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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: https://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 |
||
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
vary
a final order would appear to be that contained under CPR 3.1(7). The limits of that jurisdiction were considered by the Court of Appeal in Tibbles -
v-
SIG Plc [2012] 1 WLR 2591. In summary, an application under CPR 3.1(7) usually requires a change of circumstances. The expiry of the period for which the injunction was granted does not appear to me to be a change of circumstances. Indeed, it is specifically foreseen at the date on which it was granted that the injunction would be time limited.
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
Persons
![]()
Unknown
could be
validly
served was by
personal
service in accordance with CPR 6.5. The Claimant did not contend that the Claim Form had been
personally
served on any of these Defendants. No order had been made for service of the Claim Form by alternative means pursuant to CPR 6.15, and no order had been made dispensing with service of the Claim Form under CPR 6.16. The Claim Form had therefore not been
validly
served on anyone when the matter came before the court on Monday this week.
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
v
Liverpool
Victoria
Insurance Co Ltd [2019] 1WLR 1471.
- Boyd
v
Ineos Upstream Limited [2019] 4 WLR 100.
- Cuadrilla Bowland Limited
v
![]()
Persons
![]()
Unknown
[2020] 4 WLR 29.
- Canada Goose UK Retail Limited
v
![]()
Persons
![]()
Unknown
[2020] 1 WLR 2802.
a. Whether to grant the Claimant's Application under CPR 6.15(2), the effect of which is an order retrospectively tovalidate,
as good service, steps already taken to bring the Claim Form to the attention of the Defendants in the original proceedings.
b. Whether to grant an interim injunction in the Claimant's new Part 8 Claim against
Persons
![]()
Unknown
to restrain fly tipping at the 96 sites that are subject of the application.
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 beenviewed
2,168 times.
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, inEnfield's
libraries, and a notice publicising this was posted along with the interim injunction at all the relevant sites. No record has been kept of the number of people requesting to see a copy of the Claim Form at any of the libraries where it was available.
c. A notice was placed in theEnfield
Gazette and the
Enfield
Independent newspapers on 26 July 2017.
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 onEnfield
Council's website, and can be found at the following web address: www.
enfield.gov.uk/injunction.
Any
person
wishing to review hard copies of the order, map and claim form can do so at any of the council's public libraries. Hard copies in the libraries will be made available as reference copies only, and will be available until 4 October 2017."
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 beenvery
aware of the nature of the proceedings from:
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 retrospectivevalidation
of what was done by the Claimant.
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 anyperson
falling within the category of
Persons
![]()
Unknown,
as now defined in the new Claim Form, was aware of the proceeding or the contents of the Claim Form.
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 ofPersons
![]()
Unknown,
who were the Defendants to the claim, save perhaps one
person
who made an enquiry in relation to the matter of the Claimant's Legal Department.
b. Further, the Claimant has not demonstrated that this method of service was likely to bring it to the attention of thePersons
![]()
Unknown
Defendants. The level of digital exclusion in the gypsy and traveller community demonstrated in Ms Diaconescu's evidence means that, if anything, the likelihood was that, if effective at all, it would reach only a minority of the
Persons
![]()
Unknown.
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 thevery
process by which a Defendant is subjected to the court's jurisdiction. In Canada Goose, Coulson LJ stated [45]:
"It is a fundamental principle of justice that aperson
cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard: Cameron [17] in the judgment of Lord Sumption. It is the service of the claim form that alerts a
person
to the fact that she or he is being made a defendant to the proceeding."
b. Further, in Birmingham City Council -v-
Afsar & Others [2020] EWHC 864 (QB), the Claim Form in that case simply identified
Persons
![]()
Unknown,
like this case, without a description of them. Warby J noted the following [21(2)]:
"The proceedings were, in this respect, defective at the outset; the description of 'persons
![]()
unknown'
failed to satisfy the essential requirement of identifiability, emphasised by the Chancellor in the Bloomsbury case and re-emphasised by the Court of Appeal in Canada Goose at [82(2)]. I do not consider that the Court, or a
person
given notice of the proceedings, can fairly be expected to work their way through the body of a lengthy statement of case to work out whether they are a target of the claim. In the case of an intended defendant, this may not be realistic, either. I regard the failure to describe the [
Persons
![]()
Unknown]
with more precision as a breach of the requirement identified by the Court of Appeal in Canada Goose, and a fundamental defect."
c. The important point from that decision, however, is the distinction between aperson's
general awareness of the proceedings, as a result of information they are provided, and the important step of being served with documents that makes the
person
aware that s/he is a party to the proceedings.
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 againstPersons
![]()
Unknown
for a number of years under a duty to apply to the court for reconsideration of whether the terms of the injunction remain appropriate if there has, to the knowledge of the public authority, been a change in the law that casts doubt on whether the injunction ought to continue to apply in the terms in which it was originally granted?"
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 thevery
least, to inform the defendant of those new circumstances. Counsel for the claimant submitted that even if there was such a duty in relation to what he described as a 'freezing injunction', there was no equivalent duty in relation to what I might be describe as an 'ordinary injunction'. I accept of course that there are important differences between a freezing injunction, which is often described as a 'nuclear weapon' to the extent that it may freeze assets generally, both within the jurisdiction and outside the jurisdiction, and other injunction. Of course, counsel for the claimant is right to say that there are differences between those injunction, however in relevant respects I do not accept that there is here any relevant distinction in terms of the continuing duty on a claimant to exhort the exercise of the court's discretion on a certain basis. If that basis changes, it seems to me important, as a matter of principle, that the claimant does revert to the court to inform the court of the position. The main reason for that is that the exercise of the court's discretion was originally on a particular basis and, if that basis changes, it seems to me that as a matter of principle, the court must be informed of that change in the ordinary circumstances."
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)Persons
![]()
unknown
who enter and/or occupy any of the locations listed in this order ("the locations") for residential purposes (whether temporary or otherwise) including siting caravans, mobile homes, associated
vehicles
and domestic paraphanelia (sic)
(2)Persons
![]()
unknown
who enter and/or occupy any of the locations listed in this order ("the locations") for the purposes of fly-tipping or discarding waste including entering with caravans, mobile homes, pick-up trucks,
vans
or lorries and any associated
vehicles"
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",
it must follow that, contrary to Ineos, there is no power to make an interim order either. We do not agree. An interim injunction is temporary relief intended to hold the position until trial. In a case like the present, the time between the interim relief and trial will enable the claimant to identify wrongdoers, either by name or as anonymous
persons
within Lord Sumption's Category 1. Subject to any appeal, the trial determines the outcome of the litigation between the parties. Those parties include not only
persons
who have been joined as named parties but also "
persons
![]()
unknown"
who have breached the interim injunction and are identifiable albeit anonymous. The trial is between the parties to the proceedings. Once the trial has taken place and the rights of the parties have been determined, the litigation is at an end. There is nothing anomalous about that."
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 |