Supreme Court serves up a ‘dog’s dinner’
On Tuesday 1st December 2009 5 Justices of the Supreme Court handed down their judgment in the case of Meier and Others v Secretary of State for the Environment, Food and Rural Affairs (SSEFRA) [2009] UKSC 11.
The case concerns the granting of wider possession orders and injunctions against Gypsies and Travellers trespassing on publicly owned land - in this case, forests in Dorset which are managed by the Forestry Commission (FC).
The Travellers were camped on Hethfelton Woods without permission. The FC sought possession of Hethfelton Woods and a wide possession order covering a large number of other woods in that part of Dorset to which it was suggested the Travellers might decamp, as well as an injunction in addition to the wide possession order.
In the County Court, Recorder Norman granted the possession order in respect of Hethfelton Woods but refused to grant the wider order or the injunction. The FC appealed and the Court of Appeal granted both the wider possession order and the injunction sought. Two of the Travellers appealed to the House of Lords (now the Supreme Court).
On appeal the Supreme Court concluded that the rules of court do not permit the grant of a wide possession order and overturned the Court of Appeal's decision in that regard and in doing so held that the Court of Appeal's earlier judgment in Drury v SSEFRA 2004 EWCA Civ 200, to the contrary effect, was wrong. The simple point being that a landowner cannot obtain a possession order in respect of land in circumstances where s/he already enjoyed uninterrupted possession of it.
For example, Lord Rodger stated (at para 9):
The Forestry Commission were at all relevant times in undisturbed possession of the parcels of land...That being so, an action for the recovery of those parcels of land is quite inappropriate.
However, the Supreme Court expressed the view that the remedy of a quia timet injunction (an injunction to prevent something happening that has not yet happened) could be sought in circumstances where there was a risk that a Traveller would move from one unauthorised encampment on land owned by a public body to another parcel of land in that public body's ownership and upheld the Court of Appeal's decision in Meier to grant an injunction as a consequence.
Lord Neuberger went further and indicated that in his view the failure by the FC to follow Government Guidance on the management of unauthorised encampments should not preclude such an injunction being granted. He stated (at para 87):
"I do not see how [reference to the Guidance] could have justified an attack on the lawfulness of the Secretary of State seeking an injunction to restrain the defendants from setting up such unauthorised camps...I incline to the view that the existence and provisions of the 2004 Guidance could be taken into account by the Court when considering whether to grant an injunction and when fashioning the terms of any injunction."
Some of the Justices added that they thought there may be a need for reform of the remedies available in this area.
Happy though we are with the Supreme Court’s decision that wide possession orders cannot be granted, there is a real concern that local authorities and public bodies will be encouraged by this judgment to pursue applications for quia timet injunctions. The Supreme Court's decision doesn't explain quite what considerations would arise for determination if such an application is made.
No doubt defendants will argue:
a) that the test for granting a quia timet injunction has not been met (as, in fact, the
Traveller in Drury successfully did);
b) that the principles laid down by the House of Lords in South Buckinghamshire DC v Porter [2003] 2 AC 558 (a planning injunction case) should be applied and that a Judge should not
grant an injunction unless s/he is sure that prison would be contemplated if the order were breached and that in order to come to such a conclusion s/he would need to have regard to all the circumstances, including the personal circumstances of the individuals concerned;
c) that, notwithstanding Lord Neuberger's comments regarding the Government Guidance, a failure to have regard to it and to follow it (unless there are good reasons for not doing so) would render a decision to seek an injunction unlawful;
d) that the grant of an injunction and particularly a wide ranging injunction would have a disproportionate impact on the ability of the defendants to live their way of life
and would breach their Article 8 rights (the right to respect for home and for private and family lfe).
Quite how such an injunction would work in practice remains to be seen. The Supreme Court noted the difficulties in enforcing such injunctions - particularly in the case of vulnerable individuals and persons unknown - but seemed attracted by the deterrent effect that such orders might have. The net result may be that Gypsies and Travellers will be less inclined to identify themselves in the future for fear of being made a defendant to injunction proceedings.
All in all it seems that the judgment has left us with something of a ‘dog's dinner’.
Chris Johnson and Marc Willers