Respect for the home as a defence in eviction proceedings

Sir Alan Ward's comments in Malik v Fassenfelt and Ors [2013] EWCA 798, the "Grow Heathrow" squatters case, have caused a stir.

The land being squatted had been used for various business ventures, latterly the respondent let it to a tenant who used it for fly tipping and dumping cars. From March 2010, the appellants gained entry onto the land, cleared the mess and set up a market garden, winning popularity with the local residents. They lived on the site.

In possession proceedings brought by the respondent the first instance Judge, HHJ Walden-Smith, found that article 8, which protects an individual's right to respect for their home, was engaged in cases involving private landowners. This was because under section 6 of the Human Rights Act 1998, the court is explicitly a public authority and therefore cannot make an order which would breach an individual's rights under the European Convention on Human Rights. However, she found it proportionate to make a forthwith possession order, and stated it is "difficult to envisage circumstances" where the engagement of article 8 would have any consequence. Before the 1998 Act, it was well established that a forthwith order should be made in cases involving trespassers (McPhail v Persons Unknown [1973] Ch 447).

On appeal, it was common ground between the parties that article 8 was engaged; the point in dispute was the proportionality of making a forthwith order. Lord Justice Lloyd and Lord Toulson regretted they did not hear submissions on whether article 8 was engaged in a case involving a private landowner, reserving opinion on that point. However, assuming article 8 was engaged, they held a forthwith order was proportionate.

Lord Justice Ward, in his final judgment before retiring, went further finding article 8 was engaged in cases involving private landowners and did constitute a potential defence. There was a caveat: the landowner's right to possession weighed heavily in favour of proportionality. It would be difficult to imagine a situation where the squatter was given unlimited right to remain.

Inconclusive

The case has not changed the law. The majority did not overrule McPhail. Therefore, a court should still make a forthwith order against trespassers. Neither did the majority rule on whether article 8 is engaged in possession proceedings against a trespasser on privately-owned land. Therefore the law remains inconclusive on that point.

Even if an article 8 defence is raised, it is established in respect of public bodies that "exceptional circumstances" are required to show a possession order is disproportionate (Birmingham City Council v Lloyd [2012] EWCA Civ 969 per Lord Neuberger). This standard was adopted both by HHJ Walden-Smith and Sir Alan Ward in respect of private landowners.

However, one should not underestimate the effect Sir Alan's dicta may have in the County Court. A private landowner bringing a possession claim will be afforded a five-minute initial hearing where he will usually obtain an order if he can prove title and show correct service. Sir Alan's dicta may fuel fruitless article 8 defences which may not be successful, but will persuade a judge they cannot deal with the matter at the initial hearing and adjourn for a full hearing. It may be weeks before the case is heard. Such adjournments threaten the ability of private landowners to recover possession quickly.