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On possession, recovery and quia timet injunctions


Secretary of State for Environment, Food and Rural Affairs v Meier and another and others and another and another [2009] UKSC 11

A Supreme Court Judgment handed down today, 1 December 2009. This was an appeal from the Court of Appeal, [2008] EWCA Civ 903, and our report of that judgment is here. The Court of Appeal had held that the Secretary of State, through the Forestry Commission could obtain both an injunction and a possession order that required travellers to leave not only the piece of Forestry Commission land that they were occupying, but also in respect of other pieces of land elsewhere in Dorset that the travellers weren’t occupying but may, hypothetically, move to. Pre-emptive possession orders, if you will.

The Forestry Commission went for both injunction and possession order on the claimed basis that the possession order was easier and more effective to enforce and it didn’t want to have to bother getting a series of separate possession orders.

The Court of Appeal had found that it was possible to make such a possession order as an extension of Drury v the Secretary of State[2004] 1 WLR 1906. Likewise, a quia timet injunction conditions were met, indeed this was a requirement for granting a ‘Drury‘ possession order.

The Defendants appealed on the basis that Drury was wrongly decided and that a quia timet injunction should not have been granted.

The Supreme Court held – unanimously, but with shadings of opinion – that a possession order, and an order against trespassers as persons unknown at that, could not be granted in respect of property that was distinct from the property occupied, wholly or in part, by the trespassers and that, at the time, was wholly in possession of the applicant. The rationale was, pretty much unanimously as follows:

The history of possession actions (back to the middle ages in Lady Hale’s judgment) concerns recovery of possession by the person with better title to the land and literally physical possession. CPR 55(1), the modern form, is also quite specific – these are claims for ‘recovery of possession of land’ (55(1)(a)) or ‘recovery of land’ against trespassers (55(1)(b)). An order cannot be made in respect of land that is in the current full possession of the Claimant and not occupied by others, no matter how much the Claimant believes the occupiers may move to the other land in the future. To the extent that Drury – a Court of Appeal judgment – permitted such orders, it was wrongly decided. Lady Hale, however, acknowledged that an ‘incremental development’ may be possible, even while Drury was wrong.

There is something of a difference of view in respect of possession orders for the whole of a property where only part is occupied by trespassers and the rest by those lawfully present. This was the situation in University of Essex v Djemal [1980] 1 WLR, where the University (described by Lady Hale as comprising less than beautiful buildings in a beautiful campus) had been occupied in part by protestors, while the rest was full of students and tutors lawfully there. While all the Lords had no problem with a possession order for the whole of the land where the trespasser was only occupying part (the ‘vegetable patch in the garden’ example), there were different views on the situation where the rest of the land was occupied, lawfully, by others. The majority thought it was fine, but Lord Neuberger expressed concerns about Djemal. However, as no challenge to Djamel was brought by either party, these concerns are obiter.

On the quia timet injunction, the position was reversed. All the Lords acknowledged that there is a need for the remedy ‘to fit the right’ and that the remedy should be effective – where in a situation involving trespassers, ‘self-help’ remains a lawful, if perilous option. The Secretary of State’s points on the effectivity of injunctions, particularly as against those with no assets and where the alternative is imprisoning mothers with young children, were noted. But the court should not make an order in the expectation that it would not be obeyed and it was possible to have injunction orders against persons unknown with effect.

A quia timet injunction was unanimously found to be legitimate in the case. Lord Neuberger notes that a court should not make an order that it wold not be prepared to enforce and that where it is an injunction, the court should be slow to make an order it would not be willing to enforce by imprisonment if need be. However, this argument had not been made in this case, even at first instance.

The judgments note that, albeit belatedly, the Forestry Commission had carried out the assessment directed by the ‘Guidance on Managing Unauthorised Camping’ 2004 ODPM. But this is barely a concern for the majority. Lord Neuberger, who gave the point the most attention, noted the Secretary of State had conceded that the Forestry Commission was obliged to compy with the Guidance. The Defendants argued that the guidance should be complied with before the injunction was granted, rather than enforced. But the Guidance did not present an obstacle to the granting of an injunction in this case. The Guidance deals with existing unauthorised encampments, not with preventing such encampments taking place. The Guidance was relevant to whether an order for possession should be sought and made, but not to the issue of whether the defendants should be barred from setting up other encampments. A court perhaps should consider the provisions of the Guidance in considering whether to grant an initial injunction and its terms, but this was not a finding. [paras 85-87]

Lord Neuberger continued that even if the Guidance were relevant to such a quia timet injunction, it could not be decisive. [para 88] And the Forestry Commission apparently had and as a procedural code following the 2004 Guidance. there was no evidence in the case that the code had been ignored (but then the Forestry Commission had never raised actually having such a code or following it before…). if the defendants were to trespass on land covered by the injunction the Commission would ‘presumably’ comply with it code before seeking to enforce. [para 90]. All this means that even failure to comply with the Guidance would not preclude an injunction being made against trespassing on other land, although it may deter the court from making a possession order. [para 91].

