Possession proceedings — RSC Ord 113 — Whether licensee entitled to possession order
The National Trust was the owner of Arthur’s Wood
in Cheshire. The wood was situated near the proposed second runway at
Manchester Airport. The respondent airport company needed to carry out
obstacle-limitation surface works in the wood in connection with the second
runway. The works included topping, lopping and felling a number of trees, and
the National Trust granted the company a licence in June 1998 to carry out
these works. Prior to the grant of the licence, the appellants entered the wood
as trespassers to prevent these works. In August 1998 the company, which had
not yet gone into the wood under the terms of the licence, commenced
proceedings under RSC Ord 113 on the grounds that it was entitled to possession
and that the persons in occupation had no licence or consent. The appellants
appealed the decision of the judge who upheld the order of the district judge
granting an order of possession to the company.
dismissed (Chadwick LJ dissenting). The company’s claim for possession was not
to be defeated on the grounds that it enjoyed no title or estate to the land,
nor any right of exclusive possession. A licensor not in occupation was
permitted to claim against a trespasser if that remedy was necessary to
vindicate and give effect to the rights of occupation that it enjoyed through
the contract with its licensor. This was the same principle as that allowing a
licensee in de facto possession to evict a trespasser. The principle
applied even though the licensee had no right to exclude the licensor. The
requirements of RSC Ord 113 had been met.
The following cases are
referred to in this report.
Allan v Liverpool
Overseers (1874) LR 9 QB 180
Appah v Parncliffe
Investments Ltd [1964] 1 WLR 1064; [1964] 1 All ER 838, CA
Danford v McAnulty
(1883) 8 AC 456
Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233, Ch
Manchester Corporation v Connolly [1970] 1 Ch 420; [1970] 2 WLR 746; [1970] 1 All
ER 961; (1970) 21 P&CR 154, CA
National Provincial Bank Ltd v Ainsworth [1965] AC 1175; [1965] 3 WLR 1; [1965] 2 All ER
472, HL
Radaich v Smith
[1959] 101 CLR 209
Street v Mountford
[1985] AC 809; [1985] 2 WLR 877; [1985] 2 All ER 289; [1985] 1 EGLR 128;
(1985) 274 EG 821, HL
University of Essex v Djemal [1980] 1 WLR 1301; [1980] 2 All ER 742; (1981) 41
P&CR 340, CA
Wiltshire County Council v Frazer (1984) 47 P&CR 69, CA
Wykeham Terrace, Brighton, ex parte,
Re,Territorial Auxiliary and Volunteer Reserve Association for the South East
Territorial Association v Hales [1971] 1 Ch
204; [1970] 3 WLR 649
This was an appeal by
four of the six named defendants against a decision of Steel J, who had
dismissed an appeal by the defendants against a decision of the district judge,
who had made an order under RSC Ord 113 on an originating summons taken out by
the plaintiff, Manchester Airport plc.
Christopher Maile appeared in person, and on
behalf of the other appellants; Timothy King QC and Mark Forte (instructed by
the solicitor to Manchester Airport plc) represented the respondent.
Giving the first judgment, CHADWICK LJ said: This is an appeal
against an order made on 26 October 1998 by Steel J in Manchester District
Registry. By her order the judge dismissed an appeal by four of the six named
defendants to these proceedings, as originally constituted, against an order
for possession made by the district judge on 18
113 r 6 of the Rules of the Supreme Court 1965. The district judge had ordered
that the plaintiff, Manchester Airport plc (the airport company), recover
possession of a piece of land forming part of Arthur’s Wood, Styal, Cheshire,
in which the named defendants and other persons unknown were said to be
encamped.
The property known as Arthur’s Wood was conveyed
to the National Trust for Places of Historic Interest or Natural Beauty by a
conveyance dated 5 August 1980. It has been common ground in these proceedings
that the National Trust thereby became, and has remained, the owner of that
property. The wood is situated at or near to the proposed second runway for
Manchester Airport. In order to comply with conditions that will govern the
operation of the proposed second runway (when completed), the airport company —
as the operator of Manchester Airport — needs to create an obstacle limitation
surface. That requires, as I understand it, a reduction of height in obstacles
within the flight path. For that purpose, the airport company needs to carry
out certain works (the OLS works) within Arthur’s Wood. Put shortly, the OLS
works appear to involve the lopping or in some cases the felling of trees. The
appellants are opposed to the carrying out of those works on environmental and,
I think, ecological grounds.
On or about 19 June 1998 the appellants or others
entered Arthur’s Wood and set up encampments — including tree-houses, ropewalks
and a tunnel. It is accepted that they did so without licence or permission
from the National Trust and that as against the National Trust they are
trespassers. It may, I think, be inferred that it was, and remains, the
appellants’ intention that their occupation will make it difficult or
impossible for the airport company to carry out the OLS works.
On 22 June 1998, very shortly after the appellants
had taken up occupation within Arthur’s Wood, the National Trust granted a
licence to the airport company. So far as material, the terms of that licence
are contained within the first three clauses:
1. In consideration of the agreements on behalf
of MA hereinafter contained NT gives MA and its contractors and agents licence
to enter and occupy that part of Arthur’s Wood Styal Cheshire shown edged red
on the attached plan (‘the Land’) for the purpose set out in this Agreement.
