Can human rights defeat a short term lender?

Human rights have become a firm feature of the UK legal system ever since the European Convention on Human Rights was incorporated into the legislation by the Human Rights Act 1989. 

 

Article 8 of the Convention guarantees respect for everyone's private family life. This has enabled occupier's lawyers to attempt to prevent orders for possession being made against their clients on the basis that their private family life would be unfairly affected. In his article in January's edition of the Journal of Housing Law, James Hurford, a solicitor with the Coventry Law Centre, provides a full resume of the relevant law in this area which is worth reading for those who might be concerned. 

 

The bottom line is that occupiers, including borrowers, do have the right to raise Article 8 as an issue but the vital question is, what are their chances of success? The good news for lenders is – not very high. As James Hurford says, “Undoubtedly art. 8 would be difficult to deploy”. There would have to be 'exceptional circumstances' for the court to go beyond the provisions of s.36 Administration of Justice Act 1970, and grant borrowers more protection than are circumscribed by that provision. 

 

So, although short-terms borrowers finding themselves on the wrong side of a possession action may complain, 'What about my Human Rights?' (and they often do!), it is highly unlikely that Article 8 will ride to their rescue. More than that, the courts have said that such contentions should be dealt with briefly and summarily. 

 

So no long, drawn out proceedings. We are still waiting for the 'exceptional' mortgage case to appear.