IN THE SUPREME COURT OF JUDICATURE QBENF 99/1255/A2
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Popplewell) Royal Courts of Justice
Monday, 6th March 2000
B e f o r e :
LORD JUSTICE ALDOUS
LORD JUSTICE WALLER
MR. JUSTICE ROUGIER
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COUNTRYSIDE RESIDENTIAL (NORTH THAMES) LIMITED
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(1) CHRISTIANA TUGWELL
(A Minor by her litigation friend Maria Tugwell)
(2) PERSONS UNKNOWN
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(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
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MR. HUTCHINGS (instructed by Richard Buxton, Cambridge) appeared on behalf of the Appellant/First Defendant.
MR. C. FALVEY (instructed by Messrs Taylor Vinters, Cambridge) appeared on behalf of the Respondent/Claimant.
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J U D G M E N T
(As approved by the Court)
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LORD JUSTICE WALLER: Miss Tugwell, who is the appellant on this appeal, is just 16 years of age. In August 1999 she and some young friends set up a protest camp in woods across the road from her home in Wood Avenue, Hockley. The camps were set up in plots 22 and 14 as identified on a map which is at page 11 of our appeal bundle. Her protest was against the activities of the respondents. They were planning to develop houses and had secured options over certain plots of land behind Miss Tugwell's home. In order to secure planning permission for the proposed development, they had obtained licences under the options which entitled them to carry out certain investigatory work on the sites, those works to be carried out prior to obtaining planning permission.
The terms of those licences were in clause 6 of the options. An example of the clause is at page 14 of our bundle and reads:
"The owners will at any time on 10 working days prior notice in writing by Countryside (that is the developers) allow Countryside and their duly authorised representatives access to the property to carry out surveys and technical investigations (including soil pollution and archeological investigations) of the site provided that Countryside shall cause as little damage as possible and make good all damage caused at its own expense."
Although there is no express reference to the carrying out of an ecological survey in clause 6, it is common ground that it was the threat of the carrying out of such a survey through certain ecological consultants that caused Miss Tugwell and her friends to mount her protest. We were told, and it is not unimportant, that Miss Tugwell and her friends began their occupation of the sites before the developers came on to the sites through the consultants. Thus, the only licence or right on which the developers could rely at the commencement of the proceedings, and when the original order was made by the District Judge on 19th October 1999, is clause 6, and their right must be governed by the wording of that clause.
It was on 14th October 1999 that the developers commenced proceedings. They were commenced under Ord. 113. That order is still the applicable procedure following the coming into force of the CPR. It is a summary procedure designed for situations in which trespassers can be ejected from land by the person or company in "possession" [to use the words of the order] of land. It was a procedure brought in by amendment to the rules in 1970 in order, in particular, to provide a procedure where not every wrongful occupier could reasonably be identified. An order for possession under Ord. 113 was granted to the developers by the District Judge in Cambridge on 19th October, as I have said. It seems that on 29th October 1999 the developers completed their purchase of one of the plots, plot 14, and thus from that date held an equitable title to that plot.
An appeal came on before Sir Oliver Popplewell on 23rd November 1999. It does not appear that any argument was addressed to Sir Oliver on the basis that the acquiring of an equitable title to one of the plots made any difference to the developers' position as compared to that before the District Judge. Indeed, since, as regards as one plot, that is plot 22, the developers' position was no different, that perhaps was not surprising. Thus it was on clause 6 of the licence that the developers once again placed their reliance as being the persons in "possession" and entitled to bring the Ord. 113 proceedings. The original order of the District Judge was upheld in trenchant terms by Sir Oliver. The position as he saw it was that Miss Tugwell and her friends were trespassers, which they undoubtedly were, that they had no merit and that public funds should not be wasted on enabling Miss Tugwell to defend the proceedings. He also, not surprisingly, refused permission to appeal.
