Squatters cannot defeat a warrant for possession by switching squats–Once a warrant is obtained in duly constituted proceedings, the bailiff must give the landlord possession no matter who is on the premises
This was an
application by Wandsworth Borough Council for an order of mandamus requiring
the registrar of Wandsworth County Court to execute a warrant for possession
against the person then occupying land at 65 Stainforth Road, Battersea, London
SW11, one Mr Glyn Chorley.
Mr C
Ross-Munro QC and Miss B Dohmann (instructed by the solicitor to the council)
appeared for the applicants, and Mr D R Watkinson (instructed by M C Sherwood,
Balham Neighbourhood Law Centre) represented Mr Chorley. The registrar took no
part in the proceedings.
Giving
judgment LORD WIDGERY said that the case was important because the issue was
one on which opinions appeared to have differed, although the court did not
find it difficult. The council had acquired the freehold of 65 Stainforth Road
some time before the events to be described. On or about February 8 1975 a Mr
and Mrs Heron entered the premises and squatted there without permission. The
council took steps to turn them out on the footing that their occupation was
unlawful. Until recently, by the rules of the county court and the High Court,
it was difficult to bring proceedings against unidentifiable people and the
possibility of successful proceedings against them was remote. The rules had
been changed, and order 26 of the county court rules set out new procedure to
deal with such situations. A form of application was authorised to be used to
obtain possession against people remaining in possession without licence. The
order stated that if a landlord could not identify people despite all
reasonable steps to identify them, he could proceed with the application
without naming them in it. In the case before the court the council knew the
Herons were there and they named Mr and Mrs Heron as being in occupation. The
application said that the council applied to the court for an order for
recovery of possession of the premises on the ground that they were entitled to
possession and that the persons in occupation were there without licence or
consent.
At the county
court hearing on May 5 the Herons were present together with a Mr Denne (or
Dunne) and a Mr McGrath, who were joined in the proceedings at their own
request. They said that they, too, were living in the house and they wanted to
be joined in order to be heard. The judge made an order for possession in Form
400 of the county court forms. This was much simpler than the form existing
before order 26. It stated: ‘It is ordered that the applicants . . . do recover
possession of the land mentioned in the originating application in this
matter.’ Order 26, rule 6 (2) provided
that the form of warrant to follow should be in Form 401. This was also in
simple form, reciting the court’s order and continuing, ‘You are therefore required
to give possession of the said land to the applicant.’ The ‘you’ was the bailiff. The warrant
authorised him to turn out people, and not only authorised the bailiff to put
the applicants back in possession but required him so to do. The bailiff went
down to execute the warrant and found on the premises not the Herons, Mr Denne
(or Dunne) or Mr McGrath, who had all gone elsewhere, but a Mr Glyn Chorley and
his four children. There was no dispute that Mr Chorley had no legal right to
be there, that he was a squatter like the others, and that he and others had
switched premises from time to time to keep ahead of the law. The sole question
for the court was whether the bailiff should have gone ahead and turned out Mr
Chorley or whether he should have done what he in fact did–report back to the
court registrar that there was a man in possession of the premises who had not
been a party to the proceedings. The registrar, bowing to the majority of
previous decisions by fellow registrars throughout the country, decided that
where a bailiff went to obtain possession of the premises under an order 26
warrant and found in possession a person who was not a party to the proceedings
he must leave that person in possession and await further proceedings against
him.
It was said
for the council that the proposition that a warrant for possession under order
26 could not be executed except against people named and their wives and
dependants was false, and that the warrant could be executed against Mr
Chorley. If this were wrong, the identity of the squatter could be changed more
quickly than the landlord could bring proceedings, so that the landlord would
always be one lap behind. It was submitted that as far back as 1589 there was
authority that a bailiff’s or sheriff’s warrant was authority to evict everyone
he found on the premises: see Upton and Wells Case (1589) 1 Leo 145. But
one need not depend entirely on authority of that antiquity, because there were
two recent cases which were of assistance. The first was In re Wykeham
Terrace [1971] Ch 204, which was decided before the new procedure in order
26 or order 113 of the Rules of the Supreme Court came into force. Although
Stamp J held that the landlord was defeated in that case by his inability to
identify the persons against whom to commence proceedings, he (the judge)
clearly accepted that when matters had once got to the stage of a writ of
possession the sheriff or bailiff would be bound to turn out those he found
upon the land whether or not they were bound by the judgment. Similar words
were used by Lord Denning in the second recent case, McPhail v Persons,
Names Unknown [1973] Ch 447 at 458, which was decided after the new orders
had come into force. Lord Denning said that the court’s order was an order that
the plaintiff ‘do recover possession.’
That order could be enforced by a writ of possession immediately. ‘It is
an authority under which anyone who is squatting on the premises can be turned
out at once. There is no provision for giving any time.’
He (Lord Widgery)
had come to the conclusion that there never had been authority for the
proposition that a bailiff enforcing a warrant for possession had to refrain
from evicting someone found on the premises merely because he was not
a party to the proceedings. He (his Lordship) would have been astonished had
that been so since the new orders came into force because it would clearly have
made them completely ineffective. But the answer was not that order 26 had
altered the law in this respect. The fact was that it had always been lawful
for the sheriff in the enforcement of a warrant for possession to turn out
people in possession even though they had not been parties to the proceedings.
The registrar should accordingly have told the bailiff to levy execution of the
warrant against Mr Chorley in the present case, and mandamus would go with a
direction to that effect.
MILMO and WIEN
JJ agreed, and the application was granted. No order was made as to costs.
