Malik v Fassenfelt & Ors

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect? That, in colloquial terms, is the issue in this appeal which is brought by squatters against the order made by Her Honour Judge Walden-Smith sitting at the Central London County Court on 19th July 2012 when she ordered that they give the claimant possession of his land to the north side of Vineries Close, West Draycott forthwith. The castle metaphor is quaint but outmoded: the correct legal question to be asked since the Human Rights Act 1998 came into force in October 2000 is how, if at all, if squatters have established homes on the land without the leave of the landowner, does the court, faced with a claim for possession by a private landowner against the trespassers, give effect to the squatters’ right to respect for their homes guaranteed to them by Article 8 of the European Convention on Human Rights?

The land was purchased by the respondent, Mr Imran Malik, in 2003 for £240,000. The land had been used as a market garden and plant nursery but the business had closed down by the time of his purchase. He was refused planning permission to develop the land for office use and although he contemplated applying for permission to build flats, he became aware of the growing uncertainty about the potential development of the land as a third runway at Heathrow Airport. The land falls within the village of Sipson in Middlesex, one of the villages that lies adjacent to the northern perimeter of Heathrow Airport and so is blighted by the ongoing threat of a future third runway for Heathrow. Instead, the respondent, who had a taxi business, used the land for parking and storing cars in the course of his business. In early 2007 through to 2008 he let the land to an importer of motor cars from Japan and in 2008 he let the land to a Mr Asad who used it unlawfully for the dumping of motor cars and for fly tipping, a use which led to enforcement notices being served both on Mr Asad and on the respondent. When the site was not cleared, both were convicted. The land was vacated by Mr Asad and the keys returned in mid-late February 2010.

Before the respondent could implement his new plan to convert the land back to a garden centre and to use it as a boxing club, unknown persons now represented, in effect, by the appellant Mr Joseph McGahan gained entry on 1st March 2010. They entered without the respondent’s permission and were and have remained trespassers. The occupiers are part of a group collectively known as “Grow Heathrow”, otherwise known as “Transition Heathrow”. The judge found that those who were part of the Grow Heathrow movement were mature, intelligent and highly articulate individuals who had chosen the lifestyle which they considered to be beneficial to themselves and to the community around them. They cleared the land which had become contaminated with spillage of car oils and fuels and they restored it to its former attractiveness as a market garden centre with a range of glass houses which in time became their dwelling places and their homes. They have won the praise of and support from the people of Sipson village. Nonetheless, as the judge found, they, or at least some of them, are “experienced squatters and knew precisely what they were doing when entering onto this land”.

The defendants raised defences to the claim for possession under three broad headings: (i) alleged procedural failings on the part of the claimant; (ii) the grant of an implied licence to remain on the land; and (iii) their enjoyment of the protection of Article 8 of the European Convention alleging that eviction would interfere with their rights and that any such interference would not be proportionate. The first two defences failed and there is no appeal against those parts of the judgment.

The defendants contended that the court had to determine what a reasonable period would be to allow them to vacate the land, suggesting a number of months but the claimant contended that if an order for possession was to be made, the court did not have jurisdiction to extend the normal time for possession orders to take effect.

The leading authority on claims for possession brought against squatters who had broken into empty houses and started to live in them without any authority from their respective owners is McPhail v Persons, Names Unknown [1973] Ch. 447. On the squatters’ appeals against orders that the plaintiffs “recover possession” of the premises Lord Denning M.R. said this at p. 456-458:

“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.”

Lord Denning then said that the owner could resort to the remedy of self-help:

“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.”

Observing that self-help is not to be encouraged, the Master of the Rolls went on to say:

“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. … So far as I can discover, the courts of common law never suspended the order for possession. …

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.”

The third remedy available to the owner was a summons issued pursuant to R.S.C. Ord. 113:

“A summons can be issued for possession against squatters even though they cannot be identified by name and even though, as one squatter goes, another comes in. Judgment can be obtained summarily. It is an order that the plaintiffs “do recover” possession. That order can be enforced by a writ of possession immediately. It is an authority under which anyone who is squatting on the premises can be turned out at once. There is no provision giving any time. The court cannot give any time. It must at the behest of the owner, make an order for recovery of possession. It is then for the owner to give such time as he thinks right to the squatters. They must make their appeal to his good will and consideration, and not to the courts.”

Orr LJ agreed and Lawton LJ added:

“Has the court any jurisdiction to give them time? In my judgment the answer is ‘No.’”

So the position before 2000 is clear: the court will make an order for possession forthwith.

