Commencing possession claims against trespassers in the High Court

01 Jan 2018


On 30 September 2016 the Chancery Division and the Queen’s Bench Division of the High Court in London issued a new practice note. This note provides helpful guidance regarding the circumstances in which the High Court may be willing to deal with possession claims against trespassers.

The note, of course, stresses that in the vast majority of cases the claim must be brought in the County Court but a small number of exceptional cases will justify commencing the claim in the High Court.

When might the High Court be the appropriate venue?
Practice Direction 55A para 1.3(3) states that it may be appropriate to start a claim in the High Court if the claim “is against trespassers and there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination”. The note explains that there must be a “real urgency” for the claim to require immediate determination.

In respect of public disturbance, it is stated “widespread disturbance” will be a particular circumstance in which the High Court may be the suitable venue. The note explains that substantial risk of harm to property may be linked to a substantial risk to persons.

Importantly, the note clarifies that harm to property “need not be long-lasting or permanent”. As such, evidence of fly tipping may amount to circumstances sufficient to justify issuing in the High Court. This may be so where there has been “substantial tipping of waste material on commercial property” and there is a risk that “further tipping may be likely”.

In those circumstances, urgent steps may be required to prevent further harm to the property. As is explained in the note, waste material may contain substances which are dangerous and pose a hazard to anyone gaining access to the site.

The Procedure
The note also assists with the procedure to be followed when issuing a claim against trespassers in the High Court. The note clarifies that possession claims against trespassers may be issued either in the Queen’s Bench Division or the Chancery Division of the High Court.

The note explains that in a case of real urgency, where there is a need to manage the risk of public disturbance or further substantial risk of harm to persons or 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 note explains that in the Chancery Division, in cases of urgency, an applicant should in the first instance speak to the Chief Master, if available, or otherwise to any Master. The application should be brought to the attention of a Master before it is issued.

In the Queen’s Bench Division, the issued application should in the first instance be put before the Master dealing with the Urgent Applications List.

In both Divisions, the Master will consider the certificate pursuant to CPR 55.3(2) and the witness statement and decide whether the claim should be (or have been) issued in the High Court and whether short service is appropriate. An order for short service will always be subject to a provision that the Defendants may apply to set it aside. If the Master agrees to the claim being listed urgently a date will be fixed there and then.

The new practice note provides helpful clarification and useful guidance as to the expectations of the High Court when being asked to deal with possession claims against trespassers on an urgent basis. It provides a useful framework against which to consider whether the circumstances of the case are such to justify issuing a claim against trespassers in the High Court.

Ben Du Feu regularly acts for private landowners and local authority clients in possession claims against trespassers. He is happy to advise at short notice on such matters. Clients can expect clear and practical advice.