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.