Seek and ye shall find. Thanks to Lindsay Johnson of Doughty Street Chambers we now have a transcript of the decision in Malik v (1) Persons Unknown, (2) Reynolds (3) Matthews (0UB00913, Central London County Court, HHJ Walden-Smith).

Mr Malik was the freehold owner of a plot of land near Heathrow Airport and had been since around April 2003.He had purchased it with a view to redevelopment but had failed to get planning permission for offices and had been advised by local residents not to bother seeking permission for flats, given the uncertainty over the third runway at Heathrow. In the end, he used the land for storing cars as part of his taxi business. At times it was rented to a third party and even used for some fly tipping, leading to enforcement action by the local authority.

The defendants had been occupying the land since March 1, 2010. They had entered without permission and were, therefore, trespassers. They were part of the “Grow Heathrow” collective, campaigning against the expansion of Heathrow. By all accounts, they seem to enjoy a lot of local support from residents and even the local MP.

Around 4 1/2 months after they entered the land, the claimant issued possession proceedings. The defendants advanced a number of defences.

First, there was a suggestion that the proceedings had not been properly served in that, in particular, they had not been posted through a letter box but had been given to one person unknown and affixed to structures on the site. It’s not clear how hard this point was actually pushed. There was clearly some evidence and cross-examination about whether a particular wooden box amounted to a letter box but, in any event, HHJ Walden-Smith held that it is not mandatory to serve proceedings via a letter box (CPR 55.6 merely makes clear that this should be done “if practicable”) and the letter box identified by the defendants was not obviously a letter box, such that it was not unreasonable not to use it. In any event, the defendants clearly had received the papers and any failings had caused no prejudice.

Secondly, it was said that the claim should not have been issued against “persons unknown” as the claimant knew the name of at least one defendant. Despite criticising some of the evidence for the claimant, the Judge was satisfied that, on balance, the claimant had not known the name or names of the unknown persons. Even if that was wrong, the failure was not such as to justify dismissal of the proceedings.

Thirdly, it was said that the occupiers had an implied license to occupy, which had arisen as a result of, inter alia, discussions and/or negotiations between the parties. If that were right, then the claim must fail as the license had not been terminated. There was a dispute of fact as to when the claimant became aware of the occupation and what the claimant had said. In short, the defendants contended that there had been discussions about how long the occupiers wanted to stay, whilst the claimant contended that no such discussions had taken place and that the occupiers had made clear they intended to force him to expand valuable time and money to get them out. After reviewing the respective cases, the Judge found that there was no license but, at best, a tentative exploration as to whether it would be possible to reach an agreement. negotiations, of course, do not in themselves create a licence.

Fourthly, and arising out of the same facts as the third issue, the defendants contended that there was an implied licence through acquiescence as the claimant had not issued proceedings for over four months, despite knowing of the occupation. The Judge rejected this, characterising it as an estoppel argument. There had been no representation by the claimant and, as such, it could not have been relied upon by the defendants. No issue of detriment arose. To the contrary, they had the benefit of living – rent free – on the land for two years.

Fifthly, and most importantly, we come to the Article 8 defence. As readers will know, the combined effect of Pinnock and Powell  is that any person facing eviction at the suit of a public authority is entitled to argue that the eviction would be disproportionate under Art.8. What is far less clear is how this applies to the private sector. The argument is, of course, that the court is itself a public authority (s.6, Human Rights Act 1998) and has to give effect to convention rights, even in disputes between private parties. There is already one case on this point in the Court of Appeal (Dainter, our note here) and it’s clearly one of the biggest issues in housing law today.

The Judge held (rightly) that even though the defendants were trespassers, that did not prevent them from raising an Art.8 defence. On the facts, for at least some defendants, the land was their home. It was noted that the Supreme Court inPinnockhad left the issue of private landlords open.

