Is there always a public law defence to a possession claim brought by a public authority?

01 Jan 2018


Matt Lewin of Cornerstone Barristers has successfully represented the London Borough of Enfield in an application for summary judgment of a public law defence raised in a possession claim against a former business tenant of the Council’s.

The Council owns commercial premises which, for many years, were let to an unincorporated association, FECA. FECA acts as a representative body for the Council’s tenants, residents and associations. The premises were let on a commercial lease, subject to the provisions of Part II of the Landlord and Tenant Act 1954.

In April 2015, the Council served a section 25 notice, with proposals for the grant of a new lease on revised terms. Despite negotiations over the following months, the parties did not agree terms and FECA did not apply to court for the grant of a new lease. The section 25 notice took effect, terminating the lease, in October 2015. The result was that FECA held over in the premises as trespassers.

The Council decided to issue possession proceedings. Eventually, by an amended defence, FECA sought to defend the claim on public law grounds, relying on the principle in Wandsworth LBC v Winder. The Council took the view that there was no public law element in the proceedings and applied to strike out the defence and/or for summary judgment.

In a hearing before Deputy District Judge Genn in the County Court at Edmonton, the court accepted Matt’s argument that while the Council was acting pursuant to a statutory power (local authorities, after all, can only do things authorised by statute), this did not mean it was exercising a statutory function capable of challenge on public law grounds.

The court observed that the relationship between the parties was fundamentally commercial and was governed by the provisions of the LTA 1954 and the tenancy agreement. The court rejected FECA’s attempt to superimpose public law duties on this private law framework of rights and obligations which provided, for the tenants, security of tenure and, for the landlord, certainty in its dealings with its property. In the absence of a statutory function being exercised by the Council, there was no public law element to the case and therefore the public law defence was doomed to failure.

This was a case that turned on the distinction between the public and private functions of a public authority. It is a useful reminder of the principle that not every exercise of a statutory power by a public authority can be challenged on public law grounds.