On that date relevant provisions of the European Convention on Human Rights became part of our law. By section 6 of the Human Rights Act 1998 it was made unlawful for a public authority to act in a way which is incompatible with a Convention right. A private landowner is not a public authority and is, therefore, not obliged to respect the trespasser’s human rights but section 6(3) of the Act makes it plain that the court is a public authority. It is, thus, common ground between the parties that the court is obliged to act in a way which is compatible with Convention rights. The relevant rights are these:

Article 8

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 1 of the first Protocol:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

It is common ground that the squatters have established their homes on the land and thus the prospect of eviction from their homes must engage Article 8.

“The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end” - see McCann v UK (2008) 47 EHRR 40 at [50].

The impact of Article 8 has troubled the House of Lords and the Supreme Court on a number of occasions. In Harrow London Borough Council v Qazi [2004] 1 AC 983 a council house was let to Mr Qazi and his wife as joint tenants. She served a notice to quit but he remained in occupation. The local authority issued proceedings for possession and the defendant claimed the protection of Article 8. It was held, certainly by the majority, if not by all the members of the House, that there had on the facts been an interference by a public authority with Mr Qazi’s right to respect for his home. There was, however, a clear difference of opinion among the members of the House. In a case where a public authority had an unqualified right to possession under domestic property law, Lord Hope did not consider Article 8 to be irrelevant but held that Article 8(2) was satisfied where domestic property law gave an unqualified right to possession. He concluded that contractual and proprietary rights to possession could not be defeated by a defence based on Article 8. Lord Millett was of a similar opinion: Article 8 was engaged but, save in wholly exceptional circumstances, there would be no lack of respect and no infringement of Article 8 where an order was made in favour a person entitled to possession under domestic property law. Lord Scott echoed that view holding that Article 8 could not be raised to defeat contractual and proprietary rights to possession. Lord Steyn and Lord Bingham dissented, being of the opinion that where, as in that case, there was a proposed interference with a person’s right to respect for his home, the question of justification, if raised, did fall to be considered even though considerations of domestic property law were likely to be crucial and the occasions on which a court would be justified in declining to make a possession order would be very highly exceptional.

The next case is Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. It was argued that Qazi should not be followed as two later cases decided by the European Court of Human Rights, namely Connors v United Kingdom (2004) 40 EHRR 189 and Blecic v Croatia (2004) 41 EHRR 185, were inconsistent with the ratio of the majority in Qazi and supported the approach of the minority.

Kay was essentially a homelessness case but linked with it in the House of Lords was a second appeal in the matter of Leeds City Council v Price & ors where the defendants were gypsies who had moved their caravans onto a recreation ground owned by the local authority without its consent and remained there as trespassers. To that extent it is similar to the facts of the case before us, save for the important difference that the claimants there were the local authority, a public authority under the Human Rights Act. The case is important in our appeal because of the discussion there of McPhail. It is, however, pertinent to put the discussion in its context and for that purpose I can conveniently cite the third holding from the headnote in the law report:

“That the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by Article 8(2) for an interference with the occupier’s right to respect for his home; that the public authority was not required to plead or prove justification in every case and the courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with Article 8; that a challenge to the making of an order could be raised in the possession proceedings in the county court so far as its jurisdictional limits permitted, if the defendant could, exceptionally, show a seriously arguable case that the relevant domestic law was incompatible with the Convention; but that (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe dissenting) where the requirements of the law had been satisfied and the right to recover possession was unqualified, no challenge based only on a defendant’s individual circumstances was permissible.”

Consequently since the local authority in each case had an unqualified right to possession and the defendants had no rights under domestic law to occupy their respective premises or remain on the land, their claims under Article 8 were unsustainable.

Lord Bingham said this:

“28.

… [Article 8] does guarantee a right to respect for the place where a person lives if his links with that place are close enough and continuous enough … to make it proper to regard that place as his home. To evict or seek to evict a person from such a place is to interfere with his exercise of his article 8(1) right, as the House held in reliance on Strasbourg and other authority in Qazi. Article 8(2) forbids such interference by a public authority unless the excepting conditions are satisfied. Compliance with domestic property law is a necessary excepting condition but not a sufficient one, since the other conditions must also be met, notably that the interference must answer a pressing social need and be proportionate to the legitimate aim which it is sought to achieve. This must now be recognised as the correct principle. In stating it, I enter the same important reservation as in Qazi, paragraph 23: nothing in this opinion should be understood as applying to any landlord or owner which is not a public authority. Competing submissions were made on this point. It does not arise for decision in these appeals. It is best left for resolution in a case where it arises.”

Observing that it would “require highly exceptional circumstances before Article 8 would avail the occupiers” he added:

“37.

Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown [1973] Ch 447 must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.

38.