An application was made for permission to appeal. Chadwick L.J. took a different view in giving permission. He identified a point of some importance which he expressed as being the "extent to which Dutton had derogated what was formerly thought to be the established law in relation to claims for possession". Dutton was a decision of the Court of Appeal [Manchester Airport plc v Dutton  3 WLR 524], in which Chadwick L.J. gave a dissenting judgment. The majority, Laws and Kennedy LJJ, had upheld the decision of Steel J to grant Ord. 113 relief to Manchester Airport as licencees who had been given a right to "enter and occupy" part of a wood for particular purposes. I will have to examine precisely what the majority in Dutton decided in a moment. The concern of Chadwick L.J. in giving permission was that, even if Dutton had enabled licensees who had a contractual right to "occupy" land to obtain orders for possession under Ord. 113, an impermissible extension to Dutton was arguably being invoked in the instant case.
I should complete the history. In the meanwhile, the developers obtained a legal title to plot 14 and an equitable title to plot 22. In those circumstances they brought fresh proceedings on 25th January 2000 in reliance on their titles. Miss Tugwell's advisers resisted the new proceedings only insofar as the developers were not able to establish their legal title. The District Judge made an order for possession. That order was confirmed on appeal by His Honour Judge Richard Walker QC on 16th February 2000. In the light of the existing appeal in the first proceedings, he granted permission to appeal so that the matter could come on at the same time as the first appeal. Both appeals were listed before this court today. In the meanwhile the story had moved on. There is some dispute about the way in which things happened, but as of today Miss Tugwell is no longer occupying a camp on plot 22, or on the land which the developers wish to develop. The proceedings would thus at first sight appear to be academic. Attempts were made by the parties to dispose of the appeal by agreement. Indeed, even before the second set of proceedings had been heard by the judge on appeal from the District Judge, an effort was made by those acting for Miss Tugwell, who, it should be said, has always been legally aided and who was at that time still occupying her protest camp, to reach a compromise. They did that by making a Part 36 offer which both sides were ultimately happy that we should see. I will not go into the details of that offer except to say that, in the light of the view that I take of the merits of the appeal, that was an appropriate and responsible offer to have made. Ultimately, costs were a stumbling block to disposing of the appeal. Indeed, following the correspondence which was revealed to this court, through my Lord, Lord Justice Aldous, this court expressed disquiet at the possibility that an academic point might be being decided on this appeal. A short period was given for the parties to reconsider their position. That reconsideration produced a settlement of the second appeal on the basis that that appeal would be dismissed with no order as to costs, but as regards the first appeal, no agreement could be reached. Mr. Hutchings' position on behalf of his client was that a duty was owed to the legal aid fund. He pointed to the fact that his client had made the Part 36 offer previously, and he submitted that the first appeal had good prospects of success. He submitted that there was a lis so far as costs were concerned. He referred us to Westminster City Council v Croyalgrange Ltd HL  2 All ER 353, where the position on costs was described as giving sufficient lis to decide an appeal.
Mr. Falvey, it should be said on behalf of his clients, was resolute. He said that they were prepared not to seek orders for costs but they were not prepared to pay any part of Miss Tugwell's costs.
This court took the view that there was a point of some importance identified by Chadwick LJ, and that it was right to resolve that point in order to resolve the issue as to costs.
Mr. Hutchings in his skeleton argument has indicated that he sought primarily to distinguish Dutton insofar as the first appeal was concerned. He also indicated that he wished to challenge Dutton even in this court as decided per incuriam. It was indicated to him that he should at least initially concentrate on distinguishing Dutton. He appreciated that, although he might keep open the question whether Dutton was rightly decided, if he could successfully distinguish the same that was a shorter and more cost effective way of dealing with the first appeal.
