ER (D) 273 (Jul). The case concerned the extent to which it is open to the tenant of a private landlord to invoke the test of proportionality imported by Art 8 of the European Convention on Human Rights, where domestic law otherwise makes a possession order mandatory. For some time (and particularly since the dissenting judgment of Lord Justice Ward in Malik v Fassenfelt [2013] EWCA Civ 798, [2013] All ER (D) 44 (Jul)) there has been a degree of uncertainty as to the extent to which resort can be had to Art 8 in possession claims made by private landowners (as opposed to public authorities). In McDonald , the Court of Appeal has provided important clarity and much needed certainty (at least for the time being) by determining that the duties imposed by Art 8 are limited to cases of public authority