I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind.”

Lord Nicholls and Lord Walker agreed with Lord Bingham.

In Lord Hope’s opinion, “The absence of any statutory protection in these cases” [including actions against trespassers] “is the result of a deliberate decision by Parliament that the owner’s right to recover possession should in these cases be unqualified, other than by the requirement that an order for possession must be sought from the court which ensures that procedures are in place to safeguard the rights of the occupier.” He agreed with Lord Nicholls that “judges in the county courts, when faced with [an Article 8] defence, should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier’s Convention rights.” But he added:

“110.

But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier’s personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown [1973] Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 … (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law …”

He too made this important point:

“I agree with Lord Bingham and Lord Nicholls that the position as it affects private landlords does not call for decision in this case, as the respondents to these appeals are both public authorities. But I do not think that it can be left out of account as we explore the wider implications of the argument. As Mr Sales for the First Secretary of State explained, the article 8(1) right to respect for the home does not distinguish between public authorities and private landlords and landowners. Private landlords and landowners too must obtain an order from the court, and the court itself is a public authority.”

In Baroness Hale’s view:

“192.

… There is nothing yet in the Strasbourg jurisprudence to require a reconsideration of the rule in McPhail v Persons, Names Unknown [1973] Ch 447. In common, therefore, with my noble and learned friends, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood, I agree with the conclusions reached by my noble and learned friend, Lord Hope of Craighead, set out in paragraph 110.”

Lord Brown’s view was given at [206]:

“If, indeed, article 8’s impact upon property law is as wide-reaching as the appellants contend it is to my mind surprising that the Strasbourg jurisprudence is not replete with examples of successful claims. In fact, however, these are few and far between and, certainly in Connors’s case (and in Larkos), explicable by reference to unjustifiably discriminatory legislation rather than because of a want of sufficient discretion under domestic law to take account of exceptional circumstances. There is, for example, no possible support to be found in the Strasbourg case law for doubting the justifiability of the clear rule as to squatters established by the Court of Appeal in McPhail v Persons, Names Unknown [1973] Ch 447 (Mr McPhail himself being, one may note, a private landowner) and I would respectfully disagree with the suggestion to the contrary at paragraph 37 of Lord Bingham’s opinion.”

The law continued to develop. In Manchester City Council v Pinnock [2011] UKSC 6 [2011] 2 AC 104, nine members of the Supreme Court had to consider the local housing authority’s claim against a demoted tenant of a dwelling house for a possession order. The judgment of the court of nine was given by Lord Neuberger and among those agreeing with him were Lord Hope, Baroness Hale and Lord Brown who, as already shown, were in the majority in Kay outnumbering Lord Bingham, Lord Nicholls and Lord Walker. In the light of the further developments in Strasbourg which included cases such as McCann v United Kingdom (2008) 47 EHRR 913 and Kay itself (Kay v United Kingdom [2011] HLR 13), the Supreme Court concluded:

“49.

… Even before the decision in Kay v United Kingdom [2011] HLR 13, we would, in any event, have been of the opinion that this court should now accept and apply the minority view of the House of Lords in those cases [Qazi and Kay]. In the light of Kay v United Kingdom that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.”

The judgment of the Supreme Court emphasised at the outset at [4] that nothing in this judgment is intended to bear on cases “where the person seeking the order for possession is a private landowner” for the reasons it gave at paragraph [50] namely:

“50.

We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out, at paragraph 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow London Borough Council v Qazi [2004] 1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at paragraph 52. In Belchikova v Russia (Application No 2408/06) (unreported) given 25 March 2010 the application was held to be inadmissible, but the European Court (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (1986) 10 EHRR 149, 155–156, the European Human Rights Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this court to express no view on the issue until it arises and has to be determined.”

In so far as it is helpful to set out the principles which apply certainly so far as the local authorities are concerned, they are set out at [45]:

“From these cases, it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end … (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains—for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain.”

Dealing further with exceptionality the Court said this:

“52.

… Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock …

54.

… in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way. …

57.

The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court.

…

62.

… If domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.

63.

… the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited. For example, section 89 of the Housing Act 1980 limits the period for which a possession order can be postponed to 14 days, or, in cases of “exceptional hardship”, 42 days. And some of the provisions of CPR Pt 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies ...”

Shortly after the Supreme Court considered Pinnock, the same court heard Hounslow London Borough Council v Powell [2011] UKSC 8 [2011] 2 AC 186, dealing with claims for possession in cases of homelessness and introductory tenancies. Dealing with the form and content of the proportionality review, Lord Hope said:

“33.

The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim. …

36.

The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock.”

