Trespass — Possession claim — Possession order — Land occupied by trespassers — Owner fearing trespassers would move to other areas — Whether possession order can include areas of land not occupied by trespassers — Whether jurisdiction to make possession order — Whether real danger of trespass by defendants on other areas
The respondent Secretary of State owned an area of woodland that was managed by the Forestry Commission. In April 2003, a group of travellers, including the appellant, wrongfully occupied the land. The Secretary of State issued a possession claim against “persons unknown” within the meaning of rr 55.1(b) and 55.3(4) of the Civil Procedure Rules 1998. She sought an order for possession not only of the subject land but also of 30 or so other named areas of woodland that lay within a 20-mile radius. The Forestry Commission knew from past experience that if an order for possession was made in respect of one woodland area, the travellers would move to another. The county court judge made the requested order for possession in respect of all the woodlands. The appellant, who became a named defendant, appealed, contending that the possession order should not have included the woodlands that the travellers were not occupying.
Held: The appeal was allowed in part. There was jurisdiction to include an area of land in a possession order by reference only to an anticipated trespass. If a claimant who was entitled to an order for possession of a certain area of land contended that occupants were likely to decamp to a separate area of land that in its ownership, that separate area should be included in the order for possession if, but only if, the owner would have been entitled to an injunction quia timet against the occupiers in relation to that area. The threshold requirement necessitated convincing evidence of a real danger of actual violation. However, it could not be shown that there was, in this case, a real danger of the defendants decamping to any of the 30 areas of woodland.
The following cases are referred to in this report.
Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd [1919] AC 999, PC (Can)
Ellis v The Loftus Iron Company (1874-75) LR 10 CP 10
Ministry of Agriculture, Fisheries and Food v Heyman (1990) 59 P&CR 48
R v Wandsworth County Court Wandsworth London Borough Council [1975] 1 WLR 1314; [1975] 3 All ER 390; [1975] 74 LGR 62
Redland Bricks Ltd v Morris [1970] AC 652; [1969] 2 WLR 1437; [1969] 2 All ER 576, HL
University of Essex v Djemal [1980] 1 WLR 1301; [1980] 2 All ER 742; (1981) 41 P&CR 340, CA
White v Mellin; sub nom Mellin v White [1895] AC 154, HL reversing [1894] 3 Ch 276, CA
This was the hearing of an appeal by the appellant, Angela Drury, against a decision of Judge Waine, sitting as a deputy High Court judge in Northampton District Registry, to make a possession order on a claim by the respondent, the Secretary of State for the Environment, Food and Rural Affairs, for possession of land.
Richard Drabble QC and Richard Hickmet (instructed by the Community Law Partnership, of Birmingham) appeared for the appellant; John Hobson QC (instructed by Whitehead Vizard, of Salisbury) represented the respondent.
Giving the first judgment, Wilson J said:
[1] Ms Angela Drury, the appellant, appeals against an order made by Judge Waine, sitting as a judge of the High Court, Queen’s Bench Division, Northampton District Registry, on 23 May 2003.
[2] The appeal raises the following question: in a possession claim against trespassers, can the court, and, if so, to what extent and by reference to what principle, make an order for possession in respect not only of the area of land that the trespassers are occupying but also of a separate area of land owned by the claimant?
[3] The respondent is the owner of Fermyn Woods, which lie to the south-east of Corby. The Forestry Commission manages the woodland on her behalf.
[4] On around 15 April 2003, 11 travellers, including the appellant and her two children, wrongfully began to occupy Fermyn Woods. On that date, an officer of the respondent requested them to leave the woodland forthwith. They did not do so. Indeed, during subsequent weeks, a number of other travellers took up occupation of the woodland with them.
[5] On 15 May 2003, the respondent issued “a possession claim against trespassers”, as defined in r 55.1(b) of the Civil Procedure Rules 1998. Being unaware of the names of any of the occupants of the woodland, she brought the claim against “persons unknown”, pursuant to r 55.3(4). At the appellant’s request, she was added as a named defendant to the claim only after the order under appeal had been made.
