Muca v El Amrani; Harker v Hubert & Hamdaoui [2026] EWCA Civ 515 - update

Muca v El Amrani; Harker v Hubert & Hamdaoui [2026] EWCA Civ 515

Permission granted by the Supreme Court; the saga continues …..

Sally Anne Blackmore, Enterprise Chambers

Eagle-eyed watchers of All Things Gas will have noted that, on 30 July 2026, the Supreme Court granted Ms Harker et al permission to appeal the Court of Appeal’s decision but that there was no similar determination at that time on Mr Muca’s application for permission.  

On 6 October 2026, the Supreme Court gave Mr Muca permission to go forward and the cases are to be heard together when a convenient date can be found, probably early(ish) next year.  

Both landlords will be arguing that the Court of Appeal’s decision amounts to a retrospective sanction or punishment, i.e. the s.21 prohibition did not exist as a sanction when the landlord failed to comply and it is wrong to impose a sanction with retrospective effect. 

With that in mind, it seems likely that there will be considerable debate around paragraph 75 of the Court of Appeal’s decision, in which Newey LJ said:

“I do not think that the presumptions against doubtful penalisation, interference with property rights and retrospectivity are of any real help to the landlords. What is at issue in this context is the construction of the Gas Safety Regulations, which have been in force since 1998. There is obviously no suggestion that any event relevant to these appeals occurred before then or of the debate as to the correct interpretation of the Gas Safety Regulations bearing on any property rights which any party to the appeals had at that date. In any event, the Gas Safety Regulations did not themselves affect the ability of landlords to serve section 21 notices. There was no linkage between the Gas Safety Regulations and section 21 notices until 2015, and the correct interpretation of the Gas Safety Regulations will not have changed with the arrival of the 2015 Act and Regulations.”

It is hard to see how the property rights of landlords with tenants who can bring themselves within El-Amrani have not been interfered with.  Newey LJ is – of course – right that the interpretation of reg.36(6)(b) is key (see [75]) but, whilst it has been in force since 1998 and its words have not changed, its implications have.  The landlords in these cases could – theoretically, if the relevant local authority had had the funds or the wherewithal to enforce – have faced criminal sanction for their failure to give their tenant a gas safety record in advance of moving in (and could still face this), but that is a rather different thing to being unable to recover your property.    

Falk LJ noted that the judgment might seem “surprising”, particularly in the context of the application of reg.36(6)(b) being the only wholly irremediable restriction on the use of s.21.  Is it too surprising to be able to stand?

In Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508, at 529, Lord Reid accepted the proposition that “a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms”, citing Lord Warrington in Colonial Sugar Refining Co. Ltd. v. Melbourne Harbour Trust Commissioners, a case decided in 1927 ([1927] A.C. 343 , 359).  A new authority on the matter from the highest court in the land seems a good way to mark Colonial Sugar’s centenary. 

Watch this space!      

SALLY ANNE BLACKMORE