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Cite as: [1999] 1 EGLR 147, [1999] 2 All ER 675, [2000] 1 QB 133, [1999] 3 WLR 524, [1999] EWCA Civ 844, [1999] EG 31, [2000] QB 133, (2000) 79 P & CR 541

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IN THE SUPREME COURT OF JUDICATURE QBENF 99/0078/1

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MANCHESTER DISTRICT REGISTRY

(MRS JUSTICE STEEL )

Royal Courts of Justice

Strand

London WC2

Tuesday 23 February 1999

B e f o r e:

LORD JUSTICE KENNEDY

LORD JUSTICE CHADWICK

- - - - - -

MANCHESTER AIRPORT PLC

Plaintiff/Respondent

- v -

LEE DUTTON & OTHERS

Defendants/Appellants

- - - - - -

(Transcript of the handed down Judgment by

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

MR C MAILE appeared in person and on behalf of the other Appellants

MR T KING QC (Instructed by the Legal Department, Manchester Airport plc) appeared on behalf of the Respondent

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

©Crown Copyright

Chadwick LJ: This is an appeal against an order made on 26 October 1998 by Mrs Justice Steel in the Manchester District Registry. By her order the Judge dismissed an appeal by four of the six named defendants to these proceedings, as originally constituted, against an order for possession made by the District Judge on 18 September 1998 under Order 113 rule 6 of the Rules of the Supreme Court 1965. The District Judge had ordered that the plaintiff, Manchester Airport plc (“the airport company”), do recover possession of a piece of land forming part of Arthur’s Wood, Styal, Cheshire, in which the named defendants and other persons unknown were said to be encamped.

The property known as Arthur’s Wood was conveyed to the National Trust for Places of Historic Interest or Natural Beauty (“the National Trust”) by a conveyance dated 5 August 1980. It has been common ground in these proceedings that the National Trust thereby became, and has remained, the owner of that property. The wood is situate at or near to the proposed second runway for Manchester Airport. In order to comply with conditions which will govern the operation of the proposed second runway (when completed) the airport company - as the operator of Manchester Airport - needs to create an Obstacle Limitation Surface. That requires, as I understand it, a reduction of height in obstacles within the flight path. For that purpose the airport company need to carry out certain works (“the OLS works”) within Arthur’s Wood. Put shortly, the OLS works appear to involve the lopping, or in some cases the felling, of trees. The appellants are opposed to the carrying out of those works on environmental and, I think, ecological grounds.

On or about 19 June 1998 the appellants or others entered Arthur’s Wood and set up encampments - including tree-houses, ropewalks and a tunnel. It is accepted that they did so without licence or permission from the National Trust; and that as against the National Trust they are trespassers. It may, I think, be inferred that it was, and remains, the appellants’ intention that their occupation will make it difficult or impossible for the airport company to carry out the OLS works.

On 22 June 1998, very shortly after the appellants had taken up occupation within Arthur’s Wood, the National Trust granted a licence to the airport company. So far as material the terms of that licence are contained within the first three clauses:

1. In consideration of the agreements on behalf of MA hereinafter contained NT gives MA and its contractors and agents licence to enter and occupy that part of Arthur’s Wood Styal Cheshire shown edged red on the attached plan (“the Land”) for the purpose set out in this Agreement.

2. The purpose for which the licence is granted is to enable the works agreed between the parties and set out in the document appended hereto and titled “Trees affected by Obstacle Limitation Surface - Arthur’s Wood” (“the Works”) to be carried out. NT gives no Warranty that the premises are legally or physically fit for the purposes specified in this clause.

3. This Licence shall subsist from the date hereof until 31st March 1999 provided that if the Works have not been completed to the satisfaction of the parties by this date this Licence shall be extended by such reasonable period for the completion of the Works as the parties shall agree.

The document which is said, in clause 2, to be appended to that licence has not been put in evidence; but the description in clause 2 suggests that the OLS works are restricted to the topping, lopping or felling of trees. Clause 5 provides that the licence is personal to the airport company and that the rights granted shall only be exercised by the airport company, its contractors and agents.

It was in those circumstances that the airport company commenced these proceedings on 7 August 1998 by the issue of an originating summons. The defendants were, as I have indicated, six named individuals and “persons unknown”. The summons is expressed to be a summons under Order 113 RSC. The airport company, as plaintiff, sought an order that it recover possession of the land edged red on the plan annexed to the summons (being a copy of the plan attached to the licence of 22 June 1998) “on the ground that they are entitled to possession and that the persons in occupation are in occupation without licence or consent”.