[6] By her claim form, the respondent sought an order for possession not only of Fermyn Woods but also of 30 other named areas of woodland separate from Fermyn Woods. These other areas comprised all the woodlands owned by her and managed by the Forestry Commission that lay within a 20-mile radius of Fermyn Woods. Although the particulars of claim suggested that all 31 areas of woodland were occupied by the unnamed defendants, the supporting statement of Mr Charles Ashley, a land agent employed by the Forestry Commission, made it clear that the defendants were in occupation only of Fermyn Woods, and that the case for an order in relation to the other 30 areas of woodland was founded upon concern that, upon their departure from Fermyn Woods, the defendants would move into occupation of one or more of them.
[7] In his statement, Mr Ashley said that: |page:86|
(a) there had been previous unlawful encampments by travellers on Fermyn Woods;
(b) in 1998, one such encampment had led to an order for possession;
(c) the registration plate noted upon a vehicle that formed part of the encampment on Fermyn Woods in 1998 was noted upon one of the vehicles that, on 13 May 2003, had been parked there;
(d) between 1997 and January 2000, there had been a number of other unlawful encampments by travellers on areas of woodland managed by the Forestry Commission within a 20-mile radius of Fermyn Woods;
(e) on six occasions, a registration plate noted upon a vehicle that formed part of one such other unlawful encampment had also been noted upon a vehicle that was part of another; and
(f) much of the respondent’s land in the east of England had been the subject of almost continuous adverse occupation for many years.
[8] The respondent effected service of the proceedings in accordance with r 55.6, namely by attaching copies of the documents to stakes placed on the land. On the day prior to the hearing, along with other of the defendants, the appellant instructed a solicitor, which wrote, by fax, to the court, with a copy to the respondent’s solicitor. By their letter, they requested a fortnight’s adjournment so that they could file a defence. They raised concerns about the welfare of some of the defendants, including the then unnamed appellant, who was pregnant and whose two children attended a local nursery school, and they protested that, in any event, the width of the area covered by the proposed order was unjustified.
[9] At the hearing on 23 May, the respondent was represented by a solicitor. None of the defendants was present. The judge read the letter from the solicitor instructed by some of the defendants, but resolved to proceed. He made the order as sought, namely that the defendants, being persons unknown, should give possession of Fermyn Woods and of the other 30 areas of woodland to the respondent forthwith. He delivered no judgment other than to state that, in the light of the history of trespass upon the respondent’s other woodlands within a 20-mile radius of Fermyn Woods, an order for possession relating also to them was fully justified.
[10] The appellant appeals not against the order for possession of Fermyn Woods, but against the order for possession of the other 30 areas of woodland. Mr Richard Drabble QC submitted on her behalf that the court has no jurisdiction to make an order for possession against a defendant, named or unnamed, in relation to an area of land that she or he does not occupy. His subsidiary submission is that, if such jurisdiction does exist, the criterion for its exercise had not been satisfied.
[11] The wrongful occupation by Romanies and other travellers of land managed by the Forestry Commission has become a substantial problem for the respondent. Mr John Hobson QC, on her behalf, told us that, since August 1998, she and her predecessors have obtained 25 orders for possession of areas of woodland in England and Wales against such trespassers. In order to address the risk of the defendants’ decampment into other areas of the respondent’s woodland in the vicinity of their camp, and thus the need for the issue of further proceedings, a practice has evolved, in cases where such risk seemed demonstrable, of asking the court to include in its order for possession not only the area of woodland in wrongful occupation but all other areas of woodland owned by the respondent within a specified radius of it. Thus, Mr Hobson says that 13 of the 25 orders included all areas of woodland owned by the respondent within a 20-mile radius of the area in wrongful occupation and that another of the orders, made against defendants who had escaped the reach of a previous order with a 20-mile radius by occupying woodland four miles outside it, included all areas within a 30-mile radius.
