Tuesday 6 August 2013

Sir Alan Ward's Last Judgment.........

Sir Alan Ward has delivered his final judgment.  We will not see his like again.....

The idea that an Englishman’s home is his castle is firmly embedded in English folklore and it finds its counterpart in the common law of the realm which provides a remedy to enable the owner of the castle to secure the eviction of trespassers from it. But what if the invaders occupy for long enough to establish their home within the keep? Whose castle is it now? Whose home must the law now protect? That, in colloquial terms, is the issue in this appeal which is brought by squatters against the order made by Her Honour Judge Walden-Smith sitting at the Central London County Court on 19th July 2012 when she ordered that they give the claimant possession of his land to the north side of Vineries Close, West Draycott forthwith.The castle metaphor is quaint but outmoded: the correct legal question to be asked since the Human Rights Act 1998 came into force in October 2000 is how, if at all, if squatters have established homes on the land without the leave of the landowner, does the court, faced with a claim for possession by a private landowner against the trespassers, give effect to the squatters' right to respect for their homes guaranteed to them by Article 8 of the European Convention on Human Rights?


A footnote

As this is the last judgment I shall deliver, I want to add this footnote. Article 8 is often much criticised, surprisingly even by those in a position of authority, as if it has incorporated some undesirable foreign jurisprudence into our law. I do not intend to enter into that debate, but read the opening words of my judgment. What I do want to emphasise is that this case demonstrates one aspect of our way of doing things which does represent the very best of British. That is our procedure for extended oral advocacy in our courts, especially in the appellate courts. Here we had Mr Luba QC, a true expert in the field, marshalling his written and his oral submissions in his usual measured and compellingly persuasive way. He has commanded my admiration over the many years I have been listening to him. Miss Winston is less well known to me. She had a rather torrid time when subject to a penetrating but ever-courteous Socratic inquisition from my Lord, Lloyd LJ, deploying a typical and invaluable judicial technique to tease out the issues and the arguments. She recovered and advanced her case with determination. The result was, as often happens, that the oral argument swayed the Court this way and that. That is the great triumph of oral advocacy and if it gives us more to ponder it eventually makes our task easier. It also makes it a pleasure to be a member of the Court. As I say, this, if not every application of Article 8, is undeniably the best of British. I am sorry not to be enjoying more of it.

FULL JUDGMENT, IN ALL ITS GLORY,  HERE  http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/798.html&query=ward+and+article+and+Malik&method=boolean

SIR ALAN'S GREATEST HITS HERE -  http://www.legalcheek.com/2013/05/10-of-the-best-lord-justice-ward-lines/

1 comment:

  1. Sorry if I'm being dumb, but where can I read the actual full judgement?