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The post Doherty cases illustrate the continuing tension between the decisions of the courts in England and Wales and the ECHR - although it is clear that the county courts here should follow the decision of the House of Lords in Kay and Doherty unless and until their lordships succumb to the ECHR and tell district judges to do otherwise. It is also clear that trespassers are not able to challenge the decision to evict.

However, there seems to be some confusion as to what precisely is the test under gateway (b). How much wider than the traditional Wednesbury test should the court go? Is the question:
  • Whether the claimant's decision was reasonable?
  • Whether it was one which no reasonable land owner could have taken? Or
  • Which no reasonable person would consider justifiable?
With respect to Lord Hope, although the final sentence of his comments in Doherty at para 55 suggest the latter it is not entirely consistent with the rest of the paragraph. Similar confusion is to be found in the judgment of Toulson J in Doran.

Collins J was right when he said that the law is in a mess (Defence Estates v JL). This has been recognised so that in Salford City Council v Mullen the CA has given some temporary but specific guidance pending what will hopefully be a definitive statement by the Supreme Court in Pinnock.

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