Boyland and Son Ltd v Rand

LORD JUSTICE NEUBERGER: The issue on this renewed application for permission to appeal is whether the court has the power to give trespassers time to vacate when making an order for possession. It is conceded on behalf of the applicant that the law used to be that the court did not have such power, but it is said that it now does, either pursuant to the provisions of the Housing Act 1980 or else pursuant to the European Convention on Human Rights, at least where residential use is involved.

The applicant is Miss Lesley Rand. She is one of a number of travellers who moved onto a site owned by Boyland and Sons Limited (“the respondent”) in Dorset in the first half of October 2006. The respondent began proceedings for possession in the Poole County Court on 10 November 2006. An outright “forthwith” possession order was made on 21 November 2006. The applicant made an application to suspend the warrant for possession and that was referred to District Judge Winetroub on 27 November 2006, when he dismissed the application, but he gave permission to appeal and suspended the warrant in the meantime.

The appeal was heard next day by HHJ Meston, who gave a judgment to which Mr Peter Johnson, who appears for the applicant today, has paid tribute, with which I would like to associate myself. He dismissed the appeal. He granted a stay, pending an application for permission to appeal on a second appeal to this court. That application for permission to appeal was made and I dismissed it on paper, but continued the stay for a short period in case the application for permission to appeal was renewed. That permission application is now renewed.

We have heard argument from Mr Johnson, and while we consider that the application for permission to appeal should be dismissed, it is right to say that because this point is one which may be raised on other occasions, it seems to us that this is a judgment which should be capable of being cited, contrary to the normal rule about judgments on permission to appeal.

Under the previous case law it is clear that trespassers against whom an order for possession was made could not be given time by the court to vacate unless the claimant agreed. In McPhail v Persons Unknown [1973] Ch 447, Lord Denning MR explained that, under the High Court rule applicable at that time to squatters, Order 113 of the Rules of the Supreme Court, it was different for tenants whose tenancies had come to an end because in such a case, unlike the case of trespassers, “the owner is not entitled to regain possession himself by his own self help”.

After an interesting review of the relevant legal history, Lawton LJ who agreed said:

“… squatters were never able to enlist the aid of the Court of Chancery to resist a writ of possession and they cannot now. The position of tenants and licensees holding over may be different.”

The applicability of the reasoning of that decision through the County Court, under what was then County Court Rule Order 26, was confirmed by the Court of Appeal Swordheath Properties Ltd v Floydd and others [1978] 1 All Law England Report 721. The correctness of those cases was not challenged in the Privy Council case of Bibby v Partap [1996] 1 WLR 931, which confirmed the power of the court to grant a stay of execution in relation to a trespasser as part of its inherent jurisdiction in connection with the appeal process.

Two points are raised by Mr Johnson. The principal point is that a different conclusion now applies as a result of Section 89 of the Housing Act 1980. Section 89 is headed “Restriction on Discretion of Court in Making Orders for Possession of Land”. Subsection (1) provides that:

“Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.”

Subsection (2) sets out certain exceptions, including: possession actions by a mortgagee for possession by a landlord for forfeiture of a lease; cases where the order can only be made if the court considers it reasonable; premises which are subject to restrictive contract; and proceedings which are subject to Section 88. It is clear that none of those apply here.

As a matter of ordinary language, it seems to me that Section 89 cannot assist the applicant. As the title to the section, which is reflected in the longer title to the 1980 Act, shows, the provision is concerned with cutting down the period from which the court can postpone the operation of an order for possession. It is also clear from the negative terms in which the section is expressed. It is to my mind concerned with cases where the court has power to postpone and, in those cases, it is directed to curtailing the exercise of that power. There is no reason to think that, by a side wind, the legislature intended to grant squatters rights which did not previously exist.

My view that McPhail remains good law is confirmed by the views of both the editors of the White Book and the Green Book. At C45.3.7 in the White Book there is this:

“The court has no power to grant a stay of a writ of possession against the trespasser and a stay against a former tenant or service occupier would normally be limited between four and six weeks.”

It then refers to McPhail. In the Green Book, in a paragraph headed 3(iii)L & T 98.1, after referring to two cases which I will briefly mention, under section 89, it says this about the section:

“It does not purport to confer jurisdiction on the court to allow time, whether by postponing, varying, suspending, or staying the date when the order for possession is to take effect, but rather to restrict the exercise of the jurisdiction which already exists.”

As if this was not enough, the four members of the House of Lords in the majority in Kay v Lambeth London Borough Council [2006] 2 Weekly Law Reports 570 all appear to have assumed that McPhail remained good law (see paragraph 110 Lord Hope; paragraph 174 Lord Scott of Foscote; paragraph 194 Baroness Hale of Richmond; and paragraph 206 and 212 Lord Brown of Eton-under-Hayward).

It was suggested by Mr Johnson that the decision of Stanley Burnton J in Hackney London Borough Council v Side-by-Side (Kids) Ltd [2003] EWHC 1813 calls this conclusion into question. I do not agree. The importance of that case is that Stanley-Burnton J was invited to follow the decision in Bain v The Church Commissioners [1989] 1 Weekly Law Reports 24, where Harman J had reached the slightly idiosyncratic conclusion that section 89 did not apply to the High Court. I would take this opportunity of saying that, in my view, Stanley-Burnton J was plainly right. If the issue of whether Section 89 could be relied on by someone who had always been a trespasser had been a point which could have been raised in the Side-by-Side case, it seems to me that it was not a point which was taken and therefore that decision does not assist the applicant in this case.

Finally, there is a suggestion, which was dealt with very clearly by the judge below, that the decision in McPhail may be inconsistent with the European Court on Human Rights jurisprudence on Article 8, in a case such as this, where the trespasser is occupying as his home. It is fair to say that some support for that view is to be found in the speech of Lord Bingham of Cornhill in the Kay case (see paragraph 37). However, Lord Bingham was in a minority in that case. It seems to me quite clear from the passages I here identified in the speeches of the four members in the majority in that case that they came to a contrary view.

In those circumstances it seems to me that the law remains as it was and that the District Judge and the Circuit Judge reached the right conclusion. Although the point is of some interest, I regard the answer as clear. Furthermore, as a result of making this application, the applicant has had a fair amount of time before the order of possession had been executed. I would, for the reasons I have given, therefore dismiss this application for permission to appeal and discharge any stay of execution which has been granted.

LORD JUSTICE WARD: I agree. I am afraid, Mr Johnson, the application is to be refused and the stay is lifted.