In this appeal a further question arose as to the effect of section 89 of the Housing Act 1980 and the question was whether, if the argument was made out that the proportionate course would be to defer the delivery of possession for a period such as three months or to make a suspended order for possession, this could be done in the face of section 89(1) of the Housing Act 1980 which provides:

“(1)

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 fourteen 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.

(2)

The restrictions in subsection (1) above do not apply if—

(a)

the order is made in an action by a mortgagee for possession; or

(b)

the order is made in an action for forfeiture of a lease; or

(c)

the court had power to make the order only if it considered it reasonable to make it; or

(d)

the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the [Rent Act] 1977); or

(e)

the order is made in proceedings brought as mentioned in section 88(1) above [proceedings for possession of a dwelling house let under a rental purchase agreement].”

Lord Hope said at [58]:

“The effect of subsection (1) of that section is to remove from the court the discretion which it had at common law to select whatever length of postponement it thought fit: see McPhail v Persons, Names Unknown [1973] Ch 447. …

…

64.

The question then is whether the court should make a declaration of incompatibility under section 4 of the 1998 Act. This would be appropriate if there was good reason to believe that the time limit that the section sets is likely in practice to be incompatible with the article 8 Convention right of the person against whom the order for possession is made. … No evidence has been put before the court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blecic v Croatia (2004) 41 EHRR 185 , paragraph 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.”

Dealing with this point Lord Phillips agreed but added:

“103.

In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. The clear limit on the judge’s discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged.”

The Court of Appeal considered Article 8 in Birmingham City Council v Lloyd [2012] EWCA Civ 969 [2012] HLR 44 where the defendant was a trespasser not entitled to the transfer of his deceased brother’s tenancy. Lord Neuberger said:

“12.

It is now clear that a person who has no right under domestic law to remain in his home can in principle invoke article 8 so as to defeat a claim for possession. However, as was said by Lord Phillips in [92] of Powell, this court in Pinnock stated that it is only “in very highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument”. Lord Phillips added “I believe that this proposition is an accurate statement of fact in relation to introductory tenancies.” If that is right, then it must be at least as true, indeed in my view even more true, in the case of someone who entered the property as a trespasser and has remained a trespasser.

…

14.

Kay [2006] UKHL 10 was heard together with Leeds City Council v Price, where the occupiers were and had always been trespassers. Lord Bingham, who was in the minority, but whose conclusion ultimately prevailed in Pinnock, said this at [37] of the test which had to be satisfied by an occupier seeking to rely on article 8:

“Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end.”

18.

It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke article 8 as a defence against an order for possession. But such a person seeking to raise an article 8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would require the most extraordinarily exceptional circumstances.”

On the merits of the case Lord Neuberger said:

“Finally, there is the point that he has not caused a nuisance, or done anything criminal, and has got on with his neighbours. To my mind that is not a reason which begins to help him establish an article 8 argument; all it does is to say that a factor undermining his article 8 argument, such as existed in Pinnock, does not exist in his case.”

Finally there is Thurrock Borough Council v West [2012] EWCA Civ 1437 where the claim for possession was made against the occupier of a flat who could not claim a right of succession to it on the death of his grandparents. Etherton LJ said the principles to be applied were clear:

“22.

The principles to be applied are clear. First, it is a defence to a claim by a local authority for possession of a defendant’s home that the possession is not necessary in a democratic society within article 8(2), that is to say it would be disproportionate in all the circumstances. An order for possession in such a case would be an infringement of the defendant’s right under article 8 to respect for his or her home and so unlawful within the Human Rights Act 1998 section 6(1) .

23.

Secondly, the test is whether the eviction is a proportionate means of achieving a legitimate aim: Pinnock at [52]. The Supreme Court said there that it would prefer to express the position in that way rather than use the yardstick of confining an arguable article 8 defence to “very exceptional cases” …

24.

Thirdly, it is nevertheless clear that the threshold for establishing an arguable case that a local authority is acting disproportionately and so in breach of article 8 where repossession would otherwise be lawful is a high one and will be met in only a small proportion of cases: Hounslow LBC v Powell … at [35] (Lord Hope). The circumstances will have to be exceptional to substantiate an article 8 defence: Powell at [92] … In Birmingham City Council v Lloyd … at [25], Lord Neuberger indicated that in some cases the circumstance might even have to be “extraordinarily exceptional”, but I would respectfully suggest that references to degrees of exceptionality may unnecessarily complicate matters.

25.

Fourthly, the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. …

26.

Fifthly, that is why the fact that a local authority has a legal right to possession, aside from article 8, and is to be assumed to be acting in accordance with its duties (in the absence of cogent evidence to the contrary), will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority: Pinnock at [53] and Powell at [37] (Lord Hope). …

29.