2. The purpose for which the licence is granted
is to enable the works agreed between the parties and set out in the document
appended hereto and titled ‘Trees affected by Obstacle Limitation Surface —
Arthur’s Wood’
legally or physically fit for the purposes specified in this clause.
3. This Licence shall subsist from the date
hereof until 31st March 1999 provided that if the Works have not been completed
to the satisfaction of the parties by this date this Licence shall be extended
by such reasonable period for the completion of the Works as the parties shall
agree.
The document that is said in clause 2 to be
appended to that licence has not been put in evidence; but the description in
clause 2 suggests that the OLS works are restricted to the topping, lopping or
felling of trees. Clause 5 provides that the licence is personal to the airport
company and that the rights granted shall only be exercised by the airport
company, its contractors and agents.
It was in those circumstances that the airport
company commenced these proceedings on 7 August 1998 by the issue of an
originating summons. The defendants were, as I have indicated, six named
individuals and ‘persons unknown’. The summons is expressed to be a summons
under Ord 113 RSC. The airport company, as plaintiff, sought an order that it
recover possession of the land edged red on the plan annexed to the summons
(being a copy of the plan attached to the licence of 22 June 1998) ‘on the
ground that they are entitled to possession and that the persons in occupation
are in occupation without licence or consent’.
Ord 113 r 1 RSC is in these terms:
Where a person claims possession of land which he
alleges is occupied solely by a person or persons (not being a tenant or
tenants holding over after the termination of the tenancy) who entered into and
remained in occupation without his licence or consent or that of any
predecessor in title of his, the proceedings may be brought by originating
summons in accordance with the provisions of this Order.
The district judge made the order sought. Four of
the six named defendants appealed from that order. The appeal came before Steel
J, sitting in Manchester. Their case was presented to her, as it was in this
Court, by the fourth named defendant, Christopher Maile, in person. Steel J
recorded his principal submission in these terms at p2C-G in the transcript of
her judgment:
The appellant submits that this order [Ord 113 r 1
RSC] is very specific in its terms, and Manchester Airport, the plaintiff in
this case, has no locus standi to apply for such an order [for
possession]. A person who is entitled to claim possession under this order has
to have a title, has to have an absolute title and exclusive possession, and a
licence to occupy, which was granted to the respondents in this case, submits
Mr Maile, from 21 June of this year, does not give exclusive possession to the
airport authority.
The plaintiff, Manchester Airport, as a licensee
concedes in this case that it has no absolute title to the land the subject of
this application. It has no exclusive possession to that land, but on behalf of
the plaintiff it is submitted that it does have the locus standi to
claim possession under Ord 113 r 1 and r 6.
The appellant limits his case to this
comparatively narrow issue of law, that the whole proceedings have been
misconceived.
The judge described Mr Maile’s submission as a
narrow but important proposition of law. She expressed her conclusion in these
terms, at pp15E-16B of her judgment:
I am satisfied, as was the district judge, that
as a licensee, although they have no absolute title or exclusive possession, in
this case the plaintiff has the locus standi to bring these proceedings,
and that is determined by the nature of the rights that were granted to the
plaintiff, a right to occupy. The licence gives the right of possession and
this is, I am satisfied, a right of possession that does not give an absolute
title, but it does nevertheless give a power against trespassers. That is very
different from the position of proving possession against those with an
interest in the property. It is not in issue that the defendant and others in
this case are trespassers on this land. They do not in this case claim an
interest in the property. I am satisfied that this licence gives the respondent
power to seek possession against trespassers. Also that the Ord 113 procedure
by originating summons was the correct means by which the plaintiff sought to claim
that power.
The judge dismissed the appeal. It is from that
order that the four appellants appeal to this court. The issue, as defined by
the grounds set out in the notice of appeal, is in substance the same as that
before the judge: whether the licence granted to the airport company by the
National Trust on 22 June 1998 gave the airport company an interest in the land
sufficient to enable it to seek an order for possession under the summary
procedure contained in Ord 113 RSC.
Ord 113 was introduced in 1970 (by SI 1970 No
944), shortly after the decision of this court in Manchester Corporation
v Connolly [1970] 1 Ch 420. It had been held in that appeal that the
court had no power to make an interlocutory order for possession. Ord 113
provides a summary procedure by which a person entitled to possession of land
can obtain a final order for possession against those who have entered into or
remained in occupation without any claim of right — that is to say, against
trespassers. The order does not extend or restrict the jurisdiction of the
court. In University of Essex v Djemal [1980] 1 WLR 1301 Buckley
LJ explained the position in these terms at p1304D-E:
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 an owner of
property to the possession of the whole of his property, uninterfered with by
unauthorised adverse possession.
As that passage makes clear, Buckley LJ made those
remarks in the context of a claim by the owner of the relevant property. The
question in Djemal was whether the university could obtain an order
excluding those involved in a student protest from the whole of the campus; or
only from such part of the campus actually in their occupation, as the judge
had held in the court below. He was not addressing the question that arises in
the present case: whether the plaintiff had a right to possession at all. But
it is plain from his remarks that he would have taken the view that that was a
question that had to be determined under the general law. If the right does not
exist under the general law, there is nothing in the new procedure introduced
in Ord 113 RSC that can have the effect of conferring that right.