[I interpose for a moment. There are, however, some very helpful statements in earlier cases (none of which are mentioned in the Judgment, see, e.g. Lambeth LBC v Kay [2006] UKHL 10; [2006] 2 A.C. 465; [2006] H.L.R. 22, per Lord Nichols [61] and Lord Hope [64]. See further, Harrow London Borough Council v Qazi [2003] UKHL 43; [2004] 1 A.C. 983; [2003] 3 W.L.R. 792; [2003] H.L.R. 75, per Lord Bingham [22] and  Birmingham CC v Doherty [2008] UKHL 57, [2009] 1 A.C. 367, [2008] H.L.R. 45, in the written submissions for Birmingham (noted at 391F-G, 392E-F and per Lord Hope at 401E. In the light of these, and various ECtHR cases, I cannot for the life of me see how anyone can say Art.8 does not apply in the private sector]

Back to the judgment –  even though Pinnock had left the issue open, the Judge accepted that the court was a public authority and the real issue was whether the eviction was a proportionate means of achieving a legitimate aim. It was also material that the claimant had rights under A1P1 to the peaceful enjoyment of his possessions. It would need something highly exceptional where those rights of a landowner could be interfered with by persons claiming Art.8 rights. It was difficult to imagine how a case involving a private landowner and a trespasser could ever have a disproportionate eviction. Even accepting that the defendants were considered an asset by the local community (as it seems they were) and accepting the social utility of their occupation and protest, a possession order still had to be made. They had entered the land without permission and could not now remain against the wishes of the owner.

Although not covered in the judgment, Lindsay tells us that both sides were granted permission to appeal.

I’m going to go out on a limb here, but this case should not be pushed to an appeal. Whilst the landlord didn’t accept that Art.8 applied at all, that is clearly wrong and I cannot for the life of me see how the Court of Appeal would say otherwise. Landlords do not, I imagine, want a Court of Appeal case to say that Art.8 applies, otherwise s.21, Housing Act 1988, Ground 8, Sch.2, 1988 Act and other mandatory grounds all become a lot less attractive. If you’re a landlord, you want this case to die a quiet death in the county court.

But, if you’re a tenant, you don’t want this case to go any further either. As I say, I’m confident the Court of Appeal would accept (grudgingly) tha Art.8 applies in the private sector. But the facts of this case are terrible and the Court of Appeal will take the same line as in Pinnock etc, about the need for some sort of exceptional factors before the eviction is disproportionate. It is inconceivable that squatters will win an Art.8 defence. I cannot find a single ECtHR case that helps. So, we’ll end up with a grudging acceptance that the defence can exist, but the barrier set too high to be of any use.

In addition, this case is clearly going to be presented as a “clash of rights” case – A8 (for the occupier) v A1P1 (for the owner). The right case to push is one involving a lawful occupier, since then the occupier has both A8 rights AND A1P1 rights (i.e. their assured shorthold tenancy is itself a property right worthy of respect) to be set against the A1P1 rights of the landlord (as reversioner). That is a much better case to present on appeal because it means you can’t do what HHJ Walden-Smith did in this case and just play the freehold ownership as a trump card.

Ultimately, of course, HHJ Walden-Smith is probably right in her decision. I say this based on a short note of the recent Court of Appeal decision in Birmingham CC v Lloyd July 4, 2012 (extempore, based on a note from Jonathan Manning and Sam Madge-Wyld of Arden Chambers, who appeared for Birmingham; see also this bit of background). [Update – Chief has, with his dark arts, found the transcipt.]

In Lloyd, Mr Lloyd was a secure tenant of Birmingham. His brother was also a secure tenant. His brother sadly died and Mr Lloyd moved into his flat. Birmingham explained that they could not let him stay in his brothers flat and that he should move back to his own property. Instead, he gave notice to quit on his flat and stayed at his brothers flat. The Recorder dismissed the possession claim on the basis that Mr Lloyd would suffer personal hardship if evicted and had recently started to run a business after receiving a loan from a state funded scheme.

The Court of Appeal overturned that decision and granted a possession order. A trespasser (such as Mr Lloyd) would face almost insurmountable problems in trying to resist eviction based on Art.8. It would require the most exceptional circumstances before such a defence could succeed. Even the minority in Kay had been unable to envisage a trespasser ever having more than a short time to leave. ECtHR jurisprudence made clear that the state was not required to tolerate unlawful occupation Hoire v UK, Yordanova v Bulgaria) and this was another example of a case that should have been filtered out as not being seriously arguable.

In the light of Lloyd (not mentioned by HHJ Walden-Smith), surely the Court of Appeal will uphold the decision that HHJ Walden-Smith made.