Malik v Persons Unknown and others

Trespass – Claim for possession – Whether claim documents properly served – Whether defendants having implied licence to occupy – Whether eviction of defendants breaching right to respect for home under Article 8 of European Convention on Human Rights – Claim allowed The claimant owned land in Sipson, Middlesex, a village that lay just to the north of Heathrow airport and was scheduled for demolition in the event that proposals for a third runway at the airport went ahead. The defendants were members of a group known as “Grow Heathrow”, which campaigned for the regeneration of the villages blighted by the threat of the third runway and had considerable support in the local community. During the claimant’s ownership of the land it had been used for dumping cars and fly tipping; the defendants proposed to restore the former use of the land as a market garden.In July 2010, the claimant brought a claim against the defendants for possession of the land on the ground that they were trespassers. The claim documents were served by pinning three copies to the outside of the locked premises and by handing one through a gap in the gates to a person who would not identify herself. The claim was initially brought against persons unknown but the second and third named defendants were added in February 2011 by order of a district judge.The defendants contended that there were irregularities in the service of the claim, such that the claimant would have to start proceedings afresh. They submitted that the claimant had failed to comply with the requirements of CPR 55 regarding the service of claims against trespassers, since the claim documents had not been posted through the letterbox and the second defendant had not been named, despite his name being known. The defendants further contended that: (i) they had an implied licence to remain on the land, derived from conversations with the claimant and his brother and from their being allowed to remain on the land and clear it of detritus; and (ii) eviction would contravene their right to respect for their home under Article 8 of the European Convention on Human Rights. Held: The claim was allowed.(1) Although the service requirements of CPR 55 were mandatory, the requirement to post through the letterbox applied only “if practicable”. On the evidence, the claimant’s solicitor had been unable to find the letterbox at the premises, since it was not obvious and was obscured. It was not practicable to post through the letterbox where the letterbox was looked for and not discovered. The defendants had responded to the claim and had suffered no prejudice. The documents attached to the fence were clearly visible. In those circumstances, the claimant had complied with the requirements of CPR 55 by attaching copies of the claim documents in a clearly visible location.The failure to name the second defendant when the proceedings were issued did not render the claim defective. On the balance of probabilities, the claimant had known only the second defendant’s first name and had never known his surname. CPR 55.3(6) required those persons who were not known to be named as “persons unknown” and the claimant had complied with that requirement. Moreover, to the extent that there had been any error, it fell within the court’s general power under CPR 3.10 to rectify an error of procedure. Moreover, any defect had since been cured by adding the second and third defendants to the claim by way of amendment.(2) The defendants had no implied licence to occupy. On the evidence, the discussions that had taken place between the claimant and his brother and the defendants merely explored whether both sides could come to a mutually acceptable arrangement. Negotiations as to the terms on which the defendants might be able to remain on the land did not, in themselves, give rise to a licence. Nor did a licence arise on the ground that the claimant had acquiesced in the defendants’ occupation by allowing them to remain and to carry out works without taking steps to evict them until July 2010. That was an estoppel argument by another name and estoppel was not arguable as a matter of law. A proprietary estoppel could arise only if there were an unequivocal representation, on which the defendants relied to their detriment. There had been no such representation and no detriment to the defendants, who, on the contrary, had benefited from their occupation and clearance of the land since they had enjoyed rent-free occupation since March 2010: Thorner v Major [2009] UKHL 18; [2009] 1 WLR 776; [2009] 2 EGLR 111 applied; R (on the application of Beresford) v Sunderland City Council [2003] UKHL 60; [2004] 1 AC 889; [2004] 1 EGLR 94; [2004] 1 PLR 85 distinguished. Work carried out on land by a trespasser, with the knowledge of the landowner, did not, without more, give rise to a licence; trespassers carried out work to land at their own risk.(3) Article 8 of the Convention afforded no additional protection to the defendants in the circumstances of the case. The claimant, as a private landowner, himself had a right to the peaceful enjoyment of his possessions by virtue of Article 1 of the First Protocol to the Convention. Only in a highly exceptional case could the Article 8 rights of defendants who were trespassers justify interference with the protected rights of a landowner under Article 1: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 applied. Although Article 8 applied in principle to cases involving private landowners, it was difficult to envisage a circumstance in which it would have any consequence and in which eviction would not be a proportionate means of achieving a legitimate aim. While the defendants’ use of the land had the support of the local community and was considered to be an asset to that community, the claimant could not be denied his ownership or right to occupy his own land because others found his use of the land to be less acceptable than that made by the trespassing defendants. An order for possession was made accordingly. Naomi Winston (instructed by Burch Phillips & Co, of West Drayton) appeared for the claimant; Lindsay Johnson (instructed by direct access) appeared for the second and third defendants; the other defendants did not appear and were not represented. Sally Dobson, barrister