An order for possession, if made under Ord 113
RSC, must be in the form prescribed by r 6(2) — that is to say in form 42A in
Annex A to the RSC 1965. The court orders that the plaintiff do recover
possession of the land described in the originating summons. An order in that
form is an order in rem, enforceable by a writ of possession. The nature
of a writ of possession was explained by Lord Diplock in Manchester
Corporation v Connolly at pp428H-429D:
The writ of possession was originally a common
law writ (although it is now regulated, as I say, by Ord 45 r 3) under which it
was ordered that the plaintiff recover possession of the land. Like other
common law remedies it did not act in personam against the defendant. It
authorised the executive power as represented by the sheriff to do certain
things, perform certain acts, in this particular case to evict from land persons
who are there and deliver possession of the land to the plaintiff.
A writ of possession to enforce an order made
under Ord 113 r 6 must be in form 66A of the prescribed forms — see Ord 113 r
7(2). The writ is addressed to the sheriff; it recites that it has been ordered
that the plaintiff do recover possession of the land; and it commands the
sheriff ‘that you enter upon the said land and cause [the plaintiff] to have
possession of it’. A writ in that form has been issued in the present
proceedings, but is stayed pending the outcome of this appeal.
It is against that background that I consider the
question whether the airport company has shown that it has a right to
possession of the relevant part of Arthur’s Wood that is of the quality
necessary to support the order for possession made in these proceedings and the
writ of possession issued consequent upon that order. It is essential to keep
in mind that it is not contended by the airport company that it is, or ever has
been, in actual possession of the wood (or of any part of it) to the exclusion
of the appellants. It has been common ground that the appellants had entered
the wood and encamped there before the licence of 22 June 1998 was granted.
This is not a case in which the
from which it has been ousted. The airport company must rely on the title (if
any) which it derives under the licence.
It is relevant, also, to have in mind that it has
not been contended by the appellants that, in appropriate circumstances, the
airport company might not be entitled to a personal remedy against one or more
of them; for example, a remedy by way of injunction to restrain them,
individually, from interfering with the carrying out of the OLS works under the
terms of the licence. There have been no claims for injunctions in the present
proceedings — for reasons that are understandable in the circumstances — and
the availability or otherwise of remedies in personam is not in issue on
this appeal. The issue is whether the rights that the airport company acquired
under the licence of 22 June 1998 enable it to evict the appellants from the
wood with the assistance of the sheriff under a writ of possession.
It is necessary to consider first the powers of
the National Trust in relation to the grant of that licence. The National Trust
is a statutory corporation, established by the National Trust Act 1907, for the
purposes of promoting the permanent preservation for the benefit of the nation
of lands and buildings of beauty or historic interest and, as regards lands,
the preservation (so far as practicable) of their natural aspect, features and
animal and plant life — see section 4 of that Act. The power of the National
Trust to acquire land must, in the absence of some specific power such as that
conferred by section 4 of the National Trust Act 1937 (power to acquire land to
hold for investment purposes), be a power to acquire that land for the purposes
of promoting its permanent preservation for the benefit of the nation. That is
the statutory objective to which, prima facie, the power to acquire land
is ancillary. There has been no suggestion in the present case that Arthur’s
Wood was acquired for any purpose other than its permanent preservation for the
benefit of the nation. Land that is acquired for that purpose is inalienable —
see section 21(2) of the Act of 1907.
Section 12 of the National Trust Act 1939 is in
these terms, so far as material:
Notwithstanding anything in section 21… of the
Act of 1907… the National Trust may grant any easement or right (not including
a right to the exclusive possession of the surface) over or in respect of any
property made inalienable by or under the said section…
It is plain, therefore, that the licence of 22
June 1998, whatever its terms, could not confer on the airport company a right
to exclusive possession of the surface of Arthur’s Wood. It could not do so
because the National Trust had no power to grant such a right. The airport
company does not contend otherwise. In those circumstances the question is
whether some right enjoyed by the airport company under the licence of 22 June
1998 (being a right less than a right to exclusive possession) can be the basis
for an order for possession — that is to say, for an order in rem — made
under Ord 113 RSC.
It has long been understood that a licensee who is
not in exclusive occupation does not have title to bring an action for
ejectment. The position of a non-exclusive occupier was explained by Blackburn
J in Allan v Liverpool Overseers (1874) LR 9 QB 180, at p191, in
a passage cited by Davies LJ in this court in Appah v Parncliffe
Investments Ltd [1964] 1 WLR 1064 at pp1069-1070 and by Lord Templeman in
the House of Lords in Street v Mountford [1985] AC 809*, at
p818B-C. The question in Allan v Liverpool Overseers was whether
a steamship company was liable to be rated in respect of its occupation of
certain sheds that it occupied under licence from the Mersey Docks and Harbour
Board. As Blackburn J pointed out, liability for rates fell on a person who had
exclusive occupation. He said:
The poor-rate is a rate imposed by the statute on
the occupier, and that occupier must be the exclusive occupier, a person who,
if there was a trespass committed on the premises, would be the person to bring
an action of trespass for it. A lodger in a house, although he has the
exclusive use of rooms in the house, in the sense that nobody else is to be
there, and although his goods are stored there, yet he is not in exclusive
occupation in that sense, because the landlord is there for the purpose of
being able, as landlords commonly do in the case of lodgings, to have his own
servants to look after the house and the furniture, and has retained to himself
the occupation, though he has agreed to give the exclusive enjoyment of the
occupation to the lodger. Such a lodger could not bring ejectment or trespass quare
clausum fregit, the maintenance of the action depending on the possession;
and he is not rateable.