Sixthly, an article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably: Powell at [33] and [34] (Lord Hope).

30.

Seventhly, unless there is some good reason not to do so, the court must at the earliest opportunity summarily consider whether the article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold … If the pleaded defence does not reach that threshold, it must be struck out or dismissed ...

31.

Eighthly, even where an article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock at [52]. That might be the effect of a simple refusal of possession without any qualification. It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority.”

May I be forgiven this long trawl through the authorities, all dealing with claims for possession being made by public authorities when the following question lies at the heart of this appeal.

That question arose on an application for permission to appeal in Boyland & Son Ltd v Rand [2006] EWCA Civ 1860 where Neuberger LJ said, and I agreed with him:

“10.

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:

“10.

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.”

…

11.

As if this was not enough, the four members of the House of Lords in the majority in Kay v Lambeth London Borough Council … 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 Eaton-under-Heywood).

…

13.

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 [have] identified in the speeches of the four members in the majority in that case that they came to a contrary view.”

As this was decided before the developments I have been describing above had taken place, I would not place much reliance on these observations made on an application for permission to appeal.

Mr Jan Luba QC, who now appears for the appellants though he did not appear below, submits that, in the light of the developments of the law following the decisions in Strasbourg after Kay, it is time to acknowledge, as the Supreme Court did in Pinnock and Powell, that the minority view of Lord Bingham, Lord Nicholls and Lord Walker should prevail over the majority. Mr Luba is a most persuasive advocate and I always have to listen to him most attentively but at the conclusion of the oral argument I was on Miss Naomi Winston’s side. Since then I have, of course, read the authorities again, indeed again and again, and I am now satisfied that McPhail can no longer be regarded as good law. I come to that conclusion for these reasons:

If proportionality confers upon the court, as the public authority, a discretion to consider giving time to the trespasser even at the suit of a private landlord, then it seems to me that section 89 of the Housing Act 1980 must apply. However, section 89 does not prevent the making of an order for possession forthwith: it merely places a limit on possession being delayed beyond 14 days after the making of the order save in cases of exceptional hardship and even then possession must not be postponed to a date not later than 6 weeks after the making of the order. The court in Powell ruled against the submission that section 89 is incompatible with Article 8. Mr Luba submits that in a case where proportionality demands that a longer time than six weeks be allowed to the trespasser (if such a case can be imagined) then the court has no option but to dismiss the application for possession. It does not, he submits, preclude a further application being made by the landowner if the circumstances have changed. I do not find it necessary to rule upon that argument. I see its logical force but an indefinite postponement of possession seems to run counter to European jurisprudence: see [131] of the judgment in Yordanova v Bulgaria (Application No. 25446/06, dated 24th April 2012) where the court says:

“However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely …”.

I conclude that the court must approach the claim made by a private landowner against a trespasser in a similar way to that adopted to claims of various sorts made by a local authority as set out in the cases to which I have referred. Thus the test is whether the eviction is a proportionate means of achieving a legitimate aim. The fact that the landowner has a legal right to possession is a very strong factor in support of proportionality: it speaks for itself and needs no further explanation or justification. Thus, even if the defendants have established a home on the land but where they have otherwise no legal right to remain there, it is difficult to imagine circumstances which would give the defendant an unlimited and unconditional right to remain. The circumstances would have to be exceptional.

In her careful, reserved judgment Judge Karen Walden-Smith approached the Article 8 defence in this way. She found at [71] that for reasons she had given earlier in the judgment, no licence was expressly granted to the defendants nor was one to be inferred from what happened between the parties. The defendants therefore remained as trespassers on the land. The evidence established that the land was used as a home for some of the defendants. Although observing that the Supreme Court had shied away from reaching a determination as to whether Article 8 applies to private as well as public landowners, she held that “as the court is a public authority and the land is being occupied as a home, Article 8 is capable of application even though the landowner is a private individual and the occupiers are trespassers.” She gave permission to appeal that ruling but we are told that for financial reasons the respondent has not pursued that appeal. For reasons I have given I would have found that any cross-appeal would fail.

Consequently she held that “The real issue is whether Article 8 in fact affords any additional protection to the defendants in the circumstances of this case, the question being “whether the eviction is a proportionate means of achieving a legitimate aim” per Lord Neuberger at paragraph [52] of Pinnock.” Again, for the reasons I have given, I agree. Having referred to Article 1 of the first Protocol she concluded;

“81.

