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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> London Borough of Enfield v Persons Unknown & Ors [2020] EWHC 2717 (QB) (02 October 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/2717.html Cite as: [2020] EWHC 2717 (QB) |
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QUEEN'S BENCH DIVISION
The Strand  London, WC2A 2LL |
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B e f o r e :
(By telephone hearing)
____________________
| LONDON BOROUGH OF ENFIELD | Claimant | |
| - and - | ||
| PERSONS UNKNOWN | Defendant | |
| - and - | ||
| LONDON GYPSIES & TRAVELLERS |
Interested Party |
____________________
THE DEFENDANTS were not present and were not represented
MR O. GREENHALL (instructed by Chris Johnson of the Community Legal Partnership) appeared on behalf of the Interested Party.
____________________
VERSION OF JUDGMENT
Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved
MR JUSTICE NICKLIN:
London Borough of Enfield for permission to amend the Part 8 Claim Form in an action that was originally issued on 21 July 2017, and an extension of an injunction (in modified terms) that was granted on 4 October 2017 ("the Final Order") for a period of three years. The Claimant had been granted an interim injunction on 21 July 2017 ("the Interim Order"). The Application Notice in respect of that application was issued on 22 September 2020. The Claim Form in that action had been issued against "Persons Unknown". In the original Claim Form, and indeed in the injunction orders, no description was given of the Persons Unknown in the title to the action.
Persons Unknown pursuant to s.222 Local Government Act 1972 and/or s.187B Town and Country Planning Act 1990. The Local Authority brought the claim as the owner of around 130 public spaces within the London Borough of Enfield. The action was targeted at, "Unauthorised encampments throughout Enfield by Persons Unknown who are Travellers", as well as attempting to obtain restrictions to tackle the problems of fly tipping at various sites.
London Gypsies and Travellers ("LGT"), made representations to the Court. Mr Johnson and LGT do not represent any individual Defendant, the Persons Unknown; rather LGT, and therefore Mr Johnson on their behalf, is an Interested Party.
a. The Application Notice had not been served on any Defendant. Notices had not been posted at any of the sites in respect of which the Claimant was seeking to extend the injunction. By way of explanation for this failure, in the evidence provided to the court, the Claimant suggested that there had only been a "short time" available in order to carry out that notification procedure.b. I was doubtful that the Court had jurisdiction to grant permission to amend a Claim Form and/or to extend an injunction made by a final order. The order granted on 4 October 2017 did not contain any provision to extend the duration of the injunction. Although not required to determine this point, it does seem to me arguable that after a final order has been granted, which does not contain a liberty to apply to extend, the proceedings are at an end. The Court has made its determination. Subject to an appeal, the only jurisdiction to
c. Finally, and perhaps most seriously, it became clear that the Claimant had failed to serve a claim form on any of the Defendants in the original proceeding. CPR 6.3 sets out the methods of permissible service for a Claim Form. Without an order for alternative service, the only method by which the
validate the steps the council had taken to bring the original Claim Form to the attention of the Persons Unknown Defendants.
Persons Unknown" in that latter category at the hearing of the Part 8 Claim, but it is not part of the relief they are seeking today.
Persons Unknown has transformed since the Interim and Final Orders were granted in this case. In chronological order the key cases are:
- Cameron
- Boyd
- Cuadrilla Bowland Limited
- Canada Goose UK Retail Limited
a. Whether to grant the Claimant's Application under CPR 6.15(2), the effect of which is an order retrospectively tob. Whether to grant an interim injunction in the Claimant's new Part 8 Claim against
CPR 6.15(2): Alternative Service
"(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule –
(a) must be supported by evidence; and
(b) may be made without notice.
(4) An order under this rule must specify –
(a) the method or place of service;
(b) the date on which the claim form is deemed served; and
(c) the period for –
(i) filing an acknowledgment of service;
(ii) filing an admission; or
(iii) filing a defence."
validation of an event that has already happened: AstraZeneca UK Limited -v- Vincent & Others [2014] EWHC 1637 (QB). There can be no question now of the Court permitting some future act of alternative service on the Defendants. The Claim Form in the original claim has long since expired.
v- Baadarani [2013] 1 WLR 2043. The mere fact, if it can be demonstrated, that the Defendant did learn of the existence of the claim and the contents of the Claim Form cannot, without more, constitute a good reason to make an order under 6.15(2). However, the wording of the rule shows that this is a critical factor: Abela [36].
v- Wright Hassall LLP [2018] 1 WLR 1119 [16].
validate the mode of service that has been used, not whether the Claimant had good reason to choose that mode: Barton [9(3)]. The CPR clearly stipulate the acceptable methods for serving the Claim Form. Absent some difficulty in using these methods, CPR 6.15(2) does not enable litigants to devise their own method to effect service. It is necessary in the interests of certainty that the court could permit a litigant to depart from the prescribed method of service only were a compelling case is made out to do so: Brown -v- Innovatorone [2009] EWHC 1376 (Comm) [44] per Andrew Smith J.
validly served, and he or she is forced to apply under CPR 6.15(2) to validate the method in fact used: Piepenbrock -v- Associated Newspapers Limited [2020] EWHC 1708 (QB) [65].
