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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Canterbury City Council v Persons Unknown  EWHC 3153 (QB) (30 October 2020)
Cite as:  EWHC 3153 (QB)
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QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| CANTERBURY CITY COUNCIL
|- and -
|- and -
|FRIENDS, FAMILIES AND TRAVELLERS
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
THE DEFENDANTS were not present and were unrepresented.
MR C. JOHNSON appeared on behalf of the Interested Party.
Crown Copyright ©
MR JUSTICE NICKLIN:
"The consequence of the failure of the application under CPR 6.15(2) is pretty stark. The failure to serve the Defendants in this case means that the Interim and Final orders were made in this case without jurisdiction over any Defendant. The period of 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."
"The court generally acts in personam. Although an action is completely constituted on the issue of the claim form, for example for the purpose of stopping the running of a limitation period, the general rule is that "service of originating process is the act by which the defendant is subjected to the court's jurisdiction": Barton -v- Wright Hassall LLP  1 WLR 1119, para 8. The court may grant interim relief before the proceedings have been served or even issued, but that is an emergency jurisdiction which is both provisional and strictly conditional."
"An identifiable but anonymous defendant can be served with the claim form or other originating process if necessary by alternative service under CPR r.6.15. This is because it is possible to locate or communicate with the defendant and to identify him as the person described in the Claim Form. Thus, in proceedings against anonymous trespassers under CPR r.55.3(4), service must be effected in accordance with CPR r.55.6 by attaching copies of the documents to the main door or placing them in some other prominent place on the land where the trespassers are to be found and posting them, if practical, through the letterbox."
(Lord Sumption in Cameron )
"In recent years, the City has experienced numerous unauthorised residential encampments at car parks and public open spaces managed by the claimant. The problem is escalating, rather than diminishing. The police are reluctant to intervene so that the incursions are dealt with by the claimant on application to the Magistrates' Court. This reactive process is slow and expensive. Once the trespassers have vacated, they frequently leave waste and mess which has to be cleaned up at public expense.
In these circumstances, the claimant is concerned that there is a significant risk of trespass, an anticipated breach of planning control (by means of unauthorised residential use) and the stopping/obstruction of the highway which will be prejudicial to the interests of the area. Given the harm that would arise if this breach occurred, it is considered just and proportionate to seek an injunction to prevent it. The proposed order will have the effect of maintaining the status quo…
The defendant has been identified as "Persons Unknown" as the identity of those who may undertake the unauthorised activity is unknown."
"Over the last year, the Council has spent over Ł8,000 installing infrastructure measures to prevent illegal vehicle access onto car parks and open spaces, such as entrance barriers, over height barriers and heavy duty stud posts at entrances to its parks, car parks and open spaces… I am aware that some London boroughs have obtained preventative injunction relief. As a result, I believe that there may have been a displacement effect in persons living a Traveller lifestyle in that they will seek to set up camp in areas without the benefit of such an order."
"Several month ago, our elected Members raised the possibility of an injunction being obtained to protect our open spaces and car parks from further incursions. We are aware that Harlow District Council secured a district-wide injunction, but we are also aware that the number of incursions they were handling were extreme, and may well justify the unusual nature of their injunction. However, I am aware that a number of other councils have applied for and been successful in obtaining injunctions of this type where more moderate numbers of incursions have been used to justify the application, such as Boston Borough Council and Blackpool Borough Council. Given the similarity to the number and type of incursions we have had in Canterbury seem to be similar to Boston District Council, we have made contact with the authority and have been provided with a copy of the Order they obtained dated 3 April 2018... In the Boston DC case, we are aware that the application was made jointly with their County Council. We have therefore contacted Kent County Council who declined to make a joint application with us, but they have indicated they would not oppose our application if we made one. Meetings were held with Senior Officers to consider whether Canterbury should seek an injunction and further discussions were held with the police, who are in full support of our intended action. A conference was undertaken with Counsel on 18 March 2019, to thrash out the issues and the legal implications of making the application for the injunction. Further examples from Elmbridge, Runnymede, Central Bedfordshire and Merton are also attached… designed to show that other Councils are seeking similar assurances against incursion."
