Malik v Fassenfelt & Ors  EWCA Civ 798
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? [Sir Alan Ward]
This was a case that was potentially important for establishing whether Article 8 defences could be run by private tenants, or by licencees and occupiers of private land. Despite Sir Alan Ward’s opening, the case falls short of being that, as we shall see.
This was the appeal of a possession order made against ‘Grow Heathrow’, squatting a patch of wasteland that would be needed for any expansion of Heathrow. At first instance, the Circuit Judge had held that article 8 was engaged, but that an immediate possession order would be given.
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.
In addition, s.89 Housing Act 1980 did not apply to trespassers and the Court refused any extension of time before the order was to take effect.
The squatters appealed, arguing:
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 [Jan Luba QC] 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  and  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.
The landlord had been given permission to appeal on the applicability of an Art 8 defence, but did not do so. This was significant.
On the squatters’ appeal points, all three judges were in broad agreement. Sir Alan Ward found:
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  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.
Lord Toulson and Lloyd LJ agreed that on the facts of the case, the Judge was right to make an immediate possession order.
Where there was dissent was on the issue of the application of Art 8 and the rule in McPhail v Persons, Names Unknown  Ch. 447
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 [Lord Denning at 458]
He then comes to the conclusion that McPhail can no longer be regarded as good law, for the following reasons:
i) It is rightly common ground that the squatters have established a home on the land by reason of the existence of a “sufficient and continuous link with a specific place” which is the autonomous test in European jurisprudence. The squatters are, therefore, entitled to respect for their homes by virtue of Article 8(1).
ii) Even if Article 8 has no direct application between a private landowner and the trespassers on his land, the Court as a public authority is obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with that Convention right.
iii) The basic rules are not now in doubt, per Lord Hope in Powell at . So the court will 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 occupiers’ eviction is a proportionate means of achieving a legitimate aim.
iv) Proportionality is, therefore, in issue. The rule in McPhail that the court has no jurisdiction to extend time to a trespasser can no longer stand against a requirement that proportionality may demand, albeit most exceptionally, that a trespasser can be given some time before being required to vacate. In Pinnock the court held at  that 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 and it seems to me this is one of those procedural provisions that does require fresh treatment.
v) There are subsidiary, but not very compelling, reasons for reconsidering McPhail. Part of the ratio of that decision was that the landowner has the remedy of self help but the Criminal Law Act 1977 has prevented the use of force to evict an occupier. His opportunity to obtain immediate relief by resorting to self-help may be curtailed if the squatters refuse to leave without a fight. Standing alone the changes in the criminal law would not lead me to depart from McPhail.
vi) Another crucial factor distinguishing the present position from McPhail is the fact that in McPhail there was no defence to the claim of possession whereas, if Article 8 is engaged, then there is at least a potential defence.
For this reason, the Judge below was wrong to find that s.89 HA 1980 did not apply to trespassers and McPhail was still binding. But this had no material effect on her judgment.
However, s.89 HA 1980 must then apply, with the 6 week limit. Noting that this was found to be compatible with Art 8 in Hounslow London Borough Council v Powell  UKSC 8, Sir Alan Ward also notes that in Yordanova v Bulgaria (Application No. 25446/06, dated 24th April 2012) [our note] the ECtHR said: “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.
If Sir Alan Ward’s was the sole judgment, then the position would be clear, at least insofar as the application of Art 8 to private landowner cases. But it wasn’t. Both Lord Toulson and LLoyd LJ also address McPhail in their judgments. Or rather, in view of the landowner not appealing the point, they decide not to.
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 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 (3rd 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.
Well, this could have been the case to settle the application of art 8 to private landowner/landlord cases. Not only the rule in McPhail in regard to trespassers, but the application of Art 8 to section 21 possession cases, terminated private contractual tenancies and the whole panoply of private possession matters would have followed.
But it isn’t. Though Sir Alan Ward’s reasons for applicability are clear, this is not an effective precedent, given the refusal to address the issue from the other two Lords. It is, of course, quite right that the issue was not before them as a question under appeal.
That said, while it is not binding, there may well be some weight to this case in persuading County Courts that Art 8 argument can be raised in such cases, on ‘exceptional facts’ (which, I think must be pointed out yet again, is not an ‘exceptionality test’).
An indicator of the struggle between A1P1 and Art 8 right that will occur in such as case is to be found reading across Sir Alan Ward’s and Lord Toulson’s judgments in this appeal.
The position on an ‘all or nothing defence’ is clearly set out at the conclusion of Sir Alan Ward’s judgment. As Jan Luba QC points out, if the Court thinks that possession within 6 weeks would not be proportionate, the only option is to dismiss the claim for possession. Sooner or later, I suspect the Supreme Court will have to revisit s.89.
Incidentally, quite literally as Sir Alan Ward’s parting shot, and amongst praise for the advocacy in the case, there is what might just be a side swipe a the current level of political debate on human rights:
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.