Drury v Secretary of State for Environmnet, Food & Rural Affairs

In a possession claim against trespassers, a possession order may extend beyond the land actually occupied to a separate area owned by the claimant, but only exceptionally. The claimant must already be entitled to possession for an actual trespass on some land and must show convincing evidence of a real danger of actual trespass on the additional area. The threshold corresponds to that for a quia timet injunction, because an injunction may be ineffective against unidentified or changing trespassers. Relevant evidence may include an intention to move, a history of movement, or proximity and similarity of the sites. The order should be narrowly drawn to secure an effective remedy while avoiding injustice to people unconnected with the original trespass.

The respondent owned and managed Fermyn Woods and 30 other separate woodlands within a 20-mile radius. Eleven travellers, including the appellant, occupied Fermyn Woods without consent. The respondent issued a possession claim against persons unknown under the Civil Procedure Rules 1998 and obtained an order for possession of all 31 areas.

The appellant accepted the order for Fermyn Woods but challenged the 30-area extension. The High Court order of 23 May 2003 was based on the history of trespass on the respondent’s other woodlands. The appeal concerned whether the court had jurisdiction to make such an anticipatory, in rem order and, if so, what evidence justified it.

Appeal allowed in part. The possession order remained effective for Fermyn Woods, but the order covering the 30 separate woodland areas was not justified.

1. Jurisdiction. The procedural provisions governing possession claims against trespassers did not define or restrict the substantive jurisdiction. Following University of Essex v Djemal [1980] 1 WLR 1301, an order could extend beyond the particular area occupied where the circumstances justified protecting the claimant’s possession of other land. Djemal was not authority for a bare order covering every parcel within a radius; it concerned a connected university site and evidence of movement and threatened further occupation.
2. Anticipated trespass. Wilson J held that a separate area not yet occupied could be included only where the claimant would have been entitled to a quia timet injunction against the occupants. This provided an effective remedy where an injunction against unidentified or changing trespassers would be impracticable. Mummery LJ agreed and held that Ministry of Agriculture, Fisheries and Food v Heyman 59 P & CR (1989) 48 was a legitimate incremental development of Djemal.
3. Evidence and factors. The threshold was convincing evidence, rather than mere belief, of a real danger of actual violation. Relevant matters included an intention to decamp, the history and pattern of movement between sites, imminence, propinquity, similarity of the land, and evidence connecting the same or some of the same trespassers with both areas. Ward LJ described the assessment as one of fact and degree requiring a strong and unbroken link, and stressed that the jurisdiction should be exercised sparingly.
4. Fairness. Because a possession order operates in rem and may be enforced against all wrongful occupants, including people not served with the proceedings, the court must balance an effective remedy against the risk of injustice. This justified keeping extended orders within the reasonably narrow limits applicable to quia timet relief.
5. Application. Although the 30 areas were woodland within 20 miles of Fermyn Woods, there was no evidence linking the current or past occupants of Fermyn Woods with occupants of the other areas. No other area had been wrongfully occupied for more than three years. The evidence did not establish a real danger of decampment, so the extension was set aside.

1. Court of Appeal (Civil Division): Appeal allowed in part under [2004] EWCA Civ 200. The order was upheld for Fermyn Woods but not for the 30 separate woodland areas.
2. High Court of Justice, Queen’s Bench Division, Northampton District Registry: HH Judge Waine ordered, on 23 May 2003, that persons unknown give possession of Fermyn Woods and the 30 other areas forthwith.