"YOU MUST NOT PARK ANY CARAVAN OR MOBILE HOME HERE.
UPON HEARING COUNSEL FOR THE CLAIMANT AND THERE BEING NO NOTICE TO THE DEFENDANT
UPON READING THE PAPERS AND HEARING THE APPLICATION FOR AN INTERIM INJUNCTION ORDER PENDING THE FINAL INJUNCTION HEARING
UPON READING THE WITNESS STATEMENT IN SUPPORT OF THE CLAIM AND
UPON ANYONE FROM THE GYPSY AND TRAVELLER COMMUNITY WHO WISHES TO ATTEND THE RETURN DAY BEING AT LIBERTY TO DO SO
IT IS ORDERED:
Until further order, the defendant, as persons unknown occupying land, are forbidden from:
(1) setting up encampment on any land identified on the attached map without the grant of planning permission or the written permission of the claimant;
(2) entering and/or occupying any part of the land identified on the map for residential purposes (temporary or otherwise), including siting caravans, mobile homes, vehicles and residential paraphernalia;
(3) for the avoidance of doubt, if a person claims that they were unaware of the terms of this order when they breached it, they must vacate the site within four hours of being informed of the terms of the order, otherwise they shall be in contempt of court.
The land in the Order means:
(4) all land within the City identified on the attached map;
(5) service of the order shall be deemed served pursuant to CPR 6.27 by affixing a copy of this order, as opposed to an original, contained in a transparent, waterproof envelope in a prominent position at each of the entrances to the sites falling within the land identified on the map;
(6) any person who is presently a "persons unknown occupying land" (or anyone notified of this order) who wishes to identify him or herself to join as a named defendant to the proceedings may apply to the court on 72 hours' written notice to the court and the claimant to vary or discharge this order (or so much as it affects that person);
(7) this application will be listed for its return day at 10.30 on 3 June 2019, with a time estimate of one hour;
(8) costs reserved."
Paragraphs 9 to 11 contained guidance notes as to the effect of the order on persons unknown and anyone knowingly assisting in a breach of the order; paragraphs 12 to 13 recorded undertakings given to the court by the claimant as follows:
"(12) The claimant will serve a copy of this order in a transparent, waterproof envelope in a prominent position at all the entrances to the land on each of the sites marked on the map;
(13) The claimant will place a copy of this order, together with the evidence served in support and the Part 8 claim form, on the claimant's website."
a. No attempt was made to serve the Application Notice on the Defendants, whether at least 3 days before the application or such shorter period of service as permitted by the court: CPR 23.7 and CPR Part 25 APD §2.2. The Order contained no provision regarding service of the Application Notice on the Defendants or any undertaking to do so. The only undertakings the Claimant gave were set out in paragraphs (12) and (13). Insofar as the Court permitted the application to be made without notice, pursuant to CPR 25.3, I have no evidence that there was compliance with CPR 23.9.
b. The witness statement of Mr Rattray did not explain why notice of the application for the interim injunction had not been given to the defendants as required by CPR Part 25 APD §3.4.
c. The Application Notice contained no application for an order for alternative service of the Claim Form on the Defendants pursuant to CPR 6.15 (as required by CPR 6.15(3)). Mr Rattray's evidence did not address the issue of service of the Claim Form at all, as required by CPR 6.16(3)(a), and the Order did not grant the Claimants permission to serve the Claim Form by alternative means (or contain any of the directions that were required by CPR 6.15(4)). All that the Order contained was a recital (in paragraph 13) that the Claimant would make the Claim Form, and other identified documents, available on its website. That undertaking is not and cannot be, and does not purport to be, an order for alternative service.
"The High Court has previously granted similar prohibitory injunctive relief to 34 other local authorities."
"In this case, an interim injunction, ex parte, was granted on 10 April 2019. The matter was listed for a return date today. To effect service the Council has affixed a copy at the entrance to each of the sites and displayed it on its website. It has gone further to bring the interim injunction to the attention of others by advertising the fact by press release and Twitter. Nobody has objected to the interim injunction or made themselves known to the Council.
