|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Malik v Fassenfelt & Ors  EWCA Civ 798 (03 July 2013)
Cite as:  EWCA Civ 798
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE WALDEN-SMITH
Strand, London, WC2A 2LL
B e f o r e :
SIR ALAN WARD
| IMRAN MALIK
|- and -
|KEITH FASSENFELT (since deceased)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Naomi Winston (instructed by Burch Phillips & Co) for the respondent
Crown Copyright ©
Sir Alan Ward:
The background facts
The law before October 2000
"What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law."
Lord Denning then said that the owner could resort to the remedy of self-help:
"He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law."
Observing that self-help is not to be encouraged, the Master of the Rolls went on to say:
"The owner is entitled to go to the court and obtain an order that the owner "do recover" the land, and to issue a writ of possession immediately. … So far as I can discover, the courts of common law never suspended the order for possession. …
Seeing that the owner could take possession at once without the help of the courts, it is plain that, when he does come to the courts, he should not be in any worse position. The courts should give him possession at once, else he would be tempted to do it himself. So the courts of common law never suspended the order for possession."
The third remedy available to the owner was a summons issued pursuant to R.S.C. Ord. 113:
"A summons can be issued for possession against squatters even though they cannot be identified by name and even though, as one squatter goes, another comes in. Judgment can be obtained summarily. It is an order that the plaintiffs "do recover" possession. That order can 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 giving any time. The court cannot give any time. It must at the behest of the owner, make an order for recovery of possession. It is then for the owner to give such time as he thinks right to the squatters. They must make their appeal to his good will and consideration, and not to the courts."
"Has the court any jurisdiction to give them time? In my judgment the answer is 'No.'"
So the position before 2000 is clear: the court will make an order for possession forthwith.
The position after October 2nd 2000
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article1 of the first Protocol:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end" - see McCann v UK (2008) 47 EHRR 40 at .
The developing guidance from the House of Lords and the Supreme Court on the application of Article 8
"That the right of a public authority landlord to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by Article 8(2) for an interference with the occupier's right to respect for his home; that the public authority was not required to plead or prove justification in every case and the courts were to assume that domestic law struck the proper balance of the competing interests and was compatible with Article 8; that a challenge to the making of an order could be raised in the possession proceedings in the county court so far as its jurisdictional limits permitted, if the defendant could, exceptionally, show a seriously arguable case that the relevant domestic law was incompatible with the Convention; but that (Lord Bingham of Cornhill, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe dissenting) where the requirements of the law had been satisfied and the right to recover possession was unqualified, no challenge based only on a defendant's individual circumstances was permissible."
Consequently since the local authority in each case had an unqualified right to possession and the defendants had no rights under domestic law to occupy their respective premises or remain on the land, their claims under Article 8 were unsustainable.
"28. … [Article 8] does guarantee a right to respect for the place where a person lives if his links with that place are close enough and continuous enough … to make it proper to regard that place as his home. To evict or seek to evict a person from such a place is to interfere with his exercise of his article 8(1) right, as the House held in reliance on Strasbourg and other authority in Qazi. Article 8(2) forbids such interference by a public authority unless the excepting conditions are satisfied. Compliance with domestic property law is a necessary excepting condition but not a sufficient one, since the other conditions must also be met, notably that the interference must answer a pressing social need and be proportionate to the legitimate aim which it is sought to achieve. This must now be recognised as the correct principle. In stating it, I enter the same important reservation as in Qazi, paragraph 23: nothing in this opinion should be understood as applying to any landlord or owner which is not a public authority. Competing submissions were made on this point. It does not arise for decision in these appeals. It is best left for resolution in a case where it arises."
Observing that it would "require highly exceptional circumstances before Article 8 would avail the occupiers" he added:
"37. Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end, with the environmental hazards it is likely to entail. Rules 55.5(2) and 55.6 of the Civil Procedure Rules provide for the summary removal of squatters. The rule in McPhail v Persons, Names Unknown  Ch 447 must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters of the kind described above anything more than a very brief respite.
38. I do not think it possible or desirable to attempt to define what facts or circumstances might rank as highly exceptional. The practical experience of county court judges is likely to prove the surest guide, provided always that the stringency of the test is borne in mind."
Lord Nicholls and Lord Walker agreed with Lord Bingham.
