Use of injunction in modern trespass cases

In two recent cases of trespass, injunctions have been the preferred remedy rather than possession.

An injunction is a court order that requires a party to do a specific act, or to refrain from doing a specific act.

Injunctions are a discretionary remedy and an interim injunction might be granted to prevent injustice pending a trial of the full facts of a dispute.

The traditional remedy for evicting trespassers is to seek a court order for possession, requiring those in occupation to give back possession to the rightful owner.

Cases

In Canary Wharf Investments Ltd & Ors v Brewer the court granted interim injunctions to prevent 'urban explorers' trespassing on the Canary Wharf estate. The persons in question (being five named defendants together with persons unknown) had climbed on buildings and cranes and accessed restricted areas, posting pictures and videos of their exploits on social media. They had also detailed their method of access, risking further trespass by others in the future.

In Intu Milton Keynes Ltd & Ors v Taylor & Persons Unknown the court extended an interim injunction preventing a BMX stunt rider and 'persons unknown' from entering shopping centres on vehicles. The rider and others were filmed performing stunts and taking a confrontational attitude with security staff.

In both cases, banning orders - orders that restrict specified persons from doing specified acts in a specified place - had already been obtained but had not been effective.

Why injunctions instead of possession?

There is a specific process under Part 55 of the Civil Procedure Rules (which govern procedure in civil claims) that allows possession claims to be made against 'persons unknown' and caters for the claim being served in a practical way which draws the proceedings to their attention, rather than standard postal/personal delivery against named defendants.

However, to order possession there must be persons in occupation of the land from whom possession can be recovered. If the trespass is not continuous and the persons doing it are ever-changing, it may not be possible to meet this condition.

So, seeking an order for possession can be problematic where different people trespass in different areas at different times. Here, occupation may be fleeting and gaining possession over one area will not necessarily prevent occupation being taken up over another. The leading case of Secretary of State for Environment, Food and Rural Affairs v Meier [2009] UKSC 11 held that an order for possession could not be made in favour of a landowner in respect of areas of land which were detached and separated from the land occupied by the trespassers.

In a place like the Canary Wharf estate or a shopping centre, it would be impractical to seal off an area once possession is gained to prevent it happening again. After all, the presence of the law-abiding public was still welcome; the specific acts of trespass were not.

In the Meier case Lord Neuberger said that:

• Where trespass is threatened, and presently being committed, an injunction will be appropriate unless there are good reasons to the contrary;
• Although a court should not normally make orders which may not be enforceable if breached, it may be appropriate to grant an injunction if, despite enforcement being unlikely, it would nonetheless have a real deterrent effect.

So, injunctions can therefore be obtained on a pre-emptive (quia timet) basis, which can be useful if there is no current trespass but there is clear evidence of an intention to trespass.

How about a claim for injunction and possession?

The Meier case recognised that an injunction could be a useful tool to accompany a quick possession order, with shortened time limits if appropriate. The possession order would clear the trespassers already present and the injunction would prevent further trespassing.

There is nothing to prevent both an injunction and a possession order from being claimed simultaneously, provided that they are both claimed for the appropriate reasons and with proper supporting evidence.

If there is not yet any actual occupation but it has been threatened, only a claim for an injunction would be appropriate.

What about enforcement?

Enforcement of a possession order is straightforward. Once the order has been granted, if the defendant fails to leave, a warrant (County Court) or writ (High Court) of possession can be obtained which allows court enforcement agents to attend and clear the property.

Enforcement of injunctions is less clear cut. Usually, enforcement would be by way of contempt of court procedure. This is enforceable by sequestration (entering and taking possession of a person's property) or committal (imprisonment).

Where persons unknown are involved, the question arises as to how one knows who to enforce against. It is easy to see how a sign on the premises threatening imprisonment could well be more effective than a banning order, for which the penalty is usually a monetary fine.

In the Meier case, Lord Neuberger pondered whether a writ of restitution may also be available (requiring the wrongdoer to restore the benefit gained to the claimant). Overall, he considered the issue of enforceability of injunctions in this area unsatisfactory and ripe for consideration by the Civil Procedure Rules Committee.

Comment

In many cases there will be a pressing need to stop acts of trespass to avoid both people and property from being injured. With large areas of property where transitory visitors are welcome (but acts of trespass are not), injunctions are a useful tool where orders for possession may not be appropriate.

These latest cases show the courts' willingness to be flexible in using established remedies to address modern problems, to good effect.