The Council asked the Court to make a final order by continuing the terms of the interim injunction for 3 years. This appears to be the length of time preferred by the High Court in other cases."
"… The High Court has already determined that this form of relief is proportionate in respect of the claims brought by other local authorities with one exception - Bromley. Three points are made:
(a) Bromley was given permission to appeal by the trial judge;
(b) the judgment is not binding on this Court; and
(c) in any event, this case can be easily distinguished, given that the restraint sought is far less sweeping and ambitious (Bromley's covered all public open spaces and car parks in the borough and also prohibited fly-tipping) and, unlike Bromley, the Council does not have a significant unmet need for gypsy traveller pitches."
a. in paragraphs (1), (2), (4) and (5), four maps were attached to the final order; and
b. in the final order paragraph 6 provided:
"Adjourned generally with liberty to apply. Any person who is presently a Persons Unknown Occupying a site identified in the 4 maps (or anyone notified of this order) who wishes to identify him or herself to join as a named defendant to the proceedings may apply to the court on 72 hours' written notice to the Court and the claimant to vary or discharge this Order (or so much as it affects that person)."
The Application to extend the final injunction order
"to renew the order for injunction obtained on 8 June 2019 (sic) which is due to expire, but on a narrower basis than previously for a period of two years".
The Application was supported by the fourth witness statement of Mr Rattray dated 23 June 2020.
"In the case of Canada Goose -v- Persons Unknown… a case involving an injunction application against protestors, the Court of Appeal stated:
" A final injunction cannot be granted in a protestor case against "persons unknown" who are not parties at the date of the final order, that is to say newcomers who have not, by that time, committed the prohibited acts and do not fall within the description of the "persons unknown" and who have not been served with the claim form. There are some very limited circumstances… in which a final injunction may be granted against the whole world. Protestor actions, like the present proceedings, do not fall within that exceptional category. The usual principle, which applies in the present case, is that a final injunction operates only between the parties to the proceedings… That is consistent with the fundamental principle… that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard…
 That does not mean to say that there is no scope for making "persons unknown" subject to a final injunction. That is perfectly legitimate, provided that the persons unknown are confined to those… who are identifiable (for example, from CCTV or body cameras or otherwise) as having committed the relevant unlawful acts prior to the date of the final order and have been served (probably pursuant to an order for alternative service) prior to that date."
Therefore, the injunction obtained in this case, even if it were justifiable on other grounds, can only be applied to those who were on the land prior to the final order being obtained."
"By 4.30 p.m. on 23 October 2020… the Claimant is to file a witness statement which… demonstrates the method of service of the original Claim Form, during its period of validity, that is relied upon by the Claimant as giving the Court jurisdiction over the Defendants."
"(1) In respect of the hearing on 10 April 2019: (a) why was no application notice issued or undertaking to issue one provided?; (b) why was no notice given to the defendants of the application for an interim injunction, for example, by posting notices at the relevant sites?; (c) why did Mr Rattray's evidence not explain why notice of the application had not been given to the Defendants, as required by CPR Part 25 APD para.3.4?; (d) why was no skeleton argument provided to the Court?; (e) why is no note of the ex parte hearing available (so as to be able to comply with CPR Part 25 APD para. 9.2(2) should a request be made for the note)...
(4) In respect of the hearing on 3 June 2019… why is no note of the ex parte hearing available?
(5) In respect of the order of 3 June 2019, … does the Claimant contend that it grants permission to serve the Claim Form by alternative means pursuant to CPR 6.15?
(6) Subject to submissions of the Claimant on the above points and on the basis of the material the Court has reviewed so far, is not the position as follows: the Claim Form has not been served personally on any Defendant; no order has been made permitting service of the Claim Form by alternative means; the Court has not dispensed with the requirement to serve the Claim Form; and the period within which to complete the relevant step to serve the Claim Form expired at midnight on 10 August 2019. No order has been made - or sought - under CPR 7.6 extending the time for service of the Claim Form. If that is so, the Claimant has failed to establish jurisdiction over these Defendants; the proceedings are a nullity and the injunction orders should all be set aside.