Order 113 rule 1 RSC is in these terms:

Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into and remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.

The District Judge made the order sought. Four of the six named defendants appealed from that order. The appeal came before Mrs Justice Steel, sitting in Manchester. Their case was presented to her, as it was in this Court, by the fourth named defendant, Christopher Maile, in person. Mrs Justice Steel recorded his principal submission in these terms, at page 2C-G in the transcript of her judgment:

The appellant submits that this order [Order 113 rule 1 RSC] is very specific in its terms, and Manchester Airport, the plaintiff in this case, has no locus standi to apply for such an order [for possession]. A person who is entitled to claim possession under this order has to have a title, has to have an absolute title and exclusive possession, and a licence to occupy which was granted to the respondents in this case, submits Mr Maile, from 21 June of this year does not give exclusive possession to the airport authority.

The plaintiff, Manchester Airport, as a licensee concede in this case that they have no absolute title to the land which is the subject of this application. They have no exclusive possession to that land, but on behalf of the plaintiff it is submitted that they do have the locus standi to claim possession under Order 113 Rule 1 and Rule 6.

The appellant limits his case to this comparatively narrow issue of law, that the whole proceedings have been misconceived.

The Judge described Mr Maile’s submission as a narrow but important proposition of law. She expressed her conclusion in these terms, at pages 15E-16B of her judgment:

I am satisfied, as was the district judge, that as a licensee, although they have no absolute title or exclusive possession, in this case the plaintiff has the locus standi to bring these proceedings, and that is determined by the nature of the rights which were granted to the plaintiff, a right to occupy. The licence gives the right of possession and this is, I am satisfied, a right of possession which does not give an absolute title, but it does nevertheless give a power against trespassers. That is very different from the position of proving possession against those with an interest in the property. It is not in issue that the defendant and others in this case are trespassers on this land. They do not in this case claim an interest in the property. I am satisfied that this licence gives the respondent power to seek possession against trespassers. Also that the Order 113 procedure by originating summons was the correct means by which the plaintiff sought to claim that power.

The Judge dismissed the appeal. It is from that order that the four appellants appeal to this Court. The issue, as defined by the grounds set out in the Notice of Appeal, is in substance the same as that before the Judge: whether the licence granted to the Airport company by the National Trust on 22 June 1998 gave to the airport company an interest in the land sufficient to enable it to seek an order for possession under the summary procedure contained in Order 113 RSC.

Order 113 was introduced in 1970 (by SI 1970 No 944), shortly after the decision of this Court in Manchester Corporation v Connolly [1970] Ch 420. It had been held in that appeal that the court had no power to make an interlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of right - that is to say, against trespassers. The Order does not extend or restrict the jurisdiction of the court. In University of Essex v Djemal and others [1980] 1 WLR 1301 Lord Justice Buckley explained the position in these terms, at page 1304D-E:

I think the Order is in fact an Order which deals with procedural matters; in my judgment it does not affect in any way the extent or nature of the jurisdiction of the court where the remedy that is sought is a remedy by way of an order for possession. The jurisdiction in question is a jurisdiction directed to protecting the right of an owner of property to the possession of the whole of his property, uninterfered with by unauthorised adverse possession.

As that passage makes clear, Lord Justice Buckley made those remarks in the context of a claim by the owner of the relevant property. The question, in Djemal, was whether the University could obtain an order excluding those involved in a student protest from the whole of the campus; or only from such part of the campus actually in their occupation, as the judge had held in the court below. He was not addressing the question which arises in the present case: whether the plaintiff had a right to possession at all. But, it is plain from his remarks that he would have taken the view that that was a question which had to be determined under the general law. If the right does not exist under the general law, there is nothing in the new procedure introduced in Order 113 RSC which can have the effect of conferring that right.

An order for possession, if made under Order 113 RSC, must be in the form prescribed by rule 6(2) - that is to say in Form 42A in Annex A to the Rules of the Supreme Court 1965. The court orders that the plaintiff do recover possession of the land described in the originating summons. An order in that form is an order in rem, enforceable by a writ of possession. The nature of a writ of possession was explained by Lord Diplock in Manchester Corporation v Connolly, at page 428H-429D:

The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff.

