Opening the numerus clausus, L.Q.R. 2000, 116(Jul), 354-360
For educational use only
Opening the numerus clausus
WILLIAM SWADLING.*
Case Comment
Law Quarterly Review
L.Q.R. 2000, 116(Jul), 354-360
Subject
Real property
Other related subjects
Civil procedure
Keywords
Licences; Locus standi; Possession claims; Trespass to land
Cases cited
Manchester Airport Plc v Dutton [2000] Q.B. 133; [1999] 2 WLUK 377 (CA (Civ Div))
Legislation cited
Common Law Procedure Act 1852 (c.76)
*L.Q.R. 354 IT is common practice in applications for judicial review of administrative action for the judge first to decide
whether the decision under review is flawed and only then to rule on the appropriate form of relief. It has now been decided by
a majority in the Court of Appeal that this is also the way to approach private law actions against private individuals. But in the
course of so doing it is submitted that the judgment violates two of the most central tenets of English private law, that there is
a numerus clausus of property rights, and that only those who are party to a contract can be bound by that contract.
The case in which this happened was Manchester Airport Plc v. Dutton [1999] 3 W.L.R. 524 (leave to appeal refused by the
House of Lords, ibid. at p. 540). The plaintiff, Manchester Airport Plc, wanted to construct a second runway at Manchester
Airport. To do this, they needed to lop and fell some trees in a neighbouring wood owned by the National Trust. With the
intention of disrupting the work, a group of protesters occupied the trees, building treehouses, ropewalks and a tunnel. A day
or two after that occupation, the National Trust granted the plaintiff a licence to enter the wood and carry out the lopping and
felling. Licence in hand, the plaintiff sought an order for possession as against the protesters under RSC Order 113:
*L.Q.R. 355 "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 or 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 order for possession was granted by the District Judge, whose decision was upheld by Steel J. On appeal to the Court of
Appeal, the main argument for the protesters, who appeared in person, was that the plaintiff, because it had no title to or estate in
the land, had no interest sufficient to rely on Order 113. A majority of the Court of Appeal (Chadwick L.J. dissenting) rejected
that argument and upheld the granting of the order.
Laws L.J., whose reasoning was concurred in by Kennedy L.J., said that, had the plaintiff been in occupation of the land before
the occupation by the protesters, there would have been no doubt but that it was entitled to an order for possession. That, he
said, flowed from Lord Upjohn's speech in National Provincial Bank Ltd v. Ainsworth [1965] A.C. 1175 at p. 1232, where it
was said that though a deserted wife had no equitable interest in the matrimonial home by virtue of her status as a deserted wife,
she occupied the property under a licence and could bring proceedings against trespassers. What difference could it make that
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Opening the numerus clausus, L.Q.R. 2000, 116(Jul), 354-360
the plaintiff sought an order for possession before it entered into occupation? The principal argument against the grant of such
relief was that it would amount to ejectment, and ejectment was a remedy available only to a party with title to or an estate in
the land, which as a licensee the plaintiff clearly lacked. But while that may have been true of the old action of ejectment prior
to the reforms introduced by the Common Law Procedure Act 1852, that statute had set in place a simplified procedure for
the recovery of possession of land. Since 1852, the form of writ required nothing more than an allegation that the plaintiff was
entitled to possession of the land and to eject all other persons therefrom. There was a "logical mistake", he said, in the notion
that because the old action of ejectment was available only to estate owners, the new remedy of possession was not available
to licensees who did not enjoy possession. The mistake, his Lordship explained
"… 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 for
possession, whether he is himself in occupation or not. The proposition that a plaintiff not in occupation *L.Q.R. 356 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" (at p. 538).
The true principle, he said, was 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 was the same
principle as allowed a licensee in possession to evict a trespasser, and there was no respectable distinction, either in law or in
logic, between the two.
This reasoning is difficult to support. For one thing, it gives a wholly unwarranted effect to the Common Law Procedure Act
1852. But more importantly, the distinction which is dismissed as neither legal nor logical, that there is a difference between
a licensee in and out of possession, is not merely technical or obsolete but rather, a valid one to make. We will see that what
causes the trouble is a decoupling of rights from remedies.
Common Law Procedure Act 1852
As is well known, the Common Law Procedure Act 1852 was one of a number of Victorian statutes designed to overhaul the
system of the administration of justice, a series which culminated in the Judicature Acts 1873-1875. The 1852 Act was in the
main concerned to provide for one general form of writ of summons in personal actions; in other words, to abolish the forms
of action.