In my judgment, it will be a highly exceptional case where the protected rights of a private landowner under Article 1 could be interfered with by reason of the Defendant’s Article 8 rights where, as in this case, the Defendants are trespassers. The Defendants came onto the land without the licence or consent of the Claimant and they remained on the land as trespassers. Mr Malik is entitled to the peaceful enjoyment of his land. That is a legitimate right protected by Article 1 of the Convention but also by virtue of the limiting words of Article 8(2) of the Convention that respect to the home is not be interfered with by a public authority (the Court) “except as in accordance with the law and is necessary in a democratic society in the interests of … the economic wellbeing of the country … or for the protection of rights and freedoms of others”,” (her italics).

So she found:

“82.

Consequently while Article 8 does apply in principle to cases involving a private landowner and a trespasser, it is difficult to envisage circumstances where it would have any consequence and the eviction would not be found to be a proportionate means of achieving a legitimate aim.”

She addressed the specific reasons advanced by the defendants. The first was that they had made their homes on the land and had invested time and energy in clearing the land. She held that recovery of the land from trespassers, even if work has been carried out to that land, is proportionate because the alternative would be to allow the land to be taken and used by those who had no right in the land who would then prohibit the lawful owner from recovering his own land.

The other matter relied on by the defendants was their contention that their use of the land had significantly greater social advantages than the use to which the claimant was putting the land, or the use intended to make of the land. She considered the evidence that the local community were extremely keen for them to stay; they had the support of their local Member of Parliament; they had reduced anti-social behaviour in the area, fly-tipping and car thefts. In fact she accepted that it was most likely to be the case that the local community did consider “Grow Heathrow” on the land as a great asset. She was, moreover, impressed by the defendants and the manner in which they had conducted themselves and it was “undoubtedly the case that they are acting in the manner that they do with the best of motives, they would contend entirely altruistic ones.” But she concluded:

“85.

… That may be so, but Mr Malik is the legal owner of this land which has been deliberately occupied by the defendants, knowing they had no right to enter. Mr Malik is not to be denied his ownership or right to occupy his own land because others find his use of that land to be less acceptable than the use made of the land by the trespassing defendant. For a private landowner to have to establish that the possession order is justified because his own use of his own land is useful and attractive to the local community and society at large, the use of that land by the current occupier against whom he has a right of possession, particularly where that occupier is a trespasser, runs entirely contrary to the principle of private ownership of land. If Mr Malik is deprived of his right of possession of the land, then he is deprived of an asset for which he has paid a substantial six figure sum and is deprived of the right to use it and make a profit from it.”

Her conclusion was:

“88.

Consequently, while Article 8 can apply to private landlords, it does not in the circumstances of this matter make an order for possession disproportionate or require the court to stay the order for possession for a period of time to give effect to any Article 8 rights.”

Nevertheless she went on to consider section 89 of the Housing Act 1980 and referred to the contention of the defendants that if an order for possession is to be made it should not be made to take effect before 6 weeks from the date of the order. She held that section 89 did not apply to trespassers and that the court had no jurisdiction to extend time for possession as a result of “exceptional hardship” with respect to trespassers or unless the defendants successfully sought a stay.

That reinforced her conclusion that the defences on behalf of the defendants all failed and the order for possession had to be made.

Mr Luba submits that the judge’s error is that she approached the matter on the basis that a failure to make anything other than a forthwith possession order would undermine the concept of private ownership of land. He submits that the stark choice the judge perceived to be applicable was between the land being “taken” by the occupiers and the owner being “deprived” of it and the immediate eviction of the occupiers: see paragraphs [83] and [85] of her judgment. That he submits, was a serious misdirection because the ownership of the land was never in issue nor was the existence of a right to possession. In essence he submits that the judge misdirected herself because she approached the question of possession on the basis of whether or not it was proportionate to make a possession order which took effect forthwith and not when it was proportionate to make a possession order. Article 8, he submits, introduces in the current context a temporal question, not shall the owner have possession (because he always should have possession) but when he should have possession.

Miss Winston points out that that was not the basis on which the appellants ran their defence at trial. Their case below was that possession should be refused. Their case in the defence in the alternative was that they should be allowed six weeks before the order took effect. She submits that the judge did follow the time-honoured approach in the county court of considering whether an order for possession should be made and if so when.

