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Article 8 and the Private Sector


In one sense, the possession claim in Manchester Ship Canal Developments v Persons Unknown [2014] EWHC  645  (Chfollows a fairly predictable course. The Defendants were a group of activists who had set up camp on Barton Moss Lane, Manchester, in protest at the drilling program being undertaken by a company, Igas Energy plc. The Claimants had granted Igas a licence to drill on the land nearby and the protest was intended to deter the controversial fracking process which the activists feared would ensue.

The Claimants sought their eviction from the land and the Defendants argued that their eviction would be a disproportionate interference with their rights under Articles 8, 10 and 11 of the ECHR. The parties agreed that the matter should be dealt with on written evidence only if the Defendants were unable to show that they had a reasonably arguable defence to the Claim.

HHJ Pelling decided that there was no reasonably arguable defence. As regards Arts 10 and 11 (the rights to freedom of expression/peaceful assembly), the Defendant’s occupation was without the permission of the landowners exercising their A1P1 rights and it had resulted in a loss of amenity to members of the general public. Furthermore, there was no question of a possession order denying the Defendants the effective exercise of their Convention rights given that a protest could take place elsewhere. As for Article 8, the Defendants had not established a sufficient and continuous link with the land (Buckley v UK (1996) 23 EHRR 101) and/or there was nothing exceptional about the case to give them an arguable defence.

So, a possession order was granted but the interesting part of the judgement concerns the treatment of the parties to the Claim. We have been monitoring the progress of the argument in the ECtHR that Art. 8 applies to private as well as public entities (see our notes here, here and here) and now, following the comments of the Court of Appeal in Malik v Fassenfelt [2013] EWCA Civ 798HHJ Pelling expresses his views in clear terms (para.46):

Any view I express on this issue is unlikely to be anything more than the platform for an appeal so I express my conclusions on this issue shortly. Firstly, it is difficult to see on what logically defensible basis it could be said that Articles 10 and 11 are engaged in relation to claims for possession by private landowners – as to which see the discussion above – without also concluding that Article 8 is also capable of being engaged in relation to such claims. Secondly, I do not see how it is open to the Court to opt out simply because the Claimant is a private landowner given the terms of s.6 of the Human Rights Act 1998. There is nothing artificial in this – the private landowner is seeking to use a public authority (the court) in order to assist him to vindicate his ownership of his land. The court as the public authority concerned can only do so on terms that respect the convention rights of all relevant parties, which on this analysis would include the Article 8 rights of the trespasser and the A1P1 rights of the landowner. The landowner accepts this by seeking the assistance of the court. Thirdly, although extending Article 8 to claims by private landowners would be an extension I question whether it would be an unprincipled one given that anyone relying on Article 8 in this context would have to establish that the land concerned was a home applying the convention test applicable to that concept, and given that once that threshold has been passed the only obvious justification for treating a trespasser on land owned by a local authority any differently than a trespasser on privately owned land is that the Article 8 rights of the trespasser would have to be balanced against the A1P1 rights of the private landowner. If that is so, I do not see why that cannot be catered for by treating the fact that the land is owned privately as the primary factor in deciding whether ordering possession is proportionate much as is the effect of Appleby (ante) in relation to Article 10 and 11 cases concerning claims for possession by private landowners with the result that it will only be in exceptional cases that the A1P1 rights of a private landowner are treated as trumped by the Article 8 rights of a trespasser. For those short reasons I proceed on the basis that Article 8 is capable of being engaged even in relation to land owned by a private landowner. This was the approach favoured by both the first instance judge and Sir Alan in Malik v. Fassenfelt and others (ante).

I imagine that an appeal is unlikely in this case but we will surely see this issue crop up again in the higher courts.


SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


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