Squatters–Possession ordered summarily under order 113 despite defects in owner’s affidavit–Use of the power in order 2, rule 1 to cure defects and do justice–Court should not be astute to aid ‘those who had deliberately broken, and continued to flout, the law’
By this
summons Burston Finance Ltd, of Moorgate, London EC2, sought under order 113 of
the Rules of the Supreme Court summary judgment for possession of Flat 6, 21
Ladbroke Gardens, London W11, from four squatters, one defendant being named,
two others attending court to dispute the correctness of the procedure adopted,
and another being named to the court.
Mr A Steinfeld
(instructed by M Garston) appeared for the plaintiff company. Miss Julia Shaw
and Miss Jane Grant appeared in person.
Giving judgment,
OLIVER J said that this was a summons under order 113 of the Rules of the
Supreme Court by which Burston Finance Ltd sought possession of Flat 6, 21
Ladbroke Gardens, London W11, unlawfully occupied by Mr Wilkins, the named
defendant, and others whose identities when proceedings started were unknown.
Burston were entitled to possession as mortgagees. The summons was in Form 11a
of the rules because Burston believed that others besides Mr Wilkins occupied
the flat. The proceedings were properly served and the occupants given notice
of the hearing, but technical points had been taken which were said to vitiate
the proceedings, which should therefore be dismissed. Mr Wilkins did not attend
the hearing, but Miss Julia Shaw and Miss Jane Grant had attended, claiming to
speak for all occupiers, and were joined as defendants for that purpose. Miss
Shaw presented an affidavit from herself and one from Mrs Faull, occupier of
Flat 5; these came late, without prior notice to Burston and neither stamped
nor filed. Miss Shaw had had advice from a man sitting with her who evidently
had more than a passing familiarity with this type of application and was armed
with an eclectic assortment of reports and transcripts of previous cases.
The premises
had been occupied by four persons, and Miss Shaw’s evidence was directed to
whether reasonable inquiries were made before the summons was issued to
ascertain the identity of the occupants. Mr Bellhouse, a property consultant
dealing with the flat for Burston, said that before March 1975 the premises
were vacant, for sale, with a prospective purchaser. On March 11 1975 he found
the door lock changed, forced the door and found evidence of occupation. Mrs
Faull was asked by an unidentified representative of the estate agents to tell
the occupants to contact them, and subsequently Mr Wilkins did so. Miss Shaw
objected to that part of Mr Bellhouse’s affidavit because it did not
sufficiently identify his informant as required by order 41, rule 5 (2). The
point was well taken as far as it went, but the paragraph did not show what
inquiries were made but how Mr Wilkins was identified, about which there was no
dispute. What Mr Bellhouse said about the inquiries was that it was impossible
to identify or find the number of the occupants. Each time either there was
nobody in or they refused to answer the door. Miss Shaw said that if Mr
Bellhouse did call, it was when the occupants were at work. They had not tried
to conceal their identities, and the London Electricity Board had contracted to
supply her with current, a fact which could have been discovered. A Mr
Bricknell said that he had visited the flat and found three women inside who
refused to give their names. Mrs Faull said she could have given the names but
was not asked. Miss Shaw did not attempt to deal with Mr Bellhouse’s assertion
that he heard people in the flat who refused to answer the door, but said that
the noise heard might have been a dog, left in the flat, no doubt to secure it
against unauthorised intruders. It could not however be assumed against Mr
Bellhouse that his senses were so blunted that he was unable to distinguish
sound of canine welcome or warning from those of human occupants.