*Editor’s note: Also reported at [1985] 1 EGLR
128; (1985) 274 EG 821
That passage, as it seems to me, provides clear
authority for the proposition that an action for ejectment — the forerunner of
the present action for recovery of land — as well as an action for trespass can
only be brought by a person who is in possession or who has a right to be in
possession. Further, that possession is synonymous, in this context, with
exclusive occupation — that is to say occupation (or a right to occupy) to the
exclusion of all others, including the owner or other person with superior
title (save in so far as he has reserved a right to enter).
The position of a licensee has received attention
in the context of the statutory protection afforded to residential occupiers.
Mr Maile referred us to well-known passages in the speech of Lord Templeman in Street
v Mountford [1985] AC 809. The question, in that case, was whether the
rights conferred on the occupier of rooms by an agreement described as a
licence were such that the occupier had a tenancy protected by the Rent Acts.
Lord Templeman referred to what he described as the traditional view at
p816B-D:
The traditional view that the grant of exclusive
possession for a term at a rent creates a tenancy is consistent with the
elevation of a tenancy into an estate in land. The tenant possessing exclusive
possession is able to exercise the rights of an owner of land, which is in the
real sense his land albeit temporarily and subject to certain restrictions. A
tenant armed with exclusive possession can keep out strangers and keep out the
landlord unless the landlord is exercising limited rights reserved to him by
the tenancy agreement to enter and view and repair. A licensee lacking
exclusive possession can in no sense call the land his own and cannot be said
to own any estate in the land. The licence does not create any estate in the
land to which it relates but only makes an act lawful which would otherwise be
unlawful.
He went on, at p816F-G, to give an example germane
to the facts in the present case:
My Lords, there is no doubt that the traditional
distinction between a tenancy and a licence of land lay in the grant of land
for a term at a rent with exclusive possession. In some cases it was not clear
at first sight whether exclusive possession was in fact granted. For example,
an owner of land could grant a licence to cut and remove standing timber.
Alternatively the owner could grant a tenancy of the land with the right to cut
and remove standing timber during the term of the tenancy. The grant of rights
relating to standing timber therefore required careful consideration in order
to decide whether the grant conferred exclusive possession of the land for a
term at a rent and was therefore a tenancy or whether it merely conferred a
bare licence to remove the timber.
In the present case, the question is not whether
the agreement of 22
create a tenancy, for it is a gratuitous agreement under which no rent is
payable. Nor, in the present case, is the question whether the airport company,
as occupier under a licence, has exclusive possession or a right to exclusive
possession. That question is determined by the inability of the National Trust,
in the exercise of its statutory powers, to grant a right to exclusive
possession. The question is whether a person who has a right to occupy under a licence
but who does not have any right to exclusive possession can maintain an action
to recover possession. But, in that context, the observations of Windeyer J in
the High Court of Australia, in Radaich v Smith [1959] 101 CLR
209 at p222, adopted with approval by Lord Templeman in Street v Mountford
at p827, are of relevance:
What then is the fundamental right which a tenant
has that distinguishes his position from that of a licensee? It is an interest
in land as distinct from a personal permission to enter the land and use it for
some stipulated purpose or purposes. And how is it to be ascertained whether
such an interest in land
exclusive possession of the land for a term or from year to year or for a life
or lives… A right of exclusive possession is secured by the right of a lessee
to maintain ejectment and, after his entry, trespass… All this is long
established law: see Cole on Ejectment (1857) pp72, 73, 287, 458.
The lessee, having a right to exclusive
possession, could, before entry into possession, maintain an action for
ejectment. A licensee, if he did not have a right to exclusive possession,
could not bring ejectment. A tenant or a licensee who was in actual possession
— that is to say, in occupation in circumstances in which he had exclusive
possession in fact — could maintain an action for trespass against intruders;
but that is because he relied on the fact of his possession and not on his
title.
The licence in the present case, as it seems to
me, is a clear example of a personal permission to enter the land and use it
for some stipulated purpose. In my view, it would be contrary to what Windeyer
J described as ‘long established law’ to hold that it conferred on the airport
authority rights to bring an action in rem for possession of the land to
which it relates.
Faced with what may be stigmatised as the
traditional view, Mr
sought to persuade us that the law as to the recovery of possession was in a
state of change or development. He submitted that it was no longer necessary to
establish a right to exclusive possession in order to maintain an action for
ejectment. There was now a concept of ‘relative possession’. He referred to the
view expressed by the editors of Clerk & Lindsell on Torts (17th ed,
1995), when commenting upon the passage in the judgment of Blackburn J in Allan
v Liverpool Overseers, which I have set out. They observe, at p848 para
17-18:
The typical Victorian lodger described above by
Blackburn J as having non-exclusive possession has to be distinguished from the
typical modern occupational licensee, for ‘in recent years it has been
established that a person who has no more than a licence may yet have possession
of the land’ and the terms of the licence may confer a sufficient right of
possession.
