Suspension of possession orders against trespassers

It has long been held that the courts do not have the power to suspend a possession order against trespassers, without the agreement of the claimant who is seeking possession (McPhail v Persons Unknown ,Court of Appeal, 1973).

In some recent county court possession actions against Travellers on unauthorised encampments, reference has been made to the Housing Act (HA) 1980 s89, which relates to any land and which states:

’(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.’

None of the exceptions in HA 1980 s89(2) apply to Gypsies or Travellers on unauthorised encampments and it is suggested that the use of the phrase ‘any land’ must indicate that this section can be relied on by Gypsies and Travellers on such encampments.

A majority of the Lords in Kay & Price seemed to indicate that the so-called ‘rule in McPhail’ did not need reconsideration by the courts (without specifically touching on the above argument concerning HA 1980 s89). However, Lord Bingham stated:

‘The rule in McPhail…must, in my opinion, be relaxed in order to comply with article 8, but it is very hard to imagine circumstances in which a court could properly give squatters…anything more than a very brief respite.’

In other words, Lord Bingham felt the rule in McPhail could not survive the introduction into UK law of the Convention by the HRA 1998.

However, in the recent case of Boyland v Rand & ors, a case involving an eviction of Travellers from an unauthorised encampment on private land, the Court of Appeal held that HA 1980 s89 only applied where the court already had a power to postpone possession and that the majority of the House of Lords in Kay and Price had made the position clear with regard to the compatibility of the ‘rule in McPhail’ with the HRA 1998

Nevertheless, advisers for Gypsies and Travellers still believe that this is an issue that ought to be given further consideration by the higher courts.