(7) In the alternative, assuming that the Claim Form has been validly served, under what jurisdiction can the court (a) extend or vary the terms of an injunction granted by final order; and (b) change the description of the Defendants? See Canada Goose (CA -: "Once the trial has taken place and the rights of the parties determined, the litigation is at an end."
(8) Do not the terms of the order of 3 June 2019 (and the subsequent order of 30 July 2020) fall foul of the Court of Appeal's decision in Canada Goose that a final order cannot bind newcomers?"
"UPON the claimant withdrawing its application dated 27 October 2020
UPON the court recording (a) the Claim Form has not been served personally on any defendant (b) no order has been made permitting service of the Claim Form by alternative means (c) the Court has not dispensed with the requirement to serve the Claim Form and (d) the period within which to complete the relevant step to serve the Claim Form expired at midnight on 10 August 2019.
BY CONSENT IT IS ORDERED
1. The interim injunction of Thornton J is discharged
2. The claim stands dismissed."
"(1) Since the granting of the injunction on 10th April 2019, have any Gypsies or Travellers who have been encamped on any of the parcels of the land in question been evicted in reliance on the injunction order?
(2) Why was reliance placed on the temporary site set up due to the Covid pandemic at the hearing before Mrs Justice Thornton when it is now revealed that the site has never been used? Were any of the gypsies or travellers who moved on to unauthorised encampments in the area since the granting of the injunction directed to that temporary site? If not, why not?
(3) Is it the case that there is not a real problem with unauthorised encampments and, therefore, no need for a transit site, or is it the case that there is a problem and, therefore, there is a need for a transit site?
(4) Why was question 8(a) in the questionnaire answered in the affirmative when it is now apparent that the principles in the Bromley and Canada Goose cases were not fully met?"
The reference in paragraph (4) to the answers provided to the questionnaire was to the questionnaire filed by the Clamant in response to the Order of 16 October 2020 as provided by the Claimant in this case.
a. As to why no application notice has been issued in respect of the application for the interim injunction application on 10 April 2019, the Claimant's response is that it had been able to locate only an unsealed copy.
"Mr Boyle has been unable to establish whether the application, which he brought to Court was issued at the counter when he issued the Part 8 claim form and paid the fee."
The answer is not satisfactory. It shows a lax approach to the issuing of Court documents and a failure to understand their importance.
b. As to why no notice was given to the Defendants of the application for the interim injunction, Mr Smyth's response was:
"At that time, the Council did not consider it necessary. Mr Justice Davis was satisfied that the claim was properly made ex parte and made an interim order on that basis."
Of course, the Court today is hampered in considering that submission by the absence of any note of the hearing and the lack of a skeleton argument. At the hearing, I asked Mr Smyth why it was not considered necessary to serve the Application Notice. Mr Smyth accepted that it did not fall into either of the established categories where the Court permits applications to be made without notice, the first being instances of real urgency and the other being cases in which there is a risk or a fear that what is sought to be protected by the injunction would be destroyed if notice were to be given to the respondent. Having considered the chronology of the claim, I do not consider that there was any proper justification for failing to give notice of the application.
c. In response to the question why Mr Rattray's evidence in support of the application had not explained why notice of the application had not been given to the Defendants as required by CPR Part 25 APD §3.4, Mr Smyth's answer was to suggest that the matter was dealt with "briefly" in paragraph 24 of Mr Rattray's first witness statement. In that paragraph, Mr Rattray had said this:
"The Order is being sought against persons unknown because it has not proved possible to name the people who have been illegally occupying sites in the district at present, let alone those who might be attracted here in the future and there have been occasions in the past where names have been given but which later proved to be false."
That paragraph did not provide any evidence as to why notice had not been given of the application; it provided, if anything, the Claimant's explanation for why it was suing persons unknown.
d. As to why the court was not provided with a skeleton argument, Mr Smyth responded:
"Mr Justice Davis was the appointed Judge for the interim injunction Court that week and it was understood that he had dealt with a number of other similar applications that week. Counsel brought copies of the relevant authorities to the hearing, but the Judge did not require them. The Judge did not ask for a Skeleton.; Had he required one, Counsel would have been in a position to draft one that day and to return to court in the afternoon."