A writ of possession to enforce an order made under Order 113 rule 6 must be in Form 66A of the prescribed forms - see Order 113 rule 7(2). The writ is addressed to the sheriff; it recites that it has been ordered that the plaintiff do recover possession of the land; and it commands the sheriff “that you enter upon the said land and cause [the plaintiff] to have possession of it”. A writ in that form has been issued in the present proceedings, but is stayed pending the outcome of this appeal.

It is against that background that I consider the question whether the airport company has shown that it has a right to possession of the relevant part of Arthur’s Wood which is of the quality necessary to support the order for possession made in these proceedings and the writ of possession issued consequent upon that order. It is essential to keep in mind that it is not contended by the airport company that it is, or ever has been, in actual possession of the wood (or of any part of it) to the exclusion of the appellants. It has been common ground that the appellants had entered the wood and encamped there before the licence of 22 June 1998 was granted. This is not a case in which the plaintiff can rely on its own prior possession to recover possession of land from which it has been ousted. The airport company must rely on the title (if any) which it derives under the licence.

It is relevant, also, to have in mind that it has not been contended by the appellants that, in appropriate circumstances, the airport company might not be entitled to a personal remedy against one or more of them; for example, a remedy by way of injunction to restrain them, individually, from interfering with the carrying out of the OLS works under the terms of the licence. There have been no claims for injunctions in the present proceedings - for reasons which are understandable in the circumstances - and the availability or otherwise of remedies in personam is not in issue on this appeal. The issue is whether the rights which the airport company acquired under the licence of 22 June 1998 enable it to evict the appellants from the wood with the assistance of the sheriff under a writ of possession.

It is necessary to consider, first, the powers of the National Trust in relation to the grant of that licence. The National Trust is a statutory corporation, established by the National Trust Act 1907, for the purposes of promoting the permanent preservation for the benefit of the nation of lands and buildings of beauty or historic interest and, as regards lands, the preservation (so far as practicable) of their natural aspect, features and animal and plant life - see section 4 of that Act. The power of the National Trust to acquire land must, in the absence of some specific power such as that conferred by section 4 of the National Trust Act 1937 (power to acquire land to hold for investment purposes), be a power to acquire that land for the purposes of promoting its permanent preservation for the benefit of the nation. That is the statutory objective to which, prima facie , the power to acquire land is ancillary. There has been no suggestion in the present case that Arthur’s Wood was acquired for any purpose other than its permanent preservation for the benefit of the nation. Land which is acquired for that purpose is inalienable - see section 21(2) of the Act of 1907.

Section 12 of the National Trust Act 1939 is in these terms, so far as material:

12 Notwithstanding anything in section 21 . . . of the Act of 1907 . . . the National Trust may grant any easement or right (not including a right to the exclusive possession of the surface) over or in respect of any property made inalienable by or under the said section . . .

It is plain, therefore, that the licence of 22 June 1998, whatever its terms, could not confer on the airport company a right to exclusive possession of the surface of Arthur’s Wood. It could not do so because the National Trust had no power to grant such a right. The airport company do not contend otherwise. In those circumstances the question is whether some right enjoyed by the airport company under the licence of 22 June 1998 (being a right less than a right to exclusive possession) can be the basis for an order for possession - that is to say, for an order in rem - made under Order 113 RSC.

It has long been understood that a licensee who is not in exclusive occupation does not have title to bring an action for ejectment. The position of a non-exclusive occupier was explained by Mr Justice Blackburn in Allan v Liverpool Overseers (1874) LR 9 QB 180, at page 191, in a passage cited by Lord Justice Davies in this Court in Appah v Parncliffe Investments Ltd [1964] 1 WLR 1064, at pages 1069-1070 and by Lord Templeman in the House of Lords in Street v Mountford [1985] AC 809, at page 818B-C. The question in Allan v Liverpool Overseers was whether a steamship company was liable to be rated in respect of its occupation of certain sheds which it occupied under licence from the Mersey Docks and Harbour Board. As Mr Justice Blackburn pointed out, liability for rates fell on a person who had exclusive occupation. He said this:

The poor-rate is a rate imposed by the statute on the occupier, and that occupier must be the exclusive occupier, a person who, if there was a trespass committed on the premises, would be the person to bring an action of trespass for it. A lodger in a house, although he has the exclusive use of rooms in the house, in the sense that nobody else is to be there, and although his goods are stored there, yet he is not in exclusive occupation in that sense, because the landlord is there for the purpose of being able, as landlords commonly do in the case of lodgings, to have his own servants to look after the house and the furniture, and has retained to himself the occupation, though he has agreed to give the exclusive enjoyment of the occupation to the lodger. Such a lodger could not bring ejectment or trespass quare clausum fregit, the maintenance of the action depending on the possession; and he is not rateable.