[12] Recognition of the above practice is to be found in a note in Civil Procedure (2003) vol 1, at p1748. Notwithstanding transfer of the rules relating to possession claims against trespassers from RSC Ord 113 to CPR 55 in October 2001, extensive commentary upon them is still to be found under the heading of the old order. The note is as follows:
Where a [Claimant], such as the Forestry Commission, owns a number of parcels of land in a particular area which are susceptible to unlawful occupation and is seeking possession in respect of one such parcel which is unlawfully occupied but apprehends that if the order is made the unlawful occupiers will move to one or more of the other parcels and seeks to include them in the possession order such other areas must be clearly defined. A claim for possession of “The Forest of Greenwood and all other woodland owned by them within a radius of 20 miles thereof” is not sufficient. Each parcel should be identified by name in the [Claim Form] preferably by reference to a plan. The court can then include in the possession order those parcels to which on the evidence and the law the [Claimants] are found to be entitled. An order so made should present no problem in execution.
No authority is cited in support of the proposition in the note, which first appeared in the 1999 edition of The Supreme Court Practice, and Mr Hobson is unable to shed light on its origin. In any event, apart from stressing the need for woodlands in any radius order to be clearly identified (lack of such identification being a ground of appeal no longer pressed in the present case), the note begs the question raised in the present appeal by making it clear that such an order is subject to “the evidence and the law”.
[13] Counsel agree that there are only two authorities of direct relevance.
[14] The first is the decision of this court in University of Essex v Djemal [1980] 1 WLR 1301. The subject matter of the case was a sit-in of university premises by students. They had occupied the administrative offices and, following an order for possession of that part of the premises, they had moved to another part known as level six. Thereupon, the university applied for an order for possession of the whole of its premises. Just prior to the hearing before the judge, the students vacated level six but left behind a note threatening “further direct action” against the university unless their demands were met. The university proceeded with its application, but the judge refused to make an order for possession other than in relation to level six. He held that the words of RSC Ord 113 restricted the court’s jurisdiction to making an order for possession of such part of the premises as was being, or had been, wrongly occupied. The university’s appeal was allowed and an order was substituted for possession “of the premises at the University of Essex, Wivenhoe Park, Colchester”. At p1304D-H, Buckley LJ, with whom the other members of the court agreed, said:
I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner’s property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case.
In the present case there was, when the matter was before the judge, a threat to take what is described as “further direct action”, which presumably meant similar action to the action which had already been taken, action which might be taken in respect of any part of the university property. In those circumstances it would, in my judgment, have been open to the judge to have made an order extending to the whole of the university property, or he might have made an order extending to particular parts, such as the administrative offices, of the university property. In my judgment he was in error in thinking that he was bound, by the terms of RSC, Ord 113, to restrict his order to that particular part of the university property of which the students were then in actual adverse possession.
Shaw LJ added, at p1305D-E, that the university’s right of possession of its premises was indivisible, with the result that adverse occupation of any part infringed its rights in relation to the whole, but he observed that, had there been “no danger of actual violation” of other parts, a limited order might have been appropriate. |page:87|
[15] Although the report of University of Essex might more clearly have described the geographical layout of the university premises, it seems, particularly from the reference to Wivenhoe Park, that, as Mr Drabble submits, they comprised only one single site or campus.
[16] Clearly, however, Mr Drabble cannot make an analogous submission in relation to the second authority, namely Ministry of Agriculture, Fisheries and Food v Heyman (1990) 59 P&CR 48, decided by Saville J, as he then was, on appeal from a district judge. The respondent travellers were in wrongful occupation of an area of woodland near Salisbury, known as Hare Warren, which was owned by the appellant. The appellant sought an order for possession in relation not only to Hare Warren but also to Grovely Woods, an area of woodland in its ownership that was separate from Hare Warren and lay two or three miles away. The appellant argued that there was a danger that, upon eviction from Hare Warren, the respondents would decamp to Grovely Woods. The appellant successfully appealed against the refusal of the district judge to include Grovely Woods in the order for possession. Having referred to University of Essex, Saville J continued, at pp49-50:
Given that the court’s powers are not limited to the particular area adversely occupied, the question remains as to what is required to justify an order for possession extending to other areas as well. To my mind neither the fact that the land is rural rather than urban, nor the fact that there are parcels of land which are geographically separated from each other, necessarily determines the matter one way or the other. In my judgment what is needed (apart of course from the other requirements of Order 113) is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted.
The judge went on to conclude that the propinquity between the two areas of woodland and the fact that each was ideal for use by the respondents, being close to a public road and providing easy access for large vehicles, represented convincing evidence of real danger of their decampment to Grovely Woods.
