Andrew Arden QC and Annette Cafferkey consider the Court of Appeal’s recent decision in Malik v Persons Unknown [2013] EWCA Civ 798. Introduction Does our domestic law permit Art.8 to be used to defend a claim for possession of land in the private sector, or not? The European Convention of Human Rights became part of our law on October 2nd, 2000. The question has, technically at least, been “live” since then, but still it remains undetermined. The domestic courts have been content to allude to it, but have persistently shied away from actually deciding it: the minority in Qazi and Kay - whose opinions ultimately prevailed in Pinnock - Pinnock itself and Powell all disclaim automatic application of the principle that Art.8 entitles the occupier of a home to a proportionality decision by an independent tribunal to privately owned property, notwithstanding ECtHR jurisprudence, including Zehentner, where Strasbourg applied exactly the same principles, notwithstanding that only the private sector was involved.   The appeal in Malik v Persons Unknown presented an opportunity for the question to be authoritatively decided. Ultimately, as it transpired, both the course of that appeal and the facts underlying it enabled the majority of Appeal Court to duck the issue again.   Background The case concerned a claim for possession against trespassers. The leading authority on such claims is McPhail v Persons, Names Unknown [1973] Ch 447 which provides that trespassers have no right to occupy land belonging to another and that, where a claim for possession is properly brought, the court will therefore order possession forthwith as it has no jurisdiction to refuse or suspend the order sought as it has in the case of a former tenant. Mr Malik, the freehold owner of some land near Heathrow Airport on which a group of trespassers known as “Grow Heathrow” (or “Transition Heathrow”) had set up home in March 2010 sought, in accordance with the decision in McPhail, an outright possession order. The judge found the occupiers to be mature, intelligent and highly articulate individuals who had chosen a lifestyle they considered to be beneficial both to themselves and to the community around them; they had done much to improve the land they occupied and, in doing so, had won the support of the local community. The claim was defended in the county court on three bases: (i) alleged procedural failings; (ii) the grant of an implied licence; and, (iii) eviction would interfere with the occupiers’ rights under Art.8. In relation to the last, the occupiers contended that the application of Art.8 conferred on the court a discretion to suspend any possession order made so as to allow the occupiers a reasonable period of time to vacate the land, with the result that rule in McPhail was no longer good law. The first two lines of defence failed, an outcome against which no appeal was pursued. The third succeeded insofar as the Judge held that “as the court is a public authority and the land is being occupied as a home, Art.8 is capable of application even though the landowner is a private individual and the occupiers are trespassers.” Beyond this, however, she held that it was proportionate to make an outright possession order because anything else would run completely contrary to the principle of private ownership of land. The judge also addressed s.89, Housing Act 1980, which applies where there is no statutory power to suspend an order for possession (e.g. Housing Act 1985, s.85, Housing Act 1988, s.9) and which limits the powers of the court to do so to 14 days with a discretion for an extension up to six weeks in a case of exceptional hardship. This was, on the face of it, a contradiction - for plainly there was no statutory power to suspend so that s.89 would prima facie apply - although the ruling was apparently intended to convey that s.89 did not confer an “exceptional hardship” discretion in its own right. The defendants appealed against the decision on proportionality, i.e. the refusal to suspend the possession order. Mr Malik was granted permission to appeal against the decision that Art.8 applied but elected not to proceed on it. To succeed on appeal, the occupiers needed to persuade the Court of Appeal of two matters: first, that Art.8 applied, with the result that the decision McPhail could no longer stand; and, secondly, that the possession order should be suspended.   The outcome The appeal was unanimously dismissed, but again without a decision on the key legal issue, the application of Art.8 in private sector cases. In the absence of argument, two members of the Court of Appeal refused to express a view on that issue, deciding instead that - even if it did apply - the order would have been proportionate.   Sir Alan Ward, agreeing with that, nonetheless went on to consider the key issue and concluded as follows.

Even if Art.8 has no direct application between a private landowner and the trespassers on his land, the court as a public authority for the purposes of the Human Rights Act 1998 is obliged to act in a way which is Convention compliant.

The basic rules are not in doubt: when considering whether to make a possession order in relation to the defendant’s home, the court must consider whether it is proportionate to do so if that issue has been raised in defence to the claim and has crossed the threshold of being seriously arguable. Proportionality is, therefore, in issue.

Against this backdrop, the rule in McPhail that the court has no jurisdiction to suspend a possession order against a trespasser can no longer stand because proportionality may demand, albeit most exceptionally, that a trespasser be given time to vacate.

Proportionality confers on the court, as a public authority, a discretion to consider giving time to a trespasser even at the suit of a private landlord but, following Powell at [103] that s.89 of the Housing Act 1980 was not incompatible with Art.8, a.89 applied to impose a 6-week maximum in a case of exceptional hardship.

The court must approach a claim made by a private landowner against a trespasser in a similar way to that adopted to claims made by a local authority. The fact that the landowner has a legal right to possession is a very strong factor in support of proportionality: it speaks for itself. Even if defendants have established a home on the land, but otherwise have no legal right to remain there, it is difficult to imagine circumstances which would give them an unlimited and unconditional right to remain.   Comment The lack of a decision on the key legal issue leaves in place an unsatisfactory uncertainty in relation to the home: where possession is sought by a public authority of a person’s home, the court may consider the proportionality of what is claimed, but it is not clear that it must otherwise do so. Thus, the rule in McPhail remains good law where the claimant is a private individual, but not where the claimant is a public authority (when Art.8 will apply), even though what is at stake in each case is a home.   The conclusion reached by Sir Alan Ward seems inevitable in the long run: as well as Zehentner, see also the decision in Buckland v. UK blogged here in October 2012. How can it be possible for a court, a public authority, to make an order for possession which it has concluded is disproportionate? It is plainly wrong.