Secretary of State for the Environment Food & Rural Affairs v Meier and Others
| Jurisdiction | England & Wales |
| Judge | LORD RODGER,LORD WALKER,LADY HALE,LORD NEUBERGER,LORD COLLINS |
| Judgment Date | 01 December 2009 |
| Neutral Citation | [2009] UKSC 11 |
| Court | Supreme Court |
| Date | 01 December 2009 |
and another (FC)
and others and another (FC)
and another
[2009] UKSC 11
Lord Rodger
Lord Walker
Lady Hale
Lord Neuberger
Lord Collins
Appellant
Richard Drabble QC
Marc Willers
(Instructed by Community Law Partnership)
Respondent
John Hobson QC
John Clargo
(Instructed by Whitehead Vizard)
If a group of people come on to my land without my permission, I shall want the law to provide a speedy way of dealing with the situation. If they leave but come back repeatedly, depending on the evidence, I shall be able to obtain an interlocutory and final injunction against them returning. But they may come on to my land and set up camp there. Again, depending on the evidence, I shall be able to obtain an injunction (interlocutory and final) against them remaining and also against them coming back again once they leave as required by the injunction. Similarly, if the evidence shows that, once they leave, they are likely to move and set up camp on other land which I own, the court can grant an injunction (interlocutory and final) against them doing that. If authority is needed for all this, it can be found in the judgment of Lord Diplock in the Court of Appeal in Manchester Corporation v Connolly [1970] Ch 420.
Of course, it is quite likely that I won't know the identities of at least some of the trespassers. If so, Wilson J regarded an injunction as "useless" since "it would be wholly impracticable for the claimant to seek the committal to prison of a probably changing group of not easily identifiable travellers, including establishing service of the injunction and of the application": Secretary of State for the Environment v Drury [2004] 1 WLR 1906, 1912, para 19. That may well have been an unduly pessimistic assessment. Certainly, claimants have used injunctions against unnamed defendants. And Sir Andrew Morritt V-C was satisfied that the procedural problems could be overcome. Admittedly, the circumstances in the first of his cases, Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and a Person or Persons Unknown [2003] EWHC 1205 (Ch), were very different from a situation involving trespassers. But trespassing protesters were the target of the interlocutory injunction which he granted in Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites [2003] EWHC 1738 (Ch). Similarly, in South Cambridgeshire DC v Persons Unknown [2004] EWCA Civ 1280 the Court of Appeal (Brooke and Clarke LJJ) granted an injunction against persons unknown "causing or permitting hardcore to be deposited, caravans, mobile homes or other forms of residential accommodation to be stationed, or existing caravans or other mobile homes to be occupied on land" adjacent to a gypsy encampment in rural Cambridgeshire. Brooke LJ commented, at para 8: "There was some difficulty in times gone by against obtaining relief against persons unknown, but over the years that problem has been remedied either by statute or by rule." See the discussion of such injunctions in Jillaine Seymour, "Injunctions Enjoining Non-Parties: Distinction without Difference" (2007) 66 CLJ 605-624.
The present case concerns travellers who set up camp on the Forestry Commission's land at Hethfelton. Lord Neuberger has explained the circumstances. The identities of some, but not all, of those involved were known to the Commission. So the defendants included "persons unknown". Despite this, the Commission sought an injunction against all the defendants, including those described as "All persons currently living on or occupying the claimant's land at Hethfelton." The recorder declined to grant an injunction on the view that it would be disproportionate. But the Court of Appeal, by a majority, reversed the recorder on this point and granted an order that
"The respondents, and each of them, be restrained from entering upon, trespassing upon, living on, or occupying the parcels of land set out in the Schedule hereto, and, for the avoidance of doubt, the 4th respondent shall mean 'those people trespassing on, living on, or occupying the land known as Hethfelton Wood on any date between 13th February 2007 and 3rd August 2007 save for those specifically identified as 1st, 2nd, 3rd, 5th and 6th respondents.'"
