Discrepancies in UK trespassing laws arose when Vesta Blades employees took possession of company property

Some of the procedural difficulties encountered in claims for possession brought against trespassers were highlighted in the recent claim brought by Vestas Blades UK Ltd on the Isle of Wight to evict employees who had taken possession of the company's property in an act of protest. A 'trespassers' action can be brought under either an accelerated two stage procedure (Interim Possession Orders – CPR r.55 Pt.III) or by way of a summary claim (Pt.I of Rule 55). This article considers the latter approach – summary possession.

CPR PD.55 para.2.1(5) requires the claimant to give details of every person "who, to the best of the claimant's knowledge, is in possession of the property". This applies as equally to a trespassers claim as it does to any claim for possession brought under CPR r.55 Pt.I.

The claim must be brought on the appropriate claim form and particulars of claim – Practice Direction para.1.5 Rule 55: in a "trespassers" action the particulars of claim are on Form N121. Form N121 does not include a paragraph giving effect to the requirements of CPR PD.55 para.2.1(5). This omission is to be contrasted with paragraph 2 of particulars of claim form used in rented residential claims (Form N119). Form N121 does, however, require the claimant to state at paragraph 1 that the land is occupied by the defendants and at paragraph 6 whether the names of all the defendants are known.

It is arguable that the combined effect of paragraph 1 and 6 of Form N121 give effect to CPR PD.55 para.2.1(5), so that where the names of all or some of the trespassers are known, those individuals must be joined as named defendants to the claim. This, however, gives rise to a number of problems. Where the trespassers action is against 'persons unknown', there is a relatively straightforward method for service of the claim (CPR r.55.6): the documents must be attached to the main door of the property, put through the letter box (if possible) or be attached to stakes placed in the land.

CPR r.55.6 does not apply to service on named defendants; such defendants must be served on them in accordance with CPR r.6.

Service on named defendants who are individuals (but who have not given an address for service) must be put into effect by leaving the claim with the individual (CPR r.6.3(1)(a) and CPR r.6.5) or at their usual/last known residence (CPR r.6.3(1)(c) and CPR r.6.9). However, the claimant will be fearful of entering the property to personally serve and it will be a rare case where it knows the defendant's address.

Where there are difficulties with service, CPR r.6.15 enables a claimant to apply for an order for service by an alternative method. The application must be supported by evidence stating, among other matters, why the order is sought (see CPR PD.6 para.9). It is considered that the evidence should identify what (if any) attempts have been taken to comply with the prescribed methods of service and give the reasons why such attempts have not proved or would not prove successful.

In the Vestas claim, the company named and joined those persons who it knew to be in occupation of the property as defendants. It did not, however, serve them in accordance with Rule 6. The claim forms were left with one of the defendants who had come to the window of the offices to speak with the process server. No application was made for a CPR r.6.15 order prior to the hearing. The court was not satisfied that the named defendants had been properly served and the hearing was adjourned for a week.

The court was also not satisfied that even if there had been good service, sufficient notice of the hearing had been given. In cases of commercial property the defendant must be served not less than two days before the hearing date (in the case of residential property it is 5 days) – CPR r.55.5; these are 'clear days' – CPR r.2.8.

CPR r.6.14 provides a deemed date of service. The deemed date is the second business day after, in the case of personal service or service at a residence, the day the claim form is delivered. The combined effect of CPR r.6.14, r.2.8 and r.55.5 is that in a case of commercial property that is listed to be heard on a Wednesday, service must be given on the Wednesday of the previous week.

As found by Vestas, the difficulty is that on the issue of a claim, the court regularly lists the matter on a date that is too early for the claimant to effect good service. CPR r.3.1 gives the court power to shorten time for service, however, as the judge in the Vestas case found, there must be a compelling reason for the exercise of the power – paragraph 3.2 of the Practice Direction to Rule 55 gives examples of when time might be shortened.

Practice points for summary possession claims against trespassers brought under Pt.I of Rule 55:

(i) Ensure that good service can be given in advance of the hearing date allocated by the court.

(ii) If this is not possible, ensure that there are compelling reasons why time should be shortened and that such reasons are set out in the evidence.

(iii) If the names of some or all of the occupiers are known they should be joined as defendants to the claim and they should be served personally or at their usual/last known residence.

(iv) If named defendants cannot be served in accordance with any prescribed method, some form of service should be effected and an application be made for an order under CPR r.6.15 – such an application can be made without notice and can operate retrospectively.

What the Vestas case did not address was the question of whether, where there are difficulties in serving named defendants, the claimant can circumvent the problem and obtain an order against 'persons unknown' which would be good 'against the world', notwithstanding there being named defendants who have not been served.

James Fieldsend is a barrister at Tanfield Chambers.