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Summary possession of land against trespassers |
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Dutton v Manchester Airport plc [1999] 2 All ER 675 is now fully and widely reported. Despite a powerful dissenting judgment by Chadwick LJ, Kennedy and Laws L.JJ held that a licensee who was not in occupation
of the land was entitled to claim possession against a trespasser in possession of the land at the date of the creation of the licence if such a remedy was necessary to give effect to the licensee’s contractual rights of occupation.
Thus Manchester Airport plc (“MA plc”) (which had no exclusive rights to possession of the land) was entitled under RSC O. 113 to eject environmental protesters who had set up their camp and occupied the property prior to the grant of the licence to MA plc. Dutton substantially broadens the class of claimants who may seek summary possession, the same historically having been limited to those in actual possession at the time of the trespass or those with rights to exclusive possession. The same reasoning would apply to applications under Part I of C.24 (the prevailing rule for such applications in the County Court). But beware: Applications under Part II of C.24 (Interim Possession Orders) require the claimant to have an immediate right to possession and to have had "such a right throughout the period of unlawful occupation complained of" (C.24.9(b)). Thus Dutton cannot assist in Part II claims.
Procedure under the CPR
In the High Court, proceedings are commenced by a Part 8 claim (PD8A.3) indorsed as per R113.2 together with evidence in accordance with R.113.4. The Order for possession and the writ of possession (Forms 42A and 66A) remain (PD4, Table 2) but require minor terminological amendment. In the County Court, proceedings are commenced in Form N312 (PD8B, Table 2) and served with form N8(1) (Notice of Return Date): PD4, Table 3. That Practice Direction also specifies that Forms N36 (Order for Possession) and N52 (Warrant for Possession) remain, with terminological amendments. |
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July 1999 |
