Injunction enforceable or unenforceable – that is the question?

Back in the day a trespasser was someone who either entered someone else’s land without permission and tended to be participating in a quite solitary pursuit which was likely to resolve itself as the trespasser moved on to other land or a neighbour seeking to increase the size of their holding by stealth.  In more recent times trespassing has become a more dramatic and more determined endeavour. The two best examples of the more committed and resolute trespasser, which tend to cause not inconsiderable anxiety and significant costs for clients, are the protesters taking over land and advancing a cause and persons unknown often using land to dump waste for commercial gain.

Although the act of trespassing is the same as if it were carried out by any other person or persons on land without permission, the protester and dumpster have proven a more difficult adversary when it comes to recovering physical possession.

Possession proceedings with an injunction attached should be the immediate court remedy, but without seeking to genaralise, the protester pursues its trespass with a cause at its heart and the benefit of Article 10 & 11 rights to justify their continued unlawful conduct, whilst a dumpster very often is looking to maximize the financial benefits of the trespass for as long as is possible. There is simply too much to gain in circumstances where the enforcement of the possession order or injunction is not quite as straightforward as the landowner would like it to be. Put simply the trespasser is unlikely to depart, even if shown an injunction order requiring immediate vacation, after all what is the landowner going to do with a piece of paper, even if it does have a court seal on it and a Penal Notice attached.

Of course, if a trespasser ignores an injunction, it is obviously right that proceedings for contempt of court can be commenced. In general terms imprisonment, confiscation and/or a fine are coercive remedies for a contempt of court by the breaching of an order to do something or an order not to do something. The procedural rules for those remedies are set out in CPR 81.

But having incurred thousands of pounds in obtaining the possession or injunction order in the first place, do clients really want to throw even more thousands at a contempt process that is drawn out, unwieldy, extremely costly and very unlikely to end other than with a pyrrhic victory when the trespasser leaves at their own accord, having incurred the landowner in further irrecoverable expense.

The scenario presented above is one that is very often faced by landowners who having used the court processes, find themselves still outside of their land with enforcement officers powerless to recover possession as they only have limited powers to engage. With the trespasser believing that there is nothing else other than contempt proceedings available to enforce the injunction, the trespasser plays a game of “chicken” challenging the landowner to commence contempt proceedings.

However, nowhere in CPR 81 does it say that the only remedy for an injunction is contempt proceedings or that any breach that could be the subject of contempt proceedings cannot be the subject of other enforcement proceedings or writs.

For that reason, other enforcement of an injunction procedures can and should be contemplated. CPR 83.1(2)(l)(i)-(iv) deals expressly with and defines “writs of execution”. The definition includes several specific types of writ including importantly “writs in aid of any such writs“. It follows that the CPR actively contemplates “writs in aid” and the rules relating to “writs of execution” generally, rather than specific writs by name, apply to them.

Writs of assistance and writs of restitution are both common law “writs in aid of execution”. They were both used in the context of efforts to secure possession of land and/or goods for the lawful owner. The standard forms of both continue to be expressed in a manner consistent with that. The writ of assistance refers to an order that X is entitled to possession of land and entitles the officer with the benefit of the writ to enter the land and eject those in breach of the order. A writ of restitution can be used to enable a party to recover land lost by enforcement of the original judgment after the reversal or setting aside of a judgment.

There is little if any authority on the operation of writs of assistance, but in a recent case involving 30-40 protesters who had taken over the 8^th floor administration offices at a University campus, a writ of assistance was applied for and granted, in circumstances where the protesters had defied the injunction order; being determined to hold out until they were made “martyrs” for their cause by contempt proceedings.

A decision to apply for and have granted a writ of assistance requiring the local police to engage and assist proved to be a sufficiently powerful incentive to cause the protesters to vacate; somewhat disappointed that the threat of the operation of the writ, had brought to an abrupt end their days in the spotlight causing them to literally come back down to earth. As for the University administrators, they were delighted to recover possession and at a fraction of the cost of contempt proceedings.

In these challenging financial times, a method of recovering possession that does not involve contempt proceedings, will undoubtedly be very welcome to those that find their land trespassed upon with no one vacating, following the service of the injunction or possession order.

For further information on this handy tool in the armoury of landowners, please don’t hesitate to contact Steven Woolf’s Practice Manager.

Article by Steven Woolf