[17] I agree with Mr Drabble that, whatever the terminology deployed by Saville J in MAFF, he was invoking a broader jurisdiction than that invoked in University of Essex. In the latter, this court had, in the words of Buckley LJ already quoted, held that the jurisdiction extended “to the whole of the owner’s property in respect of which his right of occupation has been interfered with” and had made an order for possession of the whole of what appears to have been a single site. In MAFF, by contrast, the order covered two separate areas, and it was impossible to say that the appellant’s right of occupation of the second area, namely Grovely Woods, had been interfered with. Mr Drabble submitted that the decision in MAFF, reached without the benefit of argument by or on behalf of any of the respondents, was wrong.
[18] In support of his argument, Mr Drabble pointed to the terminology of the relevant rule – practice direction and form of order – as being indicative of the limit of the court’s jurisdiction. Thus:
(a) in CPR 55.1(b), the phrase “a possession claim against trespassers” is defined as “a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without consent…” (judge’s emphasis);
(b) paragraph 2.6 of the practice direction supplementary to Part 55 requires the particulars of claim to set out “the circumstances in which [the land] has been occupied without licence or consent” (judge’s emphasis); and
(c) whereas the form of the order for possession used until October 2001 (no 42A, prescribed by r 9.1 of RSC Ord 1) was that the claimant “do recover possession” of the land, the form now used, and thus used in this case, (no N26, prescribed by CPR 4(1)) is that the defendants do give the claimant possession of the land (judge’s emphasis).
But it was when he sought to discern the limit of his jurisdiction within the terminology of Ord 113 that the trial judge in University of Essex fell into error. I do not consider that the italicised words can illumine, still less resolve, the issue of jurisdiction, particularly in circumstances in which, on any view, the actual occupation of one area of land is required.
[19] If a claimant fears that trespassers will decamp from one area of its land to a second, separate area of it, the remedy to which it may be entitled, submitted Mr Drabble, is an injunction against entry into the second area as well as a possession order relating to the first. But, in such circumstances, an injunction is a useless remedy. It is enforceable by committal, and it would be wholly impracticable for the claimant to seek the committal to prison of a probably changing group of not easily identifiable travellers, including establishing service of the injunction and of the application. In relation to the second area, as to the first, the only effective remedy is an order for possession, enforceable against the land itself by the claimant’s issue under r 7 of RSC Ord 113 of a writ (or, in the county court, under r 6 of CCR Ord 24, of a warrant) of possession, which requires the court enforcement officer to clear the land of all wrongful occupants (whether parties to the proceedings for the order or otherwise: see R v Wandsworth County Court, ex parte Wandsworth London Borough Council [1975] 1 WLR 1314).
[20] In my view, the key to this case indeed lies in the law’s recognition that even an anticipated trespass sometimes gives rise to a right of action. But, where it does so, it should offer an effective remedy, otherwise the right is nugatory. Thus, if a claimant entitled to an order for possession of a certain area of land were to contend that its occupants are likely to decamp to a separate area of land owned by it, the separate area should, in my view, be included in the order for possession if, but only if, the claimant would have been entitled to an injunction quia timet against the occupants in relation to the separate area. I believe that such was the basis of the jurisdiction that, in MAFF, Saville J rightly claimed. Echoing the phrase used by Shaw LJ in University of Essex, he held that the threshold requirement was for convincing evidence of real danger of actual violation. I consider, if I may say so with respect, that Saville J’s test represents a fair summary of what nowadays would be required for the grant of an injunction quia timet, such being conveniently summarised in Snell’s Equity (30th ed) at para 45-13, as follows:
Although the claimant must establish his right, he may be entitled to an injunction even though an infringement has not taken place but is merely feared or threatened; for “preventing justice excelleth punishing justice”. This class of action, known as quia timet, has long been established, but the claimant must establish a strong case; “no one can obtain a quia timet order by merely saying ‘Timeo.” He must prove that there is an imminent danger of very substantial damage…
[21] It follows that the inclusion in a possession order of an area of land owned by the claimant that has not yet been occupied by the defendants should be exceptional. Although it would be foolish to be prescriptive about the nature of the necessary evidence, it seems safe to say that it will usually take the form either of an expression of intention to decamp to the other area or of a history of movement between the two areas, from which a real danger of repetition can be inferred or, as in MAFF itself, of such propinquity and similarity between the two areas as to command the inference of a real danger of decampment from one to the other.
