Robert Latham & Stephen Reeder revisit the public/private debate on eviction
The long running debate over the use of public law defences to defeat or delay private law claims for possession of residential premises pre-dates the development of modern judicial review procedure and the incorporation of Art 8 of the European Convention on Human Rights into domestic law by The Human Rights Act 1998 (HRA 1998).
Public law defences came to be employed where a defendant to a possession claim had no remaining statutory or contractual right to occupy the premises so that the public authority landlord had an unqualified private law right to immediate possession upon proof of title and that the right of occupation had been brought to an end.
The pendulum swung back and forth as a long line of domestic authority developed from O'Reilly v Mackman [1983] 2 AC 237, [1982] 3 All ER 1124, Wandsworth LBC v Winder [1985] AC 461, [1984] 3 All ER 976, Avon CC v Buscott [1988] QB 656, [1988] 1 All ER 841 and Sheffield CC v Smart [2002] HLR 34, [2002] All ER (D) 226