The quotation is from the judgment of Megarry J in
Hounslow London Borough Council v Twickenham Garden Developments Ltd
[1971] Ch 233 at p257 to which I shall return. But it is important to set the
passage that I have just cited in context. The question addressed in that
passage is not the question in this case. The question there addressed is
whether a licensee who is in actual occupation may have the protection of the
law of trespass against intruders; not whether he can rely on his title to
evict a trespasser who is already on the property. This appears from the first
two sentences of para 17-18:
It would seem that exclusive possession against
the landlord as a test for the nature of the occupant’s interest is not
conclusive as to the occupant’s possessory interest vis-à-vis third
parties. The terms of an occupational licence may give the licensee such a
degree of control over access as to entitle him to the protection of the law of
trespass against intruders.
It is this concept that, as it seems to me, Lord
Upjohn had in mind when he said, in National Provincial Bank Ltd v Ainsworth
[1965] AC 1175 at p1232C-D:
Furthermore… the [deserted] wife’s occupation is
not exclusive against the deserting husband for he can at any moment return and
resume the role of occupier without the leave of the wife. Nevertheless, I
cannot seriously doubt that in this case in truth and in fact the wife at all
material times was and is in exclusive occupation of the home. Until her
husband returns she has dominion over the house and she could clearly bring
proceedings against trespassers; so I shall for the rest of this opinion assume
that the wife was and is in exclusive occupation of the matrimonial home at all
material times.
Mr King QC placed much reliance on that passage
but, to my mind, it is of no assistance to his argument. I would accept without
hesitation that a deserted wife who has remained in occupation of the former
matrimonial home after the departure of her husband has exclusive occupation in
the sense required to bring an action against intruders; but that is because
her occupation has the necessary possessory quality and she does not need to
rely upon her title. I would not accept — and I do not think that Lord Upjohn
was intending to suggest — that a deserted wife who goes out of occupation upon
or after the departure of her husband has title to bring an action to recover
possession against a squatter who goes into occupation of the empty house.
Nor do I think that the airport company gains
assistance from the decision of Megarry J in Hounslow London Borough Council
v Twickenham Garden Developments Ltd [1971] Ch 233. The defendant, a
building contractor, had been allowed into occupation of a site owned by the
plaintiff council under a building contract. The council had sought to
determine the contract by notice under its terms. The contractor refused to
vacate the site. The council brought proceedings for injunctions restraining
the contractor from ‘entering, remaining or otherwise trespassing’ on the site.
Megarry J explained the position at p268F-G:
The contractor is in de facto control of
the site, and whether or not that control amounts in law to possession, the
injunction would in effect expel the contractor from the site and enable the
borough to reassert its rights of ownership.
Megarry J refused to grant what he regarded as a
mandatory injunction on an interlocutory application because he was not
satisfied that the council had made out a sufficiently strong case for that
remedy in advance of trial. But, in the course of his judgment, he considered a
submission that the contractor was in possession of the site — in which case
the injunctions sought would clearly have been inappropriate. In that context
he said at p257C-E:
I do not think that I have to decide these or a
number of other matters relating to possession. First, I am not at all sure
that the matter is determined by the language of the contract. It is in a
standard form [containing RIBA conditions], and may be used in a wide variety
of circumstances. In some, the building owner may be in manifest possession of
the site, and may remain so, despite the building operations. In others, the
building owner may de facto, at all events, exercise no rights of
possession or control, but leave the contractor in sole and undisputed control
of the site. Second, in recent years it has been established that a person who
has no more than a licence may yet have possession of the land. Though one of
the badges of a tenancy or other interest in land, possession is not
necessarily denied to a licensee.
The reference, in a judgment delivered in 1971, to
the fact that ‘in recent years it has been established that a person who has no
more than a licence may yet have possession of the land’ was, I think, a
reference to the dichotomy, finally put to rest by the decision of the House of
Lords in Street v Mountford, between ‘licence’ and ‘tenancy’ in
the context of the Rent Acts. There is no doubt that a licensee may have a
right to exclusive possession without thereby becoming a tenant — for example,
where the licence is gratuitous — but that will depend on the terms of the
licence. In any event, that is not this case. The licence of 22
does not confer any right to exclusive possession. Further, a contractor who
enters a site under a building contract may, on the facts, take possession of
the site; but, as Megarry J held, that will require an examination of the
facts.
The National Trust is not party to these
proceedings and has taken no direct part in them. But the airport company has
put in evidence: (i) a letter dated 15 August 1998 from George Davies & Co,
solicitors for the National Trust; and (ii) an affidavit sworn on 24 September
1998 by the area manager, Cheshire and Greater Manchester, of the National
Trust. The letter of 15 August 1998 refers to the licence of 22 June 1998 and
continues in these terms:
We also confirm that it has been agreed that
Manchester Airport plc will be responsible for the provision of security
measures including security, fencing and patrols in relation to Arthur’s Wood
to prevent the intrusion by protesters or other trespassers and for the
eviction of any such protesters or trespassers. In addition, Manchester Airport
plc are entitled to control access and egress to the part of Arthur’s Wood as
licensed.