[22] Nevertheless, in my view, the existence of the jurisdiction to include an area of land in a possession order by reference only to an anticipated trespass creates a paradox. For it avails only the landowner who can complain of actual trespass on one area of its land at the time of issue of proceedings and who is entitled to a possession order by virtue thereof. However clear may be the evidence of risk that persons will wrongfully occupy an area of land, its owner will not at that stage be entitled to a possession order in relation to it unless they are already in wrongful occupation of another area of its land.
[23] Inherent in the same jurisdiction is also, in my view, a danger of injustice. It flows from the power, already noticed, to enforce an order for possession against all persons found by the enforcement officer to be in wrongful occupation of the land. Thus, for example, a traveller who was not a member of the encampment that gave rise to the action, and so was not served with the proceedings, and who takes occupation of a separate area of land may find himself confronted by an enforcement officer flourishing an order for possession that, on an |page:88| anticipatory basis, had included that area of land. Mr Hobson states that it would be the practice, at any rate of his client, to give prior notice of such enforcement to all persons on the land, and that every claimant needs the court’s permission, albeit often obtainable without notice, to issue a writ or warrant of possession in aid of a possession order made more than three months earlier: see r 7(1) of RSC Ord 113 and r 6(2) of CCR Ord 24. He also points out that anyone directly affected by an order for possession can apply under r 40.9 to set it aside, but it is far from clear that an enforcement officer upon the land would be obliged to stay his hand upon notification of such a proposed application. At all events, the fact remains that an occupant in that situation will not have been served with proceedings, and, in particular, will not have been notified of a hearing at least two days in advance under r 55.5(2)(b). Whether or not he would have had an arguable defence to raise at such a hearing, such notice would at any rate have guaranteed him a short period within which, if he wished, he could have protected himself and his family from the unpleasantness of forcible removal by effecting a voluntary removal.
[24] I believe, on balance, that the law is right to tolerate both the paradox and the danger of injustice to which I have referred in the interest of avoiding the need for a succession of separate proceedings to address a succession of decampments, however predictable, onto separate areas of an owner’s land. But they militate in favour of keeping the jurisdiction within the reasonably narrow bounds of the principles applicable to injunctions quia timet.
[25] In that, therefore, in my view, there is jurisdiction to include an area of land in a possession order by reference only to an anticipated trespass, the remaining question is whether the criterion for its exercise was satisfied in the present case. The 30 other areas of land included in the order all lay within 20 miles of Fermyn Woods, and all were also woodland. But although there was evidence that one or more of the occupants of Fermyn Woods had occupied that area of woodland previously, and that one or more of those who, in the past, had occupied one or more of the other 30 areas had done so on more than one occasion, there was no evidence that linked past or present occupants of Fermyn Woods with past or present occupants of any of the other areas. Moreover, by the time of the hearing before the judge, there had been no wrongful occupation of any of the other areas for more than three years. With great respect to the judge, the evidence was, in my view, insufficient to convince a court that there was a real danger that the defendants would decamp to one or other of the 30 areas; and so I would allow the appeal.
Agreeing, Mummery LJ said:
[26] I agree that the appeal should be allowed for the reasons given in the judgment of Wilson J. Judge Stephen Waine was not justified in law, on the material before him, in making the order for possession, dated 23 May 2003, extending beyond Fermyn Woods, in which Ms Angela Drury and other persons unknown had been trespassing since April 2003, so as to include 30 other separate woodland areas, under the management of the Forestry Commission, within a 20-mile radius of Fermyn Woods.
[27] I wish to add a few comments on several points of general interest thrown up by the case.
