Malik v Fassenfelt & Ors

Where squatters establish homes on privately owned land, the court proceeded on the unchallenged assumption that Article 8 could be engaged because the court is a public authority. The governing inquiry was whether eviction was a proportionate means of achieving a legitimate aim. The owner's legal right to possession was a very strong factor supporting immediate possession. Social benefits, good conduct, community support and work improving the land did not make immediate eviction disproportionate on these facts. Sir Alan Ward considered that the rule in McPhail could no longer stand where proportionality might require time to vacate, but Lord Toulson and Lord Justice Lloyd reserved that wider question. An error concerning the court's jurisdiction to extend time was immaterial. The appeal was dismissed.

The claimant, a private landowner, sought possession of land occupied by trespassers associated with the Grow Heathrow movement. The occupiers had entered without permission and had established homes in former glasshouses. The Central London County Court ordered possession on 19 July 2012. It held that Article 8 was capable of applying because the court was a public authority, but that immediate eviction was proportionate. It also held that Housing Act 1980 section 89 did not apply and that the court had no jurisdiction to extend time for possession. The appeal concerned the continuing effect of McPhail, the proportionality analysis, and the timing of possession. The respondent did not pursue a cross-appeal on the applicability of Article 8. The central issue was whether immediate possession was proportionate and whether the judge's error concerning timing affected the result.

1. Disposition. The appeal was dismissed unanimously as to the result. The order for immediate possession was upheld.
2. Sir Alan Ward proceeded on the basis that the occupiers' homes engaged Article 8 and that the court, as a public authority under section 6 of the Human Rights Act 1998, had to act compatibly with Convention rights. The relevant inquiry was whether eviction was a proportionate means of achieving a legitimate aim. The landowner's legal right to possession was a very strong factor supporting proportionality. Where occupiers had no legal right to remain, only exceptional circumstances could justify refusing or delaying possession. An unlimited and unconditional right to remain was particularly difficult to envisage.
3. The judge had properly considered whether the order should take effect immediately. The occupiers' beneficial work, community support, good motives, absence of nuisance and social advantages did not outweigh the owner's right to recover his property. The judge was entitled to find that immediate possession was proportionate.
4. Sir Alan Ward concluded that the rule in McPhail that the court had no jurisdiction to extend time for a trespasser could no longer stand if Article 8 proportionality required time to vacate. He considered that section 89 of the Housing Act 1980 would then limit postponement to the statutory periods. Lord Toulson and Lord Justice Lloyd did not decide the wider question whether Article 8 applied in private-landowner cases and reserved their views on whether McPhail remained good law.
5. The judge's alternative conclusion that section 89 did not apply to trespassers was erroneous insofar as it relied on the absence of jurisdiction to extend time. That error had no material effect because the judge had already reached a proper conclusion that immediate possession was proportionate. Remittal was therefore unnecessary.

• Court of Appeal (Civil Division): [2013] EWCA Civ 798, 3 July 2013 — appeal dismissed.
• Central London County Court: 19 July 2012 — possession ordered; Article 8 was capable of applying, but immediate possession was proportionate.