"110. But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with article 8 but is based only on the occupier's personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown  Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 … (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law …"
He too made this important point:
"I agree with Lord Bingham and Lord Nicholls that the position as it affects private landlords does not call for decision in this case, as the respondents to these appeals are both public authorities. But I do not think that it can be left out of account as we explore the wider implications of the argument. As Mr Sales for the First Secretary of State explained, the article 8(1) right to respect for the home does not distinguish between public authorities and private landlords and landowners. Private landlords and landowners too must obtain an order from the court, and the court itself is a public authority."
"192. … There is nothing yet in the Strasbourg jurisprudence to require a reconsideration of the rule in McPhail v Persons, Names Unknown  Ch 447. In common, therefore, with my noble and learned friends, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood, I agree with the conclusions reached by my noble and learned friend, Lord Hope of Craighead, set out in paragraph 110."
Lord Brown's view was given at :
"If, indeed, article 8's impact upon property law is as wide-reaching as the appellants contend it is to my mind surprising that the Strasbourg jurisprudence is not replete with examples of successful claims. In fact, however, these are few and far between and, certainly in Connors's case (and in Larkos), explicable by reference to unjustifiably discriminatory legislation rather than because of a want of sufficient discretion under domestic law to take account of exceptional circumstances. There is, for example, no possible support to be found in the Strasbourg case law for doubting the justifiability of the clear rule as to squatters established by the Court of Appeal in McPhail v Persons, Names Unknown  Ch 447 (Mr McPhail himself being, one may note, a private landowner) and I would respectfully disagree with the suggestion to the contrary at paragraph 37 of Lord Bingham's opinion."
"49. … Even before the decision in Kay v United Kingdom  HLR 13, we would, in any event, have been of the opinion that this court should now accept and apply the minority view of the House of Lords in those cases [Qazi and Kay]. In the light of Kay v United Kingdom that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact."
The judgment of the Supreme Court emphasised at the outset at  that nothing in this judgment is intended to bear on cases "where the person seeking the order for possession is a private landowner" for the reasons it gave at paragraph  namely:
"50. We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out, at paragraph 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow London Borough Council v Qazi  1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at paragraph 52. In Belchikova v Russia (Application No 2408/06) (unreported) given 25 March 2010 the application was held to be inadmissible, but the European Court (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (1986) 10 EHRR 149, 155–156, the European Human Rights Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this court to express no view on the issue until it arises and has to be determined."
"From these cases, it is clear that the following propositions are now well established in the jurisprudence of the European court: (a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end … (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains—for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain."
"52. … Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock …
54. … in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way. …
57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person's home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court's obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court.
62. … If domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether.
63. … the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person's home may require certain statutory and procedural provisions to be revisited. For example, section 89 of the Housing Act 1980 limits the period for which a possession order can be postponed to 14 days, or, in cases of "exceptional hardship", 42 days. And some of the provisions of CPR Pt 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies ..."
"33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier's eviction is a proportionate means of achieving a legitimate aim. …
36. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock."
"(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
(2) The restrictions in subsection (1) above do not apply if—
(a) the order is made in an action by a mortgagee for possession; or
(b) the order is made in an action for forfeiture of a lease; or
(c) the court had power to make the order only if it considered it reasonable to make it; or
(d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the [Rent Act] 1977); or
(e) the order is made in proceedings brought as mentioned in section 88(1) above [proceedings for possession of a dwelling house let under a rental purchase agreement]."
Lord Hope said at :
"The effect of subsection (1) of that section is to remove from the court the discretion which it had at common law to select whatever length of postponement it thought fit: see McPhail v Persons, Names Unknown  Ch 447. …
64. The question then is whether the court should make a declaration of incompatibility under section 4 of the 1998 Act. This would be appropriate if there was good reason to believe that the time limit that the section sets is likely in practice to be incompatible with the article 8 Convention right of the person against whom the order for possession is made. … No evidence has been put before the court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blecic v Croatia (2004) 41 EHRR 185 , paragraph 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility."
"103. In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. The clear limit on the judge's discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged."
"12. It is now clear that a person who has no right under domestic law to remain in his home can in principle invoke article 8 so as to defeat a claim for possession. However, as was said by Lord Phillips in  of Powell, this court in Pinnock stated that it is only "in very highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument". Lord Phillips added "I believe that this proposition is an accurate statement of fact in relation to introductory tenancies." If that is right, then it must be at least as true, indeed in my view even more true, in the case of someone who entered the property as a trespasser and has remained a trespasser.