I am bound to say I can see no error in the judge’s approach. Having found that Article 8 was engaged she correctly identified the issue to be whether Article 8 afforded “any additional protection to the defendants”, the question being whether eviction was a proportionate means of achieving a legitimate aim. It seems to me to be beyond question that she was considering whether to extend the time at which possession to be given. She started with the difficulty of envisaging a circumstance where eviction would not be found to be a proportionate means of achieving a legitimate aim. I can see nothing wrong with that approach. An owner is entitled to the return of his property unless some exceptional circumstances militate against it. Mr Luba does not appear to challenge her conclusion that the work they did on clearing the land did not give them any right to added time. He did, however, attack her conclusion on the grounds that her order for immediate eviction did not have regard for the fact that the land was being occupied for a beneficial social purpose. He submits that the judge’s approach precluded her from considering that as a relevant factor. I do not read her judgment in that way at all. She was fully alive to the fact that these were, if I may paraphrase, “good” squatters and not “bad” squatters and she was obviously impressed by them and to that extent sympathetic towards them. I, too, can admire the good work they have done. Nevertheless, as the Supreme Court has emphasised, see [57] in Pinnock, the wide implications involved in a consideration of the proportionality of making an order for possession is “best left to the good sense and experience of judges sitting in the county court.” I could not possibly find that the judge was not entitled to conclude that the benefits to the local community arising from the occupation of the defendants were not enough to preclude the landowner seeking to vindicate his ownership rights to the immediate return of his property. An earlier passage in the judgment deserves mention:

“13.

While I fully understand the concerns of the individuals directly involved and the local community it is my duty to apply the law to the facts of the case entirely dispassionately. The members of Grow Heathrow took the steps that they did, both in entering onto the land and remaining on the land, knowing what they wanted to achieve and how they thought they could achieve those aims. They, or at least some of them, are experienced squatters and they knew precisely what they were doing when entering onto this land, which they had identified before occupation as appearing to be “abandoned”. They knew what they were doing; they knew it was unlawful and they knew there was always the risk that the landlord would move for their immediate eviction.”

For my part the judge was entitled to reach the conclusion she did in paragraph [88] of her judgment. She went on, however, to find that section 89 of the 1980 Act did not apply to trespassers and so she found that “the court has no jurisdiction to extend time for possession as a result of “exceptional hardship”.” If and in so far as she was relying on McPhail for the assertion that the court has no jurisdiction to extend time for possession, and it is not at all clear whether she did so for McPhail is not referred to in the judgment, she was wrong for the reasons I have given. Despite that error, I am satisfied that it had no material effect upon her judgment. She had reached the conclusion in the preceding paragraph that an order for possession was not disproportionate. She had done so in a proper, principled way. Paragraph [89] was a separate and added reason for her coming to her conclusion. She could not both have found that proportionality opened the door to an extension of time, which is the whole thrust of her judgment up to paragraph [88] but then find in paragraph [89] that there was no jurisdiction to extend time. Properly directed she would have maintained the conclusion she reached in paragraph [88]. I would reject Mr Luba's submission that this error requires us to allow the appeal and to remit the matter to the county court to consider whether an order for possession should be made within six weeks or if not whether it should be made at all. I would dismiss the appeal.

As this is the last judgment I shall deliver, I want to add this footnote. Article 8 is often much criticised, surprisingly even by those in a position of authority, as if it has incorporated some undesirable foreign jurisprudence into our law. I do not intend to enter into that debate, but read the opening words of my judgment. What I do want to emphasise is that this case demonstrates one aspect of our way of doing things which does represent the very best of British. That is our procedure for extended oral advocacy in our courts, especially in the appellate courts. Here we had Mr Luba QC, a true expert in the field, marshalling his written and his oral submissions in his usual measured and compellingly persuasive way. He has commanded my admiration over the many years I have been listening to him. Miss Winston is less well known to me. She had a rather torrid time when subject to a penetrating but ever-courteous Socratic inquisition from my Lord, Lloyd LJ, deploying a typical and invaluable judicial technique to tease out the issues and the arguments. She recovered and advanced her case with determination. The result was, as often happens, that the oral argument swayed the Court this way and that. That is the great triumph of oral advocacy and if it gives us more to ponder it eventually makes our task easier. It also makes it a pleasure to be a member of the Court. As I say, this, if not every application of Article 8, is undeniably the best of British. I am sorry not to be enjoying more of it.

The question whether McPhail remains good law in the case of a claim by a private landowner for possession of land occupied by a trespasser is inextricably connected with the question whether article 8 extends to such a case. The judge held that it did, but that in the circumstances an order for immediate possession was not a disproportionate interference with the occupiers’ article 8 rights. Recognising that the first point was controversial, and wishing to limit the issues so as to minimise the costs of the appeal, the respondent did not serve a respondent’s notice challenging the judge’s decision on that point. The argument therefore proceeded on the unchallenged basis that article 8 was applicable, and the issue was whether the judge was right on the question of proportionality.

