Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Appellate history
- 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.
Appeal route
- Appealed fromNot stated in the judgmentThis appealappeal dismissed (2–1 majority; costs; leave to appeal refused)
- This judgment [2000] QB 133 Court of Appeal
Key cases cited
7 authorities cited.
- Street v Mountford [1985] AC 809
- National Provincial Bank Ltd v Hastings Car Mart Ltd (National Provincial Bank Ltd v Ainsworth) [1965] AC 1175
- Wiltshire C.C. v Frazer (1983) P & CR 69
- University of Essex v Djemal [1980] 1 WLR 1301
- Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233
- Radaich v Smith (1959) 101 CLR 209
- Allan v Liverpool Overseers
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Cases citing this case
15 later cases · 8 positive · 3 neutral · 3 caution · 1 negative
Most senior citing decisions:
- Global 100 Limited v Maria Laleva [2021] EWCA Civ 1835 considered
- Reiner & Anor v Triplark Ltd [2018] EWCA Civ 2151 applied
- Vehicle Control Services Ltd v HM Revenue & Customs [2013] EWCA Civ 186 applied
- Hall & Ors v Mayor of London (On Behalf of the Greater London Authority) [2010] EWCA Civ 817
- Kay & Ors v London Borough of Lambeth & Anor [2004] EWCA Civ 926
- Alamo Housing Co-Operative Ltd v Meredith & Ors [2003] EWCA Civ 495
- Janssen-Cilag Limited v The United States of America [2026] EWHC 1532 (Pat)
- Heathrow Airport Ltd v Persons Unknown [2024] EWHC 2599 (KB)
- High Speed Two (HS2) & Anor. v Four Categories of Persons Unknown & Ors. [2022] EWHC 2360 (KB)
- Walton Family Ltd & Ors v Estates GJD Services Ltd & Ors [2021] EWHC 88 (Comm)
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