Manchester Airport plc v Dutton

A licensee with a contractual right to enter and occupy land may obtain an order for possession against bare trespassers, even if the licensee has not entered the land and has neither an estate nor exclusive possession. The order must be necessary to vindicate and give effect to the rights conferred by the licence.

The remedy is limited to those rights. It cannot exclude the licensor or a person with an equal or superior contractual or proprietary claim, but a bare trespasser cannot rely on the licensee’s lack of exclusive possession.

The National Trust owned Arthur’s Wood. After environmental protesters had entered and encamped there without permission, it licensed Manchester Airport plc to enter and occupy a defined area in order to carry out tree works required for the proposed second runway.

The airport company obtained an order for possession against the protesters under Order 113 of the Rules of the Supreme Court 1965. A District Judge made the order, and Mrs Justice Steel dismissed the protesters’ appeal.

The protesters appealed to the Court of Appeal. The central issue was whether a licensee which had not entered into factual possession, and could not receive exclusive possession because of the statutory limits upon the National Trust, had a sufficient right to obtain an order for possession against trespassers.

1. Appeal dismissed by a majority. Laws LJ, whose reasoning was adopted by Kennedy LJ, held that a licensee may obtain possession against trespassers where this is necessary to vindicate the contractual rights of occupation granted by the licence.
2. The historical remedy of ejectment was confined to a claimant asserting title or an estate in land. That history did not determine the scope of a modern order for possession. The decisive question was the reach of the licensee’s legal right and whether the defendants’ occupation prevented its enjoyment.
3. The licence gave the airport company a right to enter and occupy the defined land for the works. The protesters had no competing right. The absence of an estate or a right to exclusive possession did not defeat the claim. The remedy remained confined to what was needed to make good the licence. It could not exclude the licensor, or a person with an equal or superior right, but it could remove bare trespassers.
4. The statutory inability of the National Trust to grant exclusive possession of the wood, under section 12 of the National Trust Act 1939, was therefore not decisive. Kennedy LJ also held that the wording of Order 113 did not require the claimant to establish exclusive possession.
5. Chadwick LJ dissented. He considered that Order 113 was procedural only and that a licensee not in actual possession required a right to exclusive possession before obtaining an order in rem. The majority rejected that limitation. The appeal was dismissed with costs, and leave to appeal was refused.

• Court of Appeal: By a majority, dismissed the defendants’ appeal and upheld the possession order.
• High Court: On 26 October 1998, Mrs Justice Steel dismissed the defendants’ appeal from the District Judge’s order.
• Manchester District Registry: On 18 September 1998, the District Judge made an order for possession under Order 113 of the Rules of the Supreme Court 1965.