14. Kay  UKHL 10 was heard together with Leeds City Council v Price, where the occupiers were and had always been trespassers. Lord Bingham, who was in the minority, but whose conclusion ultimately prevailed in Pinnock, said this at  of the test which had to be satisfied by an occupier seeking to rely on article 8:
"Rarely, if ever, could this test be satisfied where squatters occupy the land of a public authority which they do not and (unlike Connors) never have had any right to occupy, and the public authority acts timeously to evict them. The public look to public authorities to preserve their land for public purposes and to bring unlawful occupation to an end."
18. It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke article 8 as a defence against an order for possession. But such a person seeking to raise an article 8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would require the most extraordinarily exceptional circumstances."
On the merits of the case Lord Neuberger said:
"Finally, there is the point that he has not caused a nuisance, or done anything criminal, and has got on with his neighbours. To my mind that is not a reason which begins to help him establish an article 8 argument; all it does is to say that a factor undermining his article 8 argument, such as existed in Pinnock, does not exist in his case."
"22. The principles to be applied are clear. First, it is a defence to a claim by a local authority for possession of a defendant's home that the possession is not necessary in a democratic society within article 8(2), that is to say it would be disproportionate in all the circumstances. An order for possession in such a case would be an infringement of the defendant's right under article 8 to respect for his or her home and so unlawful within the Human Rights Act 1998 section 6(1) .
23. Secondly, the test is whether the eviction is a proportionate means of achieving a legitimate aim: Pinnock at . The Supreme Court said there that it would prefer to express the position in that way rather than use the yardstick of confining an arguable article 8 defence to "very exceptional cases" …
24. Thirdly, it is nevertheless clear that the threshold for establishing an arguable case that a local authority is acting disproportionately and so in breach of article 8 where repossession would otherwise be lawful is a high one and will be met in only a small proportion of cases: Hounslow LBC v Powell … at  (Lord Hope). The circumstances will have to be exceptional to substantiate an article 8 defence: Powell at  … In Birmingham City Council v Lloyd … at , Lord Neuberger indicated that in some cases the circumstance might even have to be "extraordinarily exceptional", but I would respectfully suggest that references to degrees of exceptionality may unnecessarily complicate matters.
25. Fourthly, the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. …
26. Fifthly, that is why the fact that a local authority has a legal right to possession, aside from article 8, and is to be assumed to be acting in accordance with its duties (in the absence of cogent evidence to the contrary), will be a strong factor in support of the proportionality of making an order for possession without the need for explanation or justification by the local authority: Pinnock at  and Powell at  (Lord Hope). …
29. Sixthly, an article 8 defence on the grounds of lack of proportionality must be pleaded and sufficiently particularised to show that it reaches the high threshold of being seriously arguably: Powell at  and  (Lord Hope).
30. Seventhly, unless there is some good reason not to do so, the court must at the earliest opportunity summarily consider whether the article 8 defence, as pleaded, and on the assumption that the pleaded facts relied upon are correct, reaches that threshold … If the pleaded defence does not reach that threshold, it must be struck out or dismissed ...
31. Eighthly, even where an article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock at . That might be the effect of a simple refusal of possession without any qualification. It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority."
The next issue: how does this development of the Article 8 argument impinge on the claim for possession by a private landowner: is McPhail still good law?
"10. My view that McPhail remains good law is confirmed by the views of both the editors of the White Book and the Green Book. At C45.3.7 in the White Book there is this:
"10. The court has no power to grant a stay of a writ of possession against the trespasser and a stay against a former tenant or service occupier would normally be limited between four and six weeks."
11. As if this was not enough, the four members of the House of Lords in the majority in Kay v Lambeth London Borough Council … all appear to have assumed that McPhail remained good law (see paragraph 110 Lord Hope; paragraph 174 Lord Scott of Foscote; paragraph 194 Baroness Hale of Richmond; and paragraph 206 and 212 Lord Brown of Eaton-under-Heywood).
13. Finally, there is a suggestion, which was dealt with very clearly by the judge below, that the decision in McPhail may be inconsistent with the European Court on Human Rights jurisprudence on Article 8, in a case such as this, where the trespasser is occupying as his home. It is fair to say that some support for that view is to be found in the speech of Lord Bingham of Cornhill in the Kay case (see paragraph 37). However, Lord Bingham was in a minority in that case. It seems to me quite clear from the passages I [have] identified in the speeches of the four members in the majority in that case that they came to a contrary view."