The area manager deposes:
The licence itself clearly gives the Airport a
right to occupy as well as enter the specified site. The terms of occupation
have always been understood to
does not at present nor does it intend to play any part in the day to day works
or the ground control of the site although reserve the right as licensor to
enter should the need arise. Such control is presently effected by Manchester
Airport plc and shall be for the duration of the licence, subject to extension.
If the letter of 15 August 1998 and the subsequent
affidavit are intended to do no more than set out the National Trust’s views as
to the legal effect of the licence dated 22 June 1998, they are, as it appears
to me, of no assistance. The legal effect of a written document is a matter for
the court that has to give effect to its terms. The ‘right as licensor to enter
should the need arise’ is not reserved in any express term of the licence; it
exists, in my view, because the licence grants no right of possession that
would enable the airport company to exclude the National Trust. The right to
control access to and egress from the site is not mentioned in the licence; nor
is there in the licence any mention of responsibility for security measures. It
is, I think, to be inferred that these are matters that are said to have been
agreed between the National Trust and the airport company subsequent to the
grant of the licence. It may be that they owe something to the solicitors’
researches into Clerk & Lindsell after the present problems first
arose. But I do not myself find it possible to give them any weight. They are,
as it seems to me, equivocal. They are consistent with an arrangement under
which the airport company is to act as the agent of the National Trust in
relation to the security of the site. They are not of themselves evidence as to
the existence of any right to possession or title having been granted to the
airport company; a fortiori, in circumstances in which the power of the
National Trust to grant such a right is circumscribed by statute.
There was no material in the present case on which
the judge could reach the conclusion that the airport company was in de
facto possession of the relevant part of Arthur’s Wood; and, for my part, I
do not think that she did reach that conclusion. She treated the question as
one that turned on the construction of the licence. In my view, the judge was
in error when she held, in the passage at p15G of her judgment to which I have
already referred, that:
The licence gives the right of possession and
this is, I am satisfied, a right of possession that does not give absolute
title, but it does nevertheless give a power against trespassers.
She did not make the distinction, essential in
cases of this nature, between a plaintiff that is in possession and that seeks
protection from those that seek to interfere with that possession; and a
plaintiff that has not gone into possession but that seeks to evict those that
are already on the land. In the latter case (which is this case) the plaintiff
must succeed by the strength of his title; not on the weakness (or lack) of any
title in the defendant.
I would have allowed this appeal.
Giving his judgment, LAWS LJ said: I gratefully adopt the account of the facts
set out in the judgment of Chadwick LJ. As there appears, the appellants or
others (to whom I will compendiously refer as the trespassers) entered Arthur’s
Wood and set up their encampments before the grant of the licence by the
National Trust to the respondent. Moreover, it appears (and I will assume it
for the purpose of the appeal) that the respondent has not to date gone into
occupation of the land under the licence.
In those circumstances, the question that falls
for determination is whether the respondent, being a licensee that is not de
facto in occupation or possession of the land, may maintain proceedings to
evict the trespassers by way of an order for possession. Now, I think it is
clear that if the respondent had been in actual occupation under the licence
and the trespassers had then entered on the site, the respondent could have
obtained an order for possession; at least if it was in effective control of
the land. Clause 1 of the licence confers a right to occupy the whole of the
area edged red on the plan. The places where the trespassers have gone lie
within that area. The respondent’s claim for possession would not, were they in
occupation, fall, in my judgment, to be defeated by the circumstance that they
enjoy no title or estate in the land, nor any right of exclusive possession as
against their licensors (which the National Trust had no power to grant). This,
as it seems to me, is in line with the passage in Lord Upjohn’s speech in National
Provincial Bank Ltd v Ainsworth [1965] AC 1175 at p1232C-D, which
Chadwick LJ has already cited, and is supported by the judgment of Megarry J in
Hounslow London Borough Council v Twickenham Garden Developments Ltd
[1971] Ch 233; and it is clearly consonant with the view of the editors of Clerk
& Lindsell on Torts (17th ed, 1995), para 17-18. Nor, I think, would
such a claim be defeated by the form of possession order required in Ord 113
proceedings (form 42A) or by the prescribed form of the writ of possession
(form 66A). As Chadwick LJ has said, the writ commands the sheriff ‘that you
enter upon the said land and cause [the plaintiff] to have possession of it’.
If the respondent were in de facto occupation of the site, such an order
would be perfectly appropriate as against the trespassers, notwithstanding that
the order for possession is said to be a remedy in rem.
But if the respondent, were it in actual
occupation and control of the site, could obtain an order for possession
against the trespassers, why may it not obtain such an order before they
enter into occupation, so as to evict the trespassers and enjoy the licence
granted to them? As I understand it, the principal objection to the grant of
such relief is that it would amount to an ejectment, and ejectment is a remedy
available only to a party with title to or estate in the land; which as a mere
licensee the respondent plainly lacks. It is clear that this was the old law:
see the passages from Cole on Ejectment (1857) cited in the High Court
of Australia by Windeyer J in Radaich v Smith [1959] 101 CLR 209
at p222, in a passage agreed to by Lord Templeman in Street v Mountford
[1985] AC 809 at p827, to which Chadwick LJ has made reference.
