Malik -v- Fassenfelt  EWCA Civ 798, 3 July 2013
This case involved certain people who were squatting on a derelict piece of land owned by a private landowner as a protest against the proposal for a third runway at Heathrow Airport. The defendants attempted unsuccessfully to argue article 8 in their defence.
However, the Court of Appeal accepted that Article 8 could apply in a case involving a private landowner (since the court itself is a public body that has to have regard to the Convention). That said, it is clear that an Article 8 defence would only defeat a claim brought by a private landowner in the rarest of cases.
The Court of Appeal case of McPhail v Persons Unknown  3 All ER 393 had established a principle that the court could not suspend a possession order against a trespasser (unless the landowner or former landlord agreed to such suspension). This has become known as ‘the rule in McPhail’. In terms of unauthorised encampment cases, this would mean that when, for example, a Gypsy or Traveller is very unwell or is about to give birth, an application cannot be made to suspend the enforcement of any possession order. Lloyd LJ in the Court of Appeal in Malik v Fassenfelt at para 26 stated:
“I am now satisfied that McPhail can no longer be regarded as good law.”