The action of ejectment, by nature a personal action despite the fact that it resulted in the specific recovery of land, started life
as the form of action used by lessees to recover demised premises from third parties who had ousted them from possession.
But, because of its procedural advantages over the real actions, dispossessed freeholders also sought to use ejectment to recover
possession, and were enabled to do so by a sympathetic judiciary through the use of an elaborate series of non-traversable
fictions invented by Rolle C.J. in the first half of the seventeenth century. These comprised a fictitious grant of a lease of the
disputed land by the plaintiff freeholder to a fictitious tenant, an entry by the fictitious tenant into possession, and an ouster
of the fictitious tenant by a fictitious third party, the "casual ejector". The fictitious tenant would then bring ejectment against
the "casual ejector", who would in turn write to the real defendant, telling him that he did not intend to defend the action, and
advising the defendant to do so instead, otherwise the casual ejector would suffer judgment to be entered against him, and the
defendant be turned out of possession. The defendant would follow this advice and be made defendant in the casual ejector's
place, and by this route, the real issue--who had the better right to possession as between plaintiff and defendant--would reach
the court.
*L.Q.R. 357 The 1852 Act sought to simplify this convoluted procedure. Thus, section 168 provides that:
"Instead of the present Proceedings by Ejectment, a Writ shall be issued, directed to the Persons in possession by Name, and
to all Persons entitled to defend the Possession of the Property claimed, which Property shall be described in the Writ with
reasonable Certainty."
It is of course true that section 168 does not expressly confine its operation to those with a pre-existing estate in or lease of the
land. There are, however, two reasons which suggest that this was to be taken as read.
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First, there is the principle of statutory interpretation that in the absence of any clear indication to the contrary, "Parliament
can be presumed not to have altered the common law further than was necessary to remedy the "mischief' [at which the statute
was aimed]": Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG [1975] A.C. 591 at p. 614 per Lord
Reid. The aim of the Common Law Procedure Act 1852, as its preamble makes plain ("An Act to amend the Process, Practice
and Mode of Pleading in the Superior Courts of Common Law …"), was to change only the procedure by which rights were
asserted, not to give plaintiffs rights they did not have prior to its enactment. This, one might have thought, is made clear by
section 207, which provides that
"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."
If ejectment was unavailable to a licensee out of possession prior to the Act, then it was equally unavailable to a licensee out of
possession after the Act was passed. Nor was the position altered in 1970, when RSC Order 113 was introduced, for this only
removed the need actually to name defendants (so as to provide relief against squatters who refused to give their names) and
allowed plaintiffs to proceed by the simpler and speedier route of originating summons rather than writ.
Second, though section 168 does not itself refer to the claimant's "title", this is not the case with other parts of the statute. Thus,
section 169 requires that "The Writ shall state the names of all Persons in whom the Title is alleged to be …", and section
181 talks of the "Title of the Claimant". Finally, and most significantly, there is section 183, which provides that "… if the
Claimant appears, and the defendant does not appear, the Claimant shall be entitled to recover as herebefore, without any proof
of his Title".
As a matter of statutory interpretation therefore, it seems clear that the 1852 Act did not have the effect attributed to it in this
decision.
*L.Q.R. 358 Licensees in and out of possession
The second point relates to Laws L.J.'s assertion that no logical distinction can be drawn between a licensee in and a licensee
out of possession, so that if the former can bring trespass against third parties, so can the latter. With respect, it would have been
appropriate at this point to consider why a licensee in possession is able to bring trespass; the reason is in fact one which cannot
apply in the case of a licensee out of possession. The reason why a licensee in possession can bring an action for possession is
that he has a right of possession which is completely independent of the licence under which he occupies the land.
Take the deserted wife in Ainsworth's case. She is, we are told, entitled to sue those who interfere with her possession of the
matrimonial home, from which it follows that she has a right to the possession of that matrimonial home. But from where does
her right to possession spring? Not from her licence to be on the premises, for that is a right which the House of Lords held
bound the husband alone. It must therefore be some other event which creates this right of possession. and this other event is her
unilateral act of taking possession of the house. In other words, her right of possession arises from the fact of her possession.
That it is the fact of possession which gives rise to the licensee in possession's right of possession can be demonstrated by
reference to two lines of cases. The first concerns the case of the beneficiary of trust property in possession of that trust property.