However, in this I hear the rattle of medieval
chains. Why was ejectment only available to a claimant with title? The answer,
as it seems to me, lies in the nature of the remedy before the passing of
Common Law Procedure Act 1852. Until then, as Cole vividly describes it in
chapter 1 at pp1-2:
actions of ejectment were in point of form pure
fictions… The action was commenced… by a declaration, every word of which
was untrue: [Cole’s emphasis] it alleged a lease from the claimant
to the nominal plaintiff (John Doe); an entry by him under and by
virtue of such lease; and his subsequent ouster by the nominal defendant
(Richard Roe): at the foot of such declaration was a notice addressed to
the tenants in possession, warning them, that, unless they appeared and
defended the action within a specified time, they would be turned out of
possession. This was the only comprehensible part to a non‑professional
person… and (curiously enough) the only matter in issue was a fact or point not
alleged in the declaration, viz whether the claimant on the day of the
alleged demise, and from thence until the service of the declaration, was entitled
to demise the property claimed or any part thereof; ie whether he
was himself then legally entitled to actual possession, and consequently to
dispose of such possession; if not, it is obvious that the defendants might
very safely admit that he did in fact make the alleged demise…
The whole proceeding was an ingenious fiction,
dextrously contrived so as to raise in every case the only real question, viz
the claimant’s title or right of possession… and whereby the delay and expense
of special pleadings and the danger of variances by an incorrect statement of
the claimant’s title or estate were avoided. But it was objectionable, on the
ground that fictions and unintelligible forms should not be used in courts of
justice; especially when the necessity for them might be avoided by a simple
writ so framed as to raise precisely the same question in a true, concise, and
intelligible form. This has been attempted with considerable success in The
Common Law Procedure Act, 1852.
The Act of 1852 introduced a simplified procedure
without fictions. The form of writ prescribed by sections 168-170 of the Act
required an allegation that the plaintiff was ‘entitled [to possession] and to
eject all other persons therefrom’. Section 207, however, provided:
The effect of a judgment in an action of
ejectment under this Act shall be the same as that of a judgment in the action
of ejectment heretofore used.
Blackstone, in book III, chapter 11 at pp202-203,
confirms the earlier fictional character of the procedure:
as much trouble and formality were found to
attend the actual making of the lease, entry, and ouster,
a new and more easy method of trying titles by writ of ejectment, where there
is any actual tenant or occupier of the premises in dispute, was invented
somewhat more than a century ago, by the Lord Chief Justice Rolle, who then sat
in the court of upper bench; so called during the exile of King Charles
the Second. The new method depends upon a string of legal fictions: no actual
lease is made, no actual entry by the plaintiff, no actual ouster by the
defendant; but all are merely ideal, for the sole purpose of trying the title.
The lesson to be learnt from these ancient forms
is that the remedy by way of ejectment was by definition concerned with
the case where the plaintiff asserted a better title to the land than the
defendant; and the fictions, first introduced in the latter half of the 16th
century and in effect maintained until 1852, were designed to cut out the
consequences of pleading points that might be taken if the plaintiff did not
plead his case as to the relevant legal relationships with complete accuracy.
Chief Justice Rolle’s manoeuvre, and more so the Act of 1852, were in their way
ancestors of the Access to Justice reforms to civil procedure, which will come
into effect on 26 April 1999.
In my judgment, the old learning demonstrates only
that the remedy of ejectment was simply not concerned with the potential rights
of a licensee: a legal creature who, probably, rarely engaged the attention of
the courts before 1852 or for some time thereafter. It is no surprise that
Blackburn J in Allan v Liverpool Overseers (1874) LR 9 QB
180, dealing with a question whether a licensee of docks premises was liable to
rates, stated at p191:
A lodger in a house… is not in exclusive
occupation… because the landlord is there for the purpose of being able… to
have his own servants to look after the house… Such a lodger could not bring
ejectment or trespass quare clausum fregit, the maintenance of the
action depending on the possession; and he is not rateable.
As one might expect, this is wholly in line with
the old law. But I think there is a logical mistake in the notion that because
ejectment was only available to estate owners, possession cannot be available
to licensees who do not enjoy de facto occupation. The mistake inheres
in this: if the action for ejectment was by definition concerned only
with the rights of estate owners, it is necessarily silent upon the question of
what relief might be available to a licensee. The limited and specific nature
of ejectment means only that it was not available to a licensee; it does not
imply the further proposition that no remedy by way of possession can
now be granted to a licensee not in occupation. Nowadays there is no distinct remedy
of ejectment; a plaintiff sues for an order of possession, whether he is
himself in occupation or not. The proposition that a plaintiff not in
occupation may only obtain the remedy if he is an estate owner assumes that he
must bring himself within the old law of ejectment. I think it is a false
assumption.
I would hold that the court today has ample power
to grant a remedy to a licensee that will protect but not exceed his legal
rights granted by the licence. If, as here, that requires an order for possession,
the spectre of history (which, in the true tradition of the common law, ought
to be a friendly ghost) does not stand in the way. The law of ejectment has no
voice in the question; it cannot speak beyond its own limits. Cases such as Radaich
v Smith and Street v Mountford were concerned with the
distinction between licence and tenancy, which is not in question here.
