Brake v The Chedington Court Estate Ltd

The Court of Appeal allowed the appeal in part and held that the trustee in bankruptcy and its licensee (Chedington) had no common‑law right to dispossess the Brakes by self‑help without a court order. The judge at first instance had been correct to distinguish claims in trespass from claims in ejectment and to consider the relevance of equitable rights, TOLATA and the Protection from Eviction Act 1977, but he treated the position as if the competing claims had been submitted to the court when in fact possession was taken without judicial intervention.

The court concluded that equitable rights (eg those of a trustee or beneficial owner) cannot be relied on to justify self‑help dispossession where the dispute has not been adjudicated; accordingly the Brakes were entitled to a declaration that their exclusion on 18 January 2019 was unlawful at common law. The Protection from Eviction Act 1977 claim failed because the judge’s finding that the Brakes were not residing in the cottage at the date of eviction was open on the evidence.

This appeal concerned a dispute over West Axnoller Cottage. Mr and Mrs Brake (registered proprietors but not beneficially entitled) alleged unlawful eviction on 18 January 2019 after a team acting for Chedington entered the cottage and changed the locks. The trustee in bankruptcy (who had acquired the beneficial interest) had granted a licence to Chedington and a letter of authority was affixed to the door on entry. The High Court (HHJ Paul Matthews) rejected the Brakes’ claims, holding inter alia that the trustee and Chedington had rights derived from the beneficial ownership and that the Brakes were not protected under the Protection from Eviction Act 1977 as they were not residing in the cottage at the date of eviction.

Procedural posture: Appeal from His Honour Judge Paul Matthews sitting as a High Court judge (Business and Property Courts), [2022] EWHC 366 (Ch).

Nature of the claim and relief sought: The Brakes sought declarations that their exclusion was unlawful, possession of the cottage, an injunction, a declaration of trespass and an enquiry into damages for wrongful eviction.

Issues framed:

• Whether the Brakes were unlawfully evicted on 18 January 2019 and thus entitled to common‑law relief for dispossession.
• Whether the Brakes were protected occupiers under section 3 (and related provisions) of the Protection from Eviction Act 1977 because they continued to reside in the premises or part of them.
• Whether the trustee in bankruptcy had a right to dispossess by self‑help or whether equitable rights required adjudication by the court.

Court’s reasoning (concise):

• The correct legal analysis distinguishes the common‑law action for possession (ejectment) from simple trespass and recognises the historic rule that the common law requires a party to show a better legal title unless a court of equity intervenes.
• Since the trustee and Chedington used self‑help to take possession without bringing the competing claims before the court, they could not rely on equitable rights to defeat the Brakes’ common‑law claim for possession. Equity cannot be invoked as a basis for extrajudicial dispossession.
• Accordingly the Court of Appeal granted a declaration that the Brakes’ exclusion was unlawful at common law and that Chedington had no common‑law right or title to interfere with the Brakes’ exclusive possession without a court order.
• The Protection from Eviction Act claim failed because the judge’s factual finding that the Brakes were not residing in the cottage on 18 January 2019 was open on the evidence.

The court permitted the parties to make further written submissions about consequential relief (damages, possession orders and intervention by the current trustees in bankruptcy) and reserved those matters for further consideration.

Appeal allowed in part. The Court of Appeal declared that the exclusion of the Brakes from the cottage on 18 January 2019 was unlawful at common law and that Chedington had no common‑law right or title to justify interference with the Brakes’ exclusive possession without a court order. The court rejected the Brakes’ Protection from Eviction Act 1977 claim, upholding the judge’s factual finding that they were not residing in the cottage at the date of eviction. Rationale: equitable rights cannot be invoked to justify self‑help dispossession where the dispute has not been presented to the court; the trustee’s and Chedington’s proper route was court process, not extrajudicial entry.

Appeal from the High Court (Business and Property Courts, Bristol), His Honour Judge Paul Matthews (sitting as a High Court judge), judgment reported at [2022] EWHC 366 (Ch); appeal decided by the Court of Appeal (Lewison LJ, Asplin LJ, Arnold LJ) at [2022] EWCA Civ 1302.