Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was effected by putting it through the letter box.
Held: The application was refused. A person claiming an order of this court against another, except where a statute provides otherwise, cannot obtain that relief except in proceedings to which that other person is a party and after that other person has had the opportunity of appearing before this court and putting forward his answer to the claim. An order made ex parte will bind only those who are parties to or attending the proceedings. This principle is blurred where the action is an action for the recovery of land by reason of the process by which the judgment is executed. The sheriff acting pursuant to a writ of possession will be bound to turn out those he finds upon the land whether they are bound by the judgment or not.
Stamp J: ‘No doubt a different and perhaps a better process . . could be provided to meet particular cases and more particularly a case where unknown persons are in occupation of land claimed by the Plaintiff’.
Judges:
Stamp J
Citations:
[1971] 1 Ch 204
Jurisdiction:
England and Wales
Cited by:
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Doubted – McPhail v Persons, Names Unknown CA 1973
The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court . .
Cited – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 29 April 2022; Ref: scu.183361