McPhail v Persons, Names Unknown; Bristol Corporation v Ross
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE LAWTON |
| Judgment Date | 24 May 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0524-1 |
| Date | 24 May 1973 |
| Court | Court of Appeal (Civil Division) |
In The Matter of 4 Thornhill Square Islington in the County of London
[1973] EWCA Civ J0524-1
The Master of The Rolls (Lord Denning)
Lord Justice Orr and
Lord Justice Lawton
In The Supreme Court of Judicature
Court of Appeal
Appeals by defendants from order of Mr Justice Phillips on 25th April 1973 and from order of Mr Justice Foster on 18th April, 251973
Mr. J. C. HARPER (instructed by Islington Community Law Centre) appeared on behalf of the appellant Defendants Sheila Smith, Elaine Hardman and Mark Hill.
The Appellant Defendants Linda Levin and John Forsyth appeared in person.
Mr. ANTHONY LINCOLN, Q.C, and fir. S. NATHAN (instructed by Messrs, Lewision & Co.) appeared on behalf of the Respondent Plaintiff.
1. INTRODUCTION
Mr. McPhail is the owner of a leasehold house, No. 4, Thornhlll Square, Islington. There was some furniture in it, but otherwise it seems to have been unoccupied. On Friday, 13th April, 1973, the premises were left locked and secured. On Sunday, 15th April, 1973, some persons, then unknown, made entry. They got in by the front door and put a new lock on. On Monday, 16th April, 1973, Mr. McPhail went with a detective inspector, and asked them their names. They did not give them. So he took proceedings for possession under Order 113 of the Rules of the Supreme Court. These were served on them some time on Thursday, 19th April for hearing on 25th April. They then gave their names. They said they believed that the house hadbeen empty for at least two years, and, as they had nowhere to live, they decided to make their home there. On 25th April, Mr. Justice Phillips made an order that Mr. McPhail do recover possession.
The Corporation of Bristol own a house, No. 23, Norman by Road, Easton, Bristol. About 16th March, 1973, two women and five children entered it and started to live there. As soon as the officers of the Corporation heard of it, they vent to the house. They found a notice on the window, which read:-
"This property has been occupied by squatters and we intend to stay here. If you try to evict us with force, we will prosecute you and you must deal with us through the Courts."
The Corporation took steps under Order 113 to obtain possession. They served a summons on the two women on 13th April, 1973. It came before Mr. Justice Foster on 18th April, 1973. He made an order that the plaintiffs do recover possession of the house.
In both cases the squatters appeal to the Courts. They adroit that they have no defence in law, but they ask the Court to give them time.. They only ask for four weeks, or so. Can the Court give it to them? The case raises this question: When the owner of the house asks for an order for possession, is the Judge bound to make an order which is enforceable forthwith? or can he suspend it for a while?
2. THE LALAS TO SQUATTERS
What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law. As we said in Southwark L.3.C. v. Williams (1971)Ch. at page 744:
"If homelessness were once admitted as a defence to trespass, no one's house could be safe… So the Courts must for the sake of law and order take a firm stand. They must refuse to admit the plea of necessity to. The hungry and the homeless: and trust that their distress will be relieved by the charitable and the good."
(1) The remedy of self-help
Now I would say this at once about squatters. The owner is not obliged to go to the Courts to obtain possession. He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the aid of the Courts of law. This is not a course to be recommended because of the disturbance which might follow. But the legality of it is beyond question. The squatters were themselves guilty of the offence of forcible entry contrary to the Statute of 1381 (4 Richard II), When they broke in they entered "with strong hand" 'which the Statute forbids. They were not only guilty of a criminal offence. They were guilty of a civil wrong. They were trespassers when they entered, and they continued to be trespassers so long as they remained there. The owner never acquiesced in their presence there. So the trespassers never gained possession. The owner, being entitled to possession, was entitled forcibly to turn them out, see Browne v. Dawson (1840) 12 Ad. and El, 624. As Sir. Frederick Pollock put it in his book on Torts: "A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner". See Pollock on Torts, 15th edition, page 297. given though the owner himself should use force, then so long as heuses no more force than is reasonably necessary, he is not himself liable either criminally or civilly. He is not liable criminally (1) because it was said in the old times that none of the statutes of forcible entry apply to the expulsion by the owner of a tenant at will, see Anonymous (1653) 1 Ventris 89; Rex v. Dorney (1697) 1 Salk 260; Rex v. Bathurst (1755) Sayer 225; but, even if this is no longer true (2) in any case the statutes only apply to the expulsion of one who is in possession, see Reg. v. Child (1846) 2 Cox Cr. C. 1C2. They do not apply to the expulsion of a trespasser who has no possession. The owner was not civilly liable because the owner is entitled to turn out a trespasser using force, no more than is reasonably necessary, see Hemmlngs v. Stoke Poges Golf Club (1920) 1 K. B. 720.