I do not think that it would be right in these circumstances to decide whether the judge was correct about the availability of article 8 as a potential defence to the claim. A decision on a point which was not in issue before us would be only of persuasive authority. In any event, I would not wish to reach a decision on the point without fuller consideration of the case law on article 8 and of the potential implications. Sir Alan Ward has reviewed the development of the law in relation to public authority landowners, but the courts have been careful to emphasise that nothing in them was intended to bear on claims by private landowners: see Manchester City Council v Pinnock at [4] and [50], cited by Sir Alan Ward at [16].

The expressions “private life” and “home” in article 8 have been interpreted very broadly. “Home” may include a holiday home and a place of intended residence. The “home” of a businessman includes his business premises. “Home” can also include premises which are unlawfully occupied. So I have no doubt that in this case the site is “home” to those who are living there. Their position is in that respect similar to the occupants of Roma camps in Yordanova v Bulgaria [2012] ECHR 758 paragraph 103. However, that is only the start of the inquiry.

The primary obligations imposed by article 8 are negative: the state is not to interfere with a person’s private life or home, etc, except on limited grounds. It has been long recognised that the article also imposes some implied positive obligations, but the Convention jurisprudence does not provide a universal formula or touchstone for determining the incidence or extent of such obligations. The Convention imposes obligations on states, not private citizens, but in some instances the Strasbourg court has held there to be an obligation on the part of states to take measures to protect a person’s private life from interference by another private person or private enterprise – in particular, by criminal acts (X & Y v Netherlands (1985) 8 EHRR 235 paragraph 23, MC v Bulgaria (2003) 15 BHRC 627 paragraph 153) or by the intrusive and harassing activities of paparazzi (Von Hannover v Germany (2005) 40 EHRR1 paragraph 57). However, these are striking and unusual cases in which the applicants were victims of particularly objectionable conduct which seriously impaired their ability to lead a normal life. Article 8 does not ordinarily apply to regulate conduct in the private sector.

It would be a considerable expansion of the law to hold that article 8 imposes a positive obligation on the state, through the courts, to prevent or delay a private citizen from recovering possession of land belonging to him which has been unlawfully occupied by another. There would also be a weighty argument that for the state to interfere in that way with a private owner’s right to possession of his property would be contrary to a long standing principle of the common law, which finds echo in article 1 to protocol 1. The principle was stated in Entick v Carrington (1765) 19 State Tr 1029, 1060:

“The great end for which men entered into society was to preserve their property. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole.”

The potential consequences of such a development and implications for other situations would need careful thought, particularly since the concepts of private life and home are so wide.

For those reasons I do not agree that we should hold that McPhail has ceased to represent the law in cases of trespass to privately owned land, and I would wish to reserve my opinion until such a case comes before the court in circumstances where the applicability of article 8 is in issue.

I am sorry to follow Sir Alan Ward’s inimitable judgment with a note of discord. However, I fully agree with him that, assuming as we must for the purposes of this appeal that the judge was right on availability of article 8 as a defence to the claim, her carefully reasoned decision to order immediate possession of the land cannot be faulted. I agree therefore that the appeal should be dismissed.

I too agree that the appeal should be dismissed. In a way it is matter of regret that the Respondent did not pursue the permission to appeal given to him by the judge on this point so as to challenge the judge’s conclusion that article 8 was engaged as between a private landowner and squatters because of the position of the court as a public authority. It would have been an interesting question on which I have no doubt that we would have received valuable submissions from both sides. Some of the difficulties with which it would have been necessary to grapple are interestingly discussed in Gardner and Mackenzie, Introduction to Land Law (3^rd ed.), Hart Publishing 2012, at Chapter 2. There a degree of frustration is expressed as to the uncertainty:

“To this extent, we are still waiting to learn the horizontal reach of the ECHR into the domestic understanding of land law. It is once again disappointing that one should be reduced to awaiting a judicial announcement as to the state of the law in this way, rather than having a reasonable opportunity to deduce it, and so converse with the judges about it, oneself.”

The authors and other commentators will have to wait somewhat longer, though with the benefit of what Sir Alan Ward has said. It has also to be said that, if the point had been taken, it might have led to an even longer delay in giving judgment than that which has occurred, which I regret.

However, the fact is that the point was not taken before us, we had no submissions on it, and it does not seem to me that we ought to enter upon it so as to venture a view as to whether the judge was right or wrong. Like Lord Toulson, therefore, I reserve for a future case the question whether McPhail is good law in a case where a landowner who is not a public authority seeks possession of land occupied by a trespasser.

Assuming, therefore, without deciding, that the judge was right (because her decision is not challenged in that respect) I have no doubt that her decision to make an immediate possession order was correct on the facts of the case, and beyond challenge on this appeal.