That passage, as it seems to me, provides clear authority for the proposition that an action for ejectment - the forerunner of the present action for recovery of land - as well as an action for trespass can only be brought by a person who is in possession or who has a right to be in possession. Further, that possession is synonymous, in this context, with exclusive occupation - that is to say occupation (or a right to occupy) to the exclusion of all others, including the owner or other person with superior title (save in so far as he has reserved a right to enter).

The position of a licensee has received attention in the context of the statutory protection afforded to residential occupiers. Mr Maile referred us to well known passages in the speech of Lord Templeman in Street v Mountford [1985] AC 809. The question, in that case, was whether the rights conferred on the occupier of rooms by an agreement described as a licence were such that the occupier had a tenancy protected by the Rent Acts. Lord Templeman referred to what he described as the traditional view, at page 816B-D:

The traditional view that the grant of exclusive possession for a term at a rent creates a tenancy is consistent with the elevation of a tenancy into an estate in land. The tenant possessing exclusive possession is able to exercise the rights of an owner of land, which is in the real sense his land albeit temporarily and subject to certain restrictions. A tenant armed with exclusive possession can keep out strangers and keep out the landlord unless the landlord is exercising limited rights reserved to him by the tenancy agreement to enter and view and repair. A licensee lacking exclusive possession can in no sense call the land his own and cannot be said to own any estate in the land. The licence does not create any estate in the land to which it relates but only makes an act lawful which would otherwise be unlawful.

He went on, at page 816F-G, to give an example germane to the facts in the present case:

My Lords, there is no doubt that the traditional distinction between a tenancy and a licence of land lay in the grant of land for a term at a rent with exclusive possession. In some cases it was not clear at first sight whether exclusive possession was in fact granted. For example, an owner of land could grant a licence to cut and remove standing timber. Alternatively the owner could grant a tenancy of the land with the right to cut and remove standing timber during the term of the tenancy. The grant of rights to standing timber therefore required careful consideration in order to decide whether the grant conferred exclusive possession of the land for a term at a rent and was therefore a tenancy or whether it merely conferred a bare licence to remove the timber.

In the present case the question is not whether the agreement of 22 June 1998 creates a tenancy or a licence. It does not create a tenancy, for it is gratuitous agreement under which no rent is payable. Nor, in the present case, is the question whether the airport company, as occupier under a licence, has exclusive possession or a right to exclusive possession. That question is determined by the inability of the National Trust, in the exercise of its statutory powers, to grant a right to exclusive possession. The question is whether a person who has a right to occupy under a licence but who does not have any right to exclusive possession can maintain an action to recover possession. But, in that context, the observations of Mr Justice Windeyer in the High Court of Australia, in Radaich v Smith (1959) 101 CLR 209, at page 222, adopted with approval by Lord Templeman in Street v Mountford at page 827, are of relevance:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term or from year to year or for a life or lives. . . . A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass. . . . All this is long established law: see Cole on Ejectment (1857) pp. 72, 73, 287, 458.

The lessee, having a right to exclusive possession, could, before entry into possession, maintain an action for ejectment. A licensee, if he did not have a right to exclusive possession, could not bring ejectment. A tenant or a licensee who was in actual possession - that is to say, in occupation in circumstances in which he had exclusive possession in fact - could maintain an action for trespass against intruders; but that is because he relied on the fact of his possession and not on his title.

The licence in the present case, as it seems to me, is a clear example of a personal permission to enter the land and use it for some stipulated purpose. In my view, it would be contrary to what Mr Justice Windeyer described as “long established law” to hold that it conferred on the airport authority rights to bring an action in rem for possession of the land to which it relates.

Faced with what may be stigmatised as the traditional view, Mr King QC, on behalf of the airport company, sought to persuade us that the law as to the recovery of possession was in a state of change or development. He submitted that it was no longer necessary to establish a right to exclusive possession in order to maintain an action for ejectment. There was now a concept of “relative possession”. He referred to the view expressed by the editors of Clerk & Lindsell on Torts (17 Edition 1995), when commenting upon the passage in the judgment of Mr Justice Blackburn in Allan v Liverpool Overseers which I have set out. They observe, at paragraph 17-18 (at page 848):

The typical Victorian lodger described above by Blackburn J as having non- exclusive possession has to be distinguished from the typical modern occupational licensee, for “in recent years it has been established that a person who has no more than a licence may yet have possession of the land” and the terms of the licence may confer a sufficient right of possession.

