Secretary of State for the Environment Food and Rural Affairs v Drury
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilson,Lord Justice Mummery,Lord Justice Ward |
| Judgment Date | 26 February 2004 |
| Neutral Citation | [2004] EWCA Civ 200 |
| Docket Number | Case No: B2/2003/1286 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2004 |
[2004] EWCA Civ 200
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NORTHAMPTON DISTRICT REGISTRY
(H.H. JUDGE WAINE)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Mummery
Mr Justice Wilson
Case No: B2/2003/1286
Mr Richard Drabble Q.C. and Mr Richard Hickmet (instructed by the Community Law Partnership, Birmingham) appeared for the Appellant.
Mr John Hobson Q.C. (instructed by Messrs Whitehead Vizard, Salisbury) appeared for the Respondent.
Ms Drury, the appellant, appeals against an order made by His Honour Judge Waine, sitting as a judge of the High Court, Queen's Bench Division, Northampton District Registry, on 23 May 2003.
The appeal raises the question: in a possession claim against trespassers can the court – and, if so, to what extent and by reference to what principle – make an order for possession in relation not only to the area of land which the trespassers are occupying but also to a separate area of land owned by the claimant?
The respondent is the owner of Fermyn Woods, which lie to the south east of Corby. The Forestry Commission manages the woodland on her behalf.
On about 15 April 2003 eleven travellers, including the appellant and her two children, wrongfully began to occupy Fermyn Woods. On that date an officer of the respondent requested them to leave the woodland forthwith. They did not do so. Indeed during subsequent weeks a number of other travellers took up occupation of the woodland with them.
On 15 May 2003 the respondent issued "a possession claim against trespassers", as defined in rule 55.1(b) of the Civil Procedure Rules 1998. Being unaware of the names of any of the occupants of the woodland, she brought the claim against "persons unknown" pursuant to rule 55.3(4) . At the appellant's request, she was added as a named defendant to the claim only after the order under appeal had been made.
By her claim form the respondent sought an order for possession not just of Fermyn Woods but also of thirty other named areas of woodland separate from Fermyn Woods. These other areas comprised all the woodlands owned by her and managed by the Forestry Commission which lay within a 20-mile radius of Fermyn Woods. Although the particulars of claim suggested that all thirty one areas of woodland were occupied by the unnamed defendants, the supporting statement of Mr Ashley, a land agent employed by the Forestry Commission, made clear that the defendants were in occupation only of Fermyn Woods and that the case for an order in relation to the other thirty areas of woodland was founded upon concern that, on departure from Fermyn Woods, the defendants would move into occupation of one or more of them.
In his statement Mr Ashley said that:
(a) there had been previous unlawful encampments by travellers on Fermyn Woods;
(b) in 1998 one such encampment had led to an order for possession;
(c) the registration plate noted upon a vehicle which was part of the encampment on Fermyn Woods in 1998 was noted upon one of the vehicles which on 13 May 2003 were parked there;
(d) between 1997 and January 2000 there had been a number of other unlawful encampments by travellers on areas of woodland managed by the Forestry Commission within a 20-mile radius of Fermyn Woods;
(e) on six occasions a registration plate noted upon a vehicle which was part of one such other unlawful encampment had also been noted upon a vehicle which was part of another; and
(f) much of the respondent's land in the east of England had been the subject of almost continuous adverse occupation for many years.
The respondent effected service of the proceedings in accordance with rule 55.6, namely by attaching copies of the documents to stakes placed in the land. On the day prior to the hearing, along with other of the defendants, the appellant instructed solicitors, who wrote by fax to the court, with a copy to the respondent's solicitors. By their letter they requested a fortnight's adjournment so that they could file a defence; they raised concerns about the welfare of some of the defendants, including the then unnamed appellant who was pregnant and whose two children attended a local nursery school; and they protested that in any event the width of the area covered by the proposed order was unjustified.