It was on that
evidence that Miss Shaw said that the summons in its then form was misconceived
for want of compliance with the essential steps prescribed by order 113, rules
2 and 3. The summary process authorised by the order was introduced in 1970 to
meet the procedural difficulties encountered by owners whose premises had been
unlawfully occupied and who were frequently unable to launch proceedings
effectively for their recovery because they could not discover whom to sue and
on whom to serve process, either because the occupiers declined to identify
themselves, or because, by reason of a constantly changing occupation, it was
impossible to discover who was in the premises at a given time. Rule 2 (2)
provided that where a person claiming possession was unable, after taking
reasonable steps, to identify every person occupying the land for the purpose
of making him a defendant, the originating summons should be in Form 11a. Rule
3 (c) laid down the evidence the plaintiff must file, including the proposition
that he had taken all reasonable steps to identify the persons occupying the
land who were not named in the summons. Rule 3 appeared to say that a plaintiff
had to go further than the ‘reasonable steps’ of rule 2 by taking ‘all
reasonable steps.’ But the purpose of
the rule was to provide a means of easy and speedy recovery for a property owner
who had been unlawfully dispossessed, not to force him into the profession of
an inquiry agent. To construe the rule as meaning that the prospective
plaintiff, before issuing his summons, must take every step open to him which
was reasonably possible would seem not only to put an intolerable burden on
him, but to turn any proceedings instituted under the rule into something of a
lottery–a sort of forensic game of snakes and ladders, for the plaintiff could
never know until he came to court whether the court, possibly prompted by the
ingenuity of counsel, might find some further step, reasonably practicable,
which had not been taken. That would force him to start all over again. Was a
plaintiff who failed at his first attempt to identify those who had barred his
own door to him, to lie in wait for them?
or to call late in the evening?
or instruct inquiry agents? or
knock at every neighbour’s door in the hope that someone might know the names
of the trespassers?
Miss Shaw said
yes, and referred the court to In re 9 Orpen Road, Stoke Newington
[1971] 1 WLR 166, a decision of Pennycuick V-C’s, and to an unreported decision
of the Court of Appeal, Grandiose Properties Ltd v Locke. In the
former, on its evidence, it was held that reasonable steps had not been taken.
In the latter case, on an application to stay an order made by a judge in
chambers, it was held that there was a
Appeal, where it was decided on the ground that ‘all reasonable steps’ had not
been taken, as Miss Shaw pointed out. Among recorded decisions that was the
strictest approach, but subsequent decisions in the Court of Appeal showed a
broader approach to the question of reasonableness, such as Receiver of
Metropolitan Police v Smith (1974) 118 SJ 583 where Lord Denning
said: ‘It often happens that the owner cannot find out who is there from one
day to another. They move in and out. The owner cannot get their names because
they are out when he comes or they refuse to give their names. So long as he
has done what is reasonable he can proceed under order 113, describing them as
being ‘other persons unknown.” Again,
in Warwick University v De Graaf [1975] 1 WLR 1126 Lord Denning
said at p 1129: ‘It is not necessary in these cases [for owners] to get the
names of everyone. The names of the ringleaders are enough.’ Sir John Pennycuick added at p 1131: ‘The
requirement imported by the expression ‘all reasonable steps’ or `all reasonable
steps’ must mean only that the person claiming possession shall have taken such
steps as are reasonable in the particular circumstances. It is clear that in
certain circumstances, no steps at all, or very scanty steps, could reasonably
be taken. In such a case there is no failure to take reasonable steps.’
Miss Shaw
submitted that there were a number of steps Burston could have taken. They
could have asked Mrs Faull; could have approached estate agents who were in
touch with her; could have contacted the electricity board; and could have
called out of working hours late at night. So far as Mrs Faull was concerned,
there was force in Miss Shaw’s submission, and it would have been elementary to
make such an inquiry. Regarding the other points, it was extremely intolerable
that an owner of property whose house was unlawfully occupied by trespassers
who forced their way in and then declined to identify themselves should be
expected, as a preliminary to taking proceedings, to do the round of the public
authorities with a view to tracking down the information which the trespassers
themselves were not prepared to volunteer. Nor did the court conceive it
reasonable to require a property-owner to adjust himself to the habits of the
dispossessors by attending the premises at time when it suited their convenience
to be at home. Nevertheless Mr Bellhouse’s affidavit was unsatisfactory. It was
lacking in precision regarding his visits to the property, and while the
summons was issued on June 20 1975, the last attempt to obtain any evidence as
to who was in possession was in March. That time-lag was too long, and Mr
Bellhouse could not be said to have taken reasonable steps.