The evidence
London Borough of Enfield. The Claim Form was not one of the documents that was attached to the physical posts at each of the 130 sites that were the subject of the original injunction. It is correct that the Claim Form was referred to in the injunction order granted on 4 October 2017, and indeed stated to be available on the Claimant's website. One person did, apparently make an inquiry with the Council's Legal Department about the claim.
a. The web page which referred to the grant of the interim injunction on 21 July 2017, which included links to the Claim Form and the Claimant's evidence. The relevant page of the website has been
b. Miss Makanjuola fairly acknowledges in her statement that members of the Gypsy and Traveller communities may not have immediate access to the internet. In light of that, hard copies of the Claim Form were placed, as I have said, in
c. A notice was placed in the
d. Finally, although the materials made available at each site covered by the injunction did not include the Claim Form, the notice that was posted there was in the following terms:
"The enclosed document, the order, and the map, together with the claim forms (sic) and evidence in support, have been posted on
After grant of the Final Order, copies of the notice were amended to show the date of 3 October 2020, rather than 4 October 2017.
- Two in five Gypsies and Travellers use the internet daily compared with four out of five of the general population.
- Further, only 38 per cent of Gypsies and Travellers had a household internet connection compared with 86 per cent of the general population.
- 32 per cent did not own any devices that could connect to the internet.
Submissions
Persons Unknown. Nevertheless, he argues that this method of service, together with the other steps taken by the Council, would have been validated by the court had the Claimant applied in advance for an order for alternative service using these methods. He contends that the "Persons Unknown", who are most likely to be affected by the proceedings, for example the Gypsy and Traveller communities, would:
"In all likelihood have been
1. Discussions amongst their community.
2. From guidance from groups that support the Gypsy and Traveller communities such as LGT.
3. From similar orders and proceedings in relation to other locations."
a. There is no good reason for an order under 6.15(2). The Claimant failed to apply at the time of the original injunction for an order for alternative service. This mistake does not justify a retrospective
b. The original order was made in 2017. Three years have passed without any attempt by the council to correct the lack of proper service, despite the well-known decisions at first instance and on appeal in Canada Goose.
c. There is no evidence that any
d. For the reasons explained in Ms Diaconescu's witness statement, the step of putting the Claim Form on the Claimant's website was, as a result of the level of digital exclusion in the Gypsy and Traveller community, not likely to bring the contents of the Claim Form to the attention of the Defendants. The Claim Form was not posted at each of the sites but could have been.
Decision
a. The Claimant has not demonstrated that this alternative method, in fact, brought the Claim Form to the attention of anyone in the category of
b. Further, the Claimant has not demonstrated that this method of service was likely to bring it to the attention of the
Persons Unknown Defendants. But on their own, those are not sufficient.
Persons Unknown would, by a process of discussion in their communities and general experience, become aware of the proceedings and the contents of the Claim Form. General awareness of proceedings is not to be equated with proper service of the Claim Form on a Defendant:
a. Service of the originating process, here by Part 8 Claim Form, is the
"It is a fundamental principle of justice that a
b. Further, in Birmingham City Council -
"The proceedings were, in this respect, defective at the outset; the description of '
c. The important point from that decision, however, is the distinction between a
validity of the original Claim Form has long since expired: CPR 7.5. For the last three years, therefore, an injunction has been posted at up to 130 sites, directed at Persons Unknown, prohibiting certain conduct, on pain of committal for breach, when jurisdiction had not been established over any individual Defendant because of the failure validly to serve the Claim Form.
valid service of the Claim Form, but also for the failure to detect this error at any point over the last three years before it was pointed out by the Court on Monday this week. The failure validly to serve the Claim Form on Persons Unknown was one of the principal failures in the Canada Goose case.
Persons Unknown, or people representing them, could have applied to vary or discharge the Final Order that was granted on 4 October 2017. The principal ground of challenge, although not the only one that could have been made, would have been that the final order purported to bind newcomers, in other words people who were not in the category of Persons Unknown when the final order was granted. Mr Woolf accepts that, whether under CPR 3.1(7) or otherwise, the Court would have retained a jurisdiction to consider whether a change in circumstances, including a change in the law, meant that the terms of the injunction in the Final Order ought to be reconsidered.
"Is a public authority that has obtained an injunction against
v- Aardvark Digital & Anor [2012] EWHC 2276 (Comm). That was a case dealing with a freezing injunction. The judge addressed the question of the duty of a claimant in circumstances where events occur after the date of the grant of the injunction which render information previously given to the court no longer relevant or accurate. The judge recited the familiar authorities on a party's duty, at the ex parte stage, to bring all relevant matters to the attention of the court that would have a bearing on the decision the court was making.