The argument on the first appeal of Mr. Hutchings was ultimately a short one. The only basis on which the developers could claim "possession" when the proceedings were before the District Judge on 19th October 1999 was on the basis of the right of access to the land under clause 6 of the options. He submitted that the language of the clause did not provide for the developers to have "effective control" of the land, i.e. he submitted that it did not give the developers that right of "possession" or "occupation" which entitled them to eject trespassers. He submitted that on any view Dutton should not be construed as going further than its particular circumstances would allow. He submitted that an examination of the view of the majority in Dutton demonstrated not that every licensee who had some right of access to land had the right of possession required to eject trespassers. The only licensee who had that right was the licensee who has the right of "effective control" of the land, i.e. who had the right of occupation in that sense. He submitted that the words of clause 6 were clear in providing access only and did not give the right to that "effective control". There was no room, he submitted, for implying a term to provide the developers with that effective control. He cited to us authorities relating to the implementation of terms. He cited BP Refinery (Western Port) Property v Shire of Hastings  52 ALJR 20, a decision of the Privy Council, in particular a passage in the speech of the majority delivered by Lord Simon of Glaisdale at page 26. He also referred us to the passage in Lord Wright's speech in Luxor v Cooper  AC 108, 137.
Mr. Falvey submitted, however, that Dutton was not concerned with a licence which granted a right to occupation, in the sense of having effective control over the land. He submitted that the developers in the instant case had rights to occupy in as full a sense as those the subject of the decision in Dutton. He submitted that the developers' right was to occupy for the purpose of carrying out the tasks envisaged by clause 6 of the options or any other task for which they had the consent to enter the land. He submitted that their rights were to exclude at least those who interfered with the carrying out of those lawful rights. His argument was that because his clients must have the right to exclude anyone who interfered with the tasks they were contractually entitled to carry out, his clients must have at least that much possession, and thus the right to exclude anyone who does not have a superior title to his clients.
In my view it is important not to confuse contractual rights, in relation to which the developers may well have rights against any person who seeks to interfere therewith, with the right of possession, which is the foundation of an Ord. 113 remedy. In my view the construction that Mr Hutchings places on the judgments of the majority in Dutton is correct. The basis of Laws L.J.'s judgment seems to me to be found in the following extracts from his judgment. At page 536C-D at the beginning of his judgment, he says:
"Now, I think it is clear that if the airport company had been in actual occupation under the licence and the trespassers had then entered on the site, the airport company could have obtained an order for possession; at least if it was in effective control of the land."
And then a little further down that page, he says:
"But if the airport company, were it in actual occupation and control of the site, could obtain an order for possession against the trespassers, why may it not obtain such an order before it enters into occupation, so as to evict the trespassers and enjoy the licence granted to it? As I understand it, the principal objection to the grant of such relief is that it would amount to an ejectment, and ejectment is a remedy available only to a party with title to or estate in the land; which as a mere licensee the airport company plainly lacks."
He then examined the law in relation to ejectment and ultimately he said (this might be said to be going a little more widely but it has to be read in the context of what he had previously said):
"In my judgment the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto posession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations."
The judgment of Kennedy L.J. also supports the view that something beyond just the right to enter the land is required. He cites a dictum from the judgment of Stephenson L.J. in Wiltshire County Council v Frazer and then says this at page 539H:
"In my judgment those requirements are met in this case. The plaintiff does have a right to posession of the land granted to it by the licence. It is entitled ‘to enter and occupy' (my emphasis) the land in question."
He places emphasis on the fact that the right is to enter and occupy. It seems to me that there is a clear difference between a licence granted for the purpose of access, which does not provide effective control over the land, and a licence to occupy which does. In the instant case, if the developers had occupied the land prior to protest camps being set up, they might have been able to argue that as a fact they did occupy and have effective control so as to bring themselves within that concept as recognized by Laws LJ. However, it does not seem to me that it was in any way legitimate to imply terms into the licence or to construe the licence, clause 6, so as to provide for that degree of control by contract. In my view, the first appeal should be allowed. The developers did not have a contractual right to occupy or have possession with the effective control that is necessary if Dutton is to apply. They simply had a contractual right to access which is not sufficient for Ord 113 purposes. Since we are agreed as to the conclusion on the first point taken by Mr Hutchings, we have not heard argument on how far Dutton can be attacked in this court.
MR. JUSTICE ROUGIER: I agree.
LORD JUSTICE ALDOUS: I also agree.
Order: First appeal allowed; orders of the District Judge and the Judge set aside; costs before the District Judge and the Judge to be paid by the respondent; second appeal dismissed; no order as to costs; legal aid assessment in both appeals.
(Order not part of the judgment of the court)