Jurisdiction to make summary possession orders
[28] Mr Drabble QC, appearing for Ms Drury, accepted that the order for possession properly applied to the whole of Fermyn Woods, which are coloured red on the plan in evidence, and that the order did not have to be limited to the area of the woods actually occupied by the trespassing travellers at the relevant time. That concession is correct in the light of the decision of this court in University of Essex v Djemal [1980] 1 WLR 1301, in which it was held that: (a) the procedural changes made by RSC Ord 113, to enable summary possession orders to be made against unknown squatters on land, did not affect the nature or extent of the court’s jurisdiction to make an order for possession to protect the right of the owner to the possession of its land; (b) an order could be made for possession of the whole of the owner’s land in respect of which its right of occupation had been interfered with; (c) the area covered by the order for possession could extend beyond the particular parts occupied by the trespassers to parts of the claimant’s land that were not actually in unauthorised occupation; and (d) the appropriate territorial extent of the possession order depended upon the circumstances of the particular case.
[29] The critical issue is to identify the relevant criteria for delimiting the territorial extent of a possession order.
[30] On the one hand, Mr Hobson QC, appearing for the Secretary of State, sought to uphold the width of the “radius order” made by the judge, both as a matter of law and on the available evidence. On the other hand, Mr Drabble QC contended that there were indications, both in the historical evolution of the action for recovery of possession of land and in the procedural provisions in the CPR, that the court had no power to make such a wide, pre-emptive order in rem as was made in this case.
Writ of ejectment
[31] Legal history lends some support to Mr Drabble’s approach. The modern action for the recovery of possession of land replaced the writ of ejectment, which is described by Sir John Baker in his Introduction to legal history as “a trespassory action concerned only with wrongs already done and not with continuing wrongs”. The writ of ejectment was initially available only to enable a person holding a term of years to recover his term. It was a branch of the law of trespass. The termor had a limited interest in an area of land, as defined in the grant of the term. The specimen forms of writ show that the land, of which specific recovery was sought from a trespasser, was defined in the writ as, for example, the “messuage” or “the Manor” of a named person at a named place. It did not extend to all the land owned by the claimant anywhere in England or within a certain radius of the land trespassed upon. There is no reason to believe that this approach to defining the relevant land recoverable by the writ of ejectment changed when, by the introduction of the ingenious fictions of John Doe and Richard Roe, the writ supplanted in practice the use of the real actions and the possessory assizes for the recovery of possession of freehold land, or when the modern action for the recovery of possession replaced ejectment, when it was abolished by the Common Law Procedure Act 1852.
[32] The in rem nature of the order, which means that the order takes effect against all persons found on the land, whether or not they are defendants in the proceedings, continues to reinforce a cautious approach to defining the area covered by it.
CPR provisions
[33] The CPR provisions governing possession claims against “persons unknown” are consistent with this approach: for example, the provision in CPR 55.6 for service of the proceedings by attaching copies of the claim form to the main door or to some other part of the land, or by placing stakes in the land and attaching to each stake copies of the claim form. The practice direction (para 2.6) provides that the claim for possession against trespassers must state the circumstances in which the land “has been occupied without licence or consent”. Those provisions, Mr Drabble submitted, demonstrated that the court had no power to make pre-emptive orders for possession before any act of trespass had occurred. The proper remedy for an anticipated or threatened act of trespass was, he argued, the equitable in personam remedy of a quia timet injunction enforceable by proceedings for contempt, rather than an in rem order for possession.
Authorities
[34] As for the authorities, it has already been noted that the order in University of Essex extended, on the facts of that case, to the whole of the property of the university (“the premises at the University of Essex, Wivenhoe Park, Colchester in the County of Essex”), but the case is not authority for the proposition that the premises can be defined in the possession order simply as all the land belonging to the claimant, wherever it is situated, or as all such land situated within a certain radius of the land trespassed upon, without reference to some connecting feature, linking occupation by the trespassers with other land of the claimant beyond the particular area upon which they are |page:89| trespassing. On the facts of that case, there was evidence that, when the university executed a possession order in respect of one part (part of the administrative offices), the students occupied another area of the university buildings and, even after they had vacated that area, there were threats of further “direct action”. The evidence justified the implicit reference by Shaw LJ to the case as one in which there was a danger of “violation of many, or a succession of, parts of the premises”: see p1305E.