The quotation is from the judgment of Mr Justice Megarry in Hounslow London Borough Council v Twickenham Garden Developments [1971] Ch 233, at page 257, to which I shall return. But it is important to set the passage which I have just cited in context. The question addressed in that passage is not the question in this case. The question there addressed is whether a licensee who is in actual occupation may have the protection of the law of trespass against intruders; not whether he can rely on his title to evict a trespasser who is already on the property. This appears from the first two sentences of paragraph 17-18:

It would seem that exclusive possession against the landlord as a test for the nature of the occupant’s interest is not conclusive as to the occupant’s possessory interest vis-a-vis third parties. The terms of an occupational licence may give the licensee such a degree of control over access as to entitle him to the protection of the law of trespass against intruders.

It is this concept which, as it seems to me, Lord Upjohn had in mind when he said, in National Provincial Bank Ltd v Ainsworth [1965] AC 1175, at page 1232C-D:

Furthermore . . . the [deserted] wife’s occupation is not exclusive against the deserting husband for he can at any moment return and resume the role of occupier without the leave of the wife. Nevertheless, I cannot seriously doubt that in this case in truth and in fact the wife at all material times was and is in exclusive occupation of the home. Until her husband returns she has dominion over the house and she could clearly bring proceedings against trespassers; so I shall for the rest of this opinion assume that the wife was and is in exclusive occupation of the matrimonial home at all material times.

Mr King QC placed much reliance on that passage; but, to my mind, it is of no assistance to his argument. I would accept, without hesitation, that a deserted wife who has remained in occupation of the former matrimonial home after the departure of her husband has exclusive occupation in the sense required to bring an action against intruders; but that is because her occupation has the necessary possessory quality and she does not need to rely upon her title. I would not accept - and I do not think that Lord Upjohn was intending to suggest - that a deserted wife who goes out of occupation upon or after the departure of her husband has title to bring an action to recover possession against a squatter who goes into occupation of the empty house.

Nor do I think that the airport company gains assistance from the decision of Mr Justice Megarry in Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233. The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate the site. The council brought proceedings for injunctions restraining the contractor from “entering, remaining or otherwise trespassing” on the site. Mr Justice Megarry explained the position at page 268F-G:

The contractor is in de facto control of the site, and whether or not that control amounts in law to possession, the injunction would in effect expel the contractor from the site and enable the borough to re-assert its rights of ownership.

Mr Justice Megarry refused to grant what he regarded as a mandatory injunction on an interlocutory application because he was not satisfied that the council had made out a sufficiently strong case for that remedy in advance of trial. But, in the course of his judgment, he considered a submission that the contractor was in possession of the site - in which case the injunctions sought would, clearly, have been inappropriate. In that context he said this, at page 257C-E:

I do not think that I have to decide these or a number of other matters relating to possession. First, I am not at all sure that the matter is determined by the language of the contract. It is in a standard form [containing R.I.B.A. conditions], and may be used in a wide variety of circumstances. In some the building owner may be in manifest possession of the site, and may remain so, despite the building operations. In others, the building owner may de facto, at all events, exercise no rights of possession or control, but leave the contractor in sole and undisputed control of the site. Second, in recent years it has become established that a person who has no more than a licence may yet have possession of the land. Though one of the badges of a tenancy or other interest in land, possession is not necessarily denied to a licensee.

The reference, in a judgment delivered in 1971, to the fact that “in recent years it has become established that a person who has no more than a licence may yet have possession of the land” was, I think, a reference to the dichotomy, finally put to rest by the decision of the House of Lords in Street v Mountford, between “licence” and “tenancy” in the context of the Rent Acts. There is no doubt that a licensee may have a right to exclusive possession without thereby becoming a tenant - for example where the licence is gratuitous - but that will depend on the terms of the licence. In any event, that is not this case. The licence of 22 June 1998 does not confer any right to exclusive possession. Further, a contractor who enters a site under a building contract may, on the facts, take possession of the site; but, as Mr Justice Megarry held, that will require an examination of the facts.