(ii) The remedy by action.
Although the law thus enables the owner to take the remedy into his own hands, that is not a course to be encouraged. In a civilised society, the Courts should themselves provide a remedy which is speedy and effective: and thus make self-help unnecessary. The Courts of common law have done this for centuries. The owner is entitled to go to the Court and obtain an order that the owner "do recover" the land, and to issue a writ of possession immediately. That was the practice in the old action of ejectment which is well described by Sir William Blackstone in his Commentaries Volume III pages 200/205 and Appendix No. II; and by Maitained in his Equity and Forms of Action, pages 352/4. So far as I can discover, the Courts of common law never suspended the order for possession. Once the order was made, the owner could straightaway get a writ of possession for the sheriff to cause the owner to be put intopossession. Sometimes the owner, although he got an order, might not wish to get the sheriff to turn out the trespassers, because the sheriff was known to charge extortionate fees. In that case the owner was entitled to take possession at once by his own hand, see Harris v. Austen (1616) 1 Rolls at page 213 by Chief Justice Coke; Lacy v. Berry (1659) 2 Siderfin at page 155/6; Aglionby v. Cohen (1955) 1 Q. B. 558.
Seeing that the owner could take possession at once without the help of the Courts, it is plain that, when he does come to the Courts, he should not be in any worse position. The Courts should give him possession at once, else he would be tempted to do it himself. So the Courts of common law never suspended the order for possession.
It was suggested by Mr. Harper that, although the Courts of common law never suspended the order for possession, nevertheless, the Courts of equity might do so: because they had power to issue an injunction to restrain the owner from proceeding with his action at law or with the enforcement of his order. In support of his argument, Mr. Harper cited a passage from Gilbert on Chancery Practice (1758) which was repeated afterwards in Harrison's practice (1790); and Bacon's abridgment (1807). But the passage is obscurely worded. And 1 am satisfied that a Court of equity would never intervene in aid of a wrongdoer. In Grafton v. Griffin (1830) 1 Russell & Mylne's Reports Ch. 336, where sore claimants had wrongfully turned a widow out of a house and got possession of it, Lord Lyndhurst, Lord Chancellor, said: "This Court will not intervene to support a possession so acquired."
By the Judicature Act, 1875, the old action of ejectment was replaced by an action for the recovery of land: but thepractice remained the same, although the machinery was different, see Gledhill v. Hunter (1880) 14 Ch. D. at pages 498-500, The judgment was, as before, that the plaintiff "do recover" possession. No time was mentioned. No date was given. The plaintiff could at once issue a writ of possession which was executed against the premises themselves. The sheriff's officers turned out everyone who was there. If there was some one else there, in addition to the defendant, he too would be turned out unless he applied to come in and defend; see Minet v. Johnson (1899) 6 T. L.3. 417; Leicester Permanent Building Society v. Shearley (195D Ch. 90).
(iii) The remedy by summons
So the matter rested until some difficulties were discovered recently. When some squatters entered on vacant land belonging to the Manchester Corporation, this Court granted an injunction against them, but held that it could not make an order for recovery of possession except in a final Judgment, see Manchester Corporation v. Connolly (1970) Ch. 420. And when some squatters occupied houses in Brighton, Mr. Justice Stamp held that no proceedings could be taken for recovery of possession unless they were named as defendants, see Wykeham...
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