[35] Like Wilson J, I would adopt the same pragmatic approach as Saville J did in Ministry of Agriculture, Fisheries and Food v Heyman (1990) 59 P&CR 48 in the passage at pp49-50, cited by Wilson J in [16] of his judgment. I reject Mr Drabble’s contention that MAFF was wrongly decided. It is a legitimate, incremental development of the ruling in University of Essex that a possession order can extend beyond the particular area of the actual trespass to other areas of the claimant’s land by holding that the relevant criterion for determining the territorial scope of the order is that of a real danger that actual trespasses might occur in the near future on those other parts of the claimant’s land. In a case in which court exercises its undoubted power to make an order for possession of the claimant’s land upon which trespasses have actually occurred, it must also possess the power to determine the extent of the area to be covered by the possession order.
[36] Although there may be difficulties in knowing precisely where to draw the line in particular cases, a line has to be drawn somewhere. That should be done by the process of a common-sense assessment of the whole situation, taking account of the past conduct of the trespassers and their likely future conduct with respect to the claimant’s land. If there is convincing evidence of a real danger that actual trespasses will be committed on other land of the claimant, a wider form of possession order may be justified. It should be made only in cases in which: (a) trespasses have already been committed on an area of the claimant’s land; and (b) it is necessary to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of its land by persons who neither have, nor, indeed, even assert, any right to enter into possession of the claimant’s land. As explained by Wilson J, a quia timet injunction against individual persons in such a situation would not be an effective remedy for dealing with a situation.
[37] I agree with Wilson J that the evidence in this case did not justify the making of an order for possession in the “radius” form, or one wider than the area of Fermyn Woods. I would therefore allow the appeal to that extent.
Giving the third judgment, Ward LJ said:
[38] This has been an interesting appeal. Travellers squatting illegally in the woodlands of England undoubtedly cause the Forestry Commission real trouble. That cannot be condoned, but the process of eviction must be conducted with due compassion. It is not suggested that the Forestry Commission will act otherwise. The court must be sensitive to both interests and must sensibly extend the ambit of its jurisdiction or control its exercise in a way that not only does justice between the parties but also ensures that its own procedures are not made a mockery by those intent on evading them. There is no suggestion that Ms Drury’s concerns for herself and her family are anything but genuine.
[39] Here, the argument has ranged over two quite separate and distinct remedies. The first is the order for possession. As CPR 55 makes clear from the definition in CPR 55.1(b), this is a “possession claim against trespassers”. Citing Blackstone’s Commentaries vol 3, at p209, as its authority, Clerk & Lindsell on Torts (18th ed), at para 18-01, defines trespass to land as consisting in any unjustifiable intrusion by one person upon land in possession of another. It is essential that there must be some actual intrusion on the land. Lord Coleridge CJ said in Ellis v The Loftus Iron Company (1874-75) LR 10 CP 10, at p12:
It is clear that, in determining the question of trespass or no trespass, the Court cannot measure the amount of the alleged trespass; if the defendant places a part of his foot on the plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it.
Once a trespass, any trespass, is shown, the court has the jurisdiction, on the application of the person in lawful possession of the land, to eject the trespasser from the land. This begs the question of what is comprised within the land.
[40] The second remedy is an injunction. If there has been no intrusion upon the land of the claimant at all, the only remedy may be a quia timet prohibitory injunction.
But no-one can obtain a quia timet order by merely saying “Timeo”; he must aver and prove that what is going on is calculated to infringe his rights.
See Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd [1919] AC 999, at p1005.
[41] The link between the two was explained by Lord Watson in White v Mellin [1895] AC 134, at p167:
Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second. The onus resting upon a plaintiff who asks an injunction, and does not say that he has as yet suffered any special damage, is if anything the heavier, because it is incumbent upon him to satisfy the Court that such damage will necessarily be occasioned to him in the future.
We see how much heavier from words as suitable for quia timet injunctions as for mandatory injunctions used by Lord Upjohn in Redland Bricks Ltd v Morris [1970] AC 652, at p665:
A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say “timeo”. [A-G for Canada v Ritchie Contracting]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
[42] The Forestry Commission could have applied, but sensibly did not apply, for a quia timet injunction to restrain the evicted travellers simply moving onto the next patch of woodland. As Wilson J has explained, the injunction would be a rather ineffective remedy. Nevertheless, the purpose behind the extended order for possession sought in this case is similar to that which informs the injunction, namely to deter a threatened course of action. The question in this case is how, if at all, these injunction principles can be applied in order to give the court an effective remedy through an order for possession that is widely drawn so as to include parcels of land that could have been made the subject of a separate injunction. The desire to make such an effective order must be tempered against the potentially unfair effect of the execution of a wide order, operating as it does in rem so as to eject travellers from land B who may have played no part in the original trespass of land A.