The National Trust is not party to these proceedings and has taken no direct part in them. But the airport company has put in evidence (i) a letter dated 15 August 1998 from George Davies & Co, solicitors for the National Trust, and (ii) an affidavit sworn on 24 September 1998 by the Area Manager, Cheshire and Greater Manchester, of the National Trust. The letter of 15 August 1998 refers to the licence of 22 June 1998 and continues in these terms:

We also confirm that it has been agreed that Manchester Airport Plc will be responsible for the provision of security measures including security, fencing and patrols in relation to Arthur’s Wood to prevent the intrusion by protesters or other trespassers and for the eviction of any such protesters or trespassers. In addition, Manchester Airport Plc are entitled to control access and egress to the part of Arthur’s Wood as licensed.

The Area Manager deposes:

The licence itself clearly gives the Airport a right to occupy as well as enter the specified site. The terms of occupation have always been understood to mean the control of access and egress to and from the site. The National Trust does not at present nor does it intend to play any part in the day to day works or the ground control of the site although reserve the right as licensor to enter should the need arise. Such control is presently effected by Manchester Airport Plc and shall be for the duration of the licence, subject to extension.

If the letter of 15 August 1998, and the subsequent affidavit, are intended to do no more than set out the National Trust’s views as to the legal effect of the licence dated 22 June 1998, they are, as it appears to me, of no assistance. The legal effect of a written document is a matter for the court which has to give effect to its terms. The “right as licensor to enter should the need arise” is not reserved in any express term of the licence; it exists, in my view, because the licence grants no right of possession which would enable the airport company to exclude the National Trust. The right to control access to and egress from the site is not mentioned in the licence; nor is there, in the licence, any mention of responsibility for security measures. It is, I think, to be inferred that these are matters which are said to have been agreed between the National Trust and the airport company subsequent to the grant of the licence. It may be that they owe something to the solicitors’ researches into Clerk & Lindsell after the present problems first arose. But I do not, myself, find it possible to give them any weight. They are, as it seems to me, equivocal. They are consistent with an arrangement under which the airport company is to act as the agent of the National Trust in relation to the security of the site. They are not, of themselves, evidence as to the existence of any right to possession, or title, having been granted to the airport company; a fortiori , in circumstances in which the power of the National Trust to grant such a right is circumscribed by statute.

There was no material, in the present case, on which the Judge could reach the conclusion that the airport company was in de facto possession of the relevant part of Arthur’s Wood; and, for my part, I do not think that she did reach that conclusion. She treated the question as one which turned on the construction of the licence. In my view the Judge was in error when she held, in the passage at page 15G of her judgment to which I have already referred, that:

The licence gives the right of possession and this is, I am satisfied, a right of possession which does not give absolute title, but it does nevertheless give a power against trespassers.

She did not make the distinction, essential in cases of this nature, between a plaintiff who is in possession and who seeks protection from those who seek to interfere with that possession; and a plaintiff who has not gone into possession but who seeks to evict those who are already on the land. In the latter case (which is this case) the plaintiff must succeed by the strength of his title; not on the weakness (or lack) of any title in the defendant.

I would have allowed this appeal.

Laws LJ: I gratefully adopt the account of the facts set out in the judgment of Chadwick LJ. As there appears, the appellants or others (to whom I will compendiously refer as “the trespassers”) entered Arthur’s Wood and set up their encampments before the grant of the licence by the National Trust to the respondents. Moreover it appears (and I will assume it for the purpose of the appeal) that the respondents have not to date gone into occupation of the land under the licence.

In those circumstances, the question which falls for determination is whether the respondents, being licensees who are not de facto in occupation or possession of the land, may maintain proceedings to evict the trespassers by way of an order for possession. Now, I think it is clear that if the respondents had been in actual occupation under the licence and the trespassers had then entered on the site, the respondents could have obtained an order for possession; at least if they were in effective control of the land. Clause 1 of the licence confers a right to occupy the whole of the area edged red on the plan. The places where the trespassers have gone lie within that area. The respondents’ claim for possession would not, were they in occupation, fall in my judgment to be defeated by the circumstance that they enjoy no title or estate in the land, nor any right of exclusive possession as against their licensors (which the National Trust had no power to grant). This, as it seems to me, is in line with the passage in Lord Upjohn’s speech in National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1232C-D which Chadwick LJ has already cited, and is supported by the judgment of Megarry J in Hounslow Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233; and it is clearly consonant with the view of the editors of Clerk & Lindsell on Torts (17th edition, 1995), paragraph 17-18. Nor, I think, would such a claim be defeated by the form of possession order required in Order 113 proceedings (Form 42A) or by the prescribed form of the writ of possession (Form 66A). As Chadwick LJ has said, the writ commands the sheriff “that you enter upon the said land and cause [the plaintiff] to have possession of it”. If the respondents were in de facto occupation of the site, such an order would be perfectly appropriate as against the trespassers, notwithstanding that the order for possession is said to be a remedy in rem .