"I am unable to accept that submission. I cannot see any reason in principle in circumstances where the claimant becomes aware of information which renders what the claimant told the court originally incorrect, not being under a duty to go back before the court to inform the court that there has been a relevant change or, at the
Persons Unknown.
Persons Unknown. The safeguards usually present in inter partes adversarial litigation are typically absent where the defendants are Persons Unknown and whose interests are unlikely to be represented. Mr Woolf accepts, rightly in my view, that the court must retain jurisdiction to consider whether the terms of a subsisting injunction should continue in the terms in which it was originally granted.
Persons Unknown ex parte, and (ii) is aware of a material change of circumstances, including for these purposes a change in the law, which gives rise to a real prospect that the court would amend or discharge the injunction, to restore the case within a reasonable period to the court for reconsideration. Although there are many reasons why this duty should apply particularly to a public authority, it does not appear to me that the duty is limited to public authorities.
Interim Injunction in the new Part 8 Claim
Persons Unknown are now identified as Defendants in new Claim Form as follows:
"(1)
(2)
Persons Unknown. To do so, he seeks an abridgment of the required period of notice. The Claimant intends to seek an interim injunction against the first category of Persons Unknown as a later point when proper notice has been given.
Persons Unknown when measured against the effectiveness of a final injunction in substantially the same terms. Although an interim injunction against Persons Unknown can bind non-parties, an injunction made by final order made can only bind those who are parties to the proceedings in which it is made (see discussion in Canada Goose [66]-[72], [89]-[92]).
Persons Unknown are the defendants to proceedings, that means that, at the point at which the court grants the final order, it only binds those who can be identified as the Persons Unknown defendants at the date of that order. In some cases, it will be possible, as in the Canada Goose case itself, to at least identify, if necessary by reference to video evidence, those upon whom there has been notice or service of the injunction and Claim Form.
Persons Unknown is defined prospectively. There are currently no members of the class of persons unknown; the interim order anticipates, and seeks to prevent, persons acting in the prohibited way. In such a case, there can be no certainty about who has been served with the Claim Form and therefore become a defendant to the proceedings. The effect would be that, once converted into a final order, the injunction would be, for all practical purposes, impossible to enforce. It cannot be enforced against historic defendants because they cannot be identified. And as a matter of jurisdiction and principle, it cannot be enforced against those who are described as "newcomers" in the Court of Appeal's decision in Canada Goose, because they were never parties to the original proceedings.
valuable protection by way of interim order than he would be able to achieve by way of final order. The Court of Appeal addressed the argument raised by the appellant about the apparent difference of enforceability of interim and final injunctions [92]:
"In written submissions following the conclusion of the oral hearing of the appeal [the Appellant] submitted that, if there is no power to make a final order against "
Persons Unknown against whom meaningful final relief could be granted. That is not the position in this case. I accept the evidence, put forward on behalf of the Claimant in this case, that fly tipping is a serious problem for local authorities, including the London Borough of Enfield. The witness evidence of Ms Maguire that has been presented to the court contains graphic photographs of the consequences and the vast amount of waste that can be deposited on land by fly tippers operating on what appears to be an industrial scale. It is therefore understandable that the Claimant wishes to take all available steps to try and prevent this unlawful activity or at least to provide effective remedies against those who engage in it.
Persons Unknown. Largely, this appears to because, he suggests, civil proceedings offer a speedier procedure to take action against those who occupy land by way of a commercial operation to dispose of large quantities of rubbish or refuse.
Persons Unknown claim like this, no Acknowledgement of Service is filed and there is no attendance by, or representation of, any defendant at the final hearing. In this case, for example, the Interim Order was granted on 21 July 2017 and the Final Order at a hearing on 4 October 2017, i.e. less than three months between initial and final hearings.
Persons Unknown. It would not provide any real protection to the Claimant because, in all probability, the Claimant would not be able to demonstrate whether any individual person had become a defendant to the claim. If no one can be identified as a defendant, the final order binds no-one. Canada Goose establishes that final injunctions against "Persons Unknown" do not bind newcomers. The consequence is that a hypothetical fly tipper who turned up at any of the ninety-six sites in respect of which the Court had made the final order would not actually be restrained by the injunction: s/he is not bound as an original defendant to the claim and s/he is not bound as a newcomer.
Persons Unknown.
London Borough of Enfield could achieve what it seeks out to do, is to have a rolling programme of applications for interim orders. As soon as a final order was granted it would become worthless against "newcomers". To continue effective injunctive relief against "newcomers" the Council would have to commence fresh proceedings and seek a new interim order. That would be litigation without end. It presents a real challenge to the conventional understanding of adversarial civil litigation as it is conducted in this jurisdiction.
Persons Unknown in cases like this. There is a real and recognised problem in cases like this that the arguments of only one side are advanced.
CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital This transcript has been approved by the Judge |