As this was decided before the developments I have been describing above had taken place, I would not place much reliance on these observations made on an application for permission to appeal.
i) It is rightly common ground that the squatters have established a home on the land by reason of the existence of a "sufficient and continuous link with a specific place" which is the autonomous test in European jurisprudence. The squatters are, therefore, entitled to respect for their homes by virtue of Article 8(1).
ii) Even if Article 8 has no direct application between a private landowner and the trespassers on his land, the Court as a public authority is obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with that Convention right.
iii) The basic rules are not now in doubt, per Lord Hope in Powell at . So the court will have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupiers' eviction is a proportionate means of achieving a legitimate aim.
iv) Proportionality is, therefore, in issue. The rule in McPhail that the court has no jurisdiction to extend time to a trespasser can no longer stand against a requirement that proportionality may demand, albeit most exceptionally, that a trespasser can be given some time before being required to vacate. In Pinnock the court held at  that the conclusion that the court must have the ability to assess the Article 8 proportionality of making a possession order in respect of a person's home may require certain statutory and procedural provisions to be revisited and it seems to me this is one of those procedural provisions that does require fresh treatment.
v) There are subsidiary, but not very compelling, reasons for reconsidering McPhail. Part of the ratio of that decision was that the landowner has the remedy of self help but the Criminal Law Act 1977 has prevented the use of force to evict an occupier. His opportunity to obtain immediate relief by resorting to self-help may be curtailed if the squatters refuse to leave without a fight. Standing alone the changes in the criminal law would not lead me to depart from McPhail.
vi) Another crucial factor distinguishing the present position from McPhail is the fact that in McPhail there was no defence to the claim of possession whereas, if Article 8 is engaged, then there is at least a potential defence.
"However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely …".
The judge's approach and the criticisms made of it
"81. In my judgment, it will be a highly exceptional case where the protected rights of a private landowner under Article 1 could be interfered with by reason of the Defendant's Article 8 rights where, as in this case, the Defendants are trespassers. The Defendants came onto the land without the licence or consent of the Claimant and they remained on the land as trespassers. Mr Malik is entitled to the peaceful enjoyment of his land. That is a legitimate right protected by Article 1 of the Convention but also by virtue of the limiting words of Article 8(2) of the Convention that respect to the home is not be interfered with by a public authority (the Court) "except as in accordance with the law and is necessary in a democratic society in the interests of … the economic wellbeing of the country … or for the protection of rights and freedoms of others"," (her italics).
So she found:
"82. Consequently while Article 8 does apply in principle to cases involving a private landowner and a trespasser, it is difficult to envisage circumstances where it would have any consequence and the eviction would not be found to be a proportionate means of achieving a legitimate aim."
"85. … That may be so, but Mr Malik is the legal owner of this land which has been deliberately occupied by the defendants, knowing they had no right to enter. Mr Malik is not to be denied his ownership or right to occupy his own land because others find his use of that land to be less acceptable than the use made of the land by the trespassing defendant. For a private landowner to have to establish that the possession order is justified because his own use of his own land is useful and attractive to the local community and society at large, the use of that land by the current occupier against whom he has a right of possession, particularly where that occupier is a trespasser, runs entirely contrary to the principle of private ownership of land. If Mr Malik is deprived of his right of possession of the land, then he is deprived of an asset for which he has paid a substantial six figure sum and is deprived of the right to use it and make a profit from it."
"88. Consequently, while Article 8 can apply to private landlords, it does not in the circumstances of this matter make an order for possession disproportionate or require the court to stay the order for possession for a period of time to give effect to any Article 8 rights."
Discussion and conclusion
"13. While I fully understand the concerns of the individuals directly involved and the local community it is my duty to apply the law to the facts of the case entirely dispassionately. The members of Grow Heathrow took the steps that they did, both in entering onto the land and remaining on the land, knowing what they wanted to achieve and how they thought they could achieve those aims. They, or at least some of them, are experienced squatters and they knew precisely what they were doing when entering onto this land, which they had identified before occupation as appearing to be "abandoned". They knew what they were doing; they knew it was unlawful and they knew there was always the risk that the landlord would move for their immediate eviction."
"The great end for which men entered into society was to preserve their property. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole."
Lord Justice Lloyd
"To this extent, we are still waiting to learn the horizontal reach of the ECHR into the domestic understanding of land law. It is once again disappointing that one should be reduced to awaiting a judicial announcement as to the state of the law in this way, rather than having a reasonable opportunity to deduce it, and so converse with the judges about it, oneself."