But if the respondents, were they in actual occupation and control of the site, could obtain an order for possession against the trespassers, why may they not obtain such an order before they enter into occupation, so as to evict the trespassers and enjoy the licence granted to them? 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 mere licensees the respondents plainly lack. It is clear that this was the old law: see the passages from Cole on Ejectment (1857) cited in the High Court of Australia by Windeyer J in Radaich v Smith (1959) 101 CLR 209, 222, in a passage agreed to by Lord Templeman in Street v Mountford [1985] AC 809, 827, to which Chadwick LJ has made reference.

However, in this I hear the rattle of mediaeval chains. Why was ejectment only available to a claimant with title? The answer, as it seems to me, lies in the nature of the remedy before the passing of Common Law Procedure Act 1852. Until then, as Cole vividly describes it [1]:

“... actions of ejectment were in point of form pure fictions... The action was commenced by a declaration, every word of which was untrue : [Cole’s emphasis] it alleged a lease from the claimant to the nominal defendant ( John Doe ); an entry by him under and by virtue of such lease; and his subsequent ouster by the nominal defendant ( Richard Roe ): at the foot of such declaration was a notice addressed to the tenants in possession , warning them, that, unless they appeared and defended the action within a specified time, they would be turned out of possession . This was the only comprehensible part to a non-professional person...”... and (curiously enough) the only matter in issue was a fact or point not alleged in the declaration , viz. whether the claimant on the day of the alleged demise, and from thence until the service of the declaration, was entitled to demise the property claimed or any part thereof; i.e. whether he was himself then legally entitled to actual possession, and consequently to dispose of such possession; if not, it is obvious that the defendants might very safely admit that he did in fact make the alleged demise...

The whole proceeding was an ingenious fiction, dextrously contrived so as to raise in every case the only real question, viz. the claimant’s title or right of possession... and whereby the delay and expense of special pleadings and the danger of variances by an incorrect statement of the claimant’s title or estate were avoided. But it was objectionable, on the ground that fictions and unintelligible forms should not be used in courts of justice; especially when the necessity for them might be avoided by a simple writ so framed as to raise precisely the same question in a true, concise, and intelligible form. This has been attempted with considerable success in the Common Law Procedure Act, 1852.”

The Act of 1852 introduced a simplified procedure without fictions. The form of writ prescribed by ss.168 - 170 of the Act required an allegation that the plaintiff was “entitled [to possession] and to eject all other persons therefrom”. S.207 however provided:

“The effect of a judgment in an action of ejectment under this Act shall be the same as that of a judgment in the action of ejectment heretofore used.”

Blackstone[2] confirms the earlier fictional character of the procedure:

“... as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the Lord Chief Justice Rolle, who then sat in the court of upper bench; so called during the exile of King Charles the Second. The new method depends upon a string of legal fictions: no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title.”

The lesson to be learnt from these ancient forms is that the remedy by way of ejectment was by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant; and the fictions, first introduced in the latter half of the sixteenth century and in effect maintained until 1852, were designed to cut out the consequences of pleading points that might be taken if the plaintiff did not plead his case as to the relevant legal relationships with complete accuracy. Chief Justice Rolle’s manoeuvre, and more so the Act of 1852, were in their way ancestors of the Access to Justice reforms to civil procedure which will come into effect on 26 April 1999.

In my judgment the old learning demonstrates only that the remedy of ejectment was simply not concerned with the potential rights of a licensee: a legal creature who, probably, rarely engaged the attention of the courts before 1852 or for some time thereafter. It is no surprise that Blackburn J in Allan v Liverpool Overseers (1874) LR 9 QB 180, dealing with a question whether a licensee of docks premises was liable to rates, stated [3]:

“A lodger in a house... is not in exclusive possession... because the landlord is there for the purpose of being able... to have his own servants to look after the house... Such a lodger could not bring ejectment or trespass quare clausum fregit, the maintenance of the action depending on the possession; and he is not rateable.”

As one might expect this is wholly in line with the old law. But I think there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. The proposition that a plaintiff not in occupation may only obtain the remedy if he is an estate owner assumes that he must bring himself within the old law of ejectment. I think it is a false assumption.

