In Manchester Ship Canal Developments Ltd & Anor v Persons Unknown & Others [2014] EWHC 645 (Chthe court heard an application for possession to evict a protest camp from land owned by the Claimant.   The protests were against an energy company which had a licence from the Claimant to explore for gas using the controversial “fracking” technique.

The Defendants argued that a possession order should not be made because such an order would represent a disproportionate interference with their rights under the European Convention on Human Rights.  While the Defendant protestors’ defence was in part a familiar one based on Article 10 (freedom of expression) and Article 11 (peaceful assembly), the case is interesting because the protestors also raised a defence based on Article 8 (right to respect for home) even though the land in question was privately owned.

The Article 8 had been raised in one previous domestic case called Malik v Fassenfelt and others [2013] EWCA Civ 798.   That was also a possession claim against protestors, on that occasion occupying land near Heathrow Airport.   In Malik,  Sir Alan Ward made some obiter remarks in his judgment on the applicability of Article 8.   However, this case was the first one in which the court had to deal with the issue head on.

The court in this case followed Sir Alan Ward’s obiter remarks in Malik in finding that Article 8 was engaged, even though this was private land.    This was on the basis that the court itself was a public body, and therefore it had to consider the proportionality of any eviction.   The court thought it could not “opt out” of the Human Rights Act 1998 given the clear wording of s6.   This is not a surprising conclusion given the growing weight of ECHR cases applying Article 8 even where land is privately owned.   The court also said it would be strange if Articles 10 and 11 were engaged but not Article 8. The facts in this case allowed the court to go on to say that the site was not the protestors “home” for the purposes of Article 8.   That dealt with the case in the Claimant’s favour here.   However, in future cases, where the court does find the land was the Defendants’ “home”, the court is likely to use the guidelines set out in Pinnock such that it will only be in exceptional cases that Article 8 provides a defence.

By determining that Article 8 is applicable to claims for possession of land by private landlords, the case has a wide potential impact.   It means that the court must consider proportionality in possession proceedings by private landowners of all types, not just “protest” situations or claims against trespassers as here.