Malik v Fassenfelt (Now Deceased) and Others  EWCA Civ 798; (2013) PLLR 110
Human rights - property - trespass - squatters - Article 8 European Convention on Human Rights - applicability in private law action - section 6 Human Rights Act 1998 - proportionality of eviction - McPhail v Persons Unknown  Ch 447 - section 89 Housing Act 1980
A private law action to remove squatters from land required an assessment of the proportionality of removal in light of the squatters' rights under Article 8 of the European Convention on Human Rights and the duty placed on the courts by section 6 of the Human Rights Act 1998. However, in most cases removal would be proportionate.
3 July 2013
Court of Appeal (Civil Division)
Lloyd LJ, Lord Toulson and Sir Alan Ward
(1) The respondent (M) owned land in the area which stood to be affected should it be decided to construct a third runway at Heathrow Airport. The land was in a poor state, having been used unlawfully for the dumping of motor cars and fly tipping. The appellant (F) was part of a campaign group opposed to this development, which occupied the land, cleaned it and established a market garden centre on it. Some of the group eventually began to live on the land. M brought a claim for possession and was successful.
(2) F challenged the decision of the County Court on the basis that it breached the squatters rights under Article 8 of the European Convention on Human Rights.
(3) Sir Alan Ward held: that the case of McPhail v Persons Unknown  Ch 447 could no longer be considered to be good law. Application of jurisprudence from the European Court of Human Rights made it clear that there was an independent test for whether someone had established a home on land, and therefore came under the protection of Article 8. This test was whether the individual had a ‘sufficient and continuous link with a specific place.' Although Article 8 did not apply directly to the relationship between two private parties, section 6 of the Human Rights 1998 placed the Court under a duty to act in a way which is compatible with the Convention. The role of the court remained the examination of whether making a possession order was proportionate as a means of achieving a legitimate aim. McPhail could also be distinguished on the basis that it found there to be no defence to a claim for possession, whereas Article 8 provided a potential defence. Proportionality meant that it may be necessary for the Court to extend time to a trespasser, contrary to the ruling in McPhail. If the court has such a discretion, section 89 of the Housing Act 1980 applies, restricting the court's discretion. The court must approach a claim made by a private landowner against a trespasser in a similar way to such cases as brought by local authorities. The landowner's legal right to possession would be a strong factor when considering proportionality; a claim by a squatter with no legal right to remain would be unlikely to succeed other than in exceptional circumstances  - .
(4) That the judge had made no error in her approach to the question. She recognised that Article 8 was engaged and that it was for the court to consider whether eviction would be a proportionate means of achieving a legitimate aim. She had clearly considered the issue of extension of time and recognised the high threshold which would have to be met before eviction could be found to be disproportionate. She took into account the community support for the squatter. Assessments of this kind were best left to county court judges and there were no grounds upon which to find that the judge was not entitled to reach the conclusion that she did. To the extent that the judge may have relied on McPhail (and it was not clear that she did), this was wrong. However, this had no material effect upon the judgment  - .
 - Introduction
 -  - The background facts
 -  - The law before October 2000
 -  - The position after October 2000
 -  - The developing guidance from the House of Lords and the Supreme Court on the application of Article 8
 -  - How does the development of the Article 8 argument impinge on the claim for possession by a private landowner: is McPhail good law?
 -  - The judge's approach and criticisms made of it
 -  - Discussion and conclusion
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