At the hearing on 23 May the respondent was represented by a solicitor. None of the defendants was present. The judge read the letter from the solicitors instructed by some of the defendants but resolved to proceed. He made the order as sought, namely that the defendants, being persons unknown, should give possession of Fermyn Woods and of the other 30 areas of woodland to the respondent forthwith. He delivered no judgment other than to state that, in the light of the history of trespass upon the respondent's other woodlands within a 20-mile radius of Fermyn Woods, an order for possession relating also to them was fully justified.
The appellant appeals not against the order for possession of Fermyn Woods but against the order for possession of the other thirty areas of woodland. Mr Drabble QC submits on her behalf that the court has no jurisdiction to make an order for possession against a defendant, named or unnamed, in relation to an area of land which she or he does not occupy. His subsidiary submission is that, if such jurisdiction does exist, the criterion for its exercise was not satisfied.
The wrongful occupation by Romanies and other travellers of land managed by the Forestry Commission has become a substantial problem for the respondent. Mr Hobson QC on her behalf tells us that since August 1998 she and her predecessors have obtained 25 orders for possession of areas of woodland in England and Wales against such trespassers. In order to address the risk of the defendants' decampment into other areas of the respondent's woodland in the vicinity of their camp and thus the need for the issue of further proceedings, a practice has evolved, in cases where such risk seemed demonstrable, of asking the court to include in its order for possession not only the area of woodland in wrongful occupation but all other areas of woodland owned by the respondent within a specified radius of it. Thus Mr Hobson says that 13 of the 25 orders included all areas of woodland owned by the respondent within a 20-mile radius of the area in wrongful occupation and that another of the orders, made against defendants who had escaped the reach of a previous order with a 20-mile radius by occupying woodland four miles outside it, included all areas within a 30-mile radius.
Recognition of the above practice is to be found in a note in "Civil Procedure" 2003, Vol. 1 p. 1748. Notwithstanding transfer of the rules relating to possession claims against trespassers from R.S.C. Order 113 to C.P.R. Part 55 in October 2001, extensive commentary upon them is still to be found under the heading of the old order. The note is as follows:
"Where a Claimant, such as the Forestry Commission, owns a number of parcels of land in a particular area which are susceptible to unlawful occupation and is seeking possession in respect of one such parcel which is unlawfully occupied but apprehends that if the order is made the unlawful occupiers will move to one or more of the other parcels and seeks to include them in the possession order such other areas must be clearly defined. A claim for possession of "The Forest of Greenwood and all other woodland owned by them within a radius of 20 miles thereof" is not sufficient. Each parcel should be identified by name in the Claim Form preferably by reference to a plan. The court can then include in the possession order those parcels to which on the evidence and the law the Claimants are found to be entitled. An order so made should present no problem in execution."
No authority is cited in support of the proposition in the note, which first appeared in the 1999 edition of The Supreme Court Practice, and Mr Hobson is unable to shed light on its origin. In any event, apart from stressing the need for woodlands in any radius order to be clearly identified (lack of such identification being a ground of appeal no longer pressed in the present case), the note begs the question raised in the present appeal by making clear that such an order is subject to "the evidence and the law".
Counsel agree that there are only two authorities of direct relevance.
The first is the decision of this court in University of Essex v. Djemal and others [1980] 1 WLR 1301. The subject matter of the case was a sit-in of university premises by students. They had occupied the administrative offices and, following an order for possession of that part of the premises, they had moved to another part known as Level Six. Thereupon the university applied for an order for possession of the whole of its premises. Just prior to the hearing before the judge the students vacated Level Six but left behind a note threatening "further direct action" against the university unless their demands were met. The university proceeded with its application but the judge refused to make an order for possession other than in relation to Level Six. He held that the words of Order 113, R.S.C. 1965, restricted the court's jurisdiction to making an order for possession of such part of the premises as was being or had been wrongly occupied. The university's appeal was allowed and an order was substituted for possession "of the premises at the University of Essex, Wivenhoe...
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