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Blog 27.11.17

Vigilance Meets – David Wise of Kerman & Co LLP, discussing Illegal Occupation

This month we sat down with David Wise of Kerman & Co LLP to discuss the topic of Illegal Occupation from a legal perspective. David kindly offered two case scenarios which highlight the need for urgency when dealing with illegal occupation but also bring to light the need for ever-present security requirements to nullify trespassing concerns.

At Vigilance we not only offer alarm based system security but our SIA licenced officers can be placed on-site to ensure your property or business is not affected such as those mentioned below.

Possession Claims Against Trespassers – High Court - a tale two cases….

A change of direction?

On 30 September 2016 a Practice Note supplementing the court rules on possession claims against trespassers was issued by the High Court in London. It went some way towards redressing the potential serious delay in recovering land from trespassers in cases of real urgency and harm to property. Essentially, the High Court acknowledged that there was a proliferation of fly-tipping - particularly in London, and that land owners were having extreme difficulty in obtaining possession orders in the County Court quickly enough to prevent further, long lasting or permanent harm (the court rules provide that all but the most urgent claims for possession must be issued at the County Court).  

If not exactly radically changing the court rules, the Practice Note served to clarify the type of case the High Court would consider ‘urgent’ - the advantage from a practice point of view is the potential speed with which specific claims can be issued and listed for hearing.

The case scenarios I discuss below illustrate not only how well (and how quickly) the High Court claim process can operate, but also sound a word of caution on the flip-side, in that the decision as to whether a case is ‘urgent’ is at the discretion of the Judge – and that the High Court will not always welcome cases with open arms.

Case Scenario One

On 6 March 2017 we received instruction to make a claim for possession against trespassers (in this case, travellers) who had entered a client’s brown-field site and had commenced fly-tipping. The site was in the process of being sold and time was of the essence. Just two days later – and having utilised the High Court possession process – we had recovered possession; the speed with which we were able to do so stopped the fly-tipping in its tracks and limited the harm to the property. 

The 30 September 2016 Practice Note sets out a reminder that the court rules dictate the urgent circumstances in which claims can be brought to the High Court. One such circumstance is where ‘…the claim is against trespassers and there is a substantial risk of public disturbance or serious harm to persons or property which properly require immediate attention’. The Note says that unless there is ‘real urgency’ and a need for immediate attention, the High Court will rarely be the suitable venue. However, cases involving ‘a serious risk of harm to property’ are acknowledged to be suitable for High Court determination and the Note specifies that the harm to property need not be long lasting or permanent. It gives a specific example of such a case being ‘…where there has been substantial tipping of waste material on commercial property. Further tipping may be likely and urgent steps may be required to prevent harm to the property. Waste material may contain substances which are dangerous and pose a hazard to anyone gaining access to the site’.

It is, unfortunately, a harsh reality that where a site is subject to trespass and there is fly-tipping, the tipping usually escalates extremely quickly and before long the land is filled and the eventual clearance costs can run into tens of thousands of pounds. The Practice Note confirms that in a real case of urgency - where, for example, there is a need to manage the risk of further substantial harm to land -  ‘…the court will consider fixing a hearing of the claim very soon after issue (occasionally on the same day as issue) and giving permission for short service of the claim…’.

The brown-field site in question was a case which we considered fitted squarely within the High Court Practice Note – there was immediate evidence of fly-tipping and it was escalating. We drafted the Claim for possession, supporting witness evidence and the Certificate of Urgency. This was presented to a Master (a first-tier Judge) of the High Court on the morning of 8 March 2017. The urgency of the case was acknowledged and permission to issue in the High Court was granted. Moreover, the hearing of the claim for possession was listed for hearing later that day at 3.30 pm (the Court accepting that in this case of urgency the usual two clear days’ notice of hearing should be shortened). The trespassers were duly served and chose not to attend the hearing. An order for possession was granted, the Writ of Possession issued and the High Court Enforcement Team attended the site that evening and took possession. In all the circumstances, this was a case where there was a clear and real risk of harm to the property. The High Court recognised that risk, consented to the issuing of the claim and facilitated an urgent hearing. The site was recovered with the utmost speed and therefore lessening the consequential costs of the clear-up operation.

Case Scenario Two

Fast-forward 7 months – the site had been sold and the land was being prepared for housing development. Trespassers (again, travellers) forced entry to the site and commenced fly-tipping. We were instructed by the new owner to recover possession. Again, time was of the essence because a building contract was in place with stringent time-line requirements. The facts and circumstances of the trespass and the fly-tipping were almost identical to the first occasion and an urgent application was presented to a Master of the High Court together with witness evidence and a Certificate of Urgency. This time however, the Master refused permission to issue the claim and directed it back to the County Court. Amongst the Judge’s reasoning was that the damage was minimal, the materials dumped were non-combustible, that they could be easily cleared and that there was no immediate danger of damage to property or of public disturbance. The decision was surprising and unexpected – not least because the circumstances were almost identical to the first incident of trespass and there was clear evidence of fly tipping and escalation of that activity. The case demonstrates that no two cases are truly alike – in the sense that permission to issue in the High Court is a matter of the discretion of the Judge who hears the application on the day.

Regardless of the set-back, we issued an immediate claim for possession in the County Court together with an application to shorten the time to the hearing. A possession order was granted, we transferred the matter to the High Court for enforcement and the land was recovered. This we achieved in around 6 days from our initial instruction – notwithstanding rejection of the claim in the High Court.

Proceed With Caution

The overriding lesson I think to be learnt here is that the High Court does have a listening ear and is appreciative of the fact that it must open its doors to cases of extreme urgency. However, it will scrutinise the application closely and will be ready to reject those cases where it does not consider that there is immediate risk of harm or prospect of it. In essence, it is a matter of discretion for the Judge hearing the application on the day.

Knowledge, Experience, Speed of Action

Our skills have been honed over years of experience in dealing with trespasser cases - both in the private and public sector. We have undertaken some of the most challenging claims for possession against squatters and travellers – involving the most complex of properties and circumstances. Against the backdrop of the closure of County Court offices and the burgeoning backlog of business at the County Courts, we have regularly obtained orders for possession faster than the norm. As Solicitor Advocates we give our clients a ‘one-stop-shop’ service - in running the case and also presenting it in court without the need to instruct a Barrister to prosecute the claim. Speed is always of the essence in cases of trespass and our experience has enabled us to shine a light on the potential pitfalls of a claim and surmount the likely problems.

 

Our thanks is offered to David and Kerman & Co LLP for the guidance shown in this article, visit http://www.kermanco.com to find out more.

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Get in contact with Vigilance now to arrange to safeguard safeguarding your assets, contactus@vigilanceprotects.com. 

 

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