Implications and importance of the McDonald v McDonald case

Land Law and Human Rights


Dissect the implications and importance of the McDonald v McDonald [2016] case by reading the questions below. Reveal the answers to test your knowledge.


1. In the McDonald litigation, what was the name of the McDonalds’ daughter who sought to rely on her human rights to challenge eviction?

 


2.Why did the agents of Capital Homes ltd seek to evict the McDonalds’ daughter?

The Mcdonalds had fallen into arrears with their mortgage payments.


3. What did the court at first instance decide in relation to possession proceedings to evict the McDonalds’ daughter?

That given the nature of Fiona’s tenancy, the court had no discretion to prevent a possession order. An order was therefore made.


4. On what basis did the Court of Appeal reject the Article 8 ECHR argument?

That there was no clear and constant Strasbourg jurisprudence that the proportionality test under Article 8(2) applied in a case of a private landlord.


5. In the Supreme Court, which two justices delivered the only judgment?

Lord Neuberger and Lady Hale (with which the other justices agreed).


6. On the issue of the horizontality, what did the Supreme Court conclude?

The effect of the Strasbourg authorities was that Article 8 was not engaged where there was an ‘exclusively private law relationship between the parties.’


7. What did the European Court of Human Rights say in relation to the Housing Act 1988?

That the 1988 Act reflected the State’s assessment of the balance to be struck between private landlords and their tenants.


8. What risks did the European Court of Human Rights see in allowing a proportionality exercise to be conducted by the courts in a private context?

To allow a proportionality exercise in a purely private context would lead to unpredictable and potentially damaging consequences for the private rental sector.

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