Injunctions could perhaps be enforced by writ of restitution, rather than sequestration or imprisonment [para 93]

What the supreme Court notably fails to do is to give any guidelines or criteria for a quia timet injunction order. In the absence of such, it is hard to avoid the conclusion that the basis on which the Court of Appeal decided that such an injunction was to be in this case made forms the current state of play.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Chris J

    Apologies at the outset of this comment for the length of this but this is an absolutely crucial issue for the thousands of Gypsies and Travellers who have no alternative but to resort to unauthorised encampments. The particular issue in Dorset was that the main public authority land that they can hope to stop on is Forestry Commission land:

    I was the solicitor on this case and firstly I would like to give all credit to the petitioners in this matter, Sharon Horie and Lesley Rand, who have fought for recognition of their situation (being evicted from pillar to post whilst they desperately seek some authorised place to stop) and that of all Gypsies and Travellers (some quarter of the Gypsy and Traveller population of England and Wales who still live in caravans) who have no authorised stopping place. The government have long recognised ( and you could trace this back to the Caravan Sites and Control of Development Act 1960 ) that the ‘answer’ to unauthorised encampments is provision of sites, both permanent and transit. The department with charge of these issues, Communities and Local Government, by failing to step in on this case, has allowed a different government department (DEFRA) to potentially alter the policy direction by introducing the possibility of injunctions over wide areas- a lovely example of joined up thinking. It is central and local government who have failed on these issues (numbers of authorised pitches is only slightly up on the position at the time of the introduction of the Criminal Justice and Public Order Act 1994 which removed the duty on local authorities to provide sites) but yet again the Gypsies and Travellers are in the firing line.
    I also pay tribute to the careful and lucid arguments put forward on behalf of Ms Horie and Ms Rand by Richard Drabble and Marc Willers. This included a detailed analysis of the situation to date and of the extensive government guidance on this area. Only Lord Neuberger deigns to have some reference to this although it appears to not influence his judgment. In any event I cannot improve on the summary of the situation provided today by Marc Willers so I produce that here:

    Here’s the latest decision from their Lordships or the Justices of the Supreme Court.

    It concerns the granting of wider possession orders and injunctions against Travellers trespassing on publicly owned land – in fact forests in Dorset which are managed by the Forestry Commission. The Travellers were camped on Hethfelton Woods without permission. The FC sought possession of Hethfelton Woods and a wide possession order covering a large number of other woods in that part of Dorset to which it was suggested the Travellers might decamp, as well as an injunction to beef up the wide possession order. In the County Court, Recorder Norman granted the possession order in respect of Hethfelton Woods but refused to grant the wider order or the injunction. The FC appealed and the Court of Appeal granted both the wider possession order and the injunction sought. The Travellers appealed to the House of Lords/Supreme Court.

    On appeal the Supreme Court concluded that the rules of court do not permit the grant of a wide possession order and overturned the CA’s decision in that regard and in doing so held that the CA’s earlier decision in Drury to the contrary was wrong. The simple point being that a landowner cannot obtain a possession order in respect of land in circumstances where s/he enjoyed uninterrupted possession of it.

    However, the Supreme Court expressed the view that the remedy of an quia timet injunction could be sought in circumstances where there was a risk that a Traveller would move from one unauthorised encampment on land owned by a public body to another parcel of land in that public body’s ownership and upheld the CA’s decision to grant an injunction as a consequence. Lord Neuberger went further and indicated that in his view the failure by the FC to follow Government Guidance on the management of unauthorised encampments should not preclude such an injunction being granted.

    Some of their Lordships added that they thought there may be a need for reform of the remedies available in this area.

    Happy though we are with the HL’s decision that wide possession orders cannot be granted, there is a real concern that local authorities and public bodies will be encouraged by this judgment to pursue applications for quia timet injunctions. The Supreme Court’s decision doesn’t explain quite what considerations would arise for determination if such an application is made.