I would hold that the court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. Cases such as Radaich v Smith and Street v Mountford were concerned with the distinction between licence and tenancy, which is not in question here.

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 possession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So, in my judgment, may a licensee, if other things are equal. In both cases, the plaintiff’s remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser.

In this whole debate, as regards the law of remedies in the end I see no significance as a matter of principle in any distinction drawn between a plaintiff whose right to occupy the land in question arises from title and one whose right arises only from contract. In every case the question must be, what is the reach of the right, and whether it is shown that the defendant’s acts violate its enjoyment. If they do, and (as here) an order for possession is the only practical remedy, the remedy should be granted. Otherwise the law is powerless to correct a proved or admitted wrongdoing; and that would be unjust and disreputable. The underlying principle is in the Latin maxim (for which I make no apology), “ubi ius, ibi sit remedium”.

In all these circumstances, I consider that the judge below was right to uphold the order for possession. I should add that in my view there is as a matter of fact here no question of the writ of possession interfering with the prior rights of the National Trust; so much is demonstrated by the letter from the Trust’s solicitors of 15 August 1998 and the affidavit of the Trust’s Area Manager of 24 September 1998. These materials have already been set out by Chadwick LJ. With deference to his contrary view I would attach some importance to them. I agree, of course, that they do not qualify the terms of the licence; but they seem to me to show as a matter of evidence that execution of the writ of possession granted in the respondents’ favour would not on the facts infringe any claims or obstruct any acts on the land by the licensor or anyone claiming under it.

For all the reasons I have given, I would dismiss this appeal.

Lord Justice Kennedy: The wording of Order 113 and the relevant facts can be found in the judgment of Chadwick LJ. In Wiltshire C.C. v Frazer (1983) PCR 69 Stephenson LJ said at page 76 that for a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. Stephenson LJ went on at page 77 to consider what the words of the rule require. They require :

“(1) of the plaintiff that he should have a right to possession of the land in question and claim possession of land which he alleges to be occupied solely by the defendant ;

(2) that the defendant, whom he seeks to evict from his land (the land) should be persons who have entered into or have remained in occupation of it without his licence or consent (or that any predecessor in title of his)”.

In my judgment those requirements are met in this case. The Plaintiff does have a right to possession of the land granted to it by the licence. It is entitled “to enter and occupy (my emphasis)” the land in question. The fact that it has only been granted the right to enter and occupy for a limited purpose (specified in paragraph 2 of the licence) and that, as I would accept, the grant does not create an estate in land giving the Plaintiff a right to exclusive possession does not seem to me to be critical. What matters, in my judgment, is that the Plaintiff has a right to possession which meets the first of the requirements set out by Stephenson LJ, and the Defendants have no right which they can pray in aid to justify their continued possession. If it is said that such an approach blurs the distinction between different types of right and different types of remedy it seems to me that is the effect of the wording of Order 113, and the understandable object of the law has always been to grant relief to a Plaintiff seeking possession who can rely on a superior title. In Dunford v McAnulty (1883) 8AC 456 Lord Blackburn said, at 462, that :-

“in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must shew a superior legal title to his .”

That case was not, of course, concerned with a licence to occupy for a limited purpose but the emphasis on giving a remedy to the party who has a better right seems to me to be instructive.

The decision in re Wykeham Terrace, Brighton (1971) Ch 204 demonstrated the weakness of the procedure prior to the existence of Order 113. On an ex parte application the court was unable to enter judgment or make a final order against unnamed squatters who were not a party to the proceedings. Stamp J at 212G observed that :-

“No doubt a different and perhaps a better process ..... could be provided to meet particular cases and more particularly a case where unknown persons are in occupation of land claimed by the Plaintiff”.

Order 113 was then drafted and came into operation on 20th July 1970. As I have already said it does not in my judgment require of a Plaintiff that he demonstrate a right to exclusive possession and therefore, as it seems to me, it need not be confined to giving protection to those who can demonstrate that they possess an estate in land. If it is approached in that way then, as it seems to me, decisions such as Street v Mountford (1988) AC 809, on which Mr Maile relied, no longer give rise to any difficulty, and the court is able to give a remedy in a situation in which a remedy plainly ought to be provided.

For those reasons, in addition to those set out in the judgment of Laws LJ I would dismiss this appeal.

ORDER: Appeal dismissed with costs. Leave to appeal refused.