[43] In my judgment, one must start with the trespass. Once there is an intrusion on some part of the claimant’s land, the tort is complete with respect to the whole of the claimant’s land. That was the judgment of this court in University of Essex v Djemal [1980] 1 WLR 1301. Buckley LJ said, at p1304E:
The jurisdiction in question is a jurisdiction directed to protecting the right of the owner of property to possession of the whole of his property, uninterfered with by unauthorised adverse possession. In my judgment the jurisdiction to make a possession order extends to the whole of the owner’s property in respect of which his right of occupation has been interfered with, but the extent of the field of operation of any order for possession which the court may think fit to make will no doubt depend upon the circumstances of the particular case.
Shaw LJ said, at p1305C:
Its right of possession seems to me to be indivisible. If it is violated by adverse occupation of any part of the premises, that violation affects the right of possession of the whole of the premises.
[44] This is authority for the proposition that I have already enunciated, that once a trespass has been committed to some part of the claimant’s land the jurisdiction is established to make an order for possession of all or some of the claimant’s land. Whether or not to make an order in respect of all or only of some is a matter of judgment. |page:90| (I prefer to say “judgment”, rather than “discretion”, but the process is the same and the distinction pedantic.) One set of factors that will influence that judgment will be the identity of the land concerned. Thus, the geographical and occupational unity of the site may be important as it was in University of Essex. Physical unity is not essential for reasons that quite rightly seemed good to Saville J in Ministry of Agriculture, Fisheries & Food v Heyman (1990) 59 P&CR 48, at p50:
To my mind neither the fact that the land is rural rather than urban, nor the fact that there are parcels of land which are geographically separated from each other, necessarily determines the matter one way or the other. In my judgment what is needed… is convincing evidence (not merely belief) to establish that there is a real danger of actual violation of all the areas in question by those actually trespassing on at least one of the areas when the proceedings are instituted.
Nevertheless, propinquity and proximity are obviously relevant. The further the separation of parcels of land, the less obvious the need for inclusion of the far parcel in the order. Any similarity in the characteristics of the land, its use and its attractiveness to a class of trespassers will be material. If, for example, one house in the terrace is unlawfully occupied, it may be appropriate for the order to include the other empty houses in the same terrace. The size of the estate itself might be a factor in extending or limiting the ambit of the order. All the features of the claimant’s land are material to the need for the order to define how far the writ will run.
[45] That notion of there being a pressing need to protect the land affected by the trespass brings us back to the principles that underlie the quia timet injunction and to a consideration of the quality of the threat that if travellers are moved from part A, they will then move to part B. Among the factors to be considered in this regard will be the imminence of the threat to move, the history of former illegal occupations of the several sites in order to establish what, if any, pattern can be seen in the illegal occupation and the frequency and timings of those occupations. There should also be evidence that the same, or some of the same, people are involved in the move from A to B to justify the inference that it is more likely than not that they will immediately encamp on C.
[46] My attempt to list the various factors is not intended to be all embracing. It is trite that it is always a matter of fact and degree. At the heart of it there has to be a common-sense decision that gives an answer to a question as to whether the established invasion of part A of the land is tantamount to, part and parcel of, all of a piece with, a very probable invasion of part B. There must be a strong and unbroken link between the two parcels. Can one truly say: “If we evict them from here they will simply move there?” I am satisfied, therefore, that the jurisdiction exists to include parcels of a claimant’s land other than those in actual occupation, but it is a jurisdiction that must be sparingly exercised, bearing in mind that the court, while taking account of all the circumstances of the case, must always do justice between the invaded claimant and unidentified, but potentially affected, defendants.
[47] For the reasons given by my lords, I too would allow the appeal to the limited extent proposed.
Appeal allowed.
