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Drury v. Secretary of State for the Environment, Food & Rural Affairs

DATE: 01 Jan 2004

Drury (Angela) v. Secretary of State for the Environment, Food & Rural Affairs [2004] EWCA Civ 200.


The Court of Appeal reviewed the circumstances in which relief can be granted in respect of land not currently trespassed upon but in respect of which further trespasses are feared. Confirming the existing of the remedy, following Essex University v Djemal (1980) and MAFF v Heyman (1989). Wilson J., giving the judgment of the Court, noted the care with which the jurisdiction should be exercised:


“24. I believe on balance that the law is right to tolerate both the paradox and the danger of injustice to which I have referred in the interest of avoiding the need for a succession of separate proceedings to address a succession of decampments, however predictable, on to separate areas of an owner’s land. But they militate in favour of keeping the jurisdiction within the reasonably narrow bounds of the principles applicable to injunctions quia timet.”


Mummery L.J. added:


“36. Although there may be difficulties in knowing precisely where to draw the line in particular cases, a line has to be drawn somewhere. That should be done by the process of a common sense assessment of the whole situation, taking account of the past conduct of the trespassers and their likely future conduct with respect to the claimant’s land. If there is convincing evidence of a real danger that actual trespasses will be committed on other land of the claimant, a wider form of possession order may be justified. It should be made only in cases in which (a) trespasses have already been committed on an area of the claimant’s land and (b) it is necessary to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of his land by persons who neither have, nor, indeed, even assert, any right to enter into possession of the claimant’s land. As explained by Wilson J a quia timet injunction against individual persons in such a situation would not be an effective remedy for dealing with a situation.”

Richard Drabble QC represented the Appellant.