In my judgment, the true principle is that a
licensee not in occupation may claim possession against a trespasser if that is
a necessary remedy to vindicate and give effect to such rights of occupation as
by contract with his licensor he enjoys. This is the same principle as allows a
licensee who is in de facto possession to evict a trespasser. There is
no respectable distinction, in law or logic, between the two situations. An
estate owner may seek an order whether he is in possession or not. So, in my
judgment, may a licensee, if other things are equal. In both cases, the
plaintiff’s remedy is strictly limited to what is required to make good his
legal right. The principle applies although the licensee has no right to
exclude the licensor himself. Elementarily, he cannot exclude any occupier who,
by contract or estate, has a claim to possession equal or superior to his own.
Obviously, however, that will not avail a bare trespasser.
In this whole debate, as regards the law of
remedies in the end I see no significance as a matter of principle in any
distinction drawn between a plaintiff whose right to occupy the land in
question arises from title and one whose right arises only from contract. In
every case the question must be, what is the reach of the right, and whether it
is shown that the defendant’s acts violate its enjoyment. If they do, and (as
here) an order for possession is the only practical remedy, the remedy should
be granted. Otherwise the law is powerless to correct a proved or admitted
wrongdoing; and that would be unjust and disreputable. The underlying principle
is in the Latin maxim (for which I make no apology), ‘ubi ius, ibi sit
remedium‘.
In all these circumstances, I consider that the
judge below was right to uphold the order for possession. I should add that, in
my view, there is as a matter of fact here no question of the writ of
possession interfering with the prior rights of the National Trust; so much is
demonstrated by the letter from the Trust’s solicitors of 15 August 1998 and
the affidavit of the Trust’s area manager of 24 September 1998. These materials
have already been set out by Chadwick LJ. With deference to his contrary view,
I would attach some importance to them. I agree, of course, that they do not
qualify the terms of the licence; but they seem to me to show, as a matter of
evidence, that execution of the writ of possession granted in the respondent’s
favour would not on the facts infringe any claims or obstruct any acts on the
land by the licensor or anyone claiming under it.
For all the reasons I have given, I would dismiss
this appeal.
Giving his judgment, KENNEDY LJ said: The wording of Ord 113 and the relevant
facts can be found in the judgment of Chadwick LJ. In Wiltshire County
Council v Frazer (1984) 47 P&CR 69 Stephenson LJ said at p76
that for a party to avail himself of the order he must bring himself within its
words. If he does so, the court has no discretion to refuse him possession.
Stephenson LJ went on at p77 to consider what the words of the rule require.
They require:
(1) of the plaintiff, that he should have a right
to possession of the land in question and claim possession of land which he
alleges to be occupied solely by the defendant. (2) That the defendant, whom he
seeks to evict from his land [the land] should be persons who have entered into
or have remained in occupation of it without his licence or consent [or that
any predecessor in title of his].
In my judgment, those requirements are met in this
case. The plaintiff does have a right to possession of the land granted to it
by the licence. It is entitled ‘to enter and occupy‘ (my emphasis) the
land in question. The fact that it has only been granted the right to enter and
occupy for a limited purpose (specified in para 2 of the licence) and that, as
I would accept, the grant does not create an estate in land giving the
plaintiff a right to exclusive possession does not seem to me to be critical.
What matters, in my judgment, is that the plaintiff has a right to possession
that meets the first of the requirements set out by Stephenson LJ, and the
defendants have no right that they can pray in aid to justify their continued
possession. If it is said that such an approach blurs the distinction between
different types of right and different types of remedy, it seems to me that is
the effect of the wording of Ord 113, and the understandable object of the law
has always been to grant relief to a plaintiff seeking possession who can rely
on a superior title. In Danford v McAnulty (1883) 8 AC 456 Lord
Blackburn said, at p462, that:
in ejectment, where a person was in possession
those who sought to turn him out were to recover upon the strength of their
own title; and consequently possession was at law a good defence against
anyone, and those who sought to turn the man in possession out must shew a
superior legal title to his.
(Emphasis added.)
That case was not, of course, concerned with a
licence to occupy for a limited purpose but the emphasis on giving a remedy to
the party who has a better right seems to me to be instructive.
The decision in Re Wykeham Terrace, Brighton
[1971] 1 Ch 204 demonstrated the weakness of the procedure prior to the
existence of Ord 113. On an ex parte application the court was unable to
enter judgment or make a final order against unnamed squatters who were not a
party to the proceedings. Stamp J at p212G observed that:
No doubt a different, and perhaps a better
process… could be provided to meet particular cases and more particularly a
case where unknown persons are in occupation of land claimed by the plaintiff.
Ord 113 was then drafted and came into operation
on 20 July 1970. As I have already said, it does not, in my judgment, require
of a plaintiff that he demonstrate a right to exclusive possession and
therefore, as it seems to me, it need not be confined to giving protection to
those who can demonstrate that they possess an estate in land. If it is
approached in that way then, as it seems to me, decisions such as Street v
Mountford [1985] AC 809, on which Mr Maile relied, no longer give rise
to any difficulty, and the court is able to give a remedy in a situation in
which a remedy plainly ought to be provided.
For those reasons, in addition to those set out in
the judgment of Laws LJ, I would dismiss this appeal.
Appeal dismissed.