It is clear from the chronology of matters that the application for an interim injunction was not urgent and it is not suggested that it was. No-one was currently trespassing on the land and there was nothing beyond a very generalised threat that they might do so. There was no justification for the application being brought to Court 37. Court 37 is reserved for urgent applications. The Claimant's application should have been issued properly, served in accordance with the rules and listed for a hearing before a Queen's Bench Division Judge. As required for any hearing before a Judge, a skeleton argument should have been provided the day before the hearing.
e. The explanation for the inability to provide a note of the hearing on 10 April 2019 has been stated by Mr Smyth to be as follows:
"Mr Boyle, solicitor for the Council, attended the hearing and, at Counsel's request, took a note of what was said. The note was handwritten in a notebook. Mr Boyle kept the notebook and had anyone (such as an interested party) requested a copy of it, he would have typed the note up in a manner which was legible. The notebook was misplaced or lost on or about May 2020 when his office was cleared out and he has been unable to locate it. He has tried to retrieve it without success. He apologises for this failing."
Mr Boyle should have typed up his notes of the hearing while they were still fresh in his mind and placed the note on the file. This is basic litigation practice.
f. Mr Smyth's response to question 6, set out above, was to confirm that the Claimant accepted the propositions advanced.
g. Mr Smyth submitted that the words "adjourned generally with liberty to apply" in paragraph 6 of the order of 3 June 2019 "was taken to be an acknowledgement that the Council could return to Court to renew or recast the terms of the injunction after the expiry of a year". Mr Smyth submitted that the order of 3 June 2019 was "strictly" a final order, but he argued that because it was time limited "it was understood that the Council could return to renew, recast, extend its life". So, in a "non-literal" sense he contended that it was an interim order. I am not persuaded by this analysis and it was not a matter that was raised with the court on 30 July 2020. I am aware that in Harlow District Council v McGinley & Ors  EWHC 1851 (QB) (a claim that was brought against named Defendants as well as "Persons Unknown") the Court did grant an extension to a final injunction. The point of jurisdiction was not, however, addressed in the judgment and it appears to have been assumed that the Court did have jurisdiction to grant such an extension.
h. I have already expressed doubt in the LB Enfield case whether the Court has such a general jurisdiction:  EWHC 2717 (QB) [4(b)]. As a general proposition, once the Court has adjudicated on a civil claim and granted a final order, the claim is at an end. This fundamental orthodoxy was recognised by the Court of Appeal in Canada Goose: "Once the trial has taken place and the rights of the parties has been determined, the litigation is at an end.":  (see also my judgment in Canada Goose  1 WLR 417 - and ). If an injunction is granted as part of a final order and is time limited, once it expires, it is arguable that the claimant would have to commence a new claim and seek relief afresh (if it considers that there are grounds upon which the Court could grant a further injunction). Given that, as the Court of Appeal also recognised in Canada Goose, a final injunction can only bind the parties to it, in cases like this, it is arguable that a programme of renewal and extension of a final injunction against persons unknown (whether amended or not) is legally incompetent. It purports to bind newcomers, but in law it cannot do so. Ultimately, this is a point which will have to be resolved in a case where it falls directly for determination.
i. Mr Smyth's position appears to treat the Order of Thornton J on 30 July 2020 as an interim injunction, perhaps in a "non-literal sense". It was not. The Order of 3 June 2019 was a final order. The purported extension of it, by the Order of 30 July 2020, did not convert it into an interim injunction, it remained a final injunction, but these points were not explored before Thornton J and the issue of jurisdiction was not addressed by the Claimant.
"Costs in civil division of Court of Appeal, High Court and county courts.
(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—
(a) the civil division of the Court of Appeal;
(b) the High Court; and
(c) any county court, shall be in the discretion of the court.
(3) The court shall have full power to determine by whom and to what extent the costs are to be paid."
"(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must –
(a) be added as a party to the proceedings for the purposes of costs only; and
(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further."
Subparagraph (2) provides certain exceptions, but none seem to me to apply here.