Miss Shaw
submitted that that was the end of the matter. As the summons was in the wrong
form it should be dismissed, with the result, no doubt, that she and her
friends would get a few weeks more rent-free occupation of premises where they
had no claim whatever to be. The plaintiffs would be put to the additional
expense of starting fresh proceedings against the now identified occupiers and
would presumably lose a prospective buyer, and the matter would come back in a
few weeks’ time without anyone being the slightest advantaged except persons
who did not even pretend to have any colour of claim to be on the premises at
all. The court was extremely reluctant to being a party to so sterile an
exercise unless compulsorily driven by authority to do so. Mr Steinfeld said
that now it was known that there were only four occupants. One was named, two
had been joined at their own request and the fourth had been identified. All
knew of the hearing, none had been prejudiced by a defect in the form of
proceedings. In these circumstances the summons should be amended to join the
fourth defendant, and the court should dispense with re-service and make the possession
order. Miss Shaw argued that the court should not join an absent defendant, but
Mr Steinfeld submitted there was no merit in Miss Shaw’s point, and the court
agreed. It was a purely technical point resting on a purely formal defect in
the type of summons by which the proceedings were commenced, and the court
should waive the formal defect under the power contained in order 2, as the
Court of Appeal had done in Harkness v Bells Asbestos &
Engineering Ltd [1967] 2 QB 729. In that case Lord Denning said, ‘Every
omission or mistake in practice or procedure is henceforward to be regarded as
an irregularity which the court can and should rectify so long as it can do so
without injustice.’ The point was not
really dealt with in Mercy v Persons Unknown (1974) 231 EG 1159
CA, but the Court of Appeal in Westminster City Council v Chapman
[1975] 1 WLR 1112 waived an irregularity of service notwithstanding the
mandatory provisions of the rules. In the Warwick University case Lord
Denning said: ‘Any omission would be an irregularity, and order 2, rule 1 comes
into play to validate the proceedings. Irregularities no longer nullify
proceedings. People who defy the law cannot be allowed to avoid it by putting
up technical objections.’
It was well
established that the Rules of the Supreme Court were the instruments through
which the courts acted to secure justice. They were the courts’ servants, not
their tyrants, and order 2 was specifically designed to enable the court to
avoid that rigid formalism which had formerly brought the law into disrepute
and encouraged self-help. In this case, as in the Chapman case, it was
clear that all the persons concerned knew of the proceedings well before the
hearing. If the summons was dismissed the plaintiffs would be put to a great
deal of wholly unnecessary expense, which they had very little prospect of
recovering, in order to come back to the court in such time as it took to
prepare and serve a new summons. That seemed to be not only unjust but contrary
to common sense. Nothing that the court said or did should be taken as
encouragement to prospective plaintiffs to use the summary procedure without
laying the proper groundwork; but accepting that the steps taken in this case
fell short of what was required by the rules, there was no reason to suppose
that the exercise of the court’s discretion under order 2 would cause the least
injustice to the admitted wrongdoers. He (his Lordship) hoped that he would not
be thought unsympathetic to the plight of those who were in real need and were
genuinely unable to find a roof for their heads. He knew nothing of the
pressures, if any, which impelled the defendants to invade and retain someone
else’s property. What was certain was that they had absolutely no excuse or
justification in law for their act. No doubt we had come a long way since Sir
Edward Coke was able to say ‘A man’s home is his castle,’ but we had not come
so far that the court should be astute on a mere procedural formality to lend
aid to those who had deliberately broken, and continued to flout, the law. The
court would not do so, but would waive the irregularity and make the possession
order sought.