There is no doubt that such a beneficiary can bring conversion or trespass against third parties who interfere with that possession:
Healey v. Healey [1915] 1 K.B. 938. But it cannot be the beneficiary's equitable title which is here being enforced against the
third party, for the actions are actions at law, and equitable interests are not recognised by the common law: MCC Proceeds
Inc. v. Lehman Bros International (Europe) [1998] 4 All E.R. 675. The second line of cases, which makes the same point but
even more clearly, consists of those in which complete strangers take possession of either land or goods, and acquire by that act
alone a right to possession at law good against all the world save those with some prior right. These cases show that, ultimately,
the presence or absence of a licence is irrelevant to the question who is entitled to sue, for the licence is simply part of the
background facts and not determinative of the outcome of the case. Instead, what gives rise to the right to sue third parties is
the fact of possession, and it is the fact of possession which was missing in this case.
The error into which, with respect, Laws L.J. falls is in failing to notice that a contractual licensee in occupation of land has
rights derived from two separate sources, some from the contract, some from the fact of possession. Those derived from the
contract prevent the licensor from denying him possession of the land. But those rights, because of the *L.Q.R. 359 doctrine
of privity, and notwithstanding the recent reform of that doctrine, bind the licensor alone. It is the rights derived from the second
source, from the fact of possession, which bind third parties. But since the protesters were not party to the contract entered
into by the plaintiff company and the National Trust, and since the plaintiff did not have any factual possession of the land,
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then, unless a contractual licence to occupy land has suddenly leapt the personal/property divide, it could not have bound the
protesters. There is, therefore, a distinction which does still need to be drawn between a plaintiff whose right to occupy the land
in question arises from title and one whose right arises from the contract alone.
There is a very simple method of proving the invalidity of Laws L.J.'s reasoning. No one would nowadays argue that a contractual
licence to occupy land can bind a successor in title of the licensor, a proposition recently endorsed by the Court of Appeal in
Ashburn Anstalt v. Arnold [1989] Ch. 1. On his reasoning, however, since the grant of an order for possession against a successor
would seem to be just as "necessary [a] remedy to vindicate and give effect to the rights of occupation granted by the licence"
as it was against the defendants in this case, even successors in title will be bound. But we know that that is not the law.
Discretionary remedialism
But there is a deeper lesson to be drawn from this case. In his Blackstone Lecture ((2000) 20 O.J.L.S. 1), Professor Birks
warns us of the dangers of "remedialism", the notion that "remedies" can somehow be separated from "liability" and that, once
"liability" for infringement of a right is established, the judge can simply scroll down the list of "remedies" and click on the
one which he/she thinks is the most appropriate for the case. Birks labels this phenomenon "discretionary remedialism". The
dangers inherent in such a process are many, but one is that questions of substantive law become either confused or drop out of
the picture altogether. One area where this occurs is in the law of restitution for wrongs, and one of the best known examples
is Lac Minerals Ltd v. International Corona Resources Ltd [1989] 2 S.C.R. 574, where the Supreme Court of Canada held that
once it was found that the defendant had committed a wrong, be it a breach of fiduciary duty, a breach of confidence or some
other wrong, the trial judge had a discretion to choose between restitutionary or compensatory remedies, and a further choice
as to whether those remedies were personal or proprietary. The drawback of this approach is that it allows the judge to gloss
over the important question whether, which was the vital question in Lac Minerals itself, the wrong of breach of confidence
does, as a matter of substantive law, give rise to a proprietary right in the plaintiff to the profits of that wrongdoing, a question
too important to be left to the individual whim of an individual judge.
*L.Q.R. 360 That Laws L.J. can be taken as supporting "discretionary remedialism" appears from the following passage in
his judgment:
"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"' (at p. 539 (emphasis
supplied)).
But it is not a question for the "law of remedies" to determine the nature of a claimant's right, and it is this concentration on
remedies to the exclusion of rights which makes the case doubtful. If Laws L.J. had instead focused on the content of the right,
viz., that it comprised a personal right vis-à-vis the licensor to occupy the land, then it would have been seen that the right was
not one which by its nature was capable of binding a stranger to its creation. In other words, he would have seen that there
was not as against this plaintiff a "proved or admitted wrongdoing", for the right, being of a personal nature, reached no further
than the licensor. Once we decouple remedy from right, we begin more or less inadvertently to change the very nature of the
right itself. And it was only by this means that a personal right was in this case elevated to the status of a property right. By the
manipulation of remedies the closed number of proprietary rights has been inappropriately increased.
WILLIAM SWADLING.
Footnotes
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