In my view, for the reasons given by Lord Neuberger, the majority were right to grant the injunction. In any event, Mr Drabble QC, who appeared for the travellers, did not suggest that this injunction had been incompetent or defective for lack of service or in some other respect. Even Wilson LJ, who dissented on the injunction point in the Court of Appeal, did not go so far as to suggest that it was inherently useless: he simply took the view that it added nothing of value to the order for possession and, therefore, the recorder would have been entitled to exercise his discretion to refuse it on that basis: [2008] EWCA Civ 903, para 76.
This brings me to the order for possession which lies at the heart of the appeal. If people not only come on to my land but oust me from it, I can bring an action for recovery of the land. That is what the Commission did in the present case: they raised an action in Poole county court for recovery of "land at Hethfelton nr Wool and all that land described on the attached schedule all in the County of Dorset." In effect, the Commission were asking for two things: to be put back into possession of the land on which the defendants were camped at Hethfelton, and to be put into possession of the other specified areas of land which they owned, but on which, they anticipated, the defendants might well set up camp once they left Hethfelton.
The Court of Appeal granted an order for possession in respect both of the land at Hethfelton and of the other parcels of land situated some distance away. As regards the competency of granting an extended order of this kind, the court was bound by the decision in Secretary of State for the Environment v Drury [2004] 1 WLR 1906. The central issue in the present appeal is whether that case was rightly decided. In my view it was not.
Most basically, an action for recovery of land presupposes that the claimant is not in possession of the relevant land: the defendant is in possession without the claimant's permission. This remains the position even if, as the Court of Appeal held in Manchester Airport v Dutton [2000] QB 133, the claimant no longer needs to have an estate in the land. See Megarry & Wade, The Law of Real Property (7th edition, 2008), para 4-026. To use the old terminology, the defendant has ejected the claimant from the land; the claimant says that he has a better right to possess it, and he wants to recover possession. That is reflected in the form of the order which the court grants: "that the claimant do forthwith recover" the land - or, more fully, "that the said AB do recover against the said CD possession" of the land. See Cole, The Law and Practice in Ejectment (1857), p 786, Form 262. The fuller version has the advantage of showing that the court's order is not in rem; it is in personam, directed against, and binding only, the defendant. Of course, if the defendant refuses to leave and the court grants a writ of possession requiring the bailiff to put the claimant into possession, in principle, the bailiff will remove all those who are on the relevant land, irrespective of whether or not they were parties to the action: R v Wandsworth County Court ex parte Wandsworth LBC [1975] 1 WLR 1314. So, in that way, non-parties are affected. But, if anyone on the land has a better right than the claimant to possession, he can apply to the court for leave to defend. If he proves his case, then he will be put into possession in preference to the claimant. But the original order for possession will continue to bind the original defendant. See Stamp J's lucid account of the law in In re Wykeham Terrace [1971] Ch 204, 209D-210B.
In re Wykeham Terrace and Manchester Corporation v Connolly [1970] Ch 420 showed the need for some reform of the procedures used in actions for recovery of land. The twin problems of unidentifiable defendants and the lack of any facility for granting an interim order for possession were tackled by a new Order 113 the provisions of which, with some alteration of the details, have been incorporated into the current Rule 55 of the CPR. In the present case no issue arises about the wording of Rule 55. But I would certainly not interpret "occupied" in Rule 55.1(b) as preventing the use of the special procedure in a case like University of Essex v Djemal [1980] 1 WLR 1301 where some protesters were excluding the university from one part of its campus, but many students and members of staff were legitimately occupying other parts.
The intention behind the relevant provisions of Rule 55 remains the same as with Order 113: to provide a special fast procedure in cases which only involve trespassers and to allow the use of that procedure even when some or all of the trespassers cannot be identified. These important, but limited, changes in the rules cannot have been intended, however, to go further and alter the essential nature of the action itself: it remains an action for recovery of possession of land from people who are in wrongful possession of it. I should add that in the present case the defendants do not dispute that they are – or, at least, were at the relevant time - in possession, rather than mere occupation, of the Commission's land at Hethfelton. Wonnacott, Possession of Land (2006), p 27, points out that defendants rarely dispute this. But here, in any event, the defendants' possession is borne out by their offer to co-operate to allow the...
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