    No doubt defendants will argue:
    a) that the test for granting a quia timet injunction has not been met – as the Traveller in Drury successfully did;
    b) that the principles such as those laid down in Porter by Simon Brown LJ in the CA, and endorsed by the HL, should be applied and that a Judge should not grant an
    injunction unless s/he is sure that prison would be contemplated if the order were breached;
    c) that, notwithstanding Lord Neuberger’s comments regarding the Government Guidance, a failure to have regard to it and to follow it (unless there are good reasons
    for not doing so) would render a decision to seek an injunction unlawful;
    d) that the grant of an injunction and particularly a wide ranging injunction would have a disproportionate impact on the ability of the defendants to live their way of life
    and breach their Article 8 rights.

    Quite how such an injunction would work in practice remains to be seen. The Supreme Court noted the difficulties in enforcing such injunctions – particularly in the case of vulnerable individuals and persons unknown – but seemed attracted by the deterrent effect that such orders might have. The net result may be that trespassers will be less inclined to identify themselves in the future for fear of being made a defendant to injunction proceedings.

    All in all it seems to me that the judgment has left us with something of a dog’s dinner.

  2. Chris J

    With further apologies, Marc Willers and myself are working on a blog on this judgment which will be available on the Travellers Times website within 48 hours , so for those sad souls who might be interested in this please check it out in due course at:

    Or go there now for a mad optimistic vision of what might be in ‘A Human Rights Defence’ featuring an inspiring judgment of the great Albie Sachs.
    Can’t think why I am attempting to be optimistic today!!??

    • J


      I’d have thought that this amounts to a qualified success for you. The death of the ‘wider possession order’ is, I think, probably a good thing, at least for your traveller clients. My corporate landlord clients may be less pleased, although I did find your argument as to why no such remedy could exist to be convincing.

      I suppose it remains to be seen what the response is. As I read the judgment, the Court (certainly Lord Rodger, the others were – perhaps – more hesitant) seems to think that such a remedy could be provided for with some amendments to CPR 55.

      The injunction one is difficult though. I don’t suppose that anyone (or, at least, any fair person) can’t but feel sympathy for travellers given the lack of suitable sites and the woeful failure of central and local government to address this issue but… landlords must, surely, be entitled to some sort of remedy? Given that there isn’t any political will to increase the number of sites, what do you propose?

      • Chris J

        J, you are interrupting an urgent last minute homeless appeal here.
        This week’s diary:
        Tuesday: Get hammered on injunctions by the Supreme Court. Feel in need of long rest
        Wednesday: Tim Baldwin (Garden Court) and me get injunction at 9am to stop common law powers eviction of Traveller at 10am
        Thursday: need to lodge homeless appeal for Irish Traveller and hope that council will agree to still hold off from eviction action
        Friday: try and sort out legal aid for 3 Gypsy licensees on site in Wales who have first up possession hearing (still no security of tenure of course – thanks CLG) on December 16th. Dec 16th – luxury!! Might even get some proper instructions together!!
        But anyway…(as fully explained to the SC by Mr Drabble – though you would be forgiven for not realising that from the judgments) this government (and previous governments – you could even trace this back to the Caravan Sites and Control of Development Act 1960 – which started the problem rolling by closing down the commons to Gypsies and Travellers) has long realised that the ‘problem’ of unauthorised encampments is caused by the lack of adequate authorised sites, both permanent and transit (this is not rocket science!!). There is no chicken and egg discussion here by the way. If central and local government had made sure that the sites were put in place (starting from the implementation of the Caravan Sites Act 1968 duty to provide sites in 1970 – repealed by the Tories in 1994 – now substituted by a new duty to identify locations -see especially ODPM Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites) we would not be having this discussion.
        So the government think : we had better provide guidance on how to deal with unauthorised encampments in the meantime. This guidance is now contained, in terms of England, in three documents published in 1994, 2004 and 2006 (and in teRMs of Wales 1994 and 2005).

        • Chris J

          Sorry hit the wrong key there and submitted this diatribe mid flow -the bit at the end is the link to Travellers Times where the blog and news article is now in place by the way.
          …sorry, but I’m going to finish this!! The idea of the guidance is that each encampment should be looked at on its own merits – can it be tolerated? – what are the welfare considerations? – are there alternatives? This obviously applies to public authorities especially local authorities.
          CLG have now allowed DEFRA to potentially subvert the guidance and we do hope that CLG will step back in to the resulting policy mess.
          However I do also think that these wider injunctions are an unworkable mess in thmselves as explained by Marc Willers in his summary and, J, I hope your corporate landlord clients don’t wade in because they will be heading into a quagmire (leaving aside the fact that as they try and crawl out of the quagmire Travellers’ lawyers will be pushing them back in).